Parker v. DC: Mayor Fenty to file appeal

[Rev. DeadCorpse]

who gave the interpretation of the Constitution you quoted prior to its ratification

You just lost all credibility there. The Constitution was ratified in 1789 with the BoR being added in 1791. William Rawles publication was copyrighted under that brand new office in 1825.

Personally, I think the anti-federalists have been proven mostly right by history.

Being an "anti-Federalist"/"anti-big government" type myself, I'd agree with that. However, other anti-Federalists from the framing of the Constitution were the ones who demanded a Declaration/Bill of Rights that would hold certain Rights off limits to ANY governing structure. Federal, State, or Local.

Who are the militia? are they not ourselves. Is it feared, then, that we shall turn our arms each man against his own bosom. Congress have no power to disarm the militia. Their swords, and every other terrible implement of the soldier, are the birth-right of an American...The unlimited power of the sword is not in the hands of either the federal or state governments but, where I trust in God it will ever remain, in the hands of the people. Tenche Coxe 1788

A militia, when properly formed, are in fact the people themselves, (p.21)and render regular troops in a great measure unnecessary .... [T]he constitution ought to secure a genuine and guard against a select militia, by providing that the militia shall always be kept well organized, armed, and disciplined, and include ... all men capable of bearing arms; and that all regulations tending to render this general militia useless and defenceless, by establishing select corps of militia, or distinct bodies of military men, not having permanent interests and attachments in the community to be avoided. Richard Henry Lee, Letters from a Federal Farmer

Do you really mean to try and play it off that such men would approve of a Second Amendment that ONLY covered the Federal Government? That State government should be left with the power to disrupt such a vital Right of Free Men?

Even the Parker decision reveals the paucity of this argument. How can you exercise a "Federally" protected Right if the States are free to infringe on it or the Feds to use the Commerce Clause to make an end run around it? It defies logic.

 

[Bartholomew Roberts]

Do you really mean to try and play it off that such men would approve of a Second Amendment that ONLY covered the Federal Government? That State government should be left with the power to disrupt such a vital Right of Free Men?

Are you reading anything I write? I haven't once mentioned the Second Amendment in our conversation. The first point I made was that the interpretation of the Bill of Rights and its application to the states that you gave was in conflict with the law that controlled those outcomes until several years after the adoption of the 14th Amendment.

The second point I made was that quoting from only anti-Federalists and claiming that this is the unequivocal, one-and-only interpretation of the Constitution and that anyone who disagrees is a dirty traitor is disingenuous since it ignores the dirty traitors who wrote the Constitution, disagreed with those opinions, and ultimately won that debate. Again, nothing about the Second Amendment.

I haven't mentioned or discussed the Second Amendment once, so I am not sure where you would get the idea that I am trying to "play off that such men would approve of a Second Amendment that ONLY covered the Federal government." In fact, I am pretty hard pressed to see how you arrived at that idea at all based on our conversation.

After reading that I'm amazed they dont bring up standing. Do they WANT to lose?

Denial of the permit to register a handgun should be a slam dunk case for standing even in the D.C. circuit. The main area where the D.C. circuit differs from other circuits is their take on the Lujan v. Defenders of Wildlife case. In an earlier Rehnquist opinion, the requirements for standing were stated as “actual or threatened” (in which case many of the Parker plaintiffs would have standing). In Lujan, the Court used the language “actual or imminent” instead. The D.C. Circuit has taken the position that this changes the requirements for standing to where you have to show actual or imminent injury. The remaining circuits have mostly just continued to follow the previous standard.

Heller can argue that the denial of a permit is an actual injury. The others have to rely on the "threatened" and "imminent" language. So I don't think D.C. will bother with that issue.

 

[Rev. DeadCorpse]

The first point I made was that the interpretation of the Bill of Rights and its application to the states that you gave was in conflict with the law that controlled those outcomes until several years after the adoption of the 14th Amendment.

Which, as my quotes from Rawles, Gallatin, and Jefferson prove, is completely false.

http://www.gunstonhall.org/documents/objections.html

George Mason even had a bunch to say on the topic. And yeah, I've got even more if required.

The second point I made was that quoting from only anti-Federalists and claiming that this is the unequivocal, one-and-only interpretation of the Constitution and that anyone who disagrees is a dirty traitor is disingenuous since it ignores the dirty traitors who wrote the Constitution, disagreed with those opinions, and ultimately won that debate. Again, nothing about the Second Amendment.

I've got quotes from both Federalists and Anti-Federalist. You appear to be running in circles trying to find traction to uphold the current legal fiction and anti-Rights interpretation by the courts. Why is that?

