It was the morning of June 26, 2008, and Alan Gura had just won the first case he’d ever argued in front of the Supreme Court. Before taking a media victory lap to celebrate his historic vindication of the Second Amendment in D.C. v. Heller, Gura headed to the Court’s public information office for a moment of privacy. He called an old buddy from law school, the Chicago attorney David Sigale. “File it,” Gura said.
“It” became, almost exactly two years later, Gura’s second victory before the Supreme Court, McDonald v. Chicago. That case—decided, like the first one, by a narrow 5-4 majority—established that the gun rights recognized in the District of Columbia because of Heller must also be respected by states and cities outside the purview of the federal government. The Second Amendment’s protection now applies not just to D.C.’s 600,000 residents but to more than 300 million people across the country.
The magnitude and reach of this earthquake in American law, which has touched off slow-motion aftershocks throughout the 50 states, are still uncertain. But whatever the future holds, Americans’ ability to own guns has, at long last, taken its place among the other individual rights spelled out in the Bill of Rights.
The invalidation of handgun bans throughout the country, accomplished in the space of two years, was sudden and surprising even to those who have spent decades laying the groundwork. Take Alan Gottlieb, founder and president of the Second Amendment Foundation, which began backing Gura’s various gun lawsuits after Heller. Since founding the SAF in 1974, Gottlieb has been hosting academic conferences, supporting legal scholars and historians, and filing carefully targeted lawsuits in defense of gun rights. Still, he says, “six years ago if you had said [the gun rights community would] see two cases get to the Supreme Court and two victories, I would have said, ‘Not in my lifetime. Maybe in someone else’s.’ ”
Gottlieb attributes the rapid turnaround in part to the brazen overconfidence of gun controllers. If Washington, D.C., had not challenged the March 2007 appeals court decision overturning its highly restrictive gun ban, the Supreme Court would not have had the opportunity to declare in Heller that the Second Amendment guarantees an individual right to arms. If Chicago had not insisted on maintaining its gun ban after the Heller decision, there would have been no McDonald, and the question of whether the Second Amendment binds states and cities would have remained unsettled. “We needed a little luck, and the other side gave us that luck,” says Gottlieb. “Our opponents are our biggest supporters.”
The Case and the Clients
Heller was momentous, but it left many issues unresolved. The majority opinion by Justice Antonin Scalia did not address the constitutionality of gun control laws that fall short of a complete handgun ban. Nor did it say whether the Second Amendment, like most other provisions of the Bill of Rights, applies to the states as well as the federal government, which has direct authority over the District of Columbia.
The next battleground presented itself. Chicago and several of its suburbs—Oak Park, Evanston, and Morton Grove—had laws very similar to the D.C. ordinance that was overturned in Heller. Immediately after Heller, Gura, the SAF, and the Illinois State Rifle Association challenged those laws in federal court. So did the National Rifle Association (NRA), which filed separate lawsuits. By the time the cases reached the U.S. Court of Appeals for the 7th Circuit in May 2009, only Chicago and Oak Park were still sticking to their gun bans. (One Chicago-area city, Wilmette, dropped its own gun laws after Heller without being sued.)
Under Chicago’s law, residents were not permitted to own a gun without registering it. But they weren’t allowed to register handguns, and they couldn’t register a long gun if it had already been in their possession. Re-registration of what few guns passed muster was required annually, and if a deadline was missed the weapon could never again be legally possessed in the city. The upshot of these restrictions was that Chicagoans were deprived of their Second Amendment right to use key tools of self-defense. So Gura selected four plaintiffs to represent a cross-section of the Second City.
Adam Orlov, a former cop from Evanston who now works in finance, has a libertarian intellectual background. He contacted Gura through friends at the Cato Institute while Gura was still fighting Heller, which was conceived and financed by the think tank’s current chairman, Robert Levy. As a police officer, Orlov says, he got tired of telling women who were home alone that if they found themselves in a situation where they needed a gun to save their lives, he’d be happy to come along afterward and file a report on the crimes committed against them.
David Lawson, a software engineer, is a member of both the SAF and the NRA. Like many Americans passionate about gun rights, Lawson had been following the Heller case, and he knew that a challenge to Chicago’s law was a likely next step. So he contacted Gura and volunteered himself and his wife Colleen, a hypnotherapist, as plaintiffs. The Lawsons had legally registered long guns in their Chicago home, but they did not consider a rifle or shotgun a suitable substitute for a handgun as a defensive weapon. Rifle rounds can travel dangerously far inside a residence, while shotguns fire a wide spray of pellets. Both are relatively hard to operate in an emergency, such as on the afternoon a few years ago when Colleen was home alone and three men tried to shove their way into the house through a sliding door.
The lead plaintiff, Otis McDonald, is a 76-year-old father of eight and grandfather of more than he can count; he rose from a maintenance engineer at the University of Chicago to head of his union local. McDonald had been embattled by drug dealers, suffering five break-ins in the Chicago home he shares with his wife. “I had a troubled neighborhood,” McDonald says. “I was pissed off about the way these kids that had grown up playing basketball in my backyard” had become a threatening gang. When you drive down his street, he says, “you don’t get by unless they let you get by.” He would see kids he’d known since they were 3 running down his alley, shooting at cars.
“I helped as much as I could help with their parents,” McDonald says, “until they told me they didn’t want to hear from me anymore in regards to them. I was just fed up. I had to find somebody, some organization, something with the resources and power, and then I knew that I could couple that with myself, with guts and the nerve to do what needed to be done.” McDonald started attending gun rights rallies down in Springfield. “I learned a lot about this Washington, D.C., case,” he says, “and that’s what made me know the Lord was guiding me. I just felt so sure they were going to win the case.” A friend McDonald met at a gun rally told Gura about him. When Gura needed clients, the two met and took to each other instantly.
The people who became the plaintiffs in McDonald v. Chicago all met with Gura and David Sigale, his local partner in the case, in the time between the March 2008 oral arguments in Heller and the decision three months later. McDonald recalls telling Gura: “Are you willing to go all the way? Then I’m your man, with the name and all. Furthermore, we are going to win.”
The Clause and the Controversy