The Oath (17 page)

Reagan worked opposition to gun control into a broader libertarian message. To him, gun control was just another big-government program that did more harm than good. Gun control punished law-abiding citizens while leaving firearms in the hands of criminals. What was more, Reagan hinted, gun control was prohibited by the Second Amendment. “The Second Amendment gives the individual citizen a means of protection against the despotism of the state. The rights of the individual are preeminent,” Reagan wrote in
Guns & Ammo
magazine in 1975. “The Second Amendment is clear, or ought to be. It appears to leave little
if any leeway for the gun control advocate.” Reagan lost in 1976, but times were changing. The 1972 Republican platform had supported gun control, but
the 1976 platform opposed it.

The political and legal branches of the conservative movement joined forces in support of a new reading of the Second Amendment. On May 21, 1977, a hard-line faction of the National Rifle Association staged a coup d’état at the annual meeting of the group, in Cincinnati. Out went the traditional emphasis on gun safety and in came a new focus on political action, especially in fighting gun control. The NRA financed a group called Academics for the Second Amendment, which
advocated for the individual rights view in conferences and seminars. Still, this position remained well outside the legal mainstream, if not downright eccentric. The rule of the
Miller
case remained the unchallenged law of the land. Not even a lower federal court had embraced the view that the Constitution limited the ability of the government to regulate gun ownership. A few years after Warren Burger stepped down as chief justice, he said in an interview on PBS that the Second Amendment “has been 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.”

Nevertheless, gun rights joined “family values” and the anti-abortion fight as key planks of the conservative agenda that in 1980 propelled Reagan into the presidency and the Republicans into the Senate majority. When Orrin Hatch, the Utah Republican, became chairman of the Subcommittee on the Constitution, he commissioned a report entitled “The Right to Keep and Bear Arms.” In the preface he wrote, “What the Subcommittee on the Constitution uncovered was clear—and long lost—proof that the second amendment to our Constitution was intended as an individual right of the American citizen to keep and carry arms in a peaceful manner,
for protection of himself, his family, and his freedoms.” The chief author of the report was a Hatch staffer named Stephen Markman, who
later joined the Reagan Justice Department. There, one of Markman’s junior colleagues was Samuel Alito.

Crime spiked again in the early nineties, and the Clinton administration, in its early days, responded by passing what became known as the Brady bill, named after James Brady, Ronald Reagan’s press secretary, who was wounded in the 1981 attempted assassination of the president. This complex piece of legislation included an interim provision that directed state and local officials to conduct background checks for prospective
handgun purchasers. That portion of the bill was challenged, and in 1997, by a 5–4 vote, the Supreme Court found the temporary part of the law unconstitutional. Scalia’s opinion for the Court in
Printz v. United States
concluded that the law amounted to an impermissible federal intrusion on states’ rights.

Thomas joined Scalia’s opinion for the majority but wrote a concurring opinion that examined the case in a different way. Thomas devoted his argument to the Second Amendment, which the Court had not addressed since the
Miller
case in 1939. He suggested that the Brady bill might be unconstitutional as a violation of the Second Amendment. “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,” Thomas wrote. Concluding with a flourish and referring to Joseph Story, a renowned figure from the early days of the Court, Thomas declared, “Perhaps, at some future date, this Court will have the opportunity to determine whether Justice Story was correct when he wrote that the right to bear arms ‘has justly been considered, as the palladium of the liberties of a republic.’ ”

Thomas’s opinion marked the near culmination of a remarkable political and legal undertaking—an example of the “living Constitution” in action, even if that was not how the protagonists described it. A small group of activists took a fringe and discredited constitutional interpretation, injected their considerable passion, intelligence, and financial resources, and nearly brought their ideas to success.

The actual culmination of their work would take a little longer.

LAWYERS, GUNS, AND MONEY

T
he Supreme Court can sometimes have the last word, but it never has the first. The executive and legislative branches of government can initiate action on any issue of their choosing. But the justices must wait for a case to come to them. Some or all of the justices may be itching to rule on a subject, but they have no chance to do so until an appropriate appeal arrives at their door. When it came to guns, that was what made Bob Levy so important.

Robert A. Levy was born in 1941 and grew up in modest circumstances in Washington, where his parents ran a hardware store. He went to college at American University, earned a PhD in business there as well, and went on to live the American dream. He founded a financial information and software firm, CDA Investment Technologies, and sold it for many millions of dollars in 1986. At that point, Levy thought carefully about what he would do with the second half of his life—and decided to start law school at the age of forty-nine. He chose to study at George Mason University, because it had a reputation for welcoming libertarian scholars and students. After graduating, Levy became a law clerk first for Royce Lamberth, of the federal district court in Washington, and then for Douglas Ginsburg, on the D.C. Circuit. (Levy may be the only law clerk in history who was older than the judges he clerked for. The security guards at the federal courthouse, noting Levy’s judicial bearing and formidable bald head, would often greet him by saying, “Good morning, Your Honor.” In chambers, Lamberth would put him in his place by reminding him to fill the water jugs in the jury box.)

When Levy completed his clerkships, he brought the same entrepreneurial spirit to law that he had to business. He had a special interest in
the Second Amendment, which was the subject of a great deal of scholarly attention at the time, even though he himself never owned a gun. The NRA-funded Academics for the Second Amendment had been churning out copy, and even several liberal academics, including Laurence Tribe, Akhil Reed Amar, and Sanford Levinson, had looked with some sympathy on the individual rights theory of the Second Amendment. And Justice Thomas’s concurring opinion in the
Printz
case had put the issue squarely on the Supreme Court’s agenda.

