Bifurcation
Here, we'll try it again:
Two independent rulings were made in this case.
Recall previously I talked about whether Younger and its progeny might apply. All plaintiffs, including Heller, lost on this question -- by strictly applying Navigar, the D.C. Circuit in effect said Younger does: One may not enjoin a criminal prosecution; it is the defense of the criminal prosecution (or suit for return of an actually seized gun) which creates the "actual" case or controversy required by Article III.
The appellate panel, however, invited Parker et al. to go to the Supreme Court to get Navigar reversed or modified -- on the precise grounds CT mentioned, that they did not apply for a piece of paper they would not have been given anyway. As Bart mentioned, Navigar apparently is one of the most strict applications of the Younger rules, and other circuits are more liberal. Division of the circuits is one reason -- indeed, the primary reason -- the Supreme Court grants certiorari.
Now, let's assume this is the only point appealed by anyone. I suspect they won't get in, and that if they do get in, they won't win, but I've been wrong before, so let's assume they do win -- what then?
With the question of standing for reasons of comity resolved favorably to the plaintiffs, the case would go back to the D.C. Circuit for resolution of the Second Amendment claim -- in other words, the appellate court would have to do all over again for everyone what it has just done for Heller alone. If there were a different panel hearing the case, we might get a different result (it was only a 2-1 decision).
That frames the other, independent ruling: Heller did win; he won on the issue of being denied the permit he asked for. Recall what I said before: The denial of a permit (as habitually was done in Hamden, Connecticut) is a legal injury in fact, fully equal to seizing a gun or making an arrest. So, although Heller was not able to enjoin his own criminal prosecution, upon the ruling he did obtain, he has foreclosed the prosecution by getting the underlying law declared unconstitutional.
The statute is still on the books! Anyone (including anyone reading this post, including Heller) still could be arrested for it were the facts to be different. For example, were Heller to carry his gun home from work concealed and be stopped on the way, he could be arrested on a carrying charge, and nothing in his recent victory would protect him. His victory is huge -- there is a glimmer that even the National Firearms Act could fall from this -- but the victory also is limited -- the appellate court really has actually given very little (the right to keep a working handgun in one's home).
What can happen next? D.C. does not have to go to the Supreme Court right away. More likely, it will seek rehearing en banc. Literally, D.C. can ask that all of the judges on the appellate panel hear this case. If rehearing en banc is granted, Heller's victory will be stayed (tabled) pending full appellate review, and we'd do it all over again except with more judges. Rehearing en banc either would affirm or reverse, and either determination could open the door for review by the Supreme Court in a year or two.
That's right: A year!
Let's assume Heller wins big time, and that the other plaintiffs are off the table, either because they don't appeal or because they do and lose. This is the simplest Second Amendment case. The only thing at issue now is denial of the permit to keep a handgun in one's home. If the Supreme Court grants certiorari to D.C., it would not hear any true standing questions or be concerned with Younger or any of this diversionary stuff. The federal prohibition in the Second Amendment is fully before it, and it would have to rule on that. This is the equivalent of Thurgood Marshall going in and arguing the Texas law-school case years before he ever even met the Browns. And Heller either would win or he would lose.
There could be other dispositions: D.C. could recognize it has a weak hand and fold -- after all, what would it be giving up? It still could arrest people for carrying on the street, and the likelihood of a Heller case even arising is miniscule -- I've never had a police officer break into my house to seize a gun, even when every judge in New Haven knew I had one on Connecticut's "illegal" list. So, giving up costs D.C. nothing other than that it now would have to issue permits to those desiring to keep a working handgun in their homes. Big deal, considering all the genuinely illegal guns that currently are circulating among genuinely criminal elements in the district (don't the police have enough to do already? -- how much does D.C. want to spend on this?).
Another possibility is that the case could go to the Supreme Court on a cross appeal -- D.C. appeals the permit question re Heller, and Heller & Co. appeal the denial of standing re D.C. (in this scenario, the cases actually go up separately but are unified for hearing, in essence recreating the case before D.C.App.).
There are other possibilities as well, and each side is going to want to look at what of these options will make their case look the best. Right now, Heller is in the catbird's seat -- just as the justices sympathized with Marshall's initial plea for access by Negroes to a prestigious law school, so they will sympathize with the need on the part of one who protects them to protect himself -- but there may be ways Heller could be pushed out of there.
In deciding such questions of strategy, this is where real lawyers make their money (not in looking up laws -- I can do that). Any other gun case could get attached to anything either party takes to the Supreme Court, and trust me: That court loves to have several cases before it at once to draw some distinctions. Is the Missouri case going up? How about anything else? The last thing Heller needs is to be joined with some jerk claiming that his Second Amendment rights were violated because he was disarmed by a cop while robbing a bank -- Heller needs to go in looking like the good guy. And lawyers will think about such matters, especially if those "of counsel" are among the prestigious firms handling constitutional litigation.
In short, gentlemen, we still have a very long way to go, and there are all sorts of procedural complications which could intrude at this point.
