After Heller

Well, what now?

Following a victory that some thought impossible, the advocates of the right to bear arms are asking themselves where to go next. None are more qualified to answer that question than Robert A. Levy, co-counsel in District of Columbia v. Heller, the landmark case that has permanently changed the shape of gun rights jurisprudence. In his lead essay at Cato Unbound, Levy discusses several important questions that the Supreme Court did not decide: Does the Second Amendment apply to the states as well, under the doctrine of incorporation? Which regulations are and are not permissible? What’s next in the political realm?

He also has a particularly cogent discussion of judicial activism, a concept conservatives and liberals alike tend to misunderstand:

When the legislative or executive branch exceeds its legitimate enumerated powers, the courts have the authority, indeed the duty, to declare that exercise of power unconstitutional. Deference in the face of excesses by the political branches, coupled with an allegiance to precedent, means that conservatives are rarely willing to overrule prior cases, leaving entrenched the very foundations of the regulatory and redistributive states they rail against. In practice, judicial restraint has mutated into judicial passivism, with a predictable result: more government power and fewer constitutionally protected individual rights.

Neither “judicial activism” nor “judicial restraint” is an end in itself. Liberty is.