Interview: The Way of the Gun

Meet Dr. Robert Levy, the lawyer whose Second Amendment challenge to D.C.?s strict gun laws could deal a death blow to gun control nationwide.

A little more than a month before Cho Seung-Hui went on a murderous rampage at Virginia Tech, the D.C. Circuit Court of Appeals issued its ruling in a landmark gun rights case, Parker v. District of Columbia, repealing the District’s stringent gun laws. Leading the Second Amendment challenge was Cato Institute senior fellow and constitutional lawyer Dr. Robert Levy, who, despite offers of financial assistance from Cato, has bankrolled the three-year effort himself. Levy wielded a broad interpretation of the Second Amendment to dissolve the strictest gun regulations on the books in any state (or district), arguing that the Second Amendment protects the rights of individuals, not just militias, to bear arms. Parker marked the first time in history that the Second Amendment broad interpretation has been used to overturn a state gun law. It’s likely that the Supreme Court will eventually review the decision and if the Court upholds the D.C. Circuit court opinion, it will have far-reaching implications nationwide—making state gun laws ever more vulnerable to legal challenges. Interestingly, Levy’s case has not only been a subject of concern among gun control advocates, but to the National Rifle Association as well, which fears the impact of a negative Supreme Court ruling.

From his home in Naples, Florida (where he claims he doesn’t need a gun), Levy talked to Mother Jones about his Second Amendment victory, his frustrations with the National Rifle Association, and the impact of the Virginia Tech shootings on the gun rights movement.

Mother Jones: For the past three years, this lawsuit has been your baby. What made you so passionate about challenging the gun laws in D.C.?

Robert Levy: I’m passionate about a lot of issues. I’ve done work on tort reform and tobacco litigation, post 9-11 civil liberties such as the Patriot act, detention of U.S. citizens, profiling, and NSA wire taps. So the Second Amendment is just one of the many issues that I feel passionate about.

MJ: Why D.C.?

RL: The reason deals with incorporation. When the Constitution was originally ratified for the Bill of Rights, it only applied to the federal government. All of that changed after the Civil War when the 14th amendment was ratified. And since that time, it’s been pretty well settled that most of the Bill of Rights can be applied to the states as well as the federal government, but it hasn’t been resolved whether the Second Amendment applies to the states. To avoid having to deal with that issue, we chose D.C., because it is not a state.

MJ: Are you a gun owner?

RL: No.

MJ: Are you a hunter, or a target shooter?

RL: Nope. I haven’t had a gun since I was in the Air Force in the 1960s.

MJ: From the beginning, were you considering that the Second Amendment challenge to this one law would have such far-reaching implications?

RL: Oh sure. We knew that it would have far-reaching implications because the Supreme Court had not dealt with a Second Amendment case since 1939. Meanwhile, 10 of the 12 judicial circuits, all except the 5th Circuit in Texas and the D.C. Circuit, had determined that Second Amendment did not secure individual right, instead that it applied only to members of the militia. And in some cases they determined that the Second Amendment didn’t apply to states. So we knew that if we were to win in D.C., it would be a major victory with profound implications across the country.

MJ: How likely is it that Parker vs. District of Columbia will go before the Supreme Court?

RL: It is highly likely for a number of reasons—most importantly, this is a very big issue. In addition, this D.C. opinion was the very first opinion of any appellate court in history to overturn a gun control regulation based on the Second Amendment. And it also is highlighted by the fact that all the other circuits, with the exception of the 5th Circuit in Texas, disagree.

MJ: A circuit split is one of the main reasons a case would go before the Supreme Court?

RL: That’s correct. You have a circuit split which means you have different laws that are now applicable across the country. The Supreme Court ordinarily will try to resolve that sort of thing so we have uniform laws across the country.

MJ: If the Supreme Court upholds the decision, how would this ruling affect gun laws on the books in states throughout the nation?

RL: First, we need to look at how will it affect D.C. If they uphold the appellate decision (D.C. has applied for a petition to have the case go before the full-judge panel of the circuit court—the case was heard before a three-judge panel originally), it will say that the D.C. gun ban is unconstitutional.

The task after Parker, assuming Parker is upheld, will be twofold. The first is to determine whether the Second Amendment applies to the states. Assuming the Second Amendment does apply to the states, the next question will be what regulations are permissible and what restrictions are not permissible.

Even the NRA concedes that you can’t have mad men running around with weapons of mass destruction. So there are some restrictions that are permissible and it will be the task of the legislature and the courts to ferret all of that out and draw the lines. I am sure, though, that outright bans on handguns like they have in D.C. won’t be permitted. That is not a reasonable restriction under anybody’s characterization. It is not a restriction, it’s a prohibition.

