So I’ve just finished reading Scalia’s opinion in D.C. v. Heller (my apologies to my current employer), and I think my punt analysis was close to the mark. Yes, the D.C. gun ban went the way of the buffalo, based on a sophisticated analysis of the role of guns in society.
The decision states that the weight of historical research supports the position that the right of law abiding citizens to secure their other rights through force of arms is guaranteed by the Constitution. The D.C. gun ban failed because it included “the absolute prohibition of handguns held and used for self-defense in the home.” (Being churlish for a moment, I wonder what will happen if the citizens of the District decide to use their new found gun right to secure their right to vote?)
Other than that finding however, (which I grant is significant) not a whole heck of a lot seems to change in terms of the regulation of firearms under the police powers granted to the state. The decision expressly notes that “like most rights, the right secured by the Second Amendment is not unlimited.” It goes on to note that
nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.
and
we think that limitation is fairly supported by the historical tradition of prohibiting the carrying of ‘dangerous and unusual weapons.
So Big Show’s dream of rocking himself to sleep while cuddling an AK-47 are probably not right around the corner. Keep hope alive buddy!
It seems to me that this has just opened up the court system to another 30 years of regulations and lawsuits, trying to flesh out the boundries of what constitutes appropriate regulation outside of a complete ban. Finger printing? Registration? Licensing requirements? If none of these prevent a law abiding citizen from using a firearm in a lawfully contemplated manner (e.g. home defense), is that a problem?
As I mentioned before, I’m sure this will be hotly debated, so have at it.
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50 Responses to The Whole Shooting Match
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There was some punting with the whole “we’re not going to touch any restrictions that are in place” line. They basically torched the ban and limited it to that. Even the bullshit strict constructionist ideology that Scalia tosses around can’t go any further.
Scalia leans on the “historical background” of the amendment. Oh, really Antonin? The historical background? Shouldn’t you just stick to the 4 corners of the document? Or better yet, get into the founding fatehrs heads like you’re so fond of doing and explain to me the meaning of the militia clause. What WERE the founding fatehrs thinking with that little chestnut? it is telling that Scalia disregards the militia clause using court holdings AFTER ratification. But what about the founding fathers, Antonin? What were they trying to do there?
So in sum, Scalia uses strict constructionism when it suits him and uses precednt to throw it out the window when it doesn’t.
But personal hatred at the muppet that is Scalia aside, the ban clearly didn’t work. 135 handgun murders in 1976 when the ban went into effect. 143 last year. People who want handguns can still get them and the ban only penalizes the law abiding. And the court went out of its way to keep the exisitng regulations in effect.
What I also love ironically is that the 2nd amendment is probably now incorporated into the 14th Amendment and binding on the states(you Catholic guys will learn all about that next semester in Con Law). I wonder if Scalia, the strict constructionist, is happy now that the amendments meant for the federal government are now more and more stepping on the toes of the states. Unless Scalia would rule that a state is perfectly within its right to ban all handguns (doubt it).
Re: the 14 Amendment issue
Professor Volokh says: “Whether the Constitution limits state and local gun bans — which is to say whether the Second Amendment is “incorporated” against states and their subdivisions by the Fourteenth Amendment — will have to be decided in a future case.
He then quotes footnote 23 from the slip opinion: “With respect to Cruikshank’s continuing validity on incorporation, a question not presented by this case, we note that Cruikshank also said that the First Amendment did not apply against the States and did not engage in the sort of Fourteenth Amendment inquiry required by our later cases. Our later decisions in Presser v. Illinois, 116 U. S. 252, 265 (1886) and Miller v. Texas, 153 U. S. 535, 538 (1894), reaffirmed that the Second Amendment applies only to the Federal Government.”
i’ve only been able to just skim the decision, but it seems you’re right – a lot has been left to future litigation and legislative action.
Nice try in trying to salvage your “punt analysis.”
This wasn’t even close to a punt. A punt would not have spent forty pages burying the pro-gun control position that the Second Amendment protected a collective right of the several states, and one that was strictly for members of the “militia”, which they considered the National Guard only.
This is the same argument that you tried to use on me a few months back in the parking garage, so don’t act like this was a punt. This was a big deal. The crux of the gun control lobby’s argument was the militia clause. That’s gone.
