View Full Version : Bob Levy: Heller - A short history

11-12-2008, 2:20 PM
Reposted from The Journal of the Federalist Society Practice Groups - Volume 9, Issue 3 October, 2008 - errors copying from the original:

It took nearly 5-1/2 years of litigation, a feckless 32-year
handgun ban in the nation's capital, and a 69-year old
Supreme Court case, muddled and misinterpreted by appellate courts
across the country. At the end, on June 26, 2008, by a 5-4 vote, the
Supreme Court proclaimed unequivocally that the Second Amendment secured
an individual right to keep and bear arms for self-defense. That was the
holding in District of Columbia v. Heller, the most important Second
Amendment case in U.S. history. Here's how it happened: the legal team,
the timing, the plaintiffs, the location, the role of the National Rifle
Association, and how the Justice Department nearly undermined our


Late in 2002 I was approached by Clark Neily, an attorney at the
Institute for Justice (IJ), where I serve on the board of directors.
Although decades apart in age (he's 40, I'm 66), Clark and I maintain a
close friendship after clerking together on the federal courts. We also
share a political philosophy centering on strictly limited government
and expansive individual liberties. Clark and his colleague at IJ, Steve
Simpson, had decided the time was right to file a Second Amendment
challenge to Washington D.C.'s handgun ban. I was asked to become a
member of the legal team, explore the prospects for a lawsuit, help with
preliminary research, and provide funding.

At roughly the same time, I came in contact with Dane Von
Breichenruchardt, who heads the Bill of Rights Foundation. Dane
introduced me to Dick Heller, a private police officer who believed
strongly in Second Amendment rights and wanted to challenge D.C.'s gun
laws. Dick became our sole surviving plaintiff -about which more in a
moment. Persuaded by Clark's and Steve's preliminary legal analyses, and
heartened by Dick's enthusiasm, I agreed to sign on, and then convinced
my Cato Institute associate, Gene Healy, to join us.

After our team of lawyers completed a more detailed review of the legal
landscape, we resolved to move ahead. Clark and Steve had provided the
strategic insight, but Steve was not able to participate in the
litigation because of his duties at IJ. And because Clark, Gene, and I
were busily engaged on other projects, we set out to hire an outside
lawyer to serve as lead counsel. , at position was filled by Alan Gura,
37, a private attorney in the DC area who had been a law clerk at IJ. ,
us, four of the fi ve original attorneys had ties to IJ; two attorneys
had ties to Cato, as did one of the plaintiff s (Cato vice president,
Tom Palmer).

Neither organization was directly involved in the litigation, but both
supported the lawsuit and fi led amicus (friend-of-the court) briefs.
Indeed, Justice Antonin Scalia cited IJ's brief favorably in his Heller
majority opinion. Equally important, Cato and IJ provided extensive help
with media relations - supervised by John Kramer, IJ's consummate
communications expert. And perhaps most important, the Heller lawsuit
had an IJ imprint from the outset. Fashioned as a public interest
lawsuit, Heller required sympathetic clients, a media-savvy approach,
and strategic lawyering-in short, the same characteristics that had
brought IJ before the Supreme Court three times in the past six years,
in cases involving eminent domain, interstate wine shipments, and school

After we filed the lawsuit in February 2003, Gene Healy was called away
by the press of other business. That left a three-man team-Alan Gura,
Clark Neily, and I-which remained intact throughout the litigation. And
therein lies an interesting sidebar: I had no prior litigation
experience, much less a case before the Supreme Court. Clark was an
experienced and talented trial and appellate litigator, but he too had
no Supreme Court experience. Ditto for Alan, who, as lead counsel, had
primary responsibility for crafting the briefs and arguing our case
before three courts, including the Supreme Court. Not surprisingly, when
the Supreme Court agreed to review Heller, I was besieged with advice
from concerned allies to have a Supreme Court superstar argue the case.
I was warned that someone like Ted Olson or Ken Starr was needed to go
up against former solicitor general Walter Dellinger, who had agreed to
argue on behalf of the city.

