ConfirmThem

This case plainly illustrates the utter disappointment that is the Bush presidency. Yes, he did give us two great judges, but it appears they were simply bones thrown to the right.

The real Bush is the man who nominated Harriet Miers, listened to the counsel of Gonzales, and argued for a remand of the Heller case. Call it compassionate conservatism. Call it Republican liberalism. Whatever it is called, it is not conservatism.

Thanks goodness for the pressure placed by us and other conservatives, or we might have Gonzales and Miers instead of Roberts and Alito.

By the way, I caught a few minutes of John Yoo appearing before Democrat crazies yesterday. They were harping on the torture memo. Yoo's lawyer was none other than Miguel Estrada. Quite a pair, those two.

Here's Dean Chemerinsky's totally uninformed op-ed in the LA Times on Heller:

Judicial activism by conservatives
The high court's 2nd Amendment opinion makes the majority's agenda clear.
By Erwin Chemerinsky

June 27, 2008

The Supreme Court's invalidation of the District of Columbia's handgun ban powerfully shows that the conservative rhetoric about judicial restraint is a lie. In striking down the law, Justice Antonin Scalia's majority opinion, joined by the court's four other most conservative justices, is quite activist in pursuing the conservative political agenda of protecting gun owners.

If the terms "judicial activism" and "judicial restraint" have any meaning, it is that a court is activist when it is invalidating laws and overruling precedent, and restrained when deferring to popularly elected legislatures and following prior decisions.

Never before had the Supreme Court found that the 2nd Amendment bestows on individuals a right to have guns. In fact, in 1939 (and other occasions), the court rejected this view. In effectively overturning these prior decisions, the court both ignored precedent and invalidated a law adopted by a popularly elected government.

What's more, the court's interpretation is questionable. The text of the 2nd Amendment is ambiguous. Its second clause speaks of a right to "keep and bear arms," but its first clause suggests that this right exists because a "well-regulated militia" is essential. There is thus strong reason to believe that the 2nd Amendment only guarantees gun rights for those serving in a militia.

At the very least, one would expect that a high court committed to judicial restraint would have used the 2nd Amendment's ambiguity to defer to the political process and to follow precedent. Yet nowhere in Scalia's opinion was there mention of the need for judicial deference that is so characteristic of his opinions in cases involving other individual liberties.

What then explains the court's decision to strike down the D.C. law? Conservative political ideology. The majority followed prevailing conservative political philosophy and found that the 2nd Amendment bestows on individuals a right to have guns.

This should not be surprising. The conservative justices regularly jettison judicial restraint when it is at odds with conservative politics. They've done the same thing in cases involving affirmative action and desegregation programs.

The irony is that the same conservative justices who were so eager Thursday to find an individual liberty under the 2nd Amendment are loath to do so when a right of a criminal defendant is at stake or when it is a matter of enforcing the religion clauses of the 1st Amendment. Thursday's decision is a powerful reminder that the conservative justices are activists when it serves their political agenda.

Erwin Chemerinsky is the dean of the UC Irvine School of Law.

Here's another liberal fool's take on Heller:

Originalism Goes Out the Window
By E. J. Dionne

WASHINGTON -- In knocking down the District of Columbia's 32-year ban on handgun possession, the conservatives on the U.S. Supreme Court have shown again their willingness to abandon precedent in order to do whatever is necessary to further the agenda of the contemporary political right.

The court's five most conservative members have demonstrated that for all of Justice Antonin Scalia's talk about "originalism" as a coherent constitutional doctrine, the judicial right regularly succumbs to the temptation to legislate from the bench. They fall in line behind whatever fashions political conservatism is promoting.

Conservative justices claim that they defer to local authority. Not in this case. They insist that political questions should be decided by elected officials. Not in this case. They argue that they pay careful attention to the precise words of the Constitution. Not in this case.

The political response to this decision from many liberals and Democrats was relief that the ruling still permits gun regulation, and quiet satisfaction that it will minimize the chances of the gun issue hurting Barack Obama in the presidential campaign. Some will rationalize this view by pointing to maverick liberal constitutional scholars who see a broad right to bear arms in the Second Amendment.

