Cross: Alan Gura, The Lawyer Who Changed The Second Amendment
October 26, 2016 (Fault Lines) — Ed. Note: Scott Greenfield and David Meyer-Lindenberg cross Washington, D.C. lawyer, Alan Gura, whose representation before the Supreme Court of the United States in District of Columbia v. Heller and McDonald v. Chicago fundamentally changed the interpretation of the Second Amendment.
Q. You studied government as an undergrad on Cornell’s arts quad. Were you always interested in government, or was that something that caught your attention in college? Did you plan to go on to law afterward? Cornell was something of a long-time hotbed of liberal thought. Was that your perspective going in, during or coming out? Was there an influence in college that framed your interest in the law? Did your coming from Israel have any bearing on your views on American government or law?
A. I’ve always been interested in government and public policy. I don’t recall exactly when it was that I decided to go to law school. There was no epiphany, where the clouds parted to reveal the “aha” moment. At some point, law school seemed like the next logical step.
I got a good sense of Cornell in the summer of 1988, which I spent there after my junior year of high school. I never thought of Cornell as a particularly “political” place. It just seemed like a great school overall, and that it was. To be sure, there was plenty of PC nonsense, but I don’t know if it was better or worse at Cornell than on any other college campus at the time. If anyone graduates from Cornell having experienced nothing more than “activism,” they’ve done something wrong and blinded themselves to a great time.
I came to this country from Israel shortly after first grade. Like most (all?) first-graders, I didn’t have very many views about government or law. Of course, not everyone there, or here, shares my views on anything.
Q. After the chilly hills of Ithaca, you attended Georgetown Law School. What made you decide to go to D.C.? Was there any particular area of law that interested you going in? Was the plan to practice law or to use your education in government? Did you have activist views toward the law, toward the Constitution in law school? Back in the early 90s, the predominant view of the Constitution was that it was a living document, subject to whatever emanations and penumbras one wanted to find to meet societal desires. Was that your view? Did it change?
A. Georgetown is a great school, and I was thrilled to be accepted there. I loved Washington, which of course offers a great deal for anyone interested in public affairs. While I graduated from Cornell, I had spent a year of college at Johns Hopkins, in not-too-far Baltimore, and took advantage of that to intern for then-Senator Pete Wilson. My job was essentially that of legislative correspondent, drafting constituent letters (primarily on environmental issues), giving tours of the capitol to visiting constituents, and generally helping about the office. It was a great introduction to Washington.
When I returned to Washington a few years later, I did not go to law school with any particular employment plan. I had next to no knowledge of the legal industry, but I was interested in the law, and figured that I’d find something useful and interesting to do within the profession. I cared, then as now, about any number of issues from a libertarian perspective, but I didn’t plan on necessarily having a public interest career.
Law school helped me develop a deep appreciation both for the genius of our Constitution, and the genius of some of our judges and justices in subverting it completely. I never bought into living constitutionalism, which is nothing more than left-wing politics by another name. And it did often seem that everything after 300 U.S. 1 is just wrong. The Slaughter-House Cases were a complete farce, and the way my professors and classmates related to Lochner was the world turned upside down. Constitutional text reflects the Framers’ classical liberal values. Fighting those values requires subverting the text.
In my second year, needing to make some money, I came across a flyer in a law school hallway advertising a position at something called “the Institute for Justice.” I was already fairly libertarian in my views, and discovering IJ was a revelation. IJ was this magical oasis compared to the leftist law school environment. It was an honor, and a major inspiration, to work with the attorneys there. They opened my eyes to what was possible.
One of IJ’s ultimate goals is to get Slaughter-House overruled, an issue on which I learned much from Chip Mellor. I could not have imagined that within sixteen years, I’d win a Supreme Court case where the deciding vote, even if it was the only one yet – called for the restoration of the Privileges or Immunities Clause. I also attended IJ’s summer student conference during one of my law school years, a highlight of which was a Ninth Amendment lecture by Prof. Randy Barnett. I consider myself very lucky that I’ve had the chance to continue learning from and working with Prof. Barnett.
Q. After law school, you clerked for North Carolina District Judge Terrence Boyle, who had been legislative assistant to North Carolina Senator Jesse Helms, and he was a pretty conservative judge. Did you actively choose to clerk for Judge Boyle because of his positions? What did you take away from your time in North Carolina, aside from an appreciation of barbecue? Did your experience with Judge Boyle influence your views? Did this confirm or change your view of constitutional interpretation? Did you have any desire after this clerkship to get into court and try cases?