I rejected that advice, for several reasons: First, Alan had piloted our
winning effort before the U.S. Court of Appeals for the District of
Columbia Circuit. That was no small accomplishment-the fi rst ever
federal appellate decision to overturn a gun control regulation on
Second Amendment grounds. Second, Alan had immersed himself in
gun-related issues over more than five years. He knew the material cold,
whereas a new attorney-even a superstar-would have a short, steep
learning curve. Third, and most important, Alan had agreed to work on
Heller for subsistence wages. He had made significant professional and
financial sacrifices, in return for which I had committed to him that he
would carry the ball, however far the case advanced. In the end, I was
not willing to renege on that commitment. Clark fully supported that

Continued next post

11-12-2008, 2:21 PM

Looking back, fair-minded observers on both sides of the case
acknowledge that our legal team-outmanned, out-financed, and
inexperienced-performed commendably, capped by Alan's confident and
persuasive oral argument before the Supreme Court. Our victory evolved
over more than a half-decade, beginning with our first court submission
in early 2003. Why, though, did we file at that time-three decades after
enactment of the D.C. gun ban; seven decades after the Supreme Court's
decision in United States v. Miller?

Three triggering events precipitated the litigation. First, there was an
outpouring of scholarship on the Second Amendment, and some of it came
from self-identified liberals 28! Engage Vol. 9, Issue 3 who concluded
that the Amendment secured an individual, not a collective, right.
Harvard's Alan Dershowitz, a former American Civil Liberties Union board
member, says he "hates" guns and wants the Second Amendment repealed.
But he has condemned "foolish liberals who are trying to read the Second
Amendment out of the Constitution by claiming it's not an individual
right.. They're courting disaster by encouraging others to use the same
means to eliminate portions of the Constitution they don't like."
Harvard's Laurence Tribe, another respected liberal scholar, and Yale's
professor Akhil Amar both recognize that there is an individual right to
keep and bear arms, albeit limited by what they call "reasonable
regulation in the interest of public safety."

In that respect, Tribe and Amar agree with advocates for gun-owners'
rights on two fundamental issues: (1) the Second Amendment confi rms an
individual rather than a collective right; and (2) that right is not
absolute; it is subject to regulation. To the extent there was
disagreement, it hinged on what constitutes permissible regulation-that
is, where to draw the line. It was apparent to us that D.C.'s ban fell
on the impermissible side of that line.

The second triggering event was a 2001 decision by the U.S. Court of
Appeals for the Fifth Circuit in United States v. Emerson. The Fifth
Circuit was bound by the Supreme Court's Miller precedent, but concluded
that Miller upheld neither the individual rights model of the Second
Amendment nor the collective rights model. Miller decided simply that a
sawed-off shotgun was not self-evidently the type of weapon that was
protected. But the Fifth Circuit went further. It held that the
Constitution "protects the right of individuals, including those not
then actually a member of any militia. to privately possess and bear
their own firearms. suitable as personal individual weapons."

That right is not absolute, said the appellate court. Killers do not
have a constitutional right to possess weapons of mass destruction. Some
persons and some weapons may be restricted. Indeed, the court held that
Dr. Timothy Joe Emerson's individual right under the Second Amendment
could be temporarily curtailed because there was reason to believe he
might have posed a threat to his estranged wife. But setting Emerson's
personal situation aside, the Fifth Circuit-alone in 2001 among all the
federal appellate courts that tried to make sense of Miller's elusive
logic-subscribed to the individual rights model of the Second Amendment.

The Supreme Court declined to review Emerson. Although the Fifth
Circuit's interpretation of the Second Amendment differed fundamentally
from the interpretation of all other federal appellate courts, the high
Court sidestepped the question-probably because Dr. Emerson had lost. In
the end, the Fifth Circuit upheld the federal statute at issue in
Emerson. , at meant the statute was still good law in all U.S.
jurisdictions. So the Supreme Court had no practical or pressing need at
that time to resolve the Second Amendment debate.

