TriggerFinger


Seegars v Ashcroft: The Complaint


Seegars v Ashcroft was filed on behalf of 6 plaintiffs and named as defendents Ashcroft, the Attorney General of the United States at the time (he has since announced his intent to resign), and the Mayor of the District of Columbia. The basic facts of the challenge are similar to what was discussed in Parker v DC, specifically, that the law in the District of Columbia forbids the common citizen from keeping a firearm in their own home for purposes of self defense. Those laws are challenged as being in violation of the 2nd Amendment. The attorney for the plaintiffs is Stephen Hallbrook, a respected legal scholar well-known for his positions on firearms law, and this lawsuit is considered the chosen vehicle of the National Rifle Association.


Seegars v Ashcroft was filed on behalf of 6 plaintiffs and named as defendents Ashcroft, the Attorney General of the United States at the time (he has since announced his intent to resign), and the Mayor of the District of Columbia. The basic facts of the challenge are similar to what was discussed in Parker v DC, specifically, that the law in the District of Columbia forbids the common citizen from keeping a firearm in their own home for purposes of self defense. Those laws are challenged as being in violation of the 2nd Amendment. The attorney for the plaintiffs is Stephen Hallbrook, a respected legal scholar well-known for his positions on firearms law, and this lawsuit is considered the chosen vehicle of the National Rifle Association.

The primary distinction between Parker vs DC and Seegars vs Ashcroft is the choice of defendents. The plaintiffs in Parker sued the District of Columbia authorities, specifically the Mayor. As a practical matter, this means the lawyers handling that case will be those available to the Mayor in his official capacity. The decision to name Ashcroft in Seegars means that the lawyers handling the defense will be from the Department of Justice as well as from the Mayor.

The practical effects of this decision are obvious. The defense in Parker vs DC has generally failed to present a good case. The end result of that trial at the district level was foreordained by precedent and the anti-gun attitude that prevails within the capital city, but the outcome of the case in appeals courts is what really matters. It would be those same lawyers (or at any rate, lawyers from the same source) defending an appeal, something which would very likely work to our advantage.

But once you bring in the lawyers from the Department of Justice, the competence level goes up substantially. In other words, the NRA has picked a fight with a champion, rather than seeking to attack where the enemy is weakest.

It's unclear why the NRA would choose to do that. The most obvious explanation invokes this letter which Ashcroft sent to the NRA early in his tenure as Attorney General. The letter describes the 2nd Amendment as an individual right subject to reasonable regulation, a position which (while not ideal) is a far-cry from the "collective right" argument advanced in many courts. The NRA may have believed that Ashcroft would order his lawyers to lose the case, or at least put up a defense that would acknolwedge the individual right while arguing that reasonable regulations are permissible.

That belief, if it was the motivation for including Ashcroft as a defendent, seems misplaced. Whether or not the defendents acknowledge an individual right in their briefs, an individual right that permits the DC laws to stand as "reasonable regulation" is worthless. We need to win the case, not merely score a few points in the process of losing. The DC gun prohibition must end.

The complaint itself in Seegars has more than a few flaws from a gun-rights perspective. As you will recall from the discussion on Parker vs DC, the DC handgun ban is implemented as handgun registration with a provision that no registrations will be issued after 1976. This results in a de-facto ban. The ban makes it especially onerous, but gun rights advocates oppose registration as well, seeing it as inherently dangerous to liberty, and a temptation to the government to implement confiscation or harass law-abiding gun owners (such as took place during the Maryland sniper incident).

But the NRA is not challenging the registration system, only the actual ban. From the original complaint in Seegars:

Plaintiff Sandra Seegars, who is retired on a disability, is currently a Commissioner of the D.C. Taxicab Commission and an elected Advisory Neighborhood Commissioner. She resides in a high crime neighborhood, has been a crime victim, and wishes to obtain a pistol to defend herself in her home. She is eligible under the laws of the United States to possess firearms. But for D.C. Code 7-2502.02(a), she would forthwith obtain and register a pistol to keep at home for self protection.

6 Plaintiff Gardine Hailes is currently employed as an officer manager and is a former TV show host. Her house and her neighbor s house have been burglarized. She is eligible under the laws of the United States to possess firearms. She currently possesses in her home a registered shotgun which she keeps bound by a trigger lock. But for D.C. Code 7-2507.02, she would remove the trigger lock when she deems it necessary to defend herself in her home. Ms. Hailes also wishes to obtain a pistol to defend herself in her home. But for D.C. Code 7-2502.02(a), she would forthwith obtain and register a pistol to keep at home for self protection.

