by Damon Root
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”
Up next at the lectern was Solicitor General Paul Clement, who was granted fifteen minutes of argument time by the Supreme Court to explain the George W. Bush administration’s views on this pressing constitutional question. The members of the Levy team were none too pleased by what Clement had to say.
“The Bush administration filed this incredibly waffling, on the whole very harmful brief written by then Solicitor General Paul Clement in which they actually urged the Supreme Court to reverse the D.C. Circuit, take that win off the board, and send it back to the district court,” Neily complained. “Very disappointing from an administration that claimed to believe in the Second Amendment.”22 Neily had good reason to feel disappointed. In May 2001, Bush’s attorney general, John Ashcroft, had thrilled the gun rights community when he detailed his views on the Second Amendment in a letter to the NRA’s executive director. “While I cannot comment on any pending litigation,” Ashcroft wrote, “let me state unequivocally my view that the text and the original intent of the Second Amendment clearly protect the right of individuals to keep and bear firearms.”23 That letter went out on government stationery bearing the official seal of the U.S. Department of Justice. Yet when the moment finally arrived to champion that view before the Supreme Court in Heller, the administration switched gears and adopted a tone of cautious moderation. The libertarians were simply too bold for the White House.
The main point of contention centered on the degree of judicial review that Second Amendment cases should trigger. In its 2007 ruling against the District’s gun laws, the D.C. Circuit seemed to endorse “strict scrutiny,” the most meaningful form of inquiry used by the courts to determine whether a regulation should be struck down. Clement, by contrast, was pushing for an “intermediate level of review,”24 and urging the Supreme Court to send Heller back down to the lower courts for reconsideration under that more lenient standard.
But Clement ran into trouble right away with the Court’s conservatives. Justice Scalia, for example, failed to see why the Second Amendment was entitled to anything less than strict scrutiny. “We certainly apply it to freedom of speech, don’t we?”25 he asked Clement. Why should the Second Amendment receive any less respect than the First Amendment?
Chief Justice Roberts raised a more fundamental objection. “I’m not sure why we have to articulate some very intricate standard,” Roberts said. “I mean, these standards that apply in the First Amendment just kind of developed over the years as sort of baggage that the First Amendment picked up. But I don’t know why when we are starting afresh, we would try to articulate a whole standard that would apply in every case?”26 The solicitor general had failed to persuade the Court to adopt his intermediate approach in Second Amendment cases.
“There Is a Role for Judicial Review”
When they arrived at the Supreme Court that morning, the three libertarian lawyers were feeling extremely confident. Nothing they heard during the ninety-seven-minute oral argument would shake that feeling. “To the contrary,” Clark Neily later said, the oral argument only reaffirmed their conviction in the strength and rightness of their case. “We had had five or six moot courts at that point with some of the top Second Amendment litigators in the country,” he recalled. “I don’t think there was a single question that came up during the oral argument that we hadn’t been over in those moot courts and worked out very meticulously what the best answer would be.”27
Standing at the lectern, Alan Gura faced the first of those questions courtesy of Justice Stephen Breyer. “Assume,” Breyer told him, “that there is an individual right, but the purpose of that right is to maintain a citizen army; call it a militia.” Under that assumption, Breyer asked, “Why isn’t a ban on handguns, while allowing the use of rifles and muskets, a reasonable or a proportionate response on behalf of the District of Columbia?”
“It’s unreasonable,” Gura responded, “and it actually fails any standard of review that might be offered under such a construction of individual rights because proficiency with handguns . . . proficiency in use and familiarity with the handgun at issue would be one that would further a militia purpose.”28
The next line of questioning came from Justice John Paul Stevens, who asked Gura if “to understand the amendment, you must pay some attention to the militia requirement?”
“Yes, Your Honor,” he answered. “We must.”
But before Gura could explain further, the chief justice cut him off. “So a conscientious objector who likes to hunt deer for food, you would say, has no rights under the Second Amendment,” Roberts interjected. “He is not going to be part of the militia. He is not going to be part of the common defense, but he still wants to bear arms. You would say that he doesn’t have any rights under this amendment?”
“No, Your Honor,” Gura quickly responded. The militia clause “informs a purpose,” he explained. “It gives us some guideposts as to how we look at the Second Amendment, but it’s not the exclusive purpose of the Second Amendment.”29 Indeed, Gura would argue, the personal right of self-defense was at the core of the amendment.
Justice Kennedy soon entered the fray, posing the same question he had asked earlier. “I want to know whether or not, in your view, the operative clause of the amendment protects, or was designed to protect in an earlier time, the settler in the wilderness and his right to have a gun against some conceivable Federal enactment which would prohibit him from having any guns?”