The third triggering event was an unambiguous pronouncement on the
Second Amendment from the Justice Department under former U.S. Attorney
General John Ashcroft. First, in a letter to the NRA, he reaffi rmed his
long-held belief that all law-abiding citizens have an individual right
to keep and bear arms. Ashcroft's letter was supported by 18 state
attorneys general, including six Democrats. , e letter was followed by a
Justice Department brief fi led in opposition to Supreme Court review of
the Emerson case. Despite opposing Supreme Court review, the Justice
Department expressly argued, for the first time in a formal court
submission, against the collective rights position. Later, in 2004, the
Justice Department affirmed its view of the Second Amendment in an
extended and scholarly staff memorandum opinion prepared for the
Attorney General. The opinion concluded that "[t]he Second Amendment
secures a right of individuals generally, not a right of States or a
right restricted to persons serving in militias."

11-12-2008, 2:22 PM

Having decided that the timing was ripe, we turned next to the selection
of plaintiff s. One of the disadvantages of public interest law is that
the clients do not pay. One of the major advantages, however, is that we
could be very selective in our choice of issues and, especially,
plaintiff s. For starters, we knew that the case would unfold not only
in the courtroom but in the court of public opinion. Accordingly, we
needed plaintiff s who would project favorably and be able to
communicate with the media and the public. Ideally, they should be
diverse-by gender, race, profession, income, and age. , ey should
believe fervently but not fanatically in Second Amendment rights, fear
for their safety within their homes, and have need of a loaded weapon
for self-defense. Naturally, we wanted law-abiding, responsible
citizens, with no criminal record, but a compelling story to tell.

In satisfying those criteria, we exhausted our contacts in the legal
community, looked for names in newspaper articles and letters to the
editor, spoke to friends and friends of friends, considered dozens of
preliminary prospects, interviewed a smaller number, and settled fi
nally on six. The plaintiff s comprised three men and three women,
ranging in age from their mid-twenties to their early sixties. Four were
white; two were African-American.

The lead plaintiff , Shelly Parker, was a neighborhood activist who
lived in a high-crime area in the heart of the city. Drug dealers and
addicts harassed residents of her block relentlessly. Ms. Parker decided
to do something about it. She called the police-to no avail, time and
again-then encouraged her neighbors to do the same. She organized block
meetings to discuss the problem. For her audacity, Shelly Parker was
labeled as a troublemaker by the dealers, who threatened her at every
opportunity. Shortly before we fi led the case, a dealer tried to break
into her house, cursing and yelling, "*****, I'll kill you. I live on
this block, too." He was charged with felony threat but acquitted.
Shelly Parker knew that the police wouldn't do much about the drug
problem on her block. She wanted a functional handgun within her home
for self-defense; but she feared arrest and prosecution because of
D.C.'s unconstitutional gun ban.

A second plaintiff, Dick Heller, was a special police officer who
carried a handgun every day to provide security for a federal offi ce
building, the Thurgood Marshall Judicial Center. But when he applied for
permission to possess that handgun within his home, to defend his own
household, the D.C. government turned him down. Among the other
plaintiff's was a gay man assaulted in California on account of his
sexual orientation. While walking to dinner with a co-worker, he
encountered a group of young thugs yelling "***got," "homo," "queer,"
"we're going to kill you and they'll never find your bodies." He pulled
his handgun-which his mother had given him, anticipating just such a
need-out of his backpack and his assailants retreated. He could not have
done that in Washington, D.C.-not even if the assailants had entered his

Originally, the case was captioned Parker v. District of Columbia-named
after our lead plaintiff , Shelly Parker. That changed when fi ve of our
six plaintiff s, including Parker, were dismissed for lack of legal
standing. Only Dick Heller remained. From that point forward, his name
was substituted for Shelly Parker's.

"Standing" is a complex doctrine requiring that plaintiff's demonstrate
that they have suff ered a "redressable injury" before they can have
their lawsuit heard by a court. In this instance, only Dick Heller had
applied to register a firearm and been rejected by the District. , e
denial of Heller's application was his injury. By contrast, the other
plaintiff s had not tried either to register a weapon or obtain a
license. Instead, they had simply declared their desire to have a loaded
fi rearm in their homes, and then claimed that D.C.'s gun laws
frustrated that goal. The court, applying the District's unique standing
doctrine, noted that the plaintiff s had not actually broken any law.
According to the court, their risk of prosecution was not sufficiently
credible or imminent to constitute injury. Hence, no standing for fi ve
of six plaintiffs.

