Overruled (22 page)

At this point, Justice Anthony Kennedy began signaling his own thinking on the matter—and it did not look good to the Bullock team. “Precisely the description you gave applied to the railroads in the west,” Kennedy told Bullock.

But that's a different issue, Bullock tried to explain before Kennedy cut him off. “The argument is, and I don't know of any reason to doubt it,” Kennedy said, that buying up needed land “by voluntary acquisition and sale doesn't work. . . . There isn't another practical way to do it.”

That proved to be almost too much for Bullock to swallow. “Your Honor,” he carefully responded, “there are many ways to do economic development without condemnation. It happens every single day in this country.”
50

Unfortunately for Bullock, the die appeared to be cast. “The most frustrating justice for us was Kennedy,” he later acknowledged. “I felt like I was just not making any progress with him during the argument, and he just did not seem to be really troubled by this.”
51
That lack of progress was especially notable in light of Kennedy's previous jurisprudence. In a 1993 opinion, for instance, Kennedy had declared, “individual freedom finds tangible expression in property rights.”
52
Yet during the
Kelo
arguments, Kennedy appeared totally unmoved by any such libertarian concerns. It was a distressing omen for the Bullock team.

“I Would Not Draw a Line”

Next up at the lectern was Wesley W. Horton, a veteran Connecticut litigator hired by the city to argue on its behalf. He came out swinging in favor of judicial restraint. “Justice O'Connor, and may it please the Court,” Horton began. “The principal purpose of the takings clause is to provide for just compensation.”

“But it has to be for a valid public use,” O'Connor immediately shot back.

“I completely agree with that,” Horton rallied. “But the primary purpose of the takings clause is not to regulate legislative determinations of that.”
53

Horton had opened his remarks by paraphrasing the conclusion of
Berman,
in which Justice Douglas maintained that so long as just compensation was paid, the rights of the department store owner under the Takings Clause were fully vindicated. Yet O'Connor refused to let Horton's gloss on
Berman
go unchallenged. Was she now having second thoughts about the sweeping judicial deference she had endorsed in her
Midkiff
opinion? The packed courtroom was about to find out.

But first Justice Scalia wanted to know just how much power the government was claiming for itself in this case. “What difference does it make, that New London was in an economic depression?” Scalia asked. “Would it not be fully as much, under your theory of a public use, for a city to say, yes, we are not doing badly, but we could do better. Let's attract some high-tech industry here. You can't possibly draw a line between depressed cities and undepressed cities, can you?”

Horton conceded, “I would not draw a line.”

Scalia kept at it. “You wouldn't. And you wouldn't ask us to do it either.” Then Scalia moved in for the kill. Under your theory of the case, he asked Horton, “you could take [private property] from A and give it to B if B is richer, and would pay higher municipal taxes, couldn't you?”

“Yes, Your Honor,”
54
Horton replied calmly. The city could do that under New London's theory. Bullock was shocked by Horton's admission. “That's what we were saying,”
55
he later recalled. New London had just admitted the principal theme of IJ's case.

Nor was Bullock the only person in the courtroom to be surprised by Horton's answer. “For example,” O'Connor quickly interjected on top of Scalia's questioning, “Motel 6 and the city thinks, well, if we had a Ritz-Carlton, we would have higher taxes. Now, is that okay?”

“Yes, Your Honor, that would be okay,”
56
Horton promptly responded.

Once again, Bullock was shocked. And this time so was O'Connor. “When you're that close to them you can really see the looks on their faces,” Bullock recalled. And from where he was sitting, he watched a visibly flabbergasted O'Connor take a moment to digest Horton's answer. “I could tell that she was shocked that he would just concede that up front and go on with it. That was really encouraging for having her vote, especially given the fact that she had written the
Midkiff
opinion.”
57

Horton's frank endorsement of government power appeared to trouble even some of the Court's more liberal justices, who up until that point had seemed fully in favor of the city's position. “Could the courts, under this clause, at least review what you've said for reasonableness?” Breyer asked him several minutes later. “I mean, look at the reasonableness of a claim that this is for—basically for a public use. . . . Is that a possible kind of review that you might find appropriate here?”

But Horton refused to give an inch. “No, Your Honor, if what you're defining as reasonableness is being higher than rational basis.”
58
This case called for judicial deference to lawmakers, Horton maintained. End of story.

