Political scientists and law professors alike have written extensively on signaling and agenda-setting by the Supreme Court. Despite being dicta—the issues mentioned were not before the Court and were not necessary to resolve those that were before it—the Heller safe harbor seems to us to have been a clear signal, clearer perhaps than any sent in Lopez, that lower courts should not declare open season on any and all federal gun laws. It seems to us that the lower courts have certainly heeded this signal.
If the Heller safe harbor was indeed intended as a signal to lower courts (and litigants, perhaps), then it tends to confirm an earlier observation we made about Heller: that it is another example of the Court’s tendency to constitutionalize the national consensus on certain hot button issues and then enforce it against outliers.
Brannon P. Denning
Glenn H. Reynolds
August 1, 2009
Heller, High Water(mark)? Lower Courts and the New Right to Keep and Bear Arms
[Via Glenn Reynolds.
This conclusion would appear to be true and signals to gun rights activists the incredible importance of changing the culture prior to pushing our luck in the courts. We need to make restrictive laws appear to be nonsensical outliers then, if we cannot get legislative action to our satisfaction, press the issue in the courts.—Joe]