No one who is pro-gun is going to argue that there should be no regulation or restrictions on gun ownership. But what this opinion does which is huge is pretty much states flat out that Americans have a right to a handgun for self-defense, and anything that inhibits that right is going to be unconstitutional.
I could care less about the next 30 years of jurisprudence fleshing out the details. That always happens. I’m just happy that we don’t have to have the same idiotic arguments with self-delusion people who can’t figure out the difference between an operative and a prefatory clause.
No more arguments about grammar or militias. Now we can argue about the substance of the individual right. That’s no punt. That’s a big ass fricking win.
“It seems to me that this has just opened up the court system to another 30 years of regulations and lawsuits, trying to flesh out the boundries of what constitutes appropriate regulation outside of a complete ban.”
Is that a shock? Or is that pretty much every time the Supreme Court decides to put on its legislative hat?
Also, did I catch a “buffalo” reference in that last post? Craps, anyone?
Nice. I’d be HUGELY curious how Scalia would rule if the state of Massachusetts (as an example) banned handguns. His head would probably explode just thinking about it.
Scalia using the old liberal trick of examining the historical context. LOL. What a hypocrite.
No, the liberal trick is examining the “legislative history”.
There’s nothing wrong with looking at what the framers thought the text actually meant, or how it was interpreted after it was enacted.
What’s interesting, to me, is that the Scalia and Stevens opinions each spend a great deal of time on history and scholarship… and each arrived at a different conclusion. I’m eager to read them in detail because on skimming they both appear almost scholarly in tone.
Big Show,
Looking at what the framers actually meant does not include looking at how Court’s interpreted the amendment AFTER its ratificationn, which is what Scalia did.
And the conservative judges, especially Thomas, feel that stare decisis can be ignored or overturned if the decision was wrong to begin with. Obviously, Scalia felt that since stare decisis jived with his ideological viewpoint, it was ok.
He ignored that the amendment was not in fact violated since DC residents could easily acquire a shotgun or rifle which is just as good to defend your home with. Scalia put his own ideology and the ideology of his constituency into the opinion. He felt a ban on handguns was too much, but a ban on assault rifles is still ok? Is it Scalia’s job to decide this? Is it Scalia’s job to decide which guns can actually get banned and which guns can’t? Seems to me it is a legislature’s job to decide which guns a person can and can’t have as long as they are allowed to have a gun. The constitution does not say people can carry any and all firearms they can get their hands on.
What I LOVE is that Scalia can say torture is ok because it is not cruel and unusual punishment (when in fact it is) and then turn around and say “According to MY reading of the 2nd amendment, you can ban assault rifles, but not handguns.”
Scalia’s fluid interpretation of the constitution to fit his own ends is enough to make Ruth Bader Ginsburg blush, but yet he NEVER gets called out on it by the right. EVER.
If a state ever bans guns, I would love to be a fly on the wall in Scalia’s office so I can dine on his anguish about what to do.
Here’s a nice link that details some recent conservative judicial activism:
http://www.nytimes.com/2007/07/09/opinion/09mon4.html?pagewanted=print
Here’s a link detailing the liberal judicial activism:
http://www.cbsnews.com/stories/2005/08/15/national/main777531.shtml
Now, if we are all being intellectually honest, we’ll admit that judges from both sides are activist. It seems the right in this country won’t man up and admit it, especially when it comes to their darling, Scalia.
Anon,
“Looking at what the framers actually meant does not include looking at how Court’s interpreted the amendment AFTER its ratificationn, which is what Scalia did.”
Looking at what the framers thought the language meant is the basis for textualism doctrine. Looking at how courts interpreted the amendment after ratification is what every court does in order to respect precedent. The point here was that no previous court specifically made the point that the 2nd Amendment protected an individual right, not a collective right. That’s why Scalia argues that the Court didn’t have to overrule any precedent to make their decision.
“He ignored that the amendment was not in fact violated since DC residents could easily acquire a shotgun or rifle which is just as good to defend your home with.”
What you’re missing is that it was illegal to have the shotgun or rifle functional in the home – it had to be disassembled and securely wrapped and unloaded. There was no way to defend yourself with a firearm under the now-defunct DC gun law. It was illegal. That’s the point – the DC gun ban was a complete ban. You couldn’t use a gun in the home for self defense, period. And that’s inconsistent with the 2nd Amendment, at least in DC.
