The Oath (18 page)

Despite all the careful planning, the case ran into a problem the team had not fully anticipated. For all that they were fighting to advance a conservative goal—gun rights—their case was still a kind of public interest litigation. Like civil rights plaintiffs, these six people were initiating a lawsuit in order to challenge a government action. Thanks to the conservatives on the Supreme Court, the legal rules on standing in such cases had been tightened a great deal in recent years. Applying those new rules, the D.C. Circuit held that the plaintiffs could not simply walk into the courtroom and demand a ruling on the gun control law. The circuit court said the plaintiffs had to have actually made an application for a gun license and been rejected in order to have standing to bring the case. This rule presented a catch-22. Under the D.C. law, you had to own a handgun first to apply for a permit—but it was illegal to buy a gun in Washington. Federal law, moreover, made it illegal to
buy a gun in a state where you did not reside. So you needed a gun to apply for a license, but you couldn’t buy the gun in the first place.

Five of the six plaintiffs (including Shelly Parker) had not applied for gun licenses, so the D.C. Circuit threw out their cases. But the litigation survived. The sixth plaintiff, Dick Heller, was a specially assigned District of Columbia police officer who helped protect the Federal Judicial Center. He was issued a gun to use at work, and he wanted to keep a private handgun at his home as well. Alone among the plaintiffs, Heller already had a gun, and he had actually sought a gun permit from the D.C. government and been denied. For that reason, the court found that only Heller had standing to bring the constitutional challenge to the law.

But one plaintiff was enough. The D.C. Circuit adopted for the first time the individual rights theory. The court held that Heller had the right to “keep and bear arms” under the Second Amendment and struck down the local law. The lawyers for the District of Columbia asked the Supreme Court to review the decision, and the justices agreed to hear it. In the manner of such things, the case had taken years. Finally, on March 18, 2008, as the highlight of John Roberts’s third year as chief justice, the Supreme Court heard arguments in the case now known as
District of Columbia v. Heller
.

The government of the District of Columbia hired Walter E. Dellinger III, the former acting solicitor general in the Clinton administration and a veteran of Supreme Court litigation, to defend the gun law in front of the justices. Dellinger started with what he thought was his strongest material—the words of the framers themselves in 1787. In these debates, “every person who used the phrase ‘bear arms’ used it to refer to the use of arms in connection with militia service, and when Madison introduced the amendment in the first Congress, he exactly equated the phrase ‘bearing arms’ with, quote, ‘rendering military service,’ ” Dellinger said. “And even if the language of keeping and bearing arms were ambiguous, the amendment’s first clause confirms that the right is militia-related.”

If the second clause of the amendment granted an individual right to bear arms, Dellinger was saying, then the first clause, the militia clause, would have no meaning at all—and the framers must have included the
language for a reason. But Dellinger immediately ran into a problem with Anthony Kennedy, who would probably hold the swing vote.

Kennedy said he thought Dellinger was right that the militia clause could not be “extraneous.” But that didn’t solve the problem. In Kennedy’s view, the two clauses were entirely separate and both valid. “In effect the amendment says we reaffirm the right to have a militia, we’ve established it, but in addition, there is a right to bear arms,” Kennedy said. Later in the argument, Kennedy made his point even more clearly: “And in my view [the second clause] supplemented [the first clause] by saying there’s a general right to bear arms quite without reference to the militia either way.”

The debate continued in this vein as Dellinger, Gura, and Paul Clement, the solicitor general, argued the case. Clement expressed the Bush administration’s view that the Second Amendment protected an individual right and that the D.C. law was unconstitutional. The conversation rarely strayed from the eighteenth century. What did “bear” and “arms” mean to the framers? What did Blackstone, the English law scholar revered by the framers, think about the issue? The questions and answers reached an almost comic level of obscurity: “Do you think the Second Amendment is more restrictive or more expansive of the right than the English Bill of Rights in 1689?” … “If we’re going back to the English Bill of Rights, it was always understood to be subject to the control and limitation and restriction of Parliament.” … “That view was taken by William Raleigh in his 1828 treatise. Raleigh was, of course, a ratifier of the Second Amendment.” … “General Gage’s inventory of weapons seized from the Americans in Boston included some 1,800 or so firearms and then 634 pistols.”

