Parker v. DC decision in pdf
Here it is. And you can download the Parker pleadings and briefs here. And here's professor Volokh's take on a NY Times article on the case, which omitted Emerson and portrayed this as the only time a circuit court went with the individual rights view.
I'd guess DC will first try for an en banc rehearing (normally appellate cases are decided by a 3 judge panel; rehearing en banc means you get a hearing before the entire circuit, say 20 judges). Whoever loses there will go for cert.
And I'd give HIGH odds on a grant.
1. The last time a 2nd Amendment case went up, the Silvy.. Silvyera ... I forget how to spell it, the Supremes held a conference (private vote) and ordered the state to respond to the petition. Then they held a second conference and didn't take it. That tells me it was very close, there were enough fence-sitters to have granted it.
2. The Chief Justice in confirmation hearings showed a lot of interest and as much as said he'd vote for cert.
3. It's now two Circuits splitting for an individual right, not one.
4. The other Emerson, held for a right but found a way to uphold the statute. This time the statute was struck down, a much clearer conflict in terms of result.
5. It'll be all over the front page of the Washington Post tommorrow. Justices are human and read the papers.
UPDATE: it's interesting to note that the "shout 'fire' in a crowded theater" case has in fact been abandoned. The reason is that it overstated the rule -- and held some WWI lefties could be punished for handing out leaflets that told draftees should be aware of their rights. Aha -- if given the leaflets, they might be tempted to resist the draft, which would be illegal, hence the leafleteers could be imprisoned, since their conduct threatened to cause a breach of the laws, just as shouting 'fire' might lead to a panic and deaths. Nevermind that the intent in distributing the leaflets may not have been to cause a violation of the laws.
Yes, maybe shouting such a false warning might be forbidden today, but the extrapolation to any utterance that causes harm (however unintentionally or remotely) can be punished is no longer the case.
En banc seems the most likely course of action to me, as well. The lib interest groups will all want to get their amicus briefs lined up talking about how much worse the violence will be if everyone and their mother can legally own and possess a working firearm.
Posted by: Letalis at March 9, 2007 05:25 PM
I believe that this decision and the one in Emerson could not have occurred but for the wealth of scholarly work performed by you and others. Each gun owner in America is indebted to some very smart people who have used their powerful intellects to develop the knowledge base that underlies this court's opinion. Thank you very much.
Posted by: Ashley Higigns at March 9, 2007 06:25 PM
The only dark spot in the decision is that the Court specifically said that registration not only is a reasonable restriction on the right, but promotes one of the intents of the 2nd, by providing a list of people armed for militia duty.
Of course, if confiscation is out of the question, that's not so bad. But there will be another great anti-gun legal fiction, and we're not even really done with this one yet. But I think we're close.
Posted by: Jim at March 9, 2007 08:08 PM
There are two interesting takes on the registration issue.
The first is that, in a United States that subjects regulations, including registration, to something more than rational basis but less that strict scrutiny - leaving registration to the legislature isn't such a horrible place. If I have all the arms I need, a tyrannical government knowing that in fact cuts both ways.
Secondly, the dissent made me notice that Miller may implicitly state that if you can prove the arm in question has a military purpose then even registration violates the 2nd Amendment. Think deeply about what law Miller actually violated and then the context of the SCOTUS decision there.
What a good day. I'd like to echo my thanks to the scholarly work. I've thanked Alan via email already as well.
Posted by: Gene Hoffman at March 9, 2007 08:19 PM
From my reading of the DC Circuit's rules the en banc question only goes to active non-senior judges. That means Griffith and Henderson would participate, but Silberman would not. In addition, a full majority must vote for en banc review, not just 5.
I see no way that the District could get 5 votes. Griffith is one, and then there are the hardcore conservative-libertarians of Ginsburg, Sentelle, and Brown. Only one more is needed, and that's probably Kavanaugh, a quite conservative Bush II appointee.
Posted by: Nico Jacobellis at March 9, 2007 08:34 PM
This is GREAT news. Next: Incorporation!
Posted by: Clayton at March 10, 2007 01:07 AM
Only 3 of the 13 were appointed by Clinton....
the rest by Reagan and the two Bushes.
That is pretty much 10 to 3 against for the Liberals not very good odds for them thank god.
I wonder what Jim and Sarah Brady are thinking
Posted by: Marcus Poulin at March 10, 2007 05:41 AM
Well, there is no such thing really as a right that does not have some "reasonable" restrictions. Remember the old line about free speech not giving one the right to yell "fire" in a crowded theater. However, it has always been my position that gun owners would be a lot more amenable to reasonable restriction legislation if, and only if, the right to ownership and possession came with the iron clad guarantee of a SCOTUS decision that could not be disputed.
And don't even get me started on the long term ramifications of a decision like that on 922(o).
Posted by: Letalis at March 10, 2007 08:43 AM
I know I'm putting the cart before the horse, but what if SCOTUS upholds this decision, and I then want to move back to my hometown in NY? I currently live in NH and own a few handguns. For me to move back to NY (and bring said guns), how many hoops would be "too many" (to be constitutional) for me to go through to bring my now legally-owned guns with me?
Posted by: Chris at March 10, 2007 09:17 AM
"Remember the old line about free speech not giving one the right to yell "fire" in a crowded theater."-Letalis
That has always been a false bromide, even though a Supreme Court Justice stated such in an opinion.
There are times when yelling "fire" in a crowded theater could very well be your DUTY. For instance, if the theater were really on fire.
That stricture against yelling fire in a crowded theater is not a restriction on free speech. Yeah, I know, a sitting justice on the USSC should know more about this than a high school graduate, but he didn't. Sorry, but that is fact.
The proper lesson to be taken from the example is not that free speech may be restricted, but that false free speech which violates the rights of others may be punished. Speech, which by its nature, may cause harm to undeserving others in the absence of compelling truth or circumstances can be punished.
Here is where the breakdown in logic occurs when this old false bromide is spoken as a justification for truncating rights of a citizen(s). When entering a theater, you are not required to register your tongue, or give up possession of the faculties or use of speech. You are not required to obtain a speech permit, or to comply with restrictions on the words in your vocabulary possession. You are not regulated as to how many times you may speak in a month, year, or day. You are not required to pay a tax on larger or more effective words, nor are you required to register them. You are not held responsible for storing your words in accordance with some politicians' ideas of what constitutes safe storage to prevent some assumed potential of the misuse of words. You are not prevented from obtaining words not previously in your possession.
In other words (there's that word* again) your First Amendment rights are not violated, or truncated because there is potential for you to do harm. That is as it should be.
You may be punished for doing harm with untrue words that cause harm to others or deny or infringe the rights of those others. That is also as it should be. The infringement is placed on unacceptable behavior with your right to free speech. It is not placed on the right to free speech prior to the unacceptable behavior.
So the next time somebody tells you "you can't yell fire in a crowded theater" when they are trying to justify infringement of that which "shall not be infringed." (2nd Amendment), point out to them what is wrong with their assumption, and further draw their attention to the horrible transgression against free speech that would obtain were the 1St Amendment treated exactly like the 2nd. All those things listed above that do not apply to the first do apply to the second. And they are an abomination to a free people,and a betrayal of the Constitutional Republic that is the United States of America.
Posted by: straightarrow at March 12, 2007 09:58 PM