But these pragmatic judgments underestimate how radical this decision is in light of the operating precedents of the last 69 years. The United States and its gun owners have done perfectly well since 1939, when an earlier Supreme Court interpreted the Second Amendment as implying a collective right to bear arms, but not an individual right.

Here is what the Second Amendment says: "A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed."

Thursday's narrow majority spent the first 54 pages of its decision, written by Scalia, trying to show that even though the framers inserted 13 important words in front of the assertion of a right to bear arms, those words were essentially meaningless. Does that reflect an honest attempt to determine the "original" intention of the Constitution's framers?

In fact, it was the court's four more liberal justices who favored judicial modesty, deference to democratic decisions, empowerment of local officials and care in examining the Constitution's actual text and the history behind it.

It was telling that while Scalia argued the Constitution does not permit "the absolute prohibition of handguns held and used for self-defense in the home" -- note that the Second Amendment says nothing about "self-defense in the home" -- it was Justice John Paul Stevens in dissent who called for judicial restraint. He asked his conservative colleagues where they were able to find an expansive and absolute right for gun possession.

The court majority, Stevens said, "would have us believe that over 200 years ago, the framers made a choice to limit the tools available to elected officials wishing to regulate civilian uses of weapons." But such evidence, Stevens insisted, "is nowhere to be found" in the decision. Justice Stephen Breyer also defended the rights of democratically elected local officials in a separate dissent, saying the D.C. ban was "a permissible legislative response to a serious, indeed life-threatening, problem."

In his intemperate dissent in the court's recent Guantanamo decision, Scalia said the defense of constitutional rights embodied in that ruling meant it "will almost certainly cause more Americans to be killed." That consideration apparently does not apply to a law whose precise purpose was to reduce the number of murders in the District of Columbia.

Advocates of reasonable gun regulations found some silver linings in this decision, and it's true that a court ruling the other way could have strengthened the hand of political opponents of gun control by energizing their movement.

While criticizing the court majority, Paul Helmke, president of the Brady Campaign to Prevent Gun Violence, argued that the majority decision at least "permits restrictions on place, on types of weapons, on conditions of sale and on carrying concealed weapons."

The decision, he said in an interview, will make gun control less of a "wedge issue" by refuting the claim of gun control opponents that any restrictions on weapons lead down "a slippery slope to gun confiscation."

I hope Helmke is right. But I also hope this decision opens people's eyes to the fact that judicial activism is now a habit of the right, not the left, and that "originalism" is too often a sophisticated cover for ideological decision-making by conservative judges.

From his 3d paragraph:

"Conservative justices claim that they defer to local authority. Not in this case. They insist that political questions should be decided by elected officials. Not in this case. They argue that they pay careful attention to the precise words of the Constitution. Not in this case."

All those things are true, and they're all correct. No one, including originalists and those who believe in judicial restraint, claims judges must always defer to local authority. Dionne is a fool to claim the issue in Heller was a political question, simply because a political body was involved at some level. At base, this was an indisputably fundamental constitutional question. And how can Dionne claim that Scalia did not pay careful attention to the precise words of the Constitution? That's the heart of the opinion!! What a liberal hack, and not a very good one.

Nice op-ed by Randy Barnett in the WSJ re Heller:

News Flash: The Constitution Means What It Says
By RANDY E. BARNETT
June 27, 2008; Page A13

Justice Antonin Scalia's majority opinion in yesterday's Supreme Court decision in District of Columbia v. Heller is historic in its implications and exemplary in its reasoning.

A federal ban on an entire class of guns in ordinary use for self-defense – such as the handgun ban adopted by the District of Columbia – is now off the table. Every gun controller's fondest desire has become a constitutional pipe dream.

Two important practical issues remain. First, will this ruling also apply to states and municipalities? That will depend on whether the Supreme Court decides to "incorporate" the right to keep and bear arms into the 14th Amendment. But in the middle of his opinion Justice Scalia acknowledges that the 39th Congress that enacted the 14th Amendment did so, in part, to protect the individual right to arms of freedmen and Southern Republicans so they might defend themselves from violence.

My prediction: This ruling will eventually be extended to the states.

Second, how will the court deal with firearms regulations that fall short of a ban? The majority opinion strongly suggests that such regulations must now be subjected to meaningful judicial scrutiny. The exact nature of this scrutiny is not clear, but Justice Scalia explicitly rejects the extremely deferential "rationality" review advocated by Justice Stephen Breyer.

