View Full Version : Robert A. Levy: Should Congress or the courts decide D.C. gun ban’s fate?

04-04-2007, 5:50 AM
Interesting Article. If the NRA doesn't back away from this, they are going to wind up shooting themselves in the foot.

We need them to be a strong force in the world. This could be very bad politically for them. I hope they do the right thing.

WASHINGTON (Map, News) - Could the National Rifle Association and its allies in Congress be undermining the best pro-gun case ever likely to be reviewed by the U.S. Supreme Court?

More than four years ago, three attorneys and I filed Parker v. District of Columbia, a Second Amendment case on behalf of six local residents who want to defend themselves in their own homes.

For reasons that remain unclear, we faced repeated attempts by the NRA to derail the litigation. Happily, the case survived. On March 9, in a blockbuster opinion, the U.S. Court of Appeals for the D.C. Circuit overturned the city’s gun ban — holding that “the Second Amendment protects an individual right to keep and bear arms.”

Parker is the first federal appellate decision to invalidate a gun control statute on Second Amendment grounds. Federal circuit courts covering 47 states have held that there’s no recourse under the Second Amendment when state and local gun regulations are challenged. That means Parker could be headed to the Supreme Court.

Enter Congress and the NRA. First, Reps. Mike Ross, D-Ark., and Mark Souder, R-Ind., introduced the D.C. Personal Protection Act. Then, on March 28, Sen. Kay Bailey Hutchison, R-Texas, followed suit in the Senate. Both bills, pushed hard by the NRA, would repeal the D.C. gun ban.

Ordinarily, that might be a good thing. But passage of the bills would kill the Parker litigation. It isn’t possible to challenge a law that has been repealed. Yet, Sen. Hutchison claims in her press release that she favors “both a legislative and judicial remedy. I hope the Parker case goes before the Supreme Court and that the court asserts that the right to bear arms is an individual, and not a collective, right. ...”


When asked to clarify the NRA’s position, CEO Wayne LaPierre told us in a private meeting, “You can take it to the bank. The NRA will not do anything to prevent the Supreme Court from reviewing Parker.”

Maybe so, but actions speak louder than words. The NRA’s aggressive promotion of the D.C. Personal Protection Act is baffling at best.

Parker is a much better vehicle to vindicate Second Amendment rights than an act of Congress. First, legislative repeal of the D.C. gun ban will not stop criminal defense attorneys and Public Defenders from citing the Second Amendment when they challenge “felon in possession” charges. Thus, if Parker is derailed, the next Second Amendment case to reach the Supreme Court could feature a murderer or drug dealer instead of six law-abiding citizens.

Second, a bill aimed at D.C. does only part of the job. It could be repealed by a more liberal Congress. And it will have no effect on state law outside of D.C. In effect, those who support the D.C. Personal Protection Act will be opposing an unambiguous Supreme Court proclamation on the Second Amendment, applicable across the nation.

Third, the Supreme Court is more conservative today than it’s been for some time, and probably more conservative than it’s going to be. In the unlikely event that five current justices decide to read the Second Amendment out of the Constitution by upholding a total ban on handguns, that would be the time for Congress to act. Until then, the D.C. Personal Protection Act is premature and counter-productive.

Meanwhile, if Congress wants to help, there are positive things it can do. D.C. has no federal firearms licensees. And handguns, unlike rifles and shotguns, can’t be purchased out of state. So even if Parker wins, D.C. residents could not buy a handgun.

Congress should allow interstate handgun sales as long as they comply with the law in both states. And Congress should change how D.C. processes gun registrations. The city requires multiple pictures, fingerprints, and on and on. The process can take months. Congress can mandate that D.C. officials accept the National Instant Check System used everywhere else.

My colleagues and I have drafted alternative legislation — now in the hands of selected senators —that accomplishes those objectives and more, without extinguishing the Parker suit.

Finally, the NRA has suggested that the D.C. Personal Protection Act is “must” legislation. But the D.C. handgun ban was enacted 31 years ago. Why is it only now that legislation must be passed — especially when the effect of that legislation will be to kill the best chance ever for the Supreme Court to affirm that the Second Amendment means what it says?

Robert A. Levy is senior fellow in constitutional studies at the Cato Institute and co-counsel to the plaintiffs in Parker v. District of Columbia.

04-04-2007, 6:13 AM
This is getting more and more annoying.