In D.C., law-abiding citizens who have not applied for registration
cannot challenge the city's gun laws; that privilege is reserved to
law-breaking citizens. Responsible plaintiff s are barred from court;
only criminals can sue. Nor is it possible for most would-be plaintiff s
in D.C. to follow Heller's example and apply for registration. In that
respect, D.C.'s rules are the ultimate Catch-22. No one can register an
imaginary handgun; he or she must own one to register it. But from 1976
until now, it has been illegal to buy a handgun in Washington, D.C. And
federal law says it's illegal to buy a handgun anywhere except the state
in which the buyer resides. , us, to obtain standing today, a D.C.
resident would have to move out of D.C., buy a gun, move back to D.C.
with proof of ownership, and then apply for registration.

As for Heller, he had legally acquired a handgun years ago. He could not
keep the gun in his D.C. home, but he did have the paperwork to prove
the weapon was his. Dane Von Breichenruchardt, who had introduced Heller
to us, prevailed on Heller to apply for registration in July 2002, seven
months before we filed the lawsuit. When we became aware that Heller had
followed Dane's advice and registration had been denied, we included a
statement to that eff ect in our complaint and, later, an affi davit
from Heller as well as a copy of his rejected application. Those
documents proved suffi cient to confer standing on Heller. Technically,
because we were not seeking monetary damages for each client, one
plaintiff was all we needed to stop D.C. from enforcing its
unconstitutional gun ban. But the five other plaintiff s were sorely

Consequently, we asked the Supreme Court to restore standing to our
five dismissed plaintiff s. Without explanation, however, the Court
refused to review D.C.'s standing doctrine. Here's what that means:
nearly everywhere in the country, except in the nation's capital, courts
do not require citizens first to violate a law in order to contest its
constitutionality. Yet, when it comes to restrictions on fi rearms
ownership, D.C. says that a threat of enforcement is not suffi cient to
confer standing. The plaintiff s in our case were specifi cally
threatened with prosecution by D.C. offi cials-in open court, in
newspaper interviews, and in a town meeting. Still, no standing.

Moreover, fear of enforcement-even without threats- causes people to
refrain from doing what they would otherwise do. If a person could show
he would have acquired a handgun, but did not out of concern that he
would be prosecuted, then he has suff ered the type of injury that is
classic in pre-enforcement suits. Consider, for example, an abortion or
First Amendment case. Would a pregnant woman have to be charged for
having an illegal abortion before she could assert standing to challenge
a restrictive law? If a shop owner wants to test a statute banning
storefront political posters, does he first have to display the poster
and risk punishment? Not even D.C. would impose such impediments to
raising those constitutional claims. Evidently, however, the Second
Amendment is diff erent. When it comes to keeping arms for self-defense,
D.C.'s shameful message is: "If you want to challenge the law, first you
have to break it."

11-12-2008, 2:22 PM

Even though we were unable to obtain standing for five plaintiff s under
D.C.'s prohibitive rules, the nation's capital was still the best venue
to file our lawsuit. First, the city's rate of gun violence was, and is,
among the highest in the nation. Second, D.C. had the most restrictive
gun laws of any major city-in fact, the most sweeping gun laws in the
history of the country. Essentially, all handguns acquired after 1976
were banned; no handguns acquired before 1976 could be carried
anywhere-even from room to room in a person's own home-without a permit,
which in practice was never issued; and all rifles and shotguns in the
home had to be unloaded and either disassembled or trigger-locked.

