The Roberts Court: The Struggle for the Constitution (19 page)

They knew exactly the type of person they wanted: six District residents who were diverse in race, age, gender, and social backgrounds, and who sincerely believed their personal safety was at risk by living in the District. “I think probably most importantly, people who first and foremost were equally committed to the goal of vindicating the Second Amendment as an individual right, not people who thought it would be fun to be along for the ride but people with a personal reason for wanting to be involved,” said Neily.

He and Levy sent word through the “conservative-libertarian grapevine” that they were seeking clients for a Second Amendment challenge. They scoured newspapers in the District for stories about and letters by people who might fit their criteria. With the help of a Cato lawyer, they found and interviewed nearly three dozen people before settling on six: three men and three women, four of them white and two black, and ranging in age from their twenties to their early sixties.

Two of the six had stories that struck a strong chord in Neily. Tom Palmer was harassed by a skinhead gang in California and believed he would have been murdered but for the gun he had in his backpack. “The reason he had that pistol is his mother gave it to him and basically said, ‘Tom, if you’re going to be openly gay, you may need this one day.’ He didn’t shoot anybody; he pulled it out of his backpack and said, ‘If you don’t stop, I’ll kill you.’ ”

And there was Dick Heller, a security guard who was allowed to carry a gun on his job at the Thurgood Marshall Building, housing the Administrative Office of the U.S. Courts, and who lived in a high-crime neighborhood in the District. “What I felt and I know what Dick felt about the situation was it reflected this incredible government hypocrisy. It was perfectly fine for Dick Heller to carry a gun if he’s protecting the lives of government officials, but it’s not okay for Dick Heller to take that gun home or to protect his own life or the life of his family,” said Neily.

Heller would eventually become a key figure in the legal challenge.

“It’s remarkable the effect just telling the story of any one of our
clients has on an audience,” added Neily. “It doesn’t make people agree with you, but it makes clear this is a subject on which reasonable people can have different views. That’s important because so many people otherwise would just write you off as a gun nut. But you tell a story about an openly gay man, almost murdered by skinheads, who saved his own life with a gun, or Shelly Parker, who wanted to be able to fend off drug dealers in her neighborhood who threatened her in her home—it’s very hard to dismiss those people and their experiences. You either have to say they’re lying or just tell them to call 911 and everything will be fine. Nobody who lives in the city believes the latter.”

Levy viewed the Second Amendment project from the beginning as having three phases: first, a lawsuit to determine the meaning of the Second Amendment; second, if successful in proving an individual right, litigation to get the Second Amendment applied to all of the states (the District of Columbia is not a state but a federal enclave); and third, litigation to determine the scope of the individual right—what gun restrictions would or would not pass constitutional muster.

“We sought to make incremental progress as Thurgood Marshall had done,” said Levy, referring to Marshall’s litigation strategy to end segregation. “He bit off a little at a time and we thought that was the right approach as well. D.C. seemed like the perfect place to start—we had the timing, the location, and the plaintiffs.”

It was also important to the two men that their case was not one in which a criminal defendant was fighting a gun charge or conviction on the basis of an individual right to own the gun under the Second Amendment. At the time, Second Amendment claims were being raised mostly in criminal cases and the claims often were frivolous, the two lawyers believed. Because they were frivolous, the courts did not take the Second Amendment arguments seriously, which had led to sloppy collective rights decisions, they said.

“Look at the mountain of bad precedent predating the
Emerson
decision,” said Neily. “Most of it is ‘United States versus somebody,’ mostly criminal cases. The last thing in the world you want, if you think the
Second Amendment protects an individual right and you want to vindicate that right, is to see that get litigated in the Supreme Court in the guise of a criminal case. We were mindful of that.” In other words, who would they rather have as the poster boy for the Second Amendment: a criminal or a law-abiding citizen?