Most likely, gun laws will receive the same sort of judicial scrutiny that is now used to evaluate "time, place and manner" regulations of speech and assembly. Such regulations of First Amendment freedoms are today upheld if they are narrowly tailored to achieve a truly important government purpose, but not if they are really a pretext for undermining protected liberties.

My prediction? Because gun-rights groups like the NRA have so successfully prevented enactment of unreasonable gun laws, most existing gun regulations falling short of a ban will eventually be upheld. But more extreme or merely symbolic laws that are sometimes proposed – whose aim is to impose an "undue burden" by raising the cost of gun production, ownership and sale – would likely be found unconstitutional. All gun regulations – for example, safe storage laws and licensing – will have to be shown to be consistent with an effective right of self-defense by law-abiding citizens.

Justice Scalia's opinion is exemplary for the way it was reasoned. It will be studied by law professors and students for years to come. It is the clearest, most careful interpretation of the meaning of the Constitution ever to be adopted by a majority of the Supreme Court. Justice Scalia begins with the text, and carefully parses the grammatical relationship of the "operative clause" identifying "the right to keep and bear arms" to the "prefatory clause" about the importance of a "well-regulated militia." Only then does he consider the extensive evidence of original meaning that has been uncovered by scholars over the past 20 years – evidence that was presented to the Court in numerous "friends of the court" briefs.

Justice Scalia's opinion is the finest example of what is now called "original public meaning" jurisprudence ever adopted by the Supreme Court. This approach stands in sharp contrast to Justice John Paul Stevens's dissenting opinion that largely focused on "original intent" – the method that many historians employ to explain away the text of the Second Amendment by placing its words in what they call a "larger context." Although original-intent jurisprudence was discredited years ago among constitutional law professors, that has not stopped nonoriginalists from using "original intent" – or the original principles "underlying" the text – to negate its original public meaning.

Of course, the originalism of both Justices Scalia's and Stevens's opinions are in stark contrast with Justice Breyer's dissenting opinion, in which he advocates balancing an enumerated constitutional right against what some consider a pressing need to prohibit its exercise. Guess which wins out in the balancing? As Justice Scalia notes, this is not how we normally protect individual rights, and was certainly not how Justice Breyer protected the individual right of habeas corpus in the military tribunals case decided just two weeks ago.

So what larger lessons does Heller teach? First, the differing methods of interpretation employed by the majority and the dissent demonstrate why appointments to the Supreme Court are so important. In the future, we should be vetting Supreme Court nominees to see if they understand how Justice Scalia reasoned in Heller and if they are committed to doing the same.

We should also seek to get a majority of the Supreme Court to reconsider its previous decisions or "precedents" that are inconsistent with the original public meaning of the text. This shows why elections matter – especially presidential elections – and why we should vet our politicians to see if they appreciate how the Constitution ought to be interpreted.

Good legal scholarship was absolutely crucial to this outcome. No justice is capable of producing the historical research and analysis upon which Justice Scalia relied. Brilliant as it was in its execution, his opinion rested on the work of many scholars of the Second Amendment, as I am sure he would be the first to acknowledge. (Disclosure: I joined a brief by Academics for the Second Amendment supporting the individual rights interpretation; one of my articles was cited by Justice Scalia and another by Justice Breyer in his dissent.)

Due to the political orthodoxy among most constitutional law professors, some of the most important and earliest of this scholarship was produced by nonacademics like Don Kates, Stephen Halbrook, David Kopel, Clayton Cramer and others. Believe it or not, Heller was a case of nearly first impression, uninhibited by any prior decisions misinterpreting the Second Amendment.

Last but not least, tribute must be paid to the plaintiffs – Shelly Parker, Dick Anthony Heller, Tom Palmer, Gillian St. Lawrence, Tracey Ambeau, and George Lyon – who went where the National Rifle Association feared to tread, and to their lawyers Robert Levy, Clark Neily, and lead counsel Alan Gura. I was privileged to witness Mr. Gura argue the case – his first Supreme Court argument ever – and he was outstanding. Heller provides yet another reminder of the crucial role that private lawyers play in the preservation of our liberties.

