Monday, July 16, 2007

Parker Going to the Supremes!

Get ready, boys and girls, because the roller coaster is starting up. Washington D.C. has decided to appeal the Parker decision — remember, from the D.C. Circuit, that the Second Amendment is an individual right, making D.C.'s draconian gun prohibitions unconstitutional — to the Supreme Court. This from the
Local government officials in Washington, D.C., announced Monday they will appeal to the Supreme Court in a major test case on the meaning of the Second Amendment. The key issue in the coming petition will be whether the Amendment protects an individual right to have guns in one's home -- an issue on which there is now a clear conflict among federal Circuit Courts. The city will be defending the constitutionality of a local handgun control law that is regarded as the strictest in the nation.

The petition would have been due Aug. 7, but city officials said Monday that they would ask Chief Justice John G. Roberts, Jr., for a 30-day extension of time to file the case. Mayor Adrian M. Fenty and city Attorney General Linda Singer disclosed the appeal plan at a press conference, along with local Police Chief Cathy Lanier. (A news release announcing the action can be found here ) The Mayor said: "We have made the determination that this law can and should be defended and we are willing to take our case to the highest court in the land to protect the city's residents. Our handgun law has saved countless lives -- keeping guns out of the hands of those who would hurt others or themselves."

The D.C. Circuit Court ruled on March 9 that the Second Amendment does guarantee an individual right to possess a gun -- at least within one's own home. The ruling was the first by a federal appeals court to strike down a gun control law based on that view of the Amendment's reach. The case is Parker, et al., v. District of Columbia (Circuit docket 04-7041). On May 8, the Circuit Court refused by a 6-4 vote to rehear the case en banc. The mandate is scheduled to be issued Aug. 7, but will be withheld after the city files its Supreme Court petition. Thus, the existing gun law would remain in effect temporarily.
What does it all mean?

Could be nothing; could be the whole freakin' ball game. The Supreme Court scares the hell out of me (and numerous pro-2A attorneys have written me with exactly the same feelings). Yes, we have a "conservative" Court, but the Court will go where the Court will go. Read Joe Tartaro's of the Second Amendment Foundaton articulate commentary from GunWeek a couple of months back:
...the Parker case may be a turning point in the struggle for the right to keep and bear arms. It must be remembered, however, that the Parker case focuses on the question of “keeping arms” in one’s home or business, not “bearing” arms on the streets of Washington, DC, or anywhere else.

If it goes to the Supreme Court, and the court upholds the Mar. 9 ruling by the three-judge panel in the DC appellate court, it will not spell the end of all gun control laws. That decision, like the earlier 5th Circuit Emerson decision left room for some limitations on firearms possession and use while upholding an individual right to possess them.

The anti-gunners has been tearing their hair out and screaming that the world of gun control will come to an end if the Supreme Court upholds the Parker decision. As usual, they are predicting nothing short of the end of civilization as we know it if the decision is upheld.

Some pro-gunners are almost as extreme in their fear of what would happen if the court overturns Parker, something I find hard to believe given the careful preparation of the case, the upstanding nature of the plaintiffs, and the scholarship woven into the Parker decision.

Sooner or later, it is inevitable that one or more Second Amendment cases will be accepted by the Supreme Court, no matter what the pro-gun and anti-gun leaders and their strategists say. I believe that Parker should be that case. As I mentioned, it is a case about the right to keep arms in one’s home. Later, there may be cases that address the question of bearing arms outside the home.

Better now the Parker case than the one involving drug dealers, terrorists, bank robbers, and rapists—all of whom frequently raise the Second Amendment in their defenses.

As Parker case attorney Alan Gura told Workman during his interview, “If not this case, which case?”
Let's talk a little about timing and the President elections of 2008. This is from the Volokh Conspiracy last March right after the decision:
Say that the D.C. Circuit decides not to rehear the case en banc; that probably means the en banc petition will be denied within several months. Assume that it's denied by late June — the petition for certiorari will be due in late September, the Supreme Court will consider it in the next month or two (unless it decides to call for the views of the Solicitor General, but I doubt this will be necessary). That means the case will likely be heard in early 2008, and decide by June 2008.
What will the extra prominence of the issue do to the primaries?

Assume the decision is 5-4 in favor of the individual rights theory; what will that do to the general Presidential election race? Assume it's 5-4 in favor of the collective rights theory, with Kennedy joining the four liberals on the collective rights side — what will that do to the race? What if it's 5-4 with Roberts or Alito joining the liberals? I take it that if it's not 5-4, or (possibly) if it's 5-4 with a less liberal/conservative split, the effect will be less; is that right? Or is this decision not that relevant, either on the theory that the issue won't energize people that much, or on the theory that plenty of people would be energized on gun control and the Second Amendment regardless of how the case comes down?

Naturally, if one of the Justices retires this year or next, the effect on the Presidential race would be still greater, I suspect. And if the case is delayed (say, by en banc activity, by a call for the views of the Solicitor General, or the like) so that it's heard in Fall 2008 and expected to be decided in Spring 2009, I take it the effect on the election would be bigger still.

Finally, note that if there is a pro-individual-rights decision from the Supreme Court, I expect it will be very narrow, will leave open considerable room for gun controls that are less comprehensive than D.C.'s total ban, and will not resolve the question whether the Second Amendment is incorporated in the Fourteenth Amendment to cover state regulations.
We'll see...


Anonymous said...

There is one option MB touched on but is not generally addressed. DC can appeal to the Supreme Court.

As an option, though, since the matter is fairly clear in DC, the Supreme Court CAN chose not to hear the case, in effect not allowing this to head to the Court, and leaving the lower ruling intact.

My money for now is on this option, Roberts et al. may have figured out that they maybe can't find in favor of the individual (see Kelo decision that gutted the Fourth Amendment), and maneuver to let it stand without comment.

The anti's, oddly enough, may have reached the same conclusion, since finding in favor of the individual in DC would at least open the door to eliminating gun-grabber laws. It may be better to let this one lie still and deal with the fallout from this lesser (i.e., not Supreme Court) ruling.

Take this all with a grain of salt, as I am not a lawyer. I have played doctor with my girlfriends, but I am not a lawyer.

Unknown said...

Michael, I hope you don't mind, but rather than reinvent the wheel, I'm just directing my readers to this post.

Anonymous said...

Sooner or later, the question is going to be/will be before the Supremes.

This case seems as good as any. the question is, are the votes there? And if not, will those on our side keep it out of the "house."

Anonymous said...

This could be the answer to our prayers or our worst nightmare. I thought that there was no way in Hell that the Supreme Court would uphold the anti-First Amendment Campaign Finance Reform BS, but they did.