APP contributor Michael Fragoso returns with a judicious observation.

The Washington Post’s Dana Milbank trained his fire (no pun intended) at Justice Scalia’s approach to the 2nd Amendment this week.  In his words:

The liberal justices tried to re-argue their losing position in the Heller case. Stevens asked about a "right to parade around the streets with guns." Breyer asked if a city can't ban guns even if the ban is "saving hundreds of lives."

Scalia replied: "We don't resolve questions like that on the basis of statistics."

No, we resolve them on the basis of Scalia's judicial activism.

Leaving aside the merits of the 2nd Amendment argument advanced in both Heller v. District of Columbia and McDonald v. Chicago (which is the case now before the Supreme Court), Milbank’s implications are very curious.

According to Milbank, Scalia is a “judicial activist” for wanting to resolve gun cases based on rights claims rather than the cost-benefit analysis of legislative policy making.  Fair enough, I suppose.  The same point was implied when Justice Breyer said in the McDonald oral arguments:

Justice Breyer:  Now, think of this, too: That when you have the First Amendment, or some of the other amendments, there is always a big area where it's free speech versus a whole lot of things, but not often free speech versus life. When it's free speech versus life, we very often decide in favor of life. Here every case will be on one side guns, on the other side human life. Statistics, balancing life versus guns. How are Federal judges in your opinion, rather than legislatures in the States in a Federal system, how are Federal judges supposed to carry this out? I want to see where we are going. (At p.14 ln.19 -p.15 ln.4)

So it is improper, in Justice Breyer’s view, for judges to assert a right that legislatures decide ought to be balanced out against human life.  The question before the Court, then, is less about the abstract right to bear arms than it is a legislative balancing test between gun ownership and safety/human life.

One would hope Justice Breyer would apply the same standard when the rights claim before the Court is the "liberty interest in abortion on one hand and human life on the other.  There are copious data on the abortion rate, the negative effects of abortion, the societal effects of abortion, and (it should go without saying) the human lives of the unborn.  In other words, “statistics, balancing life versus [abortion].” Thorny business, that.  How, then, it might be asked of Justice Breyer, are “Federal judges...rather than legislatures in the States in a Federal system...supposed to carry this out?”

I eagerly await Dana Milbank’s denunciation of “judicial activism” when Justice Breyer manages to distinguish his deference to legislatures when it comes to abortion.