Ron Cass on Heller:

http://www.realclearpolitics.com/articles/2008/06/dc_v_heller_ending_the...

Only took him 22 years... :)

Agreed w/Quin & Whacker re: Bush. IMO, the worst part of the O'Connor-AMK Era has been the endless rounds of "remanding". I was horrified at Roberts' testimony that he believed in "narrow" SCOTUS decisions.

For all the whining you hear from 'conservatives' about "making trial lawyers rich" this is the root of the problem, along with wildly complex & unclear legislation designed solely so legislators can appear to be on both sides of an issue.

McCain should be able to murder Obama w/his flipflopping on guns. The lib editorials are laughable. The hypocrisy between their constitutional feelings on guns as opposed to abortion & gay marriage is so apparent it's almost not worth pointing out, although I hope prominent conservative commentators do so endlessly.

STEVENS, J., filed a dissenting opinion, in which SCALIA, J., joined.

Anyone want to bet that Obama's judicial nominees would be able openly testify about how terrible Heller is and how it should be overruled?

STEVENS, J., filed a dissenting opinion, in which SCALIA, J., joined.

Sheesh, Chemerinsky's piece is total drivel, and this is coming from one of the "stars" of the legal academy. Chemerinsky can get away with it, but if a conservative dean came out from the opposite perspective, he'd be dismissed as a political hack. So, to be consistent, Chemerinsky thinks Roe and Lawrence were clear examples of judicial activism, right? They overturned legislation, upended settled law, and created expansive new rights - none of which the Heller decision did, by the way.

Judges like remanding because it leaves them in control and gives them more power. As long as the standard is one defined by O'Connor or Kennedy or Breyer or whoever, then they remain the key figure. If they set out clear standards their power would diminish and most judges don't want that.

Also, for someone like Roberts who made is living as an apellate lawyer, the more remands and the less clear the law is, the more money for him and the more cases for him to argue so I think that explains it.

If we had clear rules and standards, people wouldn't need high priced lawyers like Roberts to argue their cases. They could find any guy off the street to say the Court said X, this law is Y, case closed.

As for Scalia's landmark, he's had a few others. Crawford, Harmelin, Maryland v Craig. Landmark cases are usually written by the Chief, the leader of the opposition(i.e Stevens) or a key swing Justice. As Scalia hasn't been any of those it's not surprising he doesn't have a lot. Souter has no landmark opinions, neither does Thomas. Even Ginsburg and Breyer don't(unless you count her VMI opinion, even so that's one in 15 years)

Hopefully Scalia bookends his career writing the opinion that reverses Casey and Roe and then announcing his retirement from the bench the same day and riding off into the sunset.

Can some one point out the failings in these liberal editorials? Please don't point out their inconsistencies and how they have a totally different approach to abortion or other issues. That I understand. But I don't understand how the inconsistencies that I have charged liberals with having, conservatives are not having now.

Example: Deference to the state legislature. I would always want to defer to the democratically elected officals if at all possible in making these types of decisions. So, while the constitution guarantees to right to bear arms, why can the state legislatures (or in this case the DC city council) place limits upon it such as assalt rifles, hand guns, etc. It seems that that decision is best left to the democratically elected officials, instead of some judge.

Dionne states: Conservative justices claim that they defer to local authority. Not in this case. They insist that political questions should be decided by elected officials. Not in this case. They argue that they pay careful attention to the precise words of the Constitution. Not in this case.

Explain to me why and how the conservative judges did not do in this case exactly what I hate liberal judges doing.

Because the Founding Fathers and Framers of the Constitution clearly intended the right of citizens to bear arms for self-defense to be above any state action, similar to how states can not pass a law against someone saying "I hate America", or pass a law requiring sheltering soldiers in your house if their jeep breaks down outside on an especially dark & stormy night?

