On March 18, 2008, the Second Amendment hung in the judicial balance. That morning, the U.S. Supreme Court would hear oral arguments in District of Columbia v. Heller. The question was stark: is the Second Amendment “right to keep and bear Arms” an ordinary individual right? Or would the Court hold that the Second Amendment right is so feeble that the District of Columbia’s handgun ban could be upheld?
The lead attorney, Alan Gura, had initiated the case since 2002. At the Supreme Court, I was one of the other three lawyers who joined Gura at the counsel table to assist him on the oral argument. For example, since the attorney for D.C. would go first, we could give Gura written notes to help him rebut what D.C.’s attorney said or address issues raised by the justices.
Gura had won the case in a lower court, the U.S. Court of Appeals for the District of Columbia. That court had ruled that the Second Amendment “right of the people” protects all the people of the United States, not just those who are in a militia. Therefore, the District of Columbia’s 1975 ordinance prohibiting D.C. residents from possessing handguns was unconstitutional.
The anti-gun lobbies had begged D.C. Mayor Adrian Fenty to just accept the loss. Nobody knew what the Supreme Court would do if it weighed in on the Second Amendment. The gun ban lobbies were terrified that the Court would rule that the Second Amendment is a real individual right.
Ultimately, Mayor Fenty chose to appeal to the Supreme Court. In his view, his job was to preserve the D.C. handgun ban, and so he would roll the dice in the Supreme Court. If he won, D.C. could keep the ban. If he lost, that would hurt gun control in other jurisdictions, but he was focused on what the D.C. government wanted, and not collateral consequences in Massachusetts or Illinois.
We knew that Justices Clarence Thomas and Antonin Scalia generally supported the Second Amendment, based on their previous writings and interviews. But to win a Supreme Court case, you need the votes of five justices. Some of the many amicus briefs filed in the case had been written to appeal to the ideologies of particular justices—such as Ruth Bader Ginsburg’s feminism, David Souter’s love of legal history or Stephen Breyer’s pragmatism about government actions with high costs and low benefits.
That was a nice try, but futile, a very experienced Supreme Court litigator told me a few days before oral argument. He was sure there were at least four implacable votes against the Second Amendment: Justices Ginsburg, Souter, Breyer and Stevens. The lawyer told me to consider Justice Anthony Kennedy “the sun, the moon, and the stars.” The only path to victory was through him.
For the oral argument on Tuesday morning, people had been camping outside the Supreme Court for days, lining up for the spectator seats available to the public. It was a convivial and friendly crowd, with people sharing foods and making runs to convenience stores.
The four lawyers on our oral argument team didn’t have to camp out, and we entered the building early via a special door. Over breakfast in the basement cafeteria, we held our final strategy conference. When we entered the packed courtroom, tension was high.
The lead attorney for D.C., the very experienced Supreme Court attorney Walter Dellinger, came over to our table to say hello. He warmly told Gura, “You’ll do great.” Dellinger said he was looking forward to watching the NCAA basketball tournament as soon as his work was over.
Because D.C. had lost the case in the lower court, Dellinger argued first. Several minutes in, he was explaining his theory that “bear arms” means only to bear arms in a militia, so people who aren’t in the National Guard have no Second Amendment rights. Justice Kennedy interrupted: “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?”
Many spectators gasped. Kennedy believed in Second Amendment rights for ordinary people!
The oral arguments went for another hour, and all I wanted was for them to wrap up as soon as possible. We had a majority, and I didn’t want any misstep during argument to upset it. There were no missteps in Gura’s fine presentation.
We exited the courtroom jubilant. Although the Court would not announce its opinion until three months later, friends and foes alike recognized the import of Justice Kennedy’s words. While the Supreme Court had previously made some favorable references to the Second Amendment, the Court had never before held that a gun control law violated the Second Amendment or clarified that the individual right to firearm ownership was protected under that amendment. That was about to change.
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