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Two Faces of Judicial Restraint (Or Are There More?) in McDonald v. Chicago

47 Pages Posted: 14 Aug 2010 Last revised: 23 Mar 2011

Nelson Lund

George Mason University School of Law

Date Written: August 12, 2010

Abstract

“Judicial restraint” and its counterpart “judicial activism” are widely regarded as meaningless terms, useful primarily as rhetorical weapons with which to praise or condemn judicial decisions about which the speaker has strong feelings. The terms certainly are frequently used in that manner, but there may also be analytically distinct forms of judicial restraint to which different judges adhere. Academic commentators have articulated and defended various theories of judicial restraint, but my purpose here is to examine the debate “at work,” so to speak, in an actual case.

The Court’s recent Second Amendment incorporation decision, McDonald v. Chicago, is an especially interesting example because strikingly different models of judicial restraint are adopted by subsets of the more conservative wing of the Court, and subtly different models are adopted by subsets of the more liberal wing. A close look at the opinions in the case suggests that each model has different strengths and weaknesses, but also that they are by no means created equal. Surprisingly, perhaps, the most radical sounding opinion in the case may on balance be the most restrained.

Keywords: Breyer, Cass Sunstein, Citizens United v. FEC, confirmation hearings, Earl Warren Court, Elena Kagan, Federalism, Frank Easterbrook, Heller v. District of Columbia, John Roberts, Louis Michael Seidman, Originalism, Richard Posner, Robert Bork, Samuel Alito, Sonia Sotomayor, Stevens, Supreme Court

Suggested Citation

Lund, Nelson, Two Faces of Judicial Restraint (Or Are There More?) in McDonald v. Chicago (August 12, 2010). Florida Law Review, Vol. 63, No. 3, pp. 487-532, May 2011; George Mason Law & Economics Research Paper No. 10-39. Available at SSRN: https://ssrn.com/abstract=1658198

Nelson Robert Lund (Contact Author)

George Mason University School of Law ( email )

3301 Fairfax Drive
Arlington, VA 22201
United States
703-993-8045 (Phone)

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