DC appeals Parker case to SCOTUS

[princewally]

You have to be able to keep and bear them yourself, and by implication field them and use them yourself. And the amendment, I think we all agree, addresses an INDIVIDUAL right, not the right of a MILITIA.

It doesn't say I have to be able to bear them myself. Don't add limiting implications.

The 2A was put in place primarily as a way to limit government tyranny. I'd say the implication is that citizens should be able to own anything the government can own.

 

[fletcher]

It doesn't say I have to be able to bear them myself. Don't add limiting implications.

How else would the militia have arms if the individuals did not keep and bear them?

 

[rbernie]

The individual militias being referenced owned crew-served and horse-drawn weapons such as cannon, did they not?

 

[Al Norris]

I would think that none of this is relevant to the question(s) that will be asked of SCOTUS on this case. This line of questions concern the scope of the right. That is not what is at stake, at this time.

The Court will probably be asked some variation of the following 2 questions:

1. Is the right an individual right or a collective right?

2. Is the District of Columbia bound by the Second Amendment?

And very possibly:

3. Does the right reach to individual possesion of handguns for self defense purposes?

Question #3 would be the only question pertaining to the scope of the right. It will only be answered if question #1 is answered as an individual right. And then only if question #2 is found to bind the District.

Some of you attorneys may have better insight than I, so I could be entirely wrong... But this is what I see the certiorari asking.

 

[lacoochee]

I am not sure it's that narrow and not being a legal scholar it's unclear to me if they do find in favor of the defendant, do they also find in favor of the opinion written by the Appeals court panel? That opinion was certainly not narrow and cited multiple pro-individual rights arguments. Is that how the case is decided? If they SCOTUS decided for the defendant do they incorporate the first decision because they are in fact reviewing that decision for correctness?

 

[legaleagle_45]

Al Norris wrote:

The Court will probably be asked some variation of the following 2 questions:

They will probably be asked about standing also. The District raised that as an issue on appeal, so it is available to them in front of SCOTUS. The majority dispensed with that fairly easily and the dissent did not even bother to mention it... but, who knows?

Iacoochee wrote:

if they do find in favor of the defendant, do they also find in favor of the opinion written by the Appeals court panel?

SCOTUS can do whatever they want....

Iacoochee wrote:

If they SCOTUS decided for the defendant do they incorporate the first decision because they are in fact reviewing that decision for correctness?

Highly unlikely that they would "affirm per curiam", which is essentially what your are asking. Justices on SCOTUS are egotistical SOB's with illusions of superiority and take every opportunity to demonstrate that they can do a better job than the appellate court. They will write their own opinion which will not be a restatement of the opinion of the appellate court.... and they have the ability to do this:

To the extent that anything in US v Miller is inconsistant with this opinion, it is hereby overruled.

The appeals court could not do that...

 

[Al Norris]

They will probably be asked about standing also.

Which raises the possibility of lowering the standing requirements of the D.C. Circuit. Something I submit, that not even the City would want to do. Then again, I've seen stranger things.

 

[Bartholomew Roberts]

Actually, standing would be a good angle for D.C. since it was the conservative side of the Court in Lujan v. Defenders of Wildlife that changed the wording from "actual or threatened" to "actual or imminent." That could put the conservative side in a position to choose between the enhanced standing requirement or the individual rights argument. Of course the big problem for D.C. is that Heller's injury is "actual" since it is the denial of a permit.

In any case, I don't see it as a major issue. The justices are certainly capable enough to distinguish the standing argument in Heller without disturbing any precedent Lujan (as interpreted by Navegear) has for stricter standing if that is what they want to do.

 

[Al Norris]

Thanks Bartholomew. I wasn't aware of the particulers.

Now we await next week...

 

[alan]

Bartholomew Roberts wrote in part,making mention of injury to "Heller":

Actually, standing would be a good angle for D.C. since it was the conservative side of the Court in Lujan v. Defenders of Wildlife that changed the wording from "actual or threatened" to "actual or imminent." That could put the conservative side in a position to choose between the enhanced standing requirement or the individual rights argument. Of course the big problem for D.C. is that Heller's injury is "actual" since it is the denial of a permit.

In any case, I don't see it as a major issue. The justices are certainly capable enough to distinguish the standing argument in Heller without disturbing any precedent Lujan (as interpreted by Navegear) has for stricter standing if that is what they want to do.

