The Roberts Court: The Struggle for the Constitution (21 page)

But despite the victory in the appellate court, the Levy team soon faced another obstacle on their road to the Supreme Court. Senator Kay Bailey Hutchison (R-TX) introduced her perennial, NRA-backed bill to repeal the District’s gun laws. Levy, Gura, and Neily believed the bill was another effort by the NRA to stop their case.

“The effect of that effort, had it succeeded, would have been not
only to moot the case and thus prevent Supreme Court review, but also to vacate the D.C. Circuit’s favorable decision—the first and only time a federal court ever struck down a gun law on Second Amendment grounds,” said Neily. “In the weeks after the D.C. Circuit’s favorable ruling, it appeared very possible to us that the NRA would in fact succeed in getting the repeal law passed, thus mooting the case.”

Levy found himself in the odd position of testifying against the legislation. He told the committee considering the bill that the best way to proceed was in the courts, not in Congress, because a future Congress could repeal whatever the current one did.

And then, on April 16, 2007, a Virginia Tech student shot and killed thirty-two people before turning his gun on himself and ending the deadliest mass shooting in American history. Fifteen others were wounded during the campus rampage.
¹⁵

“The tragedy at Virginia Tech spelled an end to any legislative repeal effort, at least in the near term, which meant that the NRA’s effort—if in fact it was a serious effort, which they have consistently, though not plausibly, in my view, denied—to moot the
Heller
case itself became moot,” said Neily.

The District’s Mayor Fenty, in the meantime, had asked the full federal appellate court to review the three-judge panel’s ruling against the District. But about two weeks after the Virginia Tech shootings, the D.C. Circuit declined to review the decision. Fenty then was faced with deciding whether to appeal to the Supreme Court.

Most lawyers who win their case in a federal appellate court do not want their defeated opponents to appeal to the Supreme Court. They have nothing to gain, only a victory to lose. But after that evening over drinks more than five years earlier, the Supreme Court had always been the ultimate target of Levy, Neily, and Gura.

And now the fate of the Levy team’s carefully manufactured test case on the meaning of the Second Amendment was in the hands of its opponents: Mayor Fenty and his legal advisers.

“What kind of message are you sending? This is not Dodge City in the 1800s.”

—Kenny Barnes, whose son was shot to death on a D.C. street in 2001, reacting to the 2007 D.C. Circuit decision

T
he National Rifle Association and its frequent legal counsel, Stephen Halbrook, kept a scorecard over the years on how justices of the Supreme Court might vote on whether the Second Amendment protected an individual right to keep and bear arms.

Justice Antonin Scalia, they believed, tipped his hand in his commentary in his book
A Matter of Interpretation
(1997). He wrote then that he interpreted the amendment “as a guarantee that the federal government will not interfere with the individual’s right to bear arms for self-defense.” Scalia added later in the essay, “Of course, properly understood, it is no limitation upon arms control by the states.”
¹

“I said to myself, ‘Justice Scalia looks safe,’ ” recalled Halbrook.

Justice Clarence Thomas, in a concurring opinion in
Printz v. United States
, a 1997 decision involving background checks on handgun applicants, had noted: “Marshaling an impressive array of historical evidence, a growing body of scholarly commentary indicates that the ‘right to keep and bear arms’ is, as the Amendment’s text suggests, a personal right.”

“I thought, okay, Justice Thomas might be favorable,” said Halbrook. And Justice Ruth Bader Ginsburg, in a dissent in
Muscarello v.
United States
(1998), had argued that the phrase “carries a firearm” in a federal criminal law means to carry it so it is ready to use. In reaching that interpretation, she referred to the Second Amendment’s “keep and bear arms” language as an example of the ordinary meaning of carrying a firearm. “She was considered someone who might vote favorably,” added Halbrook.

Justice Stephen Breyer was not viewed as a favorable vote, and the other justices were difficult to predict.

A petition to the Supreme Court in the District of Columbia gun case was “certainly risky” for gun rights groups, thought Halbrook, but the appellate court’s decision was an excellent one, a very serious look at the question.

Too risky, however, for some gun control groups, who urged Mayor Fenty not to file a petition.

“If it had been up to us, we would not have taken it up [to the Supreme Court],” said Henigan of the Brady Center. “We weren’t real willing to throw the dice because of the potential impact on gun laws nationally. We thought the District of Columbia laws could be rewritten in a way that still made them very, very strong.”

Although there were serious discussions, there was never any serious doubt in the Fenty administration about appealing the decision striking down the District’s gun laws to the Supreme Court. Every mayoral administration since its enactment had supported the regulations and every city council as well. The District’s police and fire chiefs also backed the gun laws. And while there was ongoing debate in the country about the Second Amendment and gun regulations, there was no evident public controversy within the District itself over its own gun regulations.

“Certainly any time you lose a case you have to think about whether you’re going to file for cert or not, and what the upsides and downsides are,” said Alan Morrison, who was special counsel to the District at the time. “The arguments we heard were, ‘Look, the D.C. law is the harshest law; you don’t want this case to go to the Supreme Court.’ To which
my answer was, ‘Well, suppose some other case gets up there?’ At this point, we have no gun law in the District. We have sort of a fiduciary responsibility to the city council which enacted it, to the mayor who wants it enforced, and to the police chief who desperately wants it enforced. It had to be a very good reason, it seemed to me, to lay down, take it easy, and let some other case come up.”

And there was also something to be said, thought Morrison, for taking “the most in-your-face law” to the Supreme Court, because “we didn’t want wishy-washy laws. Everyone wanted this law because they thought it was important,”
²
he said.

