Bench Memos

Misfiring

Slate’s Dahlia Lithwick somehow finds in the oral argument yesterday in the Second Amendment case “the abandonment of every principle of strict construction, federalism, and judicial modesty in which the Roberts Court ever purported to believe.”  Further, she maintains that counsel for the gun owners implicitly invoked “the spirit of Roe v. Wade” in arguing for judicial review “when a fundamental right is at stake.”  She concludes:

 

Today we have four liberals rediscovering the beauty of local government and judicial restraint and five conservatives poised to identify a fundamental personal right that will have judges mucking about in gun cases for years to come. After all these years of deep conservative suspicion of turning over policy matters to the courts, the Roberts Court has fallen in love with a new constitutional right. And while they don’t seem much concerned about how the judges will manage it, they’ve just about ensured that judges around the country will soon be ruling in gun cases the way they used to rule on speeding tickets.

 

Perhaps Lithwick might have waited for the Court to issue its opinion before offering her hyperventilating conclusions.  And perhaps she might have in mind that, whether she likes it or not, the Second Amendment, far from being a “new constitutional right,” has been an express part of the Constitution since 1791.  That observation, of course, doesn’t offer any insights into the scope of that right, but it does suggest how fanciful her comparison to Roe is. 

Ed Whelan — Ed Whelan is a leading commentator on nominations to the Supreme Court and the lower courts and on issues of constitutional law.

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