THE WEEKEND INTERVIEW
How a Young Lawyer Saved the Second Amendment
One plaintiff was a gay man who had used his gun to stop a hate crime.
BY JAMES TARANTO
The Wall Street Journal, Saturday, July 19, 2008
ALEXANDRIA, Va.--For decades the Second Amendment might as well have been called the Second-Class Amendment. The U.S. Supreme Court spent the late 20th century expansively interpreting the First, Fourth, Fifth, Sixth and Eighth amendments, not to mention unenumerated rights ranging from travel to sexual privacy. But not until last month did the court hold that the Second Amendment means what it says: that "the right of the people to keep and bear arms, shall not be infringed."
What took so long? I put the question to Alan Gura, the 37-year-old wunderkind lawyer who represented the plaintiffs in District of Columbia v. Heller.
A native of Israel, he grew up in Los Angeles and never owned a firearm until after that city's riots in 1992. That summer, before he enrolled at the Georgetown University Law Center, "I bought a gun in Los Angeles. I did not have it with me in law school, of course--that was illegal."
After law school, he worked for California's attorney general and the Senate Judiciary Committee before settling into private practice in this gun-friendly Washington suburb. As we talked last week, we exercised our rights under the 21st Amendment, sipping cocktails at a speakeasy-style bar across the street from his office.
The meaning of the Second Amendment had long been disputed because of its prefatory clause, "A well-regulated militia, being necessary to the security of a free state . . ." Opponents of gun rights argued that the Founders meant to establish only a "collective right"--authorization for states to raise militias. The Supreme Court had not addressed the question since 1939, when it held, in U.S. v. Miller, that sawed-off shotguns were not appropriate for use in a militia and therefore could be banned.
The Miller decision "was agreed by everybody to be somewhat murky and inconclusive," Mr. Gura says. "We read the case, like a lot of people, to mean that it's an individual right." But firearm foes claimed that the court had endorsed the collective-rights theory.
By the beginning of this century, notes Mr. Gura, that theory had fallen into disfavor among legal academics. "Many scholars, including very well-known left-of-center or liberal scholars, had come to concede that the Second Amendment, whatever its scope, guarantees some sort of an individual right to own and carry firearms, not connected to military service."
But the judiciary lagged behind the academy, owing to a dearth of Second Amendment litigation. Traditional civil-liberties groups like the ACLU largely backed the collective-rights theory, and gun-rights groups like the National Rifle Association focused their efforts on lobbying, in the belief that litigation was too risky.
"Virtually all the decisions that addressed the Second Amendment were styled United States v. Somebody," says Mr. Gura. " 'Somebody' was a crack dealer, a bank robber--some lowlife who had made a spurious Second Amendment claim as part of a package of desperate appeals." Faced with these sorts of cases, almost every federal appeals court had desultorily endorsed the collective rights view.
That changed in 2001 with the case of Emerson v. U.S. A federal grand jury had indicted a Texas man for possessing a pistol while under a restraining order not to threaten his estranged wife. The trial judge dismissed the charges on Second Amendment grounds. The Fifth U.S. Circuit Court of Appeals reinstated the indictment, but held that the Second Amendment does protect an individual right.
"For the first time ever," says Mr. Gura, "we had a clear, concise, intelligent examination of the Second Amendment with a true analysis of the document, and the conclusion was that it secured an individual right." What's more, "with Emerson we had, for the first time, a circuit split"--a disagreement among appellate courts over how to interpret the amendment.
The government was not about to appeal Emerson, for it had prevailed in reinstating the indictment. But the circuit split made it likely that the high court would take up the Second Amendment question sooner or later. The danger, Mr. Gura says, was that the argument would be made by "some pro se lunatic criminal" or a defense lawyer focused on exonerating his client rather than vindicating the Constitution.
The case that became D.C. v. Heller was the brainchild of three lawyers at a pair of libertarian organizations, the Cato Institute and the Institute for Justice. All were busy with other matters, so they hired Mr. Gura. "Alan was willing to work for subsistence wages," Cato's Robert Levy tells me, "in return for which he got a commitment from me that if the case went anywhere, it would be his baby. It turned out that that commitment was very important."
Mr. Gura says he set out "to do a careful, strategic litigation on the issue." One court that had not yet taken a position on the Second Amendment's meaning was the U.S. Court of Appeals for the District of Columbia Circuit. As it happened, the nation's capital had the most restrictive gun law in the country: a total ban on handguns, and a requirement that shotguns and rifles be kept disassembled or locked within the home.