There was also the matter of
United States v. Emerson
. The Brady bill made it a crime for individuals who were subject to domestic-violence protective orders to possess firearms. In 1999, a local court filed a protective order against Timothy Emerson, a doctor in Tom Green County, Texas, who was involved in a messy divorce. Later, a federal grand jury charged Emerson with violating the Brady bill, because he purchased a pistol while subject to the protective order. Emerson challenged the constitutionality of the law, on the ground that it violated the Second Amendment. A federal district court, relying heavily on Thomas’s opinion in
Printz
, concluded that the Second Amendment did confer an individual right to bear arms and threw out the indictment. In 2001, the Fifth Circuit reinstated Emerson’s indictment but again cited Thomas’s opinion in calling for a new understanding of the Second Amendment.

The political momentum for a revived Second Amendment was building, too. By this point, John Ashcroft had become George W. Bush’s first attorney general. A longtime member and favorite of the NRA, Ashcroft gave a full official endorsement of the theory that the Second Amendment granted individuals a right to keep and bear arms. In a letter read at the NRA annual convention in 2001, Ashcroft announced that the federal government would now advocate the individual rights theory in all litigation. But
Emerson
was actually a poor vehicle for testing the limits of the Second Amendment, because the constitutional issue was so closely bound up with the matter of domestic violence. Not surprisingly, the justices declined to hear the
Emerson
case.

Levy had clerked for Lamberth with a young lawyer named Clark Neily III, who then went to work for the Institute for Justice, a libertarian-leaning public interest law firm. (Levy was on the board.) Neily and a colleague, Steve Simpson, came to Levy with the idea of putting together a test case that would raise the Second Amendment issue for the Supreme Court. The scholarly articles, the Thomas opinion in
Printz
, the friendly Justice Department, the
Emerson
case—all
suggested that the time was right. The problem was, the Institute for Justice didn’t do this kind of work. Neily and Simpson asked Levy to finance the case himself, and he agreed. Levy also hired Alan Gura, an aggressive young lawyer from Virginia, who happened to have an interest in the subject but no experience at all with constitutional litigation or the Supreme Court.

The National Rifle Association was not amused by the attempt of Levy, Neily, Simpson (and later Gura) to horn in on what it considered its turf. Levy had a day job at the Cato Institute, the libertarian think tank in Washington, where he later became chairman of the board. One day he was visited there by Nelson Lund, one of his professors at George Mason, whose chair had been endowed by the NRA, and Charles Cooper, a former
Reagan-era Justice Department official with close ties to the conservative movement. Their mission was to talk Levy out of funding the case. The pair told him that the issue was a loser. The law-and-order conservatives then on the Court, including Rehnquist and O’Connor, would never buy a wholesale revision of the Second Amendment. A bad ruling could set back the cause for years. Better to leave the issue to the NRA and its experienced team of litigators.

Conflicts over litigation strategy are common, even among ideological allies. Issues of timing, risk of adverse decisions, control of a case, and simple ego often lead to bitter feuds. The models for such ideologically driven legal crusades remain the work of Thurgood Marshall for civil rights in the forties and fifties and Ruth Bader Ginsburg for women in the seventies. Levy felt his work was in this tradition. Sometimes, though, it’s almost as important to know when
not
to bring a case as when to press forward. Advocates have at times gone to extraordinary lengths to keep cases away from the justices. In 1997, after a white schoolteacher was laid off to save the job of a black colleague, a coalition of civil rights groups raised $300,000 to settle the case two months before it was slated to appear on the Supreme Court docket.

Especially on issues with high public profiles, the motives of the participants can be decidedly mixed. There were even conservatives who believed that at some level the NRA didn’t
want
a favorable decision from the Supreme Court on gun rights; they thought NRA fund-raising depended on maintaining a sense of perpetual risk. Levy thought the
NRA was just protecting its turf, but his own fortune gave him the luxury of a single-minded focus: winning in the Supreme Court. Lund and Cooper denied that the NRA’s motives were anything less than pure, but Levy decided to stay the course with his case.

Their best option, Levy’s team realized, was under their noses in Washington. The District of Columbia had the strictest gun laws in the nation, banning possession of handguns even in private homes for self-defense. Over the years, gun cases had foundered in part because they had unsympathetic plaintiffs. In 1939, Miller was a bank robber; many years later, Emerson was accused of threatening domestic violence. Those were not favorable settings in which to raise Second Amendment claims. Gura and the others wanted to avoid such problems from the start. They decided to pick their plaintiffs almost as if they were casting a movie.

After months of research, the Levy team came up with six people who could, as a group, appeal to almost any judge. There were three men and three women, four whites and two blacks, five straight and one gay. The lead plaintiff, Shelly Parker, was an extremely charismatic African American woman. In February 2002, Parker had moved to the periphery of Capitol Hill and found her neighborhood overrun by drug dealers. She started a one-woman security patrol, walking the streets in an orange cap and reporting what she saw to the police. In response,
drug dealers broke her car windows and drove into her back fence. She wanted a gun to protect herself and her home. Levy’s team entitled the case
Parker v. District of Columbia
.