How the Second Amendment Was Restored
The inside story of how a gang of libertarian lawyers made constitutional history
On the last date of the U.S. Supreme Court's 2008 spring session, justices declared by a 5-4 decision in D.C. v. Heller that, yes, the Second Amendment does secure an individual right to keep and bear arms. With that, the high court voided the District of Columbia's extreme regulations on gun ownership, which had amounted in practice to a complete ban on any usable weapon for self-protection, even in the home.
In retrospect, D.C. v. Heller seems almost inevitable, because of shifting public and academic attitudes toward gun rights. But victory came only after a protracted struggle, with many pitfalls along the way. It was pulled off by a small gang of philosophically dedicated lawyers—not "gun nuts" in any stereotypical sense, but thoughtful libertarians who believe Second Amendment liberties are a vital part of our free republic. Together they consciously crafted a solid, clean civil rights case to overturn the most onerous and restrictive set of gun regulations in the country. In the process, they set the stage for further legal challenges to other firearms restrictions from coast to coast.
Someone was going to reach the Supreme Court with a challenge to firearms regulation. In the 2001 Fifth Circuit case U.S. v. Emerson, a federal appeals court for the first time declared unequivocally that the Second Amendment, despite containing the word "militia" in its preamble, did indeed protect an individual right to bear arms. Though groundbreaking in the judicial system, that individual rights interpretation was already dominant within the legal academy, after decades of scholarship chipped away at the once-preeminent "collective rights" view that the amendment only protected either a state's right to maintain a militia, or an individual's rights within the context of militia service.
The Emerson decision rippled beyond the courts. On November 9, 2001, then–Attorney General John Ashcroft sent a memo to all U.S. attorneys praising the case for how it "undertook a scholarly and comprehensive review of the pertinent legal materials and specifically affirmed that the Second Amendment 'protects the right of individuals, including those not then actually a member of any militia or engaged in active military service or training, to privately possess and bear their own firearms.' "
Gun rights were on the rise politically as well. Democrats lost Congress in 1994, and the White House in 2000, in part because of a backlash against the 1994 assault weapon ban. In the 21st century, the party no longer makes gun control a major issue. On the state level, laws making it easier for citizens to carry weapons have also been proliferating over the past two decades; the number of states with concealed-weapon "shall issue" standards (objective criteria with little or no bureaucratic discretion) now stands at a de facto 37, up from just eight in 1986.
That was the legal, political, and social environment in which Heller was launched in 2003. "The timing was ripe," says attorney Robert Levy, then a senior fellow at the libertarian Cato Institute (and now its chairman) and the man who financed and spearheaded the case.
Yet Heller was almost derailed on a series of occasions, sometimes by the very people who cherish gun rights and constitutional protections the most, including the National Rifle Association (NRA). Many lacked confidence that the Court was ready to catch up with the legal academy. In the hour of opportunity, many blinked. Victory over these self-doubts provide a powerful reminder that, as Barry Goldwater reminded us, sometimes an overly fearful moderation in the pursuit of justice is no virtue, and that even decades of bad policy and bad political philosophy can turn around with smart, tenacious efforts.
Parker Becomes Heller
The inevitable post-Emerson challenge to gun restrictions could well have come from a radically different point of view. Various Washington, D.C., public defenders, for example, were trying to apply Emerson to reduce the prison sentences of their clients—street criminals who typically had a whole host of charges hanging over their heads, not otherwise law-abiding citizens seeking to arm themselves in their home.
So, prodded on by suggestions from a young lawyer named Clark Neily from the libertarian public interest law firm the Institute for Justice, Robert Levy assembled a team that included his Cato colleague Gene Healy (who dropped out before the case reached the Supreme Court), Neily himself, and the private-practice attorney who eventually argued the case in front of the Court, a Virginia libertarian named Alan Gura. Levy's team then went searching for the ideal clients.
D.C. was the best place to start litigating the Second Amendment. The district is not a state but a federal enclave under direct control of Congress (though it has its own government with home-rule leeway), so lawyers could sidestep the contentious and still-unsolved issue of whether the Second Amendment applied to the states via the Fourteenth Amendment, which stipulates that "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.…nor deny to any person within its jurisdiction the equal protection of the laws." That amendment has for the past half-century or so been interpreted to apply the provisions of most of the Bill of Rights to state and local government actions.
Besides, the city had the most ridiculously severe gun laws in the country. According to D.C. Codes 7-2502.01, 7-2502.02, 7-2507.02, and 22-4504 and 4515, it was illegal to have a handgun without registering it, and you couldn't register it if you didn't already own it before the law was passed in 1976; it was illegal to have your long gun in the home in any condition other than unloaded and disassembled or trigger-locked; and if you had a registered handgun, even carrying it around your house could net you a year in jail and a $1,000 fine.
After much searching by Levy's team, six plaintiffs were selected. They filed the case on February 10, 2003. Back then, it wasn't the Heller case, but the Parker case, named after original lead plaintiff Shelly Parker.
Parker, a black woman, had the potential to become a new kind of civil rights icon, standing up not just for the right to be treated fairly by other people but to take control over her own life and safety. She had a dramatic story of the type that should make everyone this side of Sarah Brady want to
overnight her an out-of-state mail-order handgun.