Scalia isn’t picking which guns are okay and which aren’t. He makes it clear that the legislature can make those kinds of decisions, and he doesn’t overrule Miller. I don’t know where you’re getting that from. If they wanted to overrule Miller they could have done that. But they didn’t.
I won’t even get into your interpretations of Scalia’s other opinions, because it’s clear that you’ve got a case of Scalia Derangement Syndrome.
Why is a ban on handguns unconstitutional and a ban on assault rifles not?
And dismissing anything negative about Scalia makes you a Scalia apologist. The facts show he is as activist as any liberal judge on the court.
What would Scalia do if Maryland banned handguns?
I’m not a Scalia apologist. I just don’t think he’s evil. And of course there is both liberal and conservative judicial activism. It makes little sense to take the high road when your opponents won’t do the same.
If Maryland banned handguns, I’m sure the NRA would be there to sue in about fifteen minutes and it would be overturned.
A handgun and a machine gun are completely different items. Hand guns are the most common and popular weapon used for self defense. Machine guns aren’t. But hey, if we want to be consistent, I don’t have a problem with them striking down the NFA.
Did anyone else find the whole “usual and customary” analysis applied to handguns a little strange? I wonder what he would say if shotguns were the weapon of choice? Could you ban handguns then?
I also think that the question of what would happen if a State (as opposed to a Federal District) banned handguns is not as pat as the Big Show might like. Looking at the footnote that Sherpa brought up earlier, it seems like current Supreme Court decisions seem to bear out that the States could make things far more restrictive than the District.
“it seems like current Supreme Court decisions seem to bear out that the States could make things far more restrictive than the District.”
If that were to happen, then we’re really talking about the difference between activism and restraint. Though I do wonder whether, given the fact that the right to own a gun has been identified as an individual’s constitutional right, the distinction might be a moot point anyway since both, I assume, would likely apply it to the states.
I think thats the good dr.’s point. The bill of rights don’t automatically apply to the states (indeed they were originally intended to only apply to the federal government). However, the 14th amendment has been read to “incorporate” most of the bill of rights to apply to the states (referred to as the incorporation doctrine). But its not automatic…for example the right to a jury trial was never incorporated to apply to the states.
I still haven’t read the opinion, but from what i heard it is pretty limited…or at least much more limited than it had to be.
I don’t think Maryland banning handguns would be immediately overturned. As a strict constructionist, it would be against everything Scalia purports to believe in if he created new law by stating the 2nd amendment applied to the states. That’s never ever been said before by any court and CERTAINLY was not in the minds of the founders when they wrote the amendment.
But yet, Scalia would be failing his constituency if he allowed the law to stand.
I pray we see the day where this actually comes to pass just so I can see how Scalia reasons his way out of it.
To be fair, it wasn’t in the minds of the founders for any of the bill of rights to apply to the states. They were all intended to be checks on the federal government. The pertinent question is what was in the minds of the drafters/adopters of the 14th amendment when they decided to incorporate most, but not all, of the amendments to apply to the states.
If you are gonna go at Nino, lets at least try to be a little more factually accurate…after all, hes probably packing heat now.
Mojo, I’ll take it one further than you did. It wasn’t in the minds of many of the founders for there to be any bill of rights at all. The Federalists firmly believed it wasn’t necessary, because they believed that government couldn’t do anything but what was explicitly granted it within the document itself.
When the 14th Amendment was adopted, I’m sure that those drafters fully intended to incorporate the Bill of Rights and apply it to the states. The whole point of passing the 14th Amendment was to restrain state’s rights after the war.
Here’s the funny thing – if an incorporation case makes it to the SCOTUS, I will really love to see how the 4 lefty justices squirm their way out of supporting incorporation, given everything else they’ve incorporated, like abortion rights. How can you claim that a right that is only implied by the penumbra of the Bill of Rights is incorporated, when a specifically enumerated one is not?
Heller was a good decision, but we’ve got a ways to go.
