This article originally appeared on The Trace.
Two days after the death of Supreme Court Justice Antonin Scalia, with Washington in the grip of a debate over his replacement, Senator Ted Cruz of Texas told a South Carolina crowd that he intended to ramp up a centerpiece of his presidential campaign: his work as a lawyer protecting the Second Amendment. Hammering home the fragility of "Justice Scalia's most significant opinion," the 5–4 ruling in District of Columbia v. Heller, Cruz painted the threat in dire terms. "We are one justice away from the Supreme Court effectively writing the Second Amendment out of the Bill of Rights," he told his audience.
From his campaign memoir to his standard stump speech, Cruz has repeatedly trumpeted his record as an avid defender of gun rights, especially his role on the winning side of the 2008 Heller decision. He even goes so far as to taunt his rivals with his Second Amendment credentials. In a speech last April at the National Rifle Association's annual convention, he said, "You say you believe these principles? Show me. When have you stood up and fought for them? When have you bled for them? And what have you accomplished?"
There's no doubt that Cruz's gun-law résumé is without peer in this year's field. Indeed, among the many lawyers who have ever run for president, Cruz is uniquely well-credentialed, with nine Supreme Court oral arguments to his credit and analytical and rhetorical skills that, from his earliest days as a lawyer, were "simply amazing" and "off the chart," in the words of his first employer.
But a closer look at the accomplishments Cruz claims for himself reveals a sort of Second Amendment Zelig, a gun-rights advocate who somehow manages to surface in key legal contests but is hardly a driving force. Strip away the artful exaggeration of the roles he played in particular cases, peer inside the mechanics of what he actually did, and Cruz the uncompromising super lawyer starts to look more like a marginal player with a forgotten pragmatic streak.
For a future gun-rights crusader and politically ambitious conservative, Cruz's early career path could not have been more promising. He hit the job market in 1997 armed with degrees from Princeton and Harvard Law School and glowing recommendations from the two judges he had clerked for: Michael Wittig, a conservative luminary of the Fourth US Circuit Court of Appeals, and then-Chief Justice of the Supreme Court William Rehnquist.
Cruz landed at a small but elite Washington DC firm recently founded by Chuck Cooper, a former Department of Justice official under Ronald Reagan. Cooper and his partners made Cruz their first outside hire. The young lawyer was brought on to help with a growing caseload that included work for a marquee client, the National Rifle Association.
"Ted took a bit of a flier with us," recalls one of the firm's founders, Mike Carvin, another Regan-era Department of Justice vet. "He could have gone to a bigger, more established firm. But I think he was attracted to us because, while small, we were doing cutting-edge litigation, and interesting constitutional and public policy work."
When Cruz tells the story of his role in the landmark Second Amendment case known as Heller, he leaves ample room for listeners to assume he was one of the principle lawyers in the Supreme Court victory. His actual role, as author of one of 70 friend of the court briefs, had little known effect on the outcome.
During his two years as a junior associate, Cruz worked closely under Cooper on the firm's NRA cases, only one of which stands out in Cooper's mind: defending the gun lobby's then-president, the tough-talking Marion Hammer, in a relatively minor lawsuit in Texas arising from a power struggle within the NRA.
"There really wasn't much Second Amendment litigation" back then, Cooper says, even though advocacy and scholarly circles for years had been buzzing with competing interpretations of the Second Amendment. Cooper's firm passed on one of that era's major gun-law fights, defending the firearms industry against negligence suits filed by cities across the country. For the most part, Cruz cut his teeth as a litigator on a range of commercial trials and appeals, plus one of Carvin's juicy political cases, the firm's representation of future House Speaker John Boehner in a lawsuit over leaked phone calls.
Before leaving the firm to work on George W. Bush's presidential campaign—where in 2000 he recruited Carvin to play a key role in Bush v. Gore—Cruz got his introduction to Second Amendment work through a bit part in a momentous case.
At first glance, US v. Emerson didn't look particularly significant. Amid a nasty divorce in remote San Angelo, Texas, a local doctor got slapped with a restraining order for what his wife said were threats against her boyfriend. When Emerson was caught carrying a pistol, federal prosecutors charged him with violating what was, at the time, a relatively new law making it a crime for a domestic abuser to possess a firearm.
