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Published: Thursday, 11/13/2008

Snipers on the right

WHEN the U.S. Supreme Court in June found for the first time an individual right to bear arms, as opposed to a collective right, we noted that if a liberal justice writing for the majority performed a similar feat of legal gymnastics, "the word 'activist' would be ringing throughout the land."

Actually, something close to it is, although we didn't anticipate that the criticism would come from the political right.

But as Adam Liptak of the New York Times reported, two prominent federal appeals court judges have taken aim at the case, District of Columbia vs. Heller. More shocking yet, they compared it with one of the most despised rulings in conservative circles, Roe vs. Wade, which allowed legal abortion in the United States.

"In both Roe and Heller," Judge J. Harvie Wilkinson wrote in an article to be published in a law review next spring, "the court claimed to find in the Constitution the authority to overrule the wishes of the people's representatives. In both cases, the constitutional text did not clearly mandate the result, and the court had discretion to decide the case either way."

The Times also quoted Judge Richard Posner, who wrote in the New Republic in August that the Heller decision "is evidence that the Supreme Court, in deciding constitutional cases, exercises a freewheeling discretion strongly flavored with ideology."

Outside the legal community, Americans don't need to wade deeply into these arguments, but a down-to-earth relevance should be noted: President-elect Barack Obama will pick one and maybe two new Supreme Court justices.

This was one of the key issues in the presidential campaign, during which Sen. John McCain maintained the legal/political fiction that, in the words of his campaign Web site, he would "nominate judges who understand that their role is to faithfully apply the law as written, not impose their opinions through judicial fiat," by implication, not those liberal activist judges of hoary stereotype.

The only problem is that conservative judges are also apt to impose their opinions by judicial fiat - as this right-wing criticism of the firearms decision is a reminder - and Americans ought to consider carefully what they might get if more right-wing activist justices come onto the court.

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