W ith Supreme Court decisions as with firearms, sometimes the most important reverberations are felt only after the initial big bang has dissipated.
The “big bang” in yesterday’s D.C. v. Heller handgun case, of course, was the correct decision that the right to bear arms belongs to individuals regardless of whether they are active members of a “militia.”
But an equally important point, though far more subtle, was the majority’s refusal to invite further, endless judicial hairsplitting about a fundamental constitutional right.
Instead of giving the judiciary more chances to decide if a legislature has or has not been rational — thus grabbing more and more power for judges to act as independent lawmakers accountable to nobody else — the high court majority properly erected a safety lock against unseemly judicial meddling.
In so doing, it also slapped down a key contention of the legal brief filed by the Bush administration, which had asked for a nondefinitive, hold-for-further-review, dampen-the-gunpowder decision.
The administration did agree with the Supreme Court that the Second Amendment protects an individual right, not just a collective one related to militias. But it was worried that federal bans on “machine guns” would be invalidated if the D.C. law were ruled unconstitutional outright, because some “machine guns” are also technically “hand guns” that are prohibited by the District’s law.
The administration spent a large portion of its brief explaining why the District’s law should not be directly overruled, but instead “remanded” to lower courtswith instructions from the high court about which “standard of review” should govern their deliberations.
The Supreme Court’s consideration of that standard, the administration said, “will be a substantial constitutional undertaking.” After the proper standard was determined, Bush argued, “Second Amendment doctrine [could] develop in an incremental and prudent fashion as is necessary to decide particular cases that may arise.”
In football terminology, that’s called punting. Kick the ball down the field and let somebody else run with it later.
Note that “standard of review” is legal jargon describing just how active judges should be in deciding whether a law is “rational” or “necessary” enough to an important “government interest” for it to be allowed to infringe on what otherwise is a clear-cut right of citizenship. In other words, it determines whether and when judges can interpose their own supposedly advanced sensibilities between the deliberations of legislatures and the dictates of the Constitution.
Activist judges tend to love such judicially created standards, and to create ever-more-intricate variations of them, because constant manipulation of standards gives more power to judges to act as demigods.
Sure enough, in a separate dissent yesterday, Justice Stephen Breyer echoed the administration in calling for future judges to “focus on the practicalities, the statute’s rationale, the problems that called it into being, its relation to those objectives — in a word, the details.”
Breyer advocated a standard of review that he called “an interest-balancing inquiry.” Of course, in the Breyer-Bush conception, it is only judges who should balance those interests. Forget power to the people; this is all power to the judges, rather than to theConstitution ratified by the people as a collective, founding body.
Justice Antonin Scalia, writing for the majority, blew away this idea with the precision of a sharpshooter. “We know of no other enumerated constitutional right whose core protection has been subjected to a freestanding ‘interest-balancing’ approach,” Scalia wrote. A few sentences later, he warned: “A constitutional guarantee subject to future judges’ assessments of its usefulness is no constitutional right at all.”
Further, he noted, the Second Amendment itself already is the result of “interest-balancing” — conducted, as it should be, by the people themselves, who decided absolutely that there is a “right of law-abiding, responsible citizens to use arms in defense of hearth and home.”
The biggest reverberation of this decision, then — if Scalia’s slap-down of Breyer and the Bush administration is given proper weight by future courts — might be the re-establishment of judicial humility through the rejection of ever-more-complicated, judicially created, judge-empowering standards of review.
If one pictures the judiciary as a burglar trying to steal the people’s constitutional prerogatives, Scalia’s decision gives the people the necessary arms with which to defend themselves.
