Boldly Committed to Truth Telling in the False Face of Fakery
Part II - ANATOMY of a SUPREME COURT CASE: District of Columbia v. Heller (2008)
Publisher's note: This begins the second part of this multi-part series by Diane Rufino examining District of Columbia v. Heller (2008). Part I and all succeeding parts to this mammoth treatise can be found here.
BUILDING THE PERFECT CASE (the "Test" Case) -
First, of course, the Court has to be receptive to what the lawyers want to ask of it, which is to abandon the Military Theory of the right to keep and bear arms in favor of an Individual Right to do so. Was the Supreme Court conservative enough at the time? At the time (2002-2005), the conservatives members were Justices Sandra Day O'Connor, Antonin Scalia, and Clarence Thomas, and Chief Justice William Rehnquist, with Anthony Kennedy as the swing vote. Liberal members were Justices Ruth Bader Ginsburg, David Souter, John Paul Stevens, and Stephen Breyer. [Sandra Day O'Connor stepped down in 2005, and President Bush nominated John Roberts to replace him. But just before the Senate Confirmation Committee was set to act, Rehnquist died unexpectedly. So Bush nominated Roberts to replace him as Chief Justice and Samuel Alito to replace O'Connor. Roberts was confirmed in September 2005 and Alito was confirmed in Jan. 2006].
The Court was conservative compared to the progressive Warren and Burger courts. Earl Warren was Chief Justice from 1953-69 and presided over such landmark cases as Brown v. Board of Education (1954), Engel v. Vitale (1962) and Abington v. Schempp (1963), which took prayer and Bible readings out of schools, respectively), Griswold v. Connecticut (1965), somehow finding a blanket right to privacy and thus serving as the precursor to Roe v. Wade, and enlarging due process rights for criminal defendants (including Miranda rights and publicly-funded attorneys). Warren Burger was Chief Justice from 1969-1986 and presided over such cases as Roe v. Wade (1973) which articulated the right to an abortion, Regents of the University of California v. Baake (1978) which upheld affirmative action policies in universities, and several cases defining the limits of free speech and free press.
A good case for the justices of the Supreme Court to re-address the Second Amendment is one with sympathetic, law-abiding plaintiffs who have an understandable reason to be armed, preferably ordinary individuals who rightfully fear violent criminals or who live in a crime-ridden area. The best-case scenario would be to have individuals who have actually been threatened with harm or death or who have already been victims of crime. A good case would be one that reaches the ultimate merits of the issue (which is that the Second Amendment affirms a constitutional and individual right to keep and bear arms) and not be decided on any extraneous issues. A good case would have constitutional significance.
Neily and Simpson began to plan on how to get a Second Amendment case to the relatively conservative Supreme Court.
(I) The first decision to make was which city's gun control law would they target. The easy answer was Washington DC.
(a) It was the strictest gun control law in the nation
(b) Under the law, everyone, even law-abiding citizens, were banned from owning a handgun
(c) Even if an individual owned a shotgun or rifle for a legal purpose under the law (hunting), it would be ILLEGAL (a crime) to use that legally-owned firearm for self-defense should an armed robber or murder break into his home
(d) DC is technically ruled by the federal government; it is not a state but rather, a federal territory. Although DC was granted "home rule," the Constitution gives Congress the ultimate authority over the area. (That is why Ron Paul was able to seek and pass legislation to try to limit the effect of the gun-control law). The Second Amendment (as all of the Bill of Rights) is a restriction only on the federal government. [That is, by challenging DC's gun law instead of, say New York City's gun law, Neily and Simpson would only need to convince the Supreme Court that the Second Amendment guarantees the right of individuals to have guns. That would be a challenge, given the Miller case precedent, but it would be less difficult than having to persuade the Court to also rule that the amendment applies to the States through the 14th Amendment. The McDonald v. City of Chicago case would do that in 2010].
(II) Neily and Simpson were relatively unknowns, with no money to build the case. They would need to find the perfect person to finance the case. A friend of Neily's, a fellow co-clerk in DC and a wealthy individual, Robert Levy agreed to finance. He was then a senior fellow at the Cato Institute. (Levy decided to go to law school at the age of 50. Although he was absolutely brilliant and could have gone to any law school he chose, he decided to attend George Mason Law School because it was a conservative law school. Its professors lean clearly to the right unlike the professors at almost all other law schools). At this point, Simpson had to drop out because of the pressures of his job.
