The Last Gun (9 page)

But Heartland's role in the network of wealthy interests promoting a conservative agenda goes beyond spinning the debate over global warming. “The Second Amendment and gun control have long been of concern to Heartland and its researchers. In 1995, Heartland published The Heartland Institute policy study
Taking Aim at Gun Control
by Daniel Polsby.” Heartland filed a “friend of the court” brief before the Supreme Court in
Heller
, and has filed other pro-gun briefs in other important cases, such as the attack on Chicago's gun laws.
⁸⁹
David Boaz, executive vice-president of the pro-gun Cato Institute, was a keynote speaker at Heartland's 2011 Emerging Issues Forum.
⁹⁰
Heartland's complex of extreme conservative issues is wide-ranging and interactive. Its president, Joseph Bast, challenged libertarians at the 2002 annual convention of the Libertarian Party of Illinois to support education vouchers, noting that “libertarians will get nowhere with their other issues—the drug war, taxes, property rights, and gun rights—if our children are indoctrinated in the government school system to think government is the answer to all our problems.”
⁹¹
The institute's reports have been cited in the news and opinion media.
⁹²

It is not known whether Scalia has had more intimate contact with Heartland's web of influence beyond its amicus briefs. But it is known that he and Associate Justice Clarence Thomas have enjoyed the hospitality of Koch Industries owner Charles Koch—one of two brothers, each worth over $21.5 billion—who “coordinates the funding of the conservative infrastructure of front groups, political campaigns, think tanks, media outlets and other anti-government efforts through a twice annual meeting of wealthy right-wing donors.”
⁹³
When Koch sent out invitations for his 2011 retreat, he “highlighted past appearances at the gathering of ‘notable leaders' like Justices Antonin Scalia and Clarence Thomas of the Supreme Court.”
⁹⁴
Some flavor of the tone of the Koch gatherings with respect to guns and gun control may be gathered from the reported remark of Fox News personality and retired New Jersey Superior Court judge Andrew P. Napolitano at the 2011 secret meeting that the Second Amendment was created to ensure “the right to shoot at the government if it is taken over by tyrants.”
⁹⁵

Pro-gun former cable television star Glenn Beck and former Reagan attorney general Ed Meese are among those who have rubbed elbows at the billionaire Koch brothers' elite gatherings. And, yes, this Glenn Beck at a secret gathering of elites is the same Glenn Beck who warned his listeners, “This game is for keeps. This is who controls the United States of America and its destiny. Is it you? Or is it a group of elites?”
⁹⁶
Beck has also ominously predicted gun violence as inevitable in the process of restoring freedom to America.
⁹⁷

Among other attendees at the Koch 2010 party were representatives of the Heritage Foundation, the American Enterprise Institute, and—quite naturally enough—the Cato Institute.
⁹⁸
“Naturally” because billionaire Charles Koch founded the Cato Institute in 1974 as a Kansas nonprofit corporation under the original name of The Charles Koch Foundation, Inc., which was changed to Cato Institute in 1976. Edward H. Crane, the current president of the institute, was among three other original
founders.
⁹⁹
Since then, the Kochs have poured at least $30 million into Cato.
¹⁰⁰

The Cato connection goes directly to the
Heller
case, which was created and financed by Robert A. Levy, a Florida millionaire who is now chairman of Cato.

Surprising as it may seem—or not—the
Heller
case was not spontaneously generated by residents of the District of Columbia chafing for freedom from an oppressive gun law. On the day the
Heller
decision was announced, lead attorney Alan Gura claimed on CNN's
Glenn Beck
show that “about six years ago, six Washington, D.C., residents and a team of lawyers working independently decided it was time to challenge Washington, D.C.'s ban on handguns and other functional firearms in the home.”
¹⁰¹

That's not exactly the way it happened.