Because of D.C.'s draconian regulations, we were able to pursue an
"incremental" Second Amendment strategy- analogous to the strategy that
Thurgood Marshall and the NAACP had pursued with great success in the
civil rights arena. That meant: (1) seek only narrow relief-i.e., don't
ask the Court, in its fi rst Second Amendment case since 1939, for
permission to carry concealed weapons in public or to own a machine gun;
(2) focus solely on the Second Amendment-no statutory issues or other
constitutional issues that might distract the Court; and (3) challenge
only the worst provisions of DC law-a ban on all functional firearms in
all homes of all people at all times for all purposes-thereby negating
the city's claim that its regulations are "reasonable."

Our third reason for selecting D.C. involved the legal
question of "incorporation." Until the Fourteenth Amendment
was ratifi ed in 1868, the Bill of Rights applied only against the
30! Engage Vol. 9, Issue 3 federal government. Unlike most of the other
Ten Amendments, which have now been "incorporated" against the states by
means of the Fourteenth Amendment, the applicability of the Second
Amendment to the states has not been resolved. By filing our Second
Amendment challenge in Washington, D.C., we did not have to address that
issue. , e U.S. Congress, not a state, is constitutionally empowered "To
exercise exclusive Legislation in all Cases whatsoever" over the
nation's capital-which means the Bill of Rights directly limits
Washington, D.C., laws.

Fourth, D.C. is where the federal government lives. That means Second
Amendment claims against the federal government can be litigated in
D.C., no matter where a rights violation allegedly occurred. It's always
proper to sue a defendant where the defendant resides. In that respect,
D.C. was clearly the most important of all the judicial circuits. A
victory in D.C. would alter Second Amendment jurisprudence not only for
cases arising under D.C. law, but for all cases arising under federal
law as well-no matter where the claim initially surfaced. Moreover, the
U.S. Justice Department, which defends federal statutes against Second
Amendment claims, was already on record as supporting an individual
right to keep and bear arms.

Finally, the U.S. Court of Appeals for the District of Columbia Circuit
was the only federal appellate court that had not yet fleshed out its
view of the Second Amendment. In order to reach the Supreme Court-which
was our principal objective-we had to create a split of authority among
the appellate circuits that only the Supreme Court could resolve.
Inconsistent federal law from circuit-to-circuit is typically the single
most important criterion in persuading the high Court to accept a case
for review. All of the other federal appellate courts had disallowed
Second Amendment challenges to gun control regulations. Only in D.C. did
we have a chance of convincing a federal appellate court, for the fi rst
time, to declare a gun regulation unconstitutional.

11-12-2008, 2:23 PM

With our legal team in place, the right timing, great clients, and the
perfect venue, all we needed was a few dollars to cover litigation
costs. , at's an area where I was able to help-with generous assistance
from Clark, who received no compensation, and Alan, who received
next-to-no compensation. Other gun-rights advocates and organizations
had off ered fi nancial aid. But we didn't want the case portrayed as
litigation that the gun community was sponsoring. First and foremost,
our interest was to ensure that the D.C. government complied
with the text, purpose, structure, and history of the Second Amendment.
For us, Heller was about the Constitution; guns merely provided context.

Another advantage in funding the lawsuit ourselves was the ability to
retain complete control over plaintiff selection, legal arguments, and
litigation strategy. , at did not mean we ignored potential alliances
with groups like the NRA. Indeed, when we fi rst considered fi ling a
lawsuit, we notifi ed the NRA and sought input from its Second Amendment
specialists. To our surprise, the NRA advised us not to proceed. , e
NRA's stated concern was that the case might be good enough to win at
the appellate level, but would not be victorious before a lessthan-
hospitable Supreme Court. As a result, we could win the battle, but lose
the war.

