Dick Heller speaks outside the U.S. Supreme Court during the DC v Heller case. AP Photo/Manuel Balce Ceneta
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On March 18, 2008, the Second Amendment hung in the judicial balance. That morning, the U.S. Supreme Court would hear oral arguments in District of Columbia v. Heller. The question was stark: is the Second Amendment “right to keep and bear Arms” an ordinary individual right? Or would the Court hold that the Second Amendment right is so feeble that the District of Columbia’s handgun ban could be upheld?

The lead attorney, Alan Gura, had initiated the case since 2002. At the Supreme Court, I was one of the other three lawyers who joined Gura at the counsel table to assist him on the oral argument. For example, since the attorney for D.C. would go first, we could give Gura written notes to help him rebut what D.C.’s attorney said or address issues raised by the justices.

Gura had won the case in a lower court, the U.S. Court of Appeals for the District of Columbia. That court had ruled that the Second Amendment “right of the people” protects all the people of the United States, not just those who are in a militia. Therefore, the District of Columbia’s 1975 ordinance prohibiting D.C. residents from possessing handguns was unconstitutional.

The anti-gun lobbies had begged D.C. Mayor Adrian Fenty to just accept the loss. Nobody knew what the Supreme Court would do if it weighed in on the Second Amendment. The gun ban lobbies were terrified that the Court would rule that the Second Amendment is a real individual right.

Ultimately, Mayor Fenty chose to appeal to the Supreme Court. In his view, his job was to preserve the D.C. handgun ban, and so he would roll the dice in the Supreme Court. If he won, D.C. could keep the ban. If he lost, that would hurt gun control in other jurisdictions, but he was focused on what the D.C. government wanted, and not collateral consequences in Massachusetts or Illinois.

We knew that Justices Clarence Thomas and Antonin Scalia generally supported the Second Amendment, based on their previous writings and interviews. But to win a Supreme Court case, you need the votes of five justices. Some of the many amicus briefs filed in the case had been written to appeal to the ideologies of particular justices—such as Ruth Bader Ginsburg’s feminism, David Souter’s love of legal history or Stephen Breyer’s pragmatism about government actions with high costs and low benefits.

That was a nice try, but futile, a very experienced Supreme Court litigator told me a few days before oral argument. He was sure there were at least four implacable votes against the Second Amendment: Justices Ginsburg, Souter, Breyer and Stevens. The lawyer told me to consider Justice Anthony Kennedy “the sun, the moon, and the stars.” The only path to victory was through him.

For the oral argument on Tuesday morning, people had been camping outside the Supreme Court for days, lining up for the spectator seats available to the public. It was a convivial and friendly crowd, with people sharing foods and making runs to convenience stores.

The four lawyers on our oral argument team didn’t have to camp out, and we entered the building early via a special door. Over breakfast in the basement cafeteria, we held our final strategy conference. When we entered the packed courtroom, tension was high.

The lead attorney for D.C., the very experienced Supreme Court attorney Walter Dellinger, came over to our table to say hello. He warmly told Gura, “You’ll do great.” Dellinger said he was looking forward to watching the NCAA basketball tournament as soon as his work was over.

Because D.C. had lost the case in the lower court, Dellinger argued first. Several minutes in, he was explaining his theory that “bear arms” means only to bear arms in a militia, so people who aren’t in the National Guard have no Second Amendment rights. Justice Kennedy interrupted: “It had nothing to do with the concern of the remote settler to defend himself and his family against hostile Indian tribes and outlaws, wolves and bears and grizzlies and things like that?”

Many spectators gasped. Kennedy believed in Second Amendment rights for ordinary people!

The oral arguments went for another hour, and all I wanted was for them to wrap up as soon as possible. We had a majority, and I didn’t want any misstep during argument to upset it. There were no missteps in Gura’s fine presentation.

We exited the courtroom jubilant. Although the Court would not announce its opinion until three months later, friends and foes alike recognized the import of Justice Kennedy’s words. While the Supreme Court had previously made some favorable references to the Second Amendment, the Court had never before held that a gun control law violated the Second Amendment or clarified that the individual right to firearm ownership was protected under that amendment. That was about to change.


David Kopel, Courtesy of U.S. LawShield Armed & Educated

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  1. “Justice Kennedy interrupted: ‘It had nothing to do with the concern of the remote settler to defend himself and his family against hostile Indian tribes and outlaws, wolves and bears and grizzlies and things like that?’ ”

    My wife and I were there that day. I remember that.

    If I remember correctly, the attorney for D.C. replied that wasn’t part of the Second Amendment.

    My wife whispered to me “D.C. just lost.”

    • That’s cool you were actually there man. Would’ve been a case worth sitting in for for sure.

  2. It’s as if some people can’t read and comprehend clearly written English.
    Hearing and understanding are not synonymous. The left refuses to accept.

    • Maybe we should thank Mayor Fenty too, typical left wing democrat stupid – always grasping to take a right that isn’t theirs to have.


    • It’s not so much “The left” as it is “Liberals” in this instance.

      Note that the term “shitlib” is not just a Righty term, it is used by the Left to describe a group of people who are left of center but not Leftists. These are the people they are talking about when they say “Liberals get a bullet too”.

