Seegars v Ashcroft: The Legislative Remedy

Once both Parker v DC and Seegars v Ashcroft were well under way, and it was clear that the cases would not be consolidated, the NRA sought to block the progress of both cases in a more creative manner: by introducing legislation to overturn the DC gun ban and requesting that the lawsuits be stayed pending resolution of the legislative remedy.

When the bill was initially introduced I viewed it favorably. After all, eliminating the DC gun ban is definitely a good thing, and the methods don't really matter all that much. But then I started to think about the timing, and I realized that it stunk to high heaven. Congressfolk started making noise about repealing the DC gun ban about the same time the NRA's consolidation motion (seeking to merge Seegars v Ashcroft and Parker v DC) failed.

Given the complete lack of legislative interest in repealing the ban over the past 30 years, the sudden flurry of activity in the House and the Senate seemed more than a little suspicious. The NRA easily had the clout to get a bill written and introduced. They might even have the clout to pass the bill. But if the bill passes, both Seegars amd Parker become moot. Laws that have been repealed can't be overturned on Constitutional grounds.

I can't speak to whether the NRA is behind the legislation (entitled "The DC Personal Protection Act", HR 3193 and S1414) that was introduced. But the House version of the bill has passed, and I strongly suspect that the Senate version of the bill will be held in reserve. It will be used to delay resolution in both cases as long as possible, by claiming to the judge that the matter may be resolved legislatively. If there is a real threat of either lawsuit going before a Supreme Court that the NRA considers adverse, a rush effort will be made to pass the bill through the Senate and moot both lawsuits.

The NRA probably has the clout to do that after the 2004 elections. But that doesn't necessarily make it good strategy. The issues are simple: the gun rights movement needs a 2nd Amendment ruling from the Supreme Court, and we need it soon. We are playing a defensive game and we are being bled dry; we should be playing defense in the judiciary and be going on the offensive in the legislature, but we can't do that until we have a better Supreme Court ruling.

The present Court has ducked the issue on substantive questions, and issued some peripheral rulings -- going both ways (eg, Lopez, overturning gun free school zones for insufficient authority under the Commerce Clause, ruling adversely in US v Bean and denying cert in Emerson).

The NRA appears to believe the present court would rule against us and chooses not to risk a serious challenge; they seem to want to wait until the composition of the court changes. Other groups have been pushing for a ruling for some time. The issue is clearly ripe for resolution (US v Emerson, Silveira v Lockyer). Something is going to get before the court, and it's best that it should be one of our cases rather than a drug dealer with an ambitious public defender.

As if the situation was not complex enough, anywhere from 1 to 4 justices may retire during Bush's second term. Those retirements will open up seats on the High Court.