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With SCOTUS on Sidelines, Gun Control Becomes Fight Over Power

The current debate over gun control policy in Washington has Congress and the Obama administration at odds over which branch has more power — and the Supreme Court has stayed on the sidelines.

President Barack Obama, expressing frustration with Congress not passing gun control measures, announced in January he would act on his own to require more background checks on gun sales.

But two weeks later, Attorney General Loretta Lynch went to Capitol Hill and confirmed what many legal observers noted: The actions seem to restate the current laws. Lynch told Republican lawmakers that the actions don’t overstep the president’s authority because they don’t make new laws.

“They clarify laws that are already on the books — because clear notice will help ensure that those laws are followed,” Lynch testified before a Senate appropriations subcommittee on Jan. 20.

But Republicans remain skeptical and appear ready to use their control over federal spending to rein in the executive branch. Rep. John Culberson of Texas has threatened to try to withhold Department of Justice funding for fiscal 2016 if the administration tries to move forward with any of the executive actions.

GOP appropriators also could seek to attach policy riders to spending bills that would block aspects of the executive actions. Richard C. Shelby, R-Ala., chairman of the spending panel that oversees funding for the DOJ, slammed the administration for making an “end-run” around Congress and “engaging in anti-gun theatrics.”

“The department is on notice,” Shelby, chairman of the Commerce-Justice-Science subcommittee, said of the DOJ. “This subcommittee will have no part in undermining the Constitution and the rights it protects.”

Amid the debate, the Supreme Court has exercised its right to remain silent when it comes to gun control laws. It’s been more than five years since the justices decided a major case over how much lawmakers can limit the Second Amendment’s right to own firearms.

Since that 2010 decision, many of the deadliest mass shootings in the nation’s history have happened at schools, theaters and other public spaces. Cities and states across the nation have implemented gun control laws in the wake of a growing list of senseless attacks such as the Sandy Hook Elementary School shooting in Connecticut in 2012.

The Supreme Court has declined to hear challenge after challenge to laws that ban certain types of guns and bullet magazines, including a high-profile case in December over gun control laws in Highland Park, Ill., that banned assault weapons and magazines that hold more than 10 bullets. When the justices don’t hear a case, the laws are left in effect.

There are more challenges headed to the high court soon, giving the justices the opportunity to hear a case and issue a ruling on gun rights laws with a nationwide sweep, if they choose. Yet a majority of the justices don’t appear ready to do so, leaving states, localities and, less likely, Congress free to act.

“The problem for gun control advocates is not in the courts, and not the Second Amendment,” says Adam Winkler, a constitutional law professor at UCLA who wrote a book about the gun control debate in America. “The problem is getting laws passed through the legislatures.”

The justices might be waiting for a better case, legal experts say. They might be waiting for federal, state and local lawmakers to sort out the highly charged issue. Or they might be unwilling to test how the court as a whole would rule, given the narrow 5-4 rulings in landmark gun rights decisions in 2008 and 2010.

The reasons the Supreme Court stayed out of the Highland Park case and others cannot fully be known outside the walls of the justices’ private meetings.

It takes four votes for the Supreme Court to agree to hear a case. While Justices Clarence Thomas and Antonin Scalia, two conservatives, voiced their opinions on the Highland Park case, the other justices did not telegraph their vote or the reasons for it.

Lawyers are preparing to ask the justices early this year to review an appellate court decision from October that upheld core provisions of New York and Connecticut bans on semi-automatic weapons and restrictions on bullet magazines enacted after the Sandy Hook shooting that left 26 dead. That case, however, presents many of the same issues the justices have been comfortable letting stand for now.

Some lawyers think cases challenging laws that restrict permits to carry a concealed gun in public have a greater likelihood of finding four justices willing to hear it.

David Kopel, an adjunct professor of advanced constitutional law at the University of Denver said the justices themselves, looking back at the 5-4 split decisions on the Heller and McDonald gun cases, might be unsure of what side might prevail if they decide to take a case.

“I think one plausible scenario is that none of the justices feels confident about what Justice [Anthony M.] Kennedy would do, and so nobody wants to find out,” Kopel says, referring to the man who often holds the swing vote.

Clark Neily, a senior attorney at the libertarian Institute for Justice who also represented the plaintiffs in the Heller case, says he suspects the justices are concerned that “the direction of the law would be moved in the direction they dislike, and they don’t know which way it would go.”

“I think the Supreme Court recognizes that Second Amendment gun regulation is a very, very politically charged issue,” Neily says. “I think they’re reluctant to involve themselves unless they perceive it as absolutely necessary.”

Ryan McCrimmon contributed to this story.

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