With the exception of one historic and widely reported event, Thursday, June 26, 2008, was a routine day in the universe of gun death and injury in the United States.1
The gunfire started well before sunrise.
At about one A.M., in Corpus Christi, Texas, a man angry about a stolen radio fired at least four shots into the air in front of a residence where he thought the culprit lived.2 Around two A.M., twenty-five-year-old Manuel Davis was shot to death on a street corner in Cleveland, Ohio.3 Half an hour later, at two thirty A.M. in Halsell, Alabama, Jimmy Tanks, a sixty-seven-year-old railroad retiree, heard noises outside his trailer home and grabbed his gun. The noise was a “repo man” in the process of repossessing Tanks’s car.4 Shots were fired and Tanks was killed. At just about the same time, in Muskegon, Michigan, a twenty-three-year-old woman and her boyfriend were wounded in what police described as a suicide attempt.5 Less than an hour later, twenty-year-old Bernardino Hernandez allegedly opened fire on his ex-girlfriend in Elgin, Illinois, shooting her three times in the back—the two were reported to be in a dispute over custody of their baby.6
The shooting did not slack off with the sunrise. At about nine thirty A.M., a fourteen-year-old-boy in Gulfport, Florida, accidentally shot his friend in the arm with a .357 Magnum revolver, one of two handguns he had brought to the friend’s home to show off.7 Later in the morning, in Lebanon, Pennsylvania, Raymond Zegowitz, forty-three, shot to death his girlfriend, Khrystina Bixa, twenty-three, then committed suicide with the gun. Neither of Bixa’s children—three-year-old Christian and twenty-month-old David—were injured, although police could not say whether the children had seen the shootings.8
In Litchfield, Connecticut, Bruce Bochicchio, forty-three, was arrested and charged with threatening his wife and failing to surrender his guns after a restraining order had been issued against him for fighting with his son. Police seized eleven guns, including a rifle and two fully automatic submachine guns, from the family’s home. In 2005, Bochicchio’s brother, Michael, a retired state trooper, had shot his wife to death and wounded her lawyer in front of a courthouse, then killed himself. At the time of his arrest, Bruce Bochicchio and his wife, Christine, were caring for the orphaned children of his brother.9 Later in the evening, Kenneth Anton Duckett, thirty-seven, walked into the observation area of the indoor pool at the Montclair, New Jersey, YMCA. He shot to death Monica Paul, thirty-one, in front of her eleven-year-old daughter, while her four-year-old son was swimming. Duckett, who was under a restraining order forbidding him from contact with Paul, fled the scene.10
Shortly after five thirty P.M. in Bridgeport, Connecticut, twenty-two-year-old Tamboria Raiford opened fire with a handgun from her front porch into a crowd of adults and children. April Barron, forty, was hit in the head by one of the bullets, but apparently survived her injury.11 In Deerfield Beach, Florida, a bullet fired through the door hit three-year-old Salayah Buie in the leg while she was watching television with her family. Members of the family suspected that the shooting was in retaliation for an incident earlier in the day. They had notified the county sheriff’s office that a pit bull had come into their yard and killed their cat.12 Police arrested three teenagers in Rock Hill, South Carolina, after shots were fired from their car around six thirty P.M. The teens were chasing another car.13
The macabre dance continued into the night. In Hampton, Arkansas, a four-year-old boy found a loaded handgun in a living room cabinet at about eight thirty P.M. He shot his five-year-old sister in the head, killing her.14 In Omaha, Nebraska, three separate shootings left seven people injured,15 while in Hartford, Connecticut, a young man was shot and killed in a parking lot, and a teenage girl was shot in the face and seriously wounded in a separate incident.16 Around eleven P.M., an armed standoff began in a trailer park in Tucson, Arizona, after police responded to a report of shots being fired and found one man dead outside a trailer. A SWAT team eventually entered the trailer and found two other people dead, one an apparent suicide.17
The day ended with the grisly discovery of a domestic murder-suicide. Just before midnight, police in Hattiesburg, Mississippi, found the bodies of Tracy Kennedy, sixty-six, and his wife, Judith, sixty-eight, inside their home. Both had gunshot wounds to the head. The county coroner concluded that Tracy Kennedy had shot his wife first and then committed suicide.18
These incidents are, of course, only a fraction of the gun violence that occurred that day. On average, slightly more than eighty people a day are killed by guns in America, and about twice as many are injured. So these anecdotes—gleaned from news reports of the day on Nexis.com—are just a glimpse of the real world of America’s daily dead and mutilated, a blood-red flag seen faintly through the news media’s gun-violence whiteout.
There was, however, no media whiteout at the U.S. Supreme Court in Washington, D.C.19 The most dramatic incident of the day involving guns happened in the Court Chamber of that august body. There was a torrent of reportage about the majority opinion in the case of District of Columbia v. Heller,20 delivered by Associate Justice Antonin Gregory Scalia.21 Scalia delivered the opinion from an ideological ivory tower, far removed from the reality of gun violence in America.
