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Manufactured Outrage

Leftist Erwin Chemerinsky, dean of the newly created University of California, Irvine School of Law is an interesting fellow. Not because he is described as a constitutional law expert, but because of his manufactured outrage when it comes to judicial activism:

The Supreme Court’s invalidation of the District of Columbia’s handgun ban powerfully shows that the conservative rhetoric about judicial restraint is a lie. In striking down the law, Justice Antonin Scalia’s majority opinion, joined by the court’s four other most conservative justices, is quite activist in pursuing the conservative political agenda of protecting gun owners.

If the terms “judicial activism” and “judicial restraint” have any meaning, it is that a court is activist when it is invalidating laws and overruling precedent, and restrained when deferring to popularly elected legislatures and following prior decisions.

Never before had the Supreme Court found that the Second Amendment bestows on individuals a right to have guns. In fact, in 1939 (and other occasions), the court rejected this view. In effectively overturning these prior decisions, the court both ignored precedent and invalidated a law adopted by a popularly elected government.

And the article goes on like this in a relatively uneducated line of thinking.

What’s humorous is that the generally accepted view of judicial activism is that such activism creates rights or constitutional violations out of thin air without regard to the Constitution. Regardless of your position on the issues, such creation of rights existed with issues such as abortion and as with gay marriage: courts magically created these rights out of thin air without any Constitutional citation. It’s hard to interpret the Second Amendment as it is written and say that such right is being created out.

It seems like a lot of Chemerinsky’s beef seems to be that the court in Heller overruled precedent. And I have always found the reliance on precedent to be a very lame-ass, weak-kneed concept. If Courts rely on precedent, particularly when precedent is wrong, that does not help propagate the Constitutional rights of anybody. This is something I wrote about last November in another article regarding guns:

Lasson also completely whiffs on the concept or precedence. Under Lasson’s worldview, the Supreme Court’s decision in 1939’s United States v. Miller is sacrosanct on the issue and cannot be challenged. Of course, there are a number of fallacies with the concept of precedence. Why should a decision be continued to upheld when it is wrong? Under Lasson’s warped logic that means that Brown vs. Board should never have been issued as it stood due to the precedent of Plessy v. Ferguson in 1896. And under the same logic, Tileston v. Ullman and Poe v. Ullman would have precluded the decision in 1965’s Griswold v. Connecticut…and that case paved the way for Roe v. Wade . I don’t hear Lasson arguing the concept of precedence in those cases because the decisions do not match with his leftist worldviews.

And Chemerinsky’s argument follows the same predictable mad leftist ranting.

It concerns me that Chemerinsky has been tasked to start a new law school as it’s dean, mainly because I worry that there will be more lawyers manufacturing synthetic outrage while misinterpreting the role of the court in society and threatening our basic Constitutional rights as Americans…

(Crossposted)






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