The NRA did not want us to file the suit, or at least wanted the suit structured in such a way as to have the courts avoid, if possible, ruling on the Second Amendment issue.
They don't think a decision on the Second Amendment should be risked. We don't think a decision on the Second Amendment can be avoided much longer, and are not impressed by the results of doing nothing to defend the right.
They filed their copycat lawsuit as a direct response to ours, and filled it with their kitchen-sink garbage arguments that we had rejected as frivolous and contrary to our litigation objective. They immediately tried to use their lawsuit as a vehicle to wrest control of our case by seeking to have the matters consolidated.
We opposed their consolidation effort and sought to have their attorney disqualified on account of various ethical problems we believe he has. For his part, he stated in his pleadings that the NRA case was filed because they think I'm a crappy lawyer, and he believes the case is too important not to let him run it. Call it a "Kelo" theory of attorney-client relationships.
The court agreed with us that his conduct raised meaningful ethical and attorney-client professional responsibility issues that would overwhelm the case, and denied the attempt at consolidation. Unfortunately, he was not kicked off his case. Subsequently, both cases proceeded separately, before different judges.
The NRA attorney made several critical mistakes that sank his case and greatly complicated ours. Of these, the gravest was suing Attorney General Ashcroft, who was not a necessary party to the case because the federal DOJ does not actually enforce the gun laws we are challenging, and would not enforce the gun laws under the theory of our case (simple home possession of a functioning firearm or handgun is a misdemeanor prosecuted by the city attorneys, not the feds). As we feared (and strongly advised our NRA-sponsored friend), suing Ashcroft triggered a much more vigorous defense of the city's gun laws than the city's lawyers, or their amici, could muster in our case.
Ashcroft may have personally believed in the right to keep and bear arms, but his litigation position amounted to a theory that citizens could almost never have standing to assert this right in a civil case. This was largely adopted by the appellate court in throwing out the NRA copycat case.
The standing defense, having been raised by Ashcroft in the NRA copycat lawsuit, was quickly exported into our case. But unlike the NRA's brilliant legal strategerist, we defeated it completely at the District Court level. We also believe that, even under the unhelpful standing doctrine generated by the NRA case on appeal, our own case is factually distinguishable and should proceed.
We'll find out soon.
Posted by: Alan Gura at July 14, 2005 2:48 AM