You seem to be saying judicial activism is a subjective matter of on'e opinion.
Of course it is; there's no standard or formula other than one's interpretive doctrine and understanding of the Constitution. Whether one's opinion is given any credence is dependent upon one's ability to explain their reasoning in a compelling, convincing manner. Often though, a person's defense can be dismissed out of the box when it is clear they are trying to make the Constitution fit the law instead of explaining how the law conforms to the Constitution. As
Marbury said, deciding whether a law is "repugnant to the Constitution" usually isn't as difficult as people think:
"The question, whether an act, repugnant to the constitution, can become the law of the land, is a question deeply interesting to the United States; but, happily, not of an intricacy proportioned to its interest. It seems only necessary to recognise certain principles, supposed to have been long and well established, to decide it.
That the people have an original right to establish, for their future government, such principles as, in their opinion, shall most conduce to their own happiness, is the basis on which the whole American fabric has been erected. The exercise of this original right is a very great exertion; nor can it nor ought it to be frequently repeated. The principles, therefore, so established are deemed fundamental. And as the authority, from which they proceed, is supreme, and can seldom act, they are designed to be permanent.
This original and supreme will organizes the government, and assigns to different departments their respective powers. It may either stop here; or establish certain limits not to be transcended by those departments.
The government of the United States is of the latter description. The powers of the legislature are defined and limited; and that those limits may not be mistaken or forgotten, the constitution is written. To what purpose are powers limited, and to what purpose is that limitation committed to writing; if these limits may, at any time, be passed by those intended to be restrained? . . . "
MARBURY v. MADISON, 5 U.S. 137 (1803)
And with
that in mind, I'm going to jump ahead in your post . . .
I didn't say much about your analysis because I am unsure how you apply it to 2nd Amendment issues. I don't know whether you assert that any government can regulate weapons including prohibition of felons. If so, do think any current gun regulations are unconstitutional?
Well, I believe that SCOTUS has never wavered from the "individual right" interpretation and that the various lower federal court "collective right" interpretations which began in 1942, effectively diverted and delayed the enforcement of the RKBA / 2nd Amendment. The nation lost nearly 70 years with lower federal and state courts acting off the constitutional rails, denying claims of citizens and building a line of legal decisions without any connection to the Constitution that sustained hundreds of illegitimate, unconstitutional federal, state and local gun control laws.
I believe that no power was ever granted to the federal government that would allow it to have any interest whatsoever in the personal arms of the private citizen. The laws written under the commerce clause (and then for 60+ years had their constitutionality defended by arguing the federal power to regulate the militia
) are all extra-constitutional usurpations.
Because so many laws have been sustained on invalid reasoning, the entirety of gun control is questionable.
Heller was actually a warning. It was warning federal, state and local authorities to get whatever gun control that is defendable, onto solid constitutional footing. Even such unquestionable laws as felon dispossession has been challenged under
Heller.
"As the Government concedes, Heller’s statement regarding the presumptive validity of felon gun dispossession statutes does not foreclose Barton’s as-applied challenge. By describing the felon disarmament ban as “presumptively” lawful, the Supreme Court implied that the presumption may be rebutted."
U.S. v. Barton, 633 F.3d 168 (3d Cir. 2011)
Of course felon disablement of gun rights were/are sustained because they are grounded in legitimate exercises of government authority which have been upheld many times using a wide range of legal reasoning under common and constitutional law.
Now, on the other hand, gun control laws that were upheld by citing
Tot or
Cases (and their many, many illegitimate progeny) and reasoned upon any theory that the 2nd does not secure an individual right,
WILL BE STRUCK DOWN.
.
