One of the persistent questions that comes to my mind is why conservatives don’t complain about judicial review when laws they don’t like are struck down. For example, Chicago’s gun control laws.
In that case, simple reference to the 2nd Amendment’s protection of gun rights is not a sufficient argument, because the 2nd Amendment, like the rest of the Bill of Rights, was written to apply to the federal government. So to apply it to the states required that it be incorporated through the 14th Amendment’s Due Process Clause, a process of which conservatives have never been too fond,* as it requires substantial judicial creativity in the interpretive process, as the 14th has absolutely no language that even substantially hints that it is meant to apply the Bill of Rights to the states. Justices sometimes base their decisions on what framers of an amendment could have done, on the assumption that they obviously knew how to do it. In reference to the 14th Amendment, we could argue that the authors clearly could have known how to write an amendment that said, “Amendments 1 through 9 are hereby applied to the states.”**
So why haven’t we heard conservatives complaining about judicial activism in reference to that case? It was a 5-4 decision, too, meaning a bare majority of the court struck down the considered judgment of the people’s representative without any clear constitutional basis for doing so. Where is the uproar about a judicial aristocracy? Where is the concern for threats to self-governance?
It’s not good enough for conservatives to say, “The Court interpreted all these other rights, why not this one, too?” That just suggests a lack of interpretive integrity. If you defend a broad reading of the 14th Amendment when it comes to protecting gun rights against the state, on what general principles do you object to broad readings that protect other rights?
Don’t get me wrong. I support the McDonald decision. But then, like Hugo Black, i believe in total incorporation (while admitting the dubious 14th Amendment basis for such a policy).*** For me, supporting the outcome, and the Court’s reasoning, in McDonald is non-problematic, and is completely consistent with my belief in a broad application of the principles of liberty expressed in the Constitution. I don’t think originalists and those worried about judicial aristocracy have such a straightforward explanation for their positions.
*I am not sure how well known and understood this process is. In a nutshell, the Supreme Court has interpreted the 14th Amendment as applying portions of the Bill of Rights to the states, but only done so on a clause-by-clause (not even amendment-by-amendment) basis. Only Justice Hugo Black ever called for total incorporation of the whole Bill of Rights. Even today not quite all of the Bill of of Rights has been incorporated, although nearly so. The Third Amendment, for example, has not (at least by the Supreme Court, although the 2nd Circuit has ruled so), the Fifth Amendment right to indictment by a grand jury has not, and the Seventh Amendment right to a jury trial in civil cases has not. Wikipedia’s article on incorporation claims that the Eight Amendment right against excessive bails or fines has not been incorporated, either, which doesn’t sound right to me. But Wikipedia tends toward accuracy on that kind of factual information, and I’m not going to do the legal research to double-check it at this time.
**Yes, the 10th is part of the Bill of Rights. But I don’t think it makes much sense to talk about incorporating it to apply to the states.
***Perhaps Justice Thomas’s “privileges and immunities” approach is better. It’s certainly refreshing to see a Justice try to resurrect that language so that it actually means something. But the Court read it out of the Constitution so quickly that we have almost a century and a half of silence on what it would actually mean, so I find it hard to evaluate the strength of Thomas’s argument. I would have to devote a considerable amount of study to the subject before being qualified to really comment on it.