At one point, David Souter had the temerity to return the conversation to twenty-first-century Washington, D.C., the ostensible focus of the case before the justices. “Can we also look to current conditions like current crime statistics?” he asked Gura.

“To some extent, Your Honor,” Gura answered, “but we have certainly—”

“Well, can they consider the extent of the murder rate in Washington, D.C., using handguns?” Souter went on.

Gura conceded the rate was high.

Then Scalia jumped in, almost jovially: “All the more reason to allow a homeowner to have a handgun!”

Scalia had good reason for cheer, because even before the
Heller
case
was decided, the argument alone represented a singular triumph for him. Before Scalia joined the Court, the lawyers in a case like
Heller
would have argued, in a general way, about how to apply the values reflected in the Second Amendment to the modern world. The justices would have sought to define a contemporary meaning of the Constitution. In contrast, Scalia often said that he believed in a “dead” Constitution—that its meaning was set for all time at the moment of its creation. The argument in
Heller
showed how much Scalia’s originalist view had come to dominate the Court. When Scalia was appointed to the Court, twenty years earlier, there was simply no way that an argument would have dwelled at such length, and in such detail, on the text of the amendment or the intentions of the framers. Scalia had brought originalism to the Court, and he had come to define the terms of the debates, if not always to win them.

The split in
Heller
was the familiar 5–4—with Stevens, Souter, Ginsburg, and Breyer in their customary losing position—but this time the surprise came from the chief justice. Instead of giving the opinion to Kennedy to keep him on board, Roberts asked Scalia to write for the majority. In his two decades as a justice, Scalia had few important majority opinions to his name. At first, his views were too eccentric for Rehnquist to trust him to keep a majority together. But the Court, and the country, had moved Scalia’s way, and now he reaped the reward.

Scalia turned
Heller
into a textualist and originalist tour de force. Literally word by word, Scalia deconstructed the meaning of the Second Amendment, using the sources available to the framers of the Constitution. (He cited Blackstone eight times.) He went back to the Glorious Revolution of seventeenth-century England, to uncover the roots of the constitutional right. “And, of course, what the Stuarts had tried to do to their political enemies, George III had tried to do to the colonists,” Scalia wrote. “In the tumultuous decades of the 1760’s and 1770’s, the Crown began to disarm the inhabitants of the most rebellious areas. That provoked polemical reactions by Americans invoking their rights as Englishmen to keep arms. A New York article of April 1769 said that ‘[i]t is a natural right which the people have reserved to themselves, confirmed by the Bill of Rights, to keep arms for their own defence.’ ” In light of this history, which Scalia laid out in exhaustive detail, he
concluded “the Second Amendment right is exercised individually and belongs to all Americans.”

Scalia’s greatest tribute came not from his allies but from his adversaries, particularly Stevens. Of course, Stevens disagreed with Scalia about the meaning of the Second Amendment. “The Second Amendment was adopted to protect the right of the people of each of the several States to maintain a well-regulated militia,” Stevens wrote. “It was a response to concerns raised during the ratification of the Constitution that the power of Congress to disarm the state militias and create a national standing army posed an intolerable threat to the sovereignty of the several States.” But to make his argument, Stevens relied on the same kind of evidence, and the same style of argument, as Scalia did for the majority. “Neither the text of the Amendment nor the arguments advanced by its proponents evidenced the slightest interest in limiting any legislature’s authority to regulate private civilian uses of firearms,” Stevens wrote.