A. I chose to clerk for Judge Boyle because he’s a great judge, because our values are essentially consistent, and because we connected well enough in the interviews to be honored with the offer. I considered various factors in researching clerkships, and I wouldn’t have applied without at least reading a few of the judges’ opinions and getting as much sense of their world view and personality as that might reveal.
That Judge Boyle had once worked for Jesse Helms suggested that Judge Boyle fit comfortably somewhere on the right side of the spectrum, which was fine by me—that’s what I was seeking—but that’s about all that particular data point said. Our political system doesn’t allow for very precise sorting—there’s the more-or-less right wing faction, and an increasingly leftist one. Having worked on the Hill, I had learned not to directly equate people with their bosses, for better or worse.
Are there people reading this who think Helms was the devil incarnate and anyone who’d work for anyone who’d work for him is morally defective? Sure. But that’s not how the world works. If you think his policies hurt people, I’d say the same thing about his left-wing equivalents, e.g. Barbara Boxer and Ted Kennedy, but I harbor no particular ill will against them or their staffers or their staffers’ staffers. Having said that, of course, I do judge people with terminal harshness for associating with those who are beyond the pale—Donald Trump and David Duke come to mind. We all draw our lines somewhere.
And whatever his shortcomings, Jesse Helms did at least one great thing for this country: he helped place Terrence Boyle on the federal bench. I’ve never been prouder to have worked for anyone. Judge Boyle is sharp, personable, well-read, and he cares deeply about the law and about the people impacted by his decisions. He is incredibly patient—much more so than I would be in his position. And he’s absolutely committed to the Constitution and to the principles of the Declaration of Independence. He’s really the gold standard for a federal district judge, and I’m not saying that because I worked for him (some clerks have written bitterly of their bosses), or because I agree with every last decision he’s issued since taking the bench in 1984 (that would be impossible). Judge Boyle possesses all the qualities that anyone would want in a judge, and he’s a fine human being.
Apart from lucking out with a great boss, the position of law clerk gave me an invaluable perspective on the practice of law. I experienced, first hand, a wide variety of lawyering within a very diverse docket, and had the opportunity to see what worked and what didn’t. I encourage clerking for all aspiring attorneys. By the time I started the clerkship I had already decided that I wanted to litigate, and the clerkship didn’t do anything to change my mind.
I hadn’t set foot in North Carolina until I first drove down to interview with Judge Boyle. As it was only a one year clerkship, I figured that I could clerk on Mars if that’s where the job took me. Fortunately, the barbecue is better in North Carolina than on Mars. Although the chambers were near the coast in Elizabeth City, we almost immediately traveled to Charlotte to help out in the Western District, and once during the summer Judge Boyle held court in New Bern. So I saw a great deal of the state, and very much liked it. My family loves vacationing on the Outer Banks, which I discovered through the clerkship.
Q. From NC, you went to California (a return of the prodigal son perhaps?), where you served as a deputy Attorney General. Did you get to try cases? Were you the trial lawyer you hoped to be? Did you have trial lawyer in your bones? After that, you went to Sidley Austin for a bit, then became counsel to the Senate Judiciary subcommittee on Criminal Justice Oversight. How did that happen? Were you interested in criminal law before this? Did this relate to your experience as a deputy AG? What sort of issues were you dealing with? Did you find yourself on a “side” in the mix? Were you sympathetic toward “truth and justice” or the defense?
A. I’d spent my law school summers at the California Attorney General’s Office in Los Angeles, in the Civil Division’s “Torts and Condemnation” Section. A different unit handled most prisoner claims, and another unit handled most employment claims, but this was the section that primarily defended the state and its employees in civil claims for money damages—everything from allegedly dangerous conditions of state parks, to police shootings, to airplane crashes.
The state’s tort control board resolved many of the simpler or low-dollar claims, so if the Torts and Condemnation section got the case it was usually at least somewhat interesting and often significant. The L.A. office’s geographic reach comprised the bottom half of California, excluding San Diego and Imperial counties. The attorneys I worked for were wonderful mentors, and they liked my work enough that it was suggested I’d apply for a job as a Deputy following my clerkship.
