by Marcia Coyle
Gura was prescient. In fact, it was Justice Department lawyers and not D.C. government lawyers who argued a legal theory that subsequently knocked Halbrook’s case out of court and nearly did the same to Gura’s case—that their clients had no standing to bring the lawsuits.
The second problem that Gura and his colleagues had with Halbrook’s lawsuit was that it did not present a simple, straightforward Second Amendment challenge. Halbrook also charged that the gun laws violated due process, equal protection, and the Civil Rights Act of 1866, which, after the Civil War, overturned the so-called Black Codes, enacted by some states, including the ban on African Americans’ possession of firearms. That sort of kitchen sink approach, they believed, had failed in the past.
All of the lawyers met to discuss Halbrook’s motion to consolidate the cases. “We told him this was a terrible idea,” said Gura. But Halbrook was not convinced. “Based on the uniqueness of this kind of challenge, there was a good likelihood the court would see these as related cases and the court would consolidate them anyway,” explained Halbrook, adding, “They had inexperienced attorneys. None had done work on the Second Amendment, either academic or litigation. There had been many cases brought that resulted in adverse decisions. Our idea was if we were all before the same judge, we could present what would hopefully make the best possible case.”
But Gura continued to see it differently. “The NRA filed a copycat case with the express mission of inserting themselves into the process. The NRA is amazingly territorial. They fight very hard to protect their turf. They’re still like that. It is what it is.”
From April to July 2003, the lawyers sparred over the motion to consolidate and Halbrook’s role in the litigation. In July, the federal judge in Halbrook’s case rejected his motion to join the two cases. The real delay in Gura’s case was not caused so much by Halbrook as by Gura’s opponent, the District of Columbia, whose lawyers missed a key deadline and then sought and received a two-month extension. But by the end of the summer, the judges in both cases had scheduled them for October hearings.
While the litigation dance continued throughout that summer, gun control groups were watching closely. A group of lawyers at the Brady Center to Prevent Gun Violence flagged Gura’s case early in the legal process. “We try to monitor potentially significant cases involving attacks on gun laws and cases that have potential to produce important legal precedents,” said Dennis Henigan, vice president. “We spotted this one as being potentially troublesome.”10
Troublesome for the same reasons that Clark Neily and Steve Simpson saw opportunity a year earlier. “You had the Emerson case in the Fifth Circuit which was kind of the first crack in the dam for gun rights litigators, even though it wasn’t brought as a gun rights case but a criminal defense case,” explained Henigan. “It did in fact produce the first federal court ruling that the Second Amendment was broader than simply a militia-related right. You also had the Bush Justice Department entering the fray with John Ashcroft writing the NRA and saying he agreed.”
Henigan’s organization had even filed an ethics complaint against Ashcroft, charging that by writing the NRA letter, he had violated his duty to his client—the United States—which, at the same time, was making the militia argument in the Emerson case.
The Brady Center had litigated against Halbrook for many years because he brought most of the major Second Amendment challenges, primarily for the NRA or its affiliates. Halbrook was a known quantity. “Gura was this young upstart, but supported by Bob Levy. We took both cases seriously,” Henigan added. “Our primary worry was the D.C. Circuit [the federal appellate court], which had gotten so conservative, and, of course, our worries were validated.”
The Brady Center, he said, does not favor a handgun ban as a matter of policy. “We basically think local jurisdictions should be allowed to make their own gun laws,” he explained. “As a matter of policy, we’re kind of moderates on this. We think carefully designed gun restrictions could still allow law-abiding citizens to have guns in the home and still reduce the risk of them being in the hands of dangerous people.
“It’s certainly understandable that Mayor Fenty would want to defend his law, which was very popular. Whether it was controversial at the time, D.C.-elected officials in the community clearly supported it for its entire history. There never was any effort to repeal it. Every mayor, police chief, and city council supported it.”
