The Oath: The Obama White House v. The Supreme Court

by Jeffrey Toobin

  Robert A. Levy was born in 1941 and grew up in modest circumstances in Washington, where his parents ran a hardware store. He went to college at American University, earned a PhD in business there as well, and went on to live the American dream. He founded a financial information and software firm, CDA Investment Technologies, and sold it for many millions of dollars in 1986. At that point, Levy thought carefully about what he would do with the second half of his life—and decided to start law school at the age of forty-nine. He chose to study at George Mason University, because it had a reputation for welcoming libertarian scholars and students. After graduating, Levy became a law clerk first for Royce Lamberth, of the federal district court in Washington, and then for Douglas Ginsburg, on the D.C. Circuit. (Levy may be the only law clerk in history who was older than the judges he clerked for. The security guards at the federal courthouse, noting Levy’s judicial bearing and formidable bald head, would often greet him by saying, “Good morning, Your Honor.” In chambers, Lamberth would put him in his place by reminding him to fill the water jugs in the jury box.)

  When Levy completed his clerkships, he brought the same entrepreneurial spirit to law that he had to business. He had a special interest in the Second Amendment, which was the subject of a great deal of scholarly attention at the time, even though he himself never owned a gun. The NRA-funded Academics for the Second Amendment had been churning out copy, and even several liberal academics, including Laurence Tribe, Akhil Reed Amar, and Sanford Levinson, had looked with some sympathy on the individual rights theory of the Second Amendment. And Justice Thomas’s concurring opinion in the Printz case had put the issue squarely on the Supreme Court’s agenda.

  There was also the matter of United States v. Emerson. The Brady bill made it a crime for individuals who were subject to domestic-violence protective orders to possess firearms. In 1999, a local court filed a protective order against Timothy Emerson, a doctor in Tom Green County, Texas, who was involved in a messy divorce. Later, a federal grand jury charged Emerson with violating the Brady bill, because he purchased a pistol while subject to the protective order. Emerson challenged the constitutionality of the law, on the ground that it violated the Second Amendment. A federal district court, relying heavily on Thomas’s opinion in Printz, concluded that the Second Amendment did confer an individual right to bear arms and threw out the indictment. In 2001, the Fifth Circuit reinstated Emerson’s indictment but again cited Thomas’s opinion in calling for a new understanding of the Second Amendment.

  The political momentum for a revived Second Amendment was building, too. By this point, John Ashcroft had become George W. Bush’s first attorney general. A longtime member and favorite of the NRA, Ashcroft gave a full official endorsement of the theory that the Second Amendment granted individuals a right to keep and bear arms. In a letter read at the NRA annual convention in 2001, Ashcroft announced that the federal government would now advocate the individual rights theory in all litigation. But Emerson was actually a poor vehicle for testing the limits of the Second Amendment, because the constitutional issue was so closely bound up with the matter of domestic violence. Not surprisingly, the justices declined to hear the Emerson case.

  Levy had clerked for Lamberth with a young lawyer named Clark Neily III, who then went to work for the Institute for Justice, a libertarian-leaning public interest law firm. (Levy was on the board.) Neily and a colleague, Steve Simpson, came to Levy with the idea of putting together a test case that would raise the Second Amendment issue for the Supreme Court. The scholarly articles, the Thomas opinion in Printz, the friendly Justice Department, the Emerson case—all suggested that the time was right. The problem was, the Institute for Justice didn’t do this kind of work. Neily and Simpson asked Levy to finance the case himself, and he agreed. Levy also hired Alan Gura, an aggressive young lawyer from Virginia, who happened to have an interest in the subject but no experience at all with constitutional litigation or the Supreme Court.

  The National Rifle Association was not amused by the attempt of Levy, Neily, Simpson (and later Gura) to horn in on what it considered its turf. Levy had a day job at the Cato Institute, the libertarian think tank in Washington, where he later became chairman of the board. One day he was visited there by Nelson Lund, one of his professors at George Mason, whose chair had been endowed by the NRA, and Charles Cooper, a former Reagan-era Justice Department official with close ties to the conservative movement. Their mission was to talk Levy out of funding the case. The pair told him that the issue was a loser. The law-and-order conservatives then on the Court, including Rehnquist and O’Connor, would never buy a wholesale revision of the Second Amendment. A bad ruling could set back the cause for years. Better to leave the issue to the NRA and its experienced team of litigators.

  Conflicts over litigation strategy are common, even among ideological allies. Issues of timing, risk of adverse decisions, control of a case, and simple ego often lead to bitter feuds. The models for such ideologically driven legal crusades remain the work of Thurgood Marshall for civil rights in the forties and fifties and Ruth Bader Ginsburg for women in the seventies. Levy felt his work was in this tradition. Sometimes, though, it’s almost as important to know when not to bring a case as when to press forward. Advocates have at times gone to extraordinary lengths to keep cases away from the justices. In 1997, after a white schoolteacher was laid off to save the job of a black colleague, a coalition of civil rights groups raised $300,000 to settle the case two months before it was slated to appear on the Supreme Court docket.

