The Supreme Ct Refuses 2nd Amendment Case - Another in Works

Discussion in 'National Laws, Bills and Politics' started by Malum Prohibitum, Jan 26, 2006.

  1. Malum Prohibitum

    Malum Prohibitum Moderator Staff Member

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    I listened to NRA Radio this morning, and lawyer Stephen Halbrook was on discussing the Seegars case out of DC. You may recall that this was a lawsuit limited to declaring the Second Amendment protects the right of residents of DC to own a useable firearm in their home.

    That's it. They were not asking for carry rights. There was no complicating issue about whether the Second Amendment applies to the states. The case was simple. Does the Second Amendment prohibit the federal government (DC is federal) from banning firearms in the home.

    Well, they lost (in front of a Republican appointed Judge).

    On appeal, the DC Circuit Court of appeals held that there was no standing. That is, because the plaintiffs were not willing to smuggle a firearm into the district, admit to breaking the law in a court pleading, and then have a SWAT team crash through their front door, the DC Circuit Court of Appeals ruled that the plaintiffs have no standing to pursue the case (other circuits have ruled that one need not actually be arrested to have standing).

    Judge (now Chief Justice) Roberts was at the time one of the dissenting judges on the panel who voted to rehear the case en banc (meaning all the judges on the circuit would hear the case and then rule - it is heard initially only by three judges, it is reheard by all only in rare circumstances of great importance).

    The plaintiff's appealed to the US Supreme Court, which recently declined to hear the case. Justice Roberts abstained from the vote, probably due to his earlier involvement in the case.

    Well, there it is. Several years wasted on a clean case and nothing to show for it.

    It could be a good thing, though, to have a case like this come up after one or two more Justices with an "original intent" or "strict construction" view are appointed to the bench (as if there is any Constitution left with a "lax construction").
     
  2. jrm

    jrm Sledgehammer

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    MP,

    I think the NPR story might have glossed over a few points, even though the result was close to what they reported. The district court denied standing for some plaintiffs, on the ground that they had an (albeit vain) administrative remedy. They could apply for a pistol permit and then appeal the inevitable denial. The district court found standing for a plaintiff that did not have an administrative remedy (she owns a shotgun that she keeps in DC, but DC law requires her to keep a trigger lock on it, and she would like the freedom to remove the trigger lock in order to plant some 00 in a home invader). The DC circuit affirmed no standing for the first class, on the grounds that there was no indication that criminal prosecution was immenent. The circuit reversed and found no standing for the other plaintiff, on the same grounds. The logic getting to the circuit court result rests entirely on another pre-emptive case involving, guess what, guns! The court took pains to point out that they do not have special gun jurisprudence, but their opinion belies their protestations. There was a dissent on the panel, saying it was absurd to believe that prosecution is not imminent, when the plaintiffs showed on the record that DC regularly and aggressively enforces the ordinance.
     

  3. Malum Prohibitum

    Malum Prohibitum Moderator Staff Member

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    I wonder whether the same result would apply to books. That is, if DC outlawed books, would one have to actually get arrested with a book (like Farenheit 451), or would it be sufficient to swear the intention of wanting to acquire and read books?

    Oh, as to the radio show source, though - NRA

    NPR - National Proletariat Radio

    NRA - National Rifle Association

    Although I listen to both, they are different stations. :D

    Stephen Halbrook (NRA lawyer and author of "That Every Man be Armed") was definitely giving the short version, fit for consumption, but it is the only news I have heard of that case for a long time.
     
  4. Sharky

    Sharky New Member

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    I will never live anywhere near DC or place with their mentality!
     
  5. jrm

    jrm Sledgehammer

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    Thanks for correcting me on the radio station. :oops:

    I think I can answer your hypothetical about book banning. The DC circuit said that first amendmen cases are different, because of the fear of having a "chilling effect" on free speech.

    They even were forthright enough to say that the supreme court cases on the topic did not support this disparate treatment. That's when they brought up the part about not having special gun jurisprudence.
     
  6. Malum Prohibitum

    Malum Prohibitum Moderator Staff Member

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    WHAT !?!

    That is actually in the opinion? I think I need to go pull this up and read it for myself.

    I suppose there is no "chilling effect" on having a gun in one's home in DC?

    Well, since you obviously read it, what does the court say suffices for standing? Or do they leave that open so they can deny standing to the next plaintiff, too?
     
  7. Malum Prohibitum

    Malum Prohibitum Moderator Staff Member

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    I suppose it is not as bad as the Ninth Circuit (out west), where one does not have standing under the Second Amendment even if he is arrested.

    I am not kidding. That is really true. No individual has standing for a Second Amendment lawsuit out there, ever, under any circumstances. State governments do, though.

    :roll:
     
  8. jrm

    jrm Sledgehammer

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    The DC Circuit's opininion is reported at 396 F.3d 1248 (the caption is Seegars vs. Gonzales).

    The DC Circuit has only one previous case on this topic that is not a 1st Amendment Case nor a regulatory case (they say that regulations can be challenged more readily), and that is their basis for their decision (that case is Navegar vs. United States). The test they apply is whether or not the statute singles out the plaintiffs by name or somehow otherwise places some special priority on preventing the plaintiffs conduct. Navegar was a "Clinton Gun Ban" (VCCLEA) case. The plaintiffs were gun manufacturers that made, or might make, what the Act called "assault weapons." The makers of guns specifically named in the Act had standing. The makers of guns that qualified as assault weapons based on their characteristics, but were not specifically named, did not have standing.

