Podcast Summary: Amicus With Dahlia Lithwick | Guns in America and the Travel Ban that Went Unnoticed

Date: November 11, 2017
Host: Dahlia Lithwick (Slate Podcasts)
Guests: Adam Skaggs (Giffords Law Center to Prevent Gun Violence), Becca Heller (International Refugee Assistance Project)

Episode Overview

This episode of Amicus explores two pressing legal issues in America during the first year of the Trump administration: (1) the role of the courts and the Second Amendment in the context of mass shootings and gun regulations, and (2) the dramatic legal fight against the Trump administration's travel bans and the evolving challenges refugees face. Dahlia Lithwick hosts in-depth conversations with Adam Skaggs on post-Heller gun jurisprudence, judicial appointments, and the influence of the NRA, and with Becca Heller on the frontline legal resistance to refugee bans, the persistence of "refugee fatigue," and why the world must urgently pay attention to displacement.

Segment 1: Guns in America and the Courts

Guest: Adam Skaggs, Chief Counsel, Giffords Law Center
Start: 02:22

The Giffords Law Center: Purpose and Origins

• [02:29] Skaggs explains the Giffords Law Center was founded in response to a mass shooting and works for sensible, evidence-based gun regulation.
• The center recently teamed with Gabby Giffords and Mark Kelly to advocate for effective gun violence prevention policies.

Public Support and the Second Amendment "Box"

• [03:31] "Americans want sensible gun regulations...vast majorities of Americans want these types of regulations." —Adam Skaggs
• The misconception that the Second Amendment completely blocks regulation is more political than legal.
• [03:00] Lithwick frames the common refrain post-shooting: “Our hands are tied because hashtag Second Amendment.”

The Supreme Court’s Heller Decision and Its Aftermath

• [04:14] Before 2008, the Second Amendment was seen primarily as a collective right centered on state militias.
• [05:00] "A sea change began 30 years before Heller, when the NRA and gun industry...began to promote a narrative that said, you can just read that first half of the Second Amendment out." —Adam Skaggs
• Heller (2008) established an individual right but left the scope undefined: "Heller was not a spontaneous decision. Heller was the culmination of...a generation’s worth of advocacy..." —Skaggs [05:18]
• [07:21] Both liberal and conservative scholars contributed to the broader, individualist reading.

Post-Heller Jurisprudence and the Supreme Court’s Hesitation

• The Court declared the individual right, but hasn’t clarified what regulations are permissible.
• [09:00] Possible reasons: Heller was a narrow 5-4 decision, and justices may not agree on how far to extend the right.

Lower Courts and Regulation Successes

• [10:00] “Since Heller, there have been more than a thousand...Second Amendment challenges...The vast majority...have been unsuccessful, which is to say, the gun laws...have been upheld.” —Skaggs
• Regulations on felons and the mentally ill widely upheld; harder questions (like public carry) remain undecided by SCOTUS.
• [11:27] Lithwick: The Supreme Court is considering a Maryland case (Kolbe v. Hogan) and might clarify scrutiny standards.

Open Legal Questions and Looming Decisions

• [11:45] The Kolbe v. Hogan case could clarify scrutiny levels (strict or intermediate) for assault weapon bans.
• [14:44] There’s a coordinated legal attempt to argue that gun regulations cannot differ between city and country, which Skaggs calls a radical misinterpretation.
• [15:58] Lithwick and Skaggs discuss Justice Gorsuch’s likely alignment with Scalia on Second Amendment issues, noting Gorsuch’s early signals.

Judicial Appointments: Impact on Gun Law

• Lithwick raises concerns about the Trump administration’s rapid, norm-breaking judicial appointments.
• [19:32] Discusses the nomination of Brett Talley, a 35-year-old rated “unqualified” by the ABA, with barely three years’ legal practice and extreme pro-NRA blogging.
• [21:43] “He called on his readers to join the NRA...he said, intellectually, financially, and politically to the NRA.” —Adam Skaggs

NRA's Deepening Influence in the Judiciary

• NRA’s record-breaking spending on Trump and Gorsuch, plus targeting lower courts.
• [25:37] The Giffords Law Center is seeking public records on NRA/White House coordination.
• Skaggs underscores how judicial confirmations have huge, underappreciated stakes for policy including gun regulation.

The "Enthusiasm Gap" and Political Shifts

• [26:48] Skaggs notes traditional “enthusiasm gap” between the pro-gun lobby and gun control advocates but observes a recent surge in activism.
• [28:35] Virginia’s 2017 gubernatorial election: Guns were the second most important issue among voters, split equally between the parties, signaling bipartisan concern.

