My take on Parker v. DC
The Parker case, and anticipated cert. petition, has attracted a lot of attention lately, and I thought to give my take on it.
Forward: it's long been my observation that litigators are bold about such a case, and scholars reluctant. I suppose it goes with the turf. A litigator has to be convinced he can fight his way out of a difficult situation, and as a matter of course goes into cases where he has no idea of the feelings of the court, let alone of a jury. It's how you earn a living, and you have to develop the attitude that you can do it or else find another job.
I was on a panel that explored the idea of a test case, perhaps ten years ago, and at the end it was a straight party-line vote. All academics were reluctant, all litigators were gung-ho. I'm a litigator and occasional semi-academic, so take my feelings with that caveat as to outlook and bias.
Case itself: VERY well done. It was brought in one of the very few circuits with no caselaw on the issue, against a near-absolute ban, and with plaintiffs who are thoroughly upstanding types, and whose situations were structured so as to survive an attack on their standing to sue (not easy to do, by the way). Oh, and since it's DC there's no federal 14th amendment incorporation question. An excellent example of how to structure a test case for maximum chances of winning.
Vote count: I'd be sure of Scalia and Thomas, fairly sure of Roberts and Alito. That leaves us with four probable votes and five unknowns. The litigator in me says those are pretty good odds... you have to lose all five unknowns to lose. Against that, you have to figure Breyer is probably a lost cause (the second amendment just isn't Euro enough for his taste) and a friend who is a court watcher said that Souter displays negative body language when firearms come up. Perhaps, I dunno. Still, unless you lose five out of five, you win. With most appeals, you go in without the vaguest idea of the vote count.
Benefit of waiting: I'd say minimal. At most you have the thought that Stevens (age 77 at last check) might retire. Since he's on the "liberal wing," he might be a vote against (again, a guess: he might just be a Don Kates/Mark Benenson/Wm van Alstyne type of liberal who is right now worrying that while field-stripping his 1911 he got WD-40 all over his ACLU membership renewal).
But to change things any, (1) Stevens would have to retire quickly, which is very unlikely, or the Repubs win the 2008 election, which is unknown; (2) Bush would have to appoint a pro-second amendment type, which is pure coincidence (likely priorities in nomination would be favoring executive power and opposition to Roe v. Wade -- where the nominee stands on the right to arms might not even be asked) and (3) the nominee would have to get Senate approval, which was difficult enough when the Demos were the minority. So I have to say today is as auspicious as anytime.
Concern: it might yield a ruling that the right exists, but is subject to extensive regulation. In recent years we've learned that "Congress shall make no law" abriding freedom of the press means Congress can make it illegal to mention candidates within so many months of an election, etc.. Roberts seems to have a tendency toward narrow decisions, which might reduce this risk some -- the ruling could be as narow as "a complete ban on a large category of guns violates this guarantee -- we can worry about what else might later." And even this would be an advance on the current situation, where outside of the 5th and DC Circuits, there is no right at all.
In toto, I can see the risks, and have been doing this too long to believe that "we're in the right, therefore we must win." I've been reamed, steamed, and drycleaned too often in cases where the law, as a matter of logic and intellect, was utterly clear, but the appeal failed the test of "the judge can't believe this is a good idea." On the other hand, the case is carefully chosen, it won a stunning victory already, the vote count seems good if not totally certain, and the situation is as good as we're likely to see in our lifetimes. I'd say it's a go.
I wouldn't have said this a few decades ago, mind you. It was entirely rational to wait. I have "inside information," which I won't detail, that indicates quite strongly that if the Court had reached the issue in the early 1980s we would have been flattened. But 25 years of research has changed things.