Lawyer Advocates Second Amendment Rights Parker v. DC

[JonJ]

A little insight into Parker v. DC from the plaintiff's angle.

http://cornellsun.com/node/24257

Lawyer Advocates Second Amendment Rights

September 13, 2007 - 12:00am
By Masha Rifkin

The Second Amendment states in part, “The right of the people to keep and bear Arms, shall not be infringed.”

Clark Neily is co-council on the Parker v. District of Columbia case that has again raised the question of the right to bear arms.

In a lecture Neily gave yesterday at Myron Taylor Hall, he explained that the District of Columbia currently has a ban on any household pistols that were not registered in 1976 or before. Even for the registered pistols, it is actually a crime for an owner to physically pick up the pistol and move it within his or her home.

According to Neily, this ban may very soon be lifted.

“All that we’re challenging is the ban on the possession of firearms at home, [not the right to carry],” explained Neily.

According to Neily, the case was initiated from a conversation he had with one of his associates.

“We were just talking and said, ‘Hey, D.C. has a gun ban, someone should challenge that! ... we should challenge that!” he said.

Neily is a senior attorney for the Institute for Justice, a Libertarian, public interest, non-profit law firm. He was granted permission from his boss to pursue the case, and it took off from there.

“We rounded up six of the most sympathetic plaintiffs we could find,” Neily said.

One of them, Shelly Parker, is a black woman who moved into a “sketchy neighborhood in the D.C. area” as Neily described. She attempted to clean up the neighborhood, threatening drug-dealers and gangs that she would call the police. One night, one of these men tried to break his way into her home, swearing that if he broke in, he would kill her. Neily further said that “the D.C. police response time is 30 to 40 minutes, if they show up,” a statistic that begs the question of whether Parker would have been safer dialing 911, or possessing a handgun.

Neily continued to describe another one of the plaintiffs, Tom G. Palmer, who is an openly gay man. He and his boyfriend were assaulted in California by a gang of skinheads and would have been beaten to death had Palmer not confronted the gang with a pistol he had in his backpack, given to him by his mother for this very purpose.

Neily explained that each of the plaintiffs have compelling stories.

“We wanted to show that this is the face of the person who wants to possess a gun, not to rob or commit crime, but for logistic reasons,” he said.

When the case reached the District of Columbia Circuit of the United States Court of Appeals, the court ruled in favor of Parker et. al, for the right to bear arms. The case was recently re-appealed to the Supreme Court. Neily expects the Supreme Court to either accept or deny the case by October.

Many, Neily included, think that there is a good chance that the Supreme Court will accept the case.

“This is an issue they have been dodging for 200 years,” Neily exclaimed. “Every box that needs to be checked for the case to be cert has been.”

Neily was referring to the writ of certiorari, which, if granted, will allow the case to be heard before the Supreme Court. Of the nearly 7,000 cases that come before the Supreme Court each year, only 100 or fewer are granted the writ of certiorari petition.

For those who are worried about a potential increase in neighboring gun owners, Neily explained that the National Academy of Sciences searched for any study showing that gun laws produce benefits to society. None were found.

“It appears that the number of times guns are used to thwart crimes is 8 times that of using a gun for a crime,” Neily added.

Ricardo Henriquez law, asked Neily, “What position [are they] taking with the middle ground interpretation of the Second Amendment?”

In other words, Henriquez clarified that if it is permissible for residents of D.C. to own pistols, would it also be permissible for them to own semi-automatics and other more serious weaponry?

Neily responded that there are no unlimited constitutional rights, so D.C. will not be armed with machine guns any time soon.

Craig Minerva, law, president of the Federalist Society at Cornell, was responsible for bringing Clark Neily to campus yesterday.

“I met Mr. Neily at a Federalist Society conference in D.C. and thought it would be great for him to come,” Minerva explained.

Neily concluded his lecture by stating, “This case really doesn’t matter all that much in terms of guns in this country.”