The experience could not have been much better. Every once in a while, a complaint would show up in my box. Someone had sued the state, I was to defend it, and let the bosses know how it turned out. That’s it. And it would be my case on appeal as well. Of course, having had no prior litigating experience, I knew next to nothing. I was conversant with the federal rules from my clerkship, but most of our work was in the state court system—and there’s a big difference between reviewing pleadings, and figuring out which ones to file and how to prepare them. But I was honored to work alongside some of the greatest attorneys I would ever meet, and I learned quickly.
There were about thirty of us in the L.A. office, and while not everyone was close to everyone, it was a tight-enough office, and overall there was a fairly good camaraderie. At the time, our office supervisor would have to review what I put on letterhead, but oddly enough, not what I filed in court. Of course, we all sought input from each other on significant pleadings, if (as was typical) we had sole responsibility for the case. The client agencies decided whether to settle and for how much, but otherwise, we each had total responsibility, and autonomy, as to how to work our cases.
Within a few weeks of starting, I was in court. Cases that someone didn’t want or couldn’t handle anymore for some reason were “burgers,” and our supervising deputy had a spatula on his wall signifying his authority to “flip burgers” to the other deputies as justice required. On day one, among the first “burgers” flipped my way was a bizarre case brought by two convicted car thieves who had been stopped by the highway patrol before they could drive their stolen SUVs across the border. The thieves claimed that cars were chock full of their goodies that they were planning to take home to Central America, and that the highway patrol had a duty to inventory and secure their now-lost property. Of course the cops, and the cars’ owners, knew nothing about this, and the thieves’ receipts were on the vague side.
The deputy who first had the case had only time enough to file an answer, but of course this wasn’t going to fester long, notwithstanding the plaintiffs’ lawyer’s plan to depose not just the police officers, but his clients’ victims about what they had allegedly done with the car thieves’ alleged possessions. So I gathered it was my task to write a motion for judgment on the pleadings—lack of duty to the thieves in securing the cars they’d stolen, and a raft of immunities under the tort claims act—and I drove to Indio to argue it.
I was stunned when the judge granted my motion, but with leave to amend. I left the court somewhat dejected, not realizing yet that in California some judges will always grant leave to amend at least once, no matter what, and that I’d won as much as could be won that day. We have to waste time doing this again? What amendment could possibly state a claim on these facts? I stopped at a bagel place for lunch before leaving the desert, and commiserated with the shop’s proprietor. He was somehow related to Carl Karcher, the burger magnate’s brother as best as I can recall, and I got a coupon for a free burger at any Carl’s Jr. So the case was a true “burger.”
The job’s biggest downside was that it paid next to nothing. People who’d been there for a while made okay money, but the starting salary for newbies had me living back home with my folks. Still, that position was invaluable—almost everything I ever learned about the practice of law, I learned from my colleagues and own my own at the California Attorney General’s Office. There’s something to be said for my almost two decades of experience since leaving that job, but that’s really where I became a lawyer. And yes, we went to trial.
I had two trials during my stint at the AG’s office. I second-chaired a suicide-by-cop case involving five highway patrol officers in the federal court in Riverside. A troubled teenager led the cops on an exceedingly wild chase that had ended with five of them opening fire on him. We earned a defense verdict after several hard weeks of trial. And I first-chaired an aviation case, brought by a county park concessionaire who sued when an airplane piloted by a state employee in the course and scope of employment crashed into his concession. The pilot’s insurance company had become insolvent, and the plaintiff wanted the state there as a deep pocket beyond what the guarantee association might supply. A few days into the trial, the case settled with the state paying nothing. That case, too, was quite complex—though the plane crash, tragic as it was for the pilot and his family, was the best thing to happen to the plaintiff’s business.
I’ve had some trials in my practice since leaving the state, but it’s largely out of my system. I prefer arguing about the law, not about what happened. For years now, I’ve tended to take cases that are unlikely to reach trial, as the adjudicative facts are undisputed. But it’s nice to have learned that I can successfully try cases.
At the Attorney General’s Office, I never faced a conflict between “truth and justice” and the defense. In cases of liability, I could recommend a settlement and the client agencies would settle. Everyone was a grown-up and we were busy— we weren’t going to waste time and take needless risk in cases where someone screwed up. But if the case had no settlement value, and especially if the plaintiffs conjured the bovine sciences, no soup for them.
