Targeting The Supreme Court

Robert A. Levy from the Cato Institute outside the Supreme Court in Washington
Robert A. Levy from the Cato Institute outside the Supreme Court in Washington, Tuesday, March 18, 2008, after the court heard arguments in an attempt to overturn the District of Columbia's firearms ban. The District of Columbia is asking the Supreme Court to preserve the capital's ban on handguns in a major case over the meaning of the Second Amendment's "right to keep and bear arms."
AP Photo/Pablo Martinez Monsivais

Supreme Court decisions always have the potential to make headlines and provoke debate. Case in point: Its ruling this week on the right to own a gun. It's a cause one man worked long and hard to bring before the court, as we hear in our Cover Story reported by Martha Teichner.

Outside the Supreme Court the battle was still being fought as the decision was announced - the 5-4 ruling overturned Washington, D.C.'s ban on handgun ownership and explicitly stated for the first time that the Second Amendment guarantees an individual's right to own a gun for self-defense.

Washington mayor Adrian Fenty's disappointment was palpable. "More handguns in the District of Columbia will only lead to more handgun violence," he said.

Chicago mayor Richard M. Daley, bracing for an attack on his city's gun law. He said the Court's decision in District of Columbia v. Heller is "very frightening" for America.

"Why don't we do away with the court system?" Daley said. "The old West - you have a gun and I have a gun and we'll settle on the street."

Within 24 hours, the National Rifle Association and like-minded groups had filed lawsuits against Chicago and San Francisco. Their aim: to test whether the court's decision has implications for all 50 states, not just the District of Columbia.

Wayne LaPierre, executive vice president of the NRA, said, "The NRA views this as the opening salvo, as a step-by-step process of bringing relief to citizens all over the country that have been denied access to that freedom.

"The Second Amendment as an individual right now becomes an important part of the American constitutional law, and that's monumental," he said.

How did it happen? Why this particular case? Why now? It took exactly the right cast of characters, perfect timing, and the determination of a lawyer named Robert Levy who knew just how to play the game.

"The financing for this came out of my pocket," he told Teichner.

Levy's story is remarkable: He got rich in finance, but cashed out and went to law school at the age of 50. (He's now 66.) This is the only lawsuit he's ever litigated.

He's never even owned a gun.

"The gun part of it is, I don't know that I'd say it was incidental, but certainly my primary interest was in vindicating the Constitution and the meaning of the Second Amendment."

Levy is a libertarian, a senior fellow at libertarianism's philosophical brain trust, the Cato Institute in Washington.

"We believe in free markets, individual liberty, private property and, most of all, strictly limited government," Levy said. "We don't like the government in our wallets, and we don't like the government in our bedrooms, so we're very happy to be a bridge between the left and the right, particularly on this issue, which has separated so many on the left and the right."

Levy deliberately distanced himself from the NRA.

"We didn't want to be identified with the usual gun lobby groups," he said. "This was the case that we brought because of our interest in the Constitution."

Levy hand-picked his plaintiff, security guard Richard Heller, and then calculated that the Supreme Court would move to the right before the case managed to get there.

"When we filed the case, in 2003, Justices Alito and Roberts had not yet joined the Court, but it did appear that over the near term there would be replacements of Chief Justice Rehnquist, and Justice O'Conner suggested that she might retire, and of course that did come to pass," he said.

And in Justice Antonin Scalia, who wrote the majority opinion, Levy had the perfect match with his own strict originalist views of the Constitution - in other words what the founding fathers intended.

Recently on 60 Minutes, Scalia said, "Sometimes people come to me and in, you know, 'Justice Scalia, when did you first become an originalist?' You know, as though it's some weird affliction - 'When did you start eating human flesh?'"

"What you're saying is, 'Let's try to figure out the mind-set of people back 200 years ago, right?'" asked Lesly Stahl.

"Well, it isn't a mind-set, it's what did the words mean to the people who ratified the Bill of Rights or who ratified the Constitution," Scalia said.

The D.C. gun ban suit was a chance to take on the Second Amendment, with its reference of militia … its awkward commas … its ambiguity.

"I don't think the Supreme Court was backed into a corner to decide this case," said CBS News legal analyst Andrew Cohen. "I think there was enough folks on the court now with the change, with the addition of Samuel Alito, so that they wanted to do it.

"The problem is you have a horribly drafted Second Amendment," Cohen added. "The people who drafted the Second Amendment were just as addled and just as conflicted and contradictory as modern day politicians are when it comes to these tough issues."

Which may not be surprising, according to R.B. Bernstein, a constitutional historian at New York Law School, who said. "Constitutions are political documents and constitutional amendments are political documents. They're written by politicians. They're shaped by the forces of politics."

"I'm tempted to say to originalists sometimes, that you may believe that there is a Santa Claus bringing neatly wrapped packages of original intent, understanding or meaning for good little consitutional interpreters," Bernstein said, "but just as there is no Santa Claus, there is no originalist Santa Claus. We do the best we can with the language we've got."

In fact, in this case, the Court's interpretation of the Second Amendment is very much in line with public opinion.

According to a recent Gallup poll, more than seven out of ten Americans agree with the Supreme Court ruling that the Second Amendment does guarantee the right to own a gun.

But here's another statistic: Approximately 30,000 Americans are killed by guns every year.

We asked Robert Levy, who brought about the Supreme Court decision, does it matter to you that people might die because of it?

"Well of course, it matters," he said. "And I think it's indisputably true that there will be people who die because of this ruling. There will be other people who would have died were it not for this ruling, and so one has to take into account not just the cost but the benefits."