A Front Row Seat to History—D.C. vs. Heller

On March 18, 2008, the Second Modification hung within the judicial steadiness. That morning, the U.S. Supreme Courtroom would hear oral arguments in District of Columbia v. Heller. The query was stark: is the Second Modification “proper to maintain and bear Arms” an strange particular person proper? Or would the Courtroom maintain that the Second Modification proper is so feeble that the District of Columbia’s handgun ban may very well be upheld?

The lead legal professional, Alan Gura, had initiated the case since 2002. On the Supreme Courtroom, I used to be one of many different three attorneys who joined Gura on the counsel desk to help him on the oral argument. For instance, for the reason that legal professional for D.C. would go first, we may give Gura written notes to assist him rebut what D.C.’s legal professional mentioned or tackle points raised by the justices.

Gura had received the case in a decrease courtroom, the U.S. Courtroom of Appeals for the District of Columbia. That courtroom had dominated that the Second Modification “proper of the individuals” protects all of the individuals of the US, not simply those that are in a militia. Subsequently, 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 only settle for the loss. No one knew what the Supreme Courtroom would do if it weighed in on the Second Modification. The gun ban lobbies have been terrified that the Courtroom would rule that the Second Modification is an actual particular person proper.

Finally, Mayor Fenty selected to attraction to the Supreme Courtroom. In his view, his job was to protect the D.C. handgun ban, and so he would roll the cube within the Supreme Courtroom. If he received, D.C. may preserve the ban. If he misplaced, that will harm gun management in different jurisdictions, however he was centered on what the D.C. authorities wished, and never collateral penalties in Massachusetts or Illinois.

We knew that Justices Clarence Thomas and Antonin Scalia typically supported the Second Modification, primarily based on their earlier writings and interviews. However to win a Supreme Courtroom case, you want the votes of 5 justices. A few of the many amicus briefs filed within the case had been written to attraction to the ideologies of explicit justices—akin to Ruth Bader Ginsburg’s feminism, David Souter’s love of authorized historical past or Stephen Breyer’s pragmatism about authorities actions with excessive prices and low advantages.

That was a pleasant attempt, however futile, a really skilled Supreme Courtroom litigator advised me a couple of days earlier than oral argument. He was positive there have been not less than 4 implacable votes towards the Second Modification: Justices Ginsburg, Souter, Breyer and Stevens. The lawyer advised me to think about Justice Anthony Kennedy “the solar, the moon, and the celebrities.” The one path to victory was via him.

For the oral argument on Tuesday morning, individuals had been tenting exterior the Supreme Courtroom for days, lining up for the spectator seats accessible to the general public. It was a convivial and pleasant crowd, with individuals sharing meals and making runs to comfort shops.

The 4 attorneys on our oral argument group didn’t must camp out, and we entered the constructing early through a particular door. Over breakfast within the basement cafeteria, we held our ultimate technique convention. After we entered the packed courtroom, pressure was excessive.

The lead legal professional for D.C., the very skilled Supreme Courtroom legal professional Walter Dellinger, came to visit to our desk to say hiya. He warmly advised Gura, “You’ll do nice.” Dellinger mentioned he was trying ahead to watching the NCAA basketball event as quickly as his work was over.

As a result of D.C. had misplaced the case within the decrease courtroom, Dellinger argued first. A number of minutes in, he was explaining his idea that “bear arms” means solely to bear arms in a militia, so individuals who aren’t within the Nationwide Guard don’t have any Second Modification rights. Justice Kennedy interrupted: “It had nothing to do with the priority of the distant settler to defend himself and his household towards hostile Indian tribes and outlaws, wolves and bears and grizzlies and issues like that?”

Many spectators gasped. Kennedy believed in Second Modification rights for strange individuals!

The oral arguments went for an additional hour, and all I wished was for them to wrap up as quickly as potential. We had a majority, and I didn’t need any misstep throughout argument to upset it. There have been no missteps in Gura’s advantageous presentation.

We exited the courtroom jubilant. Though the Courtroom wouldn’t announce its opinion till three months later, associates and foes alike acknowledged the import of Justice Kennedy’s phrases. Whereas the Supreme Courtroom had beforehand made some favorable references to the Second Modification, the Courtroom had by no means earlier than held {that a} gun management legislation violated the Second Modification or clarified that the person proper to firearm possession was protected beneath that modification. That was about to alter.