SAF Says D.C. Circuit Denial on Re-Hearing of Parker Case was Right

Second Amendment Foundation ^ | 5-8-07 | SAF (via email)

[EdReform]

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NEWS RELEASE

SAF SAYS D.C. CIRCUIT DENIAL ON RE-HEARING OF PARKER CASE WAS RIGHT

BELLEVUE, WA – This morning’s decision by the U.S. Court of Appeals for the District of Columbia to deny a petition from the District of Columbia for a hearing of Parker v. District of Columbia before the full court was “right and proper,” said Alan M. Gottlieb, founder of the Second Amendment Foundation.

“This is a strong signal that the D.C. Court of Appeals, which is the second most powerful court in the country, feels the original ruling by Senior Judge Laurence H. Silberman is solid,” Gottlieb stated. “It is now up to the district to accept the ruling and begin the process of licensing handguns to be kept legally in district residences, or to appeal the case to the Supreme Court.”

The Parker case has become the most significant Second Amendment case in the nation’s history, because for the first time, a gun control law was struck down on the grounds that it violated the Second Amendment right to keep and bear arms. Judge Silberman’s ruling found that the Second Amendment protects an individual right to bear arms that goes beyond service in a militia.

“The time is long past due for the Supreme Court to hear a case that has such gravity in terms of the Second Amendment and its true meaning,” Gottlieb observed. “For almost 70 years, a state of confusion has existed over whether the Second Amendment protects an individual civil right, as we are certain it does, rather than affirming some convoluted ‘collective right’ of the states to form militias. That interpretation has been carefully fabricated over the years by anti-gun zealots whose ultimate goal is to strip American citizens of their firearms rights.

“We think this question must be answered,” he continued, “to forever silence those gun control extremists who have been misinterpreting – we believe deliberately – the 1939 U.S. v Miller case in an on-going effort to destroy the cornerstone of the Bill of Rights, and the foundation for liberty in this country. This appears to be the right case, and this is certainly the right time.”

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[EdReform]

Bang

[padre35]

How great is that? GWB’s real legacy may be the judges that he was allowed to seat throughout the judiciary.

Excellent.`

[colorado tanker]

Well, this should set up the case for faster decision by the Supremes.

[EdReform]

Indeed!

[roscommon]

ping ping ping!

[Publius Valerius]

This is good news, thought as I’ve explained in other posts, I’m not sure now is the right time for this case to go to the Supreme Court. I’m just content for the D.C. Circuit’s decision to stand.

[Uncledave]

I haven’t seen your reasoning in other posts, but would you not like this to be an issue for 2008? I think it surely benefits our side if it were.

[AU72]

Love to be a fly on the wall when the SC confers about taking this case. Love to see them put the Militia canard to bed with a decision even if it’s divided.

[Politicalities]

I must say I'm amazed (and pleased) that the Court did not choose to rehear the case en banc... although this may make it slightly less likely that the Supreme Court will grant certiorari than had the full appeals court reheard and affirmed the panel's decision. Of course, if the Supremes take the case, that could be a mixed bag... the fate of the Second Amendment would rest in the hands of the single most powerful man in America, Anthony Kennedy.

[beltfed308]

I’m not sure now is the right time for this case to go to the Supreme Court.

I disagree. Since the '34 NFA it has been downhill. It about time 73 years of BS gets addressed.

[1L]

I don’t think en banc hearings make it more likely they’ll take cert on the case. It may, but there are other more important factors, such as disagreement among the circuits and a willingness to review the law. Correct me if I’m wrong, but I think it only takes 4 justices to agree to take the case, or is that something else?

Great. I’m a member of the bar of the USSC and I’m not even up on their darn rules!!

[KarlInOhio]

the fate of the Second Amendment would rest in the hands of the single most powerful man in America, Anthony Kennedy

Also known as the justice in Robert Bork's rightful seat.

[Publius Valerius]

Basically, it comes down to this for me: I don’t think the votes are there, and I think the risk/reward calculus doesn’t come out in our favor.

Let’s assume for a moment that if the Court takes the case, there will be a four-four split with Kennedy sitting as middle justice. I’m not at all convinced that Kennedy is in our corner on this one, and so in order to get Kennedy to sign onto a pro-gun opinion, I think it will have to be pretty watered down; in fact, I think Kennedy would write it.

Then, even if that happens, the fact is that the second amendment isn’t incorporated, so it doesn’t necessarily apply to the states. Remember, this is a Washington, D.C. case, so unless the Court decides to affirm the D.C. Circuit AND incorporate the Second Amendment, it is going to be a non-starter for the rest of the country. Again, I don’t see the votes on the current Court to incorporate the second amendment. So I think the best we get is a weak affirmation of the right to bear arms, but only applicable to those living in Washington, D.C.

