DC to appeal Parker (gun ban), case to the SCOTUS.

Joined
Mar 4, 2006
Messages
18,157
Likes
9,229
Feedback: 1 / 0 / 0
Lets just hope the court decides to hear the case.

We may never get an opportunity to define and restore our RKBA like this again in our lifetime.

Second Amendment case headed to Court

Posted by Lyle Denniston at 10:57 AM

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 petition would have been due Aug. 7, but city officials said 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.

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 (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.

http://www.scotusblog.com/movabletype/archives/2007/07/second_amendmen.html
 
I really hope it makes it to the SC. Hopefully this will be the end of the NFA and FOPA idiocy.


Don't count on it- neither of those issues have anything to do with what
is being hashed out in Parker vs DC. This is more about "mere posession"
rights than anything else. I'm not downplaying the value of a win here,
at all, though, IMO it would be very important in terms of staving off things
like "handgun bans" and the like, and it also might lead to the death of things
like shitcago's handgun ban, etc, or at a minimum make it difficult for places
to pass such laws when they've clearly been proven to be unconstitutional.

-Mike
 
Last edited:
it would also seem that if it is a 'right' then it cannot be regulated with permits and licenses...right?

The problem is the bogus notional known as "reasonable regulation" and
so on. (for example, slander/libel/chaos prevention, is regulation that
has stuck on the 1st amendment).

It all depends on how badly SCOTUS wants to avoid making an overly
broad determination.... if they rule in favor of Parker, then it depends on
what their ruling/opinions are, etc. Even after that there will still be a
lot of legal battles on the ground, etc.... a bunch of laws won't instantly
become null and void unless the determination ends up being overly
broad. Regardless it does open up the avenue for the possibility of real
progress in the future, even if we have to fight for it.

-Mike
 
I'm confused. I thought the fuss was over the fact that the ban was lifted.

The decision was stayed until August 7 to allow for an appeal. It's hard to imagine that SCOTUS, even if they decide to hear the case, will have a decision by then, so unless it's stayed further (and I don't know if that's even possible) the ban should be lifted at that time.
 
Even if the DC case holds up through appeal, it only applies to DC. Though it will provide ammo for the rest of the fights, and hopefully convince the SC to make a final decision on 2nd Amd. rights.

This is really just another step on the way (seemingly never ending) to getting our rights back.
 
Even if the DC case holds up through appeal, it only applies to DC. Though it will provide ammo for the rest of the fights, and hopefully convince the SC to make a final decision on 2nd Amd. rights.

While the "Remedy" itself in Parker vs DC might only apply WRT DC for
now, the effects of SCOTUS ruling or commentary could be a lot further
reaching than they are now, especially if such a ruling is in our favor.

-Mike
 
SCOTUS will almost certainly take the case. The court usually rules very narrowly on the exact issue at hand. In this case, I'm not convinced that they will keep it so narrowly confined.

There are several municipalities that severely restrict people's right to protect themselves. At the very least, the DC ruling (if Parker is upheld) will force a rewrite of all laws that restrict handgun ownership, and bring them to whatever the ruling states is an allowable/not allowable restriction.
 
Even if the DC case holds up through appeal, it only applies to DC.

Not exactly. IIRC, most appeals can be filed either in the district in which the original judgment was rendered, or in the federal circuit. Of course the actual Parker decision being appealed is already extremely narrow (allowing one to apply for a license to possess a firearm in one's own home and, assuming the license is granted, to keep the firearm assembled), but it would seem to apply to instances such as Morton Grove and Chicago.

Ken
 
I'm not getting excited over it, if anything and it gets put as an individual right and the DC Ban is completely lifted. Maybe, just maybe Massachusetts will realize how much they are butchering the 2nd Amendment. Even though I see Mass not doing anything as far as lifting the AWB law or 98 Handgun law.

Mass has a history of damaging Productive "1sts" with idiotic legislature.