• • •
In January 2004, Halbrook’s case—Seegars v. Ashcroft—was dismissed by the federal district judge. Two months later, Gura’s case—Parker v. District of Columbia—met the same fate at the hands of its judge.
In Seegars, as Gura predicted, government lawyers successfully argued that all but one of Halbrook’s clients lacked standing to bring their lawsuit. Standing is the key to the federal courthouse door. Federal courts can only decide actual cases and controversies, so someone bringing a lawsuit must show he or she has suffered a “concrete and particularized” injury, actual or imminent, for which a court can provide relief. But there also are times when federal courts will hear so-called pre-enforcement challenges. For example, a person wants to engage in a course of conduct that a law forbids and he believes that law violates a constitutional right. The Supreme Court has said that person does not have to wait to be prosecuted to seek relief. He or she can bring the challenge as long as there is a credible threat of prosecution.
Despite the Supreme Court’s rule, the U.S. Court of Appeals for the District of Columbia has a tougher standard for pre-enforcement challenges, like those brought by Halbrook and Gura. It requires more than a general threat of prosecution; the threat must be imminent to the person suing.
The district court judge found that Halbrook’s clients were neither prosecuted nor threatened with prosecution under the District’s gun laws, and except for one, they did not own a gun and never applied to register one. As for the one client who did have standing, the court rejected the individual right agument.
Had Halbrook not sued the Department of Justice, believed Gura, the standing question would never have arisen.
Gura, however, lost his case on the merits of the Second Amendment issue. The judge in his case concluded: “While plaintiffs extol many thought-provoking and historically interesting arguments for finding an individual right, this Court would be in error to overlook sixty-five years of unchanged Supreme Court precedent and the deluge of circuit case law rejecting an individual right to bear arms not in conjunction with service in the Militia.”11
Both lawyers filed appeals with the federal appellate court. By then, the cases had attracted national attention. Halbrook’s case was heard first and he went into the appellate courtroom with support from sixteen state attorneys general. The Brady Center supported the United States and the District of Columbia in urging that the lower court decision be upheld. Thirteen months after the trial judge’s ruling, a three-judge appellate panel, voting 2–1, agreed that Halbrook’s clients lacked standing. Four months after that, in June 2005, Halbrook’s request for a rehearing before the full appellate court was rejected. Three of the court’s ten judges had voted to rehear Halbrook’s appeal, one of whom was Judge John Roberts Jr., by then just four weeks away from being nominated by President Bush to the U.S. Supreme Court.
Gura, meanwhile, had been waiting impatiently for his appeal, which he had filed in April 2004, to be heard. It had been put on hold by the appellate court pending the decision in Halbrook’s appeal.
Argument day in Parker v. District of Columbia finally came on December 7, 2006, more than two years after Gura filed his notice of appeal. As he headed into the appellate court, he was backed by supporting briefs from thirteen state attorneys general, and conservative and gun rights groups, including the Second Amendment Foundation, the Congress of Racial Equality, the American Civil Rights Union, and his earlier nemesis—the NRA.
The District’s in-house attorney, Todd Kim, also had supporters on appeal—three states and th
e cities of San Francisco, New York, Chicago, and Los Angeles, as well as the Brady Center to Prevent Gun Violence, which had taken an active role in helping to prepare the District’s lawyers.
With Halbrook’s case defeated and a lower court ruling against his own case, Gura might have felt on the defensive as he faced the three-judge appellate panel. But the young lawyer had a reservoir of confidence that stopped just short of arrogance. He knew his clients faced the same legal obstacle that knocked out Halbrook’s clients—standing to sue—but he believed, despite the trial court decision, that he had shown more than enough evidence that the District was prepared to prosecute his clients and so the threat to them was more than a general one.
The three-judge panel, however, disagreed. On March 9, 2007, now four years after Gura filed the lawsuit, the appellate panel issued its decision. None of Gura’s clients had standing, ruled the court, except one, the private security guard—Dick Heller—and one was all the court needed to get to the merits of the Second Amendment challenge.
