Being a Supreme Court Justice might seem like a relatively easy gig. You get to pick the cases you hear, you and a majority of your peers have the last say on any laws that come before you and you have the job for as long as you want it.
For all that it is one of those jobs where acting to aggressively will only make more work for you. If you’re a law nerd like I am, the way that the High Court tried to square the circle between obscene materials and the First Amendment is a great example of how a Court tried and pretty much made a hash of balancing two competing interests.
We are at the start of something similar with the Second Amendment. The recent decisions by the Supreme Court in Heller and McDonald opened the door for a lot of uncertainty about what is and what is not allowed in terms of regulation of handguns.
The basic idea in both cases is that the government, whether Federal, State or Local, can not outright ban the ownership of handguns. This was hailed by the gun-rights advocates as a major victory. It has been seen as the opening of the way for the removal of all kinds of gun control laws that 2nd Amendment absolutists find abhorrent.
The problem for these folks is that in overturning 40 years of settled law, the Supreme Court left lower court judges without clear guidance. When you basically say that everything they learned in law school and from other decisions is invalid you wind up with a blank sheet of paper.
It seems that judges at all levels are resisting any urge to expand on the new regime of rights that Heller and McDonald provided. There is an article in today’s Washington Post that details how winning the big fight has not turned into a wholesale revision of the gun laws in this nation.
The Brady Center to Prevent Gun Violence says that since the two landmark decisions more than 400 cases have been filed or appealed on the grounds that the Supreme Court broadened gun rights and the States have not reacted appropriately. To date they have all been decided against gun owners or gun rights advocates.