In that context about "legislating from the bench" I guess you are technically correct, in that any clarification or overturning of an established practice or precedent (i.e. legislating, or in many cases...de-legislating I guess you could say) would require the enforcement of one's prayer of relief to the courts (the bench). Such is the nature of that check and balance as it applies to making things right. However that does not grant a blank check to the courts to act in a matter inconsistent with either the Constitution or the natural rights the whole enchilada is based on in the first place.

The problem that I have is, of course, when people seek to get on the court (or seek to install people on the court, as the case may be) with the specific predetermination of violating the Constitution and/or replacing natural law in even the most obvious of cases.

McDonald V. Chicago was a great example of that. Sotomayor flat out lied to the Senate to get the job and wrote an opinion (thankfully in the misguided 4 vote minority) that violated natural law and the Constitution. She not only lied to get the job, but before she got it, she gloated and joked about how she intended to violate her oath and the Constitution that put her in that position in the first place, simply because she disagreed with a right that we very clearly have but that she personally disagrees with.

The 2nd could not be more clear (that is, until one muddies the water with Olbermanesque revisionist history pseudo definitions of words and phrases like "militia" and "well regulated" in an attempt to eradicate a Constitutional and basic individual and human right...arms for self defense of the individual and the state) simply because they personally believe in an absolute police state where armed government protectors lord over an unarmed population. The truth behind the language and the intent behind the amendment itself is clear and well documented. But to a progressive, whatever rights you have, as they apply to any issue, either way, are at the whim of whoever is running the government today and that's the problem and its far bigger than any single issue.

To be fair, there are progressives on both sides of the isle. Big time. Some are pro gun, others anti-gun. Some pro-choice, some pro-life. Some that believe you should be secure in your persons and property, and others that think that all good obedient citizens should submit to anything and everything because, after all, they should have "nothing to hide" and if they don't submit willingly, they are suspect, aren't they?

But our rights are absolute and do not ebb and flow with the shifting winds of politics. It is an inalienable right to have a free press and freedom of speech and expression. There were no cell phones or internet back in the 1700's. But that should not matter. We shouldn't need the courts to "interpret" the extremely obvious to us like some think they are supposed to do. If we embrace such sophistry, where does it end? We have the freedom of religion, but the founders didn't specifically say if that was EVERY day of the week, so let's get the courts to weigh in on that, shall we? LOL! Joe Blow versus Blackberry said we have freedom of the mobile phone, but we have to anxiously await Jane Doe versus iPhone to see if it applies to that format as well. I'm exaggerating a little bit, but not much. At all. We don't get our rights from the courts, or the government, or even the Constitution. Our rights are ours and that is supposed to be the foundation this whole republic is based on in the first place.

So the only legislating from the bench that can really be justified is that which undoes the violation of our rights, freedoms and liberties. The courts are supposed to be the champions of that. Even and especially if they happen to personally disagree with the freedom, liberty or right in question in the first place.

Again, if 5 SCOTUS justices ruled that they interpreted the 1st to mean that Congress can, in fact, establish unicorn wirship as the state religion and your only "choice" was either that or death, would that be a valid law/precedent/interpretation? Nope. Binding? Nope. What if they passed an actual Constitutional amendment, would it be valid then? Nope. Not even close. Why? Because it is clearly in violation of a pre-existing right we already have (namely, religious freedom, among many, many, many others) that we were born with and never "got" from the Constitution in the first place, and anything from the judicial branch to the contrary is "legislating from the bench" and that's what I'm referring to.

Now, what if some individual, city, state or federal entity violated one's right and that person went to the courts to seek justice and the courts correctly intervened to restore the right that was deprived of them. Would that be considered "legislating from the bench"? Maybe by pure textual definition I suppose, but that's not the same thing as the previous example. The two are simply just different, and quite so.

This reminds me of the famous case where justices were trying to precisely define the definition of porn and exactly where that line was in any and every case. Finally Justice Potter Steward said look, ""I shall not today attempt further to define the kinds of material I understand to be embraced…but I know it when I see it…"

The same is true of judicial activism especially as it applies to Constitutional revisionism and the political power monger methodology of attempting to transfer ownership of our rights from the individual to the state in any form. It sometimes gets tricky because although its always the case when our rights are violated by the courts, it can sometimes even be the case when the courts are upholding our rights, but for the wrong reasons (i.e. rulings to the effect that you have a right to XYZ, but only because the government says you do, etc). The precise criteria to define such examples may in many cases be cumbersome, but in all cases, I know it when I see it and I'm pretty darn sure our Founders would have seen it too. And what Sotomayor did in McDonald v Chicago was a glaring example of exactly that. Fortunately she was out voiced, by a mere one vote.

In any case, that whole scan thing is probably easier than I'm making it out to be. I mean, pick an instrument and I'll be all over it, you got the other 5 though.