I'm starting to think the NRA truly is not happy that Cato might be grabbing the biggest pro-gun win in at least my lifetime.

04-04-2007, 6:27 AM
I may be out to lunch here, but if (and I personally think the chance is small) SCOTUS knocks down the appeal courts pro Second Amendment ruling, then we may have instantly lost the largest pro 2nd battle of our generation. Maybe the NRA is trying to avoid a a head to head fight with a longer term strategy in mind. There is alway more to these things than there appears on face and I for one would love to be a fly on the wall during some of these NRA strategy meetings.

That said, I personally think nows the time to get this before SCOTUS and get a definitive decision so that we can take action one way or another as needed. Enough of all of the vague laws and persecutions of innocent citizens.

04-04-2007, 6:31 AM
It's going to goto SCOTUS eventually.

Many many people do believe this case is as close to perfect as we can have. The litigants are a diverse group of varied sex, race and sexuality, they have demonstrated need for guns, an excellent, well funded legal team, who have put together a good strategy. It is also believed the current makeup of the Court is favorable. AND, the NRA is NOT involved. This actually is probably a good thing, and was a choice made by the non-gun owning libertarian pursuing this case.

The worst thing that could happen would be a Miller situation. A criminal with a public pretender ends up there somehow.

04-04-2007, 6:53 AM
If the bill to repeal the ban on handguns in DC succeeds, the jurisprudence of the appeals court would still stand unchallenged in that area of the country for which that court has jurisdiction. That's the 4th Circuit I believe, covering the Virginias, Carolinas, and Maryland.

I'm suggesting for discussion, not advocating the position, that possibly the NRA's strategy is to divide and conquer. Winning in each individual Circuit doesn't carry with it the risk that going to SCOTUS does, where potentially everything could be lost with a single case.

Like I said, it's not the position I'm hoping for but it seems plausible that's what they are trying to do. I'd like to hear more discussion on this rather than rhetoric against the NRA.


04-04-2007, 6:59 AM
They'll never win in the ninth circus. Ever.

04-04-2007, 7:14 AM
Well, I'd like to hear what the NRA's position is on this other than what's on their website about it.


I appreciate the fact they're working the legislative issue, but right now, let the judicial aspect function. Having this case go to SCOTUS is a win all or lose all for gunowners, and I just as soon get it over with now, with the current justices than to wait for Democratically appointed ones. Go big or Go home for this, and the NRA apparently is not listening to it's members either because they don't explain why they're taking this action.

Have a great Kenpo day


04-04-2007, 9:02 AM

If the DC Handgun Ban is repealed before either DC drops its appeals or SCOTUS rules on Parker, the case is mooted and the current court considering it will remand it to be vacated - completely destroying the precedential value.

The idea is that the loser (in this case DC Government) didn't get a fair and equitable chance to see justice done and now that its moot and Article III or Supreme Court can't judge it (no actual dispute.)


04-04-2007, 9:13 AM
So WHY is the NRA trying to moot/kill this lawsuit?!

The only reasons I can think of are negative. I'd love to be proven wrong.

04-04-2007, 9:30 AM
I think Robert Levy's follow up take on it is interesting:

I can see the argument against, I just wish it was being made honestly.


04-04-2007, 9:34 AM
I think Robert Levy's follow up take on it is interesting:

I can see the argument against, I just wish it was being made honestly.


The NRA has stated to me and others that cert is desirable. Sen. Hutchison's press release says she agrees. The other major gun groups, Gun Owners of America & Second Amendment Foundation, also agree. That's the "official" position of insiders who are supposed to have the best crystal ball regarding the Supremes.

Nobody at the NRA has provided a credible answer to this simple question: Why is the NRA pushing the DC Personal Protection Act? If the NRA were to say, "You're going to lose, so we want to kill the litigation," I would understand that argument -- although I would dispute the premise. Instead, we're hearing that the NRA wants the Supremes to review Parker. There's a disconnect somewhere.

Exactly. If the NRA doesn't explain itself, clearly, and justifiably, they will have made an enemy of me. And they damn sure will never, EVER get another cent of my money.

04-04-2007, 9:43 AM
It looks like the bill dates back to 2004. Is this the same one?


04-04-2007, 9:53 AM
I don't think you'll be seeing NRA pushing for DC carry legislation anymore.