On the merits, the panel, voting 2–1, held that the Second Amendment protects an individual right to keep and bear arms. “That right existed prior to the formation of the new government under the Constitution and was premised on the private use of arms for activities such as hunting and self-defense, the latter being understood as resistance to either private lawlessness or the depredations of a tyrannical government (or a threat from abroad),” wrote a conservative icon and Reagan appointee, Judge Laurence Silberman, for himself and Judge Thomas Griffith, a George W. Bush appointee, in a 58-page opinion. “In addition, the right to keep and bear arms had the important and salutary civic purpose of helping to preserve the citizen militia.”12
The dissenting judge, Karen LeCraft Henderson, appointed by President George H. W. Bush, said the only twentieth-century Supreme Court decision to analyze the amendment’s scope—United States v. Miller in 1939—was clear in stating that the amendment’s “obvious purpose” was to assure a continued and effective militia. Until the Supreme Court itself overrules Miller, she said, lower courts are bound by it. And second, the dissenting judge said the amendment was drafted to protect the states from a perceived threat posed by a national standing army. The District, she said, was not a state but a federal entity, with no need to protect itself from the federal government, and so the amendment did not apply.
One simple step by a security guard had kept the Levy team’s case in the game, positioning it for the game clincher. The step? During the summer of 2003, when the lawyers were preparing for the hearing in their case, their client Dick Heller, at the urging of his close friend Dane Von Breichenruchardt, actually applied for and was denied a registration certificate to own a handgun. That routine process of application and denial, according to the appellate court, was an injury sufficiently “concrete and particular” to give him standing to sue the District, and it was something the other five plaintiffs never had done.
Von Breichenruchardt, stocky, with a white handlebar mustache and comb-over, and the silver-haired Heller, taller, wiry, and with a perpetual ball cap perched atop his head, had been discussing a Second Amendment lawsuit against the District for years.
Heller, who had served in the U.S. Army, moved into the District in 1975, before the gun law was passed. He had bought a nine-inch barrel cowboy pistol “like I had seen on Gunsmoke.” Although he was grandfathered into the new gun law, he never registered the pistol or two rifles. He lived on the east side of Capitol Hill, near a housing project that gradually was taken over by drug dealers. Bullets had soared through the front window and door of his house from random shootings.
In 1993, Von Breichenruchardt and Heller met when the former rented a room from Heller in connection with a short-term job project. “I had been on the U.S. shooting team and had been competitively shooting my entire life,” said Von Breichenruchardt. “When I moved in, I had my guns with me and asked where I could put them. He informed me there was a ban and I could not keep them in the District at all. I was absolutely incensed about that.”13
The two men began discussing how to challenge the gun regulations. Von Breichenruchardt stayed in the District after his project ended, formed the U.S. Bill of Rights Foundation, and plugged into the libertarian-conservative network by attending functions at the Heritage Foundation and the Cato Institute. He also took some law courses and plunged into the history of the Second Amendment. At Cato, he met Bob Levy and took every opportunity to bend his ear about challenging the District’s gun laws. Levy always listened carefully, but was noncommittal.
When Von Breichenruchardt heard in 2002 that Levy was backing a Second Amendment lawsuit, he called him and offered Heller as a plaintiff, an offer accepted by the lawyers. Concerned about a possible problem with standing in the lawsuit, he said to Heller, “Go down [to city hall], bring back the paperwork, and we’re going to fill out the forms, and when they turn you down, [the lawyers] will have standing.” Heller went down the next day, picked up the information, and he and Von Breichenruchardt filled it out. He went back down and, according to Von Breichenruchardt, “they told him, ‘No, you have to be a sworn officer; we don’t consider officers for hire to be sworn officers.’ I told him to get something in his hand—application denied, or a police officer’s name. They stamped it ‘denied’ and the police officer cited the regulation.”