He explained that his reason for taking on the case was because of his “broken-window” approach to the constitution: there may be an interpretation of a constitutional right that is highly disrespectful, but that you don’t care about.

Neily cited the legalization of alcohol and the “right to choose who we have sex with” as potential important rights.

Neily concluded, “Eventually it will come to a right that you do care about.”

 

[calsdad]

Neily is a senior attorney for the Institute for Justice, a Libertarian, public interest, non-profit law firm.

It is because of stuff like this that I support libertarian causes. D.C. has had the gun ban for decades - more than ample time for some big time Republican (or Democrat - ha ha) law firm to challenge the ban. Apparently from what I have read the NRA was none too thrilled about supporting this case either. Now that these lawyers have have gotten a victory - the NRA has been making hay with it and asking for donations for the NRA-ILA. I have to admit I am getting a little pissed with that.

There is danger in this of course - the Supreme Court could always rule against them if the case ends up going that far - and that could have serious repercussions. I think you have to go for it though - no guts no glory.

 

[Pilgrim]

my bet is that the SC will not hear it and let the appeal stand. That way no one anywhere else will benefit from the DC appeals ruling but DC.

That way the Judges won't be accused of upsetting any national apple cart.

 

[Weerd Beard]

my bet is that the SC will not hear it and let the appeal stand. That way no one anywhere else will benefit from the DC appeals ruling but DC.

That way the Judges won't be accused of upsetting any national apple cart.

+1 to that. Still the DC case can be cited in State law hearings. Still it would be MUCH better off for us if the SC picked up the case and ruled in the only way possible.

Still so many Americans have lived their entire life overlooking the 2nd Amendment, such a ruling would DEFINETLY raise some pulses.

 

[KMaurer]

I suspect that the SC will decide to grant cert. Both Scalia and Thomas have made comments indicating that they read an individual right and are dissatisfied with the current treatment by the lower courts. Alito and Roberts are probably in the same camp. The objective standards that seem to predict the court taking a case (e.g., a basic question of constitutional interpretation, a clear split between the circuits) are all there. It doesn't take a majority vote, but only 4 of the 9 justices voting to take the case.

Ken

 

[Pilgrim]

I bet that IF they do take the case, the ruling will be so narrow as to only affect the issue of having a gun in your house in DC. If they rule yes it's your right, there will be no mention of permits necessary to do this. Everything else will remain the same all over the country.

The only hope I can see is that one of them will be smart enough to find the rulings of the court that Matt1956 quotes in his sig line:

No State shall convert a liberty into a privilege, license it, and charge a fee therefor." --Murdock v. Pennsylvania, 319 US 105, US Supreme Court, 1943.

The U.S. Supreme Court broadly and unequivocally held that requiring licensing or registration of any constitutional right is itself unconstitutional. --Follett vs. Town of McCormick, S.C., 321 U.S. 573 [1944

Can we email these quotes to the USSC for them to check out? Might be nice if we could.!

 

[drgrant]

I bet that IF they do take the case, the ruling will be so narrow as to only affect the issue of having a gun in your house in DC. If they rule yes it's your right, there will be no mention of permits necessary to do this. Everything else will remain the same all over the country.

Regardless, it would set a precedent that such "absolute"
gun bans are unconstitutional, and open a door for other legal
action in other states. At a minimum it could result in the death
of something like the shitcago/crook county handgun ban, which
appears to be a similar type of full out prohibition.

-Mike

 

[csharpdev]

No State shall convert a liberty into a privilege, license it, and charge a fee therefor." --Murdock v. Pennsylvania, 319 US 105, US Supreme Court, 1943.

The U.S. Supreme Court broadly and unequivocally held that requiring licensing or registration of any constitutional right is itself unconstitutional. --Follett vs. Town of McCormick, S.C., 321 U.S. 573 [1944

If the SC rules that the 2nd is in fact "...the right of the people..." shouldn't those SC decisions quoted then apply? Or do those quotes only apply in to the right(s) challenged by the respective case?