In February 2002, Parker, a former nurse now working in software design, moved to a neighborhood on the northeastern edge of Capitol Hill rife with tenacious drug gangs. She wanted her neighborhood to be a safer and more comfortable place for law-abiding citizens, and so made a nuisance of herself to local drug dealers, walking the streets as a one-woman citizen patrol, calling cops when she saw illegal activity, and installing a security camera for her yard.
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.
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.
Dellinger was only a few minutes into his presentation when Justice Anthony Kennedy—considered to be the swing vote, in this case as in many others—buoyed the Levy team by suggesting the Second Amendment "supplemented" the militia "by saying there's a general right to bear arms quite without reference to the militia either way," and talking of how the Founding Fathers' attitudes about guns were born from a frontier experience, with worries about personal, not merely civil and political, defense from hostile crooks, Indians, wolves, and grizzly bears.
At the same time, Kennedy made it clear that he believed the Second Amendment right to bear arms was, like other rights in the Constitution, subject to regulation. Even with the historical examples from early America and England, he saw that by some of those laws, "You couldn't conceal a gun and you also couldn't carry it, but yet you had a right to have it."
Dellinger argued that the legal right in D.C. to own (yet not, by the letter of the law, ever use in the home) long guns obviated any constitutional difficulties that might exist in the handgun ban. Chief Justice Roberts, straight out of the Heller team's playbook, made the First Amendment analogy, asking Dellinger: Would it be constitutionally acceptable for a municipality to ban books as long as newspapers—a viable substitute source of expression—were still legal?
When it was Gura's turn, he was asked to explain the meaning of the militia reference. He said it was to describe a purpose of the right of the people that the Amendment protected. He angered some in the hardcore gun rights movement when he concluded that the weapons protected by the Amendment should be ones that combined a militia purpose and a normal civilian purpose, since people were expected to supply them from their own everyday collection of weapons they typically used. Gura did not want to be pressed into arguing that machine guns should have unlimited Second Amendment protection.
He did ably defend the idea that personal self-defense was built into weapons rights during the Founding era. He granted that reasonable licensing doesn't necessarily violate the Second Amendment. He also granted that empirical considerations about such matters as murder rates could play into policymakers' decisions about what made for a reasonable gun regulation—but added that the very purpose of a constitutional right is to make sure that not everything is up for grabs just because a legislature thinks regulations are "reasonable."
Many Internet gun-rights activists accused Gura of selling out on the machine gun issue. "We wanted to win," Gura responds. "And you win constitutional litigation by framing issues in as narrow a manner as possible. I could not tell the justices honestly that I hadn't thought about machine guns. 'Gee, I don't know, maybe…' That's a bunch of crap. I would have lost credibility, it would have been obviously a lie and I'm not going to lie to the Court, and I would have lost the case."
Justice Antonin Scalia's majority opinion said everything that Gura said, and that a generation of Second Amendment scholars had been saying for decades. The Second Amendment protected an individual right. The prefatory clause did not restrict the operative one; the protected right went beyond militia service. The relevant contemporaneous debates and state constitutions at the time of the Founding supported this interpretation. The Miller precedent was about the type of weapon, not the people to whom the right accrued.
Still, the decision wasn't everything devotees of gun rights might have hoped for. Scalia also wrote: "The Second Amendment right is not unlimited. It is not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose: For example, concealed weapons prohibitions have been upheld under the Amendment or state analogues. The Court's opinion should not 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."
Heller, then, by no means settled the entire gun control debate. It did instantly generate a series of lawsuits, many sponsored by the NRA, against jurisdictions with gun bans similar to D.C.'s, including Chicago (hit with two suits) and three of its suburbs. Some Illinois towns have already rescinded their handgun restrictions. Washington, D.C., after months of foot-dragging that prompted Dick Heller to file another lawsuit against the city, has finally allowed its citizens to register, own, and keep loaded in the home both revolvers and semiautomatic handguns.
Still, most gun laws short of total bans will likely survive under the Heller standard, even if it is authoritatively established that the Second Amendment ruling in the case applies to state and local actions. In the near term at least, Heller will heat up the gun debate instead of ending it.
But the case was vitally important to American public policy. One, it normalized within constitutional law the notion that self-defense is a right. Guns can kill, to be sure. But the principle that Heller vindicated was one at the core of Western liberalism, that of self-defense, which is for life. Those who believe in a strong activist government generally do so because they fear the potential savagery of human social life. They just don't seem to want, with gun control, to allow the individual to do anything about it.
The Heller case was a prime example of how calm, dedicated, and strategic thinking on the part of crusaders for smaller government can achieve real and (probably) lasting victories. Fighting against even those who should have been their staunchest allies, Levy and his team of libertarian lawyers watched the zeitgeist, crafted a smart (though risky) strategy, and won.
Our legal system and our Constitution allowed them to do something about D.C.'s gun laws, even as D.C.'s gun laws did not allow its citizens to do much about their own safety. Because this group of people acted to preserve the right to self-defense, the rest of America has seen affirmed at least the basics of that right. The contours of that right to self defense remain to be defined by others who choose to follow in Levy and his crew's footsteps.
Senior Editor Brian Doherty is the author of Gun Control on Trial: Inside the Supreme Court Battle Over the Second Amendment, from which this is excerpted. © Copyright 2008 Cato Institute.