The federal judge hearing the case dismissed the charges, citing Emerson's Second Amendment rights. The ruling struck the gun-rights world like a thunderclap. "Emerson snuck up on everybody," Cooper says.
With Cruz in tow, Cooper jumped into the case to file an amicus brief to the Fifth Circuit, where the government had appealed. Cruz, a junior member of the team Cooper assembled on the brief, had departed for the Bush campaign before it was finished and filed. But while still at the firm, he was at the table as his mentor sought to craft an escape hatch that could avoid a bigger Second Amendment showdown.
In the final draft of the brief Cooper filed, he gives a nod to the case's "largely uncharted constitutional territory." Then he urges the court to "avoid adjudication of an extremely serious constitutional issue." Instead, Cooper wrote, the court should rule for Emerson on grounds that the judge misinterpreted the federal statute.
Today, Cooper explains why he wanted the appeals court to duck a direct ruling on Emerson's Second Amendment protections. The case, he said, posed "a clear and present danger to what we cared about." Specifically, it risked making an unattractive character like Emerson the poster boy for gun freedoms—or, even worse, inviting an adverse ruling because of the court's distaste for Emerson's behavior.
The Fifth Circuit, however, didn't appear to consider Cooper's brief. In its 2001 ruling, the appeals court broke with precedent, issuing a sweeping endorsement of the Second Amendment as a protector of individual rights even as it overturned the lower court's ruling, saying that the federal statute didn't violate the Constitution. The Supreme Court refused to hear the appeal, but the gun-rights legal world heard the call. Pro-gun lawyers began organizing more challenges, eventually culminating in Heller.
Today, Cooper is happy to cite the case as "a pivotal event in Second Amendment jurisprudence" that "ultimately became the guts of Scalia's Heller decision." He also rejects the notion that Cruz's original schooling in gun law—learning the art of strategic compromise—poses a contradiction with his 2016 campaign pronouncements. The "patient, long-view" strategy, Cooper says, was always meant to serve the ultimate objective of winning a Supreme Court guarantee of individual Second Amendment rights.
When Cruz tells the story of his role in Heller, he leaves ample room for listeners to assume he was one of the principle lawyers in the case, punctuating each telling of the story with his punchline: "We won a landmark 5–4 victory."
His actual role, as author of one of 70 amicus curiae briefs in the case, had little known effect on the outcome—except, perhaps, in urging a pragmatic course, one that clashes with his gun positions today.
Cruz's Heller brief included a set of caveats, such as maintaining reasonable gun regulations already in place. Though he sounds today like a Second Amendment absolutist when reacting to any proposed gun legislation, "That's not the person who wrote the brief in the Heller case," says one longtime watcher of Cruz's career.
The brief that Cruz took the lead in writing attracted support from 31 state attorneys general. It urged what the plaintiff's lawyers and many other amicus briefs did in the case: an unambiguous ruling by the high court for the first time that the Second Amendment protects an individual's right to keep and bear arms.
But Cruz's brief also included a set of caveats. The states that signed onto the brief, he wrote, "have a strong interest in maintaining the many state gun laws" and "reasonable regulations" already in place, which the brief helpfully listed in a lengthy appendix. Scalia's majority opinion seemed to take the hint when it declared, "nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms."
It's those open-ended exceptions to the amendment's protections that have produced a string of defeats in challenges to gun laws brought since then.
That's not the legacy Cruz has painted when, for example, he told a Gun Owners of America teleconference last year that his Second Amendment advocacy springs from a Reaganesque aversion to policies in the "mushy middle." And it's not the message the public likely hears today, either, says an Austin, Texas, gun-safety advocate who has watched Cruz's career for years. Though Cruz sounds like a Second Amendment absolutist when reacting to any proposed gun legislation, says Ed Scruggs of Texas Gun Sense, "That's not the person who wrote the brief in the Heller case."
Whether the brief ultimately influenced Scalia's majority opinion may never be known, at least until his or his fellow justices' private papers come to light. UCLA constitutional law professor Adam Winkler—himself the author of a Heller amicus brief—expressed doubts in his book Gunfight, a history of the Heller case: "Most amicus briefs are notable mainly for their lack of influence on the outcome of the dispute," he wrote. The only notation in the decision citing Cruz's brief is in a footnote simply listing it alongside the many dozen others.
