by Marcia Coyle
The Scalia and Breyer opinions laid bare once again the great divide in their constitutional interpretation: the originalist versus the pragmatist.
During that afternoon in his chambers in July 2011, Scalia explained that he considered the Heller decision the greatest vindication of originalism “because not only did the majority apply an originalist approach, the dissenters foolishly tried to do the same thing. I thought we just utterly destroyed Justice Stevens’s attempt to display the contrary as an originalist matter.” But revealing a strong strain of cynicism, he added: “We won’t apply that reasoning in the next case. Very disappointing.”
Is Stevens an “originalist”? The term is somewhat misleading, he believes. Some people think it is the answer to every question, he said. He, like many judges, always looks to the original evidence, but believes it is not necessarily controlling.
Both Scalia and Stevens were strikingly confident in their views of the scope of the Second Amendment and the evidence they marshaled to support those views, even though historians themselves are divided on the meaning. Where the evidence is in equipoise, Stevens would say there are two powerful tiebreakers: deference to legislators responsible for policy decisions in this area and stare decisis. Scalia, however, sees no equipoise. “As far as being demonstrably correct on the history in Heller, I don’t even think it’s a debate,” he said.
For Scalia, the decision was not only the triumph of his originalist approach to the Constitution, but it also quieted skeptics who had said he was unable to forge majorities because of that approach. He not only had five votes; none of the five wrote separately to narrow or question any part of his ruling.
Advocates of originalism hailed the first part of Scalia’s opinion dealing with the threshold issue of what kind of right the Second Amendment protects. It was a true originalist opinion, they claimed, perhaps the most important and faithful exercise of that approach in modern history.
But some of those same advocates also criticized the latter half of Scalia’s opinion in which he approved of several types of gun control, for example, prohibiting possession by convicted felons, permitting gun-free zones in sensitive places such as schools and government buildings, and banning machine guns. They were critical because he offered no historical justification for the exceptions, only saying that will come later. And, they claimed, Scalia, while correct in the result, had provided little historical justification for invalidating the District’s handgun ban.
One of those individual right advocates, the Second Amendment legal scholar Nelson Lund of George Mason University School of Law, in a panel discussion during a Federalist Society convention, asked: “So, for instance, why does the Court say that the ban on handguns in Washington, D.C., is constitutionally impermissible but, as the Court suggests, a ban on machine guns would not be? Well, the Court says, ‘[h]andguns are the most popular weapon chosen by Americans for self-defense in the home, and a complete prohibition of their use is invalid.’ Machine guns, by contrast, are ‘dangerous and unusual weapons’ that are not in common use. But this isn’t originalism. It’s Living Constitutionalism. Modern conditions and modern preferences shape the scope of the Second Amendment’s meaning and protection.”6
Neily also was disappointed by the gun control exceptions. “He doesn’t cite any support for those,” he said of Scalia. “It seems like an unreflected bone. The language on sensitive places—you can imagine what a gaping opportunity that is. If you don’t like guns, everywhere is a sensitive place, outside of someone’s closet.” And Neily, of course, was disappointed with the dissents, calling Stevens’s view “fairly ludicrous” and Breyer’s dissent reducible to “I never needed a gun to defend myself and you’ll never need a gun to defend yourself.”
The decision also drew surprising criticism from two leading conservative appellate judges: J. Harvie Wilkinson of the U.S. Court of Appeals for the Fourth Circuit and Richard Posner of the Seventh Circuit.
Wilkinson, in a Virginia Law Review article, compared Heller to the Roe v. Wade abortion decision. He wrote: “Heller represents a triumph for conservative lawyers. But it also represents a failure—the Court’s failure to adhere to a conservative judicial methodology in reaching its decision. In fact, Heller 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 and Roe, he said, are guilty of the “same sins” in many important ways: “an absence of a commitment to textualism; a willingness to embark on a complex endeavor that will require fine-tuning over many years of litigation; a failure to respect legislative judgments; and a rejection of the principles of federalism.”7
Richard Posner, in a New Republic article, wrote that the decision “is questionable in both method and result, and it is evidence that the Supreme Court, in deciding constitutional cases, exercises a freewheeling discretion strongly flavored with ideology.”8
But most disappointed obviously was the District’s Mayor Fenty and his lawyer, Walter Dellinger. The decision led Dellinger to conclude that the Roberts Court was a “strikingly aggressive” Court. Even if evidence about the meaning of the Second Amendment was ambiguous and conflicting, he said, “Why not defer to the political branches of the government when you have a question settled for seventy years by a Supreme Court precedent, when there is not a great political chance that Congress is going to adopt any significant gun control legislation, and when most states have constitutional provisions that protect the right at least in theory? It takes a very aggressive Court to reach back seventy years and make a new issue out of this. It changed my view of the Court in the sense that it made me think this Court is willing to take very bold steps in the future.”