  Especially on issues with high public profiles, the motives of the participants can be decidedly mixed. There were even conservatives who believed that at some level the NRA didn’t want a favorable decision from the Supreme Court on gun rights; they thought NRA fund-raising depended on maintaining a sense of perpetual risk. Levy thought the NRA was just protecting its turf, but his own fortune gave him the luxury of a single-minded focus: winning in the Supreme Court. Lund and Cooper denied that the NRA’s motives were anything less than pure, but Levy decided to stay the course with his case.

  Their best option, Levy’s team realized, was under their noses in Washington. The District of Columbia had the strictest gun laws in the nation, banning possession of handguns even in private homes for self-defense. Over the years, gun cases had foundered in part because they had unsympathetic plaintiffs. In 1939, Miller was a bank robber; many years later, Emerson was accused of threatening domestic violence. Those were not favorable settings in which to raise Second Amendment claims. Gura and the others wanted to avoid such problems from the start. They decided to pick their plaintiffs almost as if they were casting a movie.

  After months of research, the Levy team came up with six people who could, as a group, appeal to almost any judge. There were three men and three women, four whites and two blacks, five straight and one gay. The lead plaintiff, Shelly Parker, was an extremely charismatic African American woman. In February 2002, Parker had moved to the periphery of Capitol Hill and found her neighborhood overrun by drug dealers. She started a one-woman security patrol, walking the streets in an orange cap and reporting what she saw to the police. In response, drug dealers broke her car windows and drove into her back fence. She wanted a gun to protect herself and her home. Levy’s team entitled the case Parker v. District of Columbia.

  Despite all the careful planning, the case ran into a problem the team had not fully anticipated. For all that they were fighting to advance a conservative goal—gun rights—their case was still a kind of public interest litigation. Like civil rights plaintiffs, these six people were initiating a lawsuit in order to challenge a government action. Thanks to the conservatives on the Supreme Court, the legal rules on standing in such cases had been tightened a great deal in recent years. Applying those new rules, the D.C. Circuit held that the plaintiffs could not simply walk into the courtroom and demand a ruling on the gun control law. The circuit court said the plaintiffs had to have actually made an applic
ation for a gun license and been rejected in order to have standing to bring the case. This rule presented a catch-22. Under the D.C. law, you had to own a handgun first to apply for a permit—but it was illegal to buy a gun in Washington. Federal law, moreover, made it illegal to buy a gun in a state where you did not reside. So you needed a gun to apply for a license, but you couldn’t buy the gun in the first place.

  Five of the six plaintiffs (including Shelly Parker) had not applied for gun licenses, so the D.C. Circuit threw out their cases. But the litigation survived. The sixth plaintiff, Dick Heller, was a specially assigned District of Columbia police officer who helped protect the Federal Judicial Center. He was issued a gun to use at work, and he wanted to keep a private handgun at his home as well. Alone among the plaintiffs, Heller already had a gun, and he had actually sought a gun permit from the D.C. government and been denied. For that reason, the court found that only Heller had standing to bring the constitutional challenge to the law.

  But one plaintiff was enough. The D.C. Circuit adopted for the first time the individual rights theory. The court held that Heller had the right to “keep and bear arms” under the Second Amendment and struck down the local law. The lawyers for the District of Columbia asked the Supreme Court to review the decision, and the justices agreed to hear it. In the manner of such things, the case had taken years. Finally, on March 18, 2008, as the highlight of John Roberts’s third year as chief justice, the Supreme Court heard arguments in the case now known as District of Columbia v. Heller.

  The government of the District of Columbia hired Walter E. Dellinger III, the former acting solicitor general in the Clinton administration and a veteran of Supreme Court litigation, to defend the gun law in front of the justices. Dellinger started with what he thought was his strongest material—the words of the framers themselves in 1787. In these debates, “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,’ ” Dellinger said. “And even if the language of keeping and bearing arms were ambiguous, the amendment’s first clause confirms that the right is militia-related.”

  If the second clause of the amendment granted an individual right to bear arms, Dellinger was saying, then the first clause, the militia clause, would have no meaning at all—and the framers must have included the language for a reason. But Dellinger immediately ran into a problem with Anthony Kennedy, who would probably hold the swing vote.

  Kennedy said he thought Dellinger was right that the militia clause could not be “extraneous.” But that didn’t solve the problem. In Kennedy’s view, the two clauses were entirely separate and both valid. “In effect 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,” Kennedy said. Later in the argument, Kennedy made his point even more clearly: “And in my view [the second clause] supplemented [the first clause] by saying there’s a general right to bear arms quite without reference to the militia either way.”

  The debate continued in this vein as Dellinger, Gura, and Paul Clement, the solicitor general, argued the case. Clement expressed the Bush administration’s view that the Second Amendment protected an individual right and that the D.C. law was unconstitutional. The conversation rarely strayed from the eighteenth century. What did “bear” and “arms” mean to the framers? What did Blackstone, the English law scholar revered by the framers, think about the issue? The questions and answers reached an almost comic level of obscurity: “Do you think the Second Amendment is more restrictive or more expansive of the right than the English Bill of Rights in 1689?” … “If we’re going back to the English Bill of Rights, it was always understood to be subject to the control and limitation and restriction of Parliament.” … “That view was taken by William Raleigh in his 1828 treatise. Raleigh was, of course, a ratifier of the Second Amendment.” … “General Gage’s inventory of weapons seized from the Americans in Boston included some 1,800 or so firearms and then 634 pistols.”