I haven't mentioned or discussed the Second Amendment once, so I am not sure where you would get the idea that I am trying to "play off that such men would approve of a Second Amendment that ONLY covered the Federal government." In fact, I am pretty hard pressed to see how you arrived at that idea at all based on our conversation.

Not true prior to the 14th Amendment, the original Supreme Court decision stating that the Bill of Rights does not restrain the states goes back to a point in time when the Justices on the Court had fought the Revolution (see Barron v. Mayor and City Council of Baltimore).

Did someone steal you password and post as you? You first say the BoR doesn't restrain the States as well, but only the Feds... but then turn around and say you haven't discussed their application at all... when you plainly have.

So which is it? Is the BoR a "declaratory and restrictive" document listing a basic set of protections for Individual Rights regardless of which State they reside, or are they just some arbitrary wish list that can variously be ignored by the States and Federal government at the whim of some judge?

 

[Bartholomew Roberts]

Which, as my quotes from Rawles, Gallatin, and Jefferson prove, is completely false.

No, your quotes prove that Rawles, Gallatin and Jefferson thought that the Bill of Rights was a restraint on the states as well as the federal government. Do you understand how that is different from how the law was actually applied? In actual practice, the states were allowed to violate the Bill of Rights all they liked under the 1833 Barron v. Baltimore decision. This remained the legal practice until some years after the 14th Amendment had been adopted.

The fact that Rawles, Gallatin and Jefferson thought one thing about the Constitution does not make it law any more than the fact that Hamilton, Washington or Adams thought differently.

You appear to be running in circles trying to find traction to uphold the current legal fiction and anti-Rights interpretation by the courts.

The current "legal fiction" favors the original interpretation you offered - the Bill of Rights is a restriction on both the states and the federal government. The difference is that your interpretation claims that the power is inherent in the Constitution and the current law says the power derives from the 14th Amendment to the Constitution.

You appear to be incapable of distinguishing between legal policy arguments (what you are making) and what the courts will consider if you walk into a courtroom (what I am describing). Once you make that distinction you will understand that I am not "upholding the current legal fiction and blah blah blah" but am merely explaining what I think will happen in a court of law.

 

[Rev. DeadCorpse]

Do you understand how that is different from how the law was actually applied?

Yes. Laws not based on Constitutional principles are null and void. The Constitution IS the basis for our Laws. "Any laws to the contrary notwithstanding" make this amply clear despite judicial attempts to over turn this. That the last few decades of governmental expansion has made a mockery of this principle is not rationally debatable.

The current "legal fiction" favors the original interpretation you offered

No. It doesn't. Else those 22,000+ gun laws wouldn't exist and the BATFE wouldn't have the "F" in their initials.

The difference is that your interpretation claims that the power is inherent in the Constitution

Wrong. Power is inherent in the People. "We the People"... We cede authority for specific tasks to the government in the form of contracts we term "constitutions". When "We the People" say things like our "Right to keep and bear arms" "shall not be infringed". We meant exactly that.

As I have previously stated, and will state here again, I know that the current legal fiction reduces my Rights to mere privilege in their eyes and that government agents will feel it within the just execution of their duties to kill me to prevent me the free exercise thereof.

My point is, that this isn't the way it was set up and that the Founders themselves would be stringing up the said justices from the nearest oak for their calumny.

 

[K-Romulus]

back on message

The District's rehearing request was interesting. Here are the main points, organized as DC organized them:

1) Silberman and Griffith misread Miller, which was only about militia membership, not the weapon to be used in a militia.

2) No other court has read Miller the way they did, so there is a national conflict now. This means the case is now bigger than just D.C. Parker means that federal courts will be hearing challenges to gun laws all across the country. The "highest local court of the jurisdiction" (D.C. Ct. of Appeals) conflicts with the Parker ruling.

3) Case involves issues of exceptional importance:

(a) (Page 8): Even if Miller did not expressly say that Second Amendment only applies to militia members, voluminous scholarship supports such a reading (citing Silveira). Gun control policy is complicated, so legislative bodies should be the arbiter of "reasonable" gun laws after they debate competing ideas on the issue, not unelected courts.

(b) "State" refers to states, as evidenced by the Constitution and the Militia Clauses. The dissent's approach will simply put DC on par with the rest of the U.S, where the Second Amendment does not bar state gun control laws.

(c) "Reasonable restrictions" language in Parker means that the DC government's reasons for its laws should at least be considered. DC government's opinion that handguns were disproportionately used in crimes, while shotguns and rifles were OK, should be constitutional. Since other guns are allowed, self-defense and militia service is still possible without handguns.

