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Gun Fight
Libertarians vs. the NRA.


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Ramesh Ponnuru

In February, a group of four attorneys, representing six plaintiffs, filed a challenge to the Washington, D.C., government’s handgun ban. The attorneys believe that their case might lead to a Supreme Court ruling against strict gun control. But they say that their case is being sabotaged — by the National Rifle Association.

The court case is libertarian in inspiration: Two of the attorneys, and one of the plaintiffs, work for the Cato Institute, although the institute itself is not involved in the case. One of those attorneys, Robert Levy, argues that the D.C. law should be brought before the Supreme Court because it is so extreme. “D.C. law is the worst in the country,” he says. “If you have a pre-1977 gun” — that was the year the law took effect — “you can’t carry it from room to room in your own home without a permit, and they haven’t given a permit in 27 years. Rifles and shotguns have to be registered, which they will do; but if they’re kept in the home they must be unloaded and either disassembled or bound by a trigger lock.”

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The plaintiffs are a sympathetic group. The lead plaintiff is a black woman in a high-crime neighborhood. She wants a gun to defend herself from drug dealers, who have threatened her for trying to run them out of business. Another plaintiff has a handgun by day, as he provides security for the Thurgood Marshall Judicial Center, but cannot legally have one at night to defend his own family. A third is a gay man who was able to use a gun, outside D.C., to protect himself from a gay bashing. This is the case you want before the Court, says Levy. “You don’t want some crackhead bank robber wanting a sentence upgrade overturned on Second Amendment grounds.” And because the gun ban is the work of the D.C. government, Levy says, a constitutional challenge to it does not raise the question of the applicability of the Bill of Rights to state governments.

Levy says that the NRA counseled the libertarians not to file their case, because they fear that it would reach the Supreme Court and that the Court, as currently constituted, would issue an unfavorable ruling. In April, however, the NRA sponsored another lawsuit against the D.C. gun ban — and then filed a motion to consolidate the two cases.

The libertarians oppose consolidation. They also want the lawyer in the NRA case, Stephen Halbrook, to recuse himself because he had done research for Levy as the latter prepared his case. “He didn’t get my consent, ask for it, or even inform me,” says a clearly miffed Levy.

The NRA suit challenges the gun ban on Second Amendment grounds, like the libertarian suit. But it also challenges it as inconsistent with the Equal Protection Clause, the Due Process Clause, the Civil Rights Act of 1866, and other statutes. Levy thinks that the NRA is trying to give the courts a way to nullify D.C.’s law without invoking the Second Amendment — and thus keeping that issue out of the Supreme Court. Levy also faults the NRA case for naming Attorney General John Ashcroft as a defendant. He thinks that move will prolong the case, muddy the political waters, and put the legal talent of the Justice Department on the side of the city government.

Halbrook, the lawyer in the NRA case, says that he too wants a Supreme Court decision on the Second Amendment. He says that several of the issues that Levy considers “extraneous” are related to the Second Amendment. For example: “Congress passed a law saying that D.C. could pass reasonable and usual handgun regulations. No other state bans [handguns] so it’s not usual, and it’s not reasonable because Congress has passed laws on three occasions declaring [gun ownership] to be an individual right. So if a court invalidates [the D.C. law on this basis], it’s deferring to the congressional judgment of the Second Amendment. It’s a quasi-Second Amendment claim.”

Halbrook dismisses the conflict-of-interest charge. He wasn’t working for Levy’s plaintiffs, he says. Moreover, he hasn’t switched sides. He’s working to get the gun ban overturned. “So I just don’t understand that there’s a conflict of interest here because we seek exactly the same result.”

Levy responds that it isn’t necessary to switch sides to have a conflict of interest: It’s enough that “your interests are adversarial to your former clients’” interests.

On May 1, Levy and his colleagues filed a motion to oppose the consolidation of the two cases — and a motion to require Halbrook to recuse himself from the case.



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