The Roberts Court: The Struggle for the Constitution (22 page)

With a Supreme Court precedent on the books for nearly seventy years that courts had accepted as settling the question in favor of a militia–collective rights interpretation, and with no great national problem
vexing elected officials, it was an aggressive conservative Court taking on a long-sought objective on the conservative political agenda.

•  •  •

The October 2007 term was underway for more than a month when the justices made their announcement to hear the District’s gun appeal. The term had opened quietly, relative to the prior term, with two potential landmark rulings on the docket.

The justices had decided to step back into legal fallout from the nation’s war on terror. Since 2004, the Court had considered five challenges to the Bush administration’s approach to detaining enemy combatants—both citizens and aliens.
⁵

The cases in the 2007 term—
Boumediene v. Bush
and
Al Odah v. United States
, which were consolidated for argument—involved Congress’s response to
Hamdan v. Rumsfeld
, in which the Court in 2006 struck down military commissions authorized by President Bush because they violated the Uniform Code of Military Justice and the Geneva Conventions.

Congress subsequently enacted the Military Commissions Act of 2006. The six
Boumediene
and
Al Odah
detainees at Guantánamo Bay were asking the justices, among other questions, whether the 2006 act’s prohibition on their seeking federal court review of their detentions through the use of habeas corpus petitions violated the Constitution’s suspension clause. The clause, in Article I, Section 9, states: “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 Bush administration and Congress had suffered one setback after another in the Supreme Court in terrorism-related challenges and their latest efforts struck at the heart of the judiciary’s role in the separation of powers. All eyes were trained on the two cases, all eyes, that is, until the District’s gun case competed for top billing in the new term.

The District’s Alan Morrison and his colleagues had started working
on their merits brief (brief in which all arguments are fleshed out) for the Court before review was granted in order to avoid the time crunch between a grant of review and oral arguments. They sent a draft out to Dellinger and Goldstein for input. Morrison faced a moot court of about fifteen lawyers based on the draft brief to uncover any holes in the legal arguments.

“I was willing to do that because this was not an issue I knew a lot about and I had to feel comfortable with our arguments,” he said. “Nobody thought we had missed any issues. That was quite comforting actually.”

At the same time, the District’s legal team and their opponents—the Levy team—both sought support from the solicitor general of the United States. A supporting brief by the solicitor general, whose office is highly respected and trusted by the justices for its honesty and clarity of legal analysis, is a boon to any party’s effort in the Court. The United States had not been sued by the Levy team, so it was not a party to the case, but it did have an important government interest and was expected to file a brief. Congress had passed numerous laws regulating firearms and the Department of Justice was responsible for enforcing them and prosecuting violators. The sweeping and categorical nature of the lower appellate court’s ruling cast doubt, for example, on the constitutionality of existing federal laws prohibiting the possession of certain firearms, such as machine guns.

Attorney General John Ashcroft, in keeping with the Bush administration’s position, had reversed the department’s policy on the Second Amendment in 2001. Because of that policy, both sides in the
Heller
case knew that the department would argue that the Second Amendment protected an individual right to possess firearms unrelated to militia operations. But they did not know what the government’s position would be on a standard or test that the justices should announce for judging the constitutionality of gun regulations going forward.

The Court has devised basically three tests, or standards, when it
reviews the constitutionality of government actions. The toughest review—strict scrutiny—requires that the government have a compelling interest or objective and that the means chosen to achieve it are narrowly tailored and the least restrictive possible. A middle-level standard—heightened scrutiny—demands an important government objective and means that are substantially related to achieving the objective. The third test—rational basis—is the easiest review for the government to pass and requires a legitimate government objective and means that are rationally related to the objective.

Morrison, Linda Singer (the district’s attorney general), and Todd Kim (the district’s chief of appeals) headed to the Justice Department in December for a meeting with Solicitor General Paul Clement. The conference room in which they met was filled with department lawyers: Clement; his principal deputy, Gregory Garre; Assistant to the Solicitor General Malcolm Stewart; and members of the department’s criminal appeals division, among others.

“We knew there was no point in saying to them, ‘Change Ashcroft’s opinion,’ ” said Morrison. “We told them, ‘We need you very much because we can live with a private basis for the Second Amendment so long as there’s appropriate deference given to government regulations.’ We had a long discussion. We told them, ‘Look, there’s a very important issue here as to the standard of review and you have just as much at stake in this as the District.’ ”

They left the discussion without knowing what the solicitor general would tell the Supreme Court.

On December 14, 2007, it was their opponents’ turn. Once again the conference room was packed. The discussion was cordial as the Levy team argued that the government should urge the justices to adopt strict scrutiny as the standard of review for gun regulations. But no one with the department tipped his or her hand, and there was no strong expression of support.

The three lawyers left the department and took a cab to Tony
Cheng’s restaurant in nearby Chinatown for a Federalist Society lunch. In the cab, Clark Neily shared his misgivings about the tenor of the meeting.

“Given what would have been reasonable to expect because you’ve got a president who throughout his career was strong on the Second Amendment and there was the Ashcroft memo—it was sort of like the dog that didn’t bark,” he said. “At the same time, I’m not naive. I recognized the challenge the solicitor general’s office was facing in the sense there’s a lot of federal laws on the books involving guns, and once this door is opened, where does it go?”

Gura’s assessment was harsher. “Clearly these are government lawyers who are very jealous of their authority and they don’t need any more constitutional rights out there restricting their freedom of operation. Institutionally, these people are statist and are not interested in any more tools for individuals to challenge their authority. That was made very clear.”

