"Welcome to the living Constitution, Justice Scalia"
Jack Balkin, who agrees with yesterday's decision in the Second Amendment case, adds this ironic commentary:
Despite its long and occasionally dreary originalist exegesis, the Heller majority is not really defending the values of 1791. It is enforcing the values of 2008. This is no accident. Indeed, the result in Heller would have been impossible without the success of the conservative movement and the work of the NRA and other social movement actors who, over a period of about 35 years, succeeded in changing Americans' minds about the meaning of the Second Amendment, and made what were previously off-the-wall arguments about the Constitution socially and politically respectable to political elites. This is living constitutionalism in action.
Like Lawrence v. Texas, Heller is another example of how the Supreme Court exercises judicial review in response to successful social and political mobilizations, regardless of what individual Justices understand themselves to be doing. The only difference is that in Heller, it is conservatives who have successfully changed public opinion, a change that has now become reflected in Supreme Court opinions.
Welcome to the living Constitution, Justice Scalia. We couldn't have done it without you.
Elsewhere, Andy Siegel adds: "To a degree that current political and judicial rhetoric masks, all of the current Justices share a conception of the judicial role that gives Courts the right and the obligation to independently assess the meaning of ambiguous constitutional rights guarantees and then follow their own best judgment, letting the chips fall where they may. The Justices have differed on their vision of the society that the Constitution's rights provisions are designed to protect, not on their vision of the judicial role."
In other words, we're all activists now.