III. Next, Neily and Levy had to find a suitable attorney to lead the case. Neither Neily or Levy considered themselves capable to do so. The decided on a young libertarian lawyer named Alan Gura who they remembered in their libertarian circles as a proponent of both guns and marijuana being legal ("individuals have the right to do with their lives without government interference"). Gura was sharp but he had never argued a case before the Supreme Court.
IV. The second major decision to make was to select the Perfect Plaintiff (ie, the person to represent the issue, the lead name on the case).
(a) Dick Heller. Dick Heller was a white man who worked as a security guard at a federal building in Washington - the Thurgood Marshall Federal Judicial Center. He lived in DC across the street from an abandoned federal housing project. That housing project was built in the 1960's, in furtherance of LBJ's "war on poverty." Thirty years later, the units were run down and decrepit - with rotted out walls and collapsing ceilings. The only people who found the place habitable were heroin and crack addicts. Consequently, a drug gang moved into the area and operated out of the complex. The drugs and the gang brought with them violence - routine shootings and killings. The police were happy to ignore the area. But Dick Heller had to exist in this neighborhood. At night he would hear the gunshots and try to ignore them. One night he returned home to find a stray bullet had struck his front door. At work, he carried a handgun on his hip to protect the people who worked there (federal employees), but because of DC's then 20-year-old gun ban, he had to leave it there when he returned home each day. In 2002, prompted by the suggestion of a close friend, Heller applied for a gun permit and went through the frustrating and futile exercise of applying for a gun permit. Also at the suggestion of his friend, he documented the ordeal as a testament to the practical impossibility of obtaining and keeping a gun for home protection in the district.
While there was rarely any threat of violence at work, the situation at home was very different. There existed a real threat, an actual threat, of violence in his neighborhood. Yet the DC gun control law banned him from possessing a firearm to defend himself.
The only negative that Neily, Levy, and Gura could find (which might have an unfavorable impression on the Court) was that Heller was overly obsessed with his gun rights and was prone to making potentially disturbing political statements.
(b) Shelly Parker. In 2002, Shelly Parker, an elderly African-American woman and former nurse, moved to a neighborhood not far from Capitol Hill, in an area where drug dealers sold their drugs right out in the open. Determined to keep her neighborhood clean, she became a one-woman Community Watch, keeping an eye out on the streets and calling the police whenever she saw someone buying drugs. The drug dealers caught on and responded with intimidation - smashing her car window, stealing her security camera, and driving a car into her back fence. One night, a drug dealer stood at her gate and shouted: "Bitch, I'll kill you! I live on this block too." Parker began to fear for her life, believing that the drug dealers would eventually make good on their threats. When she called the police to tell them of the threats, one officer told her point blank: "Get a gun." The officer certainly knew that owning a gun was against the law, but he also knew that it was the only sure way to protect her life. He understood, as she did, that the DC gun law left citizens like her defenseless and putting her life in danger. As Parker said: "The only thing between me and somebody entering my home are harsh words. That's all I have." Parker was an attractive plaintiff for many reasons: She was a very sympathetic elderly woman, defenseless, victimized, in actual fear of her life, and African-American. She had stood up to violent drug dealers at great risk to her life. Why does it matter that she was African-American? Because history has been cruel to African-Americans in this country. First they were slaves and even when they were freed, the South legislatively imposed second-class status on them with the segregation laws known as the Jim Crow laws. After Reconstruction and as the Southern states were trying to re-establish their white dominated society, the Ku Klux Klan went around terrorizing and intimidating free slaves but most importantly, confiscating their guns. Laws were put in place in the post-Reconstruction South (the Jim Crow South) forbidding blacks to own guns, or making it almost impossible to get one. Freed slaves were intentionally left defenseless.
Gura chose Shelly Parker. She was a far more sympathetic and compelling plaintiff.
