Seegars v Ashcroft (now renamed Seegars v Gonzalez) is a lawsuit filed in the District of Columbia by several plaintiffs seeking to overturn both the general handgun ban and the general ban on possesiosn of firearms in a condition useful for self-defense. Legal representation is being provided by Stephen Halbrook, a well-known 2nd Amendment attorney, and the case is considered the chosen vehicle fo the NRA's attempt to overturn the The NRA brought a case challenging the DC gun ban.
While it's good to see the NRA doing something other than lobbying and compromising with legislators, the evidence seems to indicate that the NRA would not have filed this lawsuit were it not for Parker vs DC, a very similar lawsuit filed before Seegars v Ashcroft. If anything, Seegars seems to have been filed in an attempt to hijack the earlier case, as evidenced by the motion to consolidate.
At present, Parker has been stayed by the appellate court pending the resolution of Seegars. Both cases lost in the lower courts.
Disclosure: Sources who prefer to remain anonymous have occasionally provided copies of the filings not available through PACER in Seegars and Parker. A plaintiff in the Parker case has provided commentary and eyewitness accounts of the oral arguments in Seegars. Season appropriately before consumption.
Of Arms And The Law points to an article on Sandra Seegars entitled Pleading self-defense. Yes, it's that Seegars.
Seegars: Cert denied
Reliable sources inform me that the Supreme Court denied the certiorari petition from the Seegars case, even though the docket hasn't been updated yet. In plain language, they won't be hearing that case. The usual weasel words: Denial of a certiorari petition should in no way be construed as an opinion on the merits of the case. But I think we can all read between the lines here: the present court is not ready to hear a 2nd Amendment case.
Alito may change that. Then again, he may not. The way I see it, the Court has one more chance to get it right on this one: Parker. For all I know, they may be waiting for that case with baited breath.
UPDATE: The decision is in today's order list.
UPDATE: Suitably chastized for not linking to background on my own stuff. Here's the skinny on Seegars.
UPDATE: SCOTUSBLOG has a little more information.
Among the cases denied review were Seegars v. Gonzales (05-365), an attempt by five Washington, D.C., residents seeking to revive their challenge to D.C.'s strong anti-gun law... Chief Justice Roberts was recused in the D.C. case because he was on the D.C. Circuit when it denied en banc review of the denial of standing to the gun fanciers.I had forgotten about the Roberts recusal. Remember, Roberts is on the court replacing Rehnquist, most likely a solid pro-gun vote. If he had to recuse himself from Seegars, the results could have been a disaster for gun rights. The vote-counting is down to the wire as it is, without any recusal issues from our side. Note that Alito will not have recusal issues for Parker, but Roberts may, since both cases were before the DC Circuit around the same time. I don't recall Roberts voting on anything related to Parker, or serving on any of its panels, but memory is a whatchamacallit.
(The Seegars plaintiffs requested an en banc hearing to appeal an unfavorable decision by the panel, which put the question of whether or not to hear the case before the whole circuit, including Roberts; the Parker case has not yet done that).
UPDATE: The docket has been updated now.
Seegars v Gonzalez: Moving forward at the Supreme Court
There are some new events in Seegars v Gonzalez since I was last sufficiently unbusy to check. The last we heard, the deadline to respond to the Seegars petition for certiorari from the Supreme Court had been set for November 21st, 2005. Checking the Supreme Court docket today, I discovered that an order to extend the deadline again (this time to December 21st of 2005) had been issued on November 18th. So, that extended the time we had to wait by about a month. The holdup appears to have been the Department of Justice's representation, as they filed their response on December 21st and the Mayor of Washington, DC filed a waiver of right to respond.
Now, the deadline is past and all responses are in. A conference has been scheduled to hear the petition for certiorari (NOT the case itself, just deciding whether or not to hear the case) on January 20th. That bit of news was just issed on Jan 4th, so I'm not that far behind on my coverage.
We're not likely to see any more events until that conference, but things will heat up shortly thereafter.
Another Seegars update...
According to the Supreme Court docket, the deadline to respond to the Seegars petition for certiorari has been extended through November 21st, 2005. Doesn't mean much of anything, I don't think, except that we'll have to wait that much longer.
The Seegars plaintiffs have petitioned the Supreme Court for a hearing. The Supreme Court has not yet responded, but the response is due October 21st. Here's the docket. I'll be keeping a close eye on this.
Roberts may or may not be able to participate in this case. He was on the DC Appeals Court when it was heard by a panel of judges there, and voted in favor of rehearing the case en banc. That vote failed, but the fact that Roberts voted in the case might be enough. He has already recused himself from participating in the DC v Beretta case, which was heard en banc; however, the decision to deny cert to that case came down on his first day with the Court and he might well have decided he was not familiar enough to participate.
If Miers is confirmed in time, she could presumably participate in the case itself. However, participating in the decision for or against cert is going to depend on the timing of the confirmation process and probably will not be fast enough.
A kind source has provided me with the Petition for Rehearing and Petition for Rehearing En Banc in the Seegars v Ashcroft case, coming this time from Stephen Halbrook's website. It is worth noting that, because Ashcroft was named in his official capacity, with the change of the Attorney General the common name of the case changes to Seegars v Gonzalez. This petition asks the entire (active) DC Circuit to hear an appeal of the case following the unfavorable opinion from the three-judge panel.
In some ways, this petition for rehearing was inevitable. Seegars v Ashcroft is a case that was intended to strike down the District of Columbia's ban on self-defense firearms. In filing it at all, the NRA (which is funding the legal work) has committed themselves to creating a potentially-negative precedent. That precedent, which was inevitable in the lower courts, becomes more binding each time it is upheld on appeal. So the question is, how much damage is the NRA willing to do to 2nd Amendment jurisprudence in their attempt to invalidate DC's firearms ban?
Absent Parker v DC, a very similar case also in appeals, the answer would have been "none". Seegars v Ashcroft was a case that exists primarily to give a nervous appellate court room to strike down the DC ban without relying on the 2nd Amendment. If the ban is struck down in that manner, the issue in Parker v DC becomes moot.
The NRA is justifiably afraid that Parker v DC will reach the Supreme Court and receive a ruling that explicitly denies a modern right for the general public to possess firearms. Such a ruling would be contrary to all serious scholarship on the Amendment, but perfectly in keeping with a Supreme Court that rules, 5-4, to consider "international law" and foreign opinion as the basis for invalidating the death penalty for juvenile offenders tried as adults. Parker is a gamble, attempting to force the 2nd Amendment issue before the Supreme Court with the best possible facts and obtain a precedent that can be used to overturn established precedents in lower courts. The stakes are high for both sides.