As Horton's time at the lectern began winding down, Bullock started gathering his own thoughts in preparation for his final rebuttal, which would last approximately three minutes. He knew immediately that he should refocus the Court's attention on O'Connor's troubling exchange with the Connecticut lawyer. “I think the key to understanding their argument,” Bullock told the justices in summary, “is the answer to the question of, can you take a Motel 6 and give it to a fancier hotel? Their answer is yes. And that's what's really at stake here.”
59

“Our Longstanding Policy of Deference”

The Supreme Court normally takes at least several months to issue a ruling in a big case, particularly when the outcome is closely divided. The
Bullock team waited a full three months for the opinion in
Kelo,
and when it finally arrived on the morning of June 23, 2005, the second-to-last day of the 2004–2005 term, it came as a supreme disappointment to the libertarians. “We were hopeful but we knew it was going to be very close,”
60
Bullock recalled. Close it was. By a vote of five to four, the Supreme Court upheld New London's use of eminent domain for the purposes of economic development. And just as Bullock had feared, Kennedy joined the Court's liberals—Stevens, Breyer, Ginsburg, and Souter—in voting to allow the forced condemnations to proceed.

Ironically, Stevens, who had missed the oral argument due to his weather-delayed flight, wrote the majority opinion. “The disposition of this case,” he declared, “turns on the question of whether the City's development plan serves a ‘public purpose.' Without exception, our cases have defined that concept broadly, reflecting our longstanding policy of deference to legislative judgments in this field.”
61
Referring repeatedly to the Court's unwillingness to “second-guess” the city's determinations, Stevens maintained that it was up to the legislature, not the judiciary, to decide, “what public needs justify the use of the takings power.”
62

Bullock had also been right about O'Connor. Writing in dissent, she accused her colleagues in the majority of abdicating their constitutional responsibility to safeguard every word of the Constitution. The result of today's decision, she wrote, in an opinion joined by Chief Justice Rehnquist and Justices Scalia and Clarence Thomas, “is to wash out any distinction between private and public use of property—and thereby effectively delete the words ‘for public use' from the Takings Clause of the Fifth Amendment.”
63

As he often does, Justice Thomas also filed a solo dissent in which he laid out an even stronger critique of the majority opinion than the one offered by his fellow dissenters. He pulled no punches here. Poor and minority neighborhoods will bear the brunt of this decision,
Thomas declared, echoing the arguments made in the NAACP brief, both because those neighborhoods are the most likely to be targeted by the government for “renewal” and because the people who live in them lack the political clout to stop it. “If ever there were justification for intrusive judicial review of constitutional provisions that protect ‘discrete and insular minorities,'” Thomas wrote, quoting from Footnote Four of the
Carolene Products
opinion, “surely that principle would apply with great force to the powerless groups and individuals the Public Use Clause protects. The deferential standard this Court has adopted for the Public Use Clause is therefore deeply perverse.”
64
Thomas left no doubt that if it were up to him, both
Kelo
and
Berman
would have come out the other way.

“I'm Sorry”

As news of the opinion spread, the outcry against the Court's ruling was fast and furious. Democratic Representative Maxine Waters of California, for instance, an outspoken liberal, called
Kelo
“the most un-American thing that can be done.” Her Republican colleague Tom DeLay of Texas, normally an ideological opponent, offered a similar critique. “The Supreme Court voted last week to undo private property rights and to empower governments to kick people out of their homes and give them to someone else because they feel like it,”
65
DeLay fumed. National polls would later echo that initial negative reaction. According to a 2008 Associated Press/National Constitution Center poll, for instance, 87 percent of Americans said they were opposed to the government's having “the power to take people's private property in the interests of redeveloping an area.”
66

“It really was devastating to come that close and to not prevail,” IJ president Chip Mellor later said, but he was also determined to capitalize on the public outrage. “So I came in the next day and said we
are going to get space at the National Press Club and we are going to hold a news conference launching a national initiative to secure greater constitutional protection in all fifty states. And we did.”
67
To date, that post-
Kelo
campaign has helped spark legislative reform in more than forty states. At the same time, IJ has continued to press its property rights arguments in state courts under the respective state constitutions. Among the fruits of that litigation strategy was a unanimous 2006 ruling by the Ohio Supreme Court that explicitly repudiated
Kelo
and declared the seizure of private property for the purpose of economic development to be unconstitutional in the Buckeye State.
68

On the national level, meanwhile,
Kelo
quickly became a new talking point in the debate over the courts, even emerging as a new litmus test for judicial candidates. Since 2005, every Supreme Court nominee has faced sharp questioning about the case from Senate Republicans, who also typically use the opportunity to call for
Kelo
's reversal. During Sonia Sotomayor's 2009 confirmation hearings, for instance, Republican Charles Grassley of Iowa asked her repeatedly if she agreed with the outcome in
Kelo,
causing the future justice to visibly wilt under the pressure. “I can only talk about what the—the Court said in the context of that particular case and to explain that it is the context of the Court's holding,” Sotomayor told him in frustration. The best she could manage, she said, was that as a legal precedent “it's entitled to
stare decisis
effect and deference.”
69
Not exactly reassuring to
Kelo
's many critics.