Morrison is a passionate public interest lawyer. With Ralph Nader, he co-founded and directed for more than twenty-five years the Public Citizen Litigation Group, a division within the non-profit consumer organization Public Citizen. The bearded, energetic Morrison, who currently teaches at George Washington University School of Law, has argued twenty cases in the Supreme Court on issues ranging from the First Amendment to separation of powers.

He was finishing up a temporary teaching stint at Stanford Law School in California when D.C. Attorney General Linda Singer, newly appointed to that post by newly elected Mayor Fenty, invited him to return east to work with her. He did not want to be a line attorney or have a caseload with court deadlines, so Morrison suggested becoming a special counsel with responsibility for special legal projects within Singer’s office. Singer agreed, and before Morrison had even hired movers for the trip home to D.C., the first project arrived: the lawsuit against the District’s gun regulations.

“I had never done a case with the Second Amendment,” said Morrison. “I had never written about it. We used to joke about it: the right to bear arms is the right to arm bears. While I didn’t agree with Warren Burger on many things, he said a great fraud that’s been committed on the American public is that the Second Amendment has anything to do with personal rights. Burger was wrong about a lot of things and apparently he was wrong about this one too,” he added ruefully.

Singer also sought outside advice about an appeal to the Supreme Court from former acting Solicitor General Walter Dellinger, a highly respected constitutional law scholar who was in private practice at O’Melveny & Myers law firm in D.C., and from high court litigator Thomas Goldstein, who at the time headed the appellate practice at D.C.’s Akin Gump Strauss Hauer & Feld. But she wanted the case to be a District case because these were District laws. She wanted it handled by District lawyers, and Morrison was integral to that identity.

Once the decision was made to go to the Supreme Court, everyone was united. Throughout the summer of 2007, Morrison and the District’s lawyers worked on the petition for review even though Morrison was still in California. At some point that summer, he approached Singer about making an early decision on who would argue the case if the Supreme Court granted review.

“I said I think we should decide this early because it’s going to affect how we’re going to staff it, who is going to do what when, and we wanted to send a message that we were ready,” he recalled.

There were three possibilities. Todd Kim, an able chief of the appeals section who had never argued in the Supreme Court and whose pregnant wife was due near the time an argument might be scheduled; an “outsider,” like Dellinger or Goldstein; and Morrison.

“I told her, ‘I can get up to speed and I will find the time to devote as much time as I need to this,’ ” he recalled. Singer asked about his other projects for her, and Morrison promised to do those as well. After a few days, Singer told Morrison that he would argue the case and write the briefs with the help of the District’s other lawyers.

•  •  •

On September 4, 2007, the Tuesday after Labor Day, Mayor Fenty held a press conference on the steps of the old city hall to announce the filing of the District’s petition in the Supreme Court. All petitions to the Supreme Court must present a question for the justices at the outset. The District’s question was: Whether the Second Amendment forbids
the District of Columbia from banning private possession of handguns while allowing possession of rifles and shotguns.
³

The District’s opponents—Gura, Levy, and Neily—had been on pins and needles all summer awaiting the petition. When they saw how the District had framed the question for the justices to decide, they were not happy. The question was disingenuous, they believed, because it ignored the fact that the District’s gun laws required that all firearms (rifles, shotguns, and pre-ban handguns) be “unloaded and disassembled or bound by a trigger-lock or similar device unless such firearm is kept at [a] place of business, or [is] being used for lawful recreational purposes within the District of Columbia.”

To Gura, the District’s question was like saying
Time
magazine could be banned as long as the District allowed residents to read
Newsweek
. “This case was about whether handguns are protected under the Second Amendment and also could the city ban all functional firearms,” Gura explained, adding, “We took issue with the suggestion the city actually lets you have rifles and shotguns. They allowed you to have things that looked like rifles and shotguns but you could never render them operable, so what good is that? We argued the right to bear arms is the right to have arms that actually work. There’s no point in having a gun if you can’t ever fire it at someone breaking into your home.”

In their response to the District’s petition, the Levy team said the question for the justices was: Whether the Second Amendment guarantees law-abiding, adult individuals a right to keep ordinary, functional firearms, including handguns, in their homes.

And because the whole point of their five-year litigation battle had been to get an answer from the Supreme Court, they did not oppose review by the justices but told them the case presented a “unique opportunity to correct a persistent misconception that the people do not actually enjoy a right that is specifically enumerated in the Constitution. ‘The people’—individuals in our country—retain the right to keep and bear arms.”
⁴

In November, the justices announced they would hear arguments
in
District of Columbia v. Heller
, now named after Gura’s only client to have had standing to sue, Dick Heller. And the justices rewrote the question that they would decide to include the long gun provisions in the laws: whether three District gun regulations “violate the Second Amendment rights of individuals who are not affiliated with any state-regulated militia, but who wish to keep handguns and other firearms for private use in their homes.”

Arguments in the Court’s first substantive Second Amendment case in nearly a century were just four months away.

Based on its own criteria for granting review, did the Court have a strong reason for taking the District’s appeal? And what would have happened if it had denied review?

A federal appellate court, of course, had struck down the District’s gun restrictions—the first decision to invalidate a law on Second Amendment grounds—but there was no burning conflict among the federal appellate courts to resolve, a key criterion for Supreme Court review. There certainly was no burning controversy within the District itself since the regulations had been overwhelmingly approved by the elected city council in 1976 and there was no populist movement to repeal them. The appellate court also had said the individual right, like other rights, was not absolute and could be subject to reasonable regulation. If the Supreme Court had not gotten involved, the District conceivably could have tried to write new regulations that met constitutional concerns. There was substantial consensus throughout the country on the existence of an individual right to possess firearms: forty-two states had provisions in their state constitutions protecting that right. And those protections were not at risk. There was little appetite in Congress for national gun control legislation so there was no realistic risk that any individual right, if it did exist, was in danger.