(b) Shelly Parker. In 2002, Shelly Parker, an elderly African-American woman and former nurse, moved to a neighborhood not far from Capitol Hill, in an area where drug dealers sold their drugs right out in the open. Determined to keep her neighborhood clean, she became a one-woman Community Watch, keeping an eye out on the streets and calling the police whenever she saw someone buying drugs. The drug dealers caught on and responded with intimidation - smashing her car window, stealing her security camera, and driving a car into her back fence. One night, a drug dealer stood at her gate and shouted: "Bitch, I'll kill you! I live on this block too." Parker began to fear for her life, believing that the drug dealers would eventually make good on their threats. When she called the police to tell them of the threats, one officer told her point blank: "Get a gun." The officer certainly knew that owning a gun was against the law, but he also knew that it was the only sure way to protect her life. He understood, as she did, that the DC gun law left citizens like her defenseless and putting her life in danger. As Parker said: "The only thing between me and somebody entering my home are harsh words. That's all I have." Parker was an attractive plaintiff for many reasons: She was a very sympathetic elderly woman, defenseless, victimized, in actual fear of her life, and African-American. She had stood up to violent drug dealers at great risk to her life. Why does it matter that she was African-American? Because history has been cruel to African-Americans in this country. First they were slaves and even when they were freed, the South legislatively imposed second-class status on them with the segregation laws known as the Jim Crow laws. After Reconstruction and as the Southern states were trying to re-establish their white dominated society, the Ku Klux Klan went around terrorizing and intimidating free slaves but most importantly, confiscating their guns. Laws were put in place in the post-Reconstruction South (the Jim Crow South) forbidding blacks to own guns, or making it almost impossible to get one. Freed slaves were intentionally left defenseless.
Gura chose Shelly Parker. She was a far more sympathetic and compelling plaintiff.
THE ROCKY ROAD to the SUPREME COURT:
1). Gura filed the lawsuit in the District Court for the District of Columbia on February 10, 2003. As mentioned above, the lead plaintiff chosen was Shelly Parker and so the case name, as filed, was Parker v. District of Columbia.
2). After Gura filed the complaint against the District of Columbia, the NRA, totally unexpectedly, filed its own lawsuit.. In that lawsuit, the NRA not only asserting the "Individual Rights" view of the Second Amendment but also including what is called "trap doors" - additional, extraneous claims that the courts could use to decide the case by avoiding the Second Amendment question. Neily and Simpson decided to bring the case, and Levy put his own money behind it, NOT to simply strike down the DC's handgun ban. They wanted to resurrect the Second Amendment. The NRA wanted just the opposite. Note, the NRA hired as its leading attorney the renowned Steve Halbrook - the nation's leading expert on the right to bear arms. Halbrook was Neily and Levy's first choice, but unfortunately, he was too expensive for their budget. Halbrook had plenty of experience trying gun cases; Gura had none.
Gura did not expect the NRA's lawsuit. He had thought the organization would have supported their lawsuit to assert the Individual Rights view of the Second Amendment. The NRA's concerns, however, were two-fold (and conflicting): (1) On the one hand, it didn't want to challenge the prevailing "Militia Theory" view of the Second Amendment because gun control laws were their bread and butter. Nothing advances its fund-raising efforts more than alerting gun enthusiasts and club members that their gun rights are being infringed by gun-control laws. (2) On the other hand, the NRA was in favor of the individual rights view but they thought the timing for such a lawsuit was not right - they could not be sure that they had the necessary votes on the Supreme Court to shift from the Militia view. [Justice Sandra Day O'Connor had disappointed conservatives by siding strongly with progressives on abortion and on affirmative action, and Justice John Paul Stevens was uber liberal and anti-gun. Both were likely to be replaced by President Bush].
3). The NRA sought to have the cases consolidated, thereby hijacking Gura's case by bringing in the "trap door" claims. Also, the NRA hoped that it would be Halbrook, and not Gura, who would argue the case. Essentially, the point of the NRA's litigation tactic was this: "If we can't control the litigation, there won't be any litigation!" Luckily, in July 2003, the district court judge, Emmett Sullivan, reached a decision - the two cases should not be consolidated. Alan Gura successfully survived the first hurdle.
4). Unable to derail Gura's lawsuit with consolidation, the NRA tried Plan B - It convinced Senator Orrin Hatch to introduce a bill in Congress, the "District of Columbia Personal Protection Act" which would over-turn the DC gun law and permit DC residents to possess handguns. If the bill passed then Gura's lawsuit would be moot and thrown out of court. [The bill passed the Senate and was fast-tracked to the House floor in 2007 where it was expected to pass, but then the shooting at Virginia Tech happened on April 16 and it doomed the bill].
