The issue of judicial activism has recently fomented a polarizing controversy among both laymen and legal scholars. With that in mind, the Federalist Society kicked off its fall lineup of events by hosting attorney Clark Neily to speak about the subject.

Neily, however, does not see judicial activism as being widespread issue.

“I agree that it happens once in a while,” he said, “but not nearly to the extent that a lot of people would have you believe.” Instead, Neily sees the problem of being what he called “judicial abdication.” He explained the term as meaning “refusing to enforce reasonably clear textual limits on government power.”

That Neily views this as being an important issue should come as little surprise to those who know his recent legal background. Neily is a senior attorney with the Institute for Justice, which bills itself as the “nation’s only libertarian public interest law firm.”

To illustrate the idea of judicial abdication, Neily discussed the 2005 Supreme Court case of Kelo v. City of New London. The case involved the use of eminent domain, a power that governments possess that enables them to seize private property against the will of the owner. The Fifth Amendment prevents this taking unless compensation is afforded, and even then, it was long held that the property taken must then be used for the public good.

What made this case so controversial was that the land to be seized was then going to be redeveloped into nicer homes, a seemingly private interest. Nevertheless, the court found that such a taking was authorized. Neily did not mince words in describing his disagreement with that decision: “I think it’s fair to say that they basically rewrote the public use provision,” he said.

Neily saved even stronger words for the decision in Raich v. Ashcroft. This case, also decided in 2005, dealt with the federal government’s ability to enforce its drug laws in the wake of California’s medical marijuana law. The government claimed the power to enforce drug laws under the commerce clause, but the question that this case presented was whether this power was still applicable when someone grew their own marijuana and used it within the state. The court held that this intrastate activity still fell under the commerce clause. “I think that is clinically insane,” Neily said.

The common link of these and other cases that Neily brought up was that they were decided in a way that limited personal liberties. “A theme that I see in modern constitutional law is the way that courts treat ambiguous provisions of the constitution as a one-way ratchet in favor of government power,” he said.

Although Neily said he views ambiguity in the Constitution as a necessity, he said it makes it even more important that judges are consistent when analyzing ambiguity. Neily, however, explained his belief that most judges change their analysis based on whether it would strengthen government power or individual liberties, and that the odds often seem slanted in the government’s favor.

Neily said that while Heller answered some important questions, it raised further questions. Not only did the Heller opinion not specify a standard of review, but it left open the question of whether the right to bear arms had been incorporated. The case of McDonald v. Chicago seeks to enter that question. For those not familiar with the incorporation doctrine, Neily summarized the questions as “whether the right to use and bear arms applies against the state and local governments.”

The question is of high importance for a reason that Neily pointed out, saying, “most of the gun laws are on the state level.” Such is the case in McDonald, where the city of Chicago has issued a handgun ban, and has also restricted use of other firearms to a degree that the plaintiffs think is unconstitutional. If the Second Amendment has not been incorporated, state and local governments are under no obligation to abide by it, as the Bill of Rights originally applied to only the federal government.

While Neily, who was co-counsel in Heller, did not serve as counsel to the plaintiffs in McDonald, the Institute for Justice did file an amicus brief, and Neily has some strong views on the subject. Neily also noted that his interest in these cases was not borne from beliefs about gun rights in particular, saying “originally, Heller wasn’t supposed to be about guns, it was supposed to be about liberty.”

Neily said that he has encountered very little disagreement with the idea that the Second Amendment is incorporated against the states, but added that that is only a portion of the McDonald case. For the rest of it, Neily had to give a bit of a history lesson, starting in mid-19th century New Orleans. This was the birthplace of what we now know as the Slaughter-House Cases. In what Neily described as a “rampantly dishonest opinion” the court interpreted the 14th Amendment as having very little impact, and more or less completely writing out the Privileges and Immunities Clause. The effect of this has been that the Supreme Court must now use the substantive due process framework to analyze the protection of individual rights. Neily argued that these analyses were meant to be done through the Privileges and Immunities Clause, saying that, at the time, “‘privileges and immunities’ was pretty well synonymous with ‘rights.’”

The oral arguments for McDonald were heard in early March, and while Neily seemed optimistic that the court would hold that the Second Amendment has been incorporated, Neily said he could not be as optimistic that the court would overturn the Slaughter-House Cases. The court’s questioning on the subject had been quite harsh, including what Neily described as “snide and snarky” comments from Justice Antonin Scalia about why long-decided law should be changed.

After Neily finished his presentation, UF Law professor Joseph Little raised issue of the 14th Amendment, pointing out that his interest in it was not nearly that of Neily, but did commend him for helping to enforce individual rights, something that Little said is not done nearly enough.