The decision ultimately offered little guidance to lower courts on how to determine whether a particular gun regulation runs afoul of the Second Amendment. When the Court recognizes a right, scholars say, it generally provides a standard of review. But Roberts suggested during oral arguments that it would not announce a standard. The Court, he said, did not have to get entangled in which of the typically three standards should apply in this case. And as Scalia wrote, it was enough for now to define the right protected. But after arguments in the case, during the conference and in the drafting, the justices actually were unable to agree on a standard of review.
Gura and Levy were very happy with the decision. “The decision is lucid, not ambiguous at all, and lays down a lot of useful guidance on a host of issues which of course the other side has no use for,” said Gura. “I thank Mayor Fenty every day for petitioning for cert.”
As of roughly 10:30 am on that June 26, 2008, the Second Amendment applied only to the District of Columbia. The Second Amendment is part of the Bill of Rights, which was intended to protect citizens from actions by the federal government. Over the years, most of the Bill of Rights has been applied through a judicial process known as “incorporation” to actions by state governments as well as to actions by the federal government. The Second Amendment was one of the few remaining amendments unincorporated.
After the decision was announced and Roberts gaveled the session to a close, Gura, Neily, and Levy left the courtroom and walked downstairs to the clerk’s office to get paper copies of the decision. Gura flipped through the opinion and saw Scalia’s footnote 23, which said the Court did not reach the question of incorporation of the Second Amendment, but Scalia suggested it might be incorporated under the Court’s modern incorporation analysis. As the three men left the building to face television cameras on the plaza, Gura got on his cell phone and called a lawyer in Chicago, David Sigale. He told Sigale simply: “File it.”
In April after the arguments in Heller, Gura had flown to Chicago and signed Otis McDonald, a seventy-six-year-old South Side Democrat whose home had been broken into three times, as his lead client in a challenge to Chicago’s handgun ban. The lawsuit directly raised the question of whether the Second Amendment was incorporated against the
states. Phase two of a strategy hatched six years earlier by Levy, Neily, and Gura had begun; but this time, Gura’s new case—McDonald v. City of Chicago—would move swiftly to the Supreme Court, arriving just one year later, in 2009.
Three weeks after the Heller decision, the board of the Village of Morton Grove, Illinois, threatened with legal action by the National Rifle Association, voted 5–1 to repeal its twenty-seven-year-old handgun ban. In 1981, Morton Grove, a residential suburb of Chicago, became the first city or town in the nation to ban handguns. The ban had survived three separate legal challenges, including one that led to the U.S. Supreme Court in 1983.9
The village board repealed its ban even though the Roberts Court had yet to decide whether the Second Amendment applied to the states.
Repealing the ban was “just common sense,” said Dan Staackmann, village president. “With the economic downturn and what litigation costs, there’s no sense having a law on your books that if you go to court, you’re going to lose. If there was litigation against the village, I’m looking to spend $50,000 on something I’m going to lose? Ridiculous.”10
The village’s handgun ban, he added, had been “a noble experiment.”
PART 3
MONEY
CHAPTER 10
“I’m an ultimate Reagan guy. We have a very simple philosophy: we win, you lose.”
—David Bossie, president of Citizens United, 2011
At the beginning of August 2008, one month after the Supreme Court ended the national debate over the meaning of the Second Amendment, Barack Obama was just weeks away from his historic nomination as the Democratic candidate for president. GOP senator John McCain of Arizona soon would grasp the Republican nomination that had eluded him in 2000. And a small, conservative activist organization in Washington, D.C., named Citizens United headed into the Supreme Court.
The non-profit Citizens United, operating out of a sparsely decorated Pennsylvania Avenue row house, one Metro stop away from the Court itself, planned to file a challenge that neither it nor anyone else that summer could have foreseen would begin to transform the nation’s election landscape.
The justices’ final decision in the case would not come until 2010, but when it did, money, the lifeblood of American political campaigns, soon afterwards would erupt like a gusher into congressional and presidential election contests. The Roberts Court’s ruling would deepen an open vein of cynicism about the Court in a large segment of the American electorate, a wound first inflicted by the Rehnquist Court’s 2000 decision in Bush v. Gore, which handed the presidency to George W. Bush.
And as with the Seattle-Louisville school cases, the outcome of this high-stakes challenge would be the result primarily of one critical change in the Court’s personnel: Justice Samuel Alito Jr. as successor to Justice Sandra Day O’Connor.
None of that was on the mind of Citizens United president David Bossie on August 14, 2008. On that day, he took his legal battle with the Federal Election Commission (FEC) over ads and a movie that he had produced critical of presidential candidate Hillary Clinton to the next level—the U.S. Supreme Court.
Like the great constitutional clashes involving race and schools, guns and the Second Amendment, and the later titanic one over health care and the commerce clause, the legal architects of this fight were smart conservative lawyers who were particularly attuned to the ways of the conservative-dominated Roberts Court. This time, however, the battleground would be the First Amendment.