(d) Licensing law regarding moving handguns in the home could be constitutional in the case of convicted felons, so can't strike it down totally, only as applied.

(e) Since the local D.C. Court of Appeals has never reviewed the "safe storage" law, and might agree with the Parker reasoning, the Fed. court should hold its constitutional review until the D.C. Court of Appeals hears such a case first.

4) Parker should get new briefing to allow DC and the various amici, including 16 states, the cities of Boston, Chicago, New York, and San Fran, the International Association of Chiefs of Police, and the American Academy of Pediatrics (last two put out press releases touting Parker's "threat" against law enforcement and kids), to address the majority's arguments. The parties' briefs in the appeal addressed standing under the assumption that Seegars would be the precedent and applicable law, so the new briefs would be substantially different. New briefs would also address level of scrutiny for Second Amendment claims, and address DC's constitutional states (i.e. "is it a state").

- - - - -

Seems like a bruiser coming up. Parker is THE cause celebre for every "progressive intellectual" in every big-shot, big-city, bloated law firm. If new briefing is allowed, that roaring sound you hear will be the various law firm partners engaging in an ultimate fighting championship to get to be the ones with their names on the appellate briefs.

Somewhere, someone commented that if rehearing was granted the briefs would be due over the summer, with oral arguments in the fall. Decision maybe this time next year.

 

[nobody_special]

1) Silberman and Griffith misread Miller, which was only about militia membership, not the weapon to be used in a militia.

Well I'd call that a radical interpretation of the text, though obviously my view isn't universal.

(a) (Page 8): Even if Miller did not expressly say that Second Amendment only applies to militia members, voluminous scholarship supports such a reading (citing Silveira). Gun control policy is complicated, so legislative bodies should be the arbiter of "reasonable" gun laws after they debate competing ideas on the issue, not unelected courts.

Silveria is an anchor around our necks. Thankfully, it's not a Supreme Court decision, so it isn't binding precedent for the DC circuit.

(b) "State" refers to states, as evidenced by the Constitution and the Militia Clauses. The dissent's approach will simply put DC on par with the rest of the U.S, where the Second Amendment does not bar state gun control laws.

Could this be a problem? Sure, we all lose if the en-banc review or SCOTUS decide to reverse in part, and deny the RKBA as an individual right. But this case doesn't address whether or not the 2nd Amendment is incorporated under the 14th. So if the court accepts this argument, the suit could still be lost even if the RKBA is federally protected... and very possibly nothing would change, as we'd still have "reasonable restrictions."

(c) "Reasonable restrictions" language in Parker means that the DC government's reasons for its laws should at least be considered. DC government's opinion that handguns were disproportionately used in crimes, while shotguns and rifles were OK, should be constitutional. Since other guns are allowed, self-defense and militia service is still possible without handguns.

I don't think that will hold up in a reasonable courtroom; it would allow a ban on everything except a single self-defense/militia weapon?

(d) Licensing law regarding moving handguns in the home could be constitutional in the case of convicted felons, so can't strike it down totally, only as applied.

I don't think that will hold up either. Felons lose rights as a consequence of their crimes. Can we make a law to restrict speech, then fail to strike it down based on this argument?

(e) Since the local D.C. Court of Appeals has never reviewed the "safe storage" law, and might agree with the Parker reasoning, the Fed. court should hold its constitutional review until the D.C. Court of Appeals hears such a case first.

That's complete nonsense, but I'm not sure what a judge would say to this. Any opinions? Bartholomew Roberts?

My expectation is that a court isn't going to like this argument, as it seems like an attack on the court itself rather than a matter of law. But that's just my uninformed opinion.

4) Parker should get new briefing to allow DC and the various amici, including 16 states, the cities of Boston, Chicago, New York, and San Fran, the International Association of Chiefs of Police, and the American Academy of Pediatrics (last two put out press releases touting Parker's "threat" against law enforcement and kids), to address the majority's arguments. The parties' briefs in the appeal addressed standing under the assumption that Seegars would be the precedent and applicable law, so the new briefs would be substantially different. New briefs would also address level of scrutiny for Second Amendment claims, and address DC's constitutional states (i.e. "is it a state").

I don't know about this one either. Would allowing new amici be irregular? Seems like it might, since appeals are generally arguments that the lower court decision was incorrect based on the previously presented arguments. Again, any knowledgeable opinions?