Back in New London, meanwhile, the situation went from bad to worse. Despite prevailing at the Supreme Court, the development project that was supposed to entice Pfizer and provide “appreciable benefits to the community”
70
(in the approving words of Justice Stevens's majority opinion) was never built, and in November 2009 Pfizer announced that it was closing shop and pulling out of New London entirely. As for Fort Trumbull, the razed neighborhood was never
redeveloped and continues to stand empty today. In fact, in the aftermath of Hurricane Irene in 2011, New London officials encouraged city residents to use Fort Trumbull as a dumpsite for storm debris.

But that's not the worst of it. As
Hartford Courant
reporter Jeff Benedict revealed in September 2011, Connecticut Supreme Court Justice Richard N. Palmer, one of the four justices who voted against the property owners and thus directly precipitated their appeal to the U.S. Supreme Court, personally apologized to Susette Kelo at a May 2010 event at the New Haven Lawn Club. “Justice Palmer turned to Susette, took her hand and offered a heartfelt apology,” Benedict reported. “Tears trickled down her red cheeks. It was the first time in the 12-year saga that anyone had uttered the words ‘I'm sorry.'”
71

A Libertarian Lesson

Today,
Kelo
serves as a rallying cry for the libertarian legal movement, an object lesson for judges, lawyers, and politicians about the dangers of judicial deference. And that lesson has not been lost on the American right. Indeed, conservatives now overwhelmingly oppose
Kelo
and favor its repeal in a future case. When it comes to the judicial protection of property rights, the conservative legal movement has gone libertarian.

Six

Guns, Lawyers, and Butchers

It's hard to imagine a greater victory for the conservative legal movement than
District of Columbia v. Heller,
the 2008 ruling in which the Supreme Court struck down Washington, D.C.'s handgun ban. Not only did the Court, for the first time in its history, recognize the Second Amendment as securing an individual right to keep and bear arms, it did so in the language of “originalism”—the school of thought, increasingly popular among conservatives, that says the Constitution must be interpreted according to its original meaning at the time it was adopted.

It was therefore surprising when a leading conservative jurist, Judge J. Harvie Wilkinson III of the U.S. Court of Appeals for the Fourth Circuit, once rumored to be on George W. Bush's short list of potential Supreme Court nominees, denounced the
Heller
opinion as a shameless piece of right-wing judicial activism.
Heller,
Wilkinson wrote in the
Virginia Law Review,
“encourages Americans to do what conservative jurists warned for years they should not do: bypass the
ballot and seek to press their political agenda in the courts.”
Heller
may be “a triumph for conservative lawyers,” Wilkinson granted. “But it also represents a failure—the Court's failure to adhere to a conservative judicial methodology in reaching its decision.”
1
Wilkinson even compared Justice Antonin Scalia's majority opinion in
Heller
to the Supreme Court's abortion-affirming opinion in
Roe v. Wade,
which is not exactly the nicest thing you can say to a guy like Scalia.

But Wilkinson did have a point. Scalia's ruling in
Heller
marched the justices of the U.S. Supreme Court straight into the political thicket of gun control, overturning the regulatory consensus that had been reached by the local officials directly accountable to Washington's residents. It was nobody's idea of judicial deference.

Wilkinson also had a point about methodology.
D.C. v. Heller
was not a conservative case—it was a libertarian case. The original lawsuit that sparked the ruling was conceived, bankrolled, and executed entirely by a small team of libertarian lawyers closely associated with two of the libertarian legal movement's principal organizations, the Institute for Justice and the Cato Institute.
Heller
was a triumph of libertarian legal methodology, and a repudiation of the deferential conservative alternative.

Furthermore, the conservative National Rifle Association (NRA), which tends to get credit for the ruling in many mainstream accounts, actually had nothing to do with launching the case, and in fact initially opposed the lawsuit and even tried to derail it for being too risky and aggressive. It was the libertarians who pushed forward, in the face of both liberal and conservative opposition, convincing the Supreme Court to strike down a major gun control law while simultaneously issuing a sweeping and historic affirmation of the Second Amendment's place in America's constitutional order.

With
D.C. v. Heller,
the libertarian legal movement fully emerged as an independent force to be reckoned with.

