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Apellee's brief in Parker v. District of Columbia

Discussion in 'Legal' started by Ieyasu, Aug 5, 2006.

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  1. ctdonath

    ctdonath Member

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    Because those "ifs" have a notably non-trivial chance of happening ... and should they do happen, the consequences are serious (injury/death, long jail time).

    Because having to trust criminals for fear of government is one massively messed up state of affairs.

    Because upstanding citizens shouldn't have to face injury, death, prosecution & jail just to get a legitimate grievance before a court.

    The court docket does not exist for the judge's convenience.
     
  2. Robert Crim

    Robert Crim Member

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    If, if, if...

    You make my point, CT: If the Government's case should fall apart on a Fourth-Amendment claim, the Second-Amendment claim never even arises; and, there are a lot more Fourth-Amendment precedents to choose from than Second-Amendment ones.

    The docket doesn't exist for the convenience of the judge; but, it also does not exist to provide a forum for judicial advice. Courts don't give advice; they render judgments. The opinion is no more than that which supports the judgment. So, there has to be an actual case or controversy, not a hypothetical one, with proper parties before the bar -- parties actually among the injured who will win or lose in some way. This is the gist of the standing doctrine.

    In any event, denial of the permit to Heller is a legal injury, and he is injured in fact, so at minimum one of the plaintiffs is properly there, and subject-matter jurisdiction is present. Since he does not have any charges pending against him, Younger does not apply (there is no comity issue). Declaratory relief may be had, and perhaps an injunction against withholding of the permit (not against a criminal prosecution) -- see my previous post. I simply would have rested easier had Heller gone in and said, "In addition to my need for self-defense, I also need a firearm for use in the militia, so my pistol preference is a .45 Army Colt or standard-issue Beretta." That would have added the additional "militia" element as a fall-back position. As I mentioned, "natural" rights are subject to regulation by statute; "positive" rights, though bounded by their own definition, are not.
     
  3. Robert Crim

    Robert Crim Member

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    Results?

    Anything yet, anyone?
     
  4. Gifted

    Gifted Member

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    Ya know, the main reason they put this in D.C. was the jurisdiction. They didn't have much to wade through to get to the supreme court. However, you can apeal from the state supreme court, and that goes straight to the supremes as well. Could you find a place where you could manage to take a challenge of an appropriate law up to the state supreme court, and from thence to the federal court?

    I second the request for an update.
     
  5. ctdonath

    ctdonath Member

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    I smell dirty tricks in the making.

    DC mayor Marion Barry recently proposed a suspension of the "no registrations" law, claiming that crime is bad enough that maybe homeowners should be able to get handgun ownership permits for home defense.

    Perversely (as I understand it):
    - the suspension is just for 3 months
    - permits are for specific guns
    - permits are for mere ownership
    - the guns must be permanently locked and stored in one specific room

    My take:
    Barry & cohorts recognize that they will probably lose the Parker case.
    The clever solution on their part then is to make the offending laws go away.
    No offending laws, case Parker dismissed.
    Parker dismissed, offending laws re-instated - with a vengeance.
     
  6. Robert Crim

    Robert Crim Member

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    It is true that a case can be mooted if there is a genuine elimination of an offending law; however, in the scenario you posit, there are several flaws:

    The law has not changed, only its enforcement;

    Even if the law is changed, it is a temporary change, and any federal court would see through this and ignore it.

    As for the state route, of course it is possible to bring a state case, but the Second Amendment does not apply to states, so there would have to be alternate grounds, e.g., some of those I previously have mentioned.

    Constitutional law is clear re D.C.: As a federal enclave, it is fully under all applicable restrictions of the Bill of Rights. But, that only raises anew just what the right is, and where it is located. On that question, we'll just have to await a decision, then proceed from there.

    Since newspaper coverage of court decisions is notoriously poor, I do hope someone here who can will obtain and publish the actual opinion and disposition.
     
  7. Gifted

    Gifted Member

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    People have probably tried it, too. You'd get incorporation, as well as a definite limit to it's application. With more conservative judges getting placed right now, we stand better chances with the cases. However we get it there, it'll get there. The only thing better would be to amend the ICC so that the courts can't hide behind it.
     
  8. Robert Crim

    Robert Crim Member

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    Just heard something interesting on the History Channel:

    Under Anglo-Saxon law, bearing a weapon was the mark of a free man -- slaves were prohibited from bearing arms.
     
  9. ProguninTN

    ProguninTN Member

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  10. carebear

    carebear Member

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    Drudge has the actual decision as well. Beautiful piece of legal reasoning.
     
  11. Robert Crim

    Robert Crim Member

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    The real work?

    I do hope at least a few read the dissent.

    I suspect that the real work will start now.
     
  12. carebear

    carebear Member

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    I read it, it was bupkus.

    It didn't even make as solid an argument as the weak collectivist argument presented by DC originally. It had glaring violations of logic that would be untenable taken to extremes.

    The rights guaranteed by the Federal Constitution apply in the several states but not in the only non-military Federal district?

    She uses the prefatory clause to the amendment, already established convincingly to be merely a statement of partial intent in the opinion, to say the 2nd only applies to state militias and since DC has a non-state militia the second doesn't apply.

    All this without first successfully countering the opinion's ruling and reasoning that the 2nd is in fact an individual right by orginal intent (and is not limited to militia service at all) exactly like all the others in the BOR.

    Her position thus states, when taken to its logical extreme (though she avoids going that far for obvious reasons), that the BOR as a whole does not apply in DC.

    Which is palpably ridiculous.
     
  13. Robert Crim

    Robert Crim Member

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    Dissent

    Misses the point.

    The dissent does not have to be a great opinion; it need only preserve the issue for appeal. For that, it is more than adequate.

