Complaining about the law is no substitute for making credible arguments

An interesting guest editorial in the New York Times.  From We Clerked for Justices Scalia and Stevens. America Is Getting Heller Wrong. by Kate Shaw and John Bash.  Shaw clerked for Stevens who dissented from the majority decision in Heller and Bash clerked for Scalia who wrote the majority opinion.  

It has been striking to me that our policy debates seem to be so little based in the law or informed of the judicial decision-making process.  The leaked majority decision to overturn Roe v. Wade has been repeatedly represented as banning abortion; which it does not.  It would merely, and properly, return the debate back to where it belongs - in the people's legislatures.

Similarly with gun control as represented in the Heller decision.  Gun control activists constantly represent Heller as the impediment to sensible gun control.  It is not.  

Bash and Shaw point out:

Nothing in Heller casts doubt on the permissibility of background check laws or requires the so-called Charleston loophole, which allows individuals to purchase firearms even without completed background checks. Nor does Heller prohibit giving law enforcement officers more effective tools and greater resources to disarm people who have proved themselves to be violent or mentally ill, as long as due process is observed. Heller also gives the government at least some leeway to restrict the kinds of firearms that can be purchased — few would claim a constitutional right to own a grenade launcher, for example — although where that line could be constitutionally drawn is a matter of disagreement, including between us. Indeed, President Donald Trump banned bump stocks in the wake of the mass shooting in Las Vegas.

Most of the obstacles to gun regulations are political and policy based, not legal; it’s laws that never get enacted, rather than ones that are struck down, because of an unduly expansive reading of Heller. We are aware of no evidence that any mass shooter was able to obtain a firearm because of a law struck down under Heller. But Heller looms over most debates about gun regulation, and it often serves as a useful foil for those who would like to deflect responsibility — either for their policy choice to oppose a particular gun regulation proposal or for their failure to convince their fellow legislators and citizens that the proposal should be enacted.

The closest we’ve come to major new federal gun regulation in recent years came in the post-Sandy Hook effort to create expanded 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. If opponents of background checks for firearm sales believe that such requirements are unlikely to reduce violence while imposing unwarranted burdens on lawful gun owners, they should make that case openly, not rest on a mistaken view of Heller.

Their plea is that debates at least acknowledge the actual legal decisions instead of making up arguments that are vaporous misrepresentations.  

As the nation enters yet another agonizing conversation about gun regulation in the wake of the Uvalde tragedy, all sides should focus on the value judgments and empirical assumptions at the heart of the policy debate, and they should take moral ownership of their positions. The genius of our Constitution is that it leaves many of the hardest questions to the democratic process.

Not an unreasonable request it would seem.

Regulation of abortion is fraught.  Regulation of guns is fraught.  But such regulation is entirely constitutional and feasible.  

The challenge for activists, both expansive pro-abortionists, as well as statist gun controllers, is that their positions are not compatible with the will of the people and, as pertinently, are generally incompatible with empirical evidence.  

Their complaint does not really reside with whether court decisions are bad or good.  Their effective complaint is that they are unable to make compelling arguments for their positions to either the public or to the citizen's legislators.  

Especially in the case of gun control, it would help if the policies they propose could be shown to work.  Absent that barest minimum, nobody need listen to them and all the howling and gnashing of teeth about the Supreme Court is mere drama to conceal that they have no credible policy proposition supported by reason or empirical evidence.