It helped that the clients tended to be highly professional. Some police agencies are absolutely corrupt, and our nation plainly faces a problem with excessive police militarization. In my practice, I’ve since represented people in claims against incompetent and violent cops. But California’s state law enforcement agencies, at least when I was there, were clean. I was never called upon to defend bad officers. And in at least one memorable instance, I defended a police officer against a claims that was out-and-out fraudulent—I successfully obtained sanctions in that case when the evidence was uncovered.
As much as I liked my job in California, after a while I felt that I’d learned what I could, and I wanted to return to Washington and do something else with my career. A college friend at Sidley suggested I apply for an associate position they had, so I lateraled there as a fourth-year associate. I’m not going to slag the firm or some of the people there, but, let’s just say I disliked it for many of the typical reasons that people dislike Biglaw. After some amazing experiences at IJ, with Judge Boyle, and at the California AG’s, Biglaw was a big letdown. I’ve got my stories, but it wouldn’t serve any useful purpose to unload them here. And they aren’t that unusual.
One day I ran into an acquaintance on the Hill, who said they were looking for a counsel on the Committee, so I jumped at it. I’d still had fond memories of my earlier time on the Hill ten years earlier, and figured it would be a nice place to park for a while until I figured out the next step. While to some extent I focused on criminal justice issues, my colleagues and I were also the committee staff for the subcommittee’s chairman, Senator Thurmond. The greatest hurdle to being hired there was my complete lack of connection to South Carolina. Perhaps Southern California, or North Carolina, were close enough?
Q. After serving as counsel to the Senate subcommittee, you opened your own shop with Laura Possessky in Washington, D.C. Why not go back to Biglaw? What made you decide to take a chance and start a firm was the right route for you? Did you think at the time that you would end up before the United States Supreme Court? What was your focus when you first started the firm? How did it turn out? Was small firm life what you expected? Did it take off from the start, or did you sweat it out like the rest of us?
A. Actually, I started out, for a short time, as a sole practitioner. I wanted to practice law again, and to take and run my own interesting cases. I wasn’t opposed to partnering with others, but I was very much opposed to Biglaw, which I disliked intensely. If I thought my experiences were unique, perhaps I’d have tried another large firm, but it didn’t seem worth pursuing. I didn’t have a book of business, just some savings, some credit cards, whatever I’d learned over the years about the practice of law and a few connections here and there. I had no particular expectation of small firm life, other than that I wouldn’t have to put up with Biglaw life.
I figured I could always get a job somewhere if it didn’t work out. But the concept of self-employment was irresistible. It didn’t take off from the start, but I always somehow had something useful to do, and the business grew. I didn’t expect or directly plan to be arguing in the Supreme Court, but it was always a possibility considering the nature of some of my cases. I never gave the matter much thought, but neither did it seem fantastical or off-limits. The Supreme Court is a court. Some cases go there.
After a short time being on my own, I convinced a friend of mine, Chris Day, to leave his associate-ship at a small firm and form Gura & Day with me. Two years later, he brought in a third partner, a friend of his who was at the time a Virginia state senator, Ken Cuccinelli, and I brought in Laura Possessky, a Georgetown classmate and friend who had referred me some fantastic matters, and was ready to leave her firm.
That arrangement didn’t last long, with Chris and Ken going their way, and Laura and I going ours, in late 2005. I’d since seen a few associates come and go, and Laura chose to go in-house with the Corporation for Public Broadcasting this summer, so for now I’m back on my own—at least formally. In truth, I’ve always joined with other firms, and staffed up or down, depending on the requirements of a given case. Many matters I can handle myself; on others, I partner up. I have one matter now on which I’m one of five firms. In 2016, there’s just no reason why everyone must be under the same roof. I’d be happy to partner with others again, but it must absolutely be the right fit. If it happens, great, but it’s not mandatory.
Q. Your first case before the United States Supreme Court was, to say the least, a doozey. Heller v. District of Columbia. At the time you took on Dick Heller’s case, it was quite the radical proposition that the Second Amendment’s right to keep and bear arms was a fundamental individual right. What made you think you could change the long-standing interpretation of the Second Amendment? Was this a cause for you or a case? While some scholars were taking the position that it was an individual right, it was pretty much black letter law that it was a militia right. What made you think otherwise? Did you think you had a chance of achieving such a fundamental change in the law? What difference did support, such as CATO Institute, make? What about the institutional forces against you?
