Overruled (23 page)

In August 2002 Levy received a phone call from Nelson Lund, who then held the NRA-endowed Patrick Henry Professorship of Constitutional Law and the Second Amendment at George Mason University Law School. Lund asked him for a meeting. So Levy and Neily sat down at the Cato Institute with Lund and a second NRA-affiliated lawyer, former Reagan Justice Department official Charles Cooper. Those two men brought a message from the NRA: Drop the case. “They felt the NRA had an incremental litigation strategy that was still the best way to proceed,” Neily recalled, “and they really didn't think that we should proceed with our lawsuit. We had a cordial but frank exchange of views on that. We didn't agree.” A major sticking point centered on the post-
Emerson
legal landscape. Levy and
Neily emphasized the flood of recent criminal litigation surrounding the Second Amendment and wanted to know if the NRA had “a plan for preventing a criminal from getting to the Supreme Court first and asserting a Second Amendment defense to some gun charge, because that of course would be a much less desirable setting,” Neily explained. “And they didn't have a plan, they just sort of assured us that that wasn't going to happen.” The Levy team made clear that they were committed to going forward with the case, and that they would be doing so on their own terms, not on the NRA's.

In the meantime, Neily had become “bogged down”
7
in several cases at the Institute for Justice, prompting Levy to propose adding one more lawyer to the team who would be responsible for taking the lead in court. That lawyer was Alan Gura, a rising young litigator and former Institute for Justice clerk. “I probably identified as a libertarian by the time that I went to work at the Institute for Justice as a second year law student at Georgetown,” Gura recalled. “It was a revelation to work with those attorneys and to learn about some of these issues. It really spoke to me.”
8

The Levy team offered Gura what Neily jokingly referred to as “a very discount rate,” though it was understood that if the case did reach the Supreme Court, it would be Gura's case to argue. He happily signed on. A little more than a month later, in February 2003, the three lawyers filed their initial complaint at the D.C. District Court, listing Shelly Parker as the lead plaintiff and Dick Heller, Tom Palmer, and three others as co-plaintiffs. The groundbreaking Second Amendment case of
Parker v. District of Columbia
was now officially underway.

The NRA Fires Back

The Levy team got their second unpleasant surprise from the NRA a few weeks later when the organization funded its own legal challenge to
the D.C. gun laws, a case known as
Seegars v. Ashcroft.
As the case name suggests, the NRA-backed suit was filed not only against the District of Columbia, but also against the Department of Justice (DOJ), since DOJ lawyers (who then reported to Attorney General John Ashcroft) technically enforce local laws in the District. “We thought that was a major tactical blunder,” Neily said. Essentially, the NRA-backed suit “made this really inexplicable decision to go to court against the junior varsity and the varsity, represented by the DOJ lawyers.”

Indeed, it turned out to be a fatal mistake for the NRA side, and nearly proved fatal to the Levy team as well. That's because as the two cases moved forward in court, the DOJ lawyers came up with the idea of resisting the NRA-backed suit on the grounds of a legal doctrine known as “standing.” Basically, because D.C. officials had not technically denied anyone a gun license, the NRA-backed plaintiffs had suffered no concrete injury and therefore had no standing to bring suit. The federal court accepted that argument and threw out the NRA-funded challenge. D.C.'s lawyers, by contrast, had not thought to mount that particular defense on their own.

In the meantime, however, injury was added to insult when the
Seegars
team moved to have its case consolidated with the
Parker
case, a move the Levy team saw as tantamount to a hostile takeover attempt by the NRA. If successful, consolidation would have forced the two sides to cooperate and work as a single team—a surefire recipe for internal conflict and perhaps even the implosion of the case. “They tried to take their highly defective case and glom it on to our very clean, rifle-shot case,” Neily complained, the frustration still evident in his voice. That was the final straw. “Derail, undermine, sandbag, I think all of those are fair,” he said. “I think they were absolutely trying to sandbag the case.”
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Fortunately for the Levy team, the federal court refused the motion to consolidate the two cases.

Alan Gura was equally frustrated by the NRA's attempts to muscle in on the libertarians. “The NRA is an organization that, whatever it thinks about the Second Amendment—and I think they are sincere, they do actually care about the Second Amendment as they conceive it—holds the Second Amendment as a secondary concern,” he said. “The organization's primary concern is to maintain and promote itself, to maintain its brand, and to make sure that when people think ‘guns' they think ‘NRA.' And they are very successful at that.”
10
For its part, the NRA has consistently maintained that its only concern was putting together the best possible case against the D.C. gun laws.

To make matters worse for the libertarians, the DOJ's standing argument had by then worked its way into the
Parker
case, prompting the U.S. Court of Appeals for the District of Columbia Circuit to give the boot to five of the Levy team's six plaintiffs, including original lead plaintiff Shelly Parker. Only Dick Heller, the D.C. special police officer, was found to have legal standing to challenge D.C.'s gun laws. Why? Because Heller, following the sage advice of his friend and fellow gun rights enthusiast Dane von Breichenruchardt, had gone down to city hall for the sole purpose of receiving a slip of paper officially denying him a gun license. “He filled out a completely meaningless piece of paper,” Neily later marveled. “But the D.C. Circuit found that futile act was sufficient to confer standing on Dick Heller but none of the other plaintiffs.”
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Parker v. District of Columbia
would therefore become
Heller v. District of Columbia.
And the legal battle was about to hit the big time.