Go Back
BUILDING THE PERFECT CASE (the "Test" Case) -
First, of course, the Court has to be receptive to what the lawyers want to ask of it, which is to abandon the Military Theory of the right to keep and bear arms in favor of an Individual Right to do so. Was the Supreme Court conservative enough at the time? At the time (2002-2005), the conservatives members were Justices Sandra Day O'Connor, Antonin Scalia, and Clarence Thomas, and Chief Justice William Rehnquist, with Anthony Kennedy as the swing vote. Liberal members were Justices Ruth Bader Ginsburg, David Souter, John Paul Stevens, and Stephen Breyer. [Sandra Day O'Connor stepped down in 2005, and President Bush nominated John Roberts to replace him. But just before the Senate Confirmation Committee was set to act, Rehnquist died unexpectedly. So Bush nominated Roberts to replace him as Chief Justice and Samuel Alito to replace O'Connor. Roberts was confirmed in September 2005 and Alito was confirmed in Jan. 2006].
The Court was conservative compared to the progressive Warren and Burger courts. Earl Warren was Chief Justice from 1953-69 and presided over such landmark cases as Brown v. Board of Education (1954), Engel v. Vitale (1962) and Abington v. Schempp (1963), which took prayer and Bible readings out of schools, respectively), Griswold v. Connecticut (1965), somehow finding a blanket right to privacy and thus serving as the precursor to Roe v. Wade, and enlarging due process rights for criminal defendants (including Miranda rights and publicly-funded attorneys). Warren Burger was Chief Justice from 1969-1986 and presided over such cases as Roe v. Wade (1973) which articulated the right to an abortion, Regents of the University of California v. Baake (1978) which upheld affirmative action policies in universities, and several cases defining the limits of free speech and free press.
A good case for the justices of the Supreme Court to re-address the Second Amendment is one with sympathetic, law-abiding plaintiffs who have an understandable reason to be armed, preferably ordinary individuals who rightfully fear violent criminals or who live in a crime-ridden area. The best-case scenario would be to have individuals who have actually been threatened with harm or death or who have already been victims of crime. A good case would be one that reaches the ultimate merits of the issue (which is that the Second Amendment affirms a constitutional and individual right to keep and bear arms) and not be decided on any extraneous issues. A good case would have constitutional significance.
Neily and Simpson began to plan on how to get a Second Amendment case to the relatively conservative Supreme Court.
(I) The first decision to make was which city's gun control law would they target. The easy answer was Washington DC.
(a) It was the strictest gun control law in the nation
(b) Under the law, everyone, even law-abiding citizens, were banned from owning a handgun
(c) Even if an individual owned a shotgun or rifle for a legal purpose under the law (hunting), it would be ILLEGAL (a crime) to use that legally-owned firearm for self-defense should an armed robber or murder break into his home
(d) DC is technically ruled by the federal government; it is not a state but rather, a federal territory. Although DC was granted "home rule," the Constitution gives Congress the ultimate authority over the area. (That is why Ron Paul was able to seek and pass legislation to try to limit the effect of the gun-control law). The Second Amendment (as all of the Bill of Rights) is a restriction only on the federal government. [That is, by challenging DC's gun law instead of, say New York City's gun law, Neily and Simpson would only need to convince the Supreme Court that the Second Amendment guarantees the right of individuals to have guns. That would be a challenge, given the Miller case precedent, but it would be less difficult than having to persuade the Court to also rule that the amendment applies to the States through the 14th Amendment. The McDonald v. City of Chicago case would do that in 2010].
(II) Neily and Simpson were relatively unknowns, with no money to build the case. They would need to find the perfect person to finance the case. A friend of Neily's, a fellow co-clerk in DC and a wealthy individual, Robert Levy agreed to finance. He was then a senior fellow at the Cato Institute. (Levy decided to go to law school at the age of 50. Although he was absolutely brilliant and could have gone to any law school he chose, he decided to attend George Mason Law School because it was a conservative law school. Its professors lean clearly to the right unlike the professors at almost all other law schools). At this point, Simpson had to drop out because of the pressures of his job.