It would be nice to see freedom someday. Massachusetts (a State) has converted a liberty (RKBA) into a privilege (chief discretion) licensed it (FID/LTC) and charges a fee for it.

 

[RKG]

I suspect that the SC will decide to grant cert. Both Scalia and Thomas have made comments indicating that they read an individual right and are dissatisfied with the current treatment by the lower courts. Alito and Roberts are probably in the same camp. The objective standards that seem to predict the court taking a case (e.g., a basic question of constitutional interpretation, a clear split between the circuits) are all there. It doesn't take a majority vote, but only 4 of the 9 justices voting to take the case.

Ken

Interesting. Were gaming not illegal in this state, I'd propose a sporting proposition on your prediction.

Add one factor, though: assuming the four you ID could bring about the grant of cert., they would run the risk -- in my judgment a non-insubstantial one -- that the result on the merits would be 5-4 going the other way. Since denial of cert. gives the plaintiffs 100% of what they might get by grant of cert. followed by affirmance, while at the same time avoiding some discrete risk of losing a lot, I think even your four would regard this as a non-percentage play.

If you accept the view (which is, in fact widely accepted by the legion of former clerks) that all cert. decisions are based on politics, not the law, then I think my side of the sporting proposition is the better side to be on.

 

[MaverickNH]

Check the Volokh Conspiracy blog http://volokh.com/posts/1189997618.shtml for some insight on this case. "Our" lawyers submitted a motion to the DC Appeals to lift the stay http://www.gurapossessky.com/news/parker/documents/lift_stay.pdf as DC's cert to SCOTUS didn't reference their own ban law and claimed that people in DC "may lawfully possess a rifle or shotgun to protect himself." (Yeah, right, if you ignore the locked/disassembled part...) It's a work of genius as is Gura's petition to SCOTUS http://www.gurapossessky.com/news/parker/documents/cross_petition.pdf

The DC lawyers seem like a pack of chumps trying to dupe SCOTUS into thinking DC's law really allows people to use long guns for self-defense - their fall-back is probably to keep the handgun ban but lift the ban for rifles/shotguns (that are non-evil forms, like 2-shell shotguns and 22 bolt-action rifles.)

Reading this stuff really helps one understand the state-of-the-art in defending the 2ndA.

 

[FrugalFannie]

From the Appeal to the SC

"Thomas F. Reilly, Attorney General, Attorney General’s
Office of Commonwealth of Massachusetts, Glenn S. Kaplan,
Assistant Attorney General, J. Joseph Curran, Jr., Attorney
General, Attorney General’s Office of the State of Maryland,
Zulima V. Farber, Attorney General, Attorney General’s Office
of the State of New Jersey, were on the brief for amici curiae
Commonwealth of Massachusetts, et al. in support of appellees.
John Hogrogian, Attorney, Corporation Counsel's Office of City
of New York, and Benna Ruth Solomon, Deputy Corporation
Counsel, Office of the Corporation Counsel of the City of
Chicago, entered appearances."

What does the inclusion of these parties mean?

 

[LoginName]

"Thomas F. Reilly, Attorney General, Attorney General’s
Office of Commonwealth of Massachusetts, Glenn S. Kaplan,
Assistant Attorney General, J. Joseph Curran, Jr., Attorney
General, Attorney General’s Office of the State of Maryland,
Zulima V. Farber, Attorney General, Attorney General’s Office
of the State of New Jersey, were on the brief for amici curiae
Commonwealth of Massachusetts, et al. in support of appellees.
John Hogrogian, Attorney, Corporation Counsel's Office of City
of New York, and Benna Ruth Solomon, Deputy Corporation
Counsel, Office of the Corporation Counsel of the City of
Chicago, entered appearances."

