Kate Shaw and John Bash — who clerked for Justices John Paul Stevens and Antonin Scalia, respectively, when the two wrote the majority opinion and the lead dissent in D.C. v. Heller — make some sound points in the New York Times but overstate their importance. They write that the Court’s decision in that case did not rule out many gun regulations; that the political branches, rather than the courts, have been the chief obstacle to new regulations; and that many people exaggerate the justices’ impact on gun policy. Those are the sound points (also made by me here).
All of that suggests that gun-controllers spend too much time denouncing the justices, advocating repeal of the Second Amendment, and so forth. But Shaw and Bash want to go further than that, arguing that an exaggeration of Heller has affected the outcome of political debates over gun policy. They cite proposals to expand 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.”
I see two problems here. The first is that people are not bound to make constitutional arguments that track the Supreme Court’s. Opponents of gun regulations heavily featured arguments about the Second Amendment well before the Court endorsed the individual-rights reading of it in Heller. That was fine. It’s fine now, too, if gun-rights advocates have a more expansive reading of the amendment than the Court has. (To be more precise, it’s fine if they’ve got a good argument for that expansive reading. The mere fact that it goes further than the Court’s is not a reason to reject it.)
The second, related problem is that it’s not at all clear that the legislative outcomes would have been different if the Court hadn’t issued Heller at all. Gun-rights groups had been pretty successful at staving off federal regulations before Heller, after all. In the years prior to Heller, they had kept a ban on assault weapons from being reinstated and blocked expanded background checks. Their success owes a lot to their caring much more about gun issues, and making them a bigger political priority, than supporters of gun regulations do. It also has to do with their strong belief that they are acting in the name of the Constitution — a belief that is not especially tied to the Supreme Court’s case law. (It’s the kind of thing that some liberal academics call “popular constitutionalism,” at least in non-gun contexts.)
Shaw and Bash are right that many people have exaggerated the importance of the Supreme Court’s past decisions in determining our gun policies. They’ve fallen prey to that tendency themselves.