“Oh, yes. Yes, Justice Kennedy,”30 Gura happily replied. Once again, Kennedy had shown his hand.
Justice Stevens, meanwhile, began challenging Gura on his interpretation of Second Amendment history. As Stevens saw it, the amendment was clearly not intended to protect a personal right to gun ownership, a theme Stevens would later develop in his lengthy dissenting opinion. “You say that the right of self-defense was at the heart of the Second Amendment, in your view,” he said. Yet “some provisions suggested that and were not accepted by the authors of the Second Amendment.�
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“Which provisions were those, Justice Stevens?” Gura asked.
“Pennsylvania,” the justice responded.
“Pennsylvania’s provision was certainly influential,” Gura answered. Indeed it was. The primary voices raised in favor of adding the Bill of Rights to the new Constitution were those of the Anti-Federalists, the group that attacked the Constitution for granting too much power to the central government, and for providing too few protections for individual rights.31 Pennsylvania was an Anti-Federalist stronghold. “Remember, Madison was trying to mollify the Anti-Federalists’ concerns,” Gura explained. “The Second Amendment is clearly addressed to Pennsylvania and New Hampshire and New York and all these other States that were demanding a right to keep and bear arms, and there was always understood to be an individual right because that is the way in which the right was violated by the British in the war of revolution that occurred not too long ago.”32 The original meaning of the Second Amendment, Gura stressed, was on his side.
Gura faced his final challenge that morning from Justice Breyer, who circled back to the question of whether D.C.’s gun laws should count as reasonable regulations. “Do you want thousands of judges all over the United States to be deciding that kind of question rather than the city councils and the legislatures that have decided it in the context of passing laws?” Breyer asked, a sharp note creeping into his voice.
But Gura refused to accept Breyer’s deferential premise. “When a fundamental right is at stake,” the libertarian responded, “there is a role for judicial review.”33
“Shall Not Be Infringed”
And so there was. On June 26, 2008, the last day of the Supreme Court’s 2007–2008 term, the Supreme Court invalidated D.C.’s handgun ban, as well as its prohibition on keeping operable long guns within the home. “There seems to us no doubt, on the basis of both text and history,” declared the majority opinion of Justice Antonin Scalia, “that the Second Amendment conferred an individual right to keep and bear arms.”34
Pointing to numerous founding-era sources for support, Scalia argued that while the Second Amendment’s militia clause “announces the purpose for which the right was codified,” it “does not suggest that preserving the militia was the only reason Americans valued the ancient right; most undoubtedly thought it even more important for self-defense and hunting.”35 Indeed, Scalia argued, the right of self-defense is “inherent”36 in the Second Amendment, and was understood to be so by those who drafted the amendment and those who ratified it.
But that right is not unlimited, Scalia added. “Nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms,”37 he wrote.
“Undoubtedly,” Scalia concluded, “some think the Second Amendment is outmoded” in our modern world, “where well-trained police forces provide personal security, and where gun violence is a serious problem. That,” he continued, “is perhaps debatable, but what is not debatable is that it is not the role of this Court to pronounce the Second Amendment extinct.”38
Writing in dissent, Justice John Paul Stevens took issue with Scalia on every point. “The ‘right to keep and bear arms’ protects only a right to possess and use firearms in connection with service in a state-organized militia,”39 Stevens maintained. It had nothing to do with personal uses such as hunting or self-defense.
Stevens also faulted Scalia for his lack of judicial restraint. “Until today, it has been understood that legislatures may regulate the civilian use and misuse of firearms so long as they do not interfere with the preservation of a well-regulated militia,” he wrote. “The Court’s announcement of a new constitutional right to own and use firearms for private purposes upsets that settled understanding,” he complained, and “will surely give rise to a far more active judicial role in making vitally important national policy decisions.”40
In a footnote to that passage, Stevens pressed the point further, contrasting Scalia’s approach in Heller with the approach of New Deal era Justice Felix Frankfurter, who famously counseled the Supreme Court against entering the “political thicket”41 of legislative redistricting. Frankfurter was “by any measure a true judicial conservative,” Stevens wrote, and Scalia ought to follow his example. “Adherence to a policy of judicial restraint would be far wiser than the bold decision announced today,”42 Stevens declared.
“File It!”
In the three-month waiting period that fell between the oral argument and the opinion announcement in D.C. v. Heller, the three libertarian lawyers went their separate working ways. Levy returned to his job at the Cato Institute, Neily refocused his efforts at the Institute for Justice, and Alan Gura got to work on a new case. That new case of Gura’s would soon be known as McDonald v. City of Chicago, and in 2010 it would become his second gun rights victory before the U.S. Supreme Court.