    Interesting that only Heller won, and that the others are out for reasons of standing/comity (I warned y'all). They, of course, can appeal on the standing question (the majority opinion invites that).

    The majority's treatment of Miller was interesting. Is anyone (aside from me) aware that use of shotguns in the militia of the time specifically was debated at the Constitutional Convention of 1787? It's in the Farrand Records.

    Maybe it's time to put a sword through that opinion once and for all.
     
  14. carebear

    carebear Member

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    It preserves it solely by slightly restating it, using the same reasoning pretty clearly dismissed in the majority opinion. It didn't make it any more defensible or rational, dismissing it out of hand would just take retyping the majority reasoning.

    As far as only Parker winning, it was the effect of the ban removal they were after, not the satisfaction of one Plaintiff. The ruling prevents DC from simply saying Parker is good to go and avoiding the larger issues.

    I thought it was the length of the shotgun's barrel at issue in Miller, not the shotgun itself.
     
  15. DualBerettas

    DualBerettas Member

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  16. RealGun

    RealGun Member

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    The dissenting opinion is so pathetic, because the 2A (and this ruling) applies ONLY to DC and to fed jurisdiction of interstate commerce, at least to the extent that RKBA and gun control measures have ever been tested in a Court. I will continue to hold out that all protections guaranteed by the federal government, including the 2A (as an individual right), apply to all States, but that will be another case at another time. Such a case would now have a better footing with this precedent. State's rights zealots will resist it however, some of them gun owners.
     
  17. Bartholomew Roberts

    Bartholomew Roberts Moderator Emeritus

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    They are only out because the D.C. Circuit uses the heightened standard for standing that they set out in Navgear. In almost any other circuit, I think the result would have been different because they wouldn't have to prove the element of a specific personal threat of prosecution. They would only have to show a credible fear of prosecution.
     
  18. Robert Crim

    Robert Crim Member

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    Yes, Bart: Division of the circuits is the primary reason for granting certiorari.
    Anyone can appeal anything; the question is: Who gets in?

    The issue in Miller was the length of the barrel, but only because the statute made it so (it still is legal -- in the sense of statutorily permitted -- to own shotguns, even in Great Britain). And what this opinion [Heller] makes clear is that the RKBA question was not forclosed by Miller -- the respondents failed to show up, and the Supreme Court simply declined to take judicial notice that a shotgun in violation of the statute was "militia equipment" within the orbit of protection.

    Upon a constitutional question, the burden of proof lies wholly on the party challenging the statute, rule, or regulation. Failure to meet the burden cannot foreclose the question (that would be a violation of due process).

    Is everyone beginning to see why I want to focus more on possessing specific kinds of weapons, along with the idea of multiple use?

    How many of you noticed the comment in the majority opinion about cannons?

    How many read the dissent with all of the above in mind?

    Almost as important, when considering the underlying philosophy of the entire Constitution: Given that interchangeable parts weren't even invented until about a decade later, could interstate commerce even have been invoked in 1789-91 to regulate possession of weapons at the federal level? Consider the older concepts of "interstate commerce" expressed in e.g. E.C. Knight [the sugar-trust case].

    If the answer to the last question be in the negative, then what was the actual fear motivating adoption of the amendment? The essence of the Federalist argument against any Bill of Rights was that one dares not restrict a power which the federal government doesn't have at all in the first place, for fear that the prohibition would (and could be used to) imply the power. So, what is being restricted? And why are there not any other restrictions? Did this affect the text of the amendment? What actually was in the minds of the people who adopted it -- why did they do it?

    When you have a bad precedent in front of you, you have to find a way to get your foot in the door. Study how Thurgood Marshall took out Plessy v. Ferguson.
     
  19. Bartholomew Roberts

    Bartholomew Roberts Moderator Emeritus

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    Robert, your answer is a bit mystifying to me as I did not address any of the subjects you brought up. The closest your answer comes to addressing any point I made was that you could consider the heightened standing requirements in D.C. a circuit split; but I don't see how that would be relevant as grounds for granting cert in Parker since Heller did have standing and SCOTUS has already denied cert on similar cases.

    My only point being that the standing shown by the Seegars plaintiffs would be enough in most of the other Circuits. The rest of your comments, I have no interest in addressing.
     
  20. Robert Crim

    Robert Crim Member

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    Bart, you missed Carebear's post.

    Re the standing question, I am assuming the cases might become bifurcated -- Heller goes up on the merits, while the others go up on standing not involving 2d Amendment but with invitations. I'm certain you know that denial of cert. in one case sets no precedent for any other, and the Supreme Court might use the opportunity presented to flesh out the entire D.C. litigation. After all, the dissent states that everyone should have been foreclosed, Heller included.
     
  21. Titan6

    Titan6 member

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    Bifurcated: Had to look that one up.

    So what you are saying is even if one or more of the parties lose standing their case are still together so they all could still go to SCOTUS "or" the opposite is true?:confused:
     
  22. xd9fan

    xd9fan Member

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    Page 46 of the ruling
    Finally.
    I wonder how many of the younger population realize these Rights existed BEFORE Govt.
     
  23. ctdonath

    ctdonath Member

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    Good point. That Heller was considered and prevailed with standing raises good question as to why the others didn't: their "lack of standing" was limited to not seeking a piece of paper they would have been refused anyway, just like Heller, and Heller's verdict is perfectly applicable to the others without modification per supposed standing differences.

    The other plaintiffs, at this point, probably can't appeal because the laws they wanted repealed were repealed via Heller. There's nothing for them to appeal, as without the offending laws their standing is moot.
     
  24. Bartholomew Roberts

    Bartholomew Roberts Moderator Emeritus

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    Robert, thanks for clarifying. I understand your point perfectly now.
     
  25. Robert Crim

    Robert Crim Member

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    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.
     
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