I think this is old pre-Parker info and it's just taken a bit of time for wheels to stop turning.

04-04-2007, 11:08 PM
The NRA is playing with fire on this one. They better state their case soon and clarify their intentions.

04-05-2007, 8:22 PM
I don't think you'll be seeing NRA pushing for DC carry legislation anymore.

I think this is old pre-Parker info and it's just taken a bit of time for wheels to stop turning.

I hope you're right.

04-06-2007, 2:12 PM
Based on that Canales article, it sure looks to me like the NRA wants to maintain their position as a lobbying group, and thus it's in their best interest to maintain the status quo where each time an anti-2A law is proposed, they get to go lobby against it. Ok, they'll lobby for pro-2A laws, too, but those come up less often. They do not appear to want real change.

In my opinion, we will never achieve real positive change by following this mindset. Anti-2A law introductions seem to vastly outnumber pro-2A law introductions, so the statistics say that this mindset will achieve no net change at the best, and will more likely result in a gradual slide down the hill.

The current situation for firearms owners in the USA is unacceptable. Real positive change must be made, and I no longer have the patience to just keep fighting the same old holding maneuvers and expect some future generation to fix stuff if and when all of the stars align, SCOTUS is composed 100% of rabidly pro-gun judges and the House and Senate are both 100% A-rated by the NRA.

It seems to me that both sides have been terrified of the idea of seeing a real 2A case go to SCOTUS. Until this happens, each side can run around claiming that the 2A means whatever they like with impunity.

If we are to regain our lost liberty, there needs to be a clear ruling from SCOTUS that the 2A really means what it says. If SCOTUS rules that the 2A describes an individual right (and there can be no reasonable debate that the framers meant anything other than that), then that will be the first major step towards flushing out unconstitutional laws which infringe upon our right to keep and bear arms. Much more work would still be needed, but the ball cannot start rolling until it is clearly shown that the 2A really is still in effect.

If the SCOTUS were to rule that the 2A does not describe an individual right (or more accurately, that it no longer describes an individual right, because the intentions of the framers of the Constitution that it should confer that individual right is unambiguous), then it would be clear that the BOR has been abandoned, and that the people of the USA are not longer free men and women. If this is the case, then the only way to restore freedom would be to replace the government.

This second scenario is so terrifying to many folks that they cannot even consider it. For example, it was clear in Mike Haas' response to me in another thread that the concept of replacing a government which has become tyrannical could not even enter into the discussion.

What folks seem to me missing is that an unfavorable SCOTUS ruling on the 2A would not create a situation where the 2A no longer is in effect. That situation already either does or does not exist, and a SCOTUS ruling one way or the other simply means that the US government has put its cards on the table. Either the US government supports the 2A as an individual right or it does not, right here and now. We need to determine without ambiguity whether the government considers the 2A to be in effect or not. If it does, then it will be possible to restore our lost liberty through peaceful judicial and legislative action. If it does not consider the 2A to be in effect, then that means that the government no longer considers itself to be bound by the Constitution, and a peaceful legislative and/or judicial solution would not be an option. As long as the situation remains ambiguous, we're all just wasting time in a holding pattern.

If you, like I, believe that the current situation for firearms owners in the USA is unacceptable, is unconstitutional, and would make the founders of this nation turn over in their graves, then you need to come to the understanding that we will never regain our liberty by continuing to stay on the defensive, nicely asking the legislators to change their minds each time a new infringement of our liberty is introduced. If you really care about your right to keep and bear arms, then you cannot be satisfied to continue reacting to further infringements from anti-2A legislators. You must be prepared to take back the rights which you have lost.

Please do not mis-read what I am writing here to say that I am advocating a violent overthrow of the government here and now. Like the founders of our country, I recognize that peaceful and intelligent discourse is always the preferred way to reach a solution. I also recognize, as did they, that this is not always possible, and that violence remains a last resort to maintain freedom and liberty when all else has failed. The Parker ruling is an stunning sign that a peaceful restoration of our lost liberty may well be achieved through legislative and judicial action in our generation. This has done more to restore my faith in our system then anything else in my lifetime. The goal is within reach! If it is possible to regain our liberty peacefully, then that may well happen within a decade or two! If, on the other hand, it is not possible to regain that liberty peacefully, then we will all be faced with the decision to either take back that liberty by force of arms as envisioned by the founders of our nation, or to meekly accept that we are subjects of a tyrannical government.