MJ: Regarding the Parker case, the six plaintiffs were carefully chosen. Can you discuss your selection process?

RL: We wanted gender, racial, economic, and age diversity. We weren’t looking for criminals. We didn’t want a crack head coming into the court as a poster boy for the Second Amendment. Most importantly, we wanted compelling cases.

MJ: You said that Parker v. District of Columbia is the first case where a broad interpretation of the restriction has overturned a state gun law. Have there been previous challenges?

RL: Yes, there have been a ton of challenges. There have been 30, maybe even 40 in the district alone, but they are challenges brought by criminals protesting the fact that they have been charged with a felony in possession of a firearm or that they have committed a crime like robbing a bank and their sentence has been enhanced because they carried a gun. These criminals charge that they should not have their sentence enhanced because they have a Second Amendment right to carry a gun. These cases are nonsense and the courts have properly thrown them out. So this is the first challenge that was compelling on its facts and where folks went out of their way to find plaintiffs with the requisite characteristics that I mentioned.

MJ: Are there similar cases pending in D.C. and in other states?

RL: There are all kinds of cases pending, but I do not know of any case that is imminent and is similar to ours in that it is law-abiding citizens with compelling facts who simply just want to be able to defend themselves.

MJ: Could you talk about the longstanding controversy that has existed over the interpretation of the Second Amendment?

RL: The controversy boils down to this: Does the Second Amendment secure the right of individuals to keep and bear arms or does it simply apply to the right of states to arm the members of their militia? This controversy has raged since 1939 and, of course, it existed even before then.

MJ: Even if the case doesn’t go before the Supreme Court, doesn’t it pretty much turn gun control legislation upside down?

RL: In D.C., something is going to have to be done with existing gun laws. Secondly, and I think more importantly, since D.C. is the residence of the federal government, it means that the federal government can be sued in D.C. no matter where an injury or rights violation takes place. Any challenge to federal gun laws can be brought in D.C. and will be governed by the law in D.C. That means that D.C. has a much bigger impact than other locations.

MJ: Considering the district has the most stringent gun laws on the books, what message does this send out to pro-gun rights people and anti-gun rights people. Does this not show other states the way? Could there be some kind of ripple effect?

RL: This will depend on whether the Second Amendment even applies to states. This is going to be next big issue that comes before the court. My own view is that the arguments are compelling—that the Second Amendment, like every other part of the Bill of Rights, will apply to the state governments. Assuming that’s the case, the state governments will be on notice, just like D.C. is on notice.

MJ: What impact will the Virginia Tech shootings have on your case?

RL: Logically, it shouldn’t have any impact. In Parker, we are not addressing concealed carry and the outdoor usage of guns. We’re talking about a gun in the home for self-defense. And that’s it. So as a matter of cold law, the situation at Virginia Tech is not relevant in terms of the Parker litigation.

Now could it have an effect? Well, of course. People can’t read about an experience of this kind of horror without being affected by it. And judges in the courts are no different. People’s views about gun control, about self-defense, and the Second Amendment are certainly impacted by these practical, real-life experiences. After all, that’s why we look for these compelling facts. We’re not dealing with just an abstract Second Amendment. We’re dealing with a Second Amendment that applies to real-life people, and so I suspect that there will be some effect.

Now the next question is, what effect is it likely to have? There will be one camp that says, “The events at Virginia Tech prove that we have too many guns in the country and what we need is tighter gun control.” And there will be a second camp that is equally vigorous and equally outspoken, and I will be part of it, that says, “What happened at Virginia Tech proves that what we need is for people to be able to defend themselves.”

After all, it is hard to stop somebody from open firing and killing someone. But you sure as heck can stop someone from doing number 31, 32, and 33. Who knows how many lives would have been saved if somebody who had a valid state-issued permit was carrying a gun and put an end to this guy? As to whether it will be read in that manner by judges on the D.C. Circuit or in the Supreme Court, I just don’t know.

MJ: If not more stringent gun control, what do you think makes a difference in the likelihood that a tragedy like this could occur?

RL: With respect to the root causes of violence, I’m no expert but, among other things, it’s illegitimacy, unemployment, dysfunctional schools, teenage pregnancy, and drug and alcohol abuse. And in this case, it was probably none of the above. It was probably just a crazy person. I mean you can’t eliminate all crazy people.

MJ: Are you a proponent of any gun laws?

RL: I’m a proponent of a lot of gun control laws. I support regulations on some type of weapons. We can’t have people having shoulder-launched missiles in every home. That’s ridiculous. I support regulations on some types of persons, the obvious one being felons, the mentally incompetent, and people that are young. I would obviously permit regulations on some types of uses, like murder. It’s clear that these types of regulations have to exist. Where should the line be drawn, what age should it be? I don’t know. I’d have to think about that and I’d like to see more evidence.

