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]
One would think that “may issue” has been made enough of an outlier to warrant review. It is clear, unfortunately, that the court does not take the 2nd amendment as seriously as it does the other constraints of the government on our natural rights. This also means that the court will not pick up AWB. This is also the very clear reason that the antis have not been pushing for supreme court review when they lose (see IL on shall issue decision of 7th circuit).
Very interesting article. The surprise was how much of an appeaser Don Kates is, or was when he wrote the article that this one cites at length. The whole notion of applying the 2nd amendment only to military-type arms, as he claims Miller did (a questionable notion at that) is bad enough. But when he then doubles down by saying it should be applied only to weapons that are in use by all three of the military, law enforcement, and citizen law enforcement — and then only if they are “lineally descended from revolutionary era weapons, is absurd, and unworthy of someone who is claiming to be a defender of the right to bear arms. It doesn’t help when he then goes on to claim that this clearly excludes full-auto weapons since they “are not useful for law enforcement” (possibly true) or for self-protection (perhaps), and are not “commonly possessed by law-abiding individuals”. Well, no, of course not, because of the NFA, dummy. It’s hard to argue sanely that a person shouldn’t own things that are not currently commonly owned when the only reason that is so is that there’s an unconstitutional law in place preventing such ownership. With that kind of circular reasoning, anything at all becomes “constitutional”.
I already had some bits of doubt about Kates, but having read this I put him squarely in the group of people too wishy-washy to be trusted. That’s not to say he may not at times have something useful to say, but he is definitely not at the level of with Halbrook and Lott, let alone Neil Smith, Aaron Zelman, or Neil Schulman.
“…[M]ake restrictive laws appear to be nonsensical outliers…”? You mean make them look like exactly what they are?
I didn’t say that was well as I could have (What? You don’t know what I’m thinking? It was perfectly obvious to me!)
It’s not obvious to those who are unfamiliar with guns and their common usage. By getting more people involved, changing the culture, the nonsense becomes apparent to a greater number of people.