If my speculation concerning the NRA's legal strategy is accurate, they will appeal their case as high as they need to in order to prevent Parker v DC from reaching the Supreme Court first. They want whatever case comes before the Supreme Court to offer ample cover for the Justices to avoid ruling on 2nd Amendment grounds whichever way the ruling goes. Parker does not offer that cover; Seegars does.
So that's how the NRA ends up petitioning a case that invokes everything they could come up with, up to and including the kitchen sink, before the DC Circuit.
With all that said... this petition makes a strong case for granting the Seegars plaintiffs standing to challenge the law. While I think the inclusion of many of the non-2nd-Amendment claims are messy and spurious, I understand why they are there, and they don't have much influence on the question of standing. There's no question in my mind that the Seegars plaintiffs deserve standing as a matter of law. As a matter of politics, of course, it may not turn out that way. I've called out the main arguments briefly below.
Unlike the District court, which reached the merits of the case and produced a dramatically unfavorable 2nd-Amendment ruling, the appellate panel has produced a politically neutral ruling that upholds the gun control laws in the District of Columbia on technical grounds. I suspect that the courts will prefer to leave the matter there if at all possible, and that the en banc appeal will be denied. Of course, the DC circuit may wish to put its stamp on a prominent case likely headed for Supreme Court review, and Halbrook makes strong arguments, so that result is by no means certain. If the petition is denied, it will most likely be a political decision rather than a legal one.
Seegars v Ashcroft: The Blogosphere weighs in
The DC Court of Appeals has issued an opinion in the Seegars v Ashcroft case challenging the DC handgun ban. I am providing in this post a link to commentary in the blogosphere concerning the decision. To have your post listed, please email me (firstname.lastname@example.org) or simply trackback to this post.
Seegars v Ashcroft: Sentelle's Dissent
The following is Judge Sentelle's dissent from the ruling in Seegars v Ashcroft:
While I commend the balanced tone and thoroughness of the majority opinion, I find that after examining the authorities discussed therein, I reach a different conclusion. As the court relates, plaintiffs seek to challenge the provisions of the District of Columbia s Criminal Code limiting the possession of pistols, as violative of their Second Amendment rights to keep and bear arms. The District Court held that they had no standing. Today this court has affirmed.
I would find standing based on the authority of cases cited by the majority. The record offers essentially undisputed evidence of the appellants intent to engage in gun-related conduct prohibited by the challenged Code provisions, but for the existence of those provisions. Appellants adequately allege and argue that this conduct is protected by the Second Amendment to the United States Constitution.
Babbitt v. United Farm Workers Nat l Union, 442 U.S. 289, 298 (1979) (citing Doe v. Bolton, 410 U.S. 179, 188 (1973)) (internal quotation marks omitted). The majority s further analysis of United Farm Workers is directly on point:
In United Farm Workers, a union challenged provisions of a state statute that made it an unfair labor practice, punishable with criminal penalties, to encourage consumer boycotts of agricultural products by the use of dishonest, untruthful and deceptive publicity. 442 U.S.at 301. The state argued that the criminal penalty provision had not yet been applied and might never be applied to unfair labor practices. Id. at 302. The Court found standing, saying that the State has not disavowed any intention of invoking the criminal penalty provision against unions that commit unfair labor practices, id., and that the union s fear of prosecution was not imaginary or wholly speculative, id. Thus United Farm Workers appeared to find a threat of prosecution credible on the basis that plaintiffs intended behavior is covered by the statute and the law is generally enforced.
Maj. Op. at 7. As appellants allege a similarly realistic fear of prosecution, I would hold United Farm Workers controlling, and conclude that appellants have standing to bring the Second Amendment challenge.
As the majority notes, a long line of cases upholds preenforcement review of First Amendment challenges to criminal statutes by plaintiffs with bases for standing no different than that asserted by appellants herein for their Second Amendment challenge. For example, in Virginia v. American Booksellers Ass n, 484 U.S. 383 (1988), plaintiffs brought a suit challenging the constitutionality of a newly enacted Virginia statute criminalizing the display for commercial purposes of visual or written material that depicts sexually explicit nudity, sexual conduct, or pseudo-masochistic abuse which is harmful to juveniles. Va. Code ? 18.2-391(a) (Supp. 1987). The Commonwealth of Virginia argued that plaintiffs lacked standing, because they had not yet been prosecuted under the Act. The Supreme Court, in discussing the standing question, declared itself not troubled by the pre-enforcement nature of this suit. American Booksellers, 484 U.S. at 393. Because the state ha[d] not suggested that the . . . law will not be enforced, and the Court saw no reason to assume that it would not be, theCourt found standing, conclud[ing] that plaintiffs have alleged an actual and well-founded fear that the law will be enforced against them. Id. I see no distinction between that case and this.
As the Supreme Court further noted in American Booksellers, the danger of the statute before it could be realized even without an actual prosecution. Id. Needless to say, the harm lay in self-censorship that is, the curtailing of an otherwise constitutional activity because of an allegedly unconstitutional criminal statute. The only difference between that harm and the harm alleged in this case is that there it was to First Amendment interests, here to Second. I know of no hierarchy of Bill of Rights protections that dictates different standing analysis.
I acknowledge, as the majority notes, that a case from this circuit, Navegar, Inc. v. United States, 103 F.3d 994 (D.C. Cir. 1997), is in tension with cases upholding pre-enforcement review of First Amendment challenges to criminal statutes. Maj. Op. at 10. In Navegar, plaintiff-appellants sought declaratory judgment striking down as unconstitutional provisions of the Violent Crime Control and Law Enforcement Act of 1994, which outlawed firearm products manufactured by appellants, some by name, and others by description. While we found standing to challenge the regulation of the named products, we held there was no standing as to the products outlawed only by description. See Navegar, 103 F.3d at 1001. The Navegar court found the threat of prosecution under the provisions outlawing products by description insufficiently imminent to support standing on the record before it. Those latter provisions outlawed firearms in language so general that the court found it impossible to foretell precisely how these provisions may be applied. Id. Further, the Navegar court found insufficient evidence of the government's intent to enforce the generic portions of the Act against the specific parties before it. Id.
