We Clerked for Justices Scalia and Stevens. America Is Getting Heller Wrong.
K. Shaw and J. Bash – May 31, 2022
[Kate Shaw is a professor of law at Cardozo Law School and a host of the Supreme Court podcast “Strict Scrutiny.” She served as a law clerk to Justice John Paul Stevens from 2007 to 2008. John Bash is an attorney in private practice in Austin, Texas. He served in the Department of Justice, including as the U.S. attorney for the Western District of Texas from 2017 to 2020, and as a law clerk to Justice Antonin Scalia from 2007 to 2008.]
Justice Scalia – the foremost proponent of originalism, who throughout his tenure stressed the limited role of courts in difficult policy debates – could not have been clearer in the closing passage of Heller that “the problem of handgun violence in this country” is serious and that the Constitution leaves the government with “a variety of tools for combating that problem, including some measures regulating handguns.” Heller merely established the constitutional baseline that the government may not disarm citizens in their homes. The opinion expressly recognized “presumptively lawful” regulations such as “laws imposing conditions and qualifications on the commercial sale of arms;’ as well as bans on carrying weapons in “sensitive places;’ like schools, and it noted with approval the “historical tradition of prohibiting the carrying of ‘dangerous and unusual weapons;” Heller also recognized the immense public interest in “prohibitions on the possession of firearms by felons and the mentally ill.”
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 perpetrator of a mass shooting 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.
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.