MJ: How do you think the Virginia Tech shootings will affect gun rights efforts nationwide?

RL: The laws ought to be changed so that people are able to defend themselves. There will be clamor from the usual suspects to go in the other direction, to have tighter laws. I think the people on the Virginia Tech campus and all the other campuses should be able to do the same thing they do anywhere else in the state of Virginia. And that is if they qualify for a concealed carry permit, they should be able to carry one on campus. And this regulation has not turned Virginia into Dodge City. The real violence has occurred where they can’t have guns, namely on the campus not where they can have guns, namely off the campus.

And it’s not that everybody will rush out to carry a gun. They won’t. In all the states—and as I mentioned there are 45 that have concealed carry rights—only five percent of the population takes out gun permits. The other 95 percent benefit because criminals don’t know who is armed. So a guy who is contemplating an act like what happened on Monday and he thinks the first guy he’s going to encounter is going to blow his brains out, he’s a little hesitant to engage in these sorts of activities. You can’t stop it all, but you can certainly stop some of it, and you could certainly have stopped the multiple killings that occurred systematically at Virginia Tech.

MJ: The media has been all over lawmakers and presidential candidates claiming that an incident like this has no bearing on the political landscape surrounding gun control. Essentially, they are claiming, the tragedy at Virginia Tech will disappear without a legislative trace.

RL: Democrats, who tend to be in favor of stronger gun controls—first of all I think they’re wrong, but even if they’re right—they don’t have the courage of their conviction, because they are politically craven and they are not willing to take a stance on this because they fear their electoral prospects will be impeded. A lot of people who are gun owners and believe in gun ownership are not going to vote for a lawmaker or presidential candidate if they come out foursquare against gun control.

MJ: Is there a tragedy of any magnitude that could change the equation?

RL: Sure, but the question is, in what direction? Does it change the equation in the sense that it convinces people to go for tighter gun laws when the guy’s already violating several gun laws that already exist. I mean, what’s another gun law? He’s violated the law against carrying a gun on campus, violated the law by obliterating the serial number on his gun, and he has violated the law against murder. None of those laws seemed to matter to this guy. So another law is unlikely to make any difference.

MJ: In an op-ed in the Washington Examiner, you wrote of repeated attempts by the NRA to derail your litigation. What form did these attempts take and why would the nation’s foremost gun lobby work against litigation that was clearly in line with its interests?

RL: I want to know too. I don’t know the answer to that, but relationships have been smoothed and we are working with the NRA now. The NRA says that they support the Parker litigation and don’t intend to do anything that would derail the litigation. They have said that they think it ought to go to the Supreme Court and that it ought to win. And I am willing to accept their words as gospel until I have reason to believe otherwise.

MJ: You say relationships have been smoothed? What were the disputes?

RL: In 2002, when we first contemplated this suit, their emissaries came to me to try to dissuade me from filing the suit. The asserted reason was they thought it was a good suit and had a good chance of winning. Therefore, it would likely go to the Supreme Court and they didn’t think they had sufficient horsepower in the Supreme Court. They didn’t want to take that gamble.

We didn’t buy that argument because we thought by the time the suit went up to the Supreme Court, the court would look a lot better. We were right. The substitution of Justice Alito for Justice O’Connor is a step in the right direction for those who believe in gun rights. The court looks better than it is going to look for a while with the likely Democratic administration.

MJ: What is the timeline for this case as it heads to Supreme Court?

RL: A petition for the case to be reheard before the full judge panel of the D.C. Circuit court has been filed. If it gets granted, that’s going to add another three to six months onto the case because a lot depends on whether there is going to be a new briefing or whether they are going to use the existing briefs. There are a whole lot of imponderables there. If it doesn’t get granted or if the court doesn’t vote to rehear the case, then the petition to file cert (a document that the losing party files asking the Supreme Court to review a decision by a lower court) will be filed and ruled on over the summer. That means the Supreme Court will hear the case sometime after October of this year and would probably decide the case between January and June of 2008.

MJ: Are you certified to go before the Supreme Court?

RL: Yes, I’m a member of the Supreme Court bar.

MJ: So, you’ll be taking it all the way?

RL: That’s our intent. And we have a very good chance. I think that it is very unlikely that five justices on the Supreme Court are going to say that the Second Amendment means nothing. That’s what they would have to say to uphold the total ban on handguns that exists in Washington D.C.

It is also especially unlikely during the heat of the 2008 election—and that is when it is going to happen—because it would be a rallying cry for the whole pro-gun committee. Just like an abortion decision that overturned Roe v. Wade would animate the pro-choice folks. That kind of political turmoil is something the court is sensitive to.