While I acknowledge that the majority is correct that Navegar can be read as controlling the case before us and barring standing, I think it is distinguishable. The allegedly constitutionally protected conduct in the record before us is clearly defined and clearly unlawful under a statute that the District apparently enforces regularly, and under which there is certainly no doubt that plaintiffs reasonably apprehend enforcement. I would therefore find the line of cases represented by American Booksellers, rather than Navegar, controlling.
For the reasons set forth above, I respectfully dissent.
The DC Court of Appeals has issued an opinion in the controversial 2nd Amendment case Seegars v Ashcroft. As I had expected, the ruling went against us on procedural grounds; the court refused to strike down the laws in question because the plaintiffs had not been prosecuted under those laws -- they had filed suit prior to any enforcement action on the basis of their declared intent.
The best way to understand this is to think of the judges splitting legal hairs in an attempt to avoid actually ruling on the 2nd Amendment issue that is the core of the case. Rather than rule on the merits, the judges ruled that none of the plaintiffs have "standing" to bring suit. This is sort of like saying that you can't sue someone for threatening to hit anyone who bothers him; you can only sue them if they actually hit you, or maybe if they wave their fist in your face specifically. It makes sense for individuals... but it makes challenging a criminal statute risky when the person threatening you is the government.
This decision is a mixed blessing for gun owners. It does not support a 2nd Amendment right, but it also does not deny one, and it explicitly reverses the lower court's decision for the one plaintiff in Seegars who could claim standing. As such, the lower court's decision on the merits of the 2nd Amendment (a very unfavorable decision) is expunged, and we're back to asking how, exactly, a challenge to the law can be brought. Most gun owners aren't willing to deliberately put themselves at risk of a felony conviction to challenge this law; and that appears to be exactly what the Appellate Court here is saying we need to do.
Disappointingly, the panel appears to be applying a different standard to the 2nd Amendment than it does to the 1st:
For preenforcement challenges to a criminal statute not burdening expressive rights and not in the form of appeal from an agency decision, our circuit s single post-United Farm Workers case appears to demand more than a credible statement by the plaintiff of intent to commit violative acts and a conventional background expectation that the government will enforce the law.
As you can see, things would be somehow different if the burden was being placed on expressive rights rather than gun ownership rights. This may be reflective of the state of 2nd Amendment case law more than the individual judges in this case, because the 1st Amendment standards are well-established while the 2nd Amendment enjoys virtually no protection from the courts at present. While the decision does seem to follow precedent (particularly Navegar), that does not make it correct. It is in my opinion clearly erroneous on this point.
In fact, the decision makes comments about Navegar that I read as hinting at the same view. Navegar is binding precedent for this court, and so the court cannot simply ignore it; the decision notes the "tension" between the standard in Navegar and the standard applied in other situations. Or, in other words, they don't like it either, but they feel they must follow the Navegar precedent.
There is a dissent by Judge Sentelle which makes many of these points. I will reproduce it in another post.
UPDATE: I am tracking the blogosphere response to the ruling.
Seegars v Ashcroft: Paying the Piper
A while ago, I made an effort to obtain the court documents in Seegars v Ashcroft, most of which were not generally available. In particular, these four documents had to be purchased:
The total bill came to $398.81. The tip jar on the right collected $30. While I greatly appreciate those who chipped in at the time, there's a big difference in those numbers. So, if you liked that series and want to see more of that sort of reporting, hit the tip jar. My time is free; access to the documents isn't. It would be nice if I could tip the person who got them for me, and who was kind enough to provide this first-person account of the court hearing too.
If you've ever wondered why lawyers (disclaimer -- I am not a lawyer) charge insane fees, this is one reason.
Seegars v Gonzalez: Government's opposition to rehearing...
A few months ago I posted commentary on the petition for rehearing in Seegars v Gonzalez. That petition followed the decision by the DC Court of Appeals. If you're having trouble keeping track, well, so am I... at any rate, the way we left the case, the ruling from the three-judge panel was unfavorable, but still left us better off than the ruling pre-appeal. (It's better to lose on a technicality that lets the court dodge the issue than to lose on the merits and set even more unfavorable precedent for the 2nd Amendment). The petition requests a hearing en banc (that is, before all the judges on the appellate court), and of course the government has the opportunity to respond and argue against such a hearing; that response is what I will be commenting on.
The government's arguments are, in brief:
Is the risk of messy precedent a valid basis for denial?
Well, sort of. Concern for the neatness of precedent should not stand in the way of justice, but a judge doesn't have to explain himself or his reasons for denying or voting against an appeal. Furthermore, there are a lot of cases where minor errors might arguably have been made, but where those errors did not unjustly alter the outcome of the case. Granting an appeal is motivated either by a desire to correct a clear error, set new precedent, or clarify the application of existing precedent. This argument amounts to saying that the present case won't result in clear and unambiguous precedent and doesn't constitute clear error.
It's reasonable to make those arguments, and particularly so in this case, since the case is clearly intended to set precedent. However, I don't buy it. While Seegars is definitely messy, it's dealing with the blanket abridgement of a fundamental, Constitutionally-protected right. That makes it a matter of justice, not just neatness, if the panel hearing got it wrong. Of course, if most of the judges don't think that the right to keep and bear arms is protected, then they won't be worried about setting precedent anyway.
What this argument is really aimed at, I think, is Parker v DC. It's saying, in effect, that judges who want to set 2nd Amendment precedent should look to the Parker case because it's cleaner. That's me reading in between the lines, but it seems pretty straightforward. Judges who want to set a clear 2nd Amendment precedent might be swayed by this argument, those who want to avoid it will vote against rehearing the case anyway. This is a fairly cynical point, since it can be assumed that the government doesn't want to set a clear 2nd Amendment precedent unless it's sure to be a favorable one.
Would it be illegal to remove a trigger lock in self-defense?
The question of whether the District would prosecute a self-defense shooting with a firearm illegally rendered temporarily useful (by removing the trigger lock) is unclear. It's true that standing is hard to establish for speculative cases. That point is countered by the fact that the nature of the situation is out of the plaintiff's control; Hailes would hardly choose to be attacked by a criminal in order to press her case!
There are two relevant cases that come to mind here:
I choose instead to believe that carrying an unregistered firearm in the District is either legal or illegal, regardless of the criminal actions of others not under my control.
Frankly, I'm surprised at the persistence from the government's legal team on this issue. Is it the policy of the District not to prosecute self-defense shootings if the firearm was otherwise stored legally and the trigger lock was back in place when the police arrive? Maybe they wouldn't prosecute it if the gun and the shooting were otherwise legal, but I wouldn't want to bet the rest of my life on it.