The solicitor general operates with a certain degree of independence within the Justice Department, but reports to the attorney general, who, in turn, is an appointee of the president. Inside the solicitor general’s office, the
Heller
challenge was considered a huge and tricky case—politically and legally—not one the office was particularly eager to confront.

“It’s one thing to say it’s an individual right and another thing to flesh out where that leads,” explained a department lawyer. “This was something the department had been struggling with since the Ashcroft memo. The Department of Justice and the solicitor general in particular have responsibility for defending the constitutionality of statutes. There are a whole lot of firearm-related restrictions. It would be very difficult to take a position that would have led to the Court holding unconstitutional a number of these laws. At the same time, there was a president and vice president who had been very outspoken on this, and ultimately the president gets to set the policy for his administration.”

There also was a new attorney general—Michael Mukasey—who
became increasingly involved when communications from the White House on what the government’s brief would say stepped up as the filing deadline approached. Although there was no huge showdown, discussions and rewriting of the brief continued up to the final hour. Mukasey ultimately told Clement to file the brief that he—Clement—thought the department should file and nothing else.

Going down to the wire, the solicitor general filed the government’s brief on a Friday evening and, as expected, urged the Court to rule that the Second Amendment protected an individual right to possess firearms. But he told the justices that the lower appellate court did not apply the correct standard for evaluating
Heller
’s Second Amendment claims.

“Like other provisions of the Constitution that secure individual rights, the Second Amendment’s protection of individual rights does not render all laws limiting gun ownership automatically invalid,” wrote Clement. The correct standard of review, he said, was “heightened scrutiny,” the intermediate standard. Under that standard, he wrote, “the ‘rigorousness’ of the inquiry depends on the degree of the burden on protected conduct, and important regulatory interests are typically sufficient to justify reasonable restrictions.”

Because the lower court used the wrong standard of review, Clement urged the Court to send the case back to the lower court to apply the proper standard to
Heller
’s claims. The brief was not labeled as supporting either side in the case.

Reaction from gun rights groups was rapid and furious. The head of the Second Amendment Foundation posted on his Web site that the brief was “a transparent exercise of political pandering.” A conservative group said that the Bush administration had “blundered in catastrophic fashion.” Clement was singled out for criticism in a
Wall Street Journal
editorial.
⁶

In an unprecedented act, Vice President Dick Cheney subsequently broke with the government’s position and signed on to an amicus brief filed by members of Congress that supported in full the lower court’s
decision. In his 2011 memoir
In My Time
, Cheney recalled the episode and explained that the government’s brief “seemed inconsistent with the president’s previous position on the Second Amendment and it was certainly inconsistent with my view.” He also wrote that Justice Antonin Scalia, who would author the
Heller
decision and was Cheney’s friend, later joked the Court was uncertain about how to rule until “the vice president’s brief showed up.”
⁷

Neily thought the government’s reasoning was “shoddy,” and it had offered a brief at war with itself. “What it ultimately asked was to send the case back to the district court where it could conveniently be smothered.” Levy agreed, saying, “We failed miserably with Paul Clement. The administration had been good on gun rights, and Clement was a conservative. Their concern with federal gun laws—nobody was even thinking of challenging those laws.”

Senator Kay Bailey Hutchison was “livid” when she saw the government’s brief, said Stephen Halbrook, the Second Amendment litigator. She contacted him about writing an amicus brief for members of Congress, the brief that Cheney eventually signed. “Congress in reports and elsewhere interpreted the Second Amendment as an individual right,” recalled Halbrook. “I thought a brief would be good for the Court not only on original understanding but how it had been interpreted by another branch over the years. Hutchison’s office rounded up a whole other bunch of members. The vice president’s joining our brief was orchestrated by Hutchison’s office.”

But gun control advocates saw the government’s brief as something of a gift, given the administration’s position on the individual right. The door would still be open to reasonable gun regulation under the government’s approach.

“We thought we had gotten about as much out of them as we could,” recalled Morrison. “It was very unclear what test they were applying. Asking for a remand to the lower court was as much as we could hope.”

But Morrison had bigger problems at hand. The ground was shifting under his feet in the District’s legal office.

The District’s attorney general, Linda Singer, was increasingly frustrated by the growing involvement of the mayor’s general counsel, Peter Nickles, in her office’s work. The attorney general is appointed by the mayor and confirmed by the city council as the city’s chief legal officer. The mayor’s general counsel is appointed by the mayor and tasked with handling legal issues particular to that office. Nickles, a longtime friend of the mayor’s father, had known the mayor since he was a child. An aggressive, veteran big firm litigator, Nickles had the mayor’s trust and saw few boundaries to his duties.

Their clashes had become frequent enough that Singer, just eleven months on the job, decided in December 2007 that she would resign, but she wanted to wait until the District’s merits brief in the gun appeal was ready to be filed with the Supreme Court. She had been heavily involved in the case’s briefing and felt responsibility for it. In her resignation letter to the mayor, she took the high road and said nothing about her frustrations with Nickles.

Nickles, who was named acting attorney general, called Morrison into his office on December 21, just after Singer resigned, for what Morrison described as a “very unpleasant conversation.” He asked if Morrison had talked to the press about Singer’s resignation, which by then had been reported with Nickles portrayed as the “heavy.” Morrison said he denied speaking to the press. Nickles also said he had not decided what to do about who would argue the gun case. Morrison made a strong pitch for himself, saying he had worked on the merits brief, had started to prepare for the argument, and had time to write the reply brief which would come after the Levy team filed its own merits brief. Nickles was noncommittal.