Levy and Neily agree that Von Breichenruchardt did get Heller to fill out the forms, “and it turned out to be incredibly important,” said Neily.
Incredibly important and incredible, thought Dennis Henigan of the Brady Center, which had backed the District in the federal appellate court. “How ridiculous is it that the fact that Heller applied to register knowing he would be denied gives him standing?” said a chagrined Henigan. “Conservative judges on the D.C. Circuit have made a career of slamming the door on consumer and environmental plaintiffs, and then they find an artificial way of making sure this case goes forward.”
Gura, Levy, and Neily were elated by the decision, of course, and held a celebration with their clients four days later at the Cato Institute. Mayor Fenty and city officials were not in a celebratory mood. Adrian Fenty said he was “deeply disappointed and frankly outraged” by the decision. The laws, he said, had helped to decrease gun violence in the District. He vowed to “do everything in our power to work to get the decision overturned, and we will vigorously enforce our handgun laws during that time.”14
But despite the victory in the appellate court, the Levy team soon faced another obstacle on their road to the Supreme Court. Senator Kay Bailey Hutchison (R-TX) introduced her perennial, NRA-backed bill to repeal the District’s gun laws. Levy, Gura, and Neily believed the bill was another effort by the NRA to stop their case.
“The effect of that effort, had it succeeded, would have been not only to moot the case and thus prevent Supreme Court review, but also to vacate the D.C. Circuit’s favorable decision—the first and only time a federal court ever struck down a gun law on Second Amendment grounds,” said Neily. “In the weeks after the D.C. Circuit’s favorable ruling, it appeared very possible to us that the NRA would in fact succeed in getting the repeal law passed, thus mooting the case.”
Levy found himself in the odd position of testifying against the legislation. He told the committee considering the bill that the best way to proceed was in the courts, not in Congress, because a future Congress could repeal whatever the current one did.
And then, on April 16, 2007, a Virginia Tech student shot and killed thirty-two people before turning his gun on himself and ending the deadliest mass shooting in American history. Fifteen others were wounded during the campus rampage.15
“The tragedy at Virginia Tech spelled an end to any legislative repeal effort, at least in the near term, which meant that the NRA’s effort—if in fact it was a serious effort, which they have consistently, though not plausibly, in my view, denied—to moot the Heller case itself became moot,” said Neily.
The Distr
ict’s Mayor Fenty, in the meantime, had asked the full federal appellate court to review the three-judge panel’s ruling against the District. But about two weeks after the Virginia Tech shootings, the D.C. Circuit declined to review the decision. Fenty then was faced with deciding whether to appeal to the Supreme Court.
Most lawyers who win their case in a federal appellate court do not want their defeated opponents to appeal to the Supreme Court. They have nothing to gain, only a victory to lose. But after that evening over drinks more than five years earlier, the Supreme Court had always been the ultimate target of Levy, Neily, and Gura.
And now the fate of the Levy team’s carefully manufactured test case on the meaning of the Second Amendment was in the hands of its opponents: Mayor Fenty and his legal advisers.
CHAPTER 8
“What kind of message are you sending? This is not Dodge City in the 1800s.”
—Kenny Barnes, whose son was shot to death on a D.C. street in 2001, reacting to the 2007 D.C. Circuit decision
The National Rifle Association and its frequent legal counsel, Stephen Halbrook, kept a scorecard over the years on how justices of the Supreme Court might vote on whether the Second Amendment protected an individual right to keep and bear arms.
Justice Antonin Scalia, they believed, tipped his hand in his commentary in his book A Matter of Interpretation (1997). He wrote then that he interpreted the amendment “as a guarantee that the federal government will not interfere with the individual’s right to bear arms for self-defense.” Scalia added later in the essay, “Of course, properly understood, it is no limitation upon arms control by the states.”1
“I said to myself, ‘Justice Scalia looks safe,’ ” recalled Halbrook.