MA: "Look at me, I'm Massachusetts the first to ........"
Other States: "STFU you Noob, I don't care!"
Brady Foundation/Million Moms: "Want a handjob?"
 
I'm not getting excited over it, if anything and it gets put as an individual right and the DC Ban is completely lifted. Maybe, just maybe Massachusetts will realize how much they are butchering the 2nd Amendment. Even though I see Mass not doing anything as far as lifting the AWB law or 98 Handgun law.

Mass has a history of damaging Productive "1sts" with idiotic legislature.

MA: "Look at me, I'm Massachusetts the first to ........"
Other States: "STFU you Noob, I don't care!"
Brady Foundation/Million Moms: "Want a handjob?"

Oh, I'm sure MA won't change anything untill they lose a case and the SC tells them to on appeal.
 
I'm not getting excited over it, if anything and it gets put as an individual right and the DC Ban is completely lifted. Maybe, just maybe Massachusetts will realize how much they are butchering the 2nd Amendment. Even though I see Mass not doing anything as far as lifting the AWB law or 98 Handgun law.

Mass has a history of damaging Productive "1sts" with idiotic legislature.

MA: "Look at me, I'm Massachusetts the first to ........"
Other States: "STFU you Noob, I don't care!"
Brady Foundation/Million Moms: "Want a handjob?"

I'm trying to remain optimistic about this.

As gun owners in this state, a positive SCOTUS ruling is our only hope
for relief.

The state legislature isn't going to help us... the Governor certainly isn't going to help us, and the state supreme court will just laugh at us as always.

Assuming the court even hears the case (I really can't see them not granting it cert... this is too big for them to ignore), and they come back with a finding that the 2nd amendment is an individual right, then at least we'll have the foundation to pursue and restore some degree of our rights.

There really is no other option available to us.
 
So long as rank speculation is acceptable:

I would rate the likelihood that the Supreme Court will take Parker on the merits as just about nil.

One: simply as a matter of statistics, the odds of a cert. grant are less than 1 in 1,000.

Two: as a matter of politics, neither pro- nor anti-gun justices would be inclined to vote for cert. on the merits. The anti-gun justices would be terrified of an affirmance on the merits, which would make Parker the federal law of the land. The pro-gun justices would prefer to allow a few more Courts of Appeals come out the same way (the clear trend), thus making it either politically easier or pragmatically unnecessary for the Court to get involved, while at the same time (a) giving the Parker plaintiffs the win they achieved and (b) leaving a strong pro-gun opinion by a highly influential Court of Appeals out there.

On the same topic, I seriously doubt that any of the D.C. politicians who have brought this about has any hope of winning. They have elected, rather, to spend $50,000-$100,000 of taxpayer funds (the cost of a cert. petition) just to avoid having later to acknowledge that they gave up without a further fight.
 
I have to agree with RKG, here. As satisfying as it would be to get the SCOTUS to actually make a pro-2A ruling, I think cert. will be denied, keeping the holding very narrowly to DC alone.
 
I have to agree with RKG, here. As satisfying as it would be to get the SCOTUS to actually make a pro-2A ruling, I think cert. will be denied, keeping the holding very narrowly to DC alone.

+1 on this being the most likely scenario.
 
The only possible bonus from this is a roundabout split in the circuits, which may (emphasis on may) set the next case up for SCOTUS review. I won't hold my breath, but it could happen.
 
Mike O'Shea has an interesting piece on the Parker v. DC petition for cert over at Concurring Opinions. While the Court has a lot of good political reasons to deny, the fact that there's a clear split between the circuits and among state courts represent the classic reasons for granting certiorari. His view is that it would be extremely difficult to craft a narrow decision (particularly one that would be treated as narrow by lower courts, legislatures and the public) here, and that any decision is likely to have impacts at least as profound and long lasting as Roe v. Wade.

Ken
 
OK, dumb question time. When do we find out? Is it August 7, or a 30 days AFTER August 7 (September 7), which is the appeal period mentioned in the initial post here?
 
