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Latest developments in Parker
I'm back in town, and at the volokh conspiracy, Dave Kopel has a post on developments in Parker. Basically:
The Parker plaintiffs won in the Circuit Court on two grounds. Both the handgun ban, and the ban on having a functional (assembled, not trigger locked) shotgun or rifle in the house, were struck down.
DC asked the Circuit Court to "stay the mandate." When an appellate court issues an opinion, that gives its reasoning. After a period of time (to let the parties file an appeal, or not) it issues a mandate, which is the actual order to the lower court to do things ... strike down the statute, in this case. DC moved for and got a stay order, which held off issuing the mandate until it could file with the Supremes.
BUT DC only appealed the handgun ban to the Supremes.
So the Parker plaintiffs are now asking the Circuit to lift the stay of mandate as to the ban on functional rifles and shotguns. DC hasn't taken that to the Supremes, the time for doing so has run out.
I could see the circuit going either way on the motion. DC will likely argue that if it wins on its first theory in the Supremes (there is no individual right) that the functional gun ban will be constitutional. On the other hand, it didn't appeal that issue, and it is a binding judgment. I don't know if its omission is a tactical move (if they want to argue that the handgun ban is a limited measure, they'd rather not talk about the requirement to deactivate rifles and shotguns, too) or just a slip up by DC. As a tactical move: all the parties are going to be arguing the rifle and shotgun ban anyway, it's not like you can hide it by omitting it. As a slip up: I trust in going before the Supremes people vet their case a bit more carefully than that. I tend to think it's a tactical move, but am unsure.
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This is confusing to the layman. I assume it all means that DC has forfeited the argument that the 2nd Amendment is not and individual right and has now chosen to argue that their handgun ban fits within reasonable restrictions allowed under the 2 nd Amendment? Yes? No?
They allow that the court was right in ruling the obvious, it is an individual right, yeah that's why it's in the Bill of Rights. If true, this is huge ... one down one to go. I wonder what peg they hope to attach to limits under the 2 nd Amendment? Sounds like they are going for "As long as you have any gun it's OK to ban the rest".
Or how about the counter argument the public has the right to have access to those civilian arms that are versions of the infantry man's carry. Matches up with the needs of the malitia, does it not?
They're not giving up any arguments for or against the handgun ban. They had two statutes on the line, and both were ruled unconstitutional. But they're only going to appeal the ruling on one of the statutes (the ban on handguns) and NOT the other (the ban on keeping a working gun of any type in your home.)
On the surface, they're tacitly going along with the ruling that said it's unconstitutional to bar citizens from keeping functional long guns in their homes.
What David is trying to figure out is, why would they do that? What's in it for them? With the information we have, it looks like either a fairly pointless legal maneuver or a mistake.
Then again, there may be information we don't have that would change the way we see this--or we may just be discussing something that's actually inconsequential. That's just hard to believe.
There are Two (2) things missing from the Petition. Any reference to standing of the plaintiffs that was argued in the lower court. Since the Petition does not address this issue, they are procedually bared from raising it. However, since the cross-assignment of error was filed, they may now brief that issue. Mistake? It is bad lawyering in my opinion to hope your opponent will raise the issue for you.
Given that US v. Miller is bound to come up, I certainly hope that our briefs include clear references that handguns are standard issue military weapons (along with "Assault Rifles", SMG, LMG, and HMG).
A few minutes googling will yield many pictures and references of soldiers in Afghanistan sleeping with an M2 at the foot of their cot because that is considered their personal weapon.
I think it is an attempt to give the Court the option of making a political decision, rather than a legal one.
Sort of, see? We will allow them to have some guns,so we are not being unreasonable in disallowing others.
The Court over the past two decades has been very reluctant to lessen the power of the state. One can usually expect an honest ruling between litigants of different governmental agencies from the Court, but they almost never do anything to thwart overreach of the state against citizens. A good example is Kelo v. New London. Everybody knows that was not an honest rendering on the part of the Court.
If it is a tactical move, I would venture a guess that it was at the behest of the Brady Bunch. My thinking is that they are thinking like this:
"(1) We've just been handed a big loss at the Circuit Court level. (2) The District decided to take it to the SCOTUS against our better judgment. (3) We think the SCOTUS has no choice but to say that the 2nd means what it says, and our cause will be lost for good, and gun control laws will start falling like dominoes!
Oh crud, now what do we do?
Well, if we accept the Circuit Court ruling on the 2nd being an individual right, and we don't challenge it, from a national perspective, we maintain the status quo: The Circuits are still split, and the SCOTUS no longer has to re-affirm the individual right to decide the DC handgun issue. The SCOTUS could very well find some weasel word way to uphold or strike down the ban in question without commenting directly on the individual right, much as they did in Miller. OK, we can live with that."
In short, they are hoping that SCOTUS finds total handgun prohibition is a 'reasonable' restriction, while maintaining the circuit split on the individual vs. collective right question. Even if the SCOTUS strikes down the handgun ban, they are maybe trusting they can do it without resolving the circuit split.
Conclusion: They realize what a hole they've dug for themselves, and they're trying to limit their losses at the national level - while throwing a 'Hail Mary' that total handgun prohibition is 'reasonable'.
I just re-read what I wrote above. If I'm right, it is definitely NOT a tactical move: It is a strategic move! They are taking a tactical loss so that they may live to fight another day.
Who gets the final word on lifting the stay? Is it Henderson, Silberman, and Griffith, or could a decision to lift the stay be appealed?