--------------------

I had thought, from what I'd read, that the major complainant was Parker, ergo Parker v. D, though there were, I believe multiple complainants, Heller, a security officetr of some kind, being one. It was Mr. Heller who had, in particular, been denied a gun permit in DC, correct me should I be wrong.

 

[fletcher]

Isn't the deadline a week from today?

 

[ctdonath]

That could put the conservative side in a position to choose between the enhanced standing requirement or the individual rights argument.

The problem with "imminent" is that the time & hassle of getting a permit is hardly conducive to averting "imminent".

Objecting to a lack of "imminent" harm fails when there is no timely means to avoid it.

 

[ctdonath]

Yes, the deadline is September 8.

Realistically, I'd presume they are done with the text by now and are getting it printed, bound and shipped. I'd expect an announcement early next week, with content shortly thereafter.

 

[legaleagle_45]

Bartholomew Roberts wrote:

In any case, I don't see it as a major issue.

Either do I. Plaintiffs probably will not even file a cross appeal on the issue. Heller, IMHO, clearly has standing and that is all they need.

 

[Kim]

What is needed is a law passes by Congress that specifically gives standing for citizens to sue for infringement of the 2nd amendment. The same way Congress has given that right to environmental groups etc. The 2nd amendment has not been enforced or protected by the USSC or Congress EVER.

 

[Sam Adams]

IMHO the standing issue will be the first addressed - because it is the easiest way for the Court to engage in its most favorite activity, denying Cert.

That said, I don't think that they'll find that Heller had no standing - which is, itself, almost a ruling. Think about it, how could you have standing to sue if the 2nd didn't protect an individual right?

Further, the Miller Court could have said the same thing in 1939 - "Overruled, as Miller doesn't have the standing to challenge a law that doesn't protect his particular rights." Nope, the USSC back then decided the case on the merits (incorrectly, if you ask me, but nonetheless there was an analysis of the 2nd Amendment and its historical background). Why bother with all of that if the 2nd protected a "collective right?" The Court isn't in the habit of wasting its own time.

 

[Cosmoline]

IMHO the standing issue will be the first addressed - because it is the easiest way for the Court to engage in its very most favorite activity, denying Cert.

Remember they don't have to say why they've denied cert. They just do it. Very rarely someone will attach a little dissenting memo explaining why they thought cert should have been taken. I'd be extremely surprised if they take the case and then get nit-picky about standing. If they take it, it WILL be about the Second.

 

[ConstitutionCowboy]

See if you don't think this is relative:

It Is Simple And Basic.
The government is forbidden to infringe upon the Right to Keep and Bear Arms. The right itself is without limit. All power granted to the government is derived from the inalienable rights of the people. If the right of people to keep and bear arms contained any limits, the people could not grant power to the government for it to keep and bear up unlimited arms to defend the nation. In any scenario, the government cannot limit the people's right to arms to any lesser degree than the power of that government to possess arms as is granted to it by, and from, the people. In granting power to our government to keep and bear arms to defend our nation, we do not surrender any of the right from which that power is derived. To surrender, or even simply deny any portion of the right exists, is to also deny the same derived power to the government.

Without that central or a state government, we would have to defend our land ourselves and would have every right to access, create, bear, and deliver any weapon necessary to that end. We simply grant some of that power to the government out of convenience. We did not surrender any of that power to the government, either. Purposefully, Article I, Section 8, begins, "Congress shall have power;" and not, "Congress shall have the power;". We still have as much right to any and all weapons as we have granted power to the government to have.

It follows, then, that should the government(by the actions of those chosen to run the government) wish to limit in any way the fashion in which we so choose to keep and bear our arms, it can not do so without infringing upon the right. In that the right is inalienable, not even we the people can divest ourselves of it, therefore, we can not grant power to the government to limit our keeping and bearing of arms. We can share our right to keep and bear arms with the government as a power granted to it, but cannot surrender any of it to the government. The bottom line is that the government is, and is of, us. It cannot do to us anything we cannot do to ourselves.

Go read the Preamble to the Constitution. WE ordained and WE established the Constitution. WE had(and still do have) the RIGHT to do that, would you not agree? We have the right to govern ourselves. We exercised that right to establish(construct) the Constitution and ordain(to appoint) it as the foundation for our government. All power granted or delegated to the government is derived from our right to govern ourselves. The power of the government is inferior to any right or rights we the people have. It is the same no matter what the right might be. Just as the government has no power, nor could it ever have the power, to control my right to think, it does not, nor could it ever have, the power to control how I choose to keep and bear my arms. It is that simple.