III. Next, Neily and Levy had to find a suitable attorney to lead the case. Neither Neily or Levy considered themselves capable to do so. The decided on a young libertarian lawyer named Alan Gura who they remembered in their libertarian circles as a proponent of both guns and marijuana being legal ("individuals have the right to do with their lives without government interference"). Gura was sharp but he had never argued a case before the Supreme Court.
IV. The second major decision to make was to select the Perfect Plaintiff (ie, the person to represent the issue, the lead name on the case).
(a) Dick Heller. Dick Heller was a white man who worked as a security guard at a federal building in Washington - the Thurgood Marshall Federal Judicial Center. He lived in DC across the street from an abandoned federal housing project. That housing project was built in the 1960's, in furtherance of LBJ's "war on poverty." Thirty years later, the units were run down and decrepit - with rotted out walls and collapsing ceilings. The only people who found the place habitable were heroin and crack addicts. Consequently, a drug gang moved into the area and operated out of the complex. The drugs and the gang brought with them violence - routine shootings and killings. The police were happy to ignore the area. But Dick Heller had to exist in this neighborhood. At night he would hear the gunshots and try to ignore them. One night he returned home to find a stray bullet had struck his front door. At work, he carried a handgun on his hip to protect the people who worked there (federal employees), but because of DC's then 20-year-old gun ban, he had to leave it there when he returned home each day. In 2002, prompted by the suggestion of a close friend, Heller applied for a gun permit and went through the frustrating and futile exercise of applying for a gun permit. Also at the suggestion of his friend, he documented the ordeal as a testament to the practical impossibility of obtaining and keeping a gun for home protection in the district.
While there was rarely any threat of violence at work, the situation at home was very different. There existed a real threat, an actual threat, of violence in his neighborhood. Yet the DC gun control law banned him from possessing a firearm to defend himself.
The only negative that Neily, Levy, and Gura could find (which might have an unfavorable impression on the Court) was that Heller was overly obsessed with his gun rights and was prone to making potentially disturbing political statements.
(b) Shelly Parker. In 2002, Shelly Parker, an elderly African-American woman and former nurse, moved to a neighborhood not far from Capitol Hill, in an area where drug dealers sold their drugs right out in the open. Determined to keep her neighborhood clean, she became a one-woman Community Watch, keeping an eye out on the streets and calling the police whenever she saw someone buying drugs. The drug dealers caught on and responded with intimidation - smashing her car window, stealing her security camera, and driving a car into her back fence. One night, a drug dealer stood at her gate and shouted: "Bitch, I'll kill you! I live on this block too." Parker began to fear for her life, believing that the drug dealers would eventually make good on their threats. When she called the police to tell them of the threats, one officer told her point blank: "Get a gun." The officer certainly knew that owning a gun was against the law, but he also knew that it was the only sure way to protect her life. He understood, as she did, that the DC gun law left citizens like her defenseless and putting her life in danger. As Parker said: "The only thing between me and somebody entering my home are harsh words. That's all I have." Parker was an attractive plaintiff for many reasons: She was a very sympathetic elderly woman, defenseless, victimized, in actual fear of her life, and African-American. She had stood up to violent drug dealers at great risk to her life. Why does it matter that she was African-American? Because history has been cruel to African-Americans in this country. First they were slaves and even when they were freed, the South legislatively imposed second-class status on them with the segregation laws known as the Jim Crow laws. After Reconstruction and as the Southern states were trying to re-establish their white dominated society, the Ku Klux Klan went around terrorizing and intimidating free slaves but most importantly, confiscating their guns. Laws were put in place in the post-Reconstruction South (the Jim Crow South) forbidding blacks to own guns, or making it almost impossible to get one. Freed slaves were intentionally left defenseless.
Gura chose Shelly Parker. She was a far more sympathetic and compelling plaintiff.
