The Roberts Court: The Struggle for the Constitution (18 page)

“For most Americans, they always assumed they had a right to defend themselves with a firearm in the home.”

—David Lehman, general counsel, National Rifle Association, 2011

W
hatever the justices’ plans were immediately after the term of their discontent, guns and the Second Amendment were not on their summer reading lists.

But that would change quickly. In just two months, one of the longest running political, social, and legal debates in the country’s history would arrive at the Roberts Court, which, as it had demonstrated in the school assignment cases, would be willing to step into the shoes of local elected officials, whatever their judgments, to provide the final answer.

The words of the Second Amendment, ratified in 1791 with the nine other amendments known as the Bill of Rights, seem deceptively simple: “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.” And yet those twenty-seven words had inspired a staggering number of competing interpretations in law reviews, books, and opinion pieces over the last three decades.

The debate essentially boiled down to two views. One view held that the amendment’s first clause—the preamble—makes clear that the right is a collective right tied to service in and preservation of a militia. The other view relied on the second clause—the operative clause—as creating an individual right to possess firearms not tethered to militia service.

There was little controversy over the meaning of the Second Amendment for most of the last century. Historians, courts, legal scholars, and others either accepted or endorsed the militia-based interpretation. But beginning in the 1980s and blossoming in the 1990s, a series of law review articles—primarily by conservative legal scholars—aggressively pushed the individual right interpretation. Some of the research was funded by the National Rifle Association (NRA). Many historians of the Founding era challenged the research and criticized it as “law office history.” With harsh words for the NRA, even former Chief Justice Warren Burger, in a 1991 interview on public television, said that the Second Amendment was “the subject of one of the greatest pieces of fraud, I repeat the word ‘fraud,’ on the American public by special interest groups that I have ever seen in my lifetime.”

But the individual right view gained considerable traction over time with the public and even with some well-known, liberal constitutional law scholars. By the time the question of the amendment’s meaning reached the Supreme Court, the justices would find scholarship on its meaning deeply divided.

If the justices were not thinking about the meaning of the Second Amendment that summer of 2007, three determined, conservative libertarian lawyers were, and had been for the previous five years. During that period, they manufactured the near-perfect lawsuit designed with one ultimate objective: a Supreme Court ruling that the Second Amendment guaranteed an individual right to possess firearms—not a collective right connected to service in a militia.

Happy Hours and guns can be a potentially lethal combination, but during one evening in 2002, they marked the beginning of a winning combination.

Clark Neily, intense and aggressively articulate, of average height and build, and Steve Simpson, tall, thin, soft-spoken, with a professorial look, are young, senior attorneys with the Institute for Justice, a libertarian public interest law firm in Arlington, Virginia, just outside Washington, D.C. The institute was set up in 1991 by two Reagan administration
veterans: William “Chip” Mellor and Clint Bolick, who had worked with Clarence Thomas when Thomas headed the Equal Employment Opportunity Commission. The institute’s lawyers litigate on behalf of private property rights, free speech, and school choice, and against government regulation of business. With remarkably sympathetic plaintiffs and smart lawyering, the institute has scored a number of victories in state and federal courts, including the U.S. Supreme Court.

But on that June evening in 2002, Neily and Simpson discussed over drinks a legal case not on the institute’s agenda. A federal appellate court, in a dramatic break with all other federal appellate courts to consider the question, had ruled in a criminal case that the Second Amendment protected an individual right to keep and bear arms.

The case—
United States v. Emerson
—stemmed from charges against Dr. Timothy Emerson for violating a section of a federal firearms law that prohibited the subject of a domestic restraining order from possessing a gun, here a Beretta pistol purchased by Emerson. The Texas doctor, in the process of a messy divorce, had threatened his wife and daughter with the pistol. He argued the federal provision banning his possession of a gun violated his rights under the Second Amendment and the due process clause of the Fifth Amendment.

Although a three-judge panel of the U.S. Court of Appeals for the Fifth Circuit, which includes Texas, Louisiana, and Mississippi, ruled 2–1 that the Second Amendment’s text and history supported the individual right interpretation, the panel unanimously held that the federal firearms provision was constitutional as it applied to Emerson. The panel explained that the individual right protected by the Second Amendment “does not mean that those rights may never be made subject to any limited, narrowly tailored specific exceptions or restrictions for particular cases that are reasonable and not inconsistent with the right of Americans generally to individually keep and bear their private arms as historically understood in this country.”
¹

The two judges in the majority rejected the federal government’s steadfast position—advanced by the Clinton administration—that the
Supreme Court’s decision in a 1939 case (
United States v. Miller
)
²
was binding precedent for the militia-based interpretation of the amendment.

The one judge who refused to join the Second Amendment finding called the majority’s eighty-four pages of analysis “dicta,” or non-binding, extraneous material not necessary to resolve the case. “Unfortunately, however, the majority’s exposition pertains to one of the most hotly-contested issues of the day,” he wrote. “By overreaching in the area of Second Amendment law, the majority stirs this controversy without necessity when prudence and respect for stare decisis calls for it to say nothing at all.”

The decision did, indeed, heat the controversy to a boil. Gun rights groups immediately hailed it as the most important Second Amendment decision in history.

While the
Emerson
case was pending before the appellate court, presidential administrations had changed. George W. Bush assumed the presidency and his administration dramatically shifted the government’s position on the Second Amendment. Just five months before the appellate court issued its opinion, Attorney General John Ashcroft, responding to a letter from the executive director of the National Rifle Association, wrote back on Department of Justice stationery:

“While I cannot comment on any pending litigation, let me state unequivocally my view that the text and the original intent of the Second Amendment clearly protect the right of individuals to keep and bear firearms. While some have argued that the Second Amendment guarantees only a ‘collective’ right of the States to maintain militias, I believe the Amendment’s plain meaning and original intent prove otherwise.”
³

Of course, the “some” who had argued for the collective rights interpretation included the federal government in court cases for almost seventy years. Gun rights and gun control groups as well as numerous media outlets broadcast the Ashcroft letter, its change in the government’s view of the Second Amendment, and what the future implications for gun law and gun litigation might be.

