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The NRA also harmed Parker through its decision to bring DOJ into the case. The D.C. Circuit Court of Appeals, in coming down with its Parker decision on March 9, 2007, booted five of the original plaintiffs off the case, for the same reason of standing that the five Seegars plaintiffs were all tossed away. The standing argument had been introduced to the case by the Justice Department; D.C. hadn’t thought of it on its own.
Sure, Parker and her compatriots might think that a core, fundamental constitutional right was being denied them. But by the D.C. Circuit’s standard, they had suffered no specific injury such that they had standing to sue.
The D.C. Circuit has a peculiar position on standing, more stringent than in any other circuit. The 1997 case Navegar v. U.S., coincidentally involving a gun manufacturer, established that plaintiffs must, in the language of D.C.’s filing to dismiss the plaintiffs in Parker, “demonstrate a threat of prosecution that is ‘credible and immediate,’ or imminent, and ‘not merely abstract or speculative.’ ” More or less, D.C. said that since the plaintiffs might be able to get away with breaking the gun laws, they had no standing to challenge those laws.
How is it that Heller alone survived the standing challenge? Even before the Parker case was officially filed, his friend Dane vonBreichenruchardt knew Heller was involved and intending to be a plaintiff—it was vonBreichenruchardt, who already knew Levy, who had introduced Heller to Levy.
VonBreichenruchardt had been a plaintiff in a previous case against certain regulations affecting the operations of nonprofits, rules that he felt amounted to a prior restraint on his First Amendment rights. He saw his case dismissed for lack of standing, for various reasons, one of which was that since he had not actually been punished for violating the law, it could be said that his claim that the regulations in question violated his rights was merely speculative.
So vonBreichenruchardt encouraged Heller to fill out a form to register one of the handguns Heller owned (apparently stored outside the district), even though he knew there was no way the city would actually accept the illegal pistol.
“It makes all the difference in the world that this one guy went down and filled out an absolutely meaningless piece of paper which you knew in advance was a futile act,” Neily says. “It was not intentional on the part of Alan, Bob, and myself, but it was intentional on the part of Dick and Dane, and it was very important that Dane had that insight and did that.” Heller slid in because he had a permit denied: a clear injury with a paper trail.
Standing wasn’t the only issue the D.C. Circuit Court of Appeals decided on March 9, 2007. The other action judges took that day proved to be better news for the Parker team. In a two-one vote, the three-judge panel sent the case back to District Court with an order: Grant summary judgment to Heller. Translation: Heller wins.
The decision was a glorious victory for the Levy team and for the Second Amendment. Judge Laurence H. Silberman, in his majority opinion, hit all the right points. He decided that the “people” referred to in the Amendment meant the people, that is, all of us as individuals. He decided that “bear arms” had more than just a military meaning in the idiom of the Founding era.
Silberman’s decision interpreted the 1939 Supreme Court case U.S. v. Miller, the dominant precedent regarding the Second Amendment, to say that cases hinged on the type of weapon the right affected, and whether the weapon had potential militia use, not on whether persons claiming the right were themselves in a militia. The judge did not accept D.C.’s claim that any constitutional infringement was mitigated because the city might not punish a long-gun owner for loading and using his weapon in self-defense in defiance of the letter of the law. “Judicial leniency,” he wrote, “cannot make up for the unreasonable restriction of a right.”
Heller at the Supreme Court
After some hesitation—causing it to miss the initial filing deadline—the District of Columbia appealed to the Supreme Court. The NRA was simultaneously pushing a new federal law that would have mooted the newly renamed Heller case by overturning the city’s anti-gun laws. Levy lobbied against the measure, arguing that a Supreme Court victory would be more permanent and more important to the whole country than just overturning D.C.’s restrictions. That bill did not pass in 2007, and the Heller case was taken up by the Supreme Court in November of that year. Only at that point, after years of obstruction, did the NRA became highly cooperative, putting together a significant amicus brief endorsed by the majority of both houses of Congress and by Vice President Dick Cheney.
Chris Cox, head of the NRA’s Institute for Legislative Action, is happy with how his organization’s relationship to Heller turned out. Sure, he admits, there was conflict along the way. “In my experience, you get a bunch of lawyers in the room and you’ll probably not have agreement,” he says. “There was concern prior to [ John] Roberts and [Samuel] Alito even being on the Court as to whether or not the timing was right. It all worked out. Was it lucky? Was it strategy? I’ll let other people answer that. But I applaud Alan [Gura] and his team. The victory was ultimately due to a lot of hard work by a lot of people for decades, certainly including the NRA, and in the end the Second Amendment is stronger.”
At the oral arguments before the Supreme Court, decades of intellectual debate about the meaning of the Second Amendment came springing to life. D.C.’s lawyer Walter Dellinger started off by proposing a version of the Second Amendment which, while claiming it protects an individual right, but only if that individual is participating in the common defense in the form of a militia, in essence means that, no, the Second Amendment really doesn’t mean a thing in practical terms to Americans today in terms of home defense.
Chief Justice John Roberts prodded him on why the Framers said “the people” if they meant “the militia.” Dellinger said, well, the terms were really congruent, so the right applied to all the people but only for a militia purpose. For example, Dellinger offered, a private citizen might have a cause of action under the Second Amendment if the federal government interfered with his state’s right to form a militia.