For most of my life I’ve listened to the rant of conservative politicians and pundits against “activist judges” and “legislating from the bench.” Today, the Roberts court found in McDonald v. Chicago that the 14th Amendment incorporates the 2nd Amendment–a position clearly at odds with standard Constitutional interpretation from the passage of the 14th Amendment in 1868 until Gideon v. Wainwright in 1963. Ironically, Gideon established the right of publicly-funded counsel in criminal cases, a position loathed by judicial conservatives and frequently attacked since then. In the McDonald ruling, Justice Alito lays out the entire history of incorporation under the due process clause, as if to highlight the court’s steady departure from traditional interpretation and original intent–AKA legislation from the bench.
Since the outcome of the case is pleasing to conservatives, would anyone like to start a pool on how many Fox News commentators are outraged by this rampant case of judicial activism? My money’s on zero.
James W. Vizzard 