It would be difficult to imagine a venue more remote than the Supreme Court from the trailer park in Alabama where Jimmy Tanks died defending his car with a gun, or the home in Lebanon, Pennsylvania, where Khrystina Bixa’s boyfriend shot her to death. The monumental bronze doors that guard the Supreme Court building at the top of the white marble steps on its West Front weigh six and a half tons. Oak doors open from a Great Hall into the Court Chamber, in which the nine justices of the Supreme Court sit when delivering their decrees. The courtroom “measures 82 by 91 feet and has a 44-foot ceiling. Its 24 columns are Old Convent Quarry Siena marble from Liguria, Italy; its walls and friezes are of Ivory Vein marble from Alicante, Spain; and its floor borders are Italian and African marble.”22 These royal appointments are appropriate to the nine justices who constitute the third branch of government, with as much power among them as Congress and the president. Seven of the nine are millionaires, one (Justice Thomas) may be a millionaire, while only one (Justice Kennedy) is definitely not.23
Scalia delivered his decree from the courtroom’s wing-shaped mahogany bench in a grim, condescending, semimonotone.24 As he droned on, he transported himself and the decision back to the eighteenth century—a disease-ridden world of powdered wigs, pockmarked faces, flea-bitten bodies, and ignorance of the basic principles of public health, disease, and injury prevention. It was a time when even educated leaders “knew” that regular baths promoted promiscuity and that many diseases were caused by foul smells or, as in the case of yellow fever, by immoral behavior.25 It was from this dismal sump of smug ignorance that Scalia drew the wisdom he shared that day in 2008.
The Court’s starkly divided (5–4) ruling turned on its head at least seventy years of settled Constitutional law. Hailed by ideological conservatives as an example of “originalism”26—a putative return to strict construction of the “original intent” of the Constitution’s framers, as opposed to the judicial lawmaking liberal courts are accused of doing through their “loose construction” of the Constitution—Heller struck down the District of Columbia’s long-standing ban on the private possession of handguns. “We hold that the District’s ban on handgun possession in the home violates the Second Amendment, as does its prohibition against rendering any lawful firearm in the home operable for the purpose of immediate self-defense.”27
“Our opinion is very lengthy,” Scalia warned in his oral presentation. “This summary that I’m giving will state little more than the conclusions. If you want to check their validity against the dissent’s contrary claims, you will have to read some 154 pages of opinions.”28 In a nation in which a serious contender for nomination as a candidate for the office of president derided the sitting president as a “snob” for promoting college education,29 one might wonder how many of those affected by Scalia’s decision would accept his challenge to read its arcane text. In fact, Scalia’s opinion is so long that an eminent conservative judge quipped that its bulk would “perhaps just overwhelm the doubters.”30 Deep within this leviathan, Scalia wrote the following crucial paragraph:
It is enough to note, as we have observed, that the American people have considered the handgun to be the quintessential self-defense weapon. There are many reasons that a citizen may prefer a handgun for home defense: It is easier to store in a location that is readily accessible in an emergency; it cannot easily be redirected or wrestled away by an attacker; it is easier to use for those without the upper-body strength to lift and aim a long gun; it can be pointed at a burglar with one hand while the other hand dials the police. Whatever the reason, handguns are the most popular weapon chosen by Americans for self-defense in the home, and a complete prohibition of their use is invalid.31
The statements in this paragraph are pivotal to the decision, in which the majority decided that the Second Amendment confers an “individual right”—as opposed to the long-standing rule that the right is a “collective right,” intended to ensure the viability of state militias (and their successor, the National Guard). But as Scalia acknowledged in his opinion in Heller, even an individual right is not limitless.32 So where the Court drew the line limiting an individual’s right was crucial to the modern gun industry. High-powered, high-capacity, military-derived handguns are a vital component of the gun industry’s lifeblood. Scalia’s portentous effusion provided a factual basis that ensured that the ruling in Heller would protect handguns, the most lethal implement of portable killing power ever invented. And yet every alleged fact in the paragraph is at best mischievous myth, at worst demonstrably false. It is significant that, in an opinion top-heavy with ponderous citations to legal authority, Scalia cited not a single source—not one—to support the assertions in this vital paragraph.
In truth, these words are no more than an example of what lawyers call ipse dixit—“a bare assertion resting on the authority of an individual.”33 Allen Rostron, a constitutional scholar and law professor, captured this in his critique of Scalia’s opinion:
Justice Scalia . . . is certainly entitled to whatever personal views he may have about the relative merits of handguns versus long guns for home defense purposes. But his reliance on that sort of nakedly personal assessment of a public policy issue, to resolve a crucial legal issue in a landmark decision on the Constitution’s meaning, is startling. It looks very much like the sort of “judge-empowering” “interest-balancing” that he denounces the dissenters in Heller for endorsing.34
The criticism is more than ironic in Scalia’s case. He blasted his colleagues for a decision in 2002, stating that “seldom has an opinion of this court rested so obviously upon nothing but the personal views of its members.”35 Unfortunately, Scalia’s paragraph lies at the axis of a legal ruling that will cost millions of Americans their lives and millions more grave injuries. Its influence is like toxic waste thoughtlessly released into a water supply.
