The Australian
By David Weisbrot
THERE are times when it may be deceptively easy to convince oneself that Australian and American legal cultures are very similar.
The cure is simple enough: just sit down and read some of the latest opinions of the US Supreme Court.
The court just completed its spring session, issuing a welter of decisions before resting for several months over the northern hemisphere summer. One of the most contentious cases involved the constitutionality of restrictions on gun ownership.
The second amendment to the US Constitution famously provides, in its mangled syntax, that "a well-regulated militia being necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed."
Although this was crafted in fraught revolutionary times when the threat of invasion was real and a standing army had not yet been established, it has become an article of faith for many Americans that the second amendment confers a right of individual gun ownership.
The National Rifle Association, a powerful and well-resourced lobby group, has as its central mission vigorous opposition to any perceived fettering of this right, whether by the courts or the legislatures.
Nevertheless, gun control laws of varying severity were enacted in many states and municipalities in response to the high level of gun violence in the US, where FBI and Justice Department statistics indicate that there are about 13,000 gun homicides annually, as well as hundreds of thousands of assaults involving guns.
One of the most powerful voices for gun control in the US is the Brady Campaign to Prevent Gun Violence, led by former White House press secretary James Brady, who was seriously injured in the assassination attempt on president Ronald Reagan in March 1981.
In District of Columbia v Heller, decided in 2008 by a 5-4 vote, the Supreme Court invalidated Washington DC's tough gun laws, which banned handguns and required all shotguns and rifles kept in homes to be registered, kept unloaded and either disassembled or fitted with a trigger lock.
The majority ruled that the second amendment protects an individual's right to possess guns, especially where this is for the purpose of self-defence in the home, and that no federal law could unreasonably abridge this right.
The case caused some consternation even within the Bush administration, with some senior officials worried that it might lead to a broader rollback of gun regulations, including those restricting the sale of machine guns and high-powered, military-style, assault weapons, as well as prohibitions on selling guns to convicted felons.
Justice Antonin Scalia noted at the end of his opinion that the majority judges were "aware of the problem of handgun violence in this country", and the decision should not "cast doubt on long-standing prohibitions on the possession of firearms by felons or the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings".
Scalia asserted that this reading of the second amendment left the District of Columbia with "a variety of tools for combating that problem, including some measures regulating handguns".
In dissent, Justice John Paul Stevens wrote that the majority "would have us believe that over 200 years ago, the Framers made a choice to limit the tools available to elected officials wishing to regulate civilian uses of weapons", yet in his view such evidence was "nowhere to be found".
In a separate dissent, Justice Stephen Breyer wrote that "there simply is no untouchable constitutional right guaranteed by the second amendment to keep loaded handguns in the house in crime-ridden urban areas".
Last week, in another 5-4 decision in McDonald v City of Chicago, the Supreme Court struck down strict gun laws in Chicago and a neighbouring suburb, which imposed a near total ban on possessing handguns, ruling that such a blanket ban was incompatible with the guarantees in the second amendment.
As in the previous decision, the majority tried to downplay the scope of the decision, with Justice Samuel Alito remarking that the extension of binding second amendment rights to the states and municipalities "limits (but by no means eliminates) their ability to devise solutions to social problems that suit local needs and values".
However, in a parting shot, Justice Stevens wrote that the majority's decision could prove to be "far more destructive - quite literally - to our nation's communities and to our constitutional structure".
These cases mark the end of Justice Stevens' lengthy and distinguished tenure on the court, and the focus now shifts to the Senate hearings scrutinising President Barack Obama's hand-picked nominee Elena Kagan.
All of the current indications are that, after some partisan posturing and ritual denunciations of the evils of judicial activism, the devoutly centrist Kagan will be confirmed by a comfortable margin, especially since this will not alter the present balance of power on the court.
The conservative bloc led by Chief Justice John Roberts and Justice Scalia, and including Justices Alito and Clarence Thomas, can generally rely on the support of Justice Anthony Kennedy, who votes with the conservatives about two-thirds of the time in those 5-4 decisions when the court is most sharply and bitterly divided.
The recent second amendment cases like Heller and McDonald, and the decision several months ago in Citizens United to strike down restrictions on corporate funding of political advertising, make plain that the division on the US Supreme Court is a political one, rather than a contest of competing versions of judicial method.
In all three of these cases, the majority justices on the US Supreme Court, who publicly profess to abhor judicial activism, invalidated legislature developed through the democratic political process after detailed consideration of the best manner in which to tackle a difficult social problem.
In the second amendment cases, the measures in both Washington DC and Chicago, both plagued by gun violence, had been in effect for about 30 years.
In the campaign financing case, the McCain-Feingold Act was the product of a lengthy and ultimately successful effort in the US congress to reach a bipartisan solution to the corrosive effect on good government of soliciting and accepting big corporate donations.
In order to reach this result, the majority had to find that corporations have the same first amendment rights of free speech as individuals - although the Constitution says no such thing, and the American Founding Fathers had a healthy suspicion of both big government and big business.
But it's only "activism" when the other side does it.
David Weisbrot is professor of legal policy at the United States Studies Centre, University of Sydney, and professor of law and governance at Macquarie University.