  At one point, David Souter had the temerity to return the conversation to twenty-first-century Washington, D.C., the ostensible focus of the case before the justices. “Can we also look to current conditions like current crime statistics?” he asked Gura.

  “To some extent, Your Honor,” Gura answered, “but we have certainly—”

  “Well, can they consider the extent of the murder rate in Washington, D.C., using handguns?” Souter went on.

  Gura conceded the rate was high.

  Then Scalia jumped in, almost jovially: “All the more reason to allow a homeowner to have a handgun!”

  Scalia had good reason for cheer, because even before the Heller case was decided, the argument alone represented a singular triumph for him. Before Scalia joined the Court, the lawyers in a case like Heller would have argued, in a general way, about how to apply the values reflected in the Second Amendment to the modern world. The justices would have sought to define a contemporary meaning of the Constitution. In contrast, Scalia often said that he believed in a “dead” Constitution—that its meaning was set for all time at the moment of its creation. The argument in Heller showed how much Scalia’s originalist view had come to dominate the Court. When Scalia was appointed to the Court, twenty years earlier, there was simply no way that an argument would have dwelled at such length, and in such detail, on the text of the amendment or the intentions of the framers. Scalia had brought originalism to the Court, and he had come to define the terms of the debates, if not always to win them.

  The split in Heller was the familiar 5–4—with Stevens, Souter, Ginsburg, and Breyer in their customary losing position—but this time the surprise came from the chief justice. Instead of giving the opinion to Kennedy to keep him on board, Roberts asked Scalia to write for the majority. In his two decades as a justice, Scalia had few important majority opinions to his name. At first, his views were too eccentric for Rehnquist to trust him to keep a majority together. But the Court, and the country, had moved Scalia’s way, and now he reaped the reward.

  Scalia turned Heller into a textualist and originalist tour de force. Literally word by word, Scalia deconstructed the meaning of the Second Amendment, using the sources available to the framers of the Constitution. (He cited Blackstone eight times.) He went back to the Glorious Revolution of seventeenth-century England, to uncover the roots of the constitutional right. “And, of course, what the Stuarts had tried to do to their political enemies, George III had tried to do to the colonists,” Scalia wrote. “In the tumultuous decades of the 1760’s and 1770’s, the Crown began to disarm the inhabitants of the most rebellious areas. That provoked polemical reactions by Americans invoking their rights as Englishmen to keep arms. A New York article of April 1769 said that ‘[i]t is a natural right which the people have reserved to themselves, confirmed by the Bill of Rights, to keep arms for their own defence.’ ” In light of this history, which Scalia laid out in exhaustive detail, he concluded “the Second Amendment right is exercised individually and belongs to all Americans.”

  Scalia’s greatest tribute came not from his allies but from his adversaries, particularly Stevens. Of course, Stevens disagreed with Scalia about the meaning of the Second Amendment. “The Second Amendment was adopted to protect the right of the people of each of the several States to maintain a well-regulated militia,” Stevens wrote. “It was a response to concerns raised during the ratification of the Constitution that the power of Congress to disarm the state militias and create a national standing army posed an intolerable threat to the sovereignty of the several States.” But to make his argument, Stevens relied on the same kind of evidence, and the same style of argument, as Scalia did for the majority. “Neither the text of the Amendment nor the arguments advanced by its proponents evidenced the slightest interest in limiting any legislature’s authority to regulate
private civilian uses of firearms,” Stevens wrote.

  Stevens, too, was talking like an originalist. The true measure of Scalia’s success in Heller was that he had changed the terms of the debate. In the twentieth century, it was inconceivable that two justices would spend thousands of words excavating from seventeenth- and eighteenth-century sources the purported intentions of the framers. The Supreme Court did not operate that way in those days. Scalia changed that. It was left to Breyer to write the kind of dissent that the justices used to produce. He said the protections of the Second Amendment, even if Scalia was right about its origins, should not be absolute. Rather than look exclusively at the framers’ debates in 1787 in Philadelphia, Breyer examined the records of the City Council of the District of Columbia in 1976, when it passed the gun control law. The council concluded, “on the basis of extensive public hearings and lengthy research, that the easy availability of firearms in the United States has been a major factor contributing to the drastic increase in gun-related violence and crime over the past 40 years.” According to Breyer, it was not the place of the Supreme Court to “second-guess the Council in respect to the numbers of gun crimes, injuries, and deaths, or the role of handguns.”

  The ruling in Heller was announced on June 26, 2008, the last day of the term. As usual on the last day, the justices were tired and their nerves worn. Scalia’s voice was hoarse as he began, but he still could not resist going for a laugh. “Our opinion is very lengthy, examining in detail the text and history of the Second Amendment,” he told the hushed courtroom. “This summary that I’m giving will state little more than the conclusions. If you want to check their validity against the dissent’s contrary claims, you’ll have to read some 154 pages of opinions.”