How the Second Amendment Was Restored: The Inside Story of How a Gang of Libertarian Lawyers Made Constitutional History

By Doherty, Brian | Reason, December 2008 | Go to article overview

How the Second Amendment Was Restored: The Inside Story of How a Gang of Libertarian Lawyers Made Constitutional History


Doherty, Brian, Reason


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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.

Someone was going to reach the Supreme Court with a challenge to firearms regulation. In the 2001 Fifth Circuit case U.S. v. Emerson, a federal appeals court for the first time declared unequivocally that the Second Amendment, despite containing the word "militia" in its preamble, did indeed protect an individual right to bear arms. Though groundbreaking in the judicial system, that individual-rights interpretation was already dominant within the legal academy, after decades of scholarship chipped away at the once-preeminent "collective rights" view that the amendment only protected either a state's right to maintain a militia, or an individual's rights within the context of militia service.

The Emerson decision rippled beyond the courts. On November 9, 2001, then-Attorney General John Ashcroft sent a memo to all U.S. attorneys praising the case for how it "undertook a scholarly and comprehensive review of the pertinent legal materials and specifically affirmed that the Second Amendment 'protects the right of individuals, including those not then actually a member of any militia or engaged in active military service or training, to privately possess and bear their own firearms.'"

Gun rights were on the rise politically as well. Democrats lost Congress in 1994, and the White House in 2000, in part because of a backlash against the 1994 assault weapon ban. In the 21st century, the party no longer makes gun control a major issue. On the state level, laws making it easier for citizens to carry weapons have also been proliferating over the past two decades; the number of states with concealed-weapon "shall issue" standards objective criteria with little or no bureaucratic discretion) now stands at a de facto 37, up from just eight in 1986.

That was the legal, political, and social environment in which Heller was launched in 2003. "The timing was ripe" says attorney Robert Levy, then a senior fellow at the libertarian Cato Institute (and now its chairman) and the man who financed and spearheaded the case.

Yet Heller was almost derailed on a series of occasions, sometimes by the very people who cherish gun fights and constitutional protections the most, including the National Rifle Association (NRA). Many lacked confidence that the Court was ready to catch up with the legal academy. In the hour of opportunity, many blinked. Victory over these self-doubts provide a powerful reminder that, as Barry Goldwater reminded us, sometimes an overly fearful moderation in the pursuit of justice is no virtue, and that even decades of bad pop icy and bad political philosophy can turn around with smart, tenacious efforts.

Parker Becomes Heller

The inevitable post-Emerson challenge to gun restrictions could well have come from a radically different point of view.

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