I look forward to the briefing, and the video of argument. Let's hope it is in person.
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Originally Posted by Metal God
This is all way above my pay grade but IMHO if this goes in our favor the judges will need to be activist judges , the very thing most of us rail against . Will I take the win ? Heller yes but won't like how we got it . It will also be something the anti's can look at as a reason to pack the court , not that they need a reason other then getting there own way .
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The charge of judicial activism refers to a judiciary that rests its decisions on ideologies extraneous to the constitution and laws, not on the language of the law, precedent and good faith extensions of either. That doesn't mean that all judicidal activism comes from only one side. In Gonzalez v. Raich, lots of smart people who are usually on my side of commerce clause issues argued that drugs that are not in commerce and never cross state lines can still be regulated by Congress as interstate trade,
because otherwise federal drug legislation couldn't work. That's policy driving constitutional law.
It isn't judicial activism for the Court to find that the 2d Am. describes an individual right that DC can't violate with a de facto prohibition on possession. It isn't judicial activism to find that Chicago isn't free to violate the fundamental right described in the 2d Am. through application of incorporation, a well recognized doctrine.
It would not be judicial activism to find that NY can't legally violate this fundamental right where individuals seek to exercise it outside their homes. That would be an ordinary and predictable development of this area of law.
"Judicial activism" isn't just a result someone didn't like, but was levelled at courts innovating results as ideological matters rather the ordinary practice of jurisprudence. Some misuse the charge of activism to obscure the difference.
If this turns out to be a win, take it and know that it rests on decent principle, not mere power.