Yes, Congress has been through this before. For the first time, however, someone with the heft of Orrin Hatch is leading the charge. Why Hatch? And why his sudden preoccupation with D.C. after 27 years? As Council member Kathy Patterson (D‐Ward 3) put it: “I can’t believe a senator of his stature would waste time on something like that.” Of course, defenseless Washingtonians, at the mercy of the local drug gangs, may have a different view of what constitutes wasted time. Still, that doesn’t explain Hatch’s sudden emergence as a crusader for repeal.
Enter the National Rifle Association, a Hatch supporter (and vice versa), the organization most closely associated with vindicating gun owners’ rights. Now it gets really convoluted, because the facts suggest that Hatch and the NRA are doing everything they can to prevent the Supreme Court from upholding the Second Amendment. Here’s the untold story behind the Hatch bill: It was concocted by the NRA to head off a pending lawsuit, Parker v. District of Columbia, which challenges the D.C. gun ban on Second Amendment grounds.
In February, joined by two other attorneys, we filed the Parker case, a civil lawsuit in federal court on behalf of six D.C. residents who want to be able to defend themselves with a handgun in their own homes. When we informed the NRA of our intent, we were advised to abandon the effort. Surprisingly, the expressed reason was that the case was too good. It could succeed in the lower courts then move up to the Supreme Court where, according to the NRA, it might receive a hostile reception.
Maybe so. But with a Republican president filling vacancies, one might expect the Court’s composition to improve by the time our case was reviewed. More important, if a good case doesn’t reach the nine justices, a bad one will. Spurred by Attorney General John Ashcroft’s endorsement of an individual right to bear arms, public defenders across the country are invoking the Second Amendment as a defense to prosecution. How long before the high court gets one of those cases, with a crack dealer as the Second Amendment’s poster child?
Despite that risk, the NRA seems determined to derail our case. Nearly two months after we filed our lawsuit, the NRA filed a copycat suit on behalf of five D.C. residents and moved to consolidate its case with ours. Both suits challenged the same regulations, asked the same relief, and raised the same Second Amendment arguments. But the NRA included several unrelated constitutional and statutory counts, each of which would prolong and complicate our case and give the court a path around the Second Amendment.
Worse still, the NRA sued not only the District of Columbia but also Ashcroft, presumably because the Justice Department prosecutes felonies in D.C. Yet no NRA plaintiff is at risk of a felony prosecution. Joining Ashcroft simply adds months to the litigation so the court can decide whether he is a proper defendant. Regrettably, we now have two suits, one of which is unnecessary and counterproductive.
Thankfully, on July 8, federal judge Emmet Sullivan, wishing “to avoid any protracted delay in the resolution of the merits in either case,” denied the NRA’s motion to consolidate. That means the NRA failed in its attempt to control the legal strategy. Just one week later, Sen. Hatch introduced his bill. The timing is suspicious, to say the least. If enacted, Hatch’s D.C. Personal Protection Act could result in the dismissal of our lawsuit. After all, plaintiffs cannot challenge a law that no longer exists.
Everything points to an NRA effort to frustrate Parker. Why was the bill introduced by Hatch rather than some back‐bencher? Why not wait for a court decision (the legislative option is always open, even if the court were to go the wrong way on the Second Amendment)? Why did the NRA file its suit at the outset? Why raise extraneous legal claims, then move to consolidate with Parker, a clean Second Amendment case? Why include Ashcroft when he’s so obviously an improper defendant? Essentially, the NRA is saying, “If we can’t control the litigation, there will be no litigation.”
Yes, the rights of D.C. residents can be vindicated by either legislation or litigation. But a narrow bill aimed at the D.C. Code will have negligible impact on gun owners’ rights when contrasted with an unambiguous pronouncement, applicable across the nation, from the U.S. Supreme Court.