My take on this point is that they are trying to avoid conceding the standing question by accident, as the District's counsel did in Parker v DC by making clear and unambiguous threats of prosecution. Instead they want to cloud the issue by suggesting that they might not prosecute a self-defense case, even though they have done so in the past.
Do the Seegars plaintiffs have standing for a pre-enforcement challenge?
Obviously, I think they do. Legal arguments have gone back and forth over this point repeatedly in both this case and in Parker v DC. Just as obviously, the government thinks that there is no standing here.
One new element in this opposition brief is an explicit claim that the Supreme Court has set up an exception to the general rule against pre-enforcement review of criminal statutes for those statutes that are alleged to impinge on "freedoms of expression". They cite Dombrowski v Pfister (1965), a case which arouse out of the McCarthy era; it was a pre-enforcement challenge against the "JOINT LEGISLATIVE COMMITTEE ON UN-AMERICAN ACTIVITIES OF THE LOUISIANA LEGISLATURE". That case found that the plaintiffs did have standing despite the pre-enforcement nature of their suit, so why is the government citing it?
Simple: they are seeking to establish that the standard for pre-enforcement review is different for cases involving "freedom of expression" than for other Constitutional rights. As a matter of pre-existing precedent they appear to be correct. However, logically their argument is fairly weak. They are trying to argue for a narrow, expression-focused exception for pre-enforcement relief, which implies cases that do not involve expression do not merit such relief and must mount their Constitutional arguments at their criminal trial.
Most Constitutional rights other than the First Amendment have relatively little opportunity for injunctive relief. It's not sensible to request an injunction against "cruel and unusual punishment" absent a conviction; nor to request an injunction requiring due process of law before it has been denied you. The government has not sought to quarter its soldiers in our homes, and an injunction against a legal compulsion to incriminate oneself requires an that the legal compulsion be written and enforced. Nor could one sensibly demand an injunction against a warrantless search of one's papers and effects unless such a search had already occurred or was imminently threatened.
In short, most of the court precedents protecting our Constitutional rights are defensive in nature because they are typically issued in response to illegal actions in the context of a trial or investigation. The First Amendment, however, has receives the benefit of a chilling effect doctrine; that is, the idea that protected speech may be restricted by generalized threat of prosecution as much as by actual prosecution.
The Second Amendment should grant similar protection to gun rights, lest the chilling effect of threatened prosecution and the effect of massive regulations infringe the right to keep and bear arms by intimidation alone.
The government additionally acknowledges tension between the First Amendment cases (which allow for pre-enforcement injunctive relief in "freedom of expression" cases) and the Navegar standard (which allowed a pre-enforcement challenge for a case not related to freedom of expression). They appear to not be relying on Navegar for the standing question, in favor of this new freedom of expression angle.
What about administrative remedies?
There is a substantial amount of time devoted to the issue of "administrative remedies culminating in judicial review". In practice, that means that, according to the government's argument, the plaintiffs should have tried to register a handgun, been denied, and appealed the denial as provided for in the law -- the final steps of which involve judicial review of the denial.
There are two reasons that I can see for not taking the administrative path to judicial review. The first is simple: others tried it, shortly after the law was passed, and lost. The outcome of the "administrative review" would be foreordained, and the judicial review scarcely less so given binding precedent in that court.
The second reason is a little more complex. The core question is jurisdictional; the District of Columbia lives in a strange legal realm somewhere between a state and an arm of the Federal Government. The incorporation doctrine, and the 2nd Amendment's second-class status under that doctrine, suggests that a 2nd-Amendment claim could not be asserted successfully against a State in State court; the State would not be bound by it (until, and unless, the Supreme Court incorporated the 2nd Amendment in a manner similar to the 1st Amendment and some others). Since in some ways Congress has provided a court system for the District that it wishes to treat as a State court, it can be argued that the District courts are not bound by an unincorporated 2nd Amendment.
The counterargument is that the District is a Federal territory, and it's court systems and laws are derived from the federal legislative authority. Under this theory the 2nd Amendment binds the District legislature and court systems just as strongly as it does the three branches of the United States government. Bringing suit in federal court rather than following the administrative procedures in District court ensures that the court cannot hide behind the unincorporated status of the 2nd Amendment; it's a question of federal law, brought in federal court, and bound by the federal Constitution.
It is a minor weakness in the case for standing, but only a minor one. The government has raised the issue before (in the oral arguments), but the three-judge panel ignored that line of reasoning when coming to their decision.
As if Kelo v New London wasn't bad enough for one day, the petition for rehearing in Seegars v Gonzalez has come back denied. That leaves the decision from the three-judge panel as the current law. Options for the Seegars plaintiffs now include petitioning the Supreme Court to hear their case, or simply giving up and allowing the ruling to stand.
Since the whole idea behind the Seegars and Parker cases was to get before the Supreme Court, I would guess that the NRA will petition the Supreme Court for certiori. However, there's enough confusion and conflicting motives involved to make that just a guess, not a sure thing -- particularly if they think they have set enough precedent to control the decision in Parker. And given the recent disappointing decisions from the Supreme Court (Kelo v New London, Gonzalez v Raich, US v Stewart), along with the possibility of favorable Bush appointees, it may be smarter to avoid the present court.
Initial reports have the voting on the case as 6-3-1 (that is, six against rehearing; 3 for rehearing; 1 abstaining or not voting). I wouldn't be surprised if Janice Rogers Brown is the abstaining vote, since I believe she is now on the circuit but hasn't participated in any part of the case before.
The denial doesn't come with an substantive opinion, just the denial; however, reports suggest that there Sentelle wrote a dissenting opinion, Ginsburg wrote a concurring opinion, and Williams wrote a "statement" that could be anything. I'll post those if I can get my hands on them.
There's now a deadline for further briefing in Parker v DC (July 22nd), which had been stayed pending results from the Seegars case. There are outstanding motions in that case, and the court's request for further briefing suggests that it intends to move forward with the Parker case.
UPDATE: More information coming in. We can't yet be sure of who voted how, exactly, but I've made an educated guess based on the rehearing-en-banc denial (which I can't post; but it doesn't say much anyway). Here's my guess at the vote talley:
I'm basing those votes on the en banc denial ruling, which indicates the decision to deny along with the specific judges voting in favor of rehearing. There's a "statement" by Williams that is not characterized as either dissenting or concurring, which I suspect means that Williams is the abstention. However, that's a guess; we only know for sure the judges who voted yes and Ginsburg (because of her concurring opinion).