A. I wouldn’t agree that our position in Heller was all that radical. In the legal academy, the individual rights model had become the “standard model” of the Second Amendment, with the collective rights theorists regrouping under the “sophisticated” collective rights banner. That was one of the driving forces behind taking the case—that the academic debate was real, and the Fifth Circuit had just handed down Emerson, adopting the individual rights view and creating a split. It was a question of when and how, not if, the Supreme Court would get the question. The “collective rights” theory was black letter law only insofar as lots of courts had adopted it, but until the Ninth Circuit’s reaction to Emerson, in Silveira, no one had actually explained it. The collectivist theory was asserted, never proven or even elucidated to any degree, and legally it was the proverbial unclothed emperor.
It was, however, a very radical proposition in terms of the legal profession to be making a Second Amendment claim in 2003. It was tin-foil material for anyone who hadn’t studied it, though the criminal defense bar had discovered the issue, particularly after Emerson, and started raising Second Amendment claims. My colleagues and I could bring the Heller case because nobody else wanted it. If the Second Amendment was a big sexy issue in 2003, others would have pursued it.
The case was initiated by Clark Neily and Steve Simpson at IJ. It was their idea, but an idea outside of IJ’s core mission. Clark was allowed to work on the matter off-the-IJ-clock, and Bob Levy helped organize it. They needed a lead counsel, and Bob kindly thought of me. Of course I said yes, for a number of reasons. First, while I wasn’t a gun rights activist by any stretch, it’s an issue in which I’ve long strongly believed. Second, it seemed like a perfectly plausible case, in that we were right, the case would be handled IJ-style, and the courts appeared to be as open as they’d ever be to the argument. And third, we deeply believed that the issue would be determined one way or the other, such that the real risk was in doing nothing and allowing some random garbage case to frame the issue. So while we were by no means expecting a Supreme Court victory, neither did we expect defeat. We had a strong case in which we believed, and we were going to take it as far as it would go.
We didn’t get institutional support as such from Cato, as Cato doesn’t sponsor litigation. Bob put his own money into the case, and all of us had put in our time. We could not have predicted the institutional opposition, and all the twists and turns that the case would take, but nothing worthwhile is very easy.
Q. By the time you argued Heller, the “elite” Supreme Court bar had already taken shape. Did you ponder having one of the “known” lawyer take on the case? What did you do to prepare for oral argument? Did anyone question you as to whether you were the right lawyer to make the attack? It must have taken incredibly firm resolve to take the case on. Did you ever ask yourself, “what have I gotten myself into?” Did you ever consider giving up the fight?
A. It never occurred to me to give away a case I’d spent years developing just because others market themselves as “elite.” Aren’t we all special. It definitely occurred to various “elite” people in town, and their friends, that they should help themselves to my business. Bob kindly, and wisely, ran interference for me on that. It was always understood that I was taking the case to take it all the way. I prepared heavily, including five moots—the fourth of these was by far the toughest, but the last one went well enough, as did the argument.
To be sure, not every lawyer is ready to argue in the Supreme Court. But I had argued the case successfully at the D.C. Circuit, which wasn’t nothing. I wasn’t coming from a transactional practice, or from a career in some field involving largely the litigation of facts under established law and procedure. And the Supreme Court has been around for hundreds of years before this bizarre new notion that only half a dozen high priests might deign to argue there.
The Supreme Court has its own special rules and idiosyncracies, but that’s true of all courts, and we’re not pretending that only a handful of special people can litigate a pharmaceutical patent in the District of New Jersey or a capital case in Orleans Parish, to name two difficult, high-stakes matters of the kind I’d never attempt. The idea that judges should only hear from lawyers with whom they socialize is better suited to Podunk County Speedtrap Court. And in a generalist court, like the Supreme Court, there’s something to be said for the bar’s breadth of experience and perspective. Many excellent Supreme Court litigators would have lost McDonald for the simple reason that they’d never have included the Privileges or Immunities Claim that won Justice Thomas’s decisive vote. Had anything happened to me, Clark or Bob would have done at least as good a job arguing Heller. So could many of my former colleagues at the California Attorney General’s Office.
Of course, I market myself as someone who’s argued and won two landmark Supreme Court cases, but it wouldn’t occur to me to snipe someone else’s business just because they’re about to present their first argument. More than once, upon reading stories of attorneys being pressured to yield their first Supreme Court argument, I’ve reached out and encouraged them to hang on.