Plaintiff Absalom F. Jordan, Jr., who is retired, is an elected Advisory Neighborhood Commissioner and an NRA Certified Firearms Instructor. He is a victim of attempted armed robbery. His neighborhood is a major drug area and he is involved in efforts to expel drug dealers from the neighborhood. He is eligible under the laws of the United States to possess firearms and he lawfully owns a pistol which he stores outside the District of Columbia. But for D.C. Code 7-2502.02(a), which deprives him of the possession of his pistol in his home, he would forthwith register his pistol with the District of Columbia and keep it at his residence for self protection.

Plaintiff Carmela B. Brown is a writer and actor. She resides in a high crime neighborhood rife with open-air drug trafficking and prostitution, and wishes to obtain a pistol to defend herself in her home. She is eligible under the laws of the United States to possess firearms. But for D.C. Code 7-2502.02(a), she would forthwith obtain and register a pistol to keep at home for self protection.

Plaintiff Robert N. Hemphill, who is a retired postman, wishes to obtain a pistol to defend himself in his home. He is eligible under the laws of the United States to possess firearms. But for D.C. Code 7-2502.02(a), he would forthwith obtain and register a pistol to keep at home for self protection.

Notice a pattern? The NRA is explicitly not challenging the registration portion of the law. This may be the other reason they chose to file this lawsuit and derail the Parker vs DC effort: either they wished to preserve registration as a Constitutional option, or (more likely) they felt that their chances to succeed in this case were improved if they did not challenge the registration component of the law.

Allowing handgun ownership in the District of Columbia would be a step forward even with a registration system, but such a system represents too great a temptation for government. Another lawsuit would eventually be filed to challenge it. The NRA would rather try for a small step. Tactically, they may be right; it would be easier to require the District of Columbia to accept registrations again than it would be to overturn the entire law.

But strategically, both of these cases are aimed at the Supreme Court, which will need to overcome a great deal of stare decisis to rule in favor of the 2nd Amendment. There is ample Constitutional law suggesting that a protected right cannot be subject to a fee or license.

Count One: The Second Amendment

The NRA's case chooses to spend only 6 paragraphs alleging a 2nd Amendment problem in the case. That's barely enough to state the facts of the case, and it includes absolutely no argument. None whatsoever. The 2nd Amendment is included and the judge is asked to rule on it entirely on faith. There are no historical references. There are no citations to previous court rulings implying an individual right. There are no citations to analysis articles finding an individual 2nd Amendment right, some of which were written by the author of the complaint! In short, this case isn't really about the 2nd Amendment at all, if you listen to the NRA.

Count Two: Contrary to the Will of Congress

In addition to the 2nd Amendment arguments, the Seegars complaint attacks the District of Columbia regulations as contrary to the will of Congress. This is a slightly more complex question. First, some background: the District of Columbia is considered a federal territory governable by Congress directly, rather than being within any single state. This was the compromise decision intended to prevent turf warfare between the states over who would host the capital, but as a result, the laws in the capital city derive directly from the federal government.

In practice, Congress leaves the District to make most of its own laws. It has passed laws delegating significant portions of its lawmaking authority to local government. In this case, the DC Code has the following:

The Council of the District of Columbia is hereby authorized and empowered to make, and the Mayor of the District of Columbia is hereby authorized and empowered to enforce, all such usual and reasonable police regulations, in addition to those already made under ?? 1-303.01 to 1-303.03 as the Council may deem necessary for the regulation of firearms, projectiles, explosives, or weapons of any kind in the District of Columbia.

So any authority that the Distract of Columbia has to govern firearms derives from this law, or others like it. The core of the NRA's argument is that a complete ban on possession of functional firearms or handguns within the District is not "usual and reasonable". They are correct; no state has passed a complete prohibition on functional firearms within the home, and only a few cities have attempted to do so with handguns.

However, the inclusion of this claim weakens the overall case. First, since the ban has been in place since 1976, if Congress felt that the ban was not "usual or reasonable" it could have acted in the years since the ban was passed. (In fact, a law repealing the DC gun ban passed the House last year; the Senate has not yet taken action). While there can be little doubt that the prohibition does not match the rational person's "usual and reasonable" test for the United States, such a question is really more appropriate for Congressional action than judicial action.

Furthermore, a "home rule" statute went into effect in 1973, and the authority to pass the gun prohibition could easily be derived from that legislation rather than the 1906 code that the Seegars is citing. That statute provides that "the legislative power of the District shall extend to all rightful subjects of legislation within the District." That grants a much broader authority under which firearms regulation could easily fall.