It was not the first time Scalia got his facts wrong in a rhapsody of enthusiasm for the make-believe world of gun rights. Praising a pro-gun rights book written by Joyce Lee Malcolm, then a history professor at Bentley University,36 a business college in Massachusetts,37 Scalia pronounced the book “excellent.” He noted that the author was not a “member of the Michigan Militia, but an Englishwoman.”38 His point was apparently that an Englishwoman is more credible than an American member of a right-wing militia. Scalia was wrong on his facts, however. Malcolm is not an “Englishwoman.” She is an American.39
Some might dismiss Professor Rostron’s evaluation as sour grapes. Before he became a law professor, he was a senior staff attorney at the Brady Center to Prevent Gun Violence, a well-known gun-violence prevention organization. But it is hard to dismiss the caustic analyses of Heller by two federal appeals court judges—Richard A. Posner and J. Harvie Wilkinson III—both of whom were appointed to the bench by President Ronald Reagan and both of whom are highly regarded as conservative jurists. According to the New York Times, “Judge Wilkinson, who sits on the United States Court of Appeals for the Fourth Circuit, in Richmond, Va., was recently considered for a spot on the Supreme Court. Judge Posner, of the Seventh Circuit, in Chicago, is perhaps the most influential judge not on the Supreme Court.”40 CNN senior legal analyst Jeffrey Toobin41 wrote of Posner in 2006, “A prolific scholar and perhaps the nation’s best-known federal appeals-court judge, Posner wields singular authority from his chambers, in Chicago.”42 Perennial pro-gun activist John Lott, a virtual factory of much-criticized and regularly debunked pro-gun academic “studies,” lauded Posner and Wilkinson as two of the three “outstanding” judges serving on federal courts of appeal in 2006.43 The conservative magazine the Weekly Standard wrote that Wilkinson “long has been regarded as one of the most respected conservatives on the federal bench.”44
Neither Posner nor Wilkinson can be dismissed as simpering liberal gun haters. Yet it is hard to decide which of these two conservatives jurists’ scorn was more withering. The honor probably should go to Wilkinson, who, the Weekly Standard noted, “bestows upon Scalia’s opinion the most scathing condemnation known to conservatives: comparison to Roe v. Wade.”45 The comparison has a special sting for Scalia, who was reported in 2005 to especially loathe two high-court cases: Roe and Lawrence v. Texas, a 2003 decision which declared unconstitutional a law forbidding homosexual sodomy.46
Writing in the Virginia Law Review, Judge Wilkinson pummeled the ruling in Heller as ultimately not “conservative” at all. “Heller represents a triumph for conservative lawyers. But it also represents a failure—the Court’s failure to adhere to a conservative judicial methodology in reaching its decision. In fact, Heller encourages Americans to do what conservative jurists warned for years they should not do: by-pass the ballot and seek to press their political agenda in the courts.”47 Wilkinson dismissed Scalia’s pontification as no more than a doppelgänger of Justice Harry Blackmun’s 1973 decision in Roe v. Wade,48 the ruling that declared a Constitutional right to abortion. “First, each represents a rejection of neutral principles that counseled restraint and deference to others regardless of the issues involved. Second, each represents an act of judicial aggrandizement: a transfer of power to judges from the political branches of government—and thus, ultimately, from the people themselves.”49
Judge Posner was hardly more forgiving. He criticized Scalia’s obstinately single-minded form of strict “originalist” interpretation as fakery. “Originalism without the interpretive theory that the Framers and the ratifiers of the Constitution expected the courts to use in construing constitutional provisions is faux originalism. True originalism licenses loose construction,” Posner wrote.50 This loose construction is “especially appropriate,” the jurist noted, “for interpreting a constitutional provision ratified more than two centuries ago, dealing with a subject that has been transformed in the intervening period by social and technological change, including urbanization and a revolution in warfare and weaponry.” Posner went on to observe acidly that “the Framers of the Bill of Rights could not have been thinking of the crime problem in the large crime-ridden metropolises of twenty-first-century America, and it is unlikely that they intended to freeze American government two centuries hence at their eighteenth-century level of understanding.”51
Having scorned Scalia’s “faux originalism,” Judge Posner suggested that a motivation other than originalism might explain Heller:
The true springs of the Heller decision must be sought elsewhere than in the majority’s declared commitment to originalism. The idea behind the decision . . . may simply be that turnabout is fair play. Liberal judges have used loose construction to expand constitutional prohibitions beyond any reasonable construal of original meaning; and now it is the conservatives’ turn. . . . It is possible that in both the gun control case and the campaign-finance cases the justices in the majority, rather than playing tit for tat, thought the laws they were invalidating very dumb, and in the case of the District of Columbia’s ban on possession of pistols thought the law wimpish and paternalistic, like requiring bikers to wear helmets. . . . But judges are not supposed to invalidate laws merely because, as legislators, they would have voted against them.52
The most telling part of Posner’s criticism raked over the ponderous, footnote-laden, pseudo-scholarly style of Scalia’s writing. “The range of historical references in the majority opinion is breathtaking, but it is not evidence of disinterested historical inquiry. It is evidence of the ability of well-staffed courts to produce snow jobs.” Judge Posner then went even further, declaring, “The statements that the majority opinion cited had little traction before Heller.”53
Observing this intramural fracas, an editor of the libertarian magazine Reason observed, “Perhaps Scalia has changed his mind. Or perhaps . . . Scalia only selectively practices the judicial restraint he has long preached.”54
