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Parker v. DC and certiorari
I've been giving some thought to this. DC will certainly go for rehearing en banc, and if that doesn't change things (probably not), seek Supreme Court review (petition for a writ of certiorari, to use the technical term). Or a rehearing en banc does change the result, and the plaintiff seeks certiorari. What's the result? (It takes four votes to grant the writ and take the case, tho it obviously takes five to win). I think the Court grants cert. My reasons:
1. The strongest reason for granting cert. is that the courts of appeals have split on an important issue of law. The subordinates are squabbling, one law applies in part of the US and other law in other parts, time for the boss to settle the issue. That's far, FAR more important than "the lower court screwed up." With Emerson, we had a circuit split. But now there are two circuits that say it's an individual right, versus nine or so that say it isn't. Hard to write off TWO circuit rulings as a minor aberration, something you can overlook or let percolate for a while.
2. Even with a split limited to the Fifth Circuit, Emerson, Chief Justice Roberts in his confirmation hearing as much as said he'd vote to grant cert.
3. The last time a Second Amendment case came to the Supremes, Silvyera or whatever (I could never spell the name right) it was a very close matter. The Supremes conferenced (voted) and ordered the state to file an opposition, which is pretty rare. That has to mean that even then, before Roberts and Alito, and with only one circuit holding for an individual right, there were enough votes to take and enough fence-sitters to add up to four or more. And that case challenged a state law, so that 14th Amendment incorporation was involved, too.
4. Perhaps most important: the venue rule is that you can sue the federal government where you were harmed, or in DC. The government legally "resides" in DC, and can be sued there even if the case has nothing to do with DC. Parker concerns a DC ordinance, not a federal law. Still, anyone challenging a federal gun law can file in DC, where the Parker ruling applies. (The one limit is that the DC Circuit has a stricter standard than some places as to who can challenge a gun law without having been prosecuted under it). A ruling from the DC Circuit, on something that affects federal law, is a ruling that can hardly be ignored.
So I suppose a scholar would say in six months or a year it's Armageddon. I have a scholarly streak, but as a litigator, I prefer "Odin! Valahalla!"
[Update: somewhere I read that nine circuits had gone for collective right, I haven't really counted. The DC Circuit is one of the few that has never committed one way or the other, which doubtless made a challenge to the DC law attractive -- as did the fact that it's a complete ban on handguns.]
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Holy crap, I completely forgot the venue rule. Thanks.
What I don't understand is how these gun banners can point to Miller and claim it rules a collective right.
The court didn't remand b/c the two defendants were not a collective, or that they were not in an organized militia - their militia status never questioned by the court - nor that the nfa was a taz/revenue act.
The court remanded b/c the weapon in question was not shown to be militia useful. (Which it is in as much as short barreled shotguns have played an important role in warfare.)
The "collective" nature of the 2nd has never been decided by the supremes b/c it obviously is *NOT* collective.
For rights supporters to acquiesce on this point as lower courts mangle Miller is beyound the pale.
Recall too that the nfa was a tax law, so as not to run afoul of the 2nd. The underlying reason being to get tommyguns out of the hands of criminals, for the safety of state agents. Carrying that logic to absurdity, no weapon would be allowed in any subjects hands b/c it *could* be used against the state and its agents.
tg
"... two circuits that say it's an individual right, versus nine or so that say it isn't."
Have 8+ courts overly declared "collective right" or is it just the 9th?
Rather than rule on the issue per se, most of them have simply construed Miller as inconsistent with the individual right model.
The usual read of Miller is that possession of the arm needs to have a demonstrable connection to the maintenance of the militia. And private militias dont count.
The forefather of these cases is Cases v. United States, 131 F.2d 916, 922 (1st Cir. 1942) (almost impossible to find, for obvious reasons), which reads in part:
because of the well known fact that in the so called "Commando Units" some sort of military use seems to have been found for almost any modern lethal weapon. In view of this, if the rule of the Miller case is general and complete, the result would follow that, under present day conditions, the federal government would be empowered only to regulate the possession or use of weapons such as a flintlock musket or a matchlock harquebus.