That summer as the lawsuit came together, Levy received a call from Nelson Lund, who holds the NRA-endowed chair of Constitutional Law and the Second Amendment at George Mason University School of Law. Lund suggested a meeting with Levy and Washington lawyer Charles Cooper, a longtime NRA litigator and former Reagan Justice Department official who is now heading the defense of California’s Proposition 8, the ban on same-sex marriages. Levy and Neily met the two men at the Cato Institute, but the meeting did not go well.

“They were not pleased,” recalled Levy. “They said we might achieve victory in the lower courts, but the Supreme Court was not hospitable. They didn’t say this, but there also may have been a turf issue.” Levy did not buy their Supreme Court argument. “Looking at the Supreme Court at the time, Bush was in office. The next folks likely to go off the Court seemed to be O’Connor or one of the liberals. We thought we had a very powerful case and it was likely the Court was as good or better than its current posture.”

But David Lehman, the NRA’s deputy executive director and general counsel, downplayed the disagreement at that time, saying, “When you get a number of lawyers together, you’ll have a variety of different strategies. We all had the same goal but took different paths to get there. We all had the same goal of the Court finding an individual right. We also were working on the legislative side of things as well.”
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Undeterred by the NRA’s apparent lack of enthusiasm, Levy and Neily moved forward. For the rest of the summer of 2002, Neily worked on drafting the lawsuit. But he also was being drawn more and more into another case that the Institute for Justice was handling. The net result of those demands prevented Neily from pushing the gun complaint “across the finish line.” Levy, although a very knowledgeable constitutional
lawyer, was not and had never been a litigator. He suggested, and Neily agreed, that they bring in a third lawyer.

Levy started looking for a “hard-charging, hungry young lawyer” to take on the litigating responsibility for the lawsuit, and found Alan Gura. He knew Gura through the libertarian circles in which they both moved—a notably small community in the nation’s capital.

“If you show any kind of interest in some of these ideas in the community, then your path might cross with Bob’s,” said Gura. “He’s a very prolific writer and commentator, a good guy.”
⁸

Like Levy, Gura had not thought much about the Second Amendment before being approached about the lawsuit in December 2002. He had started his own law firm in the center of historic Old Town Alexandria, Virginia, just a little over a year before getting Levy’s call. Before that, he had left the big firm environment of Sidley Austin to spend a year as counsel to the U.S. Senate Judiciary Committee’s subcommittee on criminal justice oversight. He also had worked as a deputy attorney general for the state of California.

“One of the reasons I think Bob called me is I did have a civil rights practice,” said Gura. “I had always litigated civil rights throughout my career. It was logical that someone with my background would be involved, just as it was logical for Clark Neily and Steve Simpson to get involved because they did civil rights work at the Institute for Justice. It sounded like a great case; it sounded like a lot of fun. It made sense, and I figured, ‘Why not?’ ”

Levy offered what he called “subsistence wages” to Gura, and even though he wanted to pay him more as the lawsuit became increasingly complex, Gura stuck to the original agreement, saying, “A deal is a deal.”

Once on board, Gura, who has a hurried, almost impatient air about him, burrowed into the history of the Second Amendment and put the final touches on the lawsuit with the skill and confidence of a lawyer well beyond his years. “When Alan gets moving, he gets moving fast,” chuckled Neily.

Besides deciding to bring a civil, not a criminal, legal challenge, all
three men agreed on another critical element in their strategy of getting the case to the Supreme Court. “We were in agreement it would be a very clean case, just one claim and the narrowest relief we could ask for,” said Neily. “We were not going to get into concealed carry and other issues, just having a gun at home. I don’t think you have to be too deeply knowledgeable about Supreme Court practice and history to know that if you’re asking them to tread on fresh ground, it’s best to ask them to take the smallest step they can.”

Keeping it simple and straightforward, the trio of lawyers filed their soon-to-be historic challenge to the District of Columbia’s gun laws in federal district court in Washington on February 10, 2003. Shelly Parker, the scourge of neighborhood drug dealers, was the first name on the lawsuit. It also named as defendants the District of Columbia and its mayor at the time, Anthony Fenty. In their complaint, they told the court: “At a minimum, the Second Amendment guarantees individuals a fundamental right to possess a functional, personal firearm, such as a handgun or ordinary long gun [shotgun or rifle] within the home. Defendants currently maintain and actively enforce a set of laws, customs, practices, and policies which operate to deprive individuals, including the plaintiffs, of this important right.”