Stevens, too, was talking like an originalist. The true measure of Scalia’s success in
Heller
was that he had changed the terms of the debate. In the twentieth century, it was inconceivable that two justices would spend thousands of words excavating from seventeenth- and eighteenth-century sources the purported intentions of the framers. The Supreme Court did not operate that way in those days. Scalia changed that. It was left to Breyer to write the kind of dissent that the justices used to produce. He said the protections of the Second Amendment, even if Scalia was right about its origins, should not be absolute. Rather than look exclusively at the framers’ debates in 1787 in Philadelphia, Breyer examined the records of the City Council of the District of Columbia in 1976, when it passed the gun control law. The council concluded, “on the basis of extensive public hearings and lengthy research, that the easy availability of firearms in the United States has been a major factor contributing to the drastic increase in gun-related violence and crime over the past 40 years.” According to Breyer, it was not the place of the Supreme Court to “second-guess the Council in respect to the numbers of gun crimes, injuries, and deaths, or the role of handguns.”

The ruling in
Heller
was announced on June 26, 2008, the last day of the term. As usual on the last day, the justices were tired and their nerves worn. Scalia’s voice was hoarse as he began, but he still could not resist going for a laugh. “Our opinion is very lengthy, examining
in detail the text and history of the Second Amendment,” he told the hushed courtroom. “This summary that I’m giving will state little more than the conclusions. If you want to check their validity against the dissent’s contrary claims, you’ll have to read some 154 pages of opinions.”

Soon enough, though, people did read all the pages. And some of the problems with the originalist view came into focus.

There was, for starters, the simple problem of historical accuracy. To the extent a historical debate can be settled, Stevens had the better argument about what the framers intended in the Second Amendment. Jack Rakove, a leading early-American historian at Stanford, joined by several other prominent academics, filed a brief in the
Heller
case that examined in depth the original meaning of the Second Amendment. It concluded, “Once explored, this context establishes that the private keeping of firearms was manifestly not the right that the Framers of the Bill of Rights guaranteed in 1789.” (Rakove later observed that while Scalia devoted a great deal of his opinion to statements made decades
before
the ratification of the Constitution, it was
Stevens who hewed more closely to the actual debates of the framers.)

At a minimum, the conflict between Scalia and Stevens underlined the difficulty of determining any single meaning of the intentions of the framers, more than two centuries after the fact. By eighteenth-century standards, the men who gathered were a diverse group. They had different ideas about what their work meant,
as did the state legislators who ratified their work. On many provisions, they compromised; on others, they left their words intentionally vague. Often, there is no single “original intent” or “original meaning.” Moreover, for all that the framers quarreled over the wording of the Constitution,
they never indicated that they understood their
intentions
should bind future generations. All that mattered, they thought, was the Constitution itself.

Even Scalia’s originalist approach could not settle all the issues in
Heller
. The Court concluded that the Second Amendment protected an individual’s right to keep and bear arms, but that still raised the question: which arms? A true originalist would identify which arms the framers believed were protected
and then find their twenty-first-century analogue. But here Scalia ran into a problem. In the eighteenth century,
militias required civilians to obtain military weapons. In the Uniform Militia Act of 1792, Congress compelled militia members to purchase muskets, bayonets, and other weapons that were needed in military combat. The true originalist would, presumably, assert that the Constitution protected an individual right to possess military weapons. But Scalia limited his ruling for the Court in
Heller
to handguns. He said D.C. could not ban handguns because “handguns are the most popular weapon chosen by Americans for self-defense in the home, and a complete prohibition of their use is invalid.” Scalia translated a right to military weapons in the eighteenth century to a right to handguns in the twenty-first. He never explained his rationale, but the reason was obvious. It would be intolerable to allow individuals to purchase tanks, bazookas, Stinger missiles, and other modern weapons of war. So, with little explanation, Scalia wrote those kinds of weapons out of the Second Amendment. He affirmed “the historical tradition of prohibiting the carrying of dangerous and unusual weapons” and noted further that “nothing in our opinion should be taken to cast doubt on long-standing 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.”