* "I ask, sir, what is the militia? It is the whole people, except for a few public officials."
— George Mason, in Debates in Virginia Convention on Ratification of the Constitution, Elliot, Vol. 3, June 16, 1788

* "Whereas civil-rulers, not having their duty to the people duly before them, may attempt to tyrannize, and as military forces, which must be occasionally raised to defend our country, might pervert their power to the injury of their fellow citizens, the people are confirmed by the article in their right to keep and bear their private arms."
-- Tench Coxe, in Remarks on the First Part of the Amendments to the Federal Constitution

* "The best we can hope for concerning the people at large is that they be properly armed."
-- Alexander Hamilton, The Federalist Papers at 184-188

* If the representatives of the people betray their constituents, there is then no recourse left but in the exertion of that original right of self-defense which is paramount to all positive forms of government, and which against the usurpations of the national rulers may be exerted with infinitely better prospect of success than against those of the rulers of an individual State. In a single State, if the persons entrusted with supreme power become usurpers, the different parcels, subdivisions, or districts of which it consists, having no distinct government in each, can take no regular measures for defense. The citizens must rush tumultuously to arms, without concert, without system, without resource; except in their courage and despair.
-- Alexander Hamilton, Federalist No. 28

* "That the said Constitution shall never be construed to authorize Congress to infringe the just liberty of the press or the rights of conscience; or to prevent the people of the United States who are peaceable citizens from keeping their own arms ... "
-- Samuel Adams, Debates and Proceedings in the Convention of the Commonwealth of Massachusetts, at 86-87 (Pierce & Hale, eds., Boston, 1850)

* "[The Constitution preserves] the advantage of being armed which Americans possess over the people of almost every other nation...(where) the governments are afraid to trust the people with arms."
--James Madison, The Federalist Papers, No. 46

* "To suppose arms in the hands of citizens, to be used at individual discretion, except in private self-defense, or by partial orders of towns, countries or districts of a state, is to demolish every constitution, and lay the laws prostrate, so that liberty can be enjoyed by no man; it is a dissolution of the government. The fundamental law of the militia is, that it be created, directed and commanded by the laws, and ever for the support of the laws."
--John Adams, A Defense of the Constitutions of the United States 475 (1787-1788)

* "Before a standing army can rule, the people must be disarmed; as they are in almost every kingdom in Europe. The supreme power in America cannot enforce unjust laws by the sword; because the whole body of the people are armed, and constitute a force superior to any band of regular troops that can be, on any pretense, raised in the United States. A military force, at the command of Congress, can execute no laws, but such as the people perceive to be just and constitutional; for they will possess the power, and jealousy will instantly inspire the inclination, to resist the execution of a law which appears to them unjust and oppressive."
--Noah Webster, An Examination of the Leading Principles of the Federal Constitution (Philadelphia 1787).

* "Who are the militia? Are they not ourselves? Is it feared, then, that we shall turn our arms each man against his own bosom. Congress have no power to disarm the militia. Their swords, and every other terrible implement of the soldier, are the birthright of an American...[T]he unlimited power of the sword is not in the hands of either the federal or state governments, but, where I trust in God it will ever remain, in the hands of the people."
--Tenche Coxe, The Pennsylvania Gazette, Feb. 20, 1788.

* "Whereas, to preserve liberty, it is essential that the whole body of the people always possess arms, and be taught alike, especially when young, how to use them; nor does it follow from this, that all promiscuously must go into actual service on every occasion. The mind that aims at a select militia, must be influenced by a truly anti-republican principle; and when we see many men disposed to practice upon it, whenever they can prevail, no wonder true republicans are for carefully guarding against it."
--Richard Henry Lee, The Pennsylvania Gazette, Feb. 20, 1788.

* "What country can preserve its liberties if its rulers are not warned from time to time that their people preserve the spirit of resistance? Let them take arms."
-- Thomas Jefferson to William Stephens Smith, 1787. ME 6:373, Papers 12:356

* "No Free man shall ever be debarred the use of arms."
-- Thomas Jefferson, Proposal Virginia Constitution, 1 T. Jefferson Papers, 334,[C.J. Boyd, Ed., 1950]

* "The right of the people to keep and bear ... arms shall not be infringed. A well regulated militia, composed of the body of the people, trained to arms, is the best and most natural defense of a free country ..."
-- James Madison, I Annals of Congress 434, June 8, 1789

* "What, Sir, is the use of a militia? It is to prevent the establishment of a standing army, the bane of liberty .... Whenever Governments mean to invade the rights and liberties of the people, they always attempt to destroy the militia, in order to raise an army upon their ruins."
-- Rep. Elbridge Gerry of Massachusetts, spoken during floor debate over the Second Amendment, I Annals of Congress at 750, August 17, 1789