It's possible that Williams voted "no" and wrote about it, while someone else abstained and didn't feel any need to explain why. Since Williams has already participated in the case, an abstention at this point seems a little odd, but his statement will no doubt illuminate the question.
Careful readers will recognize that Janice Rogers Brown did not vote. She's still finishing things up in CA, presumably.
UPDATE: Williams is a senior judge in the DC Circuit. According to the handbook, senior judges do not have a vote on en banc petitions, but may request a vote if they sat on the panel for that case. That's probably exactly what happened here.
Seegars v Gonzales: Details on the Denial...
Earlier, I wrote about the decision to deny rehearing to the Seegars case at the DC Court of Appeals. I've now obtained more details on that ruling, including the full text of each statement accompanying the denial. The most interesting part of the additional information is Williams' statement; it suggests that had he not felt bound by precedent, he would have voted our way on the three-judge panel (as my guest-witness thought might happen).
I'm retyping portions of the opinions below; typos and errors should be presumed to be mine.
Although the Ginsburg opinion is labeled as a concurring opinion, he is the only judge to write an opinion favoring the denial.
The court properly denies the appellants' petition for rehearing because this case does not present a circumstances in which a plaintiff is "required to await and undergo a criminal prosecution as the sole means of seeking relief". Babbit v United Farm Workers Nat'l Union, 442 US 289, 298 (1979). The plaintiffs challenging the pistol regulation, as both the panel and the district court observed, see F.3d 1248, 1256, (D.C. Cir. 2005); 297 F. Supp.2d 201, 216-17 (D.D.C 2004), could have applied to register a pistol and then challenged the subsequent denial of that application on the basis of the Second Amendment in the courts of the District of Columbia, see generally D.C CODE 2-510(a), 7-2502.10(b), 7-2507.09; Fesjian v Jefferson, 399 A.2d 861, 863 (D.C. 1979) (entertaining challenges under the Equal Protection Clause and the Takings Clause to D.C. gun statute upon appeal from denial of registration), and thereafter, if necessary in the Supreme Court of the United States, see 28 U.S.C 1257. Because the appellants have, as the Government argues, a ready means of presenting their constitutional challenge, it cannot fairly be said that a criminal prosecution is their "sole means of seeking relief".Williams, who wrote the unfavorable opinion in the 3-judge panel, writes here to explain why he called for rehearing the case despite his panel ruling. Astute readers will recall that I speculated as to Williams' statement, wondering if it had been written to explain an abstention from the vote. It looks like I was right. Williams appears to have abstained from the vote despite calling for rehearing the case by the full circuit. I suspect that he felt it appropriate to abstain from the vote since he wrote the decision in question, even if he would have voted to rehear -- certainly not the usual direction of bias for the author of a decision being considered.
His statement makes his opinion clear, and explains somewhat more clearly the adverse ruling he wrote earlier for the three-judge panel. Specifically, sitting as a member of that panel, Williams felt constrained by precedent that he considered to be binding. Thus, even though he thought the Seegars plaintiffs deserved standing, he could not rule in their favor due to adverse precedent... even though he disagreed with the precedent!
The constraint of precedent upon lower courts is both why the liberal judges have been so successful in advancing their agenda in the court system as well as why we will have a great deal of difficulty turning back the clock. Every time we wish to overturn a bad decision, even an activist one, we will be faced with the unenviable task of convincing judges who believe in judicial restraint to overturn precedent. In order to do that properly we need to make a good case in court -- and not only in one court but in successive courts until our appeal has reached a court equal to or higher than the court that set the precedent. In many cases, that will be the Supreme Court.
That legacy of liberal precedent is why the Senate Democrats are desperately trying to block the judicial confirmation process. They want middle-of-the-road judges who may lean conservative but who will be reluctant (and to some degree, rightly so) to reverse prior decisions. It will not be easy to change the balance of power in the courts. And it will be even less easy to attack the foundational precedents of the liberal agenda when our own judges are bound by their own sense of the law rather than the result.
That doesn't mean we should become results-oriented. It just means that we have to work that much harder to overcome the obstacles placed in our way.
With no further ado, Williams' statement:
I write briefly to explain my call for rehearing en banc on the panel decision, which I wrote. As a panel we were constrained by recent circuit authority, Navegar, Inc v United States, 103 F.3d 994 (D.C. Cir. 1997), even though, as my opinion for the court made clear, it appeared to be in conflict with an earlier Supreme Court decision, Babbitt v United Farm Workers Nat'l Union, 442 U.S. 289 (1979). The essential issue was whether plaintiffs' injury -- their inability, on pain of criminal sanction, to possess and use guns that they believed critical for their self-defense -- was sufficiently imminent to qualify for Article III standing. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992). The imminent of the threat to their security matched the imminence of the threat of prosecution; the greater the probability of enforcement, the greater the pressure to forgo what they saw as lawful and needed security precautions. And the defendant governments in no way suggested any reluctance to enforce the laws to the hilt. Although the threat of prosecution appeared as imminent as in United Farm Workers, Navegar demanded a higher level of imminence, indeed one rarely attainable in practice.Sentelle, dissenting:
With one distinct but significant exception, I concur in the ideas and reasoning expressed in the separate opinion of Senior Circuit Judge Williams. For the reasons expressed in my dissent in the panel opinion in this cause, Seegars v Gonzales, 396 F.3d 1248, 1256 (D.C. Cir. 2005), I do not accept the proposition that Navegar, Inc v. United States, 103 F.3d 994 (D.C. Cir. 1997), is controlling on the question of standing. With that one reservation, I join in the observations of Senior Circuit Judge Williams concerning the standing of appellants to bring this action and dissent from the denial of en banc.
Recently, I've had a lot to say about Seegars v Ashcroft, a lawsuit seeking to overturn the DC ban on firearms useful for self-defense. One of the interesting things about that case is the arguments that the attorneys for the District of Columbia have made: specifically, that there isn't an imminent threat of prosecution for violating the laws.
I've used the case of Carl Rowan to illustrate this argument; Carl was an anti-gun advocate who had absolutely no apparant moral problems keeping a handgun in his District home. He was charged with a felony when he shot one of two intruders on his property. Although he was acquitted, there's no dispute about the facts -- the case is one of the clear-cut examples of modern jury nullification. But Carl Rowan was not charged until he actually shot someone, which lends some credence to the idea that the District's gun laws aren't enforced vigorously.
