strengthening the 2nd Amendment: Doherty on Heller v. DC

Brian Doherty in Reason on the "restoration" of the 2nd Amendment-- through Dick Heller's Supreme Court victory over the Washington D.C. city government. The essay is excerpted from his new book, Gun Control on Trial: Inside the Supreme Court Battle Over the Second Amendment.

I got to meet Dick Heller in July-- the day he tried to register his gun under the new-and-slightly-improved DC law. Here's the photo, CATO's coverage of the gun ban. and some more analysis.

On the last date of the U.S. Supreme Court’s 2008 spring session, justices declared by a 5-4 decision in D.C. v. Heller that, yes, the Second Amendment does secure an individual right to keep and bear arms. With that, the high court voided the District of Columbia’s extreme regulations on gun ownership, which had amounted in practice to a complete ban on any usable weapon for self-protection, even in the home.

In retrospect, D.C. v. Heller seems almost inevitable, because of shifting public and academic attitudes toward gun rights. But victory came only after a protracted struggle, with many pitfalls along the way. It was pulled off by a small gang of philosophically dedicated lawyers—not “gun nuts” in any stereotypical sense, but thoughtful libertarians who believe Second Amendment liberties are a vital part of our free republic. Together they consciously crafted a solid, clean civil rights case to overturn the most onerous and restrictive set of gun regulations in the country. In the process, they set the stage for further legal challenges to other firearms restrictions from coast to coast....

After much searching by Levy’s team, six plaintiffs were selected. They filed the case on February 10, 2003. Back then, it wasn’t the Heller case, but the Parker case, named after original lead plaintiff Shelly Parker.

Parker, a black woman, had the potential to become a new kind of civil rights icon, standing up not just for the right to be treated fairly by other people but to take control over her own life and safety. She had a dramatic story of the type that should make everyone this side of Sarah Brady want to overnight her an out-of-state mail-order handgun....

But, like four of the other original six plaintiffs, Parker was found by the Circuit Court of Appeals for the D.C.Circuit to lack legal “standing”—that is, actually suffering a direct injury under the law legitimate enough for her to legally challenge it. By March 2007, Dick Heller was the only plaintiff left. As many involved with the case would admit without wanting to stress it too much, Heller was probably the plaintiff they wanted least as a Second Amendment poster boy.

Heller isn’t a sweet lady trying to turn around a dodgy neighborhood; he’s an outspoken ideological activist seeking to push the federal government back within its constitutional bounds, and therefore (his lawyers fretted) potentially off-putting to judges, media, and citizens alike....

The best hook about Heller was his day job, as a trained and licensed special police officer contracted by a private firm to provide security services for the District of Columbia. For years, he carried a gun every day at the Thurgood Marshall Federal Judicial Center, yet he still had to turn over his sidearm and bullets at the end of each workday and go home, defenseless.

The city could hardly maintain that it was inherently unsafe for Dick Heller to possess or handle a weapon, since he does it every day as part of his job, and is deputized to do so by the city itself, background checks and all....

Then a surprising angle:

The NRA v. Heller

The Heller case quickly found a powerful opponent in the National Rifle Association. This surprises nearly every layman I discuss the case with, most of whom assume the NRA was behind the lawsuit in the first place. The Parker lawyers received backroom visits from allies of the NRA before their case was filed, discouraging them from going forward. The Supreme Court (which still had Sandra Day O’Conner back then) would not reliably deliver a victory...This was an intellectually respectable objection, the Levy team thought, but ultimately too fearful....

“The second problem the NRA had with our case was territorial,” Gura says. “They didn’t want something like this going on that they didn’t have their hands in.”...

The wrap-up...

Heller, then, by no means settled the entire gun control debate....most gun laws short of total bans will likely survive under the Heller standard....In the near term at least, Heller will heat up the gun debate instead of ending it.

But the case was vitally important to American public policy. One, it normalized within constitutional law the notion that self-defense is a right....The Heller case was a prime example of how calm, dedicated, and strategic thinking on the part of crusaders for smaller government can achieve real and (probably) lasting victories....