Saturday, July 3, 2010

liberal judicial incoherence on the 2nd Amendment

From the WSJ editorialists:

Judicial liberals have been discovering the virtues of legal precedent now that conservatives are finally winning a few cases at the Supreme Court, but in yesterday's major gun rights case that all went out the window. The four liberal Justices rejected a 2008 landmark precedent as well as one of their own bedrock Constitutional principles.

One of the limits/ironies of "precedent" and its supposed value!

That's the most surprising news in yesterday's 5-4 decision in McDonald v. Chicago, which ruled that the Second Amendment protects the same Constitutional right in the states as it does in Washington, D.C. The decision is the logical extension of 2008's District of Columbia v. Heller, which ruled for the first time that the Second Amendment was an individual right like the rest of the Bill of Rights. In McDonald, the Justices established that this right also applies to the states via the Fourteenth Amendment and cast doubt on a Chicago ordinance banning handguns.

Most Court followers had expected the decision to "incorporate" the Second Amendment to the states to be relatively easy and perhaps draw a large majority. Over nearly a century of cases, the High Court has extended to the states most of the rest of the Bill of Rights including part or all of the First, Fourth, Fifth, Sixth and Eighth Amendments. It would be passing strange for the Second Amendment to be the lone outlier.

All the more so given that Justice Samuel Alito's plurality opinion used "substantive due process" under the Fourteenth Amendment to justify the decision. This is the logic that liberals have long used to apply the other Bill of Rights to the states, and objections to it have most often come from conservatives....

Justice Clarence Thomas joined the majority ruling but did so using what he called a "more straightforward path" to incorporation, using a long-dormant part of the Fourteenth Amendment known as the Privileges or Immunities Clause...

The majority opinion does leave room for some state and local gun regulation. And the liberals could have joined the majority to help shape the opinion and allow for even more state and local latitude. So it's striking that they instead came out in full-throated dissent and refused to accept even the basic finding in Heller. Justice Stephen Breyer, joined by Sonia Sotomayor and Ruth Bader Ginsburg, even did a rare turn as a states' rights advocate, noting that incorporation will curtail the ability of states to craft their own gun laws. This problem doesn't seem to bother Justice Breyer or the other liberals when they overturn state laws based on a "right to privacy" that, unlike the Second Amendment, is mentioned nowhere in the text of the Constitution...


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