by Marcia Coyle
On the Sunday before the argument, Dellinger was in his firm’s downtown office preparing when he turned on the television at 6 pm to get the sports scores. “The local news was live from the steps of the Supreme Court where people were lined up out to the street on Sunday night for the Tuesday morning argument,” he recalled. “It made my knees buckle. I immediately turned off the television and went back to work without getting the sports scores.”
The night before the argument was a normal one for Gura, who had dinner with his family, went to bed, and slept “okay.” He, Neily, and Levy got to the Court early the next morning. The line of people that had begun to form two nights before to get into the courtroom now snaked across the plaza and down around the block. The trio had given a fourth seat at counsel’s table to Dave Kopel, research director of the Independence Institute in Golden, Colorado, who has written extensively about the Second Amendment and was instrumental in coordinating the amicus briefs. The men met in the lawyers’ lounge off of the courtroom and had coffee.
Despite the chilly morning, Dellinger, as was his practice, biked to the Court, a practice that helped him “clear his head.” Paul Clement, the solicitor general, waited in his own office at the Court. That office is a symbol of how important the solicitor general is to the institution: the solicitor general is the only federal official with an office in both the judicial and the executive branches of government.
No empty seats could be found in the courtroom that morning. Extra rows of chairs to accommodate the overflow press filled the aisle behind the marble pillars that marked off the regular press pews. The same sense of anticipation that had electrified the room on the morning of the Seattle-Louisville school arguments a year earlier charged the atmosphere once again. But everyone would have to wait just a few more minutes. After the justices took their seats at 10 am, Chief Justice Roberts announced that Justice Thomas had the Court’s opinion in Washington State Grange v. Washington State Republican Party.
Because Thomas’s voice is so rarely heard in the courtroom, the audience was rapt as he explained the issue in the case. Washington voters had approved an initiative requiring that candidates for office must be identified on the primary ballot by their self-designated party preference; that voters may vote for any candidate; and that the two top vote-getters for each office, regardless of party preference, advance to the general election. The states’ political parties charged that the new law, on its face, violated a party’s First Amendment association rights by usurping their right to nominate their own candidates and by forcing them to associate with candidates they did not endorse. Thomas, in a 7–2 decision, said the initiative, on its face, did not impose a severe burden on the parties’ association rights. Justices Scalia and Kennedy dissented.
The 2007 term, up to this point, had been relatively uneventful, particularly compared to the prior term’s menu of hot-button cases triggering high emotions. The Court in December had heard arguments in another potential headliner case—the Guantánamo Bay detainee challenge, Boumediene v. Bush—but no decision had been issued. And another closely watched case involving a challenge to Louisiana’s imposition of the death penalty for the rape of a child was not being argued until mid-April.
The emotional thermometer inside the Court was lower as well from the prior term. “People calm down; they move on,” explained one justice.
After Thomas finished his summary of the election decision, Roberts announced argument in District of Columbia v. Heller.
Dellinger, representing the District, rose and pressed his main argument that the Second Amendment was a reaction to the militia clauses in Article I of the Constitution, which gave the new national Congress “the surprising, perhaps even shocking, power to organize, arm, and presumably disarm the state militias,” he said. The individual right protected by the amendment, he argued, was the right to participate in the common defense and to go to court if a federal law or regulation interfered with that right.
Minutes into Dellinger’s argument, Kennedy tipped his hand. It was a moment when all of the lawyers, including those in the audience who had followed the long debate over the amendment’s meaning, knew that the gun rights arguments had won. Kennedy told Dellinger that he saw a way to conform the amendment’s two clauses and, in effect, delink them. He was referring to the preamble (A well-regulated Militia, being necessary to the security of a free State) and the second clause (the right of the people to keep and bear Arms, shall not be infringed).
“The first clause, I submit, can be read consistently with the purpose I’ve indicated of simply reaffirming the existence and importance of the militia clauses,” said Kennedy, referring to Article I, Section 8 of the Constitution, which gives Congress the power to call “forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions.”
“And so in effect the [Second] amendment says we reaffirm the right to have a militia, we’ve established it [in another part of the Constitution], but in addition, there is a right to bear arms,” suggested Kennedy.
Dellinger countered there was nothing at the time in the debates over the Second Amendment that referred to the use of weapons for personal purposes.
Kennedy was not deterred, asking, “It had nothing to do with the concern of the remote settler to defend himself and his family against hostile Indian tribes and outlaws, wolves and bears and grizzlies and things like that?”
No, responded Dellinger, that was not part of the Second Amendment discourse.
Kennedy’s suggestion was so inconsistent with the historical record, Dellinger thought, there was no hope of reaching him. Kennedy was saying that the first clause of the Second Amendment was written simply to emphasize the importance of another section of the Constitution, the so-called militia clause in Article I, Section 8, outlining the powers of Congress.