Again, to be fair Big Show, its not a blanket analysis (i.e., its not either they all apply or they all don’t)…they look at it amendment by amendment. For example, the right to a jury trial (7th?) is not incorporated to apply to the States.
I do agree that this whole thing is funny. When it comes to the second amendment, now everyone has switched sides and are arguing the other side of the same argument re: activist judges. The Supreme Court has become nothing more than another venue for the political party pissing match.
Kinda makes ya rethink this whole judicial review thing, huh?
“Heller was a good decision, but we’ve got a ways to go.”
Towards what? The decision yesterday affirmed the right of an indidividual to have an operable handgun in the home for defense. What the hell else do you want? Laws requiring people to pack heat?
BTW, Sherpa, that footnote you quote above may be the most important part of the opinion….am i reading it wrong, or is it saying that the Second Amendment should not be incorporated to apply to the states?
So we could edit Bombay’s last post to say “yesterday affirmed the right of a D.C. resident to have an operable handgun in the home for defense.”
So glad i live in D.C. right now….
That’s how I read it, Mojo. Now back to looking for a new home in DC…
Wouldn’t that be a a bit of irony. The decision that allows for an individual to have a handgun in D.C. allows state legislators to ban them everywhere else.
I want it to apply to the states, Dr. B. I don’t want states weaseling out of it by claiming the 2nd Amendment doesn’t apply to them.
“[T]he Second Amendment [i]s a guarantee that the federal government will not interfere with the individual’s right to bear arms for self-defense. … Dispassionate scholarship suggests quite strongly that the right of the people to keep and bear arms meant just that. … [T]here is no need to deceive ourselves as to what the original Second Amendment said and meant. Of course, properly understood, it is no limitation upon arms control by the states.”
A quote from Scalia’s book “A Matter of Interpretation: Federal Courts and the Law” (1997). Interesting, no?
The only decision I can really applaud Scalia on is his joining the majority in TEXAS v. JOHNSON, the famous flag burning case where the court ruled that a statute banning burning the flag was unconstitutional. (Interestingly, Stevens dissented.)
I wonder if the more right leaning members of the nation saw that as another proud Scalia moment, or a traitorous one where Scalia showed his anti-patriotic pinko colors.
If that ends up being the case (there will surely be a case in the next five years reaching the SC re: the incorporation of the second amendment), then Bombay, you and the missus are free to drive down Conn. ave to my apartment should Md. ban handguns and you feel unsafe. I have a nice air mattress and will be sure to have enough handguns to go around…
Big Show,
If the 14th does not incorporate the 2nd to the states, then it is not weasling at all. It’s Federalism.
Anon,
That quote, I think, demonstrates clearly that Scalia (like most justice) is not dispasionate observer waiting to review a case on the merits. Given this, and the relative health of some of the justices on the bench, I can’t believe that there are some people who are still on the bench with the upcoming Presidential election.
Dr. B,
It’s weaseling if it doesn’t, since it seems pretty clear that part of the reason for the 14th amendment was to ensure that former slaves and freedmen had the same rights and privileges as everyone else during reconstruction, and it was common for states to try and disarm them.
I also find it hilarious that you’re arguing Federalism now. Soon you’ll be telling me that communism sucks and you love George Bush.
Also, for the record, some folks have already filed suit in Chicago challenging their gun laws.
I don’t know if they’ll have standing, but here’s a link to the complaint: http://www.chicagoguncase.com/wp-content/uploads/2008/06/complaint.pdf
Not all of the Bill of Rights are incorporated. It’s fallacious, BigShow, to think that the 2nd is automatically incorporated because YOU want it to be.
Scalia in HIS OWN BOOK said that the amendment does not apply to the states, likely due to Scalia’s manlove for federalism. It’s funny that you think that all goes out the door once it starts concerning one of the bastions of conservatism.
Federalism is GREAT until it allows states to do things I don’t like.
I’m not arguing Federalism. I’m saying that you can’t have it when you want, and ditch it when it’s inconvenient. I – like Hamilton (an early victim of gun violence), Madison, and Jay – would love to see a strong national government to keep the hoi polloi from wrecking the place. You believe in “state’s rights,” or whatever term of art you and your ilk are using as cover for regionalism and latent racism these days. Well, if the Court finds that the 14th doesn’t incorporate the 2nd – just like it did when it found that the 14th didn’t incorporate the 7th – then that’s the breaks of Federalism.
