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Lawyer who clerked for Justice Scalia debunks some Second Amendment mythology

The late Supreme Court Justice and conservative icon Antonin Scalia did not, as some claim, view all limits on gun ownership as unconstitutional.

In case you missed it, be sure to check out an op-ed published this morning in the New York Times authored by a pair of attorneys and former U.S. Supreme Court law clerks — Prof. Kate Shaw and John Bash.

In “We Clerked for Justices Scalia and Stevens. America Is Getting Heller Wrong.” the two explain why Scalia’s famous/infamous 2008 ruling in the case of District of Columbia v. Heller most certainly did not confer — as claimed by many on the right — a completely unfettered right to bear arms.

While Shaw and Bash differ on may aspects of the case and the Court’s ruling, they are in complete agreement that “Heller has been misused in important policy debates about our nation’s gun laws.”

Contrary to the claims of many members of the gun lobby, it “does not totally disable government from passing laws that seek to prevent the kind of atrocities we saw in Uvalde, Texas.”

As the two note:

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.”

Shaw and Bash then go on to list several specific laws and regulations that would be constitutional under the Heller precedent, including:

  • background check laws — including ones that close the so-called “Charleston loophole,”
  • ‘red flag’ laws with ample due process that give “law enforcement officers more effective tools and greater resources to disarm people who have proved themselves to be violent or mentally ill,” and
  • bans on particular kinds of extremely dangerous weapons — as they note, “few would claim a constitutional right to own a grenade launcher, for example.”

The bottom line conclusion from two veteran attorneys who “know the opinions in the case inside and out”: there is plenty of constitutional room for strong gun safety rules in our country. Ultimately, the debate here is a matter of politics and political will — not, as some claim, the Constitution.

Click here to check out the op-ed.

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