The Supreme Court’s 2008 in decision in D.C. v Heller established that the Second Amendment protects an individual right to keep and bear arms, and declared that a ban handguns in federally-controlled Washington, D.C. violates that right. The follow up case McDonald v Chicago established that the Second Amendment doesn’t just protect against federal encroachment on that right, but against infringement by states or any political subdivisions.
Since then, there have been no shortage of attempts to pass new gun control laws at the federal level, though none have managed to make it out of the U.S. Senate. Is Heller (and McDonald) the reason why that’s been the case? That’s the argument from two former law clerks who worked on the Heller case; one for Justice Antonin Scalia, who wrote the majority opinion, and one for Justice John Paul Stevens, the author of the four-justice dissent.
At the New York Times, Kate Shaw and John Bash claim that opponents of gun control legislation in Congress have often used Heller as the basis for their objections, and say that lawmakers (and Americans at-large) are misreading the ruling and giving it more power than they should.
Nothing in Heller casts doubt on the permissibility of background check laws or requires the so-called Charleston loophole, which allows individuals to purchase firearms even without completed background checks. Nor does Heller prohibit giving law enforcement officers more effective tools and greater resources to disarm people who have proved themselves to be violent or mentally ill, as long as due process is observed. Heller also gives the government at least some leeway to restrict the kinds of firearms that can be purchased — few would claim a constitutional right to own a grenade launcher, for example — although where that line could be constitutionally drawn is a matter of disagreement, including between us. Indeed, President Donald Trump banned bump stocks in the wake of the mass shooting in Las Vegas.
Most of the obstacles to gun regulations are political and policy based, not legal; it’s laws that never get enacted, rather than ones that are struck down, because of an unduly expansive reading of Heller. We are aware of no evidence that any mass shooter was able to obtain a firearm because of a law struck down under Heller. But Heller looms over most debates about gun regulation, and it often serves as a useful foil for those who would like to deflect responsibility — either for their policy choice to oppose a particular gun regulation proposal or for their failure to convince their fellow legislators and citizens that the proposal should be enacted.
It’s true that nothing in Heller casts doubt on any of those gun control proposals, because none of those gun control proposals were the subject of the Heller lawsuit. That suit specifically challenged D.C.’s ban on handguns, and the resulting opinion was pretty narrowly crafted and left many questions about the scope of Second Amendment protections unresolved. That’s why we have continued to see state and local governments, particularly in blue states, continue to put new gun control laws on the books. And when they are, they’re often challenged on Second Amendment grounds.
Shaw and Bash ignore all of the anti-gun legislation that have been approved in Democrat-dominated states, however, and focus specifically on the lack of passage of gun control legislation in Congress post-Heller.
The closest we’ve come to major new federal gun regulation in recent years came in the post-Sandy Hook effort to create expanded background checks. The most common reason offered by opponents of that legislation? That it would violate the Second Amendment. But that’s just not supported by the Supreme Court’s interpretation of the amendment in Heller. If opponents of background checks for firearm sales believe that such requirements are unlikely to reduce violence while imposing unwarranted burdens on lawful gun owners, they should make that case openly, not rest on a mistaken view of Heller.
I find this to be an extremely dishonest argument, frankly. And if we’re talking about making cases openly, I think these clerks should just openly make their own case for one or more new, albeit “modest”, gun control laws, which appears to be the point of their joint column. Heller, misread or not, simply isn’t what’s standing in the way of Democrats imposing new gun control laws. Again, if that were the case we’d be seeing that at the state level as well, instead of states like California and New York imposing a new round of restrictions every time the legislature convenes.
The last gun bill of any note to pass Congress was 2005’s Protection of Lawful Commerce in Arms Act, which was approved on a bipartisan basis. The last gun control bill of any major substance was Joe Biden’s “assault weapons” ban in 1994. Heller certainly couldn’t have been the reason why no new gun control laws were approved by Congress in the nearly 15 years between Biden gun ban and the Supreme Court striking down D.C.’s handgun ban, so why would Shaw and Bash presume that Heller is the reason gun control legislation hasn’t passed Congress in the nearly 15 years since?
Let’s be honest here: politicians on both sides of the aisle have no problem casting Supreme Court precedent aside, even in clearly settled issues, if they believe it behooves them politically or professionally or they believe that the Court is simply wrong.
And as I said, the scope of the Second Amendment is still clearly unsettled from a legal perspective, though there are still plenty of Americans who firmly believe that no law regulating or restricting the possession of arms is constitutional or, conversely, that the Second Amendment poses no impediment to virtually any gun restriction they can dream up.
Again, the clerks aren’t wrong about what the Heller decision actually said. They’re way off base, however, when it comes to Heller’s impact on gun control legislation and their claims that politicians are misreading it. Heller is invoked much more by lawyers than lawmakers, in my opinion, and that stands to reason. Lawmakers make laws, and the constitutionality of any given proposal is sadly just one consideration for these elected officials.. and most of the time I doubt it’s the primary consideration.
The reason why no new major gun control legislation has passed Congress in decades is because a majority of politicians in D.C. either believe it’s ineffective, unconstitutional, or would cost them with the voters back home. I’m not trying to diminish Heller’s importance here, but given the trouble that we’ve had with judges not giving Heller or the plain text of the Second Amendment their full weight, I find it downright laughable that Shaw and Bash believe Congress has placed Heller on some kind of pedestal.