The U.S. Supreme Court decision regarding the Second Amendment — District of Columbia v. Heller — doesn’t prevent the government from enacting common-sense gun legislation, no matter how hard the Republicans try to make you think otherwise.
You can’t blame them for trying. Without their default move to use the Second Amendment as an excuse to do nothing, more people might see Republicans for who they are: heartless, political cowards willing to watch men, women, and children die rather than challenge the gun lobby or upset the gun-worshiping segment of their base.
John Bash is an attorney in private practice in Austin, Texas, and Kate Shaw is a professor at Cardozo Law School in New York City. Back in 2008, when the Heller decision was handed down, Bash and Shaw were law clerks for justices Antonin Scalia and John Paul Stevens, respectively
Scalia wrote the majority opinion in Heller, which held that the Second Amendment protected an individual’s right to keep and bear arms, unconnected with service in a militia, for traditionally lawful purposes, such as self-defense within the home. Stevens wrote the lead dissent.
Although they remain on different sides of the issue, Bash and Shaw wrote a recent New York Times opinion piece titled, “We Clerked for Justice Scalia and Stevens. America Is Getting Heller Wrong.”
Heller merely established the constitutional baseline that the government may not disarm citizens in their homes. Bash and Shaw wrote that the entire court – either majority or dissent – “agreed that the Constitution leaves elected officials an array of policy options when it comes to gun regulation.”
They said in part: “We are both concerned that Heller has been misused in important policy debates about our nation’s gun laws. In the 14 years since the Heller decision, Congress has not enacted significant new laws regulating firearms, despite progressives’ calls for such measures in the wake of mass shootings. Many politicians cite Heller as the reason. But they are wrong.
“Heller does not totally disable government from passing laws that seek to prevent the kind of atrocities we saw in Uvalde, Texas. And we believe that politicians on both sides of the aisle have (intentionally or not) misconstrued Heller. Some progressives, for example, have blamed the Second Amendment, Heller or the Supreme Court for mass shootings. And some conservatives have justified contested policy positions merely by pointing to Heller, as if the opinion resolved the issues.”
To enforce their position, Bash and Shaw point to the very words of Scalia himself.
The conservative icon wrote 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.”
The opinion recognized “presumptively lawful regulations,” including “laws imposing conditions and qualifications on the commercial sale of arms,” and bans on carrying weapons in “sensitive places,” like schools.
It also noted the “historical tradition of prohibiting the carrying of ‘dangerous and unusual weapons,’” and it recognized the public interest in “prohibitions on the possession of firearms by felons and the mentally ill.”
You can read their column here.
None of this is new. MSNBC morning host Joe Scarborough, for one, has talked about the real meaning of the court’s decision. But one group I don’t seem to hear this from — not surprisingly – are Democratic politicians.
Why aren’t they using this to bludgeon the Right’s lie that the Second Amendment would make common-sense gun laws illegal? Why isn’t the first thing out of their mouths “That’s a damn lie”?
Would it win over many votes? In and of itself, maybe not. But who knows what would happen if the Democrats decided to suddenly become as aggressive and tough-minded as the GOP?
Over the coming months, the distortions, misrepresentations, and outright lies from the Republicans are going to come flying at a fever pitch. Democratic failings, up to now, to define their corrupt opposition and undermine its lies will make it harder to combat them as we head toward the November election. But they have to try.
“That’s a damn lie.”
How hard is that to say?
It’s the truth. And it’s a matter of free speech.
Last I heard, we have an amendment for that, too.
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Musings of a Nobody 
Rick, this post is well written and timely. 👍
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Thanks Fred
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