Two Libertarians Walk into a Bar

It was June 2002 and a pair of young lawyers from the Institute for Justice, Clark Neily and Steve Simpson, were drinking beer and talking guns at a Northern Virginia bar called Carpool. “We got to talking about the
Emerson
decision and what significance it might have for the future of the Second Amendment,”
2
Neily recalled.
Emerson
refers to
United States v. Emerson,
a surprising 2001 opinion by the U.S. Court of Appeals for the Fifth Circuit in which that court, in a break with several other federal circuits, held that the Second Amendment secured an individual—rather than a collective—right to keep and bear arms.

The clash over interpretation stemmed from the text of the amendment itself. “A well regulated Militia, being necessary to the security of a free State,” the Second Amendment reads, “the right of the people to keep and bear Arms, shall not be infringed.” Does that language protect an individual liberty, just as its neighboring amendments in the Bill of Rights secure individual liberties? Or does the prefatory clause, “a well regulated militia, being necessary to the security of a free State,” limit the scope of “the right of the people,” and effectively protect only a collective right to keep and bear arms that is tied to service in a state militia?

This is no mere squabble over linguistics. If the Second Amendment protects only a collective right tied to militia service, that means the right to own a gun for hunting or sport shooting is not protected by the amendment, nor is the right to own a gun for the purpose of self-defense. In other words, the collective-right interpretation opens the door to a vast range of gun control measures, including prohibition. By contrast, the individual-right interpretation places a constitutional check on many such regulations and basically invites judicial review of all gun control laws. The legal debate over the meaning of the Second Amendment therefore has
profound real-world implications for the hot-button debate over guns in America.

For much of the twentieth century, the collective-right view proved dominant in elite legal circles. But that began to change in the last thirty years, first as conservative and libertarian scholars began researching more deeply into the amendment's text and history, and then as prominent liberal academics followed suit. A major turning point occurred in 1989 when University of Texas law professor Sanford Levinson, a leading liberal scholar, published an essay in the prestigious
Yale Law Journal
titled “The Embarrassing Second Amendment.” The embarrassment, Levinson argued, came from the legal left's refusal to take the Second Amendment seriously. “I cannot help but suspect that the best explanation for the absence of the Second Amendment from the legal consciousness of the elite bar,” he wrote, “is derived from a mixture of sheer opposition to the idea of private ownership of guns and the perhaps subconscious fear that altogether plausible, perhaps even ‘winning,' interpretations of the Second Amendment would present real hurdles to those of us supporting prohibitory regulation.”
3

Eleven years later, Harvard law professor Laurence Tribe, a respected scholar and teacher whose former students include a young Barack Obama, amended the new third edition of his legal treatise
American Constitutional Law
to officially endorse the individual-right interpretation of the Second Amendment. This was a marked change from the two previous editions, where Tribe had accepted the collective-right view. “My conclusion came as something of a surprise to me, and an unwelcome surprise,” Tribe admitted to the
New York Times
after the third edition came out. “I have always supported as a matter of policy very comprehensive gun control.”
4

One year later, the Fifth Circuit came down with its
Emerson
decision, drawing heavily on this growing scholarly consensus to conclude that the Second Amendment does indeed protect an individual right
and must therefore be recognized as a full-throated member of the Bill of Rights.

That ruling, Clark Neily explained, was “the catalyst for bringing what became the
Heller
case.” As he and Steve Simpson sat drinking their Yuenglings and talking guns that night at happy hour, they both agreed that “the issue was very likely on a short track to the Supreme Court.” For one thing, the federal circuits were now split on a major constitutional question. For another, Neily explained, “
Emerson
basically inspired criminal defense attorneys all over the country to begin asserting Second Amendment defenses to gun charges in cases where they probably wouldn't have done so otherwise. So you have this tidal wave of Second Amendment litigation, mostly on the criminal side.”
5
Neily and Simpson both felt that the last thing they wanted to see was a criminal gun defendant reach the Supreme Court before “a carefully constructed civil rights test case.” At that point in the conversation, Neily said, “the light went on and we looked at each other and said, ‘Well, jeez, we should do it.'” And so they did.

As senior attorneys at the Institute for Justice, the two men already carried heavy caseloads. But that was no deterrent in the face of potentially making legal history. However, because the Institute for Justice does not litigate gun rights cases, this lawsuit would have to be launched on their own time. Their boss, Chip Mellor, signed off on Neily's pursuing the case, but because Simpson had only recently joined the firm, Mellor preferred to keep him working exclusively on IJ litigation. So Neily got to work. His first, and perhaps most consequential, step was to enlist the perfect ally to help him transform a barroom brainstorming session into a landmark Supreme Court decision.

