For those who think gun control is the answer to our nation’s woes, the recent decision by the Supreme Court to not get involved in the current dispute in Illinois at this time is a huge win…. at least in their view.
Yet as Cam discussed on his show today, they shouldn’t get too excited because in the long term, Wednesday’s decision means very little. And if you want a second opinion, the Heritage Foundation’s Amy Swearer also believes things still don’t look good for them.
By declining to intervene Wednesday morning, the Supreme Court didn’t make any decision about the constitutionality of the Illinois law. Instead, the high court merely allowed Illinois to begin enforcing the law’s provisions.
Yes, it’s disappointing that the law will go into effect for the time being. But this is neither a significant victory for gun control advocates nor a reason for Second Amendment advocates to be alarmed.
It’s common for the Supreme Court to refrain from intervening in these types of cases at such an early stage in the litigation process. It does so for prudent reasons that have nothing to do with how the court might ultimately consider the underlying constitutional question.
Emergency interventions such as the one sought here require the Supreme Court to make decisions without the benefit of a robust factual record, extensive briefing from the parties, or ability to ask questions at oral argument. They also leave the court with far less time to consider important issues and reach well-reasoned decisions.
The Supreme Court has shown particular restraint when it comes to intervening in the myriad post-Bruen legal challenges under the Second Amendment that have worked their way through the lower courts over the past year.
No one knows for sure why the justices decline emergency intervention in some cases and not in others. However, one likely reason for their restraint in recent Second Amendment cases is that they’d like to give lower courts plenty of opportunity to try their hand at faithfully implementing Bruen’s framework.
Swearer is quite possibly correct in this interpretation. The Court may not want to be too heavy-handed right here, right now.
Bruen laid out new groundwork for how Second Amendment cases are to be decided. It’ll take a bit of time to build an understanding of just how to use that.
Yet it also seems pretty clear that there’s little ground to justify banning AR-15s and similar rifles if one uses the text and history standard presented in Bruen. The best argument I’ve found was the ban on Bowie knives, but since that dates to around 1850 or so, it’s not a great argument since that’s not around the time of the nation’s founding except on a geological scale.
Basically, as Swearer notes, this is a setback, but it’s not likely to result in the Illinois ban–or any other bit of gun control one cares to name–being upheld in the long term.
Like it or not, folks, gun control will be limited until and unless the Bruen decision is somehow overturned. That’s not nearly as likely to happen as some folks would like to believe, either.