Woody

"Revolution is the Right of the People to choose Freedom over Servitude. Those vested with power shall neither deprive the People the means, nor compel such recourse." B.E.Wood

 

[legaleagle_45]

IMHO the standing issue will be the first addressed - because it is the easiest way for the Court to engage in its most favorite activity, denying Cert.

I would agree with you if the DC circuit had made a finding of no standing. The they could just deny cert. However, we have here the DC Circuit finding standing and ruling a law unconstitutional. The 2nd amend analysis is in opposistion to to other circuits and so they are almost required to grant cert... although their opinion could be something like:

Respondent Heller does not have standing. See, We want to Avoid the 2nd vs No Way We will hear It, 528 US 1047, 1052 (2001).

 

[CleverNickname]

There is one thing that I've wondered about that I haven't heard discussed. Only one plaintiff, Dick Heller, was found to have standing, because he was the only one of the plaintiffs that actually applied for a DC handgun permit (and was subsequently denied.) What happens to the case if he gets "mugged" and oops he dies? Would it be dismissed as moot because there's no longer a plaintiff, or not? I mean it's not like he'll be carrying a gun around to defend against muggers.

I realize the DC Circuit court decision would stand, but what would happen to the appeal? I know not all of the people on the anti-gun side agree with the decision to appeal. If the case would become moot, if I were Heller I'd spend some time in hiding.

 

[PTK]

CleverNickname,

That crossed my mind as well. Sort of how Miller disappeared, isn't it?

 

[AntiqueCollector]

It'll be the lawyers doing most or all of the arguing anyways if it's heard by the SCOTUS, as long as the lawyers go ahead we might be okay in that event...but I'm not quite sure, would the SCOTUS still let the case be argued even if the actual plaintiff has died? I would hope so, given how important this issue is.

 

[Bubbles]

D.C. to Appeal Gun Ban Decision to High Court

Associated Press
Tuesday, September 4, 2007; 12:00 AM

D.C. officials will announce details about their plans to appeal the overturning of the city's longtime handgun ban at a news conference this morning.

A federal appeals court overturned the 30-year-old ban on private handgun ownership in March, saying the broad law was unconstitutional.

Fenty has said that he plans to appeal to the Supreme Court.

Fenty, Attorney General Linda Singer, and Police Chief Cathy Lanier will announce their plans at a 10:15 a.m. news conference at police headquarters.

If the country's highest court chooses to take the case, that could end the court's long silence on the scope of individual gun rights under the Second Amendment, a prospect welcomed by both sides of the gun debate.

 

[Kharn]

SCOTUSblog.com article
DC has asked the court a single question:

Whether the Second Amendment forbids the District of Columbia from banning private possession of handguns while allowing possession of rifles and shotguns.

The juicy part:

In challenging the D.C. Circuit ruling nullifying that law, the petition contends that it "drastically departs from the mainstream of American jurisprudence," creating a conflict with decisions of eight other federal Circuit Courts, as well as the highest local court in the city -- the D.C. Court of Appeals. "Only this Court can resolve these conflicts about the central meaning of the Second Amendment," it says.

It contends the Circuit Court majority made three errors: first, "its characterization of the nature of the Second Amendment right (which is linked to state militias)"; second, "its understanding of the scope of the right (which protects against federal interference with state militias and state gun laws)"; and, third, "its conclusion that the right, however it might be construed, is infringed by the District's law (which is targeted at the special dangers created by handguns and allows the possession of rifles and shotguns)." It argues that "each error independently requires reversal."

The petition makes no attempt to challenge the Circuit Court finding that one local resident, Dick Anthony Heller, had "standing" to bring the challenge to the city's handgun ban. Heller contended that he lives in a "high-crime" neighborhood and that the ban bars him from "possessing a functional handgun...for self-defense within his home." He had applied to register a handgun, but that was denied.

DC's actual petition
Interesting lunchtime reading.

Kharn

 

[fletcher]

Well, it happened as expected. Now for the wait...

Third, handguns cause accidents

(From the appeal) I was unaware of this.

Handguns pose particular dangers to police officers performing
their duties,

I was also unaware of this. I always thought criminals posed dangers to officers.

Fifth, handguns enable suicide.

Debatable. A look at Japan will show that there's certainly no definitive correlation between suicide and handgun ownership.

and most guns are used close to where they are purchased,

That's not what NYC tells me.