In fact, it was no coincidence that the job of conjuring up a “snow job” on gun rights fell to Antonin Scalia and his law clerks. Scalia had his mind made up before the case arrived on the Court’s docket. In 1997, eleven years before Scalia wrote his decision in Heller, he wrote—in the same book and footnote in which he praised Joyce Lee Malcolm, the “Englishwoman” who wasn’t—exactly what he professed to discover in 2008. “It would also be strange to find in the midst of a catalog of the rights of individuals a provision securing to the states the right to maintain a designated ‘Militia,’” Scalia wrote. “Dispassionate scholarship suggests quite strongly that the right of the people to keep and bear arms meant just that. . . there is no need to deceive ourselves as to what the original Second Amendment said and meant.”55
Like the NRA, Scalia believes that the torrent of guns in America is not the real problem. “The attitude of people associating guns with nothing but crime, that is what has to be changed,” Scalia said in 2006, during his keynote address before the National Wild Turkey Federation’s annual convention at the Gaylord Opryland Hotel & Convention Center in Nashville, Tennessee. “I hope [hunting culture] can be preserved . . . the hunting culture, of course, begins with a culture that does not have a hostile attitude toward firearms.”56 The turkey hunters gave Scalia a rifle, which he valued at $600 in his 2006 annual financial disclosure report.57
Hailed by an adoring gun lobby as “the best friend gun-rights has up there,”58 Justice Scalia has long been a gun enthusiast. He served on the junior varsity rifle team at Manhattan’s Xavier High School, then a Jesuit military academy.59 He is an avid turkey hunter,60 who hunted ducks with former vice president Dick Cheney in 2004 and went on a similar venture in 2001 organized by the dean of the University of Kansas law school. He was criticized for not disqualifying himself from three separate cases, each of which arrived on the Supreme Court’s docket shortly before or after one of his hunting outings—one involving Cheney and two in which the Kansas law school dean was a lead attorney.61 Scalia has been continually dogged with criticisms about his indifference to the appearance of conflicts from early in his judicial career.62 “Since World War II, I think it’s fair to say, the extrajudicial conduct of only three justices have become significantly newsworthy in a harmful way: Fortas, Douglas, Scalia,” Stephen Gillers, who teaches judicial ethics at New York University, told the New York Times in 2004.63
There is an even more direct conflict in Scalia’s aggressive role in the Heller case. In 2007, the World Forum on the Future of Sport Shooting Activities (WFSA) gave Scalia its “Sport Shooting Ambassador Award,” along with a solid silver reproduction of a sixteenth-century pistol with its powder flask.64 He accepted the award and gave the keynote address in Nuremberg, Germany, at the forum’s annual meeting—an international equivalent of NSSF’s SHOT Show. WFSA, an international gun industry trade association, uses its annual ambassador award to improve the gun industry’s image by “making public recognition of the social contribution made by some of the many public figures who have a longstanding interest in the shooting sports.”65
There is an appearance of conflict within this appearance of conflict: Scalia was photographed at the meeting with Alan Gottlieb, who is head of the pro-gun Second Amendment Foundation.66 At the very moment of the cozy Scalia-Gottlieb “grip and grin” photo, Gottlieb’s foundation—using Alan Gura, the very lawyer who argued the Heller case before Scalia—was planning a lawsuit attacking Chicago’s gun law. That suit was filed the day after the Heller decision and was eventually decided against Chicago by the Supreme Court.67
Ironically, Gottlieb happens to be a convicted felon (sent up on federal tax charges). When Gottlieb appeared on Fox News’s The O’Reilly Factor to attack the animal rights group PETA’s tax exemption, the organization’s representative zinged the host and Gottlieb with her observation that “of your two guests tonight, there’s only one convicted felon, and that’s not me. Speaking of taxes, Alan Gottlieb went to federal prison for 10 months tax evasion. So that’s what he knows about the tax laws.”68 Gottlieb, who has been described as “a mass-mailing wizard for far-right causes,”69 and “one of the best people in the country on direct mail,”70 was appearing on The O’Reilly Factor in his persona as president of the Center for the Defense of Free Enterprise, a group he co-founded to oppose environmental regulation.71
Fund-raising wizard Gottlieb reportedly advised followers of his technique that “a direct mail letter must appeal to three base emotions: Fear, Hate and Revenge,” and must attack a “bogeyman” because “if you are not frightened, you won’t send money.”72 Gottlieb has made a good living out of his network of foundations and businesses, which collectively gross millions.73
Scalia did not report the gift of the silver pistol and powder flask in his 2007 financial disclosure form, unlike the rifle he got from his turkey-hunting friends in 2006, which he did report.74 No known public record of Scalia’s keynote remarks exists. The fact of his award has been excised from WFSA’s website.75
Scalia, however, continues to take seriously his duties as ambassador for the gun industry. After Justice Elena Kagan joined the Court, Scalia treated her to skeet-shooting lessons at his gun club, the Fairfax Rod & Gun Club.76 The same suburban Virginia club has been active in a National Shooting Sports Foundation campaign to win friends and influence people in the news media by inviting journalists to “Media Weekends” and “Media Days” to enjoy free gun instruction, firearms-related gifts, and camaraderie with gun enthusiasts.77 By way of interesting contrast, Scalia disqualified himself from a 2003 case involving the words “one nation, under God” in the Pledge of Allegiance. Although Scalia gave no reason, as is customary in such rare cases, he had been asked by one of the parties to step aside because of public remarks he had made about the specific case.78