* " ... to disarm the people - that was the best and most effectual way to enslave them."
-- George Mason, 3 Elliot, Debates at 380

* " ... but if circumstances should at any time oblige the government to form an army of any magnitude, that army can never be formidable to the liberties of the people, while there is a large body of citizens, little if at all inferior to them in discipline and use of arms, who stand ready to defend their rights ..."
-- Alexander Hamilton speaking of standing armies in Federalist 29

* "Are we at last brought to such humiliating and debasing degradation, that we cannot be trusted with arms for our defense? Where is the difference between having our arms in possession and under our direction, and having them under the management of Congress? If our defense be the real object of them under the management of Congress? If our defense be the real object of having those arms, in whose hands can they be trusted with more propriety, or equal safety to us, as in our own hands?"
-- Patrick Henry, 3 J. Elliot, Debates in the Several State Conventions 45, 2d ed. Philadelphia, 1836

* "The great object is, that every man be armed ... Every one who is able may have a gun."
-- Patrick Henry, Elliot, p.3:386

* "O sir, we should have fine times, indeed, if, to punish tyrants, it were only sufficient to assemble the people! Your arms, wherewith you could defend yourselves, are gone ..."
-- Patrick Henry, Elliot p. 3:50-53, in Virginia Ratifying Convention demanding a guarantee of the right to bear arms

* "The people are not to be disarmed of their weapons. They are left in full possession of them."
-- Zacharia Johnson, delegate to Virginia Ratifying Convention, Elliot, 3:645-6

* "Certainly one of the chief guarantees of freedom under any government, no matter how popular and respected, is the right of citizens to keep and bear arms ... The right of citizens to bear arms is just one guarantee against arbitrary government, one more safeguard, against the tyranny which now appears remote in America but which historically has proven to be always possible."
-- Hubert H. Humphrey, Senator, Vice President, 22 October 1959

* "The militia is the natural defense of a free country against sudden foreign invasions, domestic insurrections, and domestic usurpation of power by rulers. The right of the citizens to keep and bear arms has justly been considered, as the palladium of the liberties of the republic; since it offers a strong moral check against the usurpation and arbitrary power of rulers; and will generally ... enable the people to resist and triumph over them."
-- Joseph Story, Supreme Court Justice, Commentaries on the Constitution of the United States, p. 3:746-7, 1833

* " ... most attractive to Americans, the possession of arms is the distinction between a freeman and a slave, it being the ultimate means by which freedom was to be preserved."
-- James Burgh, 18th century English Libertarian writer, Shalhope, The Ideological Origins of the Second Amendment, p.604

* "The right [to bear arms] is general. It may be supposed from the phraseology of this provision that the right to keep and bear arms was only guaranteed to the militia; but this would be an interpretation not warranted by the intent. The militia, as has been explained elsewhere, consists of those persons who, under the laws, are liable to the performance of military duty, and are officered and enrolled for service when called upon.... [I]f the right were limited to those enrolled, the purpose of the guarantee might be defeated altogether by the action or the neglect to act of the government it was meant to hold in check. The meaning of the provision undoubtedly is, that the people, from whom the militia must be taken, shall have the right to keep and bear arms, and they need no permission or regulation of law for the purpose. But this enables the government to have a well regulated militia; for to bear arms implies something more than mere keeping; it implies the learning to handle and use them in a way that makes those who keep them ready for their efficient use; in other words, it implies the right to meet for voluntary discipline in arms, observing in so doing the laws of public order."
-- Thomas M. Cooley, General Principles of Constitutional Law, Third Edition [1898]

STEVENS, J., filed a dissenting opinion, in which SCALIA, J., joined.

This may or may not answer your question:

The New Deal, Warren and Burger Courts re-interpreted the U.S. Constitution in new and unusual ways, theretofore unheard of ways. When the Rehquist and Roberts Courts have undone previous precedents from the New Deal, Warren and Burger Courts, the justices in the majority should not be viewed as being judicially active (i.e. replacing the the text of the Constitution with their personal policy choices) but as reviving the original textual meaning of the Constitution as it was originally understood. If that return to original meaning appears to change the balance between the legislative and judicial branches, so be it. The original Constitution was not meant to be a totally "democratic" document. That is why Senators were originally elected by state legislatures and not state voters, and judges were given lifetime appointments. If someone feels the balance of power between branches provided by the Constitution is presently improper, then the way to remedy the problem is to change the Constitution by amendment, not to have judges demand it be made more "democratic" and/or "legislature-centric" with rulings unhinged from the Constitution's original text and meaning.

