The Roberts Court: The Struggle for the Constitution (25 page)

Dellinger also kept coming back to
United States v. Miller
, the last time the Supreme Court had addressed the substance of the Second Amendment. The 1939 decision was the precedent on which all of the federal appellate courts had relied for the militia–collective rights view until the 2001 opinion by the Fifth Circuit in
United States v. Emerson
, which adopted the individual right interpretation.

Jack Miller and Frank Layton were Oklahoma bank robbers who were stopped by Oklahoma and Arkansas state police in 1938. They had with them an unregistered, double-barrel, 12-gauge sawed-off shotgun. They were arrested for violating the National Firearms Act of 1934. The trial court found that the act violated the Second Amendment. The United States appealed to the Supreme Court. Miller’s attorney never participated in the case. An eight-member Supreme Court reversed the trial court.

Although both gun rights and gun control advocates agree the
Miller
decision was poorly written, both claim support in it for their views. Gun rights groups argue the decision was limited to the type of weapon at issue—a sawed-off shotgun—because Justice James Clark McReynolds wrote: “In the absence of any evidence tending to show that possession or use of a ‘shotgun having a barrel of less than eighteen inches in length’ at this time has some reasonable relationship to the preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument. Certainly it is not within judicial notice that this weapon is any part of the ordinary military equipment or that its use could contribute to the common defense.”

But gun control groups contend that McReynolds’s opinion supported the militia-based right because the justice also wrote: “With
obvious purpose to assure the continuation and render possible the effectiveness of such [militia] forces the declaration and guarantee of the Second Amendment were made. It must be interpreted and applied with that end in view.”

In the
Heller
gun challenge, the District of Columbia federal appellate court concluded that Miller meant that the Second Amendment protects an individual right to possess and use weapons “of the kind in common use at the time,” including handguns. Dellinger was not convinced.

“There had been a campaign for decades in this sort of public Second Amendment debate to delegitimize
Miller
,” he said. “Everybody who advised me said it had been so successful I was just going to get into a lot of trouble by raising
Miller
. It seemed to me this issue was resolved in
Miller
and the Court was going to have to overrule
Miller
to find an individual right. I was very tempted to begin my argument by saying the issue in this case is whether
United States v. Miller
should be overruled.”

•  •  •

The Court had scheduled the argument for March 18, 2008, a Tuesday morning, at 10 am. The usual argument time—sixty minutes, with thirty minutes per side—had been lengthened to seventy-five minutes, including time allotted to Solicitor General Paul Clement for the government’s position. During the arguments, Chief Justice Roberts would extend the time an additional twenty-two minutes to accommodate the justices’ intense questioning.

On the Sunday before the argument, Dellinger was in his firm’s downtown office preparing when he turned on the television at 6 pm to get the sports scores. “The local news was live from the steps of the Supreme Court where people were lined up out to the street on Sunday night for the Tuesday morning argument,” he recalled. “It made my knees buckle. I immediately turned off the television and went back to work without getting the sports scores.”

The night before the argument was a normal one for Gura, who
had dinner with his family, went to bed, and slept “okay.” He, Neily, and Levy got to the Court early the next morning. The line of people that had begun to form two nights before to get into the courtroom now snaked across the plaza and down around the block. The trio had given a fourth seat at counsel’s table to Dave Kopel, research director of the Independence Institute in Golden, Colorado, who has written extensively about the Second Amendment and was instrumental in coordinating the amicus briefs. The men met in the lawyers’ lounge off of the courtroom and had coffee.

Despite the chilly morning, Dellinger, as was his practice, biked to the Court, a practice that helped him “clear his head.” Paul Clement, the solicitor general, waited in his own office at the Court. That office is a symbol of how important the solicitor general is to the institution: the solicitor general is the only federal official with an office in both the judicial and the executive branches of government.

No empty seats could be found in the courtroom that morning. Extra rows of chairs to accommodate the overflow press filled the aisle behind the marble pillars that marked off the regular press pews. The same sense of anticipation that had electrified the room on the morning of the Seattle-Louisville school arguments a year earlier charged the atmosphere once again. But everyone would have to wait just a few more minutes. After the justices took their seats at 10 am, Chief Justice Roberts announced that Justice Thomas had the Court’s opinion in
Washington State Grange v. Washington State Republican Party
.

Because Thomas’s voice is so rarely heard in the courtroom, the audience was rapt as he explained the issue in the case. Washington voters had approved an initiative requiring that candidates for office must be identified on the primary ballot by their self-designated party preference; that voters may vote for any candidate; and that the two top vote-getters for each office, regardless of party preference, advance to the general election. The states’ political parties charged that the new law, on its face, violated a party’s First Amendment association rights by usurping their right to nominate their own candidates and by forcing
them to associate with candidates they did not endorse. Thomas, in a 7–2 decision, said the initiative, on its face, did not impose a severe burden on the parties’ association rights. Justices Scalia and Kennedy dissented.

The 2007 term, up to this point, had been relatively uneventful, particularly compared to the prior term’s menu of hot-button cases triggering high emotions. The Court in December had heard arguments in another potential headliner case—the Guantánamo Bay detainee challenge,
Boumediene v. Bush
—but no decision had been issued. And another closely watched case involving a challenge to Louisiana’s imposition of the death penalty for the rape of a child was not being argued until mid-April.

The emotional thermometer inside the Court was lower as well from the prior term. “People calm down; they move on,” explained one justice.

After Thomas finished his summary of the election decision, Roberts announced argument in
District of Columbia v. Heller
.

