by Damon Root
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.
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 mad
e 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.”9 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.”11 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.”12 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.”13 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 Amen
dment 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