The Roberts Court: The Struggle for the Constitution

by Marcia Coyle

  Justice Clarence Thomas, in a concurring opinion in Printz v. United States, a 1997 decision involving background checks on handgun applicants, had noted: “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.”

  “I thought, okay, Justice Thomas might be favorable,” said Halbrook. And Justice Ruth Bader Ginsburg, in a dissent in Muscarello v. United States (1998), had argued that the phrase “carries a firearm” in a federal criminal law means to carry it so it is ready to use. In reaching that interpretation, she referred to the Second Amendment’s “keep and bear arms” language as an example of the ordinary meaning of carrying a firearm. “She was considered someone who might vote favorably,” added Halbrook.

  Justice Stephen Breyer was not viewed as a favorable vote, and the other justices were difficult to predict.

  A petition to the Supreme Court in the District of Columbia gun case was “certainly risky” for gun rights groups, thought Halbrook, but the appellate court’s decision was an excellent one, a very serious look at the question.

  Too risky, however, for some gun control groups, who urged Mayor Fenty not to file a petition.

  “If it had been up to us, we would not have taken it up [to the Supreme Court],” said Henigan of the Brady Center. “We weren’t real willing to throw the dice because of the potential impact on gun laws nationally. We thought the District of Columbia laws could be rewritten in a way that still made them very, very strong.”

  Although there were serious discussions, there was never any serious doubt in the Fenty administration about appealing the decision striking down the District’s gun laws to the Supreme Court. Every mayoral administration since its enactment had supported the regulations and every city council as well. The District’s police and fire chiefs also backed the gun laws. And while there was ongoing debate in the country about the Second Amendment and gun regulations, there was no evident public controversy within the District itself over its own gun regulations.

  “Certainly any time you lose a case you have to think about whether you’re going to file for cert or not, and what the upsides and downsides are,” said Alan Morrison, who was special counsel to the District at the time. “The arguments we heard were, ‘Look, the D.C. law is the harshest law; you don’t want this case to go to the Supreme Court.’ To which my answer was, ‘Well, suppose some other case gets up there?’ At this point, we have no gun law in the District. We have sort of a fiduciary responsibility to the city council which enacted it, to the mayor who wants it enforced, and to the police chief who desperately wants it enforced. It had to be a very good reason, it seemed to me, to lay down, take it easy, and let some other case come up.”

  And there was also something to be said, thought Morrison, for taking “the most in-your-face law” to the Supreme Court, because “we didn’t want wishy-washy laws. Everyone wanted this law because they thought it was important,”2 he said.

  Morrison is a passionate public interest lawyer. With Ralph Nader, he co-founded and directed for more than twenty-five years the Public Citizen Litigation Group, a division within the non-profit consumer organization Public Citizen. The bearded, energetic Morrison, who currently teaches at George Washington University School of Law, has argued twenty cases in the Supreme Court on issues ranging from the First Amendment to separation of powers.

  He was finishing up a temporary teaching stint at Stanford Law School in California when D.C. Attorney General Linda Singer, newly appointed to that post by newly elected Mayor Fenty, invited him to return east to work with her. He did not want to be a line attorney or have a caseload with court deadlines, so Morrison suggested becoming a special counsel with responsibility for special legal projects within Singer’s office. Singer agreed, and before Morrison had even hired movers for the trip home to D.C., the first project arrived: the lawsuit against the District’s gun regulations.

  “I had never done a case with the Second Amendment,” said Morrison. “I had never written about it. We used to joke about it: the right to bear arms is the right to arm bears. While I didn’t agree with Warren Burger on many things, he said a great fraud that’s been committed on the American public is that the Second Amendment has anything to do with personal rights. Burger was wrong about a lot of things and apparently he was wrong about this one too,” he added ruefully.

  Singer also sought outside advice about an appeal to the Supreme Court from former acting Solicitor General Walter Dellinger, a highly respected constitutional law scholar who was in private practice at O’Melveny & Myers law firm in D.C., and from high court litigator Thomas Goldstein, who at the time headed the appellate practice at D.C.’s Akin Gump Strauss Hauer & Feld. But she wanted the case to be a District case because these were District laws. She wanted it handled by District lawyers, and Morrison was integral to that identity.

  Once the decision was made to go to the Supreme Court, everyone was united. Throughout the summer of 2007, Morrison and the District’s lawyers worked on the petition for review even though Morrison was still in California. At some point that summer, he approached Singer about making an early decision on who would argue the case if the Supreme Court granted review.

  “I said I think we should decide this early because it’s going to affect how we’re going to staff it, who is going to do what when, and we wanted to send a message that we were ready,” he recalled.

  There were three possibilities. Todd Kim, an able chief of the appeals section who had never argued in the Supreme Court and whose pregnant wife was due near the time an argument might be scheduled; an “outsider,” like Dellinger or Goldstein; and Morrison.