      Gun control generally, is the hobbyhorse of a fairly specific type of person.

      Suburban or urban, often female but nearly always effeminate, sometimes with a penchant for wine that comes in boxes and a habit of collecting cats (possibly due to a toxoplasmosis infection). They’re liberal leaning but squishy. They have no particular philosophical grounding (much like 95% of the Right) and they’re absolutely not interested in an actual fight. They honestly don’t pay much attention to much of anything outside their own little world which is mostly self-centered. Where they’re willing to actually be mean it’s always in a passive-aggressive sort of way but mostly they’ll do anything to avoid a fight of any kind.

      Jokes aside, this group covers about 2/3rds of “center” towards Left. They’re not a bunch of Bolshies or Maoists, they’re those people who let their feelings rule them and believe that if we just eliminate bullying in schools everything will be rainbows and unicorns. They champion tolerance an inclusivity to excess (which will be shortly weaponized by the actual Leftists).

      They’re sometimes also known as “default Liberals”. The super-common word for them, which WordPress will not allow, is the second P in O.P.P., which was explained exquisitely by Treach from Naughty By Nature back in ’91:

      “The last P… well… that’s not that simple
      It’s sorta like another way to call a cat a kitten
      It’s five little letters that are missin’…”

  3. Justice delayed is justice denied. The fact it took from 1975 to 2008 to overturn this Unconstitutional ban just shows how broken our legal system really is. I’m speaking as a former D.C resident from 1974 to 1992. How many decades will it take to overturn CA’s semi auto rifle ban and standard capacity magazine ban? (which are still on the books in D.C.) Over 1/2 of the population in the USA CANNOT purchase or have a semi auto AR15 or magazine over 10 rounds. These include the residents of CA, WA, OR, HI, CT, NJ, NY, MD, DE, MA, VT, DC and IL. Clear violation of the 2nd and 14th amendments.

    • Slapshot, I’ve visited a few of those states. Had good times in them with friends and family. Wouldn’t live in any of them.

    • 10 years ago only one State (Vermont) allowed permitless carry. Now there are 29. Things can be changed.

      • gunnygene…. in 2016 Mississippi went to permitless carry. That was 8 years ago. At that time there were already 11 states that allowed “constitutional carry” in the form of ‘permitless carry’

    • Delaware passed an AWB? News to me, I live in VA but have friends over there.

      • When they saw the 2nd circuit drag it’s ass on injunctions they and a few others went for everything they could get

  4. Actually, Californians can have AR style semiautomatic rifles if more than one of certain “illegal features” are not present, which include but are not limited to pistol grips, flash hiders, detachable mags, “barrel shrouds” and a collapsible stock. With a fixed stock, no pistol grip, and no flash hider (although muzzle brakes are legal), one can legally posses such a firearm. Mine do have detachable mags, but none of the other features.

    • I wouldn’t call that a “AR”. I suppose I could machine a steel plug to replace the gas tube in the gas block/sight tower. Then it would be a straight pull action non semi-auto. Then I could have a telescoping stock, flash hider, bayonet lug, pistol grip & detachable magazine as only semi-autos are “assault weapons”. When one leaves the state it’s easy to remove the plug & install the gas tube. I do visit family in CA several times a year and that is the only reason I own some 10rd magazines. At least CA isn’t as bad as Washington D.C. When I was a kid my dad kept a loaded Remington 1858 percussion revolver replica for home protection as he couldn’t have or buy any non-antique handguns due to the 1975 D.C. gun ban. And you couldn’t buy any long guns either as the last FFL/gun shop went out of business in the early 1970’s

  5. I am curious as to where Mr. Gura is these days. I haven’t seen his name in connection with the multiplicity of 2A cases being litigated at present. A brilliant dude.

  6. God bless Alan Gura, Dick Heller, Otis McDonald and everyone else who worked on those cases, they are truly doing God’s work… 🙂

    • This is the case where the the communust/terrorist bill ayers’ prodigy b.h. obama a self proclaimed Constitutional scholar would not say if the 2A was an individual right or not. Obviously b.h. obama is no Otis McDonald. McDonald is mentioned in the video below and still he is unrecognized, unappreciated by the forum’s resident bigots who enjoy what is now a Confirmed Individual Right…

  7. Don’t forget the importance of standing in this case.

    Dick Heller wasn’t the only original plaintiff, but he was the only one left after the others were dismissed for lack of standing.

    Why Heller? Because he was the only one who had actually applied to DC for permission to keep a handgun at home, and was denied.

  8. I had the great blessing of being able to spend two days with Dick “Dude” Heller at a Survival Mindset conference on active shooter prevention & response. What a great experience. Came back home and followed Dude’s advice: get off the bench & get in the game. “Any citizen can possibly change history. Look at what happened with me. Nothing special about me other than I took action…”
    I upgraded to GOA life member, joined Guns Save Life in Illinoisistan, and have become more involved in pro-2A activities generally.
    Gumption. You can’t “get it”, you can only express it.
    I consider Dude to be a mentor & friend.

    Get in the game !
    YOU could be the one to make a difference.

  9. A militia is a group, three people make a group.
    dacian, Miner49, Albert LJ Hall. There yah go.

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