Douglas Kmiec thinks that the gun-rights decision was an act of judicial activism from the Right. Fine; that’s what Matt Franck thinks too, and I respect Franck’s opinion. But it would be nice if the good professor would actually offer an argument for his position. Here is the entirety of the constitutional analysis he offers in his article:
I am a lawyer — a constitutional lawyer — and the words “a well regulated militia, etc.” have an obvious meaning. The history reveals an individual right to possess a gun for the purpose of joining with the other members of one’s state in a militia to protect against external threat and the internal risk of tyranny from one’s own government.
Case closed, I guess.
Kmiec goes on to note that Scalia’s opinion “also disregards the long-standing teaching of the American Catholic bishops that ‘handguns be effectively controlled and eventually eliminated from our society.’” Referring to the policy positions of the bishops as “teachings” risks being misleading, since they clearly do not have the status of, say, a Magisterial teaching. American Catholics are not bound in conscience to agree with the bishops. So what exactly does it mean to say that Scalia “disregard[ed]” the bishops rather than merely disagreed with them? Moreover, the bishops’ statement as presented has nothing to do with constitutional interpretation (and it would be remarkable if it did have something to do with it). A justice who agreed with the bishops might favor a constitutional amendment to ban handguns while recognizing that he is bound by the Constitution we have. The justice is not supposed to be acting as a policymaker, and in judging him as though he were one it is Kmiec who is showing the mindset of an activist.
(Via Cato Unbound)