The appellate court in the
Emerson
case, however, did not address the Ashcroft position, only what the Department of Justice had advocated throughout the case—the collective rights position.

After the appellate court ruled in October 2001, Ashcroft, himself a member of the National Rifle Association, sent a memo the next month to all U.S. attorneys in which he told them, “In my view, the
Emerson
opinion, and the balance it strikes, generally reflect the correct understanding of the Second Amendment.”
⁴

Emerson sought review in the U.S. Supreme Court, which was then headed by Chief Justice William Rehnquist. In opposing review, the Bush administration’s solicitor general, Theodore Olson, informed the justices of the government’s new position on the Second Amendment. In a footnote in his brief, Olson wrote:

“In its brief to the court of appeals, the government argued that the Second Amendment protects only such acts of firearm possession as are reasonably related to the preservation or efficiency of the militia. The current position of the United States, however, is that the Second Amendment more broadly protects the rights of individuals, including persons who are not members of any militia or engaged in active military service or training, to possess and bear their own firearms, subject to reasonable restrictions designed to prevent possession by unfit persons or to restrict the possession of types of firearms that are particularly suited to criminal misuse.”

The “subject to reasonable restrictions” caveat was of particular importance to the Justice Department because it is charged with defending and enforcing federal firearms laws and it did not want those laws undermined. The Supreme Court, without comment, denied review of Emerson’s petition in June 2002.

The two libertarian lawyers, Neily and Simpson, sensed opportunity in the combination of the
Emerson
decision and the Ashcroft memo as they chatted over their drinks. The issue for them as libertarians was less about guns per se and more about individual liberty, even though neither man was a stranger to guns. Simpson had an extensive gun collection.
Neily’s father, who had grown up in Maine where he hunted, taught Neily and his sister how to shoot. “I think just on the premise if there are going to be guns in the house, then it’s important you know how to use them, but also to respect them,” Neily recalled.
⁵

As the two lawyers talked that evening, they agreed now that at least one federal circuit court had ruled in favor of the individual right theory, someone should challenge the District of Columbia’s gun law, considered the most restrictive law in the country—“In fact, the most sweeping law ever, I guess, with the exception maybe of slavery and the disarmament of blacks,” added Neily.

“Then there’s almost this comical moment, this brief pause when we both realize we’re public interest lawyers, libertarian public interest lawyers who like guns, and one of us looks at the other and says, ‘We ought to challenge that,’ ” said Neily.

The D.C. gun law, which required that all guns be registered, essentially had prohibited handguns from being registered for more than thirty years. If a resident had a legally registered handgun dating from 1976 or earlier, the gun could not be moved from room to room within one’s home without a special permit, and permits were not available.

The law also required that all firearms, including pre-ban handguns and lawfully registered rifles and shotguns, had to be unloaded and either disassembled or bound by a trigger lock at all times while kept at home. The city council had voted 12–1 in 1976 to enact the regulations in an attempt to stem the tide of gun violence in the city.

Neily and Simpson swiftly moved from talk to action when they approached Bob Levy in late June 2002 at a social gathering following a meeting of the conservative Federalist Society in Georgetown. Levy, quiet, small in stature, with a mischievous twinkle in his eyes, is chairman of the board of directors of the Cato Institute, the libertarian think tank in Washington, D.C. He also sits on the boards of the Institute for Justice, where Neily and Simpson worked, the Federalist Society, and George Mason University School of Law. A self-made millionaire who sold his investment information and software company and enrolled in
law school in 1991 at age forty-nine, Levy had little interest in guns but an intense interest in the Constitution.

Neily and Levy were close personal friends, having served together as law clerks on the federal district court in Washington, D.C. Levy subsequently clerked on the federal appeals court in D.C. for Judge Douglas Ginsburg, who, some might remember, was nominated to the U.S. Supreme Court by Ronald Reagan after the failed Robert Bork nomination, but who withdrew after news accounts revealed that he had used marijuana as a student and a professor at Harvard. When Simpson and Neily presented Levy with their idea of a Second Amendment challenge to the District of Columbia’s gun regulations, he essentially told them: great idea, what do you need from me, and make it happen.

“They convinced me the time was right,” recalled Levy. “It was a confluence of factors.”
⁶
Those factors, he said, were: the draconian nature of the District’s regulations; horrible crime statistics since the handgun ban was implemented; the
Emerson
decision; the Ashcroft announcement that the Second Amendment secured an individual right; and finally, the outpouring of recent scholarship that took the individual right position, including by some liberal constitutional law scholars.

Levy agreed to bankroll the litigation out of his own funds, and although the Cato Institute blessed the project, it was not to be a Cato or Institute for Justice project. He did not seek or want funds from any outside source because his interest was not to advance the gun rights agenda, he claimed, but to “vindicate the Constitution.” Chip Mellor, head of the Institute for Justice, gave the green light to Neily’s working on the litigation on his own time, but he wanted Simpson, who had only been with the institute less than a year, to do only institute work.

As the parents and school districts in the Seattle and Louisville cases were discovering around the same time, litigation in the federal courts with an eye toward the Supreme Court is not for the fainthearted. Levy and Neily took their first step in what would be their own five-year odyssey by searching for sympathetic clients in the lawsuit that they were planning.