Constitution Daily

Smart conversation from the National Constitution Center

The NRA takes on the courts

August 22, 2013 by Lyle Denniston


In the annals of lobbying Congress, few can match the success of the National Rifle Association, as it showed again this year in helping to defeat a new gun control law in the Senate, even in the emotional wake of the Newtown school massacre.  But the NRA is growing frustrated with the courts, and it has taken its complaint to the Supreme Court, relying upon the advocacy skills of one of the nation’s leading lawyers, former U.S. Solicitor General Paul D. Clement.

gunswideIn unusually blunt language, Clement in two recent documents filed at the court is asking the Justices to live up to the full promise that the NRA saw when gun owners won a constitutional breakthrough on the Second Amendment at the court five years ago.

Clement’s basic argument now is that the court made a sweeping change in the constitutional meaning of the Second Amendment – “a watershed moment,” he calls it -- and yet many lower courts have been acting as if the Supreme Court did nothing of the kind.  He has even included retired Supreme Court Justice Sandra Day O’Connor in the complaint, for a ruling she wrote while sitting temporarily on a lower federal court (although he did not mention her by name).

The NRA for years has been in the forefront of a widespread campaign to broaden the rights protected by the Second Amendment’s guarantee of a “right to keep and bear arms” – a part of the Constitution since 1791.  For years, the NRA helped pay for scholars’ research in support of the argument that the Amendment protects a very broad individual right to have a gun.  That ran up against a widespread perception that the right existed only as a community right to arm, as with the colonial militia or the modern National Guard.

The personal right argument finally prevailed in the Supreme Court’s 2008 decision in District of Columbia v. Heller.  The court said that the right was not “absolute” and that it was subject to “reasonable restrictions.”  Moreover, that initial ruling dealt only with a right to have a gun for self-defense in the home.  Still, gun owners and the NRA quickly turned it into a legal rallying point to challenge a whole host of gun controls; they did not regard the new right as limited at all.

Their cause advanced much further, in 2011, when the NRA was part of a winning coalition in the Supreme Court case of McDonald v. Chicago, extending the personal right protection to put some limits on state and local gun control laws, too.  The Heller decision had struck down only a Washington, D.C., law banning handguns.  Moreover, the McDonald decision made clear that the new right was a “fundamental” one, establishing it as a right of the highest constitutional order.

Clement has been an important ally of those pressing for an expansive Second Amendment right.  He argued in the Heller case for the George W. Bush Administration, as Solicitor General, supporting a declaration of a personal gun right (a position that that administration had adopted in 2001).  After leaving government, Clement was the NRA’s own lawyer as he argued for it in the McDonald case.  And he is continuing now as the NRA’s advocate before the Supreme Court.

He unleashed his new challenge to the lower courts in late July, filing a new Supreme Court appeal for the NRA to protest a federal appeals court ruling upholding a federal law that bans licensed gun dealers from selling handguns to minors.  “This case,” Clement wrote, “is part of a pervasive pattern of stubborn resistance to this court’s holding that the Second Amendment secures a right that is not just individual, but fundamental….The decision below is illustrative of the efforts of lower courts to limit Heller and McDonald to their facts while ignoring the clear import of their reasoning.”

The lower court (the 5th Circuit Court of Appeals based in New Orleans), the NRA filing said, had indicated “that law-abiding citizens do not possess Second Amendment rights at all unless the legislature deems them sufficiently ‘responsible’ to keep and bear arms.”  Indeed, the document added, the Sixth Circuit had expressed doubts that “young adults even possess Second Amendment rights.”

What has been going on – not only in the courts but in other parts of government – is a campaign of “massive resistance to this court’s decisions,” Clement said.  Officials and judges, he added, “have simply been unable to break habits formed during pre-Heller days.”  There has been a concentrated effort, he asserted, at “limiting the scope of the Second Amendment to the precise circumstances at issue” in the two Supreme Court cases.

Earlier this month, Clement filed a new paper with the Supreme Court, a friend-of-the-court brief to support a Maryland man’s challenge to his state’s law that generally bans the carrying of handguns outside the home for self-defense purposes, unless the individual has a permit that can only be obtained with proof of a “good and substantial reasons” for fearing for one’s safety.

In Clement’s list of grievances about what the lower courts have been failing to do on Second Amendment rights, he said that another federal appeals court – the Second Circuit Court of Appeals, based in New York City – “would not even make a definitive ruling on whether the Second Amendment applies to a summer home.”  It chose, instead, to ask a New York state court for an interpretation of a state gun control law rather than “giving immediate relief” to the gun owner in the case, Clement said.  That ruling, in the case of Osterweil v. Bartlett, was written by retired Justice O’Connor, during a temporary judging assignment on that appeals court.

The individual involved in that case, Alfred Osterweil, lives in Louisiana, but has a summer home in Summit, N.Y., but was denied a permit to have a gun there.  Clement is Osterweil’s lawyer in that case.

The NRA’s complaint, as spelled out by Clement in his new court filings, does not criticize the Supreme Court itself.  But the Justices have refused, at least a half-dozen times in recent years, to grant review of new cases seeking to expand the Second Amendment right beyond the home.  It's that pattern the NRA and Clement intend to change.

Lyle Denniston is the National Constitution Center’s adviser on constitutional literacy. He has reported on the Supreme Court for 55 years, currently covering it for SCOTUSblog, an online clearinghouse of information about the Supreme Court’s work.

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