Kennedy’s interpretation was “exactly totally backward,” Dellinger said later. “The Second Amendment arose out of hostility to the militia clause, deep hostility to it, when it gave Congress control over the state militias. Everything about it was a reaction to that hostility. The idea [the Framers] wanted to reemphasize the value of the militia clause turns the history of this amendment literally upside down and backwards.”
Dellinger knew at that moment that he was going to lose, as did Peter Nickles, the District’s attorney general, sitting at the counsel table.
Gura and Neily, sitting next to each other at the counsel’s table on the other side of the lectern, tried mightily not to look at each other after Kennedy’s comments. “That was an electric moment,” said Neily. “I remember it vividly, and essentially trying to keep my face pointed forward and looking over with my eyes, making eye contact with Alan, and both of us knowing at that moment we had Kennedy. We had won.”
The moment and its significance were not lost on some in the audience as well. Gun rights litigator Stephen Halbrook remembered, “The big wild card for us was Kennedy. We’re on the edge of our seats and Kennedy opens his mouth and he comes out with colonists and frontiersmen and they have to protect themselves from grizzly bears—grizzly bears in the East!” He laughed. “That suggested the individual right interpretation.”
His frequent opponent, Dennis Henigan of the Brady Center, had waited in the cold from four thirty that morning for a seat inside. “There was nothing but anxiety going into it. It was clearly up to Kennedy,” said Henigan. “Once he spoke and started talking about the need for guns to confront bears and cougars . . . I have spent a good part of my professional career writing and talking about the Second Amendment and essentially arguing against the individual right view in every way I know how. There was the U.S. Supreme Court going to endorse this view I thought was total bunk. I just closed my eyes.”
Scalia also showed his hand when, reacting to Kennedy’s suggested reading of the amendment’s two clauses, he said, “I don’t see how there’s any contradiction between reading the second clause as a personal guarantee and reading th
e first one as assuring the existence of a militia. The two clauses go together beautifully: Since we need a militia, the right of the people to keep and bear arms shall not be infringed.” He also referred to William Blackstone, the great eighteenth-century English jurist whose commentaries on the laws of England were highly influential with the Framers. Blackstone thought the right of self-defense was inherent, said Scalia.
And Roberts asked Dellinger, “What is reasonable about a total ban on possession?” Dellinger answered, “What is reasonable about a total ban on possession is that it’s a ban only on the possession of one kind of weapon, of handguns, that has been considered especially, especially dangerous.”
When his turn came, Solicitor General Paul Clement held steadfastly to the government’s argument that the amendment protected an individual right to possess a gun in the home, but the right was subject to government regulation that should not have to undergo the toughest constitutional scrutiny, but some lesser standard. Roberts pushed back, saying, “I wonder why in this case we have to articulate an all-encompassing standard. Isn’t it enough to determine the scope of the existing right that the amendment refers to, look at the various regulations that were available at the time . . . and determine how this restriction and the scope of this right look in relation to those?”
Scalia asked Clement what he was worried about—machine guns, armored bullets? And Clement responded that the lower federal appellate court’s language in the Heller decision seemed to say that once something is defined as a firearm, the District could not ban it, and that raised concerns about certain provisions in federal firearm laws.
Alan Gura faced his most aggressive questioning from Justices Breyer, Stevens, and Ginsburg. Breyer asked, assuming the nature of the right is to maintain a citizen army and for people to understand weapons—which they can do with the rifles that the District allows—why is it unreasonable “for a city with a very high crime rate to say no handguns here?” Because, answered Gura, proficiency in use and familiarity with the handgun at issue would further a militia purpose.
Stevens asked if the amendment limits the kinds of arms appropriate to a militia, “Why does it not also limit the kind of people who may have arms?” And Gura replied, “It would certainly be an odd right that we would have against the Congress, if Congress could then redefine people out of that right.” Stevens also pressed him on the fact that only two state constitutions at the time of the Second Amendment’s framing referred to keeping and bearing arms for self-defense; the others referred to the common defense.
In a concession that angered many in the gun rights community, Gura told the Court that the government could ban arms not appropriate for civilian use, such as machine guns, or plastic, undetectable handguns.
Dellinger returned to the lectern for rebuttal and immediately ran into trouble from the chief justice, who focused on the District’s requirement that all firearms (rifles, shotguns, and pre-ban handguns) be “unloaded and disassembled or bound by a trigger-lock or similar device.”
Roberts asked how many minutes it takes to remove a trigger lock and load a rifle.
Dellinger said a gun with a numerical code would take about three seconds.
Scalia interjected, “You turn on the lamp next to your bed so you can turn the knob at 3-22-95 . . .”
And Roberts, to laughter in the courtroom, added, “So then you turn on the lamp, you pick up your reading glasses . . .”
Dellinger said, “The District believes that what is important here is the ban on handguns. And it also believes that you’re entitled to have a functional usable weapon for self-defense in the home, and that’s why this is a very proportionate law.”
By the end of the arguments, the Court appeared divided along ideological lines, with the five conservatives supporting the individual right interpretation and the four liberals siding with the militia-based collective rights view.