A couple things of note (as i feel that i am pretty neutral in this discussion):
1) Scalia said the SECOND amendment, as written, is properly understood not to apply to the states. That is correct, just as it would be correct to say the same thing about the First Amendment (“CONGRESS shall pass no law etc…”). This has no bearing on incorporation, which deals with the Fourteenth Amendment. Scalia could find the Fourthteenth Amendment incorporates the Second to apply to the states and still be entirely consistent with that cute little quote you Scalia bashers dug up.
2) Dr., to say that Federalism stands as a pretexual term for latent racism is ludicrous. Read the constitution…the founders were EXTREMELY weary of your “strong national government,” considering what England had just done to them.
I also think this is great, because its completely reversed the normal arguments….this is why judicial review should be left in the closet save for only the most extreme measures. Your debates are great and exactly what the democratic process is designed for. Wouldn’t it be great if your opinion ACTUALLY MATTERED rather than having to adopt what unelected, life-tenured, braniacs in robes deem the law to be?
Jack S.,
The 14th amendment effectively killed the vast majority of state’s rights. Whether or not I agree with it, that’s what it’s effect has been. If the 1st and 4th amendments, which both protected rights that the founders believed predated the Constitution, are incorporated into the 14th amendment, I don’t see how the 2nd amendment wouldn’t be, also.
What I think is hilarious is, as I have already stated, people who hate the concept of state’s rights, and who have found all kinds of rights not even close to be considered in the Bill of Rights to be applicable to the states, such as abortion and contraception, will have to argue in favor of incorporation or be considered hypocritical.
If anybody is “having it when the want it and ditching it when it’s inconvenient,” it’s the folks who hate state’s rights.
I think Jack’s argument is right on. We don’t know what SCOTUS would decide. We do know that a right to jury trial is not guranteed at the state level because the 7th Amendment is not incorporated by the 14th. Does that mean the 2nd would be? We’ll see when the litigation comes up.
Mojo,
To be accurate, please note that I said the term “state’s rights” was cover for these things, not Federalism. Like when Ronald Regan endorsed “state’s rights” at the Neshoba County Fair in Mississippi in 1980. (Near where 3 civil rights workers were murdered by the Ku Klux Klan 16 years earlier. Class act, that guy.) In that case, he was using the term to sway a constituency that had felt that its tradition prerogatives (Jim Crow, etc.) had been undermined by the Federal Government.
I stand corrected. Your last post proves my larger point perfectly though. You just referenced a completely political event to define a term in your argument. I care about the law…f politics. Its exactly why all these decisions are so bad for our country.
Mojo,
You care about the law but not about politics? So there is no role for the courts if a state is doing something grossly immoral (like Jim Crow) and the court is the only instrument to end it effectively because Congress can’t or won’t get its act together to fix it OR it is perfectly within a state’s right to act that way regardless of what the federal gov’t says?
So in your mind, if the court’s did not step in to de-segregate schools and Congress was unable to step on a state’s toes to stop it, the South should have just been allowed to keep an underclass down as long as it saw fit? So if a state nowadays wants to turn into New Iran and pass laws that specifically say homosexuals CANNOT have protection under the law in reagrds to discrimination, the court should just butt out and let the state descend back to pre-industrial times? The Supreme Court overturned that law by the way (a constitutional amendment in Colorado) with Scalia’s dissent basically saying “If a state hates gays, let them hate the gays.”
Romer v. Evans is the case, by the way.
Jack,
I’m not going to get into a big long debate with you about this, but a couple things of note:
1) I do care about politics. I just believe that the Supreme Court is not the venue where political issues should be decided.
2) Regarding your Jim Crow hypo, you act like Congress is some independent being rather than a body of elected officials. You want the law to change, fine. Go out there and garner support for your position, get the right people elected to advocate your position, and change the law. Thats what is at the heart of a democratic system.
3) I read Romer, and thats not what Scalia said at all.
Scalia sais that a state has the right to deny protection to a practice it sees as immoral. His exact words were “If it is rational to criminalize the conduct, surely it is rational to deny special favor and protection to those with a self-avowed tendency or desire to engage in the conduct.”