Thanks for your reply. I believe you are exactly correct. Whether it's financial gain or continued power & prestige, Roberts probably wants clear standards & decisions and a legal system that works as quickly and efficiently as possible (albeit with no lynch mobs, or panicky slapdash jobs like BvG) little more than AMK does.

As for the "guy on the street", recall the great Justice Jackson (generally considered the best writer to serve on SCOTUS) was the last J not to have attended law school, and his most famous clerk was a model of efficiency and (relatively) clear writing, and also hardly a lifelong government or SCOTUS bar lawyer at the time of his own appointment.

Neither were White, Black or Douglas, IIRC, and their opinions I've seen are models of clarity (whatever one thinks of their findings) compared to the swill churned out in recent times.

BTW if anyone wants a good laugh this weekend, read Douglas' concurrence in Hirabayashi after substituting "World Trade Center" for "Pearl Harbor", and "Iraq/Iraqi/Al Qaeda" for "Japan/Japanese". And this is the guy the kossacks are always complaining that Breyer isn't as "progressive" as?

Mostly agree about Scalia and "landmark" opinions, but Heller is the one laymen such as myself will recall, and will be the one in the first paragraph of his obit, though hopefully not the only one.

STEVENS, J., filed a dissenting opinion, in which SCALIA, J., joined.

The liberal editorials are wrong because (1) they mischaracterize conservative jurisprudence in general and (2) they mischaracterize the Heller opinion specifically.

Conservative jurisprudence is not measured by how seldom a judge strikes down legislation. Judicial activism doesn't occur just because a law is overturned by a court; it occurs when the law is overturned without some basis in a higher, controlling law: e.g., the Constitution. The Constitution, by its strict ratification and amendment provisions, is more representative of the will of the people than any federal, state, or local law. A judge who allows the local law to stand at the expense of the Constitution is not showing more "restraint" or deference to the democratic process.

And the liberals are just plain wrong when they suggest Heller isn't based on the text of the Constitution. I cannot imagine an opinion that goes into more painstaking analysis of a Constitutional provision than Heller does. The liberals criticize Scalia for "ignoring" text simply because he reaches a different conclusion than they would prefer.

Awesomely stated. And as Professor Barnett said yesterday, Scalia's Heller opinion will be studied in law schools as the quintessential originalist opinion, and will help to bolster originalism/textualism.

Scalia's opinion may not be 100% persuasive but it is much more persuasive than most.

If you made a continuum of cases and listed them from most supported by historical evidence and original meaning to least supported, Heller would be among the most supported.

Consider this list: Heller, Boumediene, Kennedy, Grutter, Lawrence, Rasul, Casey, McConnell, Roper, Atkins, Stenberg.

I would say Heller is at the top and it's the liberals in the other cases who have the much weaker arguments based on original meaning and history.

So, from that perspective, Heller is a very strong opinion.

Here are two specific examples of false statements in Dean Chemerinsky's op-ed:

"The irony is that the same conservative justices who were so eager Thursday to find an individual liberty under the 2nd Amendment are loath to do so when a right of a criminal defendant is at stake . . . ."

Dean Chemerinsky should (and most certainly does) know better. First, in the Crawford line of cases both Justices Scalia and Thomas have regularly voted to overturn convictions on the ground that the defendant was denied his right to confront his accuser, which right is expressly enumerated in the Sixth Amendment.

Second, in the Blakely line of cases, they both again voted on Sixth Amendment grounds to overturn sentences imposed based on facts not found by a jury.

To say that "the same conservative justices . . . are loath to [apply Constitutional rights] when a matter of a criminal defendant is at stake" is an outright fabrication, and a Dean of a law school who claims to be a constitutional scholar should know better. We can fairly assume that he does know better and that his op-ed is an intentional fabrication intended to mislead the public.