The lawyers and clients did not come together “independently.” Levy—who lives in a four-thousand-square-foot condominium apartment in a gated luxury community in Florida and who has been described as “the Oz, the man behind the curtains” of
Heller
¹⁰²
—decided he wanted to take down the D.C. gun law. Levy used his money and influence to do just that. He and a friend, Clark M. Neily III, who works for a “libertarian” nonprofit law firm in Virginia, set about recruiting clients to sue the District of Columbia.
¹⁰³
Levy told the
Washington Post
in 2007 that “with Cato's blessing,” he paid for the entire lawsuit, from beginning to end, and refused other financial aid.
¹⁰⁴
It should be noted, however, that Levy, Gura, Neily, and others who worked on the case subsequently won an award of just over $1.1 million in legal fees, to be paid by the taxpayers of the District of Columbia. The award was reduced by the deciding judge from the $3.1 million they had requested.
¹⁰⁵

Media profiles about the
Heller
case have tended to portray Levy as a sort of “aw, shucks” guy who just stepped in to help the poor people of the District of Columbia right an injustice. However, Levy has been an active operative at the Cato Institute since he joined its ranks in 1997, and he has authored numerous
articles promoting Cato's antiregulatory line.
¹⁰⁶
He is credited as the author of at least seventeen briefs filed with appellate courts.
¹⁰⁷
Levy likes to point out that he was born in the District. In fact, he moved into the upscale Maryland suburb of Montgomery County as a young man and has not lived in the city itself for over forty years.
¹⁰⁸

Levy and Neily were both law clerks for Judge Royce C. Lamberth, now chief judge of the U.S. District Court for the District of Columbia.
¹⁰⁹
When Levy decided to create his lawsuit, he called Neily, and the two started “recruiting a diverse group of plaintiffs.”
¹¹⁰
In 2007, Levy described for the
Washington Post
how he and Neily spent months assembling the oppressed of the District.

“We wanted gender diversity,” he said. “We wanted racial diversity, economic diversity, age diversity.” The plaintiffs had to be D.C. residents who believed fervently in gun rights and wanted loaded weapons in their homes for self-defense. And they had to be respectable.

  
“No Looney Tunes,” Levy said. “You know, you don't want the guy who just signed up for the militia. And no criminal records. You want law-abiding citizens.”

  
He and Neily worked the phones. “We called all our contacts in the legal community,” Levy said. “We looked at the newspapers: Who was writing on the subject? Who was sending letters to the editor about gun laws?” They scoured the city. “Friends lead you to other friends, and you just keep talking and talking to people, until finally you have your clients.”
¹¹¹

In sum, Scalia—known for his acerbic writing style and sarcastic wit
¹¹²
—was simply the sharp-tongued point of a well-funded ideological spear. This spear was aimed directly at the last of cases in which the Supreme Court had considered the meaning of the Second Amendment,
United States v. Miller
.
¹¹³

The Supreme Court in
Miller
, decided in 1939, reaffirmed
what is known as the “collective rights” model of interpretation of the Second Amendment. Simply put, the Second Amendment “grants the people a collective right to an armed militia, as opposed to an individual right to keep and bear arms for one's own purposes outside of, or even notwithstanding, government regulation.”
¹¹⁴
It was not only the courts that uniformly accepted this view of the Second Amendment. So did legal scholars. In fact, from 1887 (when indexing began) until 1960, not a single law review article advocated the “individual right” interpretation that Scalia found in the Constitution.
¹¹⁵

Thwarted by the uniform view of the courts against unrestrained individual access by anyone, anywhere, anytime, to guns of any sort, the network of gun rights advocates turned their focus to one of the most peculiar and little-known institutions by which law is made in the United States—law review articles. Astonishing as it may seem to most ordinary Americans, these student-run journals supply an infinite variety of legalistic flakes for lawyers, judges, and their clerks bent on producing “snow jobs.” By citing such articles as authority for their position on an issue, the authors can cloak their naked manufacture of law—or, as in Scalia's opinion, reversal of settled law—in an aura of “scholarship.”

