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DC NPR show: Fenty leans to appeal Parker

Discussion in 'Legal' started by K-Romulus, May 25, 2007.

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  1. K-Romulus

    K-Romulus Member

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    Another piece of intel on Parker:

    Just now I heard DC's mayor, interviewed on the local NPR show for the last hour, say the following re: the Parker decision:

    1) he represents DC, and "the community" wants him to appeal
    2) it would be bad precedent for the circuit court decision "that makes no sense" to stand without challenge in the US
    3) there may be a risk to NYC and Chicago, Boston, etc. laws if a pro-2A ruling happens at USSC, but "he has to do what's best for DC"
    4) BUT he said he was still weighing the options, and should be announcing a final decision on what DC is doing in the next few weeks.

    The discussion was in the last ten minutes of the KoJo Nnamdi show, linked here:
    http://www.wamu.org/programs/kn/07/05/25.php#15849

    However, the archive won't be up until around 2pm EST.
     
  2. Sam Adams

    Sam Adams Member

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    Maybe he means it (which I think is good, as I think we'll win this one), or else he's fishing for campaign contributions/bribes from the antis.
     
  3. ghschirtz

    ghschirtz Member

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    It will surprise me if he goes ahead with appeal. Makes for a stony road for his fellow travelers. I expect Sam is right, and Bloomberg has the bucks to buy him off and cover his tracks.

    Any idea that he is concerned for the "community" means he cannot learn from two decades of shall issue. This is IMO a matter of ideology or posturing, not concern for people in DC.
     
  4. txgho1911

    txgho1911 Member

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    When will the appeal process window close and the "city" opens to legal ownership and self-defense becomes more than fiction for DC?
     
  5. LawBot5000

    LawBot5000 Member

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    DC Circuit granted a stay of the mandate so they can appeal. Silberman hinted that there would be sanctions if they filed the motion and didnt appeal. Theyre definitely going right up to the line in terms of timing.

    Any SCOTUS decision is going to have oral arguments during primaries with a decision right before the 2008 election but DC can't wait to see who the candidates are until after they decide whether or not to appeal. A real exciting gamble. Even if they win before SCOTUS, they could end up getting ruined by the backlash- another gun control induced republican revolt would pretty much assure more conservative justices to replace whoever dies next. Such a court could end up revisting a lot more than a bad gun control decision.

    I really must applaud Cato for ignoring the NRA and pulling off this bold coup of strategic lawyering. Thurgood Marshal would be proud.
     
  6. Ratzinger_p38

    Ratzinger_p38 Member

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    I still dont think they will appeal ATM. Chi-town I am sure has 'discussed' this with the DC mayor.
     
  7. Skibane

    Skibane Member

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    I think it's simpler than that: For a mayor, going up against the Supremes makes one heck of an addition to your resume - win or lose.

    Basically, Fenty wants to secure a legacy.
     
  8. LAR-15

    LAR-15 Member

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    If SCOTUS strikes down DC's handgun ban will it not also negate the TOTAL HANDGUN BANS in Boston, New York City and Los Angeles?
     
  9. Ratzinger_p38

    Ratzinger_p38 Member

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    Since when did these cities have 'total bans' of handguns? Other than DC the only others ones I know of are Chicago and a few of its IL 'burbs.
     
  10. LawBot5000

    LawBot5000 Member

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    You should note that those circuits have far less strict standing requirements than the DC Circuit. Even so, applying for and being denied a permit would give grounds for an as applied challenge under even DC rules.

    But first the SCOTUS would have to affirm the DC Circuit's opinion and then hold that it applies to the states. Alternatively, they can just affirm it and remain silent on the 14th amendment question, leaving that up to the circuits. I'm guessing this is the route they take because it will not really change much in the near term.

    Obviously there would be another round of litigation in the lower federal courts. The circuits that have based their anti-gun decisions on a misreading of Miller will have to make a case against incorporation or start overturning laws. There is almost certain to be a split from this due to the makeup of certain circuits. The supreme court would eventually resolve this split after seeing how things play out in the wake of Parker.

    Realistically, there is a very solid case to be made for incorporation. The keeping and bearing of arms by freed slaves figured prominently in discussions related to drafting and ratification of the 14th amendment. It was clearly one of the prime reasons for its creation. Except maybe the 2nd, 3rd and 9th circuits, I think most will go for incorporation.
     
  11. ilbob

    ilbob Member

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    NYC has some very difficult licensing requirements for merely possessing handguns, but it is not a total ban as in DC. As I understand it, Boston is pretty free with class B permits that allow one to own revolvers and semi-autos with 10 round or less mags. I am unaware of any restrictions on owning handguns in LA other than the CA state restrictions, since CA has state preemption.

    I think Chicago's ban would go in about ten seconds if challenged after a favorable SC ruling on Parker.

    NYC is less obvious IMO, but could lead to a serious easing on getting premises permits.

    IIRC, Parker is mostly about being able to actually keep (own) firearms. The bear part of "keep and bear" would seem to be the next thing to go after.

    But we are talking about things that will take decades to sort out.
     
  12. LawBot5000

    LawBot5000 Member

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    Did you miss the 2 paragraphs I typed regarding Due Process incorporation? That is kind of a huge missing link between "DC is upheld" and "Chicago is struck down."
     