Citizens United’s Bossie is an energetic and gregarious self-described Reaganite, who had earned his own measure of fame in the political environs of Washington, D.C., well before Citizens United’s case hit the Supreme Court. He joined Citizens United in 1991 after doing campaign work for Republicans such as Senator Bob Dole. Back then it was essentially a two-man operation. During the 1992 presidential campaign, he and Citizens United’s president Floyd Brown (who created the devastating Willie Horton campaign ad against 1988 Democratic presidential candidate Michael Dukakis) went after candidate Bill Clinton in a paperback book entitled Slick Willie. After the election, they continuously probed the Clintons, particularly their Whitewater real estate investment, and fed numerous documents and tips to news media and congressional Republicans.
Because of their Whitewater efforts, Bossie said, he landed a position as an investigator for the Senate committee investigating Whitewater in early 1995. When that ended, he moved over to the House Government Reform and Oversight Committee as chief investigator. “I headed up all their investigations—the White House travel office, the Vince Foster suicide,” he recalled.1
In 1998, House Speaker Newt Gingrich pressured Committee Chairman Dan Burton to fire Bossie because of Bossie’s release of selectively edited taped conversations between jailed Whitewater figure Webster Hubbell and his wife about billing irregularities at the law firm where Hubbell and Hillary Clinton had been partners. A statement by Hubbell that Clinton had “no idea” of the billing irregularities had been deleted. Bossie subsequently resigned.2
His critics and his fans during those years dubbed Bossie with a variety of positive and mostly negative monikers, including “political mudslinger,” “right-wing hitman,” “relentless sleuth,” and “renowned Republican dirty trickster.”
In 2000, Bossie returned to Citizens United as vice president. The organization says its mission is “to reassert the traditional American values of limited government, freedom of enterprise, strong families, and national sovereignty and security.” Citizens United started in 1988 and took as its first advocacy project a campaign against statehood for the District of Columbia. The project targeted Jesse Jackson, in particular, who had been elected the city’s “shadow senator,” accusing him of promoting his “personal left wing, anti-America agenda.”3 When Floyd Brown left to run the Reagan Ranch operation in California, the Citizens United board made Bossie the new president and chairman of the board.
Bossie’s right-hand man is vice president and general counsel Michael Boos, a longtime conservative activist. The small board of directors includes Brian Berry, a Texas Republican media strategist; Douglas Ramsey, a Seattle sports marketing executive; Ron Robinson, president of Young America’s Foundation, which calls itself the conservative movement’s principal outreach organization; Washington State GOP chairman Kirby Wilbur, also head of Americans for Prosperity-Washington, the state chapter of the conservative political advocacy group founded by the Koch brothers; and John Bliss, a Denver attorney who served as chief counsel to former GOP senator Hank Brown.
Citizens United has an annual budget of about $12 million, which is funded mostly by donations from individuals and a small portion by corporations. It also has a lobbying arm—American Sovereignty Project—whose stated goals include complete withdrawal from the United Nations and defeat of the treaty establishing the International Criminal Court; and it has a political action committee (PAC) funded by individual contributions.
The organization’s Supreme Court case had its roots in what Bossie describes as a “revelation” that he experienced in the spring of 2004. That May, the Cannes Film Festival awarded its highest prize to Michael Moore’s Fahrenheit 9/11, a documentary critical of President George W. Bush, the war on terror, and news media coverage. The film became the highest-grossing documentary of all time.
“You had this new film coming out and they launched it at a film festival to take the world by storm,” recalled Bossie. “It was an anti-Bush screed trying to influence the election. I woke up and said, ‘Why the hell don’t we do that?’ ”
There were at least several reasons: Citizens United did not know how to make a movie, was not sure it could afford it, and did not know anyone in Hollywood.
“We had a list of reasons as long as your arm on why it couldn’t be done,” he added. “On the other hand, I’m a political guy. When you’re running a campaign and your opponent puts up a thirty-second commercial against you, what do you do? Put up a thirty-second response!”
Bossie had not seen the movie, but he had seen the thirty-second commercials promoting it on television. The ads, he believed, were terrific, better than anything that the Democratic presidential candidate John Kerry had offered in his own campaign.
As he and Boos discussed making their own movie and ads, they decided first to go after Moore’s ads. In June 2004, they filed a complaint with the Federal Election Commission, charging that Moore’s ads violated the federal Bipartisan Campaign Reform Act of 2002, better known as the McCain-Feingold Act, after its two chief sponsors, John McCain of Arizona and Democratic senator Russell Feingold of Wisconsin.
The McCain-Feingold Act represented a long and hard-fought effort by its two named senators and reform groups to regulate and restrict the flow of special interest money into federal elections. Before Congress passed the act, federal law prohibited corporations and unions from spending their general treasury funds on certain election-related activities. Instead, corporations and unions were permitted to create separate political action committees, funded by individual contributions, which were limited in amount, and to spend those monies on election activities.