All of this must be viewed in light of the fact that Heller was not a case that simply happened along in the natural course of things. Scalia’s pronouncement was the triumphant culmination of a well-funded campaign to overturn settled law, mounted over several decades by a network of wealthy conservatives and so-called libertarians—think tank scriveners funded by wealthy conservatives—working in close concert with the gun lobby. As pro-gun activist David Kopel crowed from a perch at the right-wing magazine Human Events, “The human rights victory in today’s Supreme Court decision in District of Columbia v. Heller could never have happened without Human Events and the other pillars of the conservative and libertarian movements.”79 And Scalia’s convicted felon friend Alan Gottlieb said—speaking of the Chicago lawsuit that his organization ginned up to follow on the heels of Heller—“We’ve had a very well-plotted-out legal strategy for years, leading up to this.”80
The “pillars” of the gun rights network that Kopel praised have followed closely the strategy of the tobacco industry. This includes “misrepresenting scientific evidence,” “attempting to directly influence government through the use of lobbying and campaign contributions,” and creating “a seemingly independent organization [that] advantaged the tobacco industry by presenting its antiregulation agenda as an expression of popular will, and allowed industry lobbyists access to policymakers who were otherwise unwilling to work with them.”81 These shadowy manipulators of opinion and power vociferously attack any form of government regulation, from guns to the environment. For example, Ron Arnold, Gottlieb’s sidekick at the Center for the Defense of Free Enterprise and founder of the “Wise Use” movement, bragged, “Our goal is to destroy, to eradicate the environmental movement.”82 The same center, again employing Heller’s counsel, Alan Gura, has attacked the Michigan Liquor Control Commission’s regulation of beer labels.83 It has also been active in campaigns against the governmental rights of Native American tribes.84
One result has been a proliferation of “think tanks,” many using patriotic sounding names, offering studies and reports opposing government regulation. Among the better known of the gun lobby’s friends in this web is The Heartland Institute, almost half of the funding for which comes from a single secret donor. Documents leaked from Heartland in 2012 revealed “how it sought to teach schoolchildren skepticism about global warming and planned other behind-the-scenes tactics using millions of dollars in donations from big corporate names.”85 This tactic of propagandizing children in the guise of education is used by the NRA in its notorious “Eddie Eagle” program, a marketing device pawned off as a “gun safety” program.86 Heartland was also exposed in a 2010 book, Merchants of Doubt, as part of a “network of right-wing foundations, the corporations that fund them, and the journalists who echo their claims” that have “created a tremendous problem for American science.”87 The institute has “extensive, continuing programs to challenge climate science.”88
But Heartland’s role in the network of wealthy interests promoting a conservative agenda goes beyond spinning the debate over global warming. “The Second Amendment and gun control have long been of concern to Heartland and its researchers. In 1995, Heartland published The Heartland Institute policy study Taking Aim at Gun Control by Daniel Polsby.” Heartland filed a “friend of the court” brief before the Supreme Court in Heller, and has filed other pro-gun briefs in other important cases, such as the attack on Chicago’s gun laws.89 David Boaz, executive vice-president of the pro-gun Cato Institute, was a keynote speaker at Heartland’s 2011 Emerging Issues Forum.90 Heartland’s complex of extreme conservative issues is wide-ranging and interactive. Its president, Joseph Bast, challenged libertarians at the 2002 annual convention of the Libertarian Party of Illinois to support education vouchers, noting that “libertarians will get nowhere with their other issues—the drug war, taxes, property rights, and gun rights—if our children are indoctrinated in the government school system to think government is the answer to all our problems.”91 The institute’s reports have been cited in the news and opinion media.92
It is not known whether Scalia has had more intimate contact with Heartland’s web of influence beyond its amicus briefs. But it is known that he and Associate Justice Clarence Thomas have enjoyed the hospitality of Koch Industries owner Charles Koch—one of two brothers, each worth over $21.5 billion—who “coordinates the funding of the conservative infrastructure of front groups, political campaigns, think tanks, media outlets and other anti-government efforts through a twice annual meeting of wealthy right-wing donors.”93 When Koch sent out invitations for his 2011 retreat, he “highlighted past appearances at the gathering of ‘notable leaders’ like Justices Antonin Scalia and Clarence Thomas of the Supreme Court.”94 Some flavor of the tone of the Koch gatherings with respect to guns and gun control may be gathered from the reported remark of Fox News personality and retired New Jersey Superior Court judge Andrew P. Napolitano at the 2011 secret meeting that the Second Amendment was created to ensure “the right to shoot at the government if it is taken over by tyrants.”95
Pro-gun former cable television star Glenn Beck and former Reagan attorney general Ed Meese are among those who have rubbed elbows at the billionaire Koch brothers’ elite gatherings. And, yes, this Glenn Beck at a secret gathering of elites is the same Glenn Beck who warned his listeners, “This game is for keeps. This is who controls the United States of America and its destiny. Is it you? Or is it a group of elites?”96 Beck has also ominously predicted gun violence as inevitable in the process of restoring freedom to America.97
Among other attendees at the Koch 2010 party were representatives of the Heritage Foundation, the American Enterprise Institute, and—quite naturally enough—the Cato Institute.98 “Naturally” because billionaire Charles Koch founded the Cato Institute in 1974 as a Kansas nonprofit corporation under the original name of The Charles Koch Foundation, Inc., which was changed to Cato Institute in 1976. Edward H. Crane, the current president of the institute, was among three other original founders.99 Since then, the Kochs have poured at least $30 million into Cato.100
The Cato connection goes directly to the Heller case, which was created and financed by Robert A. Levy, a Florida millionaire who is now chairman of Cato.
