Seegars v Ashcroft: Oral Arguments

After the denial of the motion to consolidate with Parker vs DC, proceedings in Seegars vs Ashcroft could proceed to the next stage of trial. And they did exactly that. We next pick up the thread with the oral arguments over the motion to dismiss filed by the defendents. The oral arguments, linked above with commentary from Roy Lucas, are an eye-opener to anyone who believes the NRA is prepared to fight for the 2nd Amendment in the court system.

There are some interesting issues that come to light in the oral arguments, aside from those related to the NRA and it's strategic goals. In the oral arguments, the Justice Department's representative clearly challenges the standing of the plaintiffs to bring their claims; he's saying, in short, that they haven't tried to actually do any of the things the law forbids, and so they should not be able to request relief. There has to be a particular case or controversy before the court, and not merely a hypothetical one.

This is not always a strict rule. There is some discussion about the Navegar case (which shows up later on in the court's opinion). The Navegar case concerned the TEC-9 handgun which was banned by the assault weapons ban, and whether the manufacturers (Navegar, doing business as Intratec) could bring a lawsuit challenging the law before having been prosecuted or facing a specific threat of prosecution.

The ruling in Navegar split. They could bring suit related to their claims for the firearms specifically named in the ban that only they manufactured (the TEC-9) but not for the generic "features ban". The portions of their case which survived this test were those where a specific threat of prosecution existed, by virtue of their products being specifically named, rather than merely a general risk by the ban of certain features.

The lawyer for the Justice Department spends a significant about of time arguing that the plaintiffs might not be prosecuted if they obtained, without registration, a handgun and carried it in their home for self-protection. This is a line of argument that isn't immediately obvious. At first glance, it's absurd -- of course they would be prosecuted if they were caught.

But what he's really arguing is that a wink-and-nudge standard exists. The government can't search your home without substantial cause, and plaintiffs are not criminals, and we'll look the other way so long as no one gets shot, using prosecutorial discretion. That argument sounds silly, but it effectively undercuts the imminent threat of prosecution required for the case to proceed. Plaintiffs would have to come back to court after they had been charged and make their challenge then.

Interestingly, there is some evidence that this bizarre concept of exercizing prosecutorial discretion to avoid charging honest folk has some basis in fact. Consider this journalist, a prominent advocate for gun control, who lived in DC and was charged with using an unregistered handgun to wound a criminal:

Rowan, who had advocated strict handgun control, found himself in the center of a gun controversy during the 1980s when he was arrested and charged with using an unregistered weapon to wound a teen-ager who intruded into his backyard.

Rowan argued that he had the right to use whatever means necessary to protect himself and his family. The jury deadlocked and the judge hearing the case declared a mistrial.

While I certainly agree with his argument, I have no sympathy for his hypocrisy in this matter. Clearly, however, Carl Rowan believed that there was an unwritten double-standard that would protect his ownership of an unregistered handgun. To the extent that he was not caught until he had to use it, he was correct; and to the extent that the jury refused to convict him, he was also correct. But he was, in fact, prosecuted. This, then, is the double-standard that the Justice Department would have us accept: just don't get caught.

The alternative to getting caught is to apply, be denied, and appeal the denial through the established procedure. The denial would create standing.

The commentary from Roy Lucas in the transcript I am using indicates that the lack of 2nd-Amendment questions from judge implies that the judge is not inclined to reach the merits. I think that's an accurate perception. In light of the result, the judge does reach the merits, but dismisses the claims of all but a single plaintiff on standing grounds. Clearly, he would have preferred to dismiss them all but was unable to do so.

The DC lawyer steps in and argues for the "collective rights" view, primarily (mis-)using US v Miller, and further argues that the standard for review -- if such a right exists -- would be the rational basis test. That's not the correct standard for a Constitutional right, but it's not picked up on and argued.

There is some discussion of efforts in Congress to change the law, and whether consideration of this lawsuit should be dropped until the pending legislation in Congress is resolved. That's a silly question; there's no certainty that the legislation will pass (and indeed it has not yet passed).

The commentator indicates there is case law suggesting that exhaustion of administrative channels is not required for the case to proceed, but Halbrook does not cite it in his response. I'm not sure why. It would have saved most of his case if the commentator is correct. Either Halbrook did not know the cases, or thought the cases would not apply, or he wanted to lose the case on standing grounds. I have no idea which.

The judge brings up the national guard and the standing army and suggests that a militia is no longer needed. Halbrook's response is fairly weak. The court makes something of a blunder:

THE COURT: BUT AT THAT TIME THE MILITARY MIGHT OF THIS NATION HAD NOT BEEN ESTABLISHED, AND, THEREFORE, IN ORDER FOR THE NATION TO PROTECT ITSELF, THERE WAS A NEED FOR INDIVIDUAL CITIZENS TO HAVE WEAPONS SO THAT IN THE EVENT OF AN ATTACK, THE NATION WOULD BE ABLE TO CALL THOSE PEOPLE TOGETHER AND FORM A MILITARY THAT WOULD BE ABLE TO PROTECT THE NATION. BUT THAT'S NOT THE CASE HERE. I MEAN WE CALL UP THE NATIONAL GUARD ALL THE TIME, AND WE HAVE GOT A READY AVAILABLE CACHE OF GUNS AND WEAPONRY AVAILABLE FOR THEM.

What the court is admitting here is that, when it was written, the 2nd Amendment applied to individuals in order to protect their ability to form a militia, but that the need for a militia is no longer present and thus the rights are no longer present. Constitutional rights do not simply go away; that's why there is an amendment process. Unfortunately, this error in oral argument does not show up in the decision.

Halbrook makes a fairly politically embarassing statement:

THE COURT: THE GOVERNMENT CAN PUT RESTRICTIONS ON THE RIGHT TO BEAR ARMS.

MR. HALBROOK: YOUR HONOR, WE ARE HERE WANTING TO REGISTER HANDGUNS. WE ARE NOT HERE WANTING UNRESTRICTED ACCESS. WE'RE NOT HERE ASKING TO CARRY THEM, OTHER THAN IN THE HOME.

THE COURT: YOU'RE SAYING THAT THE GOVERNMENT CAN IMPOSE REASONABLE RESTRICTIONS?

MR. HALBROOK: YES, YOUR HONOR. YES, YOUR HONOR.

Registration among gun-rights advocates is viewed as literally nothing more than a single step away from actual confiscation. The fact that registration would be a step up for the District of Columbia does not necessarily mean that the NRA should be supporting it. It may be good tactics in this case to suggest allowing registration rather than throwing out the whole law, but this quote will haunt the NRA.