The two lead lawyers for the District of Columbia in the case, Walter Dellinger and Tom Goldstein, say they have no idea if the brief mattered. "I don't have any particular memory of the states' brief," Dellinger wrote in an email. Alan Gura, the winning lawyer, did not respond to messages.
Winkler, while chuckling over Cruz's efforts to claim credit for the victory ("Heller has many fathers," he notes), today takes a more charitable view of the Cruz brief's possible impact. "I think a brief like that can send the court a helpful signal," he said.
But one such signal in Cruz's brief—reassurance from a majority of state law enforcement agencies that if the court were to void the District of Columbia's gun ban on Second Amendment grounds, it would not throw out all gun regulations everywhere—was precisely the kind of compromise that the Cruz of today shuns.
When Cruz ran for the U.S. Senate in 2012, he found it strategically imperative to move to his opponent's right. And in Texas, that can lead to only one set of views when it comes to guns: the most extreme, absolutist stand.
The NRA later lauded Cruz for his "crucial" role in advancing gun rights in Heller and in McDonald v. City of Chicago, the 2010 case that extended Heller's Second Amendment protection beyond federal law enforcement to the states. The gun lobby group credited Cruz with putting together another multi-state coalition and filing an amicus brief in that case. Yet Cruz does not appear to have played much of a role in McDonald. The brief was actually filed by James Ho, Cruz's successor as Texas solicitor general, one year after Cruz left that office to return to private law practice.
In another bit of myth-making, Cruz often points out that he argued a "companion case" to Heller, as he puts it, at the US Court of Appeals for the DC Circuit. Cruz did in fact present an oral argument as an amicus curiae, but the 2005 case he refers to, Seegars v. Gonzales, was hardly Heller's kin. Instead, as detailed in Winkler's book, it was part of an NRA-backed effort to wrest control of the xi case, which the organization felt it had been left out of. The Seegars case, which also challenged DC's handgun ban, ultimately failed.
Scruggs, of Texas Gun Sense, sees the roots of the disconnect between Cruz's law-practice past and political present in the Texas politics of 2012. In a tough US Senate primary that year against Texas's powerful lieutenant governor, David Dewhurst, Cruz found it strategically imperative to move to his opponent's right. And in Texas, that can lead to only one set of views when it comes to guns: the most extreme, absolutist stand, Scruggs says.
"You've gotta understand the political situation here," Scruggs explains. "Republicans, very few of them can take a chance of appearing weak on gun issues." What worked for Cruz in 2012, he feels, has continued to work for him as a senator and now a presidential candidate.
Winkler sees a more subtle shift. He places Cruz's evolving views in the context of the gun-rights movement's changes pre- and post-Heller. "You could see Ted Cruz's evolution as similar to the NRA's own evolution," he says, as it abandoned gun regulations it once endorsed to embrace an increasingly hard-line view. Once Heller was secured, cautious approaches went out the window.
After his election to the Senate, Cruz returned to the gun-rights fray in 2013. His clash with Senator Dianne Feinstein during a hearing over proposed post-Newtown gun regulations—she accused Cruz of condescending to her like "a sixth grader" in the way he explained the Second Amendment's guarantees—was preceded one month earlier by a less-noticed but telling exchange. The witnesses at that day's hearing included Cruz's former boss, Cooper, and Cruz's Harvard constitutional law professor, Laurence Tribe. Up for debate was whether potential policy reforms, including reviving the federal assault-weapons ban and expanding background checks, could survive Second Amendment challenges.
The freshman senator used his litigator's training to make all the answers turn out the way he wanted. To Cooper, he lobbed a softball question about the legal stakes in Heller and McDonald. Following their amiable exchange, Cruz turned to Tribe, the liberal lion who agrees with conservatives that the Second Amendment protects individual rights but challenges the absolutist view. As Cruz and Tribe parried over Heller's provisions for exceptions to Second Amendment protection, Tribe gently corrected his former student's summary of whether laws like those then under debate had clearly been ruled off limits. "That's not, with all respect, Senator Cruz, quite correct," Tribe said.
As Tribe began to explain what the court had actually said in Heller, Cruz cut the professor short. "My time has expired," he explained. He then turned to a friendlier witness to ask one last question.
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