  13. alan

    alan Member

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    A man has got to do what a man has got to do.
     
  14. yokel

    yokel Member

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    Indeed, the youthful and politically ambitious mayor will opt to take Parker to the limit.
     
  15. Len S

    Len S Member

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    I have a real dumb question for those who know how SCOTUS works. Is it possible for litigants to get a read on the judges will decide before deciding to appeal. Do clerks talk or justices let things leak out? If so could the mayor be waiting till those questions are answered? I know that this isn't legal but we are talking about soddom on the Patomic.

    Len
     
  16. DKSuddeth

    DKSuddeth Member

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    has anyone considered that the SCOTUS will deny cert? If the court has shown this much hesitation to deal with 2nd amendment cases, I would think this an ideal case to deny cert to, considering that the only change this will have an effect on is DC.
     
  17. Langenator

    Langenator Member

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    If SCOTUS takes the case, whichever way they decide, they almost certainly won't touch the 14th Amendment issue, for the simple reason that they don't have to. DC is federal only, and the 14th doesn't come into play.

    Since the end of the 'Warren Court' era, the Court has tended to avoid making rulings that were any broader than they absolutely have to.

    I'd say if SCOTUS upholds the DC Circuit, there are two logical axes of advance. One is the aforementioned 'keep & BEAR'- that you don't just have the right to have a loaded gun at home, but you have the right to carry it around with you.

    Second is the 14th Amendment incorporation issue, and I see Chicago being a logical target, with NYC another possibility. You might want to do both to see if you can set up conflicting circuit court rulings, increasing the odds that SCOTUS will take the case.
     
  18. Brett Bellmore

    Brett Bellmore Member

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    Well, yes, but up to now they've been able to uphold gun control laws by denying cert.. This is the first case I'm aware of where if the Court denied certiori to a 2nd amendment case, the result would be pro-gun. I think that makes a big difference: If they want the gun law upheld, they've got to get their own hands dirty this time. That gives the anti-gunners on the Court reason to vote for certiori for the first time since Miller.

    I'm betting that if D.C. appeals, the Supreme court will take the case. But if they rule for us, it will be a very narrow ruling indeed. That's cool: The leading edge of a wedge is always narrow, the important thing is to get it in. We'll be the next twenty years banging on that wedge before we get our full 2nd amendment rights respected again, I'm betting.
     
  19. FieroCDSP

    FieroCDSP Member

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    I think DC residents should make sure his crime-rate is his legacy. vote him out in disgrace.
     
  20. BB62

    BB62 Member

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    I'm not sure if this has been posted, but...

    http://www.scotusblog.com/movabletype/archives/2007/05/another_step_on.html

    "UPDATE: The D.C. government's motion for a stay indicates that an appeal to the Supreme Court would include these questions: "(1) whether the [Circuit Court] panel decision conflicts with the Supreme Court's decision in United States v. Miller (1939)...; (2) whether the Second Amendment protects firearms possession or use that is not associated with service in a State militia; (3) whether the Amendment applies differently to the District because of its constitutional status,...and (4) whether the challenged laws represent reasonable regulation of whatever right the Amendment protects." The motion sought a stay of the issuance of the Circuit Court mandate for the 90-day period open for Supreme Court review -- a period that began to run on May 8."...


    MORE TEXT FOLLOWS
     
  21. JohnBT

    JohnBT Member

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    "I think DC residents should make sure his crime-rate is his legacy."

    And failed public schools. And flat out falling down too.

    And failed foster care with children missing and dead.

    And failed...

    Actually, he needs something to talk about on the front page of the Post that isn't a total disaster and guns could be about all he has unless he wants to make headlines by partying with Marion Barry.

    John
     
  22. Strings

    Strings Member

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    Ok BB... I'm kinda sick at the moment, so my legalese ain't what it could be. Does that mean they plan on filing, or not?
     
  23. jlbraun

    jlbraun Member

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    Indeed. However, SCOTUS upholding Parker will open the door to challenging 922(o) and reopening the machinegun registry. The lawsuit will be almost as simple as taking the Parker suit and replacing every instance of "handgun" with "machinegun".

    Next to fall will be 922(r).

    I do think that the NFA is here to stay. However, it is likely that in the event of real state and local militias being resurrected, there will be an exception clause added to the NFA saying that you're allowed a full infantry loadout (fullauto M4, LAW, grenades, M249, etc.) that isn't subject to the NFA - however, if you want to own a full auto 1919 or a BAR, that's not an appropriate "militia" arm so it can be more tightly regulated.
     
  24. Mannix

    Mannix Member

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    One can hope, but let us not get ahead of ourselves here.
     
  25. Langenator

    Langenator Member

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    There was a federal district court case from 1991-US v Rock Island Armory- that found that since the FOPA closed the NFA registry to new full autos, that the NFA could no longer be constitutionally justified as a revenue raising measure (not that revenue was ever the intent, but it's how the .gov rationalized it).

    I haven't read the decision, so I'm not really sure if it said the NFA, the new full-auto ban, or both were thus unconstitutional.

    The .gov never appealed the decision, apparently out of fear they'd lose.
     
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