Robert J. Spitzer, a professor of political science, examined this phenomenon in the specific context of manufactured Second Amendment scholarship and observed:

The discipline of law is unique among academic disciplines in that its professional journals are governed mostly by student-run law review boards, and with few exceptions, submissions are not subject to the process of peer review, or even faculty oversight. The consequences of these facts for law review content have been extensively discussed and debated within the law school community . . . law review student editors simply do not possess, and cannot be expected to possess, the knowledge and expertise of those
who have researched and published in a field . . . there is a proliferation, even a glut of law reviews—more than 800 by one count. Given such a huge publishing hole, these characteristics have increasingly produced a contrary editorial drive to publish articles for their distinctiveness rather than their scholarly soundness.
¹¹⁶

It was into this “huge publishing hole” that pro-gun activists rushed, many of them former employees of or longtime collaborators with the NRA. “Contrarian positions get play,” law professor Carl T. Bogus observed in another article on the same subject. Seeded in some cases by an NRA foundation that “began distributing large sums to friendly scholars” (one such scholar raked in $38,569.45 in 1991 and 1992 alone), a flurry of articles friendly to the individual rights view began to appear.
¹¹⁷
On the day after the decision was handed down, a Cato Institute blogger posted breathless “congrats to Eugene Volokh (of the Volokh Conspiracy blog) who had three of his law review articles cited in the majority opinion.” The Russian-born Volokh is a relentlessly pro-gun blogger.
¹¹⁸

Without descending into that thicket of argumentative “scholarship,” one can assess the consequences in
Heller
, and thus for American gun violence, through the critical lens of Judge Posner's observation that Scalia was “engaged in what is derisively referred to—the derision is richly deserved—as ‘law office history' ”:

[J]udges are advocates for whichever side of the case they have decided to vote for. The judge sends his law clerks scurrying to the library and to the Web for bits and pieces of historical documentation. When the clerks are the numerous and able clerks of Supreme Court justices, enjoying the assistance of the capable staffs of the Supreme Court library and the Library of Congress, and when dozens and sometimes hundreds of amicus curiae briefs have
been filed, many bulked out with the fruits of their authors' own law-office historiography, it is a simple matter, especially for a skillful rhetorician such as Scalia, to write a plausible historical defense of his position. . . . This is strikingly shown by the lengthy discussion of the history of interpretation of the Second Amendment. Scalia quotes a number of statements to the effect that the amendment guarantees a personal right to possess guns—but they are statements by lawyers or other advocates, including legislators and judges and law professors all tendentiously dabbling in history, rather than by disinterested historians: more law-office history, in other words.
¹¹⁹

Heller
was, then, a snow job produced from the flakes of dabblers in history, created and underwritten by a wealthy philosopher-king from the throne of his Florida condominium, with a cast of thousands from right-wing front groups, the NRA, the gun lobby, the gun industry, and paid-for scholars. Almost as disturbing as Scalia's ruling itself was its endorsement by some gun violence prevention advocates, who naively believed that the gun lobby would fold its tents and go away after their victory. One local activist enthused, “Actually, the Supreme Court's ruling last year was one of the best things to happen to the gun-control movement. . . that slippery-slope argument, that any new gun law is just another step towards taking all guns away, is dead.”
¹²⁰

But that is not at all what
Heller
wrought. The decision has emboldened gun enthusiasts to attack gun control regulation all over America. One manufacturer, Beretta, donated a million dollars to the NRA for work on overturning gun control laws in the wake of
Heller
.
¹²¹
As of June 1, 2012, state and local governments were litigating forty-four significant civil lawsuits challenging various firearms laws under the Second Amendment. The lawsuits challenged a variety of gun control laws, including those regulating the carrying of concealed weapons, registration
laws, bans on unsafe handguns and assault weapons, and safe-storage laws. There were also seven significant lawsuits pending against the federal government. Challenges have also been raised in a variety of criminal cases. These civil and criminal challenges have been largely unsuccessful at this writing, as even after
Heller
“courts have found that the Second Amendment is consistent with numerous federal and state criminal laws.”
¹²²
Nevertheless, the law after
Heller
is in flux, and some courts have ruled against strong gun laws. In March 2012, for example, a federal judge struck down a Maryland law requiring that persons wishing to carry a handgun outside their home must show “good and substantial reason.” One of the lawyers in the case was Alan Gura—the same lawyer who brought down the District Of Columbia's gun law at Robert Levy's bidding, and who works closely with the gun advocate and anti-environmentalist Alan Gottlieb.
¹²³