Breyer’s judicial philosophy
Justice Stephen Breyer has a new book coming out. No, you don’t need to read it. I don’t need to read it either. I know exactly what it will say: The constitution means exactly what Breyer wants it to mean – no more, no less.
Yesterday’s Washington Post had a short article on Breyer’s new book that included this gem on the Court’s recent 2nd Amendment decision in Heller.
In the book, he points to District of Columbia v. Heller, the case that established for the first time that the Second Amendment protects an individual right to gun ownership. Scalia, writing for the five-member majority, and Justice John Paul Stevens, writing for the four dissenters, including Breyer, both looked extensively at the amendment's historical roots. They came up with completely different interpretations.
But Breyer went further, and said that even if such a right existed, the District had authority to forbid handgun ownership because it had a compelling interest in saving lives. Such a proportionality approach is criticized as "judge-empowering," Breyer acknowledges. "But what is the alternative? Today's court should not base an answer to a question about an issue such as gun control on the facts and circumstances of eighteenth-century society."
Let’s forget about the Constitution being a written document that we should be able to count on – as opposed to it being rewritten wholesale on the whim of five justices as Breyer proposes.
Look instead to Breyer’s reasoning why D.C. should be able to ban handguns -- “because it had a compelling interest in saving lives.”
Is there any evidence to support the contention that the handgun ban was a net plus when it came to saving lives? In fact, there’s plenty of evidence that it did just the opposite. Some of the American cities with the highest murder rates also have the most restrictive gun control laws.
Breyer reveals himself to be nothing more than a super-legislator. We could use five fewer of him.
One comment on “Breyer’s judicial philosophy”
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I would also remind Breyer that there is something called the amendment process designed to address any circumstances in which the Constitution is deficient or not "current". I guess that process is too messy for him.