There's another case that was recently settled in DC that is an even better example of this uneven enforcement:
Nuggets forward Rodney White pleaded guilty to two weapons charges and agreed to 100 hours of community service to get a third charge dropped. White pleaded guilty Tuesday in Washington, D.C., to charges of possessing an unregistered firearm and unregistered ammunition. Prosecutors agreed to dismiss a charge of carrying a pistol without a license if White completes his community service in Washington by Sept. 6.
Although this famous basketball player possessed a firearm and ammunition in the District, both misdemeanors, these violations were discovered due to reports that he was driving around shooting into the air. That's "carrying a pistol without a license", and if I were prosecuting I'd throw in a charge of reckless endangerment for each shot, since he doesn't seem to have been shooting at anything in particular. The charge of carrying without a license is a felony and it would bar Rodney from ever possessing a firearm again, were he convicted of it.
So it's very convenient for him that the government is willing to make a deal. But it's pretty damn convenient to the government too -- since it's arguments in Seegars v Ashcroft are before an appeals court right now, and it is on the record as arguing that the gun laws in the District do not come with an imminent threat of prosecution. If it takes shooting into the air from your car to get charged, and the prosecutors are willing to drop the felony charge in return for community service, there's a lot of wiggle room for ordinary, law-abiding gun owners who "forget" to register their handguns in DC, right?
Wrong. Anyone who isn't an NBA star will get the book thrown at them as soon as their politically-incorrect possession is discovered. But this story of leniency under extreme circumstances is what will be in the paper while the judges are trying to decide whether the plaintiffs in Seegars have standing to sue because of an imminent threat of prosecution.
How very, very convenient that is.
Seegars v Ashcroft: A hearing before the Court of Appeals
Seegars v. Ashcroft was argued this morning before a three judge panel of the United States Court of Appeals for the District of Columbia Circuit. That is the federal appellate court which hears appears from the U.S. District Courts located within the District of Columbia.
The panel consisted of three D.C. Circuit judges, David S. Tatel, a Clinton appointee, David B. Sentelle, a Reagan appointee, and Senior Judge Stephen F. Williams, also a Reagan appointee. I reproduce their bios from the DC Circuit website for background. ..
Judge Sentelle was appointed United States Circuit Judge in October 1987. He is a 1968 graduate of the University of North Carolina Law School. Following law school, he practiced with the firm of Ussell & Dumont until he became an Assistant U.S. Attorney in Charlotte, N.C. in 1970. From 1974 to 1977, he served as a North Carolina State District Judge but left the bench in 1977 to become a partner with the firm of Tucker, Hicks, Sentelle, Moon & Hodge. In 1985, Judge Sentelle joined the U.S. District Court, Western District of North Carolina, in Asheville, where he served until his appointment to the D.C. Circuit. Judge Sentelle is the Presiding Judge of the Special Division for the Purpose of Appointing Independent Counsels (1992-present). Judge Sentelle serves as President of the Edward Bennett Williams Inn of the American Inns of Court.
Judge Tatel was appointed to the United States Court of Appeals in October 1994. He graduated from the University of Michigan in 1963 and the University of Chicago Law School in 1966. Following law school, he taught for a year at the University of Michigan Law School and then went into private practice with the firm of Sidley & Austin in Chicago. From 1969 to 1970, he served as Director of the Chicago Lawyers' Committee for Civil Rights Under Law, then returned to Sidley & Austin until 1972, when he became Director of the National Lawyers' Committee for Civil Rights Under Law in Washington, D.C. From 1974 to 1977, he returned to private practice as associate and partner with Hogan & Hartson, where he headed the firm's Community Services Department. He also served as General Counsel for the newly created Legal Services Corporation from 1975 to 1976. In 1977, Judge Tatel became the Director of the Office for Civil Rights, U.S. Department of Health, Education and Welfare. He returned to Hogan & Hartson in 1979, where he headed the firm's education group until his appointment to the D.C. Circuit.
Judge Williams was appointed to the United States Court of Appeals in June 1986, and took senior status in September 2001. He graduated from Yale College (B.A. 1958) and from Harvard Law School (J.D. 1961). Judge Williams was engaged in private practice from 1962 to 1966 and became an Assistant U.S. Attorney for the Southern District of New York in 1966. From 1969 until his appointment to the bench, Judge Williams taught at the University of Colorado School of Law. During this time, he also served as a Visiting Professor of Law at UCLA, University of Chicago Law School, and Southern Methodist University and was a consultant to the Administrative Conference of the United States and the Federal Trade Commission.
It is, of course, risky to assume from any judge's background how he will resolve any particular issue. One may assume, however, reasonably safely that Judge Tatel is decidedly more liberal than Judge Sentelle. I am told Judge Williams has a libertarian outlook though I have not studied his opinions. It is also risky to assume how a judge will resolve an issue based upon his statements at oral argument. Many judges play devil's advocate in order to look for weaknesses in their view of the case and to look for supporting arguments of counsel on areas which are troubling to them. That being said, at this point we have only the statements at oral argument and the questions asked to guide us on how the DC Circuit may resolve the issues in Seegars.
The substantive issues in Seegar involve a challenge to three provisions of the DC code that: (1) require all handguns to be registered, but prohibit the registration of any handgun not registered before 1976 when the law took effect, effectively prohibiting virtually all DC residents from owning handguns; (2) prohibit the possession of a working gun of any type in the home by reguiring any legally registered firearm to be trigger locked or disassembled at all times except when used for sporting purposes (for which there are none within the District of Columbia); and (3) prohibit the carrying of a handgun without a license by the Chief of Police to do so, even within ones own home, and for which the Chief of Police has declined to issue any such licenses. The effect of these provisions is to ban the use of hand guns for self defense even within ones home.
In the spirit of full disclosure, you should be aware that I am a plaintiff in the related Parker lawsuit, which also seeks to overturn these provisions. Parker is on hold at the DC Circuit at the moment until Seegars is decided.
In the District Court, from which Seegars is on appeal, the Court held that the Seegars plaintiffs lacked standing to contest the DC provisions, except as to one plaintiff with respect to the triggerlock provision. That plaintiff, who owns a registered shotgun, alleged that her Second Amendment rights were violated by the triggerlock provision. The District Court held that while she had standing to contest that provision, her Second Amendment rights were not violated because she does not have an individual right to keep and bear firearms apart from service within a militia.
