« Concealed Carry Legal Services | Main | Anti gun legislator arrested for DUI, flight & damaging squad car »
Cross-petition filed in Parker
It's in pdf here. Basically, the Parker ruling was that five of six plaintiffs did not have standing to sue since they had not been threatened with prosecution, but that one (who applied for and was denied a handgun permit) did have standing. The Circuit then ruled in favor of that one. This cross-petition seeks to establish that the others (who include Parker) should be allowed to sue, also.
Standing is very wierd here. I just wrote a law rev. article on it. Supreme Court rulings over the last thirty years have made it reasonably clear that if your conduct is inhibited by a law you argue is unconstitutional, that's enough "injury in fact" to have standing to sue. But in the 6th, 9th and DC Circuits, there is a much stricter standard, not for all cases, only for ones challenging firearms laws. Then you don't have "injury in fact" unless you are personally threatened with prosecution, or prosecuted. (Or at least have some other special qualifier: in the 6th, you're an FFL, or in DC, the gun you make is specifically named in an assault weapon ban).
9 Comments | Leave a comment
No, in those Circuits you pretty much have to have been charged/indicted with a firearms law violation before you have "injury in fact" standing to challenge the constitutionality of the firearms law. You have to be a defendant rather than the plaintiff, but only in cases whether the law being challenged is a firearms law. In other words, some animals are more equal than others.
Firearms laws get the short straw in another area, too. The 2nd Amendment stands alone as the only amendment in the Bill of Rights that the federal courts have refused find was incorporated against the states by the 14th Amendment.
Being an American citizen should bestow "standing" when the issue is the constitutionality of the law. Certioria can sort the wheat from the chaff.
All the other bullshit is just that.
The third, seventh, and part of the eighth and fifth have not been incorporated either, Letalis. Of course, the third has only one example of case law, only related to normal events by the most tenuous of links.
But, yeah, firearms law and standing is one of those places where many courts just decided to ignore upper court rulings. It's been the same whether the ruling was Miller or anything else.
Thanks for the clarification. I may have been thinking about rights reserved in the Bill of Rights that are at least arguably held by individuals. Feel free to step in if I have mis-remembered on that point, too. Con Law was a long time ago. :)
Meh, I'm just going by a recent argument, so I really know nothing about the actual class sorta viewpoint.
The whole thing's been a complete fux-up, and a pain to keep an eye on. Some of the compromises are probably by necessity -- I can't see state courts having a jury for every Judge Judy episode no matter what the constitution assures -- but most are entirely arbitrary or a case of the local politics.
I still don't get how it's so remarkably difficult to prove standing in cases like this when environmental damage and right to privacy ones show standing so easily.
I worry if the Supreme Court grants Certiorari to Parker than the liberal Justices will vote
5 - 4 against us.
Anyone else think that could happen?
I'm curious: What is the possibility that SCOTUS could overturn Parker on the basis of standing, without hearing any arguments at all? It would seem to me that this would uphold, for example, the 9th Circuit's Hickman decision declaring that citizens have no standing to sue on Second Amendment grounds. Isn't this essentially what SCOTUS did in Castle Rock v. Gonzales?
I thought Castle Rock was more about whether the restraining order or calls for help provided any assurances or responsibility to police officers than standing.
If they overturn Parker on standing it'll have the same political effect as if they just decided that the 2nd Amendment didn't exist; if you can't be protected from even the threat of prosecution doesn't matter it might as well not exist. I don't see it as being very likely, particularly given how much of traditional definitions of standing exist that cover this.
So in those jurisdictions you have to commit a felony before you can file against an unconstitutional law??? Seems bassackwards to me!!!
tom gunn