But on the other hand, what if Kennedy signs onto the anti-gun side? I think this could be disasterous. The Supreme Court has shown that it just isn’t interested in hearing second amendment cases, and an anti-gun opinion from the Supreme Court would effectively kill any momementum that we might have right now. Who knows how long it would be before another case got in front of the Court? It could be another 50 years, or even more.

No, I think we’re making good progress in the legislatures and I’m inclined to leave it at that for the time being, at least until the vote appears a little safer in the Supreme Court.

[Uncledave]

Good thoughts to ponder - thanks.

[Politicalities]

I don’t think en banc hearings make it more likely they’ll take cert on the case. It may, but there are other more important factors, such as disagreement among the circuits and a willingness to review the law.

This is true. I'm just speculating that the Court is more likely to exercise its discretion to grant certiorari if there have been disagreement between multiple full Courts of Appeals... but I'm not a lawyer and I may well be wrong. My thought process is something like: just as denial of certiorari is a very different thing from affirmation on appeal, so denial of rehearing en banc may be very different from en banc concurrence with a panel. Just as denial of certiorari says nothing about how the Supreme Court views the merits, perhaps denial of rehearing en banc says nothing about how the full Court of Appeals views the merits as well. (And in both cases, the ruling of the inferior court/panel governs.) But again, I freely admit that I could be wrong here. In fact, I probably am.

Correct me if I’m wrong, but I think it only takes 4 justices to agree to take the case, or is that something else? Great. I’m a member of the bar of the USSC and I’m not even up on their darn rules!!

You're not wrong, and don't feel bad about it... while the Judiciary Act of 1925 gives the Supreme Court discretionary authority over certiorari and the Court has decided that a vote of four Justices suffices to grant the petition, this is purely customary and is nowhere codified in the Court's rules. See Rule of Four.

[Joe Brower]

[paul51]

fine points

[arthurus]

and Justice Kennedy is seriously open to pressure from the left.

[arthurus]

The language of the 2nd does not render it subject to incorporation. It already forbids all entities from infringing on the RKBA. It does not say that “Congress shall make no law...” It says “...shall not be infringed.” The States all ratified the Constitution. They ratified that wording.They did not add a parenthetical “(...except by the states)”

[arthurus]

at least until the vote appears a little safer in the Supreme Court.

Right now the safe prognosis is that the next couple of Justices will be appointed and confirmed by Democrats. It ain't gonna get better than now.

[Dead Corpse]

No. A piecemeal effort via State legislatures still leaves entirely too many avenues for government abuse. It also legitimizes their efforts.

If we land jam side up in the SCOTUS, we repeal 73 years of abuse of our Rights by the government. If we land jam side down and they rule against an individual Right, then it is time to put Rule .308 into force.

It's a clean case. We aren't going to get a better SCOTUS make-up any time in the next decade. Assuming we even retain control of the WH and get back control of Congress, which isn't a sure bet either. If Hillary or Obama score big in 08, we won't see any more conservative judges. If we win the WH again, we still have a hostile Congress to seat Judges under. Even when we had the POTUS and Congress, very little was done legislatively or via EO's to stem the tide.

No. The time to strike is now. For better or worse. This has gone on far too long and far too many people have either died or gone to jail because of the governments lawlessness.

Enough is enough...

[EdReform]

Bang

[JCEccles]

I disagree.

You don't want SCOTUS to take a case of this importance unless you are sure you have the votes to win for gun rights. Better to leave the law status quo than to allow five judicial activists to decide that the Second Amendment has no relevance today.

[Publius Valerius]

Whether or not you think the Second Amendment is subject to incorporation, the fact is that the Supreme Court has treated each amendment (and sometimes each provision) of the Bill of Rights separately when it comes to incorporation.

The Fifth Amendment says that "No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury."

This language is fairly unequivocal, no? But you know what? I don't have the right to a grand jury in my state. Why? That part of the Fifth Amendment has not been incorporated.

[Dead Corpse]

You are correct. Incorporation is a myth. Just look at the text of the legislation used to ratify the Bill or Rights:

The First 10 Amendments to the Constitution as Ratified by the States
December 15, 1791
Preamble

Congress of the United States begun and held at the City of New York, on Wednesday the Fourth of March, one thousand seven hundred and eighty nine.

