September 22, 2003, 12:55 p.m.
Secret Weapon
Some 2nd Amendment lawyers help the gun-ban side.

By Dave Kopel

EDITOR'S NOTE: This article is the first of two parts on Second Amendment litigation.

The gun-prohibition lobbies have what amounts to a secret weapon. Even better, from the point of view of the gun-prohibition lobbies, this secret weapon is entirely funded by naïve gun owners.

This secret weapon is the attorneys who mount ill-considered constitutional challenges to gun laws, setting up gun rights to lose quickly, rather than to win with deliberation. Perhaps the most infamous of these cases was Quillici v. Morton Grove, although the harm done by that case may eventually be overshadowed by a current case in California, Silveira v. Lockyer.

In 1981, the Chicago suburb of Morton Grove banned handguns. Prospects for a state-court legal challenge to the prohibition ordinance appeared good; the Illinois constitution had been rewritten in 1970, and had added an explicit individual right to keep and bear arms. Even better, the Illinois constitutional-convention debate had raised the issue of handgun prohibition, and the convention's affirmative vote for the constitutional right was a rejection of the argument that handgun prohibition should be allowed.

Prospects for a federal court legal challenge to the handgun prohibition were terrible. In the 1980 U.S. Supreme Court case United States v. Lewis, the Court came close to stating that the Second Amendment is not an individual right, in a footnote written by Justice Harry Blackmun. Now in the decades before Lewis, there were many Supreme Court cases recognizing the Second Amendment as an individual right, and there have been several such cases since 1990. But as of 1981, Lewis was the Court's last word on the subject, and the Court was, at best, indifferent to Second Amendment rights.

So the National Rifle Association and the Second Amendment Foundation both began making plans for a lawsuit challenging the handgun ban under the Illinois constitution.

But the NRA and SAF were beaten into court by a lawyer determined to make a name for himself, by being the named party and the lead counsel in the case: Victor D. Quilici. The day after the ordinance was enacted, Quilici filed a case in the Cook county circuit court. Besides raising Illinois constitutional issues, he raised claims under the Second and Fourteenth Amendments of the U.S. Constitution.

Because Quilici's claim involved federal issues, the lawyers for Morton Grove were able to file a motion to have the case removed to federal court. The NRA asked Quilici to dismiss the federal claims from his case, so the case could go back to state court. He refused.

A large coalition of state attorneys general petitioned the federal judge to hold the case in abeyance, and not to interpret the Illinois constitution. Rather, said the attorneys general, the federal court should wait until Illinois courts had an opportunity to interpret the Illinois constitution.

Federal courts often show such deference to state courts on matters of state law. The antigun federal district judge, however, apparently recognized a golden opportunity. He proceeded expeditiously with the case of Quilici v. Morton Grove. Soon, he issued a ruling holding that the Illinois constitution right to arms did not forbid banning handguns, and that the federal Second Amendment did not prevent any type of gun ban.

The decision was affirmed 2-1 by a Seventh Circuit panel. Judge Bauer wrote the majority opinion, in which he stated that the original intent and history of the Second and Fourteenth Amendment was irrelevant. Seven weeks before oral argument, Bauer had appeared on the Miller's Court television show, and said that he thought an ordinance banning all firearms would be constitutional. Despite this obvious bias, Judge Bauer refused to recuse himself from the case.

Fortunately, the U.S. Supreme Court did not grant certiorari in the case, for the Second Amendment probably would have lost if the Court had taken the case. We would then be stuck with an explicit anti-rights holding — given the signal that the Court sent in Lewis. That holding would have negated the numerous earlier cases in which the Court recognized an individual Second Amendment right (usually in cases in which the Second Amendment was invoked in order to make a point about something else). And a Supreme Court decision in Quilici would have made it much more difficult for the justices to produce the half-dozen opinions since 1990 which also treat the right to arms as an individual right. (Again, these opinions arise in cases not directly involving the Second Amendment.)

Thanks to Victor Quilici, the Illinois state courts sat on the sidelines while his vanity litigation proceeded in federal court. Not until 1984 did a Morton Grove case reach the Illinois supreme Court. There, in Kalodimos v. Village of Morton Grove, the handgun ban was upheld in a 4-3 decision. Richard Gardiner, who was a NRA in-house attorney in the Morton Grove cases, believes that the Illinois result might have been different if the state case had gone first. The federal case generated enormous publicity — even the cert. denial was a major national news story. The federal case also generated two opinions (federal district court and federal appellate court) ruling that the Illinois constitution allowed handgun bans.

