And then just usual political penduluming would be at play.
Anyway, enjoy this 2008 flashback:
Mike Sacks
@mikesacks.bsky.social
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Senior Advisor @courtacctability.bsky.social. Democracy advocate. Former political-legal journalist. Retired competitive air guitarist. Former Congressional Candidate. Second-Best dad ever.
![McDonald v. City of Chicago, II., 561 US 742 - Supre...
As for "the democratic process," ante, at 3057-3058, a method that looks exclusively to history can easily do more harm than good. Just consider this case. The net result of Justice SCALIA's supposedly objective analysis is to vest federal judges— ultimately a majority of the judges on this Court-with unprecedented lawmaking powers in an area in which they have no special qualifications, and in which the give-and-take of the political process has functioned effectively for decades. Why this "intrudes much less upon the democratic process, ante, at 3058, than an approach that would defer to the democratic process on the regulation of firearms is, to say the least, not self-evident. I cannot even tell what, under Justice SCALIA's view, constitutes an "intrusion."
It is worth pondering, furthermore, the vision of democracy that underlies Justice SCALIA's critique.
Very few of us would welcome a system in which majorities or powerful interest groups always get their way. Under our constitutional scheme, I would have thought that a judicial approach to liberty claims such as the one I have outlined-an approach that investigates both the intrinsic nature of the claimed interest and the practical significance of its judicial enforcement, that is transparent in its reasoning and sincere in its effort to incorporate constraints, that is guided by history but not beholden to it, and that is willing to protect some rights even if they have not already received uniform protection from the elected branches-has the capacity to improve, rather than " [im]periliỊante, at 3058, our democracy. It all depends on judges' exercising careful, reasoned judgment. As it always has, and as it always will.](https://cdn.bsky.app/img/feed_thumbnail/plain/did:plc:beirch5u3d3ybvuct27mtyxd/bafkreid73jrzzyo3qlsvfscdghlbdld2merc5iwq3dpztqekvcbtmqfluq)