Robert A. Levy spent twenty-five successful years in business before deciding to devote his time to constitutional scholarship and libertarian legal advocacy. To that end, the forty-nine-year-old tech entrepreneur entered law school at George Mason University in 1991.
After graduation he went on to clerk for Judge Royce Lamberth of the U.S. District Court in Washington, D.C., clerked once more for Judge Douglas Ginsburg of the U.S. Court of Appeals for the District of Columbia Circuit, and from 1997 to 2004 served as an adjunct law professor at Georgetown. These days, Levy serves as chairman of the board of the Cato Institute. Back in 2002, he was a senior fellow at Cato's Center for Constitutional Studies.

Neily and Levy first met when they clerked together for Judge Lamberth on the D.C. District Court, and in fact it was Levy, who also sits on the board of the Institute for Justice, who originally introduced Neily to his future bosses at IJ. “I ran the idea for a Second Amendment case by Bob,” Neily explained, “and Bob said, ‘I think it's a great idea. Let me know what you need from me. We should do it.'” A self-made millionaire, Levy would fund the litigation all the way through to the U.S. Supreme Court.

“Sympathetic Clients, Outrageous Facts, Evil Villains”

Although it was not technically an Institute for Justice case, the lawsuit that became
District of Columbia v. Heller
has all the hallmarks of the IJ approach. As IJ co-founder Chip Mellor likes to say, every Institute for Justice case features “sympathetic clients, outrageous facts, evil villains.”
6
Thanks to careful early planning by Neily and Levy, this case would have all three elements in spades. “Anytime you are trying to chart new territory in Supreme Court jurisprudence,” Neily said, “you want to look for the most egregious law you can find. And it turned out D.C. actually had the most sweeping ban on gun ownership in the history of the United States.” In addition to imposing a total ban on handguns, D.C. also required that all shotguns and rifles be legally registered and kept inoperable while inside the home, meaning that the guns must be unloaded and
also either disassembled or kept under a trigger lock. “And there was no exception for self-defense,” Neily emphasized. Put differently, if you lived in a dangerous neighborhood and were forced one day to load your rifle and use it in self-defense against a violent intruder inside your residence, you faced the risk of criminal prosecution for violating D.C.'s gun laws. “What you were really allowed to own was a club that looked like a gun or rifle but you could never put a round in the chamber,” Neily said.

That took care of the outrageous facts and the evil villains. Now they needed to find the sympathetic plaintiffs. “We spent the spring and most of the summer of 2002 getting the word out that we were putting together a Second Amendment challenge and we were looking for plaintiffs,” Neily explained. With the help of another Cato Institute staffer and fellow lawyer, Gene Healy, they ultimately interviewed some three dozen potential candidates before winnowing the list down to the six individuals who would appear on the original legal complaint.

Among those six was Dick Heller, a white D.C. special police officer contracted by a private firm to provide armed security at the Thurgood Marshall Federal Judicial Center in Washington. A gun rights advocate, Heller found it preposterous that the District trusted him with a weapon at work but then refused to allow him to defend himself with an operable gun at home. Another early plaintiff was Tom Palmer, an openly gay man and a colleague of Levy's at the Cato Institute. Years earlier in California, Palmer had nearly been killed by a mob of homophobic skinheads. The gang only dispersed when he produced a handgun from his backpack and threatened to shoot.

But the original lead plaintiff in the case was an African American woman named Shelly Parker. A self-appointed community activist, Parker had made enemies among the local drug dealers by repeatedly confronting them and threatening to call the police when she saw them at work in her neighborhood. Those bold actions resulted in
several threats on her life, including one night when a local thug tried to kick his way into her apartment, screaming, “Bitch, I'll kill you!” After that, Parker wanted to keep a gun at home for self-defense.

“Those were the kinds of plaintiffs that we put together for the challenge,” Neily explained, “and we absolutely made clear that those were the kind of people that we were asserting a Second Amendment right to own a gun for.” What's more, “we essentially put the onus on the people who disputed that right to explain what the Tom Palmers and Shelly Parkers of the world are supposed to do if they ever face those circumstances again in a place like the District of Columbia.”

The NRA Comes Calling

Founded in 1871, the National Rifle Association is America's oldest and most famous organization devoted to promoting and defending gun ownership. It therefore came as no surprise when the NRA took an interest in the Levy team once the news of their impending Second Amendment lawsuit began filtering through the conservative and libertarian legal network. What is surprising is the form that interest took.