Gardiner suggests that the if Illinois supreme court had been hearing the handgun ban issue de novo, there would have been at least one additional judge with the nerve to vote against the handgun ban. But the fact is, it's one thing for a state judge to vote that a city council has violated the constitution; it's another thing for a state judge to vote that two federal courts, including the federal courts of appeals in his state, are wrong on a matter of constitutional law — especially in a highly publicized case, in which the public already thinks that the issue has been settled by the federal rulings.

The gun prohibition advocates could not have gotten the Morton Grove case into federal court first. That disaster was only possible because of a "pro-gun" lawyer who ended up being a great blessing to the gun prohibition lobby.

In a bizarre final twist, a Quilici case made one more appearance in the Seventh Circuit. The Second Amendment Foundation newsletter, The Weekly Bullet, reporting on the oral argument in the Seventh Circuit, called Quilici's presentation "rambling and often pointless." Although SAF later published an article claiming full faith in Mr. Quilici, he sued SAF for $15 million dollars for libel. His case was dismissed by the trial court, and the Seventh Circuit affirmed, explaining that The Weekly Bullet's comments were obviously a matter of opinion, and not libelous. Quilici v. Second Amendment Foundation, 769 F.2d 414 (7th Cir., 1985).

Robert Cottrol, a professor of law and history at George Washington University, is author of several law review articles on the Second Amendment, editor of the three-volume book Gun Control and the Constitution, and coauthor of the new book Brown versus Board of Education: Caste, Culture, and the Constitution. He strongly supports the Second Amendment as a fundamental human right, particularly for racial minorities who are persecuted by racist government, or who are denied effective police protection. Cottrol argues that the pro-right model for gun-rights litigation "should be the NAACP(s highly successful litigation strategy in Brown v. Board of Education. The NAACP took the time to:

1) raise the legal foundation by bringing the appropriate case; 2) get the precise circumstances and plaintiffs to get best posture before the court; and 3) wait until they had the right court."

Cottrol explains that Thurgood Marshall, the NAACP's lead counsel, used the group's influence to prevent plaintiffs from bringing risky or poorly postured anti-segregation lawsuits. Marshall personally felt that many of the plaintiffs had legitimate grievances. But Marshall knew that the courts would likely rule against these plaintiffs, and that the pro-segregation decisions would make it much harder to win cases in the future.

So for, example, the first challenges to school segregation focused on cases in which the state was not even obeying the "separate but equal" standard of Plessy v. Ferguson, and in which the emotional impact of the case was low, from the segregationist viewpoint.

In 1938, the NAACP successfully challenged Missouri's whites-only policy for the state law school. There being only a single state law school in the entire state, at the University of Missouri, the Missouri government could not defend the whites-only school as compatible with separate-but-equal. The Court ruled that segregation was not illegal; rather, the state was required to provide blacks with a "substantially" equal law school, and if not, blacks had to be admitted to the whites-only law school. Missouri ex rel. Gaines v. Canada, 305 U.S. 337 (1938).

At the time, almost all law students were male. And the prospect of black male law students sitting in the same classroom as white male law students was a lot less threatening to most pro-segregation whites than was the prospect of a black male 8th grader sitting in a desk next to a white female eighth grader.

The NAACP legal strategy moved forward methodically and successfully. Wins in the easier cases were then used as a foundation for winning the more-difficult cases. In 1950, the NAACP won cases holding that Oklahoma's law school, which admitted blacks, could not even segregate the dining hall. McLaurin v. Oklahoma State Regents for Higher Education, 339 U.S. 637 (1950). The Court also ruled that even if facilities such as the law library in Texas' black-only law school were equal to those in the white schools, black law students were denied equal protection because they could not meet white students and make professional connections with them. Sweatt v. Painter, 339 U.S. 629(1950).

The 1950 Texas decision was contrary to the 1938 Missouri case, which had affirmed that segregated law-school education was constitutional. The Texas and Oklahoma cases, based on the principle that segregation was a harm in itself, paved the way for Brown v. Board of Education, 347 U.S. 483 (1954). Notably, the 1950 law school cases raised the segregation-is-harm issue in a context in which it was easy for judges to see how segregation was harmful, because judges (being experienced lawyers), understand how important law school connections are to a young lawyer's career.

Tomorrow, we'll take a look at the Second Amendment case which is being litigated contrary to the successful strategy used by the NAACP, and which may devastate Second Amendment rights: Silveira v. Lockyer.

— Dave Kopel is co-author of Supreme Court Gun Cases.