Tuesday, December 6, 2022

Anthony D. Cooling's "Still a Hollow Hope"

Anthony D. Cooling is a Budget and Revenue Officer.

He applied the "Page 99 Test" to his new book, Still a Hollow Hope: State Power and the Second Amendment, and reported the following:
Page 99 in Still a Hollow Hope: State Power and the Second Amendment is conveniently a microcosm of the book’s learned lessons, that the Supreme Court follows the culture rather than leads it, is hamstrung by the weaknesses of courts in that they have no power to implement their own decisions via the sword of the executive branch, that they do not have the legislative power of the purse to allocate funds to implement their decisions, have no control over the timing of cases, and that a court itself can be divided against itself with slim majorities based on the timing of presidential nominations for seats. The page is noting for the reader why it was over a decade after Heller and McDonald, the two cases where SCOTUS decided that the Second Amendment protected an individual right to keep and bear arms and incorporated it against state encroachment, until they took another case. They stayed hands off the issue of guns except for remanding a case about stun guns, saying the ban was inconsistent with Heller. This hands-off approach happened because of the aforementioned weaknesses and thus Courts are generally loath to put themselves at the center of a political controversy unless they are aware that they will be supported in a decision, which they were not during the Obama administration. This is especially true when SCOTUS, as the page notes, was split 5-4 in its ideological divide. By 2019, the next substantive case SCOTUS took was only after Trump took office and there was a strong pro-gun 6-3 majority on the Court.

When SCOTUS decided Heller/McDonald, they set lower courts up to receive a hail of firearms related lawsuits, then they went largely silent themselves, justifying it with allusions in their McDonald decision to state experimentation, under the well-worn mantra that states are laboratories of democracy. The result wasn’t as much that there was variation in the states, but the various circuit courts becoming split. These splits across the states and the lower courts, the page notes “are a product of a divided public, culture, and elected government.” Indeed.
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--Marshal Zeringue