Dellinger, representing the District, rose and pressed his main argument that the Second Amendment was a reaction to the militia clauses in Article I of the Constitution, which gave the new national Congress “the surprising, perhaps even shocking, power to organize, arm, and presumably disarm the state militias,” he said. The individual right protected by the amendment, he argued, was the right to participate in the common defense and to go to court if a federal law or regulation interfered with that right.

Minutes into Dellinger’s argument, Kennedy tipped his hand. It was a moment when all of the lawyers, including those in the audience who had followed the long debate over the amendment’s meaning, knew that the gun rights arguments had won. Kennedy told Dellinger that he saw a way to conform the amendment’s two clauses and, in effect, delink them. He was referring to the preamble (A well-regulated Militia, being necessary to the security of a free State) and the second clause (the right of the people to keep and bear Arms, shall not be infringed).

“The first clause, I submit, can be read consistently with the purpose I’ve indicated of simply reaffirming the existence and importance of the militia clauses,” said Kennedy, referring to Article I, Section 8 of the Constitution, which gives Congress the power to call “forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions.”

“And so in effect the [Second] amendment says we reaffirm the right to have a militia, we’ve established it [in another part of the Constitution], but in addition, there is a right to bear arms,” suggested Kennedy.

Dellinger countered there was nothing at the time in the debates over the Second Amendment that referred to the use of weapons for personal purposes.

Kennedy was not deterred, asking, “It had nothing to do with the concern of the remote settler to defend himself and his family against hostile Indian tribes and outlaws, wolves and bears and grizzlies and things like that?”

No, responded Dellinger, that was not part of the Second Amendment discourse.

Kennedy’s suggestion was so inconsistent with the historical record, Dellinger thought, there was no hope of reaching him. Kennedy was saying that the first clause of the Second Amendment was written simply to emphasize the importance of another section of the Constitution, the so-called militia clause in Article I, Section 8, outlining the powers of Congress.

Kennedy’s interpretation was “exactly totally backward,” Dellinger said later. “The Second Amendment arose out of hostility to the militia clause, deep hostility to it, when it gave Congress control over the state militias. Everything about it was a reaction to that hostility. The idea [the Framers] wanted to reemphasize the value of the militia clause turns the history of this amendment literally upside down and backwards.”

Dellinger knew at that moment that he was going to lose, as did Peter Nickles, the District’s attorney general, sitting at the counsel table.

Gura and Neily, sitting next to each other at the counsel’s table on
the other side of the lectern, tried mightily not to look at each other after Kennedy’s comments. “That was an electric moment,” said Neily. “I remember it vividly, and essentially trying to keep my face pointed forward and looking over with my eyes, making eye contact with Alan, and both of us knowing at that moment we had Kennedy. We had won.”

The moment and its significance were not lost on some in the audience as well. Gun rights litigator Stephen Halbrook remembered, “The big wild card for us was Kennedy. We’re on the edge of our seats and Kennedy opens his mouth and he comes out with colonists and frontiersmen and they have to protect themselves from grizzly bears—grizzly bears in the East!” He laughed. “That suggested the individual right interpretation.”

His frequent opponent, Dennis Henigan of the Brady Center, had waited in the cold from four thirty that morning for a seat inside. “There was nothing but anxiety going into it. It was clearly up to Kennedy,” said Henigan. “Once he spoke and started talking about the need for guns to confront bears and cougars . . . I have spent a good part of my professional career writing and talking about the Second Amendment and essentially arguing against the individual right view in every way I know how. There was the U.S. Supreme Court going to endorse this view I thought was total bunk. I just closed my eyes.”

Scalia also showed his hand when, reacting to Kennedy’s suggested reading of the amendment’s two clauses, he said, “I don’t see how there’s any contradiction between reading the second clause as a personal guarantee and reading the first one as assuring the existence of a militia. The two clauses go together beautifully: Since we need a militia, the right of the people to keep and bear arms shall not be infringed.” He also referred to William Blackstone, the great eighteenth-century English jurist whose commentaries on the laws of England were highly influential with the Framers. Blackstone thought the right of self-defense was inherent, said Scalia.

And Roberts asked Dellinger, “What is reasonable about a total
ban on possession?” Dellinger answered, “What is reasonable about a total ban on possession is that it’s a ban only on the possession of one kind of weapon, of handguns, that has been considered especially, especially dangerous.”

When his turn came, Solicitor General Paul Clement held steadfastly to the government’s argument that the amendment protected an individual right to possess a gun in the home, but the right was subject to government regulation that should not have to undergo the toughest constitutional scrutiny, but some lesser standard. Roberts pushed back, saying, “I wonder why in this case we have to articulate an all-encompassing standard. Isn’t it enough to determine the scope of the existing right that the amendment refers to, look at the various regulations that were available at the time . . . and determine how this restriction and the scope of this right look in relation to those?”

Scalia asked Clement what he was worried about—machine guns, armored bullets? And Clement responded that the lower federal appellate court’s language in the
Heller
decision seemed to say that once something is defined as a firearm, the District could not ban it, and that raised concerns about certain provisions in federal firearm laws.

Alan Gura faced his most aggressive questioning from Justices Breyer, Stevens, and Ginsburg. Breyer asked, assuming the nature of the right is to maintain a citizen army and for people to understand weapons—which they can do with the rifles that the District allows—why is it unreasonable “for a city with a very high crime rate to say no handguns here?” Because, answered Gura, proficiency in use and familiarity with the handgun at issue would further a militia purpose.

Stevens asked if the amendment limits the kinds of arms appropriate to a militia, “Why does it not also limit the kind of people who may have arms?” And Gura replied, “It would certainly be an odd right that we would have against the Congress, if Congress could then redefine people out of that right.” Stevens also pressed him on the fact that only two state constitutions at the time of the Second Amendment’s framing referred to keeping and bearing arms for self-defense; the others referred to the common defense.