BuckeyeBlog

Blogger-extrordinaire-and-pretty-good-law-professor-to-boot Glenn Reynolds tells Heller celebrants, “Don’t get cocky.”

Reynolds argued that the Heller litigation was a mistake, on the grounds that there would not be five votes to protect the Constitution on the Supreme Court. (I agreed, and was scared to death Heller would be an outright loss.) He was wrong on that point (as was I), but not by much. (The problem is Justice Kennedy. The NRA, in a stunt, filed suit to overturn the Chicago gun ban the day Heller came down. Can Kennedy be counted upon? Hardly. Moreover, who knows what the court will look like one to 10 years hence? All of these cases can be, indeed must be, litigated over a long time period to get a ruling out of the high court. But the state of individual rights is precarious, and remains as likely to be lost as affirmed in the years to come.)

But here’s an interesting point in his column: Limiting the Commerce Clause is another fundamentally important legal action to take, one that will take years to implement. The Rehnquist Court threw the door to this wide open. What’s missing, Reynolds argues, is the hordes of public interest lawyers to make sure the judiciary follows through:

In the 1990s the Supreme Court decided a series of cases narrowing Congress’ powers to regulate all sorts of things under the rubric of “interstate commerce.” But there were no hordes of public-interest lawyers to pick up on those decisions and bring new cases in the lower courts.

Without that pressure, the lower courts were free to ignore the Supreme Court’s efforts to cut back on federal meddling - and that’s what they did, to the point that some called it a “constitutional revolution where no one showed up.”