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By June of that year, Parker’s car window had been broken, her security camera had been stolen, and a gang lookout rammed a car into her back fence. When the first news stories about the case appeared, one young drug dealer, physically imposing at over seven feet tall, allegedly shook her gate one night, shouting, “Bitch, I’ll kill you! I live on this block, too.” Parker thought it would be a good thing for her to have a firearm to protect herself in her home; D.C. law forbade her from doing so.
But, like four of the other original six plaintiffs, Parker was found by the Circuit Court of Appeals for the D.C.Circuit to lack legal “standing”—that is, actually suffering a direct injury under the law legitimate enough for her to legally challenge it. By March 2007, Dick Heller was the only plaintiff left. As many involved with the case would admit without wanting to stress it too much, Heller was probably the plaintiff they wanted least as a Second Amendment poster boy.
Heller isn’t a sweet lady trying to turn around a dodgy neighborhood; he’s an outspoken ideological activist seeking to push the federal government back within its constitutional bounds, and therefore (his lawyers fretted) potentially off-putting to judges, media, and citizens alike. One of his best friends, a thick, intense, walrus-mustachioed man named Dane vonBreichenruchardt, runs a small-scale political action group called the Bill of Rights Foundation, appears with Heller at most press conferences and events.
The best hook about Heller was his day job, as a trained and licensed special police officer contracted by a private firm to provide security services for the District of Columbia. For years, he carried a gun every day at the Thurgood Marshall Federal Judicial Center, yet he still had to turn over his sidearm and bullets at the end of each workday and go home, defenseless.
The city could hardly maintain that it was inherently unsafe for Dick Heller to possess or handle a weapon, since he does it every day as part of his job, and is deputized to do so by the city itself, background checks and all.
Heller knew his lawyers weren’t comfortable with him openly discussing many of his anti-government enthusiasms. When the cameras or notepads were in front of him, he wanted to talk about “the insanity of it, the overreach of government relegating all of us to second-class citizenship. The government grants us a gun then takes it away, says your life is not worth spit, but says ‘take care of us 9-5.’ That’s where I developed the idea that we truly are second-class citizens. How is that any different than Moscow?”
And that, he acknowledges, “is when the lawyers would go like this.” He makes a pained and annoyed face. “ ‘Moscow’ and ‘communist’—they didn’t want to hear that yet—until June! They said after the decision comes down, go for it. They almost wrote it down for me: ‘I just want to defend my own life in my own home.’ ”
The NRA v. Heller
The Heller case quickly found a powerful opponent in the National Rifle Association. This surprises nearly every layman I discuss the case with, most of whom assume the NRA was behind the lawsuit in the first place. The Parker lawyers received backroom visits from allies of the NRA before their case was filed, discouraging them from going forward. The Supreme Court (which still had Sandra Day O’Conner back then) would not reliably deliver a victory, they argued, and an authoritative statement from the Supremes that the Second Amendment did not protect an individual right could prove devastating to the long-term cause.
This was an intellectually respectable objection, the Levy team thought, but ultimately too fearful. If no one would fight for the Second Amendment qua Second Amendment in a relevant case, then its supposed paladins were as complicit in its irrelevance as were the most rabid partisans for the idea that the Second Amendment only applied to militias and is thus a dead letter.
“The second problem the NRA had with our case was territorial,” Gura says. “They didn’t want something like this going on that they didn’t have their hands in.” In fact, in April 2003, less than two months from Parker’s filing in U.S. District Court for the District of Columbia, a new lawsuit challenging D.C.’s gun laws, Seegars v. Ashcroft, was filed with the backing of the NRA and its longtime Second Amendment legal eagle Stephen Halbrook in charge.
As per then-standard NRA practice, Halbrook offered the court a menu of options to choose from to overthrow D.C. gun laws, hoping one of them might work even if a direct Second Amendment challenge did not. Among them were claims that Congress had only empowered D.C. to create for itself regulations that were “usual and reasonable,” and that D.C.’s gun laws, being the most severe ones in the nation, were therefore unusual and unreasonable.
Unlike the Levy team, Halbrook and the NRA chose to sue not only Washington, D.C., but the U.S. Department of Justice. The DOJ is a significantly more formidable opponent than the District of Columbia. To add insult to injury, because of their unease with Levy and his comparatively inexperienced crew, the NRA team used Seegars as an excuse to try to scuttle Parker altogether by taking over the case, through the legal gambit of “consolidation.” That’s when two cases that are asking courts to decide on essentially the same matter can be combined, whether or not one of the parties really wants it—a hostile takeover of the litigation, as it were. The consolidation request, made to the court in April 2003, was denied.
Then in January 2004, at the D.C. District Court, all but one Seegars plaintiff—a woman with a registered shotgun contesting the trigger-lock aspect of D.C.’s laws—were denied standing. The last remaining plaintiff lost the case on a basic “doesn’t belong to a militia” argument. The Seegars team appealed, bringing their case into the appeals process before Parker had even been considered at the District Court. It wasn’t until March 31, 2004 that that court dismissed Parker, basically on the grounds that those plaintiffs weren’t in a militia, either. The Levy team expected this initial loss, but appealed, determined to fight the case all the way through the appeals process.
Because the D.C. Circuit Court of Appeals decided that the issues in both cases were essentially the same, they halted the appeals progress of Parker, at D.C.’s request, pending resolution of Seegars. Then in a February 2005 decision, Seegars was wrecked on the rock of standing, for D.C. Circuit-specific peculiarities explained further below.