Judicial Restraint and the Second Amendment

Paul Helmke, president of the Brady Campaign to Prevent Gun Violence, has a column on HuffingtonPost and the Atlanta Journal-Constitution arguing that the Supreme Court should uphold the D.C. gun ban and reject the idea that when the Constitution says “the right of the people to keep and bear arms shall not be infringed,” it means that people have the right to keep and bear arms. His basic argument, summed up in the title, is that “The will of the people must not be overruled.” He pounds away at that theme:

Last March, the District of Columbia saw judicial activism replace the will of the people….

More than 30 years ago, the elected representatives on the D.C. City Council decided to enact a system of strict gun laws to help protect public safety. The people in D.C. strongly support these laws….

[The Court of Appeals] imposed their own policy preferences on the people of D.C.

It was a textbook example of judicial activism at its worst….

If the justices reject judicial activism and refrain from substituting their own policy preferences for the people’s elected representatives, then the District of Columbia will prevail. And so will the American people.

As a lawyer and a lifelong Republican, I have deep respect for judicial precedent, for American history and for a close reading of all the words in the Constitution. As one who served as mayor of Fort Wayne, Ind., for 12 years, I also believe in the importance of local communities being able to pass the laws they believe will help keep them safe.

It’s a powerful argument, and it may well resonate with the conservative justices who think that judges often overreach and “substitute their own policy preferences” for those of the people’s elected legislators. But I wonder if Helmke really believes that judges should respect the will of legislators and not strike down laws. Does he believe that the Warren Court should not have struck down school segregation, which was clearly the will of the people’s elected representatives–and no doubt the people–in Kansas, as well as in South Carolina and Virginia, whose similar cases were combined with Brown? Does he believe that the Supreme Court was wrong to strike down Virginia’s law against interracial marriage in 1967? The Texas law outlawing sodomy in 2003? The Communications Decency Act in 1997? Does he indeed think the John Marshall Court was wrong to invalidate a section of the Judiciary Act of 1789 in Marbury v. Madison? That’s the implication of his ringing words in defense of legislative absolutism.

I don’t think he believes this for a minute. I am sure he agrees with Cato’s constitutional scholars that the Supreme Court has an obligation to strike down laws that exceed the powers granted to Congress or that violate the rights protected in the Bill of Rights. He just doesn’t want the Court to apply that rule to the right to keep and bear arms. But in fact there’s an increasingly broad consensus among scholars that the Second Amendment protects an individual right to bear arms. And thus the Court should do its duty and find that an absolute ban on gun ownership by law-abiding citizens clearly exceeds any power of reasonable regulation that might be permitted under a properly understood Second Amendment.