A spate of deadly gun attacks across the country has reignited the national debate on gun reform in the United States. Lawmakers are arguing over what to do, if anything, to regulate guns.
Many are pointing specifically to a 2008 Supreme Court decision that was the first time the Supreme Court ever held that the Second Amendment protected an individual's right to gun ownership. The case, District of Columbia v. Heller, has been cited as one of the reasons why big gun reform may not be possible.
“The Supreme Court had not decided before Heller whether the Second Amendment created an individual right,” said attorney John Bash, who was a clerk for Justice Antonin Scalia on the landmark case.
Bash pointed to the First Amendment and the Fourth Amendment as examples of other protected individual rights.
“They had never decided whether it was just the right to serve in a militia or a right to have a gun for self-defense. And what the majority decided was that it is an individual right, and it includes a self-defense component,” he added.
Kate Shaw, a professor of law at Cardozo Law School in New York and ABC News legal analyst, and Bash, an attorney in private practice in Austin, Texas, were clerks on opposing sides of the decision. On Tuesday, Shaw and Bash penned an op-ed in the New York Times titled, “We Clerked for Justices Scalia and Stevens. America is Getting Heller Wrong.”
“Kate believes in a robust set of gun safety measures to reduce the unconscionable number of shootings in this country. John is skeptical of laws that would make criminals out of millions of otherwise law-abiding citizens who believe that firearm ownership is essential to protecting their families,” read the New York Times article.
Bash assisted Justice Scalia on the majority opinion and Shaw helped Justice Stevens argue the dissenting opinion. Bash and Shaw spoke to ABC News’ podcast, “Start Here” on Thursday morning.
“We're required to say, and it's actually true in this case, that the justices themselves did the most important work, but we did assist them in preparing their opinions,” said Shaw.
Due to the Firearms Control Regulations Act of 1975, provisions of the District of Columbia Code made it illegal to carry an unregistered firearm and prohibited the registrations of handguns. The chief of police could issue one-year licenses for handguns. The code also contained provisions, including requiring owners of lawfully registered firearms to keep them unloaded and disassembled, unless the firearm was located in a place of business or for legal recreational activities.
Dick Anthony Heller, a D.C. special police officer, was authorized to carry a handgun while on duty. He applied for a one-year license for the handgun he wished to keep at home, but his application was denied. In 2007, Heller sued the District of Columbia, arguing that parts of the code violated his Second Amendment right to keep a firearm in his home without a license.
The Supreme Court held that the ban on registering handguns and the requirement to keep guns in the home disassembled or nonfunctional with a trigger lock mechanism violates the Second Amendment. Justice Scalia delivered the opinion for the 5-to-4 majority.
Shaw said the Heller decision is used to argue that gun regulations impede on an individual’s right to self defense, often incorrectly. She said the decision was to protect the Second Amendment as an individual right, but the actual specific holding of the case was quite narrow.
“[The] total prohibition just wasn't consistent with the individual right that the court announced in Heller and, as John said, had actually never been identified or identified previously,” said Shaw.
Bash agreed with Shaw that the court had explicitly left room for reasonable regulations.
“[The court] gave a lot of historical examples of what it called ‘presumptively lawful regulations.’ [What is] really relevant nowadays is prohibitions on felons and the mentally ill getting their hands on guns and they didn't disturb those at all and essentially signaled that they were probably OK,” said Bash. “Although there may be some wiggle room or debate there, they pretty much signaled that.”
Shaw also pointed out that the Heller opinion doesn’t call into question the ban on guns in sensitive places like schools or bans on carrying other “dangerous and unusual weapons.”
“There's been a lot of attention paid to Heller's announcement of an individual right to own a gun, but much less attention paid to the language in Heller. Making clear the government can absolutely regulate that,” she said.
As lawmakers look to what can be done, Bash said they still have the power to create new laws about gun reform, “if crafted correctly.”
“Background check laws and what's called ‘Red Flag laws,’ meaning you have some indication that someone's a threat, you afford them due process and temporarily take their firearm until a fuller hearing can be had. And there are variations on that,” he said. “Some of them may be OK. Some of them may not be OK.”
For now, the country stands in the wake of tragedy. Last month, 10 people died in a shooting at a Buffalo supermarket in what law enforcement authorities described as a racially motivated attack. Last week, 19 students and two teachers were killed in a school shooting in Uvalde, Texas. On Wednesday night, four people died in a Tulsa, Oklahoma, hospital shooting. Shaw said that the real question she and Bash ask in the op-ed is if legislators can pass gun legislation before the next tragedy.
“I think it's right that reasonable minds can disagree about limitations on particular types of weapons and how those would fare under Heller… I think that our point is Congress has done nothing on guns since Heller was decided in 2008,” said Shaw. “If they want to decide to do nothing, I think they just need to take ownership of that decision as opposed to pointing to something external to themselves.”