First, criminalizing homosexual behavior is asinine. Yet, Scalia, caveman that he is, is fine with it and in fact USES it to buttress his argument that the state can make gays immune to protection from discrimination. Because the state frowns on a class of people, they should be able to set up an environment where that trait can be openly discriminated against without any repercussions.
He also says “Since the Constitution of the United States says nothing about this subject [homosexuality], it is left to be resolved by normal democratic means, including the democratic adoption of provisions in state constitutions.”
So since the constitution says nothing about the subject of women with black hair named Matilda, a state legislature can pass a law saying that there is no penalty for discriminating against that person based in their black hair and name.
And Scalia would be fine with it. In fact, everyone would be fine with it, unless you were in the persecuted minority. But hey, the court’s not there to protect powerless minorities. Oh WAIT. It actually is there for that.
And conservatives typically idealize Congress as this dynamic body that responds to the whims of the people and every law that comes out of that body represents the will of the people. I can tell you for sure that MY congressman has not done everything I put him in office to do. And I have the right to vote him out and I guarantee that the next person doesn’t either. Politics is not this idealized world that conservatives make it out to be.
But I digress. I’m interested in what your interpretation of Scalia in that case is?
And not to continually beat a dead horse, here is another article on how activist Scalia is:
http://www.nytimes.com/2005/04/19/opinion/19tue3.html
And here is spot on (and completely true commentary) on one of my favorite Scalia hypocrite moments of all time:
“In a 1991 decision, Justice Scalia wrote that “despite the narrowness of its terms,” the 11th Amendment has been understood by the court “to stand not so much for what it says, but for the presupposition of our constitutional structure which it confirms.” If another judge used that rationale to find rights in the Constitution, Justice Scalia’s reaction would be withering.”
It WOULD be withering. Scalia would rail against those damn activist judges.
Wow, those were quite the posts. Again, here’s a streamlined response, but i dont really have time to get into it and its definitely not worth it:
1) Scalia says in Romer that homosexuals are not a “protected class” (whatever that means) under the Equal Protection Clause of the 14th Amendment. Therefore, the State is free to regulate based on that class assuming that it can provide a rational basis for its legislation. He certainly did not say homosexuals could not have protection from discrimination under the law.
2) People named Matilda with black hair also would not be a protected class. However, I would think that the state would have a pretty difficult time even passing rational basis review for singling out such a class. Plus, if the law were criminal in nature, it would face serious bill of attainder problems.
3) Im sorry that Congress doesn’t work as swimmingly as you would like, but that is the system that we adopted when we broke away from England. If you don’t like it, petition to try to amend the Constitution (or whatever authority sets up our current governmental structure) or leave. Your problem seems to be rooted in the central tenant of democracy: that everyone’s opinion matters, even those that you starkly disagree with. Instead of trying to circumvent democracy through judges that happen to agree with you, how about exercising your First Amendment right to express yourself and convince the majority that your position should stand supreme? I know I know, revolutionary concept….
I quite enjoy your condescending tone. It’s like I’m arguing with my crazy uncle about his militia.
1) You view Scalia’s rantings through an interesting and quite frankly a little bit disturbing lens. His exact words were: “If it is rational to criminalize the conduct, surely it is rational to deny special favor and protection to those with a self-avowed tendency or desire to engage in the conduct.”
Deny protection. It’s there in black and white. It’s a-ok with Scalia if a state says that a homosexual has no cause of action for being discriminated against due to being gay.
2) All the state has to do is stick a morality tag on it and the conservatives eat it up. Homosexuals cause no harm to society but because it is viewed as “immoral,” Scalia has no problem with a state passing such a law. So if a Wal-Mart owner doesn’t want to hire a gay person because they are gay because it offends their moral sensibility, it’s ok according to Scalia.
3) You seem to have the idea that the minority can be crushed by the will of the majority because that’s how democracy works. Not only is that frightening, it’s very closed minded. Good thing those with that kind of viewpoint weren’t on the court for Brown v. Board, otherwise the educational system would look a lot different today. But, hey, I guess if I don’t like the results of “Democracy,” I should just leave instead of trying to make society better. And god forbid someone tries to do it in a non-democratic way, because Congress really does a great job getting rid of societal ills. I mean look at the marvelous job they did with slavery. I’m sure the million that died in the Civil War were happy that the Democratic process worked so well.
