Erwin Chemerinsky argues in today’s L.A. Times that Heller is an example of judicial activism:
If the terms “judicial activism” and “judicial restraint” have any meaning, it is that a court is activist when it is invalidating laws and overruling precedent, and restrained when deferring to popularly elected legislatures and following prior decisions.
Chemerinsky says that when a constitutional provision is ambiguous, judicial restraint counsels that the Supreme Court defer to legislative enactments:
At the very least, one would expect that a high court committed to judicial restraint would have used the 2nd Amendment’s ambiguity to defer to the political process and to follow precedent.
Here is a persuasive case for the opposite view, arguing that ambiguous constitutional provisions should be resolved by the Court:
Mark, you say you’ve never heard a persuasive argument as to why someone committed to “democracy” would want courts to determine the meaning of the Constitution when there is disagreement over its meaning. I think that the basic answer came from Marbury v. Madison: the limits of the Constitution have no meaning if they are not enforced and the other branches of government see their role as pleasing constituents, not upholding the Constitution.
. . . .
The core of your position seems to be that if there is disagreement over the meaning of the Constitution, there is no reason to prefer having the court make the choice rather than the political process. My view, in contrast, is that society is better off having an institution largely insulated from majoritarian politics determine the meaning of the Constitution and enforce it.
You might be interested to know who made this argument. He is a well-known law professor by the name of Erwin Chemerinsky.