THE Conventions of a number of the States having at the time of their adopting the Constitution, expressed a desire, in order to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added: And as extending the ground of public confidence in the Government, will best insure the beneficent ends of its institution

RESOLVED by the Senate and House of Representatives of the United States of America, in Congress assembled, two thirds of both Houses concurring, that the following Articles be proposed to the Legislatures of the several States, as Amendments to the Constitution of the United States, all or any of which Articles, when ratified by three fourths of the said Legislatures, to be valid to all intents and purposes, as part of the said Constitution; viz.:

ARTICLES in addition to, and Amendment of the Constitution of the United States of America, proposed by Congress, and ratified by the Legislatures of the several States, pursuant to the fifth Article of the original Constitution.

As part of the Constitution, the Amendments apply to the States via Art 4 Sect 2 and Art 6 para 2. This means "shall not be infringed" is the Supreme Law of the Land the laws of any State to the contrary notwithstanding and the Judges of every State shall be bound thereby. RKBA is one of our many "privileges and immunities" as US Citizens and can not be denied to any legal adult in the US and still maintain a Constitutionally legal footing.

Some will try and play it off that Marshal's Barron decision gutted this. It didn't. Marshall was wrong. He had ZERO authority to "legislate" from the bench by changing the plain meaning of the Constitution. The BoR applies to every State in the Union and even "home rule" cities. Every court decision based of of juris dictum on this line of reasoning is equally fallacious.

Time to do something about it. Now. Before I'm too damn old for other options...

[Dead Corpse]

So we should wait another 20-30 years? It may take that long before we have a "perfect" SCOTUS and a clean case again.

Screw that. Do it now. Before some idiot legislator does something stupid and makes people like us felons...

[Publius Valerius]

It may get better or it may get worse. But I’m not interested in going “all in” on the make-up of this Court. It’s not in my interest, especially considering that the best I can do is luke-warm victory.

[Dead Corpse]

Then those Justices spouting that fiction need to find the “incorporation” clause in the Constitution and cite it.

[Dead Corpse]

Getting the SCOTUS to rule that RKBA is an “individual” not “collective” Right is “lukewarm”?

[Publius Valerius]

No. A piecemeal effort via State legislatures still leaves entirely too many avenues for government abuse. It also legitimizes their efforts.

Given my appreciation for Federalism, I'd just the same rather see it left to the states and the federal government withdraw from the issue of firearms regulation altogether. This won't happen, though, and leaving it piecemeal to the states does allow for infringement by some states, but this is the idea of Federalism. If you don't like it, vote with your feet. Texas or Indiana or Alaska will be happy to take gun lovers in.

If we land jam side up in the SCOTUS, we repeal 73 years of abuse of our Rights by the government. If we land jam side down and they rule against an individual Right, then it is time to put Rule .308 into force.

So if Parker loses the case, you are advocating violent overthrow of the government? Let's get real: not going to happen. Again, when you look at this case rationally, there is just too much at stake to make such a huge gamble.

We aren't going to get a better SCOTUS make-up any time in the next decade.

Maybe, maybe not. What we do know is that it is very unlikely to get worse. Most of the conservative justices are young, while most of the liberal justices are old. EVEN IF a democrat wins the White House and the democrats retain control of the Senate, a retirement by Stevens and the appointment of a liberal justice to take his place is a wash. However, if Stevens retires, maybe a democrat will (mistakenly) appoint a conservative judge, or maybe a Republican President will appoint a "stealth" candidate that surprises everyone, much like how Roberts has been surprisingly conservative to a lot of people.

Regardless, what I can be pretty sure of is that the membership of the Court won't get worse for this issue, while there is a fair-to-middling chance that it will get better.

Even when we had the POTUS and Congress, very little was done legislatively or via EO's to stem the tide.

Then vote for better candidates.

[arthurus]

If “incorporation” is actually accomplished it does not apply to the 2nd amendment because the 2nd is specifically not addressed to the Congress. It is a universal ban on infringement. NO infringement is permitted. By anybody.

[Publius Valerius]

Look, you can piss and moan and gnash your teeth about incorporation all you want, but it is what it is. It’s not going anywhere. Any talk otherwise is just a dream of fantasy lands.

As long as we’re talking about this subject, we ought to at least be constrained by reality.

[Dead Corpse]

The idea of the Constitution was to limit government. If you don’t like some Rights being off limits to ALL levels of government, then you are part of the problem...

[Publius Valerius]

Where are your votes going to come from to get this sweeping ruling? What will the majority have to do to entice Kennedy to sign on to the opinion?

Or, as another possibility, let’s say Kennedy signs on to the five person opinion and then separately concurs. What do you think Kennedy will say? Do you think Kennedy will find an unqualified individual right to bear arms? After all, it will be Kennedy’s opinion that will govern. Are you willing to trust your right to bear arms to Kennedy?

