We Clerked for Justices Scalia and Stevens. America Is Getting Heller Wrong.

[In It to Win It]

NY Times

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In the summer of 2008, the Supreme Court decided District of Columbia v. Heller, in which the court held for the first time that the Second Amendment protected an individual right to gun ownership. We were law clerks to Justice Antonin Scalia, who wrote the majority opinion, and Justice John Paul Stevens, who wrote the lead dissent.

Justices Scalia and Stevens clashed over the meaning of the Second Amendment. Justice Scalia’s majority opinion held that the amendment protected an individual right to keep a usable handgun at home, which meant the District of Columbia law prohibiting such possession was unconstitutional. Justice Stevens argued that those protections extended only to firearm ownership in conjunction with service in a “well-regulated militia,” in the words of the Second Amendment.

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.

Neither is fair. Rather, we think it’s clear that every member of the court on which we clerked joined an opinion, either majority or dissent, that agreed that the Constitution leaves elected officials an array of policy options when it comes to gun regulation.

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.”

[Stallion]

1. The Most Explanatory Part of Scalia's Heller Decision for Regulating Guns

...the Republicans seem to ignore the limits of Scalia's Heller decision

Like most rights, the Second Amendment right is not unlimited. It is not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose: For example, concealed weapons prohibitions have been upheld under the Amendment or state analogues. The Court's opinion should not be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms. Miller's holding that the sorts of weapons protected are those "in common use at the time" finds support in the historical tradition of prohibiting the carrying of dangerous and unusual weapons. Pp. 54–56.