Secondly, it is a tactical mistake. The real goal of these lawsuits involves not merely overturning the capital city's gun prohibition, but overturning the prohibition on 2nd Amendment grounds, thus establishing a precedent (ideally a Supreme Court precedent) that the 2nd Amendment recognizes and protects an indvidual right to firearms ownership. Allowing the court system an "out" that would allow it to strike down the law without producing a 2nd Amendment ruling would produce a temporary gain, but nothing permanant -- the courts would remain without a true 2nd Amendment precedent.

Count Three: The Civil Rights Act

The argument here is somewhat better. The claim is that keeping a gun for personal protection is a civil rights matter that was recognized by both courts and legislature; prior to the Civil War the slave states enacted statutes forbidding slaves from possessing firearms. Those statutes were replaced, after the war, with the Black Codes which did essentially the same thing -- by forbidding possession of firearms from African-Americans.

Since the Civil Rights Act of 1866 was intended to overturn the Black Codes, it must have then intended to restore the right to own a firearm for personal protection. And in fact it states so rather clearly. This particular count is an excellent piece of tacticsm because it clearly links the gun control laws of the present with the racist Black Codes of the post-Civil War South. African-Americans make up a large percentage of the permanent residents in the District of Columbia, and presumably the NRA has ensured at least one of their plaintiffs is an African-American.

As I am not a lawyer, it is difficult to analyze whether this count is legally strong or not. It's been a long time since 1866, and there are a lot of intervening laws; but if the NRA's analysis is correct, the claim could hold water, and politically, it's devasting. It puts the liberal, activist judges of the left on notice that in enforcing gun laws, they are effectively denying civil rights to African-Americans. Racism is a deadly effective charge in politics when supported by anything approaching evidence. And it's an issue that undermines the roots of gun control philosophy (see The Racist Roots of Gun Control by Clayton Cramer).

But strategically, this count only continues to confuse the issue. Without a 2nd Amendment ruling, firearms ownership and posession are not recognized by the courts as fundamental rights. We need that recognition. It's the whole point of the case. And this count will fail without it. These arguments should have been appended to the 2nd Amendment arguments, to demonstrate the original intent. As a separate count, and in the absence of a recognized 2nd Amendment right, they do not appear to stand up well.

The defense against a charge of violating the Civil Rights Act is to prove that no racial basis for the law existed, and that on its face the law does not discriminate by race. On its face, the statute is a blanket prohibition; there is no discrimination present. Historically, the intent may have been present, but it would be difficult to prove absent a smoking gun. Including this count is a gamble. If it pays off, it will pay off big, as other gun control laws can be challenged and overturned on similar grounds; but it remains a distraction from the most important issue, and it is unlikely to carry the case by itself.

Count Four: Due Process

This count merely addresses the catch-22 of providing a "registration" system that forbids taking any new registrations. It's little more than another excuse to avoid a 2nd Amendment ruling if the judge is so inclined.

Count Five: Due Process and Equal Protection

This is a trivial claim as well, but the details are interesting. Apparantly, there is a law allowing for recreational firearms activity within the city by non-residents. The most likely explanation for this law is "Congress"; it is well known that many politicians carry or keep firearms for personal protection (including such anti-gun luminaries as Diane Feinstein). The argument is that the statute is discriminatory because it unfairly discriminates against residents. This claim is unlikely to succeed, because it would anger members of Congress, threaten the "special rights" of police officers, and as with the previous two claims, depends on recognition of firearms rights as a civil right.

On the whole, then, the complaint is surprisingly weak. The 2nd Amendment argument is almost perfunctory. The other arguments raise interesting points but seem unlikely to stand on their own. If I didn't know better, I'd think the NRA wanted to lose. And even though I supposedly know better, the weakness of this complaint raises uncomfortable doubts in my mind. The only way this complaint makes sense is if the case is intended as a vehicle to hijack Parker vs DC, and either prevent it from being heard, or muscle in on the arguments in the appeals court for publicity reasons.

And I find that motivation disturbingly credible for the NRA, an organization that has compromised its way to near-total surrender within a few decades.

In closing, it should be noted that I am not a lawyer, and this is not legal advice. I'm just an interested layman.


This entry was published Sat Sep 24 10:43:35 CDT 2005 by TriggerFinger and last updated 2005-09-24 10:43:35.0. [Tweet]

comments powered by Disqus

Subscribe to Atom Feed

I am not a lawyer, and nothing on this site should be taken as legal advice.

This site is run on custom blog software and is being actively developed. Please be forgiving of errors.


This website is an Amazon affiliate and will receive financial compensation for products purchased from Amazon through links on this site.