 

[Bartholomew Roberts]

Hmmm, I would summarize the D.C. City replies as:

1. The court is wrong. It is a collective right.
a. All the other kids do it.
b. Doesn't apply to us even if it is an individual right
c. If it was an individual right and it does apply to us, then you should use a rational basis test and find our restrictions reasonable.
d. Even if it does apply to us and our restrictions aren't reasonable, then you should only address the case as applied (meaning that Special Police Officers in DC would now be able to register their firearms; but everyone else is hosed).
e. You shouldn't review this case now anyway because this other law might be affected and you should wait until a challenge is brought and the city court rules on that.
f. Our amicus briefs got pummeled. You should allow us to write new briefs now that we know what the winning argument is.

That's complete nonsense, but I'm not sure what a judge would say to this. Any opinions? Bartholomew Roberts?

I'd have to read more to give an informed opinion; but it looks like they are asking the court to just sit on the status quo until the D.C. City Court of Appeals hears a challenge to the safe storage law. I don't see them getting much traction here; but I guess they felt they had to try.

I don't know about this one either. Would allowing new amici be irregular?

I don't think it will make much difference either way. Even if they are denied here, they will have new amicus briefs if it goes to SCOTUS.

 

[jpk1md]

For arguments sake lets say that the en banc court declines to hear the case or does hear it and we get a response that is not significantly different that which has already been handed down by the 3 judge appellate court.

DC has put the enforcement of the law on hold pending their appeal of the appeal.....if they lose at the en banc level can they put enforcement of the courts decision on hold AGAIN pending an appeal to SCOTUS or would they be forced to apply the courts decision?

 

[Titan6]

I imagine a court would have to issue an order to enforce a ruling on appeal to SCOTUS. Not likely to see that unless Parker and Co. can show cause.

 

[Gifted]

(c) "Reasonable restrictions" language in Parker means that the DC government's reasons for its laws should at least be considered. DC government's opinion that handguns were disproportionately used in crimes, while shotguns and rifles were OK, should be constitutional. Since other guns are allowed, self-defense and militia service is still possible without handguns.

This is where strict scrutiny(which I've asked about but haven't gotten a good explaination of-new thread time) would apply. Since it's obvious that the ban has done nothing to reduce violence, and seems to actually have the opposite affect, it's dead. If they want a law, they have to prove that it will have the affect they want, and if there's any doubt, it's gone. Yelling fire in a theater I believe is the main example of this.

 

[nobody_special]

No new thread needed, just check wikipedia. The question is, are they really going to adopt strict scrutiny, or some lesser standard?

 

[Gifted]

I went ahead and did it. I referenced the wiki article, too. One question of significance is the precedent to use the strict scrutiny rule. The other standards they might adopt and how they'd affect future cases would be a topic as well.

 

[illspirit]

(c) "Reasonable restrictions" language in Parker means that the DC government's reasons for its laws should at least be considered. DC government's opinion that handguns were disproportionately used in crimes, while shotguns and rifles were OK, should be constitutional. Since other guns are allowed, self-defense and militia service is still possible without handguns.

This piece of "logic" has to be my favorite part. They say handguns are "disproportionately used in crimes?" Well, duh, they're banned. They can't be used legally. This is kind of the whole point of the lawsuit, after all.

But even this is made of straw, seeing as the cops who enforce the law all carry handguns. Or are they trying to say the police are using them to commit crimes as well?

Anyhow, if this is their idea of strict scrutiny, does this mean they can ban keyboards without violating the First because they're disproportionately used to libel anonymously over the internets? Or building off the "since other guns are allowed" bit, can they cut out the tongues of citizens because they'd still be able to mumble their free speech?

 

[Brett Bellmore]

No new thread needed, just check wikipedia. The question is, are they really going to adopt strict scrutiny, or some lesser standard?

Maybe they'll follow the 5th circuit's lead, from Emerson, and say that they're adopting strict scrutiny, and then go ahead and apply a lower standard anyway.

 

[ctdonath]

Notable in DC's appeal for en banc:

"If the ruling stands, the federal courts in this jurisdiction may expect to be singularly attractive to suits against the United States Attorney General challenging nationally applicable firearm laws Congress has enacted or may yet enact."

They know 922(o) is next.
If handguns are deemed protected, machineguns - clearly being "militia suitable" - are a shoo-in.
There is, IMHO, no discernable difference between DC's "you can't register a handgun" and BATFE's "you can't register a machinegun" laws.
They'll just allude to it, not actually say it though.

You think this argument over handgun ownership is ugly, wait 'til someone formally introduces machineguns into the mix. Thing is, personal un- or minimally-registered ownership of M16s is the logical conclusion of both the collective and individual rights theory.