“As we advanced through the D.C. circuit and on to the Supreme Court,” Gura recalled, “my thoughts turned to the next step because we felt there was a very good chance the Supreme Court would uphold the D.C. Circuit’s opinion, which meant that the Fourteenth Amendment issue would be instantly ripe.”43
That Fourteenth Amendment issue was a legal doctrine known as “incorporation.” Over the past century, the Supreme Court has gradually applied, or incorporated, most of the provisions in the Bill of Rights against state and local governments. In the 1925 case of Gitlow v. United States, for instance, the Court first held that “freedom of speech and of the press—which are protected by the First Amendment from abridgment by Congress—are among the fundamental personal rights and ‘liberties’ protected by the due process clause of the Fourteenth Amendment from impairment by the States.”44 The rest of the Bill of Rights gradually followed suit in later cases, though the right to keep and bear arms remained a notably unincorporated exception. Because Heller dealt exclusively with the Second Amendment’s role in the District of Columbia, which is a federal enclave, the question of state incorporation was not raised by the litigation. But with the Court now seemingly poised to recognize the Second Amendment as securing an individual right, Gura knew the time for a new incorporation case had arrived.
He began by selecting the local gun law he would seek to invalidate. “Everyone identified Chicago as the logical place,” Gura recalled, because that city’s handgun ban was virtually identical to the ban being challenged in Heller. “And if a handgun ban is unconstitutional,” Gura explained, “then that’s a very clean case. The only thing you have to discuss really is the Fourteenth Amendment.”
The next task was finding sympathetic clients willing to put their names to the legal challenge. By this point, Gura had formed a new relationship with a gun rights outfit called the Second Amendment Foundation (SAF), who expressed an eagerness to help fund and organize his next case. “They are a terrific client,” Gura stressed. “I can’t say enough positive things about them.” With the help of SAF, plus one other group, the Illinois State Rifle Association, Gura soon located four individuals ready and willing to challenge the Chicago handgun ban and several related gun control laws. His lead plaintiff would be seventy-six-year-old Otis McDonald, an African American grandfather, retired maintenance engineer, and lifelong Democrat. Like Shelly Parker in the District of Columbia, McDonald also had a habit of standing up to local drug dealers and therefore wanted to keep a handgun in his South Side Chicago home for self-defense. While the Supreme Court was still deliberating Heller, Gura flew to Chicago to meet with McDonald and his other future clients. “We had a good discussion and laid out the plan,” Gura said, “and decided to move forward such that the day that the Heller decision was announced we were able to immediately file our case in Chicago.”
When Heller fi
nally arrived on June 26, Gura was sitting in the courtroom next to Clark Neily, savoring their historic victory. But he was also preparing to spring into action. “On the way out of the building I stopped by the Public Information Office and we picked up copies of the slip opinion that the Court distributes,” Gura recalled. “And I skimmed it very rapidly to see what if anything the Supreme Court had said about the question of incorporation and the Fourteenth Amendment.”45
Gura soon found what he was looking for. In Footnote 23 of the Heller decision, Justice Scalia addressed the relevance of an 1876 opinion known as United States v. Cruikshank. At issue were the arrests of three Louisiana men for participating in a notorious event known as the Colfax massacre, in which a white supremacist mob in Louisiana murdered dozens of African Americans in what historian Eric Foner has called “the bloodiest single act of carnage in all of Reconstruction.”46 Federal authorities levied multiple charges against the defendants, including conspiring to violate the First and Second Amendment rights of their victims. But the Supreme Court threw out those convictions. Among other reasons, the Court held that the First and Second Amendments applied only against the actions of the federal government.
“With respect to Cruikshank’s continuing validity on incorporation, a question not presented by this case,” Scalia wrote in Footnote 23 of Heller, “we note that Cruikshank also said that the First Amendment did not apply against the States and did not engage in the sort of Fourteenth Amendment inquiry required by our later cases.”47 The implication was clear. Because Cruikshank “did not engage” in the Fourteenth Amendment jurisprudence now “required” by the Supreme Court, it was effectively a dead letter in First Amendment cases. It took no leap of imagination to see the same reasoning apply in the Second Amendment context. Footnote 23 “suggested very much that this is an open question and one that would need to be resolved,” Gura said. “There was nothing in the opinion obviously that precluded the Chicago litigation and in fact there was what appeared to be an invitation for it and a suggestion that it needed to be done. So I immediately called my co-counsel in Chicago, David Sigale, and said, ‘File it!’”48