Surprising as it may seem—or not—the Heller case was not spontaneously generated by residents of the District of Columbia chafing for freedom from an oppressive gun law. On the day the Heller decision was announced, lead attorney Alan Gura claimed on CNN’s Glenn Beck show that “about six years ago, six Washington, D.C., residents and a team of lawyers working independently decided it was time to challenge Washington, D.C.’s ban on handguns and other functional firearms in the home.”101
That’s not exactly the way it happened.
The lawyers and clients did not come together “independently.” Levy—who lives in a four-thousand-square-foot condominium apartment in a gated luxury community in Florida and who has been described as “the Oz, the man behind the curtains” of Heller102—decided he wanted to take down the D.C. gun law. Levy used his money and influence to do just that. He and a friend, Clark M. Neily III, who works for a “libertarian” nonprofit law firm in Virginia, set about recruiting clients to sue the District of Columbia.103 Levy told the Washington Post in 2007 that “with Cato’s blessing,” he paid for the entire lawsuit, from beginning to end, and refused other financial aid.104 It should be noted, however, that Levy, Gura, Neily, and others who worked on the case subsequently won an award of just over $1.1 million in legal fees, to be paid by the taxpayers of the District of Columbia. The award was reduced by the deciding judge from the $3.1 million they had requested.105
Media profiles about the Heller case have tended to portray Levy as a sort of “aw, shucks” guy who just stepped in to help the poor people of the District of Columbia right an injustice. However, Levy has been an active operative at the Cato Institute since he joined its ranks in 1997, and he has authored numerous articles promoting Cato’s antiregulatory line.106 He is credited as the author of at least seventeen briefs filed with appellate courts.107 Levy likes to point out that he was born in the District. In fact, he moved into the upscale Maryland suburb of Montgomery County as a young man and has not lived in the city itself for over forty years.108
Levy and Neily were both law clerks for Judge Royce C. Lamberth, now chief judge of the U.S. District Court for the District of Columbia.109 When Levy decided to create his lawsuit, he called Neily, and the two started “recruiting a diverse group of plaintiffs.”110 In 2007, Levy described for the Washington Post how he and Neily spent months assembling the oppressed of the District.
“We wanted gender diversity,” he said. “We wanted racial diversity, economic diversity, age diversity.” The plaintiffs had to be D.C. residents who believed fervently in gun rights and wanted loaded weapons in their homes for self-defense. And they had to be respectable.
“No Looney Tunes,” Levy said. “You know, you don’t want the guy who just signed up for the militia. And no criminal records. You want law-abiding citizens.”
He and Neily worked the phones. “We called all our contacts in the legal community,” Levy said. “We looked at the newspapers: Who was writing on the subject? Who was sending letters to the editor about gun laws?” They scoured the city. “Friends lead you to other friends, and you just keep talking and talking to people, until finally you have your clients.”111
In sum, Scalia—known for his acerbic writing style and sarcastic wit112—was simply the sharp-tongued point of a well-funded ideological spear. This spear was aimed directly at the last of cases in which the Supreme Court had considered the meaning of the Second Amendment, United States v. Miller.113
The Supreme Court in Miller, decided in 1939, reaffirmed what is known as the “collective rights” model of interpretation of the Second Amendment. Simply put, the Second Amendment “grants the people a collective right to an armed militia, as opposed to an individual right to keep and bear arms for one’s own purposes outside of, or even notwithstanding, government regulation.”114 It was not only the courts that uniformly accepted this view of the Second Amendment. So did legal scholars. In fact, from 1887 (when indexing began) until 1960, not a single law review article advocated the “individual right” interpretation that Scalia found in the Constitution.115
Thwarted by the uniform view of the courts against unrestrained individual access by anyone, anywhere, anytime, to guns of any sort, the network of gun rights advocates turned their focus to one of the most peculiar and little-known institutions by which law is made in the United States—law review articles. Astonishing as it may seem to most ordinary Americans, these student-run journals supply an infinite variety of legalistic flakes for lawyers, judges, and their clerks bent on producing “snow jobs.” By citing such articles as authority for their position on an issue, the authors can cloak their naked manufacture of law—or, as in Scalia’s opinion, reversal of settled law—in an aura of “scholarship.”