DC Circuit, and if they take it SCOTUS, will tie themselves in knots to avoid any ruling that would let you, Congressionally-decreed militia member, personally own an M16/M4.

 

[Bubbles]

Also caught that...

ctdonath - I noticed that as well. It would definitely be hard to argue that the '86 ban was constitutional if this ruling is upheld by the USSC. Federal legislation like HR1022 would also be at risk for the anti's.

 

[jpk1md]

Its actually not that hard for the court to resolve wrt the 86 ban on MG

It would simply fall into that category of reasonable regulation of firearms in the same way 1A Rights are regulated for the greater good.

We all may not agree with that answer but it is a logical conclusion nonetheless and is a separate fight altogether.

Remember that the case is VERY NARROW in its focus and the courts are obligated to consider it in the same way.

 

[Titan6]

How politically swayed would the SCOTUS be there anyway? Everyone knows the next step is to go after striking down the federal bans again. The court might even be tempted to write a judgement for or against federal bans even though it is not within the limits of the case.

 

[Titan6]

Sounds reasonable. But the appeals court decision does seem to help clear the way for lifting the MG ban.

 

[Sam Adams]

Its actually not that hard for the court to resolve wrt the 86 ban on MG

It would simply fall into that category of reasonable regulation of firearms in the same way 1A Rights are regulated for the greater good.

We all may not agree with that answer but it is a logical conclusion nonetheless and is a separate fight altogether.

While it is accurate to say that I (and most other advocates of our 2nd Amendment rights) would disagree with any decision limiting our right to purchase full autos, I don't think that the above statement is correct, since there are already something like 200,000 full autos in civilian hands pursuant to the NFA. Banning only post-'86 manufactured guns does nothing to eliminate those 200,000, and anyone buying a newly-made full auto could just as easily purchase a pre-'86 gun, and be subject to exactly the same licensing/approval regulations. Nope, this statement would only be correct if there was a complete ban on full autos.

Further, "reasonable regulation" as applied to firearms always means "Prior Restraint; similar such "reasonable regulation" under the First would require that people be gagged or have their tongues removed prior to entering movie theaters, or at least that they receive a permit to write a letter to their Congresscritter or to go to a house of worship. In short, it ISN'T the same standard (and, yeah, I know that the courts don't look at it that way, but there's a definite double standard involved).

I agree that the fight over full autos and the validity of 922(o) is a separate fight - but get a Supreme Court ruling that the 2nd is an individual right and we'll be in the catbird seat.

 

[jlbraun]

While it is accurate to say that I (and most other advocates of our 2nd Amendment rights) would disagree with any decision limiting our right to purchase full autos, I don't think that the above statement is correct, since there are already something like 200,000 full autos in civilian hands pursuant to the NFA. Banning only post-'86 manufactured guns does nothing to eliminate those 200,000, and anyone buying a newly-made full auto could just as easily purchase a pre-'86 gun, and be subject to exactly the same licensing/approval regulations. Nope, this statement would only be correct if there was a complete ban on full autos.

Incorrect. Prior to 1976(?), you could register a handgun in DC. Then the law was changed so registrations for handguns could no longer be filed. This is an exact parallel to the Hughes amendment that closed the machinegun registry.

 

[Gifted]

Can D.C. residents transfer guns between each other? If so, then yes. If not, then no game.

I can make just about any gun fill a militia purpose. It's up to me to decide what kind of gun will best fill my needs in any regard. Short of a dangerous condition, which would really be a product safety issue, I get to choose. If the gov doesn't want me to have a gun, they have to prove that my possession or use of it will cause harm to society. And short of shooting the socialists, that's got a snowball's chance.

 

[ctdonath]

The "closing of the registry" happened long enough ago that time is starting to be a major factor, turning the "but you can still get an M16 (for $12,000)" argument into an anachronism much like "but you can still own a musket without restrictions" argument. The few suitable guns available, aside from being wildly overpriced, are becoming discernibly inferior to what is being fielded for battle today.

 

[Sam Adams]

jlbraun

Incorrect. Prior to 1976(?), you could register a handgun in DC. Then the law was changed so registrations for handguns could no longer be filed. This is an exact parallel to the Hughes amendment that closed the machinegun registry.

No, actually you are incorrect. It is NOT an exact parallel because, as I pointed out in #71, most people can now purchase a full auto firearm (pre-'86, of course) from an existing legal owner of same. Yeah, it costs a bunch, but as long as you're in a juridiction that allows such ownership (and most states are such), it is possible. But NO ONE who didn't already have a gun in DC before the '76 law can get one now.