Legislating Policy From The Court

Right wing pundits, bloggers, and talk show hosts, aghast at Tuesday's (6/24/08) ruling invalidating the death penalty as punishment for child rape, were exultant on Wednesday news came of the United States Supreme Court's ruling in District of Columbia v. Heller striking down the District's gun ban. After raging against what they perceived as judicial activism in Kennedy v. Louisiana, conservatives little noticed the Court majority's splendid imitation of a legislative body in the gun decision.

Fortunately, we have Justice John Paul Stevens, joined in dissent by Justices Breyer, Ginsburg, and Souter, getting it right. He explained the ruling

will surely give rise to a far more active judicial role in making vitally important national policy decisions than was envisioned at any time in the 18th, 19th, or 20th centuries. The Court properly disclaims any interest in evaluating the wisdom of the specific policy choice challenged in this case, but it fails topay heed to a far more important policy choice—the choice made by the Framers themselves. The Court 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, and to authorize this Court to use the common-law process of case-by-case judicial lawmaking to define the contours of acceptable gun control policy.


Frustrated lawmakers, Justice Scalia and his band of judicial activists on the Court gleefully make social policy while ignoring the U.S. Constitution.