  “I told her, ‘I can get up to speed and I will find the time to devote as much time as I need to this,’ ” he recalled. Singer asked about his other projects for her, and Morrison promised to do those as well. After a few days, Singer told Morrison that he would argue the case and write the briefs with the help of the District’s other lawyers.

  • • •

  On September 4, 2007, the Tuesday after Labor Day, Mayor Fenty held a press conference on the steps of the old city hall to announce the filing of the District’s petition in the Supreme Court. All petitions to the Supreme Court must present a question for the justices at the outset. The District’s question was: Whether the Second Amendment forbids the District of Columbia from banning private possession of handguns while allowing possession of rifles and shotguns.3

  The District’s opponents—Gura, Levy, and Neily—had been on pins and needles all summer awaiting the petition. When they saw how the District had framed the question for the justices to decide, they were not happy. The question was disingenuous, they believed, because it ignored the fact that the District’s gun laws required that all firearms (rifles, shotguns, and pre-ban handguns) be “unloaded and disassembled or bound by a trigger-lock or similar device unless such firearm is kept at [a] place of business, or [is] being used for lawful recreational purposes within the District of Columbia.”

  To Gura, the District’s question was like saying Time magazine could be banned as long as the District allowed residents to read Newsweek. “This case was about whether handguns are protected under the Second Amendment and also could the city ban all functional firearms,” Gura explained, adding, “We took issue with the suggestion the city actually lets you have rifles and shotguns. They allowed you to have things that looked like rifles and shotguns but you could never render them operable, so what good is that? We argued the right to bear arms is the right to have arms that actually work. There’s no point in having a gun if you can’t ever fire it at someone breaking into your home.”

  In their response to the District’s petition, the Levy team said the question for the justices was: Whether the Second Amendment guarantees law-abiding, adult individuals a right to keep ordinary, functional firearms, including handguns, in their homes.

>   And because the whole point of their five-year litigation battle had been to get an answer from the Supreme Court, they did not oppose review by the justices but told them the case presented a “unique opportunity to correct a persistent misconception that the people do not actually enjoy a right that is specifically enumerated in the Constitution. ‘The people’—individuals in our country—retain the right to keep and bear arms.”4

  In November, the justices announced they would hear arguments in District of Columbia v. Heller, now named after Gura’s only client to have had standing to sue, Dick Heller. And the justices rewrote the question that they would decide to include the long gun provisions in the laws: whether three District gun regulations “violate the Second Amendment rights of individuals who are not affiliated with any state-regulated militia, but who wish to keep handguns and other firearms for private use in their homes.”

  Arguments in the Court’s first substantive Second Amendment case in nearly a century were just four months away.

  Based on its own criteria for granting review, did the Court have a strong reason for taking the District’s appeal? And what would have happened if it had denied review?

  A federal appellate court, of course, had struck down the District’s gun restrictions—the first decision to invalidate a law on Second Amendment grounds—but there was no burning conflict among the federal appellate courts to resolve, a key criterion for Supreme Court review. There certainly was no burning controversy within the District itself since the regulations had been overwhelmingly approved by the elected city council in 1976 and there was no populist movement to repeal them. The appellate court also had said the individual right, like other rights, was not absolute and could be subject to reasonable regulation. If the Supreme Court had not gotten involved, the District conceivably could have tried to write new regulations that met constitutional concerns. There was substantial consensus throughout the country on the existence of an individual right to possess firearms: forty-two states had provisions in their state constitutions protecting that right. And those protections were not at risk. There was little appetite in Congress for national gun control legislation so there was no realistic risk that any individual right, if it did exist, was in danger.

  With a Supreme Court precedent on the books for nearly seventy years that courts had accepted as settling the question in favor of a militia–collective rights interpretation, and with no great national problem vexing elected officials, it was an aggressive conservative Court taking on a long-sought objective on the conservative political agenda.

  • • •

  The October 2007 term was underway for more than a month when the justices made their announcement to hear the District’s gun appeal. The term had opened quietly, relative to the prior term, with two potential landmark rulings on the docket.

  The justices had decided to step back into legal fallout from the nation’s war on terror. Since 2004, the Court had considered five challenges to the Bush administration’s approach to detaining enemy combatants—both citizens and aliens.5

  The cases in the 2007 term—Boumediene v. Bush and Al Odah v. United States, which were consolidated for argument—involved Congress’s response to Hamdan v. Rumsfeld, in which the Court in 2006 struck down military commissions authorized by President Bush because they violated the Uniform Code of Military Justice and the Geneva Conventions.

  Congress subsequently enacted the Military Commissions Act of 2006. The six Boumediene and Al Odah detainees at Guantánamo Bay were asking the justices, among other questions, whether the 2006 act’s prohibition on their seeking federal court review of their detentions through the use of habeas corpus petitions violated the Constitution’s suspension clause. The clause, in Article I, Section 9, states: “The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the Public Safety may require it.”

