Tuesday, May 31, 2022

And They Are Still At It

Remember what I said about Heller, just yesterday? Apparently the Legal BigBrains have learned nothing in 14 years.
Heller does not totally disable government from passing laws that seek to prevent the kind of atrocities we saw in Uvalde, Texas. And we believe that politicians on both sides of the aisle have (intentionally or not) misconstrued Heller. Some progressives, for example, have blamed the Second Amendment, Heller or the Supreme Court for atrocities like Uvalde. And some conservatives have justified contested policy positions merely by pointing to Heller, as if the opinion resolved the issues.

Neither is fair. Rather, we think it’s clear that every member of the court on which we clerked joined an opinion — either majority or dissent — that agreed that the Constitution leaves elected officials an array of policy options when it comes to gun regulation.

This is from two former clerks, one Scalia, one Stevens. Whatever Heller was at that moment, and maybe (maybe) whatever Scalia meant it to be, it did the opposite of what legal Bigbrains promised at the time, what these two are arguing now.

I don't think fear of the court should stop them from trying to act (on this or anything else), but people who should know better - certainly now! - have this weird idea that these big cases settle things for all eternity. Probably understandable for clerks in the center of it at the time. Their big moment in history.

But it doesn't work like that. It has never worked like that. It certainly doesn't work like that with the current lunatics on the Court.