After the argument, the lawyers and their clients followed the tradition in high-profile cases of walking down the building’s front steps to the television cameras awaiting their recap of the arguments inside. Gura and Levy then headed over to the Cato Institute to handle press calls. Neily stayed with Dick Heller to help him navigate the media. Henigan of the Brady Center stood with a team of his center’s lawyers. “It was basically a wake,” he said. “A lot of head-shaking.”
The justices would not discuss the case until their conference that week. They would vote during their conference, and opinion assignments would be given soon afterwards. But work on the case actually had begun much earlier and in depth in one justice’s chambers.
“I had felt very strongly that Miller had been law for nearly a hundred years,” said Justice Stevens. “You don’t upset cases like that except for an awfully good reason. I remember asking my clerk when the case was coming up to tell me if there had been any major changes in the scholarship that differed. She started to work on that very early in the case and did a very thorough study for me about state constitutional provisions bearing on gun control, some of which expansively covered hunting and personal defense. We found out [James] Madison’s draft definitely differed from those state constitutions and we thought that was powerful evidence that the preamble meant what it said.”
Only two states had provisions that addressed self-defense and hunting. The others, like James Madison’s draft of the amendment, addressed the need to preserve militias. The combination of the Miller decision, even though poorly drafted, Madison’s draft, state constitutional provisions, and the Framers’ overriding concern for the maintenance of the militia convinced Stevens that the Second Amendment was adopted to protect the right of the people to preserve a well-regulated militia.
After the conference vote on the Heller case, Chief Justice Roberts assigned the majority opinion to Justice Scalia. Stevens, the most senior justice in the minority, chose not to assign the lead dissent to Souter, Ginsburg, or Breyer, who also were in the minority, but to keep the dissent for himself; Breyer decided to write a separate dissent.
Scalia was thrilled with the assignment—his most important opinion since joining the Court and one that would be a major “vindication of originalism.”
As chief justice, Roberts has shown himself to be fair in his use of what he calls his only real power—the assigning of opinions—as was his predecessor, William H. Rehnquist, agree the justices. And that fairness has been an important contribution to the Court’s well-known collegiality under both men.
Recalling Roberts’s assignment of Heller, Scalia commented, “He assigned it to me, for which I was very grateful because he knew I would care a lot about it. And he knew it would be a big, big opinion, which he could have kept for himself. I was very grateful for that.”
After receiving the assignment of the majority opinion, Scalia had one of his clerks take on the research into the history of the Second Amendment. “It was an enormous effort. My law clerk working on that case was just a bear. He was fantastic.” What also helped—and what showed how much had changed since his early years on the Court, when he and his clerks labored to do historical research without assistance—were the amicus briefs filed in Heller, according to Scalia.
“There was a huge amount of historical assistance from legal historians and others,” he said. “That has made the practice of originalism a lot easier. When there are two people on the Court who are going to be affected by that argument, of course counsel will try to get those two votes by giving any historical evidence they can gin up.”
Scalia said he likes historians for their raw material, but he does not think they are impartial. “They’re just as causey as anybody else. They won’t gather to submit a brief on one side or the other unless they care which way it comes out.” So the mere fact that academics file doesn’t carry much weight, and it shouldn’t, according to Scalia. “When I was an academic, I never once signed on to an amicus brief,” he added. “You can sign on whether you know the area or not. I never thought that was a pr
oper role for the academic.” Proper or not, amicus briefs by academic scholars of every stripe are now a common feature in Supreme Court cases.
Despite the vote in Heller, the dissenters, based on their own exhaustive historical research, still were hopeful that a fair and thorough analysis of the amendment’s history would persuade possibly Kennedy or Thomas to join them instead of Scalia. Thomas, in particular, had a keen interest in history, thought one justice, and might be reachable. They were wrong.
The Supreme Court rarely writes on a clean slate. In most cases, earlier decisions offer guidance or a rule that may be applied to help resolve the issue before the justices. The Heller gun case was that rare and, for the justices, exciting exception where the Court had said little of substance about the Second Amendment. The gun case, however, was not the only major case that term to thrust the justices into the role of amateur historians.
• • •
Before the Heller decision came down, the Court on June 12, 2008, issued its decision in the Guantánamo Bay detainee case: Boumediene v. Bush. The case brought by six Algerian detainees asked whether the Military Commissions Act of 2006 had stripped the federal courts of jurisdiction over federal habeas petitions filed by detainees challenging the legality of their detentions. If the act did divest the courts of jurisdiction, the case also asked whether that was a violation of the suspension clause of the Constitution. That clause, in Article I, Section 9, states that “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 Framers knew the writ was indispensable to individual liberty. They had experienced being jailed without charge. The writ, which has its foundation in English common law, compels the government to state a legitimate reason for detention. To answer the questions in Boumediene, the justices delved into the history and scope of the common law writ, examining sources such as the Habeas Corpus Act of 1679; the Magna Carta, the English Bill of Rights; and the text and drafting history of the Constitution’s suspension clause. And they looked to competing arguments in amicus briefs filed by legal historians.