(b) Shelly Parker. In 2002, Shelly Parker, an elderly African-American woman and former nurse, moved to a neighborhood not far from Capitol Hill, in an area where drug dealers sold their drugs right out in the open. Determined to keep her neighborhood clean, she became a one-woman Community Watch, keeping an eye out on the streets and calling the police whenever she saw someone buying drugs. The drug dealers caught on and responded with intimidation - smashing her car window, stealing her security camera, and driving a car into her back fence. One night, a drug dealer stood at her gate and shouted: "Bitch, I'll kill you! I live on this block too." Parker began to fear for her life, believing that the drug dealers would eventually make good on their threats. When she called the police to tell them of the threats, one officer told her point blank: "Get a gun." The officer certainly knew that owning a gun was against the law, but he also knew that it was the only sure way to protect her life. He understood, as she did, that the DC gun law left citizens like her defenseless and putting her life in danger. As Parker said: "The only thing between me and somebody entering my home are harsh words. That's all I have." Parker was an attractive plaintiff for many reasons: She was a very sympathetic elderly woman, defenseless, victimized, in actual fear of her life, and African-American. She had stood up to violent drug dealers at great risk to her life. Why does it matter that she was African-American? Because history has been cruel to African-Americans in this country. First they were slaves and even when they were freed, the South legislatively imposed second-class status on them with the segregation laws known as the Jim Crow laws. After Reconstruction and as the Southern states were trying to re-establish their white dominated society, the Ku Klux Klan went around terrorizing and intimidating free slaves but most importantly, confiscating their guns. Laws were put in place in the post-Reconstruction South (the Jim Crow South) forbidding blacks to own guns, or making it almost impossible to get one. Freed slaves were intentionally left defenseless.
Gura chose Shelly Parker. She was a far more sympathetic and compelling plaintiff.
THE ROCKY ROAD to the SUPREME COURT:
1). Gura filed the lawsuit in the District Court for the District of Columbia on February 10, 2003. As mentioned above, the lead plaintiff chosen was Shelly Parker and so the case name, as filed, was Parker v. District of Columbia.
2). After Gura filed the complaint against the District of Columbia, the NRA, totally unexpectedly, filed its own lawsuit.. In that lawsuit, the NRA not only asserting the "Individual Rights" view of the Second Amendment but also including what is called "trap doors" - additional, extraneous claims that the courts could use to decide the case by avoiding the Second Amendment question. Neily and Simpson decided to bring the case, and Levy put his own money behind it, NOT to simply strike down the DC's handgun ban. They wanted to resurrect the Second Amendment. The NRA wanted just the opposite. Note, the NRA hired as its leading attorney the renowned Steve Halbrook - the nation's leading expert on the right to bear arms. Halbrook was Neily and Levy's first choice, but unfortunately, he was too expensive for their budget. Halbrook had plenty of experience trying gun cases; Gura had none.
Gura did not expect the NRA's lawsuit. He had thought the organization would have supported their lawsuit to assert the Individual Rights view of the Second Amendment. The NRA's concerns, however, were two-fold (and conflicting): (1) On the one hand, it didn't want to challenge the prevailing "Militia Theory" view of the Second Amendment because gun control laws were their bread and butter. Nothing advances its fund-raising efforts more than alerting gun enthusiasts and club members that their gun rights are being infringed by gun-control laws. (2) On the other hand, the NRA was in favor of the individual rights view but they thought the timing for such a lawsuit was not right - they could not be sure that they had the necessary votes on the Supreme Court to shift from the Militia view. [Justice Sandra Day O'Connor had disappointed conservatives by siding strongly with progressives on abortion and on affirmative action, and Justice John Paul Stevens was uber liberal and anti-gun. Both were likely to be replaced by President Bush].
3). The NRA sought to have the cases consolidated, thereby hijacking Gura's case by bringing in the "trap door" claims. Also, the NRA hoped that it would be Halbrook, and not Gura, who would argue the case. Essentially, the point of the NRA's litigation tactic was this: "If we can't control the litigation, there won't be any litigation!" Luckily, in July 2003, the district court judge, Emmett Sullivan, reached a decision - the two cases should not be consolidated. Alan Gura successfully survived the first hurdle.
4). Unable to derail Gura's lawsuit with consolidation, the NRA tried Plan B - It convinced Senator Orrin Hatch to introduce a bill in Congress, the "District of Columbia Personal Protection Act" which would over-turn the DC gun law and permit DC residents to possess handguns. If the bill passed then Gura's lawsuit would be moot and thrown out of court. [The bill passed the Senate and was fast-tracked to the House floor in 2007 where it was expected to pass, but then the shooting at Virginia Tech happened on April 16 and it doomed the bill].
| Educate the Educators! | Local News & Expression, Editorials, For Love of God and Country, Op-Ed & Politics | Part III - ANATOMY of a SUPREME COURT CASE: District of Columbia v. Heller (2008) |
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