The bulk of the discussion dealt with the issue of standing. Standing is a concept that requires that the plaintiff have a real stake in the outcome of a lawsuit. Its derivation lies in the wording of Article III of the Constitution which extends the judicial power of the United States to "cases or controversies." The concept of standing arose to ensure that real controversies exist among litigants who have a real stake in the outcome. The concept requires that a litigant suffer injury from the act complained of and that the relief requested of the court will remedy that injury. The federal courts do not give advisory opinions, but they will render a declaratory judgment, assuming that the standing requirement is met.
Plaintiffs argued they had standing to contest each of these three provisions. The government, both the United States and the District of Columbia, asserted that the plaintiffs all lack standing, including the plaintiff with the registered shotgun.
The key issue is whether the plaintiffs must violate the law in order to test it or whether the existence of the law itself is sufficiently injurious to grant them standing to challenge the law in federal court before any prosecution is commenced. In order to beat the standing objection, plaintiffs have to deal with the case of Navegar, Inc. v. United States, 103 F.3d 994 (D.C. Cir. 1997).
In that case, Judge Tatel, then Chief Judge Wald and current Chief Judge Ginsburg, held that all but two plaintiffs lacked standing to contest the Federal so-called assault weapons ban on commerce clause (i.e., that the commerce clause does not grant Congress the power to pass such legislation), bill of attainder, and vagueness grounds. The distinction the court makes is that of whether the act outlawed weapons by name or by characteristics. As to the outlawing of weapons by name, the Court held that the manufacturers had standing to contest the law. The Court's reasoning is reprinted below:
However, as to that part of the act which outlawed the manufacture of so-called assault weapons by their characteristics, the Court found there was a much more attenuated threat of prosecution.
Navegar thus seems to turn on the likelihood of prosecution. There is, however, no suggestion in the record of Seegars that the District of Columbia does not vigorously prosecute gun possession cases.
As Judge Williams acknowledged at oral argument this morning, Navegar presents a serious issue for the plaintiffs. Judge Sentelle, however, seemed to have less of a problem with standing, at least if an enumerated Constitutional right is involved. Counsel for the plaintiffs, Stephen Halbrook sought to emphasize that the plaintiffs were located in high crime area to support the standing argument. Judge Sentelle challenged him whether the plaintiffs would lack standing if they were in low crime neighborhoods. Halbrook said he thought the plaintiffs would still have standing, but perhaps with a less strong case. Judge Sentelle pounced on him suggesting then that whether the plaintiffs were in high or low crime areas was not determinative, and ultimately seeming a bit frustrated suggested that a constitutional right was at stake here but not in Navegar.
Judge Sentelle pressed his point with the government. He asked counsel for the government whether a person would have standing to contest a District of Columbia law which made possession of the Koran a criminal offense. Navegar did not raise a Second Amendment claim. Rather it denied standing to claims based on vagueness and power under the commerce clause. Counsel for the government sought to make a distinction between a first amendment challenge -- such as a law outlawing the Koran -- and other alleged Constitutional rights. Judge Sentelle, however, called him on this, asking if the Supreme Court has ever made such a distiction. Counsel for the government ould only only point to cases giving parties standing in certain circumstances to assert the First Amendment rights of third parties. Sentelle dismissed this argument since third party rights are not at stake in this case.
Counsel for the District of Columbia posited a more difficult argument however: that plaintiffs have an administrative remedy at least as to the pistol possession prohibition that avoids placing plaintiffs between a rock and a hard place. That argument is that plaintiffs can seek to register a pistol and appeal the certain denial of registration to the DC courts thereby asserting their second amendment rights. That argument may have some appeal to the court since it avoids the inherent unfairness of forcing someone to violate the law in order to assert a claimed constitutional right. Practically, that would be a disaster to plaintiffs because the District of Columbia Court of Appeals, the highest city court, has already rejected a Second Amendment challenge to the pistol possession prohibition, and the United States Supreme Court is highly unlikely to take such a case from the DC Court of Appeals.
Even Judge Tatel, however, seemed to agree that the triggerlock provision lacked any administrative remedy. Moreover, Judge Sentelle asked the government a slightly different hypothetical: what if the District outlawed possession of the Koran, but provided an administrative remedy, to contest it. Again the government was left suggesting that there is a distinction between First Amendment claims and others. That does not appear to be a winning argument, at least with Judge Sentelle.
On the substantive issues, the judge's comments were encouraging. Judge Sentelle recited that the Supreme Court has said that "The People" means the same in the First, Fourth, Ninth and Tenth Amendments as it does in the Second Amendment. That is a key argument the plaintiffs are making in this case to support the argument that the Second Amendment grants an individual right.
Judge Williams asked the government to explain that if the Second Amendment does not protect an individual right, why the Supreme Court in the 1939 Miller decision did not just say so, rather than discussing whether possession of the sawed-off shotgun at issue in that case was encompassed by the Second Amendment. The government's answer can best be decribed as a series of non-answers.
This post can only touch the surface of the approximate one hour of argument. If I had to call the case at this point, I think it looks good for a reversal both on standing and on the merits, though likely on a 2-1 basis. Assuming this happens the issue becomes exactly what the court will do, an issue Judge Sentelle raised. In other words, will the court decide the Second Amendment issue and invalidate the DC provisions, or will it vacate the District Court decision and remand for further proceedings, for example, whether a pistol is an ordinary militia type weapon.
Seegars v Ashcroft: Reports from the Field
My spies have reported in briefly from the Seegars v Ashcroft hearing. The report is fairly positive, with good news and bad news. Judge Sentelle appears to be on the right side of the standing issue and the RKBA issue. Judge Tatel (considered liberal, but whether that's collectivist or libertarian liberal is unknown) did not seem to challenge Halbrook or Cruz (NRA and State amici counsel, respectively) on the meaning of the 2nd. No word yet on the third judge. The bad news is that the government has something fairly powerful on the standing question. A more complete report will follow when ready.
The NRA's lawsuit is toast. That leaves two separate forces attacking the handgun ban in DC: Parker vs DC (sponsored by the Cato Institute) and some Congressional legislation introduced about the same time as the NRA lawsuit that is likely going nowhere.
Stop the Bleating brings us an update on the Seegars v Ashcroft case, which is the NRA's chosen vehicle for challenging the DC handgun ban, along with some speculation about the judge's leanings. The case was originally dismissed; this is an appeal on the dismissal, and a victory here will only send the case back to the lower courts for trial -- I think. The outcome of such a trial is unlikely to be positive even if the appeals court grants a trial, since the original judge has already announced his beliefs in the collective-right interpertation of the Second Amendment.