We declined the NRA's advice for a number of reasons. First, and most
important from our perspective, the Fifth Circuit's 2001 Emerson
decision had prompted criminal defense attorneys nationwide to raise
Second Amendment defenses to gun charges. We feared that one of those
cases would eventually make its way to the Supreme Court, resulting in
an accused murderer or drug dealer becoming the poster child for the
Second Amendment. Second, the Court looked more favorable from a Second
Amendment perspective than it had looked in some time. And with a
Republican president fi lling vacancies, we thought the Court's
composition might even improve by the time our case wound its way up.
(In fact, it did.) , ird, the gun controllers had more to lose than we
did. Federal appeals courts covering 47 states had denied that the
Second Amendment protected a private, individual right. Those decisions
could be no worse even if we lost in the Supreme Court. On the fl ip
side, 44 states had their own statutory or constitutional provisions
protecting an individual right to bear arms, and 48 states allowed
concealed carry with varying degrees of police discretion. None of those
laws rested on the Second Amendment, so they too would be unaff ected if
the Supremes did the wrong thing. Fourth, we had the support-or so we
thought-of the Department of Justice, which could easily change its view
under a more liberal administration.

Accordingly, we went forward despite the NRA's opposition. Two months
later, evidently not wishing to remain on the sidelines, the NRA
sponsored a copycat suit, Seegars v. Ashcroft (later Gonzales), in the
same court, raising many of the same issues and asking virtually the
same relief. , e NRA then filed a motion to consolidate its case with
ours-a none-toosubtle attempt to take control of the litigation. Of
course, we opposed that motion, and after three months of legal
wrangling, we won: the suits were not consolidated. , at was good news.
But now there were two diff erent Second Amendment suits moving through
D.C.'s federal courts on parallel tracks-one of which was wholly
unnecessary and, as we shall see, legally weaker.

By chance, the NRA's suit-fi led months after ours and assigned to a
different judge-was decided first. The NRA lost, then appealed to the
U.S. Court of Appeals in D.C. We too lost at the trial court level, and
appealed shortly thereafter. But the NRA litigation had reached the
appellate court before ours, so the court put our case on hold pending
the outcome of the NRA appeal, which seemed likely to dictate the
outcome of our appeal as well. At that point the NRA had accomplished
its objective: it had taken control of the litigation.

That was not to last very long. , e NRA had-mistakenly, in our view-sued
not only the city of Washington, D.C., but also the Justice Department.
And it was the Justice Department, not the city, which raised a standing
defense to the NRA lawsuit. As noted above, plaintiff s are required to
demonstrate concrete injury in order to fi le suit. Pursuant to the D.C.
Circuit's idiosyncratic Second Amendment standing doctrine, it's not
enough for a plaintiff to assert an interest in owning a prohibited gun.
Instead, the would-be plaintiff must actually apply to register a
forbidden weapon, and then be denied by the city. Unlike Mr. Heller in
our case, none of the NRA's Seegars plaintiff s had submitted the
requisite application. All were dismissed by the court of appeals for
lack of standing. And because the Seegars decision never addressed
the underlying Second Amendment question, our case was allowed to go

We hoped that would be the end of our problems with the NRA.
Unfortunately, it was not. The NRA's next step was to renew its lobbying
effort in Congress to repeal the D.C. gun ban. Ordinarily that would
have been a good thing, but not this time. Repealing D.C.'s ban would
have rendered the Heller litigation moot. After all, no one can
challenge a law that no longer exists. And of course Heller was a much
better vehicle to vindicate Second Amendment rights than an act of
Congress. Among other things, legislative repeal of the D.C. ban could
simply be reversed by the next liberal Congress. Nor would repeal of
D.C.'s ban have any impact on the raft of criminal cases fi led in other
jurisdictions. Any one of those cases might reach the Supreme Court and
become the vehicle for reading the Second Amendment out of the
Constitution. By contrast, a foursquare pronouncement from the Supreme
Court upholding a challenge by law-abiding citizens in Heller would
establish lasting precedent and eventually have significance in all 50

After expending considerable time and energy in the halls of Congress,
we were able, with help, to frustrate congressional consideration of the
NRA-sponsored bill. By that time, the NRA had apparently decided the
political climate was not right for legislative repeal. Therefore, we
were told, the NRA would put repeal on the backburner and support our
lawsuit. Happily, that promise was kept. Once committed, the NRA was a
valued ally in the Supreme Court phase of our case-garnering support
from the gun rights community, crafting amicus briefs, and joining our
battle against a Justice Department that we thought was on our side.