It never occurred to me to drop the Heller case. We were never in any posture where that might have made sense.
Q. To add insult to injury, you got screwed when it came time for the award of fees for your representation in Heller. District Court Judge Emmet Sullivan cut your fee request by about two-thirds, after another three years of fighting following the Supreme Court’s ruling in your favor. What happened there? From the outside, the $1.1 million fee award might have seemed pretty good, but given the many years you put into the case, it was grossly inadequate. Was this an example of “no good deed goes unpunished”? Was there some sort of animosity because of the position you took? What does this say about taking a long-shot chance and winning? Is the message to leave well enough alone?
A. It’s a matter of public record that we settled on appeal for a substantially larger figure than awarded by the district court, and still, it was not reflective of the market value of our work product as we had presented. I have some opinions on the matter that I would rather keep to myself at this time. People can read the decision and consider its assertions, educate themselves on the subject of attorney fee awards, and draw their own conclusions. You are not the only person who has asked me such questions.
Q. When you received the decision in Heller, it was a huge victory, a paradigm shift from the understanding of the Second Amendment for generations. But then, there was what I call Justice Scalia’s “errant paragraph”:
Although we do not undertake an exhaustive historical analysis today of the full scope of the Second Amendment, nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms. We also recognize another important limitation on the right to keep and carry arms. Miller said, as we have explained, that the sorts of weapons protected were those “in common use at the time.” 307 U. S., at 179. We think that limitation is fairly supported by the historical tradition of prohibiting the carrying of “dangerous and unusual weapons.”
What did you think when you read this? After all the effort exerted at changing the law, this gave an awful lot back without much by way of rationale. Was he smoothing ruffled feathers? Can this be justified? Were you satisfied with the decision, or did you see this as a switch in stumbling blocks, but still stumbling blocks to achieving a meaningful individual right to keep and bear arms? Despite this, Circuits have not given Heller a lot of respect, largely employing Justice Breyer’s “interest balancing inquiry,” unlike other individual rights. Why have court treated Second Amendment rights so much worse than other fundamental constitutional rights? Why has the Supreme Court allowed them to do so?
A. The “errant paragraph,” as you describe it, has not yet posed the greatest problems. At least in theory, there’s logic in the notion that every right has a contour, and if the Framers were comfortable with certain practices, they must not have believed them to be inconsistent with the right they were securing. Then again, the Alien and Sedition Acts were enacted within seven years of the First Amendment’s ratification, and at least some Amendments were enacted with the express goal of overturning existing law. And there are serious questions as to whether history supports the examples of longstanding prohibitions provided in the “errant paragraph.”
Most courts have held that “presumptively lawful” means that the presumption can be overcome in as-applied challenges. I’ve won two such cases so far, against application of the so-called “felon in possession” ban on behalf of plainly harmless individuals. Those victories were consolidated on appeal and affirmed by the en banc Third Circuit, Binderup v. Attorney General, and that could very well be the next Second Amendment case the Supreme Court considers.
On the negative side, the gun prohibitionists like to divorce the word “longstanding” from the rest of the paragraph, or read “longstanding” to mean as long ago as last week, such that virtually all laws are presumptively constitutional—a neat trick that undoes Heller’s holding. Indeed, they are trying to read this language to hold that there is no right to acquire guns at all, because any commercial restriction is presumptively (meaning to them, conclusively) lawful.
That’s a nonsense reading of a constitutional right, and not at all consistent with Heller, but it’s about what should be expected considering the Court has decided to let this right wither on the proverbial vine. The bigger problem, as you’ve identified, is that Justice Breyer’s dissent might as well be the majority opinion for many lower court judges. Prof. Allen Rostrom, who teaches at the University of Missouri Kansas City and was formerly of the Brady Center, wrote an article explaining this phenomenon four years ago, so it’s not exactly a secret.
Why is this happening? Many of the lower courts do not treat Heller as a fully valid precedent. It’s hard to imagine any Second Amendment cases prevailing in some venues. And it does appear that someone on the Supreme Court has either changed his mind, or wasn’t serious at the outset. The issue is bigger than the Second Amendment. Defiance on this level calls into question the Supreme Court’s institutional role at the top of the precedential hierarchy. UCLA’s Richard Re just authored an excellent article describing the phenomenon, “Narrowing Supreme Court Precedent From Below.” This practice invites chaos and lawlessness. That it can be credibly described, and celebrated by some, should concern the Court.
