In 2022, in New York State Rifle & Pistol Association v. Bruen, the U.S. Supreme Court struck down a New York state law prohibiting the public carry of firearms without a license an applicant could only get by showing a specific, elevated need for self-protection. The Court decided that the statute contravened the Second Amendment to the U.S. Constitution. This opinion, and subsequent interpretations of it by lower federal courts, demonstrate an increasing tendency by federal courts to constitutionalize non-constitutional questions, whether these are more usually addressed by elected branches of government or by courts adjudicating questions beyond the purview of the constitution. The types of reasoning to which the current U.S. Supreme Court resorts in deciding these non-constitutional questions easily becomes arbitrary, sometimes quite overtly so. This dynamic - the constitutionalization of non-constitutional questions and concomitant degradation of judicial reasoning - is not necessarily peculiar to the United States and may be evident in the Canada.
Dr Heidi Li Feldman, Professor of Law at Georgetown University Law Center