11-12-2008, 2:24 PM

Incredibly, there were 67 amicus briefs fi led with the Supreme Court in
the Heller case-47 for us, 19 for the city, and 1 supposedly split brief
from the Justice Department. , at's not a record, but it's very close to
the top. (All of the briefs, along with other Court fi lings and
articles, are posted on our website, www.dcguncase.com, which has
developed into a leading repository of scholarship on the Second
Amendment.) Many of the briefs, too numerous to mention by name, were
enormously helpful. But potentially the most unhelpful-and perhaps the
most surprising-was the brief fi led by Solicitor General Paul Clement
for the Justice Department.

The Department's announced position under Attorney General John Ashcroft
was that "the Second Amendment secures a right of individuals" not
restricted to militia service. Without abandoning that principle
altogether, the Bush Justice Department under Attorney General Michael
Mukasey significantly diluted it by recommending an elastic standard for
determining whether a handgun ban is permissible. How elastic? The SG's
brief urged the courts to consider "the nature and functional adequacy
of available alternatives" to banned firearms. Imagine, in a First
Amendment context, advising courts to weigh the "functional adequacy" of
magazines in a city that banned all newspapers. To implement its
toothless standard, the SG proposed that Heller be remanded to the
lower courts, which would engage in "appropriate fact finding" to
determine whether DC's gun ban-the most far-reaching on American soil
since the British disarmed the colonists in Boston-passed constitutional

That came as quite a shock to those of us who believed the
administration's professed allegiance to gun owners' rights. What we got
instead was a recommendation that could have been the death knell for
the only Second Amendment case to reach the Supreme Court in nearly 70
years. Rather than a definitive statement that the D.C. handgun ban is
unreasonable by any standard, the Justice Department suggested a course
that would have entailed years of depositions and expert testimony,
followed by an eventual return to a Supreme Court that could well have
grown more hostile during the intervening years. That possibility could
not have been overlooked by the savvy Justice Department lawyers who
crafted the strategy. In effect, a so-called conservative administration
threw a lifeline to gun controllers-paying lip service to an individual
right while simultaneously stripping it of any real meaning. After all,
if the D.C. ban could survive judicial scrutiny, it is difficult to
envision a regulation that would not.

Supporters of the Constitution could only hope that the Supreme Court
would embrace an individual rights view of the Second Amendment while
rejecting the notion that D.C. could treat the Amendment as if it did
not exist. Lamentably, when the time came to take sides in this
long-simmering debate, the Bush administration-supposed proponent of gun
rights and devotee of the Constitution-stood for a watered-down version
of the Second Amendment that refused to declare a categorical
ban on all functional fi rearms within the home "unreasonable," and
argued that such a ban might even be consistent with a right to keep and
bear arms that the Constitution says "shall not be infringed."

Thankfully, waiting in the wings was the NRA. With organizational skills
and political connections, the NRA was able to gather support for a
congressional amicus brief. It was signed by 250 members of the House of
Representatives, including 68 Democrats; by 55 members of the Senate,
including 9 Democrats; and by Dick Cheney, not as vice president, but
in his capacity as president of the Senate. It was a remarkably powerful
demonstration that the political branches-and derivatively, the
people-were on our side, notwithstanding the administration's
bewildering and pernicious brief.

The rest is history. On June 26, 2008, the highest Court in the land
revived the Second Amendment and set the stage for nationwide
reclamation of the right celebrated during the Framing era as "the true
palladium of liberty.

* Robert A. Levy is senior fellow in constitutional studies at the Cato
Institute, co-counsel to Mr. Heller, and co-author of The Dirty Dozen:
How Twelve Supreme Court Cases Radically Expanded Government and
Eroded Freedom, reviewed at the end of this issue.

11-12-2008, 3:14 PM
Great write-up. They did a great job. But it also shows, this decision could so easily not have happened. There are a million different ways it could have been derailed at any stage. I remember at one point Marion Barry even proposed a 90-day amnesty, presumably for the purpose of destroying standing. The NRA tried to derail it by using Congress to destroy standing. Etc. And then it came down to a 5-4 decision.

