Pro-Gun Groups Split on Tactics

Cato Institute, NRA Quarrel Over Challenges to D.C. Law

By Arthur Santana
Washington Post Staff Writer

Months before Sen. Orrin G. Hatch (R-Utah) introduced legislation to repeal the District's 27-year-old handgun ban, two gun rights groups were trying to get the law struck down in U.S. District Court.

But instead of working together, the Cato Institute and the National Rifle Association have filed separate lawsuits against the gun ban and have disagreed with each other's legal tactics.

Last week's proposal by Hatch, chairman of the Senate Judiciary Committee, has once again put them at odds, with the Cato Institute accusing the senator and NRA officials of conspiring to spoil its lawsuit.

In February, Bob Levy, senior fellow in constitutional studies at the Cato Institute, a D.C.-based libertarian think tank, filed a lawsuit on behalf of six D.C. residents, challenging the city's handgun ban on grounds that it violated their Second Amendment rights. It is now pending before U.S. District Judge Emmet G. Sullivan.

A month later, attorney Stephen Halbrook followed with a suit on behalf of the National Rifle Association, representing five other D.C. residents. In addition to the right to bear arms, the NRA suit claimed, among other things, that the D.C. law violates the due process and equal protection clauses of the Constitution. That case is pending before U.S. District Judge Reggie Walton.

Levy was not happy with Halbrook, who had worked as a researcher for the Cato fellow, for filing a competing suit. Then, on Tuesday, Hatch introduced the D.C. Personal Protection Act, which would repeal the District's ban on handguns, end strict registration requirements for ammunition and other firearms and lift prohibitions on the possession or carrying of weapons at homes and workplaces.

The Cato Institute issued a press release accusing the NRA of conspiring with Hatch to undermine Levy's suit. Although it said Cato was "not itself involved in the litigation," it supports its scholars' defense of the Second Amendment.

"From the start, the NRA has tried to stop our suit from going forward," said Levy. "Essentially, the NRA is saying, 'If we can't control the litigation, there won't be any litigation.' "

Halbrook dismissed that argument.

"I really can't agree with that," Halbrook said. "The . . . bill is a legislative remedy, and if they could solve the problem legislatively, then that's the way to go."

"But the bottom line is to make it where law-abiding citizens can have guns to protect themselves, and we're for the quickest way to do that."

Last year, the local courts rejected arguments by dozens of D.C. criminal defendants -- bolstered by statements by U.S. Attorney General John D. Ashcroft that gun bans violate the Second Amendment -- that their gun possession charges should be dismissed. Ashcroft's pronouncements were prompted by an opinion by the 5th U.S. Circuit Court of Appeals, which Levy said also prompted him to file his lawsuit.

But Levy said he was surprised when the NRA filed its suit and Halbrook asked the court to consolidate the suits. Levy objected, and Judge Sullivan denied the motion two weeks ago. The two lawyers were familiar with each other; Levy had earlier hired Halbrook to conduct pretrial research for him. But they disagreed on trial strategies, and when Halbrook took the NRA's case, Levy called Halbrook's actions "unethical" and sought to have him recuse himself.

"It saddens me," Halbrook said. "I regret they said those things and felt that way."

Adding to the disharmony, Halbrook named Ashcroft as a defendant in the NRA lawsuit, seeking to challenge what the organization sees as his inconsistency in refusing to argue that the D.C. law is unconstitutional.

"We would find it interesting if the AG would take a position on the merits," Halbrook said. "Because it would seem to be an inconsistency to say that a person has a right to keep and bear arms, but not in D.C."

D.C. Mayor Anthony A. Williams (D) is also named as a defendant, Halbrook said. Department of Justice and city attorneys filed motions to dismiss last month.

Andrew Arulanandam, spokesman for the Fairfax-based National Rifle Association, called Levy's allegation "misguided."

Meanwhile, one gun control group said the infighting among gun rights groups is unusual.

"The Second Amendment has proven to be a double-edged sword for the NRA," said Matt Nosanchuk, litigation director for the Violence Policy Center, a gun-control group. "You have Ashcroft defending the D.C. gun ban. You have the Cato Institute attacking the NRA. You have NRA suing Ashcroft."

Meanwhile, one of the NRA plaintiffs, Absalom Jordan, 62, of Southeast Washington, said he opposed the D.C. gun ban when it was being considered and continues to be an opponent of it.

"I believe I have a right to protect myself," said Jordan, who is retired. "I was the victim of an attempted robbery about five years ago in my apartment. They pulled a gun on me, and if I had a gun, I would have defended myself. I live in a community where there are serious crime and drug problems."

As for Hatch's legislation, Jordan said, "I'm so happy that someone is willing to stand up and defend the rights for the citizens of the District of Columbia."

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