What does the inclusion of these parties mean?

"Friends of the court"... meaning they plan on putting their 2¢ in support of DC's appeal (I don't believe they have to make a physical appearance, just a written statement will do).

The inclusion of Reilly is no surprise.

 

[dixidawg]

Except he's no longer Attorney General? Does he still have a say in the matter?

 

[pdm]

Except he's no longer Attorney General? Does he still have a say in the matter?

That's what I was thinking. Wonder what Coakley thinks about Tommy-boy still calling himself the AG.

 

[LoginName]

Except he's no longer Attorney General? Does he still have a say in the matter?

The case was argued on December 7, 2006 when Herr Reilly was still AG.

I have no idea if the amici curiae from the original Parker case is still applicable or relevant to the DC v Heller appeal or not.

(late edit... Heller, not Miller)

 

[Coyote33]

Maybe more important is what the current AG thinks about this issue. Haven't heard much to date.

 

[WayneWong]

If the SC holds that this is an individual right, would this open up a route to appeal restrictions on a LTC? Keep and Bear (hold) will not be infringed.

 

[9000S]

If the SC holds that this is an individual right, would this open up a route to appeal restrictions on a LTC? Keep and Bear (hold) will not be infringed.

hmmm like an all or none kind of thing huh? Raises an intereesting point..

 

[WayneWong]

hmmm like an all or none kind of thing huh? Raises an intereesting point..

Exactly!

But all personal freedoms have limits, they usually stop when someone is about to be harmed by one's actions. I don't see this with carrying a firearm, just carrying it in a threatening manner - like locked and loaded in your hands.

Arguably open carry could be prohibited, or perhaps carrying a weapon in a potentially unsafe environment ie a bar, correctional facility, mental hospital, or in a place packed with people such as an auditorium or stadium.

However, a positive decision and statement by the Supreme Court could change everything. Any lawyers out there????

Wong

 

[RKG]

The legal (as opposed to political) implications of a Supreme Court affirmance of Parker, which arises in a very limited context, for the broader issue of the ability of states to regulate the possession and carrying of firearms, has been discussed at length in prior threads. I do not recall that a concensus emerged, but I believe that all concede that you need a number of things in addition to a simple affirmance that the Second Amendment creates a private right against federal leglislation to work major inroads on state-law firearms regulations.

At least one view expressed, possibly a minority view, is that unless and until a Court goes to the point of holding that the Fourteenth Amendment incorporates the Second Amendment, Parker implies nothing vis-a-vis state regulation.

 

[KMaurer]

At least one view expressed, possibly a minority view, is that unless and until a Court goes to the point of holding that the Fourteenth Amendment incorporates the Second Amendment, Parker implies nothing vis-a-vis state regulation.

IANAL, but I tend to agree with the above view. OTOH, it could have serious implications for NFA firearms (assuming that any appellant doesn't end up like Frank Miller).

Ken

 

[Coyote33]

Not to mention that if it comes up in the middle of next year, it will be in the middle of the election cycle, kind of forcing candidates to choose one side or the other. Read this: "it has always determined the way I vote"

 

[jcr]

]If the SC holds that this is an individual right, would this open up a route to appeal restrictions on a LTC?

I'd say that a clear decision affirming an individual right protected by the Second Amendment, would lead to challanges to incorporate the right under the 14th to protect the right from state infringement.

In MA, that might take the form that it is unconsitution to charge $100 for an FID to only possess a long gun.

As Matt1956 has posted, there is clear precedent declaring fees for rights to be unconstitutional.

MA could probably remedy by dropping the fee, but still requiring the FID, but who knows.

 

[Coyote33]

Not to mention that if it comes up in the middle of next year, it will be in the middle of the election cycle, kind of forcing candidates to choose one side or the other. Read this: "it has always determined the way I vote"

Looking like I was right!

High court to define Second Amendment
D.C. handgun law could become campaign issue