Q. Your Supreme Court encore to Heller was McDonald v. Chicago, bringing the Heller Second Amendment rights to the states. At this point, would it be fair to say you were among those “elite” lawyers of the Supreme Court bar? Did you see yourself as getting pigeonholed as the Second Amendment lawyer? Was that where you wanted to be? Now that you’ve proven beyond question your abilities as a lawyer, and a Supreme Court advocate, where do you want to go next? You’re now running your own shop, limited to appellate and strategic litigation. What does that mean? What’s the next “strategic” constitutional right you plan to take on? How do you see the future for individual rights in a county that seems more intent on finding safe spaces than free spaces?
A. Well, handsome, if you want to call me “elite” I won’t stop you. It’s better than some of the other names that I get called. “Elite” is not a term I’d have coined, because I don’t believe that the universe of people who can perform at this level is necessarily all that small, or as small as some law firm marketing departments pretend. If “elite” is the word for lawyers who are proven effective at complex, high-stakes litigation, including at the Supreme Court, I won’t object to it, though I’m not quite comfortable yet with self-describing that way. Marketing has never been a particular talent of mine.
I wasn’t well-known prior to Heller. Perhaps if I’d had a “boring” Supreme Court argument or two beforehand, things would have been different, but getting (in)famous all-at-once on a hot-button topic has had a pigeonholing effect. I’ve always been aware of that, and I continue to address it. Of course, Heller opened an exciting new field that I was eager to take advantage of, and which I was well-situated to pursue. It would have been dumb to stop working on Second Amendment cases. And I wanted to build upon my work, and leverage it into additional victories. I believe in the issue, else I wouldn’t take these cases, and I’m very happy to make a real, positive difference in the lives of my clients and others who benefit from this work.
But the Second Amendment is hardly my only interest, and it never appeared that a niche Second Amendment practice could be viable long term. It definitely doesn’t look that way now! I’ve never aimed to build such a practice. To be sure, I haven’t been successful in this area because guns are a defining or even large feature of my personal life—they’re not. Rather, I’d like to think I’m making the most of what could be made in this contentious area because I know something about complex federal litigation. McDonald should have proved as much, as the issue in that case concerned the Second Amendment only tangentially.
Heller and McDonald are examples of strategic litigation—the practice of designing and litigating a case for the purpose of creating or advancing precedent, usually by getting an unconstitutional law struck down. The substantive claim can involve any side of any topic, but there are some common considerations, doctrines, and best practices involved. I’m happy to be teaching “Strategic Litigation for Social Change” for the third year in a row at Georgetown, where I task students with identifying some unconstitutional law they’d like to get struck down, and then designing a case showing how they’d go about it.
Strategic cases start out in district court, but they have an appellate character from the outset. There’s usually little or no discovery, as the adjudicative facts are not at issue, and they go up sooner rather than later on cross-dispositive motions. I also handle appellate matters generally. For example, in recent years, I’ve filed two notable Supreme Court amicus briefs supporting Congress’s role in the conduct of foreign relations. And I’m happy to handle the appeals that some lawyers would rather have someone else defend or pursue.
I’m a generalist on appellate matters, but with respect to constitutional litigation I continue to favor free speech cases. One of my all-time favorite clients is Frederick, Maryland’s Flying Dog Brewery, which I successfully represented in challenging Michigan’s beer label censorship regulations. Michigan’s liquor commissioners banned Flying Dog’s “Raging Bitch” beer for having an allegedly offensive label, and we taught them a few things about the First Amendment that they might have missed in their safe space.
I’m helping fight California’s demands to snoop into the identity of advocacy groups’ donors, a practice long-recognized as a serious violation of First Amendment associational freedom. And I’m challenging the Federal Election Commission’s frankly puzzling practice of applying contribution limits to testamentary bequests. It’s hard to see the appearance of corruption when people choose to leave money behind to their favorite political party upon their death.
As the political culture becomes more statist, and schools indoctrinate young people into hating freedom of speech, it’s our role as lawyers who care about individual freedom to push back, and to do whatever we can to preserve our rights. But there are practical limits to “whatever we can.” The culture eventually selects the judges. We can’t do it ourselves. If, in the end, the people would rather have a safe space than a free space, that’s what they’ll get.
Photo credit Peter Goldberg