Robert J. Spitzer, a professor of political science, examined this phenomenon in the specific context of manufactured Second Amendment scholarship and observed:
The discipline of law is unique among academic disciplines in that its professional journals are governed mostly by student-run law review boards, and with few exceptions, submissions are not subject to the process of peer review, or even faculty oversight. The consequences of these facts for law review content have been extensively discussed and debated within the law school community . . . law review student editors simply do not possess, and cannot be expected to possess, the knowledge and expertise of those who have researched and published in a field . . . there is a proliferation, even a glut of law reviews—more than 800 by one count. Given such a huge publishing hole, these characteristics have increasingly produced a contrary editorial drive to publish articles for their distinctiveness rather than their scholarly soundness.116
It was into this “huge publishing hole” that pro-gun activists rushed, many of them former employees of or longtime collaborators with the NRA. “Contrarian positions get play,” law professor Carl T. Bogus observed in another article on the same subject. Seeded in some cases by an NRA foundation that “began distributing large sums to friendly scholars” (one such scholar raked in $38,569.45 in 1991 and 1992 alone), a flurry of articles friendly to the individual rights view began to appear.117 On the day after the decision was handed down, a Cato Institute blogger posted breathless “congrats to Eugene Volokh (of the Volokh Conspiracy blog) who had three of his law review articles cited in the majority opinion.” The Russian-born Volokh is a relentlessly pro-gun blogger.118
Without descending into that thicket of argumentative “scholarship,” one can assess the consequences in Heller, and thus for American gun violence, through the critical lens of Judge Posner’s observation that Scalia was “engaged in what is derisively referred to—the derision is richly deserved—as ‘law office history’ ”:
[J]udges are advocates for whichever side of the case they have decided to vote for. The judge sends his law clerks scurrying to the library and to the Web for bits and pieces of historical documentation. When the clerks are the numerous and able clerks of Supreme Court justices, enjoying the assistance of the capable staffs of the Supreme Court library and the Library of Congress, and when dozens and sometimes hundreds of amicus curiae briefs have been filed, many bulked out with the fruits of their authors’ own law-office historiography, it is a simple matter, especially for a skillful rhetorician such as Scalia, to write a plausible historical defense of his position. . . . This is strikingly shown by the lengthy discussion of the history of interpretation of the Second Amendment. Scalia quotes a number of statements to the effect that the amendment guarantees a personal right to possess guns—but they are statements by lawyers or other advocates, including legislators and judges and law professors all tendentiously dabbling in history, rather than by disinterested historians: more law-office history, in other words.119
Heller was, then, a snow job produced from the flakes of dabblers in history, created and underwritten by a wealthy philosopher-king from the throne of his Florida condominium, with a cast of thousands from right-wing front groups, the NRA, the gun lobby, the gun industry, and paid-for scholars. Almost as disturbing as Scalia’s ruling itself was its endorsement by some gun violence prevention advocates, who naively believed that the gun lobby would fold its tents and go away after their victory. One local activist enthused, “Actually, the Supreme Court’s ruling last year was one of the best things to happen to the gun-control movement. . . that slippery-slope argument, that any new gun law is just another step towards taking all guns away, is dead.”120
But that is not at all what Heller wrought. The decision has emboldened gun enthusiasts to attack gun control regulation all over America. One manufacturer, Beretta, donated a million dollars to the NRA for work on overturning gun control laws in the wake of Heller.121 As of June 1, 2012, state and local governments were litigating forty-four significant civil lawsuits challenging various firearms laws under the Second Amendment. The lawsuits challenged a variety of gun control laws, including those regulating the carrying of concealed weapons, registration laws, bans on unsafe handguns and assault weapons, and safe-storage laws. There were also seven significant lawsuits pending against the federal government. Challenges have also been raised in a variety of criminal cases. These civil and criminal challenges have been largely unsuccessful at this writing, as even after Heller “courts have found that the Second Amendment is consistent with numerous federal and state criminal laws.”122 Nevertheless, the law after Heller is in flux, and some courts have ruled against strong gun laws. In March 2012, for example, a federal judge struck down a Maryland law requiring that persons wishing to carry a handgun outside their home must show “good and substantial reason.” One of the lawyers in the case was Alan Gura—the same lawyer who brought down the District Of Columbia’s gun law at Robert Levy’s bidding, and who works closely with the gun advocate and anti-environmentalist Alan Gottlieb.123
Like Scalia in Heller, the gun lobby, its captive “gun press,” and pro-gun policymakers aggressively tout “self-defense” as an important reason not only to allow but to encourage widespread ownership of firearms, and handguns in particular. This “common sense” argument appeals to the uninformed, not only as a reason to buy a handgun but also as a rationale for letting others own them. The argument actually turns the objective evidence on its head. Serious research by public health scholars—detailed in subsequent chapters—has demonstrated over and over that in virtually every civilian situation, the presence of firearms, particularly handguns, does not make people safer—it puts them in greater danger. David Hemenway, director of the Harvard Injury Control Research Center, has summarized this evidence:
