D.C. Second Amendment Case Inching Forward

Bill of Rights.jpg

Alan Gura, the lawyer in our case against the District of Columbia government’s ban on the ownership of firearms in the District, has just sent me and my fellow plaintiffs a notice of the status of the case, which is moving (albeit slowly) forward. The issues have been complicated by the filing by the National Rifle Association (of which I was once a member) of a rival suit. The court had ruled against that case (which was not as narrowly focused as ours and gave the court plenty of options to dismiss the plaintiffs as not having standing) and the NRA’s lawyers sought reconsideration by the full circuit court. The court declined. Our lawyers have been ordered to file further motions to govern the future of our case. I’m not superstitious, so I’m not going to keep my fingers crossed, but I am going to keep my copy of the Bill of Rights handy.

14 Responses to “D.C. Second Amendment Case Inching Forward”

  1. Tom (not Palmer)

    I had an earlier comment that apparently didn’t show up… but I wanted to know if there any other information about this case was available online.

  2. Tom (not Palmer)

    I had an earlier comment that apparently didn’t show up… but I wanted to know if there any other information about this case was available online.

  3. Tom G. Palmer

    I’m not as knowledgeable about the case as Mr. Gura, to be sure, but I’ll take a stab at answering the question. As I understand it, the NRA suit was not narrowly drafted and included a great array of legal claims, the sum of which made it more liable to dismissal. Our suit, in contrast, is very narrowly drafted and asks for rather narrow legal relief. The various legal pleadings are available on Alan Gura’s web site above.

  4. Alan Gura

    Thanks, Tom.

    A more elegant and user-friendly solution for perusing the various pleadings and orders in the Parker case is coming very soon. I do appreciate the interest in our case.

    The NRA’s position, and ours, are best reflected in the pleadings we all filed, which are available here:

    Again, a more elegant presentation is forthcoming.

    The quick version is:

    The NRA did not want us to file the suit, or at least wanted the suit structured in such a way as to have the courts avoid, if possible, ruling on the Second Amendment issue.

    They don’t think a decision on the Second Amendment should be risked. We don’t think a decision on the Second Amendment can be avoided much longer, and are not impressed by the results of doing nothing to defend the right.

    They filed their copycat lawsuit as a direct response to ours, and filled it with their kitchen-sink garbage arguments that we had rejected as frivolous and contrary to our litigation objective. They immediately tried to use their lawsuit as a vehicle to wrest control of our case by seeking to have the matters consolidated.

    We opposed their consolidation effort and sought to have their attorney disqualified on account of various ethical problems we believe he has. For his part, he stated in his pleadings that the NRA case was filed because they think I’m a crappy lawyer, and he believes the case is too important not to let him run it. Call it a “Kelo” theory of attorney-client relationships.

    The court agreed with us that his conduct raised meaningful ethical and attorney-client professional responsibility issues that would overwhelm the case, and denied the attempt at consolidation. Unfortunately, he was not kicked off his case. Subsequently, both cases proceeded separately, before different judges.

    The NRA attorney made several critical mistakes that sank his case and greatly complicated ours. Of these, the gravest was suing Attorney General Ashcroft, who was not a necessary party to the case because the federal DOJ does not actually enforce the gun laws we are challenging, and would not enforce the gun laws under the theory of our case (simple home possession of a functioning firearm or handgun is a misdemeanor prosecuted by the city attorneys, not the feds). As we feared (and strongly advised our NRA-sponsored friend), suing Ashcroft triggered a much more vigorous defense of the city’s gun laws than the city’s lawyers, or their amici, could muster in our case.

    Ashcroft may have personally believed in the right to keep and bear arms, but his litigation position amounted to a theory that citizens could almost never have standing to assert this right in a civil case. This was largely adopted by the appellate court in throwing out the NRA copycat case.

    The standing defense, having been raised by Ashcroft in the NRA copycat lawsuit, was quickly exported into our case. But unlike the NRA’s brilliant legal strategerist, we defeated it completely at the District Court level. We also believe that, even under the unhelpful standing doctrine generated by the NRA case on appeal, our own case is factually distinguishable and should proceed. We’ll find out soon.