4) How do you feel about the article from the NY Times painting in vivid colors Scalia’s activism?
First off, we are not arguing. I consider this a discussion. Now as for the substance, I think that you are missing my point. I will try to clarify:
Re-read Scalia’s quote. It is not controversial at all. He said it is perfectly rational to deny special favor through a classification of those who engage in CRIMINAL conduct. The first part of that sentence is key. Its no different than saying murderers or rapists would not be a protected class under the 14th amendment.
Am I saying that homosexuality should be criminal? No. I personally don’t think that it should be. But I agree with Scalia that the proper remedy in a default majority government is the legislature. That is to say, I agree with Scalia that nothing in the Constitution prohibits a state from making homosexual acts illegal. Would I personally vote in favor of such a law? No.
And that leads me to Brown v. Board. That is the classic example that those in favor of judicial review like to point to to justify every single opinion. It would be difficult to suggest that it plays no role in our government, especially in the wake of Marbury v. Madison. But considering that whether the power exists in the first place is open for debate, I firmly believe that it should be reserved for only the rarest of occassions so as not to interfere with the democratic process. I would agree that Brown v. Board was one of those rare situations, although its interesting to note that it could have been resolved through the equal protection clause rather than by relying on the “substantive” portion of the due process clause.
Oh, and as for the whole Scalia activist thing, I am not a Scalia worshiper. I think his 11th amendment decisions are pretty weak.
Re: the Brown v. Board issue
I’m not sure Brown v. Board is a great example to use to justify judicial intervention. I can’t say I disagree with the decision, but to suggest that it lead to schools that look “a lot different” is a stretch.
HBO ran an excellent documentary on minority educational achievement that considered how the school (Douglass High) in Brown is every bit as segregated as it was in the 50s. And you can look at most schools and find a largely homogeneous student body. Sure there are notable exceptions that might not exist were it not for Brown (assuming also that the legislatures wouldn’t have done anything) but by and large a SCOTUS ruling did not change the culture, even if it changed the law.
I bring this up to suggest that there are practical barriers to using the courts to advance the cultural and social changes that many of us might agree with. The court may very well have done the right thing in Brown. We all believe that every student should have equal opportunity. Let’s not fool ourselves into thinking that it was more effective (or beneficial for African American students) than fundamental cultural change expressed in bipartisan legislative action would have been. If anything Brown fooled us into thinking that enough was being done and took pressure off the political branches to enact serious education reforms when they were needed (i.e. changing revenue sources, dealing with math and engineering shortcomings, etc).
Likewise, in Heller, no matter what SCOTUS decided, it could never address the serious social and cultural challenges guns present to our country. Gun control laws or not, gun violence is a serious problem. Ability to carry a firearm or not, you can’t defend yourself against the state or use it at will against criminals. These issues, generally, are best left to legislative bodies and communities to solve (though I sympathize with the idea that the political system seems broken and non-responsive).
The last thing I will say, because I think my comments have run their course.
1. My main goal in this argument is to say that Scalia is an activist judge. And that conservatives (as a generalization) don’t want to acknowledge or believe it. Scalia is not the model of an impartial jurist. I just want that admitted by the right in this country and by and large it is not admitted. So there is this self delusion on the part of conservatives that really irks me. They just need to admit that they like Scalia because he furthers their agenda, not because he is an amazing jurist.
2. To Sherpa: I agree that a legislative remedy is best, but I’m a cynic and believe the wheels of democracy turn slowly and are sometimes in the hands of interest groups rather than people on the ground. Would a legislative remedy that occurred in 1965 been more or less effective than a court decision to end segregation in 1953? Segregation, though illegal after 1953, did not really end on any meaningful level until a decade later when the Civil Rights Act of 1964 threatened to withold federal funding from segregated schools. And even then many schools chose to shut down completely rather than admit black students. The atmosphere was not right for any kind of legislative remedy in the South at that time. I don’t think the National Guard needed to be called in because it was a COURT decision. A congressional decision would have drawn just as much ire.
And with that, I;m done.
Cheers on the thought provoking comments, Hypo staff.