Interest Groups and the Right to Keep and Bear Arms

Paul M. Collins, Jr. is Assistant Professor of Political Science at the University of North Texas. He is author of Friends of the Supreme Court: Interest Groups and Judicial Decision Making. In this article, Collins discusses interest group participation in the recently decided U.S. Supreme Court case District of Columbia v. Heller and the future of Second Amendment litigation.

It is fair to say that one or two cases decided by the U.S. Supreme Court stand out each term. I think it is evident that this term’s most salient case is District of Columbia v. Heller. In that 5-4 decision, the Court struck down the District of Columbia’s ban on the possession of privately owned handguns within District limits. In so doing, the Court clarified the meaning of the Second Amendment for the first time in almost 70 years by endorsing an individual right to keep and bear arms.

Aside from its significance in partially resolving the meaning of the Second Amendment, this case is notable as a means to illustrate the role of interest groups in the courts. Like many seminal constitutional decisions, such as Brown v. Board of Education and Roe v. Wade, the Heller decision originated as a test case. Test cases operate as a type of quid-pro-quo. An interest group uses the case in an attempt to etch its policy preferences into law. In exchange, the group finances the case for the litigant named in the suit by providing that litigant with attorneys, performing legal research, and paying court fees. Robert Levy of the Cato Institute, a libertarian think tank, began the case in an attempt to get the Supreme Court to clarify the meaning of the Second Amendment. Dick Heller was handpicked by Levy as an ideal litigant: Heller was a security guard who carried a gun at work, but could not possess his handgun at home as a means of self defense. The idea was that Heller, as a law abiding citizen with a connection to the law enforcement community, would be a sympathetic figure in the eyes of the courts. Evidently, this was a good choice as the Court ruled in favor of Heller in nullifying the District of Columbia’s ban on the private possession of handguns.

In addition to providing an excellent example of a test case, the Heller decision is also significant for understanding the primary method of interest group litigation: the amicus curiae (“friend of the court”) brief. These briefs provide a means for organized interests to furnish the courts with legal argumentation in an attempt to persuade the justices to accept their interpretations of the law. A total of 67 amicus briefs were filed from a wide variety of interests, ranging from academics to civil rights and liberties organizations to gun advocacy groups. These amici illustrated the reality that the Supreme Court is a public policy battleground in which organized interests clash in their attempts to manipulate the law to further their own agendas. The interest groups highlighted to the justices the broad policy significance of the case, discussing a wide assortment of issues, including matters of children’s safety, racial discrimination, and federalism, in addition to their primary focus on the Second Amendment. While most of the amicus briefs focused on the legal and historical interpretation of the right to keep and bear arms, several amicus briefs provided the Court with social scientific evidence, reading more like statistical analyses than standard legal briefs.

47 amicus briefs were filed supporting Heller, representing a wide assortment of organizations, including the Congress of Racial Equality, Disabled Veterans for Self Defense, the Foundation for Free Expression, and the National Rifle Association. 20 amicus briefs supported the District of Columbia’s ban on handguns, including the American Academy of Pediatrics, the American Bar Association, the NAACP Legal Defense and Education Fund, and National Network to End Domestic Violence. These amicus briefs appeared to influence the justices’ decision making. Indeed, the Court’s majority and dissenting opinions cited more than 15 separate amicus briefs and Justice Breyer was particularly attentive to the arguments raised by the amici. Although the number of amicus briefs supporting a particular litigant is not necessarily determinative of the outcome of cases, the Court nonetheless tends to side with the litigant supported by the largest number of briefs, consistent with the Heller decision.

A particularly important point is what the Supreme Court did not do in the case. That is, the Court did not address the issue of incorporation: whether the Second Amendment applies to the states. While the Bill of Rights was originally intended to protect individuals from the actions of the federal government, over time the Supreme Court has extended most, but not all, provisions in the Bill of Rights to the states. However, in Heller, the court did not extend the Second Amendment to the states. What this means in practice is that we will see a surge of Second Amendment cases percolate throughout the federal court system for decades to come. To be sure, most of these cases will be brought by interest groups seeking to both incorporate the Second Amendment and have the courts clarify exactly what restrictions on the right to keep and bear arms are permissible under the Constitution. Thus, Heller should be viewed as a starting point for the contemporary understanding of the Second Amendment, rather than the final word on the subject.