Key Quote:

"There has both been, historically, an enthusiasm gap, and there’s been a perception...that the NRA has this core base that can be mobilized at any time...But...the last few years have seen a sea change in the movement to fight gun violence."
—Adam Skaggs [26:48]

Segment 2: The "Unnoticed" Travel Ban and Refugee Crisis

Guest: Becca Heller, Director, International Refugee Assistance Project
Start: 31:44

IRAP’s Mission and Pre-Trump Work

• [31:45] Founded at Yale Law School in 2008, IRAP provides legal aid to refugees seeking US admission.
• [33:16] Heller: “We have staff on the ground and other NGOs that identify really urgent cases...and we advocate for the case to move.”

The Trump Administration and Travel Ban

• [34:19] Heller describes a “sea change” following Trump’s inauguration: the US government now aims to restrict—not facilitate—refugee entry.
• [36:13] IRAP began preparing for the travel ban as leaks emerged and scrambled to ensure refugee clients with valid visas arrived before rules changed.

The Lawyers’ Airports Moment

• [37:57] IRAP mobilized lawyers to airports, armed with habeas petitions and ready to defend due process as Executive Orders dropped.
• [38:17] "The lawyers went first, and then all the protesters followed. Whereas usually...we’re trailing after the protesters, doing legal observation work." —Becca Heller

Evolving Refugee Bans and Diminishing Public Response

• [39:31] "Travel Ban 4.0 was just a refugee ban...barely made a dent in the public consciousness." —Becca Heller
• Each ban increment receives less attention (Travel Bans 1.0 to 4.0), despite their cumulative severity.

The Role of the Courts

• [41:23] Heller pushes back on the idea that courts are complicit: "Literally every other court that has ruled on this has enjoined the order from taking effect."
• Supreme Court’s punts are tactical, but lower courts (especially the 4th and 9th Circuits) actively confront the Executive Orders.

Refugee Fatigue and Why Displacement Matters

• [44:24] Discusses “refugee fatigue”—the declining public and media attention to successive attacks on refugees.
• [45:06] "Human displacement is the biggest catastrophe facing the planet...the effects of climate change...the fallout...is going to be that people have to flee their homes and they’re going to need a place to go."
• [47:56] Cites the poem "Home" by Warsan Shire:

  "No one puts their child in a boat unless the water is safer than the land."

Ripple Effects of Ignoring Refugee Crises

• [47:34] Heller connects the Syrian refugee crisis, European migration, the rise of xenophobia, and even Brexit to failures to address displacement proactively.

Taking Action: Recommendations for Lawyers and Citizens

• Heller encourages all lawyers to volunteer with IRAP or resettlement agencies—no experience required.
• [50:36] “If you’re a lawyer and you’re thinking, what can I do?...you can do is send us an email at info@refugeerights.org and say that you’re a lawyer and you’re interested in working on a case.”

On Burnout, Tenacity, and Hope

• [52:14] Lithwick asks how Heller continues her work under constant crisis.
• [52:48] "I subsist on a diet of chaos and misogyny and xenophobia. And I really get fueled by those things when I have them for breakfast. I think I am tired, but I’m fired up."
• [53:30] "At the end of the day, we’re going to look back on this period in history in shame. And you’ll have to know in your own mind, like, did you stand up, or did you sit down?"

Memorable Quotes and Timestamps

• On gun regulation and the Second Amendment:
  "Heller really left open a series of questions about what governments can do to regulate guns, what the scope of the right is...and unfortunately, the Supreme Court hasn’t come back to answer any of those open questions."
  —Adam Skaggs [07:21]

• On the travel ban’s evolving iterations:
  “Travel Ban 4.0...banned refugees from coming in from 11 different countries, nine of which are Muslim majority...I think it barely made a dent in the public consciousness.”
  —Becca Heller [39:31]

• On activism and historical stakes:
  “At the end of the day, we’re going to look back on this period in history in shame. And you’ll have to know in your own mind, like, did you stand up, or did you sit down?”
  —Becca Heller [53:30]

Important Timestamps for Key Segments

• [03:00] Gun regulation in the Heller era
• [04:14] Second Amendment interpretations before and after Heller
• [10:00] Success of gun laws in lower courts post-Heller
• [19:54] Trump’s judicial nominees: the Brett Talley example
• [25:37] NRA’s political and judicial strategy
• [28:35] Voters and gun issues in the 2017 Virginia election
• [31:45] IRAP’s origin and mission
• [36:13] IRAP responds to the imminent travel ban
• [41:23] Courts’ substantive response to the travel ban
• [44:59] Human displacement as the urgent global issue
• [50:36] How lawyers can take action
• [53:30] Why getting involved now matters

Conclusion

This episode delivers sobering but hopeful analysis of gun rights jurisprudence, the politics of federal judicial appointments, and the critical, under-reported legal fight for refugees' rights in America. Both guests emphasize the power of legal advocacy and citizen engagement, and underscore that leadership—whether from the bench, at the airport, or in the voting booth—shapes the country’s moral and legal trajectory.