  The Bush administration and Congress had suffered one setback after another in the Supreme Court in terrorism-related challenges and their latest efforts struck at the heart of the judiciary’s role in the separation of powers. All eyes were trained on the two cases, all eyes, that is, until the District’s gun case competed for top billing in the new term.

  The District’s Alan Morrison and his colleagues had started working on their merits brief (brief in which all arguments are fleshed out) for the Court before review was granted in order to avoid the time crunch between a grant of review and oral arguments. They sent a draft out to Dellinger and Goldstein for input. Morrison faced a moot court of about fifteen lawyers based on the draft brief to uncover any holes in the legal arguments.

  “I was willing to do that because this was not an issue I knew a lot about and I had to feel comfortable with our arguments,” he said. “Nobody thought we had missed any issues. That was quite comforting actually.”

  At the same time, the District’s legal team and their opponents—the Levy team—both sought support from the solicitor general of the United States. A supporting brief by the solicitor general, whose office is highly respected and trusted by the justices for its honesty and clarity of legal analysis, is a boon to any party’s effort in the Court. The United States had not been sued by the Levy team, so it was not a party to the case, but it did have an important government interest and was expected to file a brief. Congress had passed numerous laws regulating firearms and the Department of Justice was responsible for enforcing them and prosecuting violators. The sweeping and categorical nature of the lower appellate court’s ruling cast doubt, for example, on the constitutionality of existing federal laws prohibiting the possession of certain firearms, such as machine guns.

  Attorney General John Ashcroft, in keeping with the Bush administration’s position, had reversed the department’s policy on the Second Amendment in 2001. Because of that policy, both sides in the Heller case knew that the department would argue that the Second Amendment protected an individual right to possess firearms unrelated to militia operations. But they did not know what the government’s position would be on a standard or test that the justices should announce for judging the constitutionality of gun regulations going forward.

  The Court has devised basically three tests, or standards, when it reviews the constitutionality of government actions. The toughest review—strict scrutiny—requires that the government have a compelling interest or objective and that the means chosen to achieve it are narrowly tailored and the least restrictive possible. A middle-level standard—heightened scrutiny—demands an important government objective and means that are substantially related to achieving the objective. The third test—rational basis—is the easiest review for the government to pass and requires a legitimate government objective and means that are rationally related to the objective.

  Morrison, Linda Singer (the district’s attorney general), and Todd Kim (the district’s chief of appeals) headed to the Justice Department in December for a meeting with Solicitor General Paul Clement. The conference room in which they met was filled with department lawyers: Clement; his principal deputy, Gregory Garre; Assistant to the Solicitor General Malcolm Stewart; and members of the department’s criminal appeals division, among others.

  “We knew there was no point in saying to them, ‘Change Ashcroft’s opinion,’ ” said Morrison. “We told them, ‘We need you very much because we can live with a private basis for the Second Amendment so long as there’s appropriate deference given to government regulations.’ We had a long discussion. We told them, ‘Look, there’s a very important issue here as to the standard of review and you have just as much at stake in this as the District.’ ”

  They left the discussion without knowing what the solicitor general would tell the Supreme Court.

  On December 14, 2007, it was their opponents’ turn. Once again the conference room was packed. The discussion was cordial as the Levy team argued that the government should urge the justices to adopt strict scrutiny as the standard of review for gun regul
ations. But no one with the department tipped his or her hand, and there was no strong expression of support.

  The three lawyers left the department and took a cab to Tony Cheng’s restaurant in nearby Chinatown for a Federalist Society lunch. In the cab, Clark Neily shared his misgivings about the tenor of the meeting.

  “Given what would have been reasonable to expect because you’ve got a president who throughout his career was strong on the Second Amendment and there was the Ashcroft memo—it was sort of like the dog that didn’t bark,” he said. “At the same time, I’m not naive. I recognized the challenge the solicitor general’s office was facing in the sense there’s a lot of federal laws on the books involving guns, and once this door is opened, where does it go?”

  Gura’s assessment was harsher. “Clearly these are government lawyers who are very jealous of their authority and they don’t need any more constitutional rights out there restricting their freedom of operation. Institutionally, these people are statist and are not interested in any more tools for individuals to challenge their authority. That was made very clear.”

  The solicitor general operates with a certain degree of independence within the Justice Department, but reports to the attorney general, who, in turn, is an appointee of the president. Inside the solicitor general’s office, the Heller challenge was considered a huge and tricky case—politically and legally—not one the office was particularly eager to confront.

  “It’s one thing to say it’s an individual right and another thing to flesh out where that leads,” explained a department lawyer. “This was something the department had been struggling with since the Ashcroft memo. The Department of Justice and the solicitor general in particular have responsibility for defending the constitutionality of statutes. There are a whole lot of firearm-related restrictions. It would be very difficult to take a position that would have led to the Court holding unconstitutional a number of these laws. At the same time, there was a president and vice president who had been very outspoken on this, and ultimately the president gets to set the policy for his administration.”