Within the United States, a wide array of empirical evidence indicates that more guns in a community lead to more homicide. Studies also indicate that a gun in the home increases the risk of murder for family members. Since a gun in the home tends to also increase the risk of suicide and unintentional firearm injury, many public health practitioners emphasize the dangers of bringing a gun into the home, particularly if children are present.124
This is the core of the public health and safety approach to guns—an approach of which the eighteenth century was ignorant. It has saved millions of lives in other contexts, such as motor vehicle safety, disease, and consumer products. In this context, it is worth noting that a reviewer of one of Scalia’s books observed that although in his opinion Scalia is brilliant, “he seems unaware of, or indifferent to, the real-world consequences of what he proposes.”125
In contrast, the key question the public health and safety approach asks of any consumer product is all about real world consequences—what are the product’s relative risks and benefits? If a product inflicts unreasonable harm, the inquiry then is whether the cause of harm is a defect in design or some factor inherent in the nature of the product. If the source of harm is a design defect, like a motor vehicle with a tendency to roll over on curves, it may be possible to correct the design. Some products, however, like highly toxic pesticides, are so inherently dangerous that no amount of design modification can make them reasonably safe. In such cases, the product may either be restricted to specific persons or banned outright.126
Unlike traditional “gun control” advocates who focus on criminal use of firearms, public health and safety experts look at physical causes of death and injury and seek ways to reduce the effects by modifying the physical causes. Thus, when people being hurled out of or through the windshields of cars was demonstrated to be a factor in motor-vehicle deaths and injuries, these experts advocated seatbelts and other restraints as effective means to reduce harm.
To such experts, the fact that an implement as lethal as a handgun has become ubiquitous and can be concealed and carried around becomes a significant risk factor. It plainly makes it much more likely that a human being will be killed or seriously injured in circumstances where, without the presence of a handgun, only bruised egos or minor injuries would occur. “A lighted match can certainly start a fire, but the potential for serious injury or death is much greater if you toss in a bucket of gasoline,” wrote public health expert Dr. Arthur L. Kellermann. “Likewise, violence can certainly cause harm, but the potential for serious injury or death is increased when a firearm is involved.”127
The public health and safety approach has become a well-established and highly effective way to reduce deaths and injuries from virtually every consumer product other than guns, including motor vehicles, toys, and power tools (among thousands of other products). But because the firearms industry is specifically exempted from the federal Consumer Product Safety Act, handguns have escaped the sort of close scrutiny to which every other consumer product in America is subject.
So what about Justice Scalia’s homage to the handgun? In the absence of any citation, it is hard to know exactly whence he divined his statement that “the American people have considered the handgun to be the quintessential self-defense weapon.” Surveys over time of households in five counties around Atlanta, Georgia, found that “a majority of respondents to all three surveys (55%) agreed with the statement A home with a gun is less secure than a home without a gun, because a gun can be involved in an accidental shooting, suicide or family homicide.’ Among five home security measures, respondents rated a burglar alarm most effective and keeping a gun in the home least effective.”128
The great majority of Americans do not own even a single gun, much less rely upon a handgun for “personal defense.” An ongoing, long-term survey of gun ownership in America has found a “clear pattern” over the past several decades of a “persistent decline in household gun ownership.”129 From 1977 to 2010, the percentage of American households that reported having any guns in the home dropped more than 40 percent. In 2010, less than a third of American households reported having a gun in the home. In 2010, slightly more than one out of five Americans reported personally owning a gun.130 Guns are “most likely to be owned by white men who live in a [sic] rural areas, those who are middle-aged or older, with a middle to higher income, who grew up with guns in the home and who live in the southern or mid-western regions of the country.”131 Moreover, fewer and fewer people are owning more and more guns. Gun owners reported an average of 6.9 guns per owner compared with 4.1 reported in 1994.132 SAF’s Alan Gottlieb—who used a loophole in federal law to restore his gun rights as a convicted felon—owns at least sixty guns.133 In other words, the vast majority of Americans, who do not own or want guns, are put at risk every day so that a shrinking minority of “enthusiasts” can indulge their fascination with little killing machines. Quite literally, gun ownership is an aberration.
Moreover—putting aside the self-interested marketing hype of the gun industry—there is far from universal agreement, even among pro-gun experts, that the handgun is the “quintessential self-defense weapon” that Scalia imagined in his opinion would be used against a bogeyman burglar.
Duane Thomas, for example, wrote in his pro-handgun book that “the only thing handguns really have going for them as weapons is their small size.”134 Another pro-gun expert and author, Chris Bird, wrote in a manual intended for people who wish to carry a concealed handgun that the handgun “is the least-effective firearm for self defense.” Unless one is at arm’s length, he opined, “shotguns and rifles are much more effective.” He also noted that the “handgun is the hardest firearm to shoot accurately.”135
What is more likely than Justice Scalia’s ipse dixit—and Robert Levy’s kingly decree from a gated community in Florida to the citizenry of the District of Columbia—is that the American people understand quite well that a gun in the home increases the risk of homicide, suicide, and unintentional (accidental) injury.
The next chapter shows how the brunt of the gun industry’s marketing falls particularly hard on women and children.