This is why I want to see Parker go to the SCOTUS. I am not content to wait in limbo without even knowing whether I am a free man or a subject of a tyrannical government. If I am a free man, then I want to use that freedom to actively oppose the people who would take away my liberty, through supporting vigorous action in our judicial and legislative houses in any way that I can. If I am not a free man, then I will need to make the very personal decision to risk everything to take back that liberty, or to willingly go on living without it.

I sincerely hope that the NRA will be willing to let go of the status quo, and to actively work towards a full restoration of our lost liberty within this generation, even though there is risk involved. If the NRA lends its mighty weight to this, then our chance of victory, in particular a peaceful victory, will be greatly enhanced. If the NRA chooses to help torpedo Parker, then I will be able to reach no other conclusion than that the NRA is only interested in maintaining its lobbying machine, and is not an ally of free men.

04-06-2007, 2:43 PM
I just printed out this article, and sent a letter to Wayne LaPierre:

Wayne LaPierre
National Rifle Association of America
11250 Waples Mill Road
Fairfax VA 22030

I mentioned my NRA member number. In the letter I basically said, "if you guys interfere with this case, I'm canceling my membership forever."

Here's a link to the article itself: http://www.examiner.com/printa-653443~Robert_A._Levy:_Should_Congress_or_the_cour ts_decide_D.C._gun_ban%E2%80%99s_fate?.html

Please print that out and include it when you contact Mr. LaPierre.

04-06-2007, 3:30 PM
Check this out guys and gals.


04-06-2007, 3:49 PM
Check this out guys and gals.


That is certainly very reassuring. I'm still concerned that I haven't seen clear signs of NRA backing away from supporting the legislation which could moot Parker, or better still, actively opposing it. I hope that it's just a matter of it taking a while to turn the formation around, and that we'll see NRA get behind pushing Parker to SCOTUS very soon. We'll all be watching NRA very closely to see what actions they put behind their words on this issue!

04-06-2007, 3:52 PM
Check this out guys and gals.


I'll quote here in case linky disappears, etc.

For reference, Chris Cox is NRA's chief lobbyist, and additionally chairs NRA-PVF.

Bold/underline stuff is mine, and I trust this poster.

Chris Cox Called

First, thanks to PDO poster Varminter 22 and to Cam Edwards of NRA News for arranging the conversation.

Chris and I spoke for nearly 30 minutes about my concerns about the NRA's handling of the Parker decision and the related bills introduced in the House and Senate which, if passed and signed, would moot the Parker decision.

He and I agree that Parker represents an "almost unimaginable opportunity" to change for the positive the course of firearms matters for decades to come.

Chris confirmed the NRA position is to do nothing which would damage Parker's potential, nothing that would make the matter moot. Given my own confidence (optimism?) on Parker's eventual treatment en banc and before the Supreme Court, Chris' thinking is very reassuring. He agrees, too, that the case will go all the way to SCOTUS.

I believe that Wayne LaPierre told Robert Levy,

"You can take it to the bank. The NRA will not do anything to prevent the Supreme Court from reviewing Parker.”

I also believe he means it.

I can accept that there were differing opinions at the beginning of the case four years ago over whether the timing was right or not given the make-up of the then Supreme Court.

I can also accept Chris' professional opinion that it remains important to continue to push on the legislative side, to continue to line up your friends as well as your enemies on the issues on a constant basis, if for no other reason than to have the politicians on record when the next election rolls around. He points out that legislation moves at a glacial pace, that it took seven years to pass the bill protecting the manufacturers from malicious litigation.

I am struck by the intellectual firepower Chris and his team have devoted to consideration of the various trade-offs, how to maximize the upside and balance the downside. These guys know what they're doing and are intent on succeeding. Their definition of success matches my own. They want to win. Widely and well.

Most impressive. More power to them.

As I mentioned in an earlier post, I am an Endowment member, my wife is a Life member and our 8-year old daughter is an Endowment member.

Next month our two little boys will become Life members, too.


04-06-2007, 3:59 PM
Much better. When I found this bill was 4 years old, this is what I hoped was the situation.

04-06-2007, 4:01 PM
I appreciate those words and am reassured to an extent. However, I do have a problem with hearsay in general. It would be nice to see something said publicly from the NRA in regards to their support of Parker.