My guess: If the case is accepted, it will be decided on such a narrow ground that it will leave both sides spending the next decade explaining that the decision clearly supports what they have known all along about the 2nd ammendment.
 
OK, dumb question time. When do we find out? Is it August 7, or a 30 days AFTER August 7 (September 7), which is the appeal period mentioned in the initial post here?

Assuming a cert. petition is filed by Labor Day, 2007, an order on it would likely appear in January or February, 2008.
 
I have to agree with RKG, here. As satisfying as it would be to get the SCOTUS to actually make a pro-2A ruling, I think cert. will be denied, keeping the holding very narrowly to DC alone.

I think you have to be a bit more indulgent than "keeping the holding very narrowly to the DC alone."

For the legal effect of a prior decision, you have to distinguish between its "controlling" effect and its "persuasive" effect. A decision of any of the federal Courts of Appeals on a particular question of law is controlling on the federal District Courts within that Circuit. "Controlling," here, means that a subsequent District Court before which the same question is presented is obliged not to decide that question for itself, but rather to defer to the prior decision of the Court of Appeals for its Circuit.

A decision's persuasive effect, on the other hand, can be far broader. Factors involve the recency of the decision (is it consistent with or contrary to an apparent trend?), how it meshes with the trend (if any) of academic peer-reviewed writings on the same issue, how well written and reasoned the decision is, whether the decision addresses an issue squarely or only obliquely, and, finally, the reputation of the issuing Court.

In theory, the Courts of Appeals for the several Circuits (which, by the way, are not "Circuit Courts") are in theory all equal when considered collectively. But just as some pigs are more equal than others, the Court of Appeals for the D.C. Circuit has traditionally been considered more authoritative than the others when it comes to issues of federal Constitutional law and issues of federalism.

Here we have a decision on the meaning of a seldom-evaluated original Amendment to the Constitution, issued by the D.C. Circuit, which is consistent with a clear trend of both other court decisions and law review conclusions. I think, therefore, that the ripples of this decision (assuming denial of cert.) extend far beyond the D.C. pond.

If Parker is to be considered limited in its holding, it has far less to do with the territorial scope of the Court of Appeals controlling effect than it does with the narrow question answered -- and, more importantly, with the myriad of questions not answered (or even addressed). Parker says nothing about any right to "bear" arms outside one's curtilage (more or less one's "home"), nor with the extent to which licensing and other regulation may be imposed on the right to keep arms at home. In short (and as I observed when the decision first came out), while Parker contructs a necessary (and welcome) foundation for what we'd all like to see, it constructs none of the superstructure.
 
Last edited:
Well, I certainly hope it has a wider persuasive effect, but I don't see the First Circuit changing its mind any time soon, nor Massachusetts for that matter. Aren't there only two circuits that hold 2A friendly positions?
 
Last edited:
I agree that the persuasive effect could be quite wide, even if the USSC were to deny cert or accept the case and somehow manage to tailor what seems like an extremely narrow ruling upholding the decision. O'Shea discussed this at some length in his piece I referenced above. So far we've had most courts operating on the assumption that to the extent that it means anything at all the 2nd guarantees the right of members of the National Guard to go deer hunting when on active duty. If that position is decisively overturned so that people with no association with the military are to be viewed as having some sort of individual right, then it will become extremely difficult to argue that a right never explicitly mentioned in the Constitution should enjoy broad protection and be incorporated against the states, while a right explicitly guaranteed should be subject to extensive regulation and apply only against the federal government. Even if the USSC never discusses this comparison itself, within a year or two one might reasonably expect the Court of Appeals for the 9th Circuit holding that indigents were entitled to firearms at public expense or that denying the right to firearms even to illegal aliens or convicted murderers after release from prison was unconstitutional.

Ken
 
You're certainly more of an optimist than I am, Ken. [wink] I just don't see, barring a SCOTUS pro individual rights decision or a massive change in membership, Circuits that are already inclined to go through tortured legal contortions to find a justification for their desired end changing their minds any time soon.
 
Back
Top Bottom