The Last Gun (8 page)

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