In case it needed to be said, the collective rights reading of Miller is very obviously incorrect, done to avoid reaching the results the correctly stated rule in the case would require.
A proper reading of Miller would mean the fed cannot regulate *real* assault weapons.
The nfa would be unconstitutional if the 'tax' was considered onerous. Wait a sec - Poll taxes were ruled unconstitutional weren't they???
tg
Update:
I keep reading that nine circuits have gone collective but the only one I have seen for myself is the ninth.
But then on the west coast anything dealing with personal responsibility is deemed unconstitutional.
tg
Footnote 4 in the Parker opinion cites eight Court of Appeals opinions adopting the "collective right" interpretation (1st, 3rd, 4th, 6th, 7th, 9th, 10th, 11th). In the same footnote the majority rejected the District's cite to the 2nd Circuit's 1984 Toner opinion as another "collective right" case.
If we accept the D.C. Circuit's headcount, that's eight circuits in favor of "collective right," two in favor of "individual right," and three (2nd, 8th, and Federal Circuits) undecided.
Oops. The Parker court also cited the 8th Circuit's Hale opinion from 1992 as a "collective right" opinion. That leaves only the 2nd Circuit and the Federal Circuit as undecided. The Federal Circuit is unlikely to decide this issue, since their specialized jurisdiction doesn't include criminal cases.
My bet is that the anti-freedom lobby will take their loss, and not ask for an en-banc hearing or an appeal. Here's why:
It's a very high stakes game, but the risks are not the same for both sides.
The present environment is that most circuit courts have held that the RKBA is an collective right, so, like it or not, we are now living in a mostly collective right situation. Even so, and even though the tide is mixed, it is generally running in a gun-friendly direction. The AWB was let expire, we got FOPA a few years ago, and more and more states are adopting shall issue permit laws. Even in that environment, we could theoretically get an individual right through legislation. So a Supreme Court ruling that it is a collective right is not devastating to the pro-freedom side.
If there is an en-banc hearing, and an appeal, the risk to the anti-freedom lobby is that the RKBA is declared an individual right by the Supreme Court. In that case, many existing laws are subject to challenge, and they lose big time, and probably PERMANENTLY. From then on, laws restricting firearms have to show an overriding state interest.
Given the risk of an appeal, my bet is that they take their loss and bide their time.
BTW, they are NOT "assault weapons". They are "homeland defense rifles".
It seems a lot of the Appellate courts are stacked against us even with the positive ruling
by the Supreme Court.
In the likelihood of challenging all the federal gun laws back to 1934............if the Supreme Court rules under Parker for an individual right
how effective will those challenges be?
I live in the 9th Circuit....the rulings of
those Judges in San Francisco....are HARDLY representative of us citizens who live in the
9th Circuit.
Even if the Supreme Court's ruling vacates the rulings of those 9 Circuits....it is going to take decades to effectively challenge all
those federal gun laws.
I keep chuckling at the dissent. Once again we see a judge willing to sacrifice her reputation as a legal scholar or writer to her left-wing loyalties. If the defendant were a State (or political subdivision of such) Karen Henderson would have held (citing cases in the line descending from Cruikshank) that the Second Amendment did not restrict States. Since defendant was the D.C. government (entirely a creature of Congress), Henderson holds that the Second Amendment does not restrict the US. Well, which are we to have? Can it be (as Henderson implies, and probably believes in her heart) that the Second Amendment doesn't apply to any government? Then what's it there for?
(And all this without discussing Henderson's risible reading of the Amendment's text.)
That all makes sense to me. I once saw an interview with Rehnquist who as much as said that the Court did not consider a mere circuit court error to be a particularly compelling reason for granting cert.