To challenge the law, Mr. Gura says, "it was very important for us to pick decent, law-abiding people. . . . We consciously wanted to have plaintiffs from across the demographic spectrum in Washington, D.C. We wanted all manner of diversity, because it's important--people want to see that you are arguing for a right that is held by ordinary people."
Mr. Gura tells me his clients' stories: "Shelly Parker . . . is an African-American lady who moved to a part of Capitol Hill that was improving, but apparently not fast enough. [She] would call the police, get the neighbors involved, to try to get the drug dealers off the street. The drug dealers figured out fairly quickly what the source of their problem was and started harassing her, subjecting her to all kinds of threats, vandalism and so on. . . .
"Dick Heller is a special police officer of the District of Columbia. . . . When we started this suit, he was guarding--with a gun--the Federal Judicial Center on Capitol Hill. . . . But Mr. Heller was not allowed to have a gun in his own home for self-defense. . . .
"Tom Palmer is a Cato scholar, a gay man who had previously, in California, fended off a hate crime using a firearm that he happened to have on him. He is alive today, or at least avoided serious injury, because he was able to have access to a gun when he needed it. . . .
"Gillian St. Lawrence is a mortgage broker in Georgetown. . . . [She had] a lawfully registered shotgun, but . . . had to always keep that shotgun unloaded and disassembled, or bound by trigger lock. There was no exception for home self-defense. . . . Of course, she asserted the right to have a functional firearm. If you're allowed to have guns, you're allowed to have guns that actually work as such. We're gratified that both the D.C. Circuit and the Supreme Court agreed with us on that proposition." They did--but it was close. The circuit-court panel that ruled in his clients' favor split 2-1.
When the case reached the Supreme Court, Mr. Levy says he came under pressure to replace the young Mr. Gura, who had never argued a case before the high court, with a veteran litigator like Ted Olson, Ken Starr or Miguel Estrada. No dice, Mr. Levy replied. He had a commitment, and besides, Mr. Gura "had been immersed in this issue for 5½ years . . . so he knew the material cold."
The results speak for themselves. All nine justices agreed that the Second Amendment established an individual right. But four dissenters offered an interpretation of that right so cramped as to render it a nullity.
"My biggest surprise is that it was 5-4," Mr. Gura says. "I thought the case was much stronger than 5-4. . . . However, I'll take the five and be very happy with that."
The court's close division meant that Mr. Gura needed the vote of Anthony Kennedy. Most court-watchers consider him the least predictable justice, but not Mr. Gura: "I received a lot of grief from people about Justice Kennedy going into the argument. We were told that we were not responsible, gambling on the views of this one justice who might be completely inscrutable and unpredictable. . . .
"Justice Kennedy did not trouble me all that much. The fact is that if you look at Justice Kennedy's voting pattern, the cases where he tends to disappoint the so-called conservative bloc--in almost all those cases, Justice Kennedy sides with a claim of an individual right being held by a person against the government, whether that is in the abortion context, or whether that's in the context of intimate sexual relations, whether it's the habeas case in Guantanamo Bay."
One key unresolved question in D.C. v. Heller is whether it limits the states as well as the federal government. The Bill of Rights originally restrained only Congress, but under the "incorporation" doctrine, the Supreme Court has held that the 14th Amendment protects most constitutional rights against state encroachment. Because the capital is a federal district, its local government is a creation of the U.S. Congress. Heller gave no reason to think incorporation doesn't apply, but further litigation will be necessary to settle the question.
Nor does Heller settle which restrictions are constitutional and which are not. Justice Scalia wrote that "nothing in our opinion should be taken to cast doubt" on laws against possession of firearms by felons or the mentally ill or in "sensitive places" like schools or government buildings, or laws regulating commerce in firearms. That's fine with Mr. Gura, but many laws currently on the books fall somewhere between these uncontroversial provisions and D.C.'s onerous restrictions.
These questions will be sorted out in litigation to come. Mr. Gura's first stop: Chicago, which has a handgun ban identical to Washington's and burdensome registration requirements for long guns.
The Chicago lawsuit was "ready to go" when the Supreme Court decided Heller on June 26. "I looked at the opinion," Mr. Gura says, "and I called my counsel in Chicago and said, 'Yeah, looks good.' " The next day another lawsuit was filed, challenging the ban on handguns in San Francisco's public housing projects. Among the plaintiffs: the National Rifle Association. Thanks to Mr. Gura's efforts, the NRA is no longer gun-shy about going to court.
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