    For the case at bar, because none of the plaintiffs could show that they were subject to a heightened priority, they had no standing. :shock:
     
  9. Malum Prohibitum

    Malum Prohibitum Moderator Staff Member

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    Ok, at the denial of the rehearing en banc, the court spelled it out.

    In order to have standing (citations removed from quote):

    The plaintiffs challenging the pistol regulation, as both the panel and the district court observed, could have applied to register a pistol and then challenged the subsequent denial of that application on the basis of the Second Amendment in the courts of the District of Columbia, and thereafter, if necessary in the Supreme Court of the United States. Because the appellants have, as the Government argues, a ready means of presenting their constitutional challenge, it cannot fairly be said that a criminal prosecution is their “sole means of seeking relief.â€


    So, at least we know that there is a means of obtaining redress.

    Frankly, I think it pretty sloppy that the plaintiffs did not even apply prior to suing. That is poor planning.
     
  10. Malum Prohibitum

    Malum Prohibitum Moderator Staff Member

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    Judge Williams aptly points out that applying would ahve been "going through a charade," but I would have advised them to apply anyway prior to suing.

    "I do not think our law of standing requires that citizens who want to obey the law, but also to follow their judgment as to self-preservation, be told that they cannot get a reading on the validity of the law except by pursuing concededly useless administrative avenues or by engaging in forbidden behavior that is sure to be exposed if the risk they fear arises."

    Again, out of an abundance of caution, I would have had them pursue the "concededly useless administrative avenues."

    That does not mean I agree with the court's ruling. The very statutes at issue say no license will be granted to any applicant after 1976 (the bicentennial!). I would have ruled that they have standing under Babbitt and American Booksellers. That does not mean that I can overlook such a blunder, though.
     
  11. Malum Prohibitum

    Malum Prohibitum Moderator Staff Member

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    Stephen Halbrook argued the case.
     
  12. Malum Prohibitum

    Malum Prohibitum Moderator Staff Member

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    Thurbert Baker, Georgia's Attorney General, filed a brief on behalf of these Plaintiffs.

    :)
     
  13. jrm

    jrm Sledgehammer

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    MP,

    I agree, that they should have gone through the useless charade of applying for a permit. If they had, then they would not be peremptorily challenging an ordinance, they would be appealing the denial of a permit. But, the court's opinion never really addresses that topic. The denial en banc does, which seems odd to me. It's almost as if the denial is on other grounds than the majority opinion. It will be interesting to see what happens with this on the way back up again (assuming somebody bothers).

    It looks like Thurbert Baker (and many other state attorneys general) signed on to the brief supporting the plaintiffs that was written by the Texas Solicitor General. I would be interested in reading that brief.
     
  14. Malum Prohibitum

    Malum Prohibitum Moderator Staff Member

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    The brief costs extra . . .
     
  15. jrm

    jrm Sledgehammer

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    I know. I tell you what, I'll split it with you. You buy it and I'll read it. :?
     
  16. Malum Prohibitum

    Malum Prohibitum Moderator Staff Member

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    And then there is the Cato Institute lawsuit, Parker v. District of Columbia, 311 F.Supp.2d 103 (D.D.C. 2004), dismissed in 2004 on a holding that the Second Amendment grants no rights apart from an "official" State Militia. This case relied heavily on holdings by the Eleventh Circuit Court of Appeals, right here in Atlanta.

    Was that case appealed?
     
  17. Malum Prohibitum

    Malum Prohibitum Moderator Staff Member

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    Ok, this Cato Institute article, written after the dismissal, indicates that the Parker plaintiffs did, in fact, appeal and that the standing issue should not matter this time around:

    http://www.cato.org/pub_display.php?pub_id=3716


    Apparently, counsel for DC admitted that they would arrest the plaintiffs if they possessed functional handguns in their homes, and the mayor's office was quoted on the front page of he Washington Times two days after the lawsuit was filed stating the city's intent to enforce its handgun laws.

    The District Court opinion does not mention standing, in spite of the fact that the judge requested briefs on the issue.

    Rather, it is strictly a holding that there is no Second Amendment right for individuals.
     
  18. Malum Prohibitum

    Malum Prohibitum Moderator Staff Member

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    And here is the Cato Institute's article blasting the NRA for its attempts to subvert the Parker case, both through Sen. Orrin Hatch and the Seegars case cited above (an NRA case filed two months after Parker).

    http://www.cato.org/research/articles/healy-030730.html


    The Cato Institute was told the time was not right, and the case was too good, the plaintiff's too well situated. The Cato Institute's response is that a Second Amendment lawsuit is going to get to the Supreme Court one day, and they would rather we choose the plaintiff than have a "crack dealer" be the "poster child for the Second Amendment."

    Good reading.
     
  19. Malum Prohibitum

    Malum Prohibitum Moderator Staff Member

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    UPDATE from oo7 over at The High Road:

    Ok,

    I emailed the firm handling Parker v DC.
    Mr. Alan Gura of http://www.gurapossessky.com/
    kindly answered my request for a case update.

    " The next event in the case is expected to be the filing of the defendants-appellees' brief, due July 21. The amici for the appellees will be filing their briefs by August 7, and we will then file our reply brief by August 21. The case will be argued sometime after October, but we do not have an exact date, nor do we yet know the identity of the panel. "

    " The docket number is 04-7041. However, please note that PACER does not operate in real time. It has often taken weeks for documents filed to appear on PACER. It seems that documents generated by the Court, i.e. orders, appear in real time, but other filings do not necessarily do so. "


    PACER :
    http://pacer.psc.uscourts.gov/