The National Rifle Association has long hailed itself as the leader in the fight for gun rights. However, the reality of their involvement in the case of District of Columbia v. Heller, No. 07-290 tells a different story, of an arrogant NRA leadership that will stop at nothing, including undermining other cases against gun control, in order to insure that it, and it alone, has the final say in the fight against gun control.
A recent article in the American Bar Association's ABA Journal, published prior to this week's announcement that the Supreme Court will hear arguments in the case, details the counterproductive and sometimes underhanded methods used by the NRA to attempt to defeat the case before it even got to the Court of Appeals. In that article author John Gibeaut tells the tale of how NRA attorney Stephen P. Holbrook of Fairfax, VA filed a competing lawsuit, Seegars v. Gonzales. The Heller case was originally labeled Parker v. District of Columbia. The NRA's purpose was to use Seegars to get the court to consolidate the case with Parker in order to allow Holbrook to argue the case on behalf of the NRA. In other words, the NRA was feeling left out of the case, and they wanted in. What's more, Holbrook filed the case and made the motion in 2003 without contacting the Parker legal team, which was led by Cato Institute senior fellow and attorney Robert A. Levy and Institute for Justice attorney Clark M. Neily III, who were old friends from school. Levy has bankrolled the challenge out of his own pocket. He first started to consider the challenge in 2002, when Levy and Neily began to consider who their plaintiffs might be.
According to the ABA article, in the course of their work, Levy received a phone call from George Mason School of Law professor Nelson Lund, who holds the NRA-endowed Patrick Henry Professorship of Constitutional Law and the Second Amendment. A meeting was set up on August 29, 2002 in a Cato conference room. The article reports that, "In interviews and in court documents, Levy and Neily say the NRA representatives tried to talk them out of filing the case."
The NRA's reason? Fear. They were afraid that the Supreme Court would not support a lower court ruling in favor of gun rights. So they didn't want anyone to engage in a challenge. From the ABA article:
"Lund and Cooper encouraged Parker counsel either not to file the case or, if the case were filed, to build a ‘trap door’ that would give the court a basis, if it chose, to avoid a four-square holding on the Second Amendment and thereby minimize the likelihood of the Supreme Court reaching that issue," the Parker plaintiffs later wrote in a brief detailing a related dispute with yet another NRA lawyer.
There is little doubt that Holbrook was acting under NRA orders. The article quotes NRA lobbyist Wayne LaPierre as saying in an NRA fundraising letter, "For gun owners and NRA members, this is the biggest legal battle that we have ever fought, or will ever fight—and its outcome will probably impact every law-abiding American gun owner. It is a battle we simply cannot afford to lose." [my emphasis]
On Feb. 10, 2003, Levy and Neily Filed Parker v District of Columbia. Seven weeks later, on April 4, 2003, Holbrook filed Seegars v. Gonzalez. "You just don’t do that to another lawyer," Neily says. "Honestly, that set the tone for things. It was not well-received," again as quoted by the ABA article.
The article goes on to describe how the NRA deliberately loaded their case with 5th amendment claims, filed for consolidation of the two cases, and included former Attorney General John Ashcroft as a plaintiff which created a "standing" issue. These machivellian maneuverings by the NRA attorney almost destroyed the case entirely and led to all but one plaintiff being removed from the case. That one remaining plantiff was Dick Anthony Heller, an armed court security guard. Thus, the Federal Court of Appeals almost never got a chance to render its historic decision in favor of the second amendment, all because of the arrogance and fear of the National Rifle Association.
The article quotes NRA attorney Holbrook's disagreement with that assessment saying, "The assumption that the NRA does or doesn’t want a Second Amendment case in the [Supreme] Court is just that—an assumption. We were compelled to put in the federal defendants. What good would an injunction against the D.C. police do if you don’t have one against the federal police or against federal prosecutors? I’ve had enough experience to know that when you challenge a law, you use what works. As a lawyer, you try to help these people and you make allegations in your complaint that might do that."
I'm no attorney, so my opinion has to be taken with a grain of salt, but I would respectfully disagree with Holbrook's assertion. An injunction against the D.C. police that doesn't include a similar injunction against the Federal police or against Federal prosecutors is still quite valuable. Surely such a ruling would establish an enormous, even landmark precedent for future rulings against Federal officers in similar cases. For one who likes to argue that the fight against gun control must be taken in baby steps, Holbrook doesn't seem to appreciate the size of the giant step his argument advocates. The ABA article itself noted that, "NRA lawyers say they’re engaged in nothing more than prudent case selection in much the same way the NAACP incrementally approached civil rights litigation—one baby step at a time."
Despite the fact that the NRA almost destroyed the case, Holbrook claimed that Levy and Neill managed to get the appeals panel they got through sheer luck. He discounted any importance to his own role in the sequence of events.
I hope that the Court finds in favor of gun rights, as it should. The second amendment is very clear in its wording and meaning. If a victory comes, it is also clear that the NRA cannot justifiably taken any credit for the victory and should have to explain to its members why it almost defeated the case. Of course, the reality is that the NRA will slide over that uncomfortable fact entirely, while they continue to raise millions of dollars from unsuspecting members who never thought for a moment that the NRA might be working against their best interests. The only hope for NRA members to ever know the truth is if the information reaches them from outside of NRA channels.
©2007 Walt Thiessen, all rights reserved. You must have written permission from the author in order to republish this work.
Published: Wednesday, November 21, 2007
Last modified: Wednesday, November 21, 2007
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Reader Comments:
Posted By: Maccabees
Date: 2007-11-23 14:30:07
It is my sincerest hope that the collective IQ of the Supreme Court exceeds that of the current administration. This country was founded upon and to give the citizens of this great nation rights. Our founding fathers were not given these rights by their British Masters, they took them at gun point. The current administration has without apology taken our right to privacy, habeaus corpus, the financial stability of this nation, and thrown the good name of this nation down the drain. This administration cannot even define torture. We should all be ashamed of ourselves. We cannot let anyone take away our individual rights to "keep and bear arms". If and when they do, that will not be the end, but as Joseph Stalin described; the beginning of the end. "Ideas are more dangerous than guns. We wouldn't let our enemies have guns, why should we let them have ideas?" Joseph Stalin
Stalin knew that when he could disarm his citizens he could own their minds. They had no choice.
Posted By: Kulindahr
Date: 2008-01-20 22:54:16
As an Endowment member of the NRA, I'd noticed wording in NRA communications about the case that left me wondering. Maybe your article explains why.
Thanks!
Posted By: JIm
Date: 2008-06-26 06:48:55
It really doesn't matter at this point about wording.What matters at this point is one group of people finding ways to take my rights away and another group fighting for my rights.As a 2nd generation,verteran,born in this country, i will not stand by and let special interest groups change the american constitution in any way shape or form.I will participate through elections to keep these people out of office.