Look, I share your enthusiasm for guns and I eagerly look forward to a day in which all these gun ownership laws are stricken from the books. But I’m also a realist. The makeup of the Court does not make me excited. It makes me uneasy.

[Dead Corpse]

...but it is what it is.

People once thought the same about slavery and monarchies.

Reality? No... you want a "compromise". This country was founded the way it was because the Colonists worked through the system to get the King to relent.

Thinking the system will fix itself without being held by the scruff or its neck is what is "wishful thinking" here.

No ones asking you to "help". You can run along home now...

[Publius Valerius]

The idea of the Constitution was the limit the Federal Government. What my state does is the business of me and the fellow citizens of my state.

If you’re not from my state, well, I don’t care about what you think about how my state runs the show.

[Dead Corpse]

Read Parker. It even cites Kennedy and Souter. If they rule against Parker, they over turn their prior rulings and possibly even commit perjury.

You aren't a "realist", you are a "defeatist".

[Dead Corpse]

The idea of the Constitution was the limit the Federal Government.

Wrong. The Confederacy had so many State level abuses that certain power were taken from them and given to the FedGov. To ensure our Rights were protected once and for all, the BoR was added so any US citizen could look at it and know that at least those Rights were inviolate.

If you want to go back to the Confederacy so bad, just wait'll your State revives indentured servitude...

[Publius Valerius]

Ok, right. Let’s not talk about Supreme Court jurisprudence. Let’s live in a constitutional fantasy land where you can wax sentimental about theory until you are blue in the face.

Meanwhile, the rest of us have to deal with the Supreme Court as it is, not as you want it to be.

[Publius Valerius]

over turn their prior rulings

First you say prior rulings don't matter when we're discussing incorporation, but now they do? Which is it? Is the Court bound by stare decisis or isn't it?

possibly even commit perjury.

Have you gone mad? The Confederacy had so many State level abuses that certain power were taken from them and given to the FedGov.

If this is a 14th Amendment reference, the powers given to the Federal government were limited and few. The best scholarly review of the scope of the 14th Amendment is Raoul Berger's "Government by Judiciary."

[Beelzebubba]

If SCOTUS takes it, I won’t be surprised by a firm upholding of Parker, in a UNANIMOUS opinion.

After all, who would want to risk the wrath of a deranged but motivated shooter, just to have a 7-2 or 6-3 decision?

[Beelzebubba]

It’s a clean case.

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In fact, I think it is the cleanest case imaginable.

[The KG9 Kid]

I know you're right in that the US Constitution only means what the US Supreme Court says it does: Negroes are only 3/5ths of a white man, "Seperate but Equal", Seperate is never equal, Dredd Scott had no natural right to liberty, The Amistad slaves freed on a backroom compromise technicality that satisfies New England abolitionists while barely soothing the Southern states protection of their 'peculiar institution', etc. etc. etc.

I hate this game. I think the clock is running out. If we lose, things will simply be as they are now: Steadily getting a little worse every year.

We might as well buck up and be like John Adams about Parker going all the way to the top. Let come what may.

[Dead Corpse]

Let’s live in a constitutional fantasy land where you can wax sentimental about theory until you are blue in the face.

Restoring our Constitution and our Republic is part of the Mission Statement for FR. You might wanna review which "side" you are on...

[Dead Corpse]

Is the Court bound by stare decisis or isn't it?

Why should it be? If new facts are presented, why toss them out because a previous court ruled the Earth was Flat?

If this is a 14th Amendment reference, the powers given to the Federal government were limited and few.

Nope. Story. Mason. And Rawle. The Powers given to the FedGov were limited. The BoR made things off limits to ANY government in the US. Local, State, or Federal. We the People said this. Our Rights are not "gifts" from the Government. Nor does government have the just "power" to infringe on those so listed.

[looscnnn]

I actually think that they will deny the petition implying that the lower court ruled correctly thus keeping them from actually having to take a stance on the 2nd Amendment. If they do that, both sides of the debate will continue to argue that the USSC believes their view of the 2nd. Think of it like Israel and whether or not they have nukes.

[Freedom_Is_Not_Free]

Quote: I’m not sure now is the right time for this case to go to the Supreme Court.

I am reading this view a lot lately. I share your deep concern over the outcome if the court should find there is no individual right to RKBA. But I can't see a better time to hear the case. We might dream of a packed court of conservatives, but this will never occur. Even though the court is still slightly left leaning, this may be the best court composition we are ever likely to see, and so it may be the best chance we will ever have to roll the dice.

[Nebr FAL owner]

HOLY SMOKES !!!! If I read this correctly the ruling stands as is . That goof that is the mayor of the district of Criminals is literally gonna take a dump ion his drawers !!! 8^>

[philman_36]

BTTT