Washington Post columnist E.J. Dionne Jr. is probably as good an indicator of the reflexive conventional liberal line as anyone, so let’s take a look at his attack on the Court’s ruling in the D.C. handgun case (District of Columbia v. Heller). Here’s Dionne’s thesis:
The court’s five most conservative members have demonstrated that for all of Justice Antonin Scalia’s talk about “originalism” as a coherent constitutional doctrine, those on the judicial right regularly succumb to the temptation to legislate from the bench. They fall in line behind whatever fashions political conservatism is promoting.
Now let’s examine his arguments and evidence.
1. Dionne contends:
[(a)] Conservative justices claim that they defer to local authority. Not in this case. [(b)] They insist that political questions should be decided by elected officials. Not in this case. [(c)] They argue that they pay careful attention to the precise words of the Constitution. Not in this case.
Propositions (a) and (b) present a cartoonish misunderstanding of conservative judicial principles of original-meaning jurisprudence and judicial restraint. Those principles do not dictate that justices should always defer to local authority or to decisions by elected officials. Rather, they provide a methodology for distinguishing when it is proper for judges to override democratic enactments and when it is not.
Dionne’s claim in proposition (c) that the justices in the Heller majority have not paid careful attention to the text of the Constitution is baseless. Some 50 pages of the majority opinion examine the text of the Second Amendment in painstaking detail. Length, of course, is no guarantee of rigorous care, but Dionne provides not a single example of supposed sloppiness in the majority’s opinion, nor does he give any indication that he’s actually read it with care.
2. Four paragraphs later, Dionne complains that the majority “spent the first 54 pages of its decision … trying to show that even though the Framers inserted 13 important words in front of the assertion of a right to bear arms, those words were essentially meaningless.” Is that, he asks, “an honest attempt to determine the ‘original’ intention of the Constitution’s authors”?
Set aside Dionne’s conflation of original intention and original meaning. The majority properly explores at length the relationship between the Second Amendment’s operative clause and its prefatory clause. Its conclusion that the prefatory clause does not limit or expand the scope of the operative clause does not render the prefatory clause meaningless, and, indeed, the majority explains its view that the prefatory clause “fits perfectly” with the operative clause.
3. Dionne contends that the “United States and its gun owners have done perfectly well since [the Court’s ruling in United States v. Miller in] 1939 … impl[ied] a collective right to bear arms, but not an individual right.” Dionne evidently misses the opening paragraph of Justice Stevens’s dissent, where Stevens disclaims the position that the Second Amendment protects a collective right. He also misses, or ignores, Scalia’s explanation of how Miller is inconsistent with Stevens’s position that the Second Amendment protects only those serving in the militia.
More importantly, what sort of strange legal argument is Dionne making? Would it have been okay, say, for the Court to have eviscerated the 26th Amendment (lowering the voting age to 18) on the theory that the United States and under-21-year-olds had been doing “perfectly well”?
4. Dionne posits some inconsistency between Scalia’s explanation in Part I of his Boumediene dissent that the Court’s ruling (conferring habeas rights on foreign Guantanamo detainees) “will almost certainly cause more Americans to be killed” and his failure to apply a similar “consideration” to striking down D.C.’s gun ban. But Scalia made clear in his Boumediene dissent that he was describing the “disastrous consequences” of the Court’s error, not applying a “consideration” that affected his legal judgment. He spelled out the legal errors of the Boumediene majority in separate parts of his dissent.
5. Dionne hopes the Second Amendment ruling “opens people’s eyes to the fact that judicial activism is now a habit of the right, not the left.” But that “fact” is Dionne’s own delusion. It is the Left that threatens to invent a constitutional right to same-sex marriage, to overthrow bans on partial-birth abortion, to give foreign terrorists constitutional rights, to strip religion out of the public square, to protect child pornographers and child rapists, and so on. Dionne can’t, and doesn’t even try to, present any comparable threat that “the right” would run roughshod over democratic enactments.
I’ll note further, and finally, that the Court’s Second Amendment ruling comports with, and draws on, the work of academic scholars across the political spectrum. That fact, among many others, makes it a strange poster boy for Dionne’s cry of conservative judicial activism.