We are so lucky they did it then, because there might never again be a court as favorable as that one was.

We came really close to losing the 2A, it's scary to think.

11-12-2008, 5:14 PM

11-12-2008, 5:49 PM
Wow, a few people with little money got together and changed our 2A world. Amazing.

11-12-2008, 5:58 PM
Great read, and thanks for posting this.

It's a miracle this thing didn't get derailed at about three or four different points.

And in recounting the current Administration's semi-amicus brief - well, it's another reminder of how GWB drove the Republican Party off a cliff with Karl Rove's coalition-of-the-far-right strategy. If ya throw the fiscal conservatives *and* the libertarians *and* the Constitutional Originalists *and* the TR-style centrists under the bus, well....


11-12-2008, 6:03 PM
Good summary, I enjoyed reading it. And learned a couple things too. I didn't realize there were 67 amicus briefs filed...

11-12-2008, 6:17 PM
Thanks for the post, very informative.

11-12-2008, 6:21 PM
And learned a couple things too.
I didn't realize there were 67 amicus briefs filed...

That's where the NRA's muscle came in. A variety of AGs and DAs were able to help dilute the SG's brief.

It is especially significant that CA AG office did NOT file an anti- brief, in spite of lower minions wishing to do so.

11-12-2008, 6:26 PM
It is especially significant that CA AG office did NOT file an anti- brief, in spite of lower minions wishing to do so.

Interesting, I had forgotten about that. Care to expand on that?

11-12-2008, 7:03 PM
Interesting, I had forgotten about that. Care to expand on that?

Weird friends in weird places.

11-12-2008, 8:33 PM
Weird friends in weird places.

Actually, after thinking back a little bit, I do recall talk of Jerry Brown giving the thumbs up to NRA booths, etc

11-12-2008, 9:52 PM
Actually, after thinking back a little bit, I do recall talk of Jerry Brown giving the thumbs up to NRA booths, etc

And people on this board fight me when I say Mr. Brown isn't exactly on the other side...

I personally thanked Alan and crew again very recently. Without their perseverance, we'd be ****ed right now. Instead, we're in a pretty good place actually.


11-12-2008, 10:46 PM
Weird friends in weird places.


11-13-2008, 5:11 AM
Great article, I liked getting his inside opinion of things that I was following the whole time. Some of them had me tossing and turning at night worrying about what would happen and not believing it was occurring.

I owe them all a drink.

11-13-2008, 9:44 AM
Great article, I liked getting his inside opinion of things that I was following the whole time. Some of them had me tossing and turning at night worrying about what would happen and not believing it was occurring.

I owe them all a drink.

you and me both.

Lex Arma
11-13-2008, 12:40 PM
I personally thanked Alan and crew again very recently. Without their perseverance, we'd be ****ed right now. Instead, we're in a pretty good place actually.


There are odd moments in history when a pivotal decision either way could have yielded a version of our country's story that could have been quite different from what we know today:

The Sons of Liberty could have stayed home when the Red Coats marched on Lexington/Concord.

Lincoln could have gone to a concert instead of a play.

George Patton could have told Eisenhower to "let the 101st dig themselves out of that mess in the Ardennes."

Funny how doing the historically right thing comes down to doing the right thing without regard for history.

The "Heller" team deserves our eternal gratitude for doing the right thing; and doing it at precisely the right moment in history.

They saved the Second Amendment including all the implications that go with that. If, fifty years frome now, we still live in a free country, it might be time to start naming streets and buildings after them.

11-14-2008, 3:31 PM
Brown was a tearable governor. But he has actually matured into more of a libertarian than a liberal. I find myself actually being spooked at how much sense he makes sometimes. I still don't think I would fully trust him.

And people on this board fight me when I say Mr. Brown isn't exactly on the other side...

I personally thanked Alan and crew again very recently. Without their perseverance, we'd be ****ed right now. Instead, we're in a pretty good place actually.


11-14-2008, 4:39 PM
I find myself actually being spooked at how much sense he makes sometimes. I still don't think I would fully trust him.

Trust but verify. Trust but verify...