But it's good to keep fighting. For various reasons that need not be stated, a ruling by the Supreme Court on an issue like this (a blatant ban on handguns) will provide a definitive answer to a very pressing question. They can't duck the issue forever.
In the Beginning, several plaintiffs residing in Washington DC filed a lawsuit seeking to overturn the ban on handguns in the city (as well as the effective ban on other firearms useful for self-defense). The Cato Institute helped out with legal representation. Following Ashcroft's change of policy on the Second Amendment within the Justice Department (he ordered the right acknowledged as an individual one), the stage was set to overturn draconian laws like those in DC.
This is the first article in a series discussing in depth the Seegars vs Ashcroft case prior to its appeal hearing on the 17th.
The plaintiffs in Parker vs DC were an ordinary citizen who wanted to own a handgun for self-defense, a Special Police Officer licensed to carry a handgun while working but not at home (and who additionally applied for a license to do so, but was denied), a gay man who has been assaulted for his sexual preferences and has in the past defended himself from such an assault with a handgun, and a legal gun owner in DC who is forced to keep her self-defense gun disassembled and inoperable.
The suit is filed against the District of Columbia as a political entity and the Mayor of DC both personally and officially.
The complaint puts the issue right out in front of the court:
At a minimum, the Second Amendment guarantees individuals a fundamental right to possess a functional, personal firearm, such as a handgun or ordinary long gun (shotgun or rifle) within the home. Defendants currently maintain and actively enforce a set of laws, customs, practices, and policies which operate to deprive individuals, including the plaintiffs, of this important right. Any such exercise of their Second Amendment rights would subject plaintiffs to criminal prosecution, and would lead to incarceration and/or fine.
The gun laws detailed in the complaint are horrifying. Handguns are prohibited unless registered prior to 1976; no new registrations are permitted. Long guns must be stored disassembled and non-functional. Handguns may not be carried on your own property, even if they were registered before the cut-off date, even simply to move from one location to another. The first offense is a misdemeanor, and the second a felony with up to 5 years jail time.
The goal of the lawsuit was to establish that the Second Amendment did not permit such draconian restrictions, and to block enforcement of the law. It was filed in the perfect time and perfect place to get a favorable ruling. The gun laws in the capital are the strictest in the nation, including de-facto bans. Despite these laws, crime rates in the capital are higher than almost everywhere else.
This lawsuit is something the NRA has been ducking for years, preferring a gradual strategy which they analogized to the civil rights movement. Strong gun-rights advocates felt, however, that the NRA was trying to duck the question to avoid negative rulings that would set precedents against the 2nd Amendment. This does nothing to correct the existing precedents, nor to advance gun rights. In Parker vs DC, some other organizations took the offensive.
The NRA responded with Seegars v Ashcroft, a case addressing the same issue in the same region. And the NRA appears to have done so in order to spoil the earlier case, a suspicion which many considered confirmed by their motion to consolidate the two cases. Their motion to consolidate was denied, however. Read the opposition brief to find out why.
The Parker v DC case moved forward on its own, a victory for the people behind the case. They filed a
The defendents filed a motion to dismiss based on the issue of standing. This is the legal terminology for the "collective rights" argument; ie, the plaintiffs in the case are not members of the militia, and the 2nd Amendment only protects militia members. Because they aren't protected by the 2nd, according to this theory, they have no standing to request relief from the courts; their rights have not been harmed.
The plaintiffs of course opposed this motion. They make several important points:
Unfortunately, but not unexpectedly for a lower court judge in the capital, the judge granted the motion to dismiss. That ended the case at the district court level, with an unfavorable ruling that the 2nd Amendment was a collective right. If things had stopped here, the NRA's reluctance to continue onwards could be understood.
But they did not stop there. The case was appealed to the next level up. That appeal generated more than a little attention, including several amici (friend of the court) briefs, which I will be posting and dissecting as I have time and am able to acquire them. But all that came to a screeching halt with this order staying the case pending the resolution of Seegars v Ashcroft.
And that is why, although Parker vs DC is probably the better case, I will be spending a lot of time and energy following the NRA's pet case instead. Once that case is decided, Parker vs DC will likely follow the same resolution if practical. That's the point of staying a case pending resolution of another, after all.
It should probably be noted that this is not legal advice, and I am not a lawyer; merely an interested layman.
Seegars vs Ashcroft: Countdown to the Court Hearing
There are only a few days remaining before the scheduled appeals court hearing in Seegars v Ashcroft, the NRA's lawsuit challenging the DC gun ban. I've dug up the documents, and I'm going to be bringing you my analysis of what has been submitted to the court. I've arranged with another interested party to guest-blog the hearing itself -- more on that when the time comes.
The good news: we're not talking lightweight stuff here. There are multiple legal briefs running over 70 pages filed by both sides, along with a number of amicus curae documents -- including the Violence Policy Center, which may be a friend of the court but is hardly a friend of ours.
The bad news: obtaining legal documents is not cheap. I'm putting up a tip jar specifically for the purpose of obtaining legal documents in this and similar cases. Funds deposited there will help me reimburse volunteers who provide their time and money to get the information out. My time and opinion are free; access to the documents isn't. There are some available from the court that I can't get access to otherwise.
So if you like the articles I'll be posting on this case, please remember to drop something in the tip jar. The more than the tip jar can collect, the more documents I make available or analyze on your behalf.
I'll be listing the articles I post on this topic below. The first set uses freely-available documents.
UPDATE: Here's the second batch of free documents, along with a great big thanks to the person who chipped in a very respectable amount to help out.
The first batch of expensive documents will be posted early Wednesday morning, just in time for the arguments. Actually, in this case, my analysis will be posted without the original source documents; the source for this batch claims copyright to their reproduction but not to the originals, which means I can't simply post them raw. Silly, but not worth the legal dust-up over it.
UPDATE: Here's the first batch of purchased documents, and a note on the legislative remedy.
UPDATE: My contact at the hearing has filed a preliminary report.
UPDATE: Please welcome guest-blogger George Lyon, a very distinguished guest who is putting a great deal of time and effort into advancing our right to arms. He was the source of the preliminary report earlier today, and right now he brings us his eyewitness account and analysis of the Seegars v Ashcroft court hearing.
UPDATE: Tonight's document is the NRA brief, plus the two reports from the courtroom.
Two more documents today. These are the last of the Seegars v Ashcroft documents that I was able to obtain, and I think it brings us up to date with the court. Hopefully a transcript will be posted of the hearing, and if so, I will try to get my hands on it.
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:
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.
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