Carefully Plotted Course Propels Gun Case to Top
By ADAM LIPTAK
Published: December 3, 2007
Robert A. Levy, a rich libertarian lawyer who has never owned a gun, helped create and single-handedly financed the case that may finally resolve the meaning of the Second Amendment.
Robert A. Levy, not especially interested in guns, is deeply focused on individual rights.
Parker v. District of Columbia (U.S. Court of Appeals for the District of Columbia Circuit, March 9, 2007)
Two weeks ago, the Supreme Court agreed to hear the case, District of Columbia v. Heller. Persuading the court to take its first look at the scope of the right to bear arms in almost 70 years is the culmination of a meticulous litigation strategy that was consciously modeled on the civil rights era and strenuously opposed by the gun lobby.
“This is far bigger than — I won’t say than we ever imagined,” Mr. Levy said over coffee in a conference room at the Cardozo Law School in New York. “But it is as big as it can get.”
Mr. Levy, 66, is a small man with a bald head, big ears and an impish smile. He talks very fast, but he is methodical in his logic and disarming in his candor. He was in town for a series of lectures and debates, and he explained how he and two other lawyers had constructed the case, which challenges Washington’s ban on handgun ownership, one of the strictest gun laws in the nation.
They started by interviewing dozens of potential plaintiffs in Washington.
“We wanted gender diversity,” Mr. Levy said. “We wanted racial diversity. We wanted age diversity. We wanted income diversity.”
The lawyers picked three men and three women, four white and two black. “They ranged in age from 20s to 60s,” Mr. Levy said, “with varying incomes and varying occupations.”
The appeals court knocked five plaintiffs out of the case in March, saying they did not have standing to sue because they had never tried to register a gun.
Mr. Levy called that ruling a Catch-22. “If you want to apply for a license or permit for a handgun, you have to prove ownership of a handgun,” he said. “Where do you get one? You can’t buy a handgun in Washington, D.C., and federal law says you can’t buy a handgun in any state except where you reside.”
Mr. Levy said his team had anticipated the issue. The remaining plaintiff, Dick Anthony Heller, a security officer, was turned down by the Washington police when he tried to register a pistol he had bought while living elsewhere.
Along with carefully selecting the plaintiffs, the lawyers working with Mr. Levy shaped their case in a second way, consciously keeping their distance from some groups that support gun rights.
“We didn’t want this case pictured as another case sponsored by the usual suspects, which is to say the gun community,” Mr. Levy said. “Basically we wanted this to be a grass-roots public interest case, so I decided to fund it.”
He would not say how much he had spent.
“If you were paying market rates for a case that has been around almost five years, you’d be getting up to half a million bucks,” he said. “I haven’t spent anything near that. Not even in the ballpark.”
Mr. Levy and his colleagues, Alan Gura and Clark M. Neily III, have worked hard to make what they say are modest claims. They said they were inspired by the work of Thurgood Marshall, who masterminded the litigation campaign against racially segregated schools.
“We didn’t want to be going to the court with a radical case,” Mr. Levy said. “All we are asking is to let law-abiding residents of the District of Columbia possess functional firearms to defend themselves where they live and sleep.”
Mr. Levy, who said he is “not particularly interested in guns,” pursued the case to vindicate his libertarian principles.
“Free markets,” he said, ticking off his basic beliefs. “Private property. Individual rights. And most of all, strictly limited government in accordance with the constitutional structure the framers established.”
The road to the Supreme Court has been a bumpy one, Mr. Levy said, thanks mostly to the National Rifle Association.
“The N.R.A.’s interference in this process set us back and almost killed the case,” he said. “It was a very acrimonious relationship.”
“Their thinking was,” Mr. Levy said, “‘good case, might win in the appellate court but it could be a problem if it reaches the Supreme Court.’”
Wayne LaPierre, the N.R.A.’s chief executive officer, largely confirmed that characterization. “There was a real dispute on our side among the constitutional scholars about whether there was a majority of justices on the Supreme Court who would support the Constitution as written,” Mr. LaPierre said.
Both men said the N.R.A. and Mr. Levy’s team were now on good terms.
Mr. Levy came to the law late in life, after making a fortune in money management. He entered George Mason University’s law school in 1991 at 49, and he exited as the class valedictorian. He went on to two prestigious clerkships with federal judges in Washington.
“The marshals at the D.C. court couldn’t imagine that somebody as old as I was, was clerk, and so they always referred to me as, ‘Good morning, Your Honor,’” he said. “And I never disabused them of that notion, so I was treated royally in the corridors. It wasn’t until I got up to chambers that I was treated like a clerk.”
In the judges’ chambers, things were different, but Mr. Levy said that did not bother him. “I’ve always been a sort of street guy,” he said. “It’s never a big deal that I have a lot of money and someone says, ‘Go fill the water jug.’ I go fill the water jug.”