Local communities empowered? Who knew?

The four dissenting justices in the McDonald case, liberals all, have apparently converted to federalism. As Jacob Sullum explains,

In their dissenting opinions, Justices John Paul Stevens and Stephen Breyer (joined by Ruth Bader Ginsburg and Sonia Sotomayor) worry that overturning gun control laws undermines democracy. If "the people" want to ban handguns, they say, "the people" should be allowed to implement that desire through their elected representatives.

What if the people want to ban books that offend them, establish an official church, or authorize police to conduct warrantless searches at will? Those options are also foreclosed by constitutional provisions that apply to the states by way of the 14th Amendment. The crucial difference between a pure democracy and a constitutional democracy like ours is that sometimes the majority does not decide.

Likewise, Stevens defends "state and local legislatures' right to experiment," while Breyer is loath to interfere with "the ability of States to reflect local preferences and conditions—both key virtues of federalism."

You don't have to imagine cases like that. There is Supreme Court case law already that just begs to be revisited. For example, prayer in public schools.

[There] were two landmark Supreme Court decisions, Engel v. Vitale [1962] and Abington School District v. Schempp [1963] (which included the well publicised case of Murray v. Curlett), establishing the current prohibition on state-sponsored prayer in schools. Following these two cases came the Court's decision in Lemon v. Kurtzman [1971]. This ruling established the so-called "Lemon test" which states that in order to be constitutional under the Establishment Clause of the First Amendment any practice sponsored within state run schools (or other public, state sponsored activities) must:

Have a secular purpose;
Must neither advance nor inhibit religion as its primary effect, and;
Must not result in an excessive entanglement between government and religion. ...

Reinstatement of state-sponsored prayer has been attempted in different forms in a number of areas of the U.S. Some jurisdictions have introduced a "moment of silence" or "moment of reflection" when a student may, if he or she wishes to, offer a silent prayer.

Since the 1990s, controversy in the courts has tended to revolve around prayer at school-sponsored extracurricular activities. Some courts have allowed student prayers from the podium at graduation exercises, but, in Santa Fe Independent School Dist. v. Doe [2000], the Supreme Court upheld a lower court ruling invalidating prayers conducted over the public address system prior to high school games at state school facilities before a school-gathered audience.

Now, an appropriate question for Justices Stevens, Breyer, Ginsburg and Sotomayor are whether they would be so concessionary to local community desires and standards regarding, say, a student offering a prayer over the PA system before a high school football game. And if not, why not?

If, like Dan Riehl, I had not concluded, "I’m done giving the benefit of the doubt to the GOP establishment," I would expect that the Senate judiciary committee Republicans would grill Elena Kagan on this very point. But they won't.

But the transparency of the four dissenters' motives is clear as crystal. They simply do not want Second Amendment rights expanded because they just don't think private citizens should own firearms except (perhaps) under very limited, controlled conditions. And for sure they were aghast at the prospect of incorporating the Second Amendment under the purview of the 14th. Unable to offer, you know, actual legal arguments for their dissent, unlike the majority, they simply adopted an intellectually lazy position: Chicago should be able to ban guns simply because that's what Chicago wants to do.

So this is federalism to the Left: when states or communities wish to restrict liberties in ways the Left agrees desires, hooray for federalism! But when the Left wants to restrict liberties no matter the desires of states or communities, "incorporation" is the way to do it.

But, of course, we already knew that.