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.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.
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."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 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.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.