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Seegars v Ashcroft: The NRA seeks consolidation


The NRA's decision to file Seegars vs Ashcroft was clearly influenced by Parker vs DC. The timing (Seegars was filed shortly after Parker), combined with the NRA's infamous reluctance to defend the 2nd Amendment in court, is sufficient to imply a causal link and perhaps even some panic on the part of the NRA. They didn't want to lose, but if someone won, they had to be in on the win to keep their credibility.

So how do they seek to ensure this? They file a motion to consolidate with US v Parker.


The NRA's decision to file Seegars vs Ashcroft was clearly influenced by Parker vs DC. The timing (Seegars was filed shortly after Parker), combined with the NRA's infamous reluctance to defend the 2nd Amendment in court, is sufficient to imply a causal link and perhaps even some panic on the part of the NRA. They didn't want to lose, but if someone won, they had to be in on the win to keep their credibility.

So how do they seek to ensure this? They file a motion to consolidate with US v Parker.

An analysis in Gun Week laid out the situation. The attorneys in Parker hired Halbrook (a recognized 2nd Amendment authority) for research assistance, but Halbrook was now working on Seegars v Ashcroft. That presented a clear conflict of interest if you accept that Seegars v Ashcroft was filed specifically to combine with Parker vs DC.

In addition, the Seegars case used some of the plaintiffs rejected by the Parker case. In fact, those plaintiffs were not used in the Parker case for a very good reasons -- something that the lower court ruling on Seegars will emphasize. More on that later. The important thing for the present discussion is that Seegars was using legal services from a lawyer who has already worked on Parker, and that Seegars also considered (and chose to use) some of the same plaintiffs that Parker had considered and chosen not to use.

The motion to consolidate makes the argument of judicial economy as the primary reason to consolidate. This is a reasonable argument since the two cases are undeniably very similar and present a significant risk of contrary rulings if handled simultaneously by two separate judges.

Strategically, however, the decision to consolidate would be a mistake for gun rights. The Parker case is superior to Seegars strategically because it focuses narrowly on the 2nd Amendment; there are no excuses and no escapes from a judicial ruling on the 2nd Amendment. That's the whole point. The Parker case lays down the gauntlet and demands an answer on the merits of the 2nd Amendment claim; if the answer is negative, it will be appealed as far as necessary.

And if the courts refuse to overturn a complete prohibition on firearms possession on 2nd Amendment grounds... well, well, well. That's the message they've been sending for years, but it's one thing to say it in whispered implications and another to say it straight out. If the DC gun ban is Constitutional, then the 2nd Amendment has no meaning. And frankly, it's better that we get that question answered sooner rather than later.

By contrast, the Seegars case invites the judge to rule on any one of five different counts, only one of which deals remotely with the 2nd Amendment. This is an invitation to the judge to overturn the DC gun prohibition on grounds other than the 2nd Amendment, and if the judge is minded to uphold the law (as is likely in the lower courts) they are excellent ways to confuse the issue.

What that means is simple: Seegars is more likely to get the DC law overturned because of the additional arguments, but the Parker case is much more likely to produce a definitive ruling on the 2nd Amendment. Gun-rights advocates on the Internet, already disliking the Seegars case, really didn't like the consolidation attempt. The NRA has attempted to interfere with other 2nd Amendment lawsuits in the past.

In response to the NRA's motion, the Parker counsel filed several documents: a memorandum in opposition, a motion for recusal of counsel, and two declarations in support (Alan Gura, Robert Levy).

Most telling are the following two paragraphs:

When asked why Seegars and its consolidation motion were filed, Mr. Halbrook admitted that the motivation is the NRA s desire to have its counsel share argument time in the Court of Appeals clearly an improper purpose for filing litigation, and an attempt to subvert both the circuit court s rules governing the filing of amicus curiae briefs as well as plaintiffs absolute right to their choice of counsel and litigation strategy. Given the disruption and delay to Parker that consolidation would bring, the tactic is ever more questionable considering NRA counsel's former attorney-client relationships with Parker counsel and parties.

Counsel table is not a public forum. Rule 42 is not a soapbox by which every special interest group or lawyer with a filing fee may insert oneself into someone else s case. If the purpose of consolidation is to enhance judicial efficiency, such purpose is ill-served by encouraging sham litigation and deliberate interference with pending cases. There is no shortage of outside parties who would like to exert control over litigation of interest to them, but Rule 42 is not an end-run around the strictures of Rule 24, governing intervention.

The memorandum in opposition includes a number of telling insights into the flaws in the Seegars case. It's worth reading in its entirety. The Halbrook reply brief in support of the consolidation motion defends the NRA's decisions but to my reading is unconvincing; further, it validates my analysis of the additional counts in Seegars (from page 5):

The Congressional enactments referenced in Counts Two and Three are pertinent to the Second Amendment count in that they demonstrate the consistent interpertation of a co-equal branch of government. Alleging them as statutory claims is proper given the possibility that the court may wish to resolve the case on statutory rather than constitutional grounds.

The whole point of filing a 2nd Amendment case in the District of Columbia is to get a 2nd Amendment ruling -- not a ruling on statutory grounds. The Parker attorneys filed a Reply Brief on the recusal motion that adds some additional facts of interest:

Parker plaintiffs want a timely clarification of the Second Amendment by the United States Supreme Court. The NRA has made clear that it wishes to avoid such review at this time. So strong is the NRA s opinion on the matter that it sought to dissuade the filing of Parker, to alter the litigation s goals, and even to have the litigation designed in such a manner as to avoid or curtail appellate review. Only when Parker plaintiffs and counsel refused the NRA s goals was Seegars filed.

That's the core issue here. The NRA is afraid to take a case to the Supreme Court on the 2nd Amendment; they want to avoid a potentially adverse ruling and fear that the present court would render one. This is not an unreasonable fear, but the present precedential ediface being constructed in the lower courts gains us no benefit either. The issue is boiling over. The Supreme Court must be presented the opportunity to rule in favor of our Constitution, or demonstrate that it offers no such protection, and has abandoned its role. Furthermore, by the time Parker reaches the Supreme Court, we may well have several Bush appointees on the high court -- appointees more likely to support the 2nd Amendment.

Lund and Cooper encouraged Parker counsel either not to file the case, or, if the case were filed, to build in a trap door that would give the court a basis, if it chose, to avoid a foursquare holding on the Second Amendment and thereby minimize the likelihood of the Supreme Court reaching that issue. Neily, Healy and Levy agreed to give some thought to the NRA s concerns and advice, but ultimately rejected the NRA s suggestions as to how their case should be litigated. Levy Decl., ? 12.

Suddenly, the reason for counts 2-5 in Seegars is clear. They are explicitly intended as trapdoors to avoid a 2nd Amendment ruling.


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]

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