To the surprise of the three lawyers, resistance to the filing of the lawsuit was immediate, especially from conservative and libertarian groups. Gun rights advocates voiced concerns similar to those expressed by the NRA: the timing was not right; the chance of a bad decision was too risky.

“We had a frank discussion with a couple of folks from the NRA,” recalled Neily. “They weren’t nasty. I think they were taken aback that we weren’t willing to get with the program. I think it’s fair to say from their perspective, not every challenge that had come before us was a credible challenge. I can see how some could be concerned about whether these three guys are credible lawyers, and can they get this done. That’s a reasonable concern.”

But less than two months after they filed their lawsuit, another Second
Amendment lawsuit landed on the district court’s doorstep: a suit funded by the NRA. That action created tension and hard feelings between the NRA and Levy’s legal team during the next two years. The libertarian lawyers viewed what they called the “copycat” lawsuit as, at best, an attempt to delay their own lawsuit, and, at worst, an effort to derail it.

Stephen Halbrook, a longtime legal consultant to the NRA, represented five D.C. residents in
Seegars v. [Attorney General John] Ashcroft
, the second lawsuit. Halbrook has written extensively about the Second Amendment—books and law review articles—for more than three decades. He had argued and won three cases in the Supreme Court, including
Printz v. United States
, a 1997 decision striking down a temporary provision in the Brady Handgun Violence Prevention Act requiring state and local law enforcement officials to perform background checks on handgun buyers until a national background check system was developed.

Halbrook grew up in a small farming community and hunted as a youth. In summers, he went to a camp which had a junior NRA program teaching gun safety. He continued his NRA membership in college and began studying the Bill of Rights. “I quickly found there was no literature on the Second Amendment, maybe about three law review articles,” he recalled. “The other amendments had an enormous amount of literature. This was in the late sixties. It was a fertile field, and it became my primary interest.”
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Although the NRA was providing financial support, the Seegars lawsuit was not the NRA’s case, he insisted, adding, “My clients are my clients and not the NRA’s.” But, he said, “I know it to be a fact, the reason the NRA supported the
Seegars
case was they wanted to get the best result. It was unclear what the Supreme Court would do. It was very risky. But if there was going to be a case, they wanted to encourage any input to try to get the right result.”

The two cases were in front of different federal trial judges. Filing a copycat lawsuit was bad enough from the perspective of the Levy team,
but Halbrook’s motion to consolidate the two cases before one judge infuriated them, particularly Gura, the chief litigator.

The problem was that Halbrook’s suit was not identical to the other case and those differences presented real problems for the three libertarian lawyers. The first problem was that Halbrook had sued the U.S. attorney general, John Ashcroft, while Gura had sued only the District of Columbia. The D.C. gun provisions targeted by Gura, if violated, were misdemeanor crimes that would be prosecuted by the D.C. Office of Corporation Counsel. The U.S. Department of Justice only prosecuted felonies.

“We did not believe Ashcroft was the proper defendant,” said Gura. “Also, we didn’t want to include Ashcroft because we did not wish to take on the Department of Justice. It’s just another set of very excellent lawyers who are going to be tenacious and creative in thinking of ways to get rid of the case.”

Gura was prescient. In fact, it was Justice Department lawyers and not D.C. government lawyers who argued a legal theory that subsequently knocked Halbrook’s case out of court and nearly did the same to Gura’s case—that their clients had no standing to bring the lawsuits.

The second problem that Gura and his colleagues had with Halbrook’s lawsuit was that it did not present a simple, straightforward Second Amendment challenge. Halbrook also charged that the gun laws violated due process, equal protection, and the Civil Rights Act of 1866, which, after the Civil War, overturned the so-called Black Codes, enacted by some states, including the ban on African Americans’ possession of firearms. That sort of kitchen sink approach, they believed, had failed in the past.