THE BLOG
03/15/2007 11:37 am ET | Updated May 25, 2011

Taking Aim at Judicial Activism

Judges who ignore decades-old precedent, who dismiss express Constitutional language as being irrelevant, and who substitute their views for those of democratically-elected representatives - these have been the targets of "conservative" politicians and commentators over the years.

Now those judicial activists are at it again. Last Friday, two judges of the United States Court of Appeals for the District of Columbia -- for the first time in American history -- declared a gun law unconstitutional based on their reading of the Second Amendment.

The March 9, 2007 decision in Parker v. District of Columbia is judicial activism at its worst:

1. It ignores binding Supreme Court precedent. In the 1939 case of Miller v. United States, the U.S. Supreme Court indicated that there was no Second Amendment right independent of "some reasonable relationship to the preservation or efficiency of a well regulated militia..." and that the Second Amendment "must be interpreted and applied" in such a way as to support the "obvious purpose to assure the continuation and render possible the effectiveness of such forces."

The judges in the majority in Parker don't even mention the Miller case until halfway into their decision, and then ignore its holding. As the dissenting judge made clear, Miller "succinctly -- but unambiguously - set down its understanding of the Second Amendment" and this court did not follow. If this Appellate Court can treat precedent of nearly 70 years so cavalierly, what other changes might we see in the coming years?

2. It discounts the express language of the Second Amendment. While the Second Amendment has only twenty-seven words (and three commas), many try to ignore its opening clauses: "A well regulated Militia, being necessary to the security of a free State..." To the D.C. Circuit judges, this "prefatory" language defines a "salutary civic purpose" only, but does not mean anything in the way of limiting "an individual right to keep and bear arms."

The weakness of this view becomes more obvious when looking closely at the sources relied upon in the Parker decision - dicta from the one Circuit Court decision out-of-step with seven other Circuits; a dissenting opinion in a case from the Ninth Circuit which held that California's assault-weapons ban could not be challenged on Second Amendment grounds; arguments by a dissenting minority of Pennsylvanians in 1787; and the "infamous" Dred Scott case from 1857. Even James Madison (the Second Amendment's author) makes clear that "keep and bear arms" referred to military uses - he even used a "conscientious objector" clause in the initial draft of the Second Amendment. These Judges, however, find more relevant that phrases like "Beware of Greeks bearing gifts" demonstrate a non-military use of the word (even though that last phrase came out of the Trojan War).

3. It substitutes its policy judgments for those of the local elected officials. Interestingly, the judges in Parker do admit that "reasonable restrictions" to "promote the government's interest in public safety" are still allowed even under their interpretation of the Second Amendment - but then they say that they, not D.C.'s elected officials, should say what is "reasonable."

Examples of those permissible "restrictions" mentioned by the Court include: "registration of firearms;" "firearm proficiency testing" (which would seem to imply licensing); denials to those who have "personal characteristics, such as insanity or felonious conduct, that make gun ownership dangerous" including "idiots, lunatics, common drunkards, vagabonds, paupers, and persons convicted of any infamous crime;" requirements "that a gun ordinarily be kept unloaded or even that a trigger lock be attached under some circumstances;" and bans on "an individual right to keep weapons of mass destruction" (specifically using an analogy to Revolutionary-era "cannons") as well as "cumbersome, expensive, or rare equipment."

Once restrictions are contemplated, however, who should best decide what restrictions make sense for a specific jurisdiction? Maybe there are legitimate policy differences with the D.C. ordinance, but elected officials at the State and local level should be given some level of deference in reaching "reasonable" balances of interests.

The decision in Parker, if upheld, could lead to all current and proposed firearms laws being called into question. This decision is wrong on the law, wrong on the history, and substitutes decision-making by elected officials with the preferences of a slim judicial majority.

(Note to readers: this blog entry, as well as past blog entrees, are co-posted on http://www.bradycampaign.org/blog/)