Former clerks for Justices Scalia and Breyer insist that the Heller decision gives governments plenty of room to restrict gun ownership and use. In their view, the failure to legislate appropriately is on the political parties, not the judiciary. Are they right?
Not completely. It is true that Heller (a dreadful decision, based on unscrupulous historical cherry-picking) can be read in a very limited way. It is also true, however, that lower courts controlled by conservatives are consistently expanding its reach, and that the current Supreme Court is dominated by supporters of gun ownership. All of the judicial momentum is running in favor of invalidating gun restrictions, not upholding them.
Within the next few years, I fully expect the Court to find that assault rifle bans are unconstitutional, because an AR-15 is supposedly the modern equivalent of a musket, that state and local governments cannot ban gun purchases by people under 21, and that many red flag laws are vague and violate due process. What will be left for the political system to regulate after that? Not much, I’m afraid.