“The Right of the People”

The District of Columbia advanced two principal arguments in defense of its handgun ban and related gun control provisions. First, it said the
Second Amendment only protected a right that was directly related to militia service. In essence, it was the collective-right interpretation. As evidence, D.C. pointed to the wording of the amendment, with its references to the militia and the bearing of arms, both of which are military concepts. Taken as a whole, the District of Columbia argued, the text and history of the Second Amendment precludes the constitutional recognition of a private right to own guns for non–militia-related purposes. Second, D.C. maintained that under any reading of the Second Amendment, its laws still passed muster because they were reasonable regulations enacted by duly elected officials responding to local conditions. Because the city faced high rates of gun violence, the government's lawyers maintained, it had perfectly rational reasons to outlaw handguns and impose other restrictions. In short, D.C.'s gun control judgments were entitled to significant deference by the courts.

The Levy team made precisely the opposite arguments, stressing that the text and history of the Second Amendment pointed overwhelmingly toward the existence of an individual “right of the people” to keep and bear arms for purposes of self-defense. Nor did the libertarians find anything reasonable about D.C.'s total ban on handguns and its effectively total ban on all operable long guns within the home.

To the dismay of District of Columbia officials, the D.C. Circuit sided with the legal challengers, ruling on March 9, 2007, that “the Second Amendment protects a right of individuals for private use.” As for the government's reasonableness claim, the D.C. Circuit rejected that argument as “frivolous.”
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It was a definitive win for the Levy team and for the gun rights community at large.

The next move now rested in the hands of the District. If it appealed the loss, the U.S. Supreme Court was virtually guaranteed to take the case. “We spent several months wondering whether the D.C. government would go for review in the Supreme Court,” Neily recalled. “We were walking on eggshells for most of that summer of
2007 waiting to see what they would do.”
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Unlike most lawyers who win a major victory in federal appeals court, Neily, Levy, and Gura wanted the losing side to file an appeal. Indeed, from the moment the case was first conceived at that June 2002 happy hour, the whole point had been to reach the Supreme Court. They had no interest in stopping short of total victory.

On September 4, the District of Columbia granted the libertarians their wish by asking the Supreme Court to take the case. The Levy team promptly responded, seconding the District's request. Both sides had now asked the Supreme Court to step in and definitively settle the question of whether or not the Second Amendment secured a personal right to keep and bear arms. On November 20, the Court accepted this dual invitation and agreed to hear arguments the following year in
District of Columbia v. Heller.

“A Libertarian Ideal”

“We will hear argument today in case 07–290,
District of Columbia v. Heller,
” declared Chief Justice John Roberts on the morning of March 18, 2008. The great constitutional showdown over the meaning of the Second Amendment had begun.

Up first at the lectern was Walter Dellinger, an experienced litigator and former acting solicitor general under President Bill Clinton, hired by the District of Columbia to argue its case. “Good morning, Mr. Chief Justice, and may it please the Court,” Dellinger began. “In the debates over the Second Amendment, every person who used the phrase ‘bear arms' used it to refer to the use of arms in connection with militia service and when Madison introduced the amendment in the first Congress, he exactly equated the phrase ‘bearing arms' with, quote, ‘rendering military service.'” The text and history of the amendment, Dellinger emphasized to the Court, were solidly on his side.

But the chief justice immediately pushed back. “If you're right, Mr. Dellinger, it's certainly an odd way in the Second Amendment to phrase the operative provision,” Roberts responded. “If it is limited to State militias, why would they say ‘the right of the people'? In other words, why wouldn't they say ‘state militias have the right to keep arms'?”
14

Justice Antonin Scalia soon joined in. “Why isn't it perfectly plausible, indeed reasonable,” Scalia said, “to assume that since the framers knew that the way militias were destroyed by tyrants in the past was not by passing a law against militias, but by taking away the people's weapons—that was the way militias were destroyed. The two clauses go together beautifully: Since we need a militia, the right of the people to keep and bear arms shall not be infringed.”
15

But Dellinger refused to accept those interpretations. “Even if the language of keeping and bearing arms were ambiguous,” he maintained, “the amendment's first clause confirms that the right is militia-related.”
16
As for the Levy team's assertion of a personal right to own a gun for self-defense, he later added, “that is a libertarian ideal. It's not the text of the Second Amendment, which is expressly about the security of the State; it's about well-regulated militias, not unregulated individual license.”
17

In the meantime, Justice Anthony Kennedy, widely seen as holding the decisive fifth vote in the case, offered his own interpretation of the Second Amendment, and it came as music to the ears of the Levy team. “In effect,” Kennedy said, “the amendment says we reaffirm the right to have a militia, we've established it, but in addition, there is a right to bear arms.”
18
A few minutes later, Kennedy followed up with a related argument, one that also rejected Dellinger's view that the Second Amendment was exclusively militia based. “It had nothing to do with the concern of the remote settler to defend himself and his family against hostile Indian tribes and outlaws, wolves and bears and grizzlies and things like that?”
19
Kennedy asked.

“Alan and I basically exchanged glances without turning our heads when Kennedy asked that question,” Clark Neily recalled, “because we both knew that we had won the case.” As the libertarian lawyers immediately understood, Kennedy “had just shown his hand.”
20

Dellinger also seemed to realize he wasn't making much progress with the Court's conservatives, so he soon switched to his second line of argument. “I think you ought to consider the effect on the 42 states,” he said, that “have adopted a reasonableness standard that has allowed them to sustain sensible regulation of dangerous weapons.”

But once again, the chief justice launched an immediate counterattack. “What is reasonable about a total ban on possession?” he asked the attorney.

“What is reasonable about a total ban on possession,” Dellinger fought back, “is that it's a ban only on the possession of one kind of weapon, of handguns, that's been considered especially—especially dangerous.”

“So if you have a law that prohibits the possession of books, it's all right if you allow the possession of newspapers?”
21
Roberts retorted. Dellinger had once again failed to gain traction with the Court's conservative justices.

“Some Very Intricate Standard”