What is the Supreme Court Date?

[Bartholomew Roberts]

Thain, it is my understanding that because any suit under the Administrative Procedures Act can proceed against the government in its "home" of Washington, a decision by the D.C. Circuit has a lot broader impact than you suggest. It seems to me that a decision that the Second Amendment is an individual right has a fairly broad impact when combined with the APA.

 

[legaleagle_45]

You better beleive all the big names have been drafting their amicus briefs since the second the gavel dropped in the Court of Appeals.

I would not be surprised if there is an email circle involving the top 2nd amendment minds in the country, discussing strategy, tactics and theory. Would it not be fun to be able to listen in on that!!

 

[AirForceShooter]

Can you imagine a SCOTUS decision on the Second Amendment during a Presidential Election?
Doesn't matter how the come down.
For that reason they may just take a pass.

AFS

 

[jpk1md]

The timing is not a concern of the courts....never has been and hopefully never will be......remember...the courts are SUPPOSED to be totally independent...

Now we all know that scumbags like Ginsberg continue to try to legislate from the bench but generally speaking I believe SCOTUS does a decent job of staying out of politics and sticking to the law.

Like it or not...if SCOTUS takes this case it WILL be an issue for the 2008 elections...regardless of how it plays out.

If it goes against us the Conservatives will be forced to use the issue as a crusade issue to rally the vote.

On the other hand if it goes FOR us the Socialist Left will force the Socialist Dems Candidates to beat the Gun Control Drum.....they will have no choice.

 

[Thain]

Bartholomew, correct me if I'm wrong, but there are no federal administrative agencies connected with the issue in Heller.

The 2-1 decision in Parker struck down parts of the D.C. Firearms Control Act of 1975, a local law enacted by District of Columbia's local government. There isn't a federal agency involved...

Since all the APA does is regulate how administrative agencies of the federal government propose and establish their regulations (the Federal Register), and sets up a process for federal courts to directly review agency decisions... I'm at a loss as to how it would be used by either side in this issue.

 

[Autolycus]

Originally posted by jpk1md: Now we all know that scumbags like Ginsberg continue to try to legislate from the bench but generally speaking I believe SCOTUS does a decent job of staying out of politics and sticking to the law.

Please don't call someone a scumbag simply because they have different views then you. This is the High Road not the Low Road.

 

[Bartholomew Roberts]

The 2-1 decision in Parker struck down parts of the D.C. Firearms Control Act of 1975, a local law enacted by District of Columbia's local government.

Yes, they struck down that law because they found it violated the Second Amendment. They interpret the Second as an individual right subject to reasonable restrictions under strict scrutiny (although some of the approved regulations they listed didn't strike me as very strict scrutiny). That isn't dicta. It is the meat of the holding.

Since all the APA does is regulate how administrative agencies of the federal government propose and establish their regulations (the Federal Register), and sets up a process for federal courts to directly review agency decisions...

It seems to me like you wouldn't have to look very hard to find an ATF regulation or decision that might be found in conflict with the idea that the Second Amendment protects an individual right.

 

[jpk1md]

Tecumseh, it would be better next time if you would try to read my post with objectivity.

Ginsberg is a scumbag because she is not doing her job as defined by the Constitution which is to objectively interpret the law as written and is instead imposing her own beliefs on decisions and outcomes by using her Judicial power to instruct/influence the Legislative branch to write new laws tailored to her beliefs/opinions.

Totally unprofessional and contrary to the spirit of the Constitution and the Founding Fathers intent of Separation of Powers.

This is what they call "Legislating from the Bench" hence my "Scumbag" comment which has nothing to do with her Beliefs and everything to do with her Actions

 

[LawBot5000]

I think the Court will grant cert. A minority of the Court has wanted to address this issue for a while. I think they are a majority now. The only side that really wants to lay low is the collective side. They know that the collective argument is not believed or supported by most of the public so they keep putting it off in hopes that later audiences will be more receptive to that nonsense.

I concur with this opinion and would like to add that the lack of novel or persuasive arguments from the collective side is very encouraging.

Also, Ginsburg's dissent in Muscarello tells me that she at least honestly understands what is meant by "keep and bear arms." Her dissent certainly isn't inconsistent with an individual right. Although we may disagree with her on sexual and reproductive issues, I think she is a very solid possible vote for our side on the gun issue.

 

[scout26]

Like Lawbot I'm predicting that Ginsburg will vote with us on Heller. In fact, I've gone out on a limb and stated that I think it will be a 7-2 or 8-1 win for the individual rights argument.

Stevens and either Souter or Breyer will be the dissenters.

What's the line in Vegas on this ???

 

[LawBot5000]

I could see this case turning out badly for us if it was an interstate commerce case, but a raw 2nd amendment case, no way. At a bare minimum, we have 4 solid votes on our side. The balance of the court is split between civil libertarians and left leaning statists. We aren't going to win over Stevens, but we don't need to.

A lot of this comes down to whose legal ox is gored. Invalidating statutes on Interstate Commerce grounds is like dropping a cluster bomb on the herd. The 2nd amendment is far less dangerous from this viewpoint. Even if they hold that RKBA is a fundamental right inextricably tied to the rights to life and self defense (implying strict scrutiny) it really isn't going to cut a huge swath through the law books.

A few state and local restrictions are probably going to be endangered (as would CCA decisions upholding those restrictions on Collective Rights Model grounds), but the vast majority of statutes and most case law is going to be utterly unaffected. Most states have had RKBA in their constitutions since their founding and of the few that lack such safeguards, even fewer have particularly severe restrictions in place. There are about half a dozen states with a real horse in this race.

I predicted many years ago (under a different username) that if we won in the supreme court, it would come after so many other victories that the decision wouldn't end up having much effect. I think that is what we are looking at here.

 

[leadcounsel]

Judicially this issue is ripe for consideration and based on this fact I think the Court will grant cert, meaning it will hear the case.

And, while it's scary, I still want the court to grant cert. We have a solid case with good facts and a good defendant from the underlying case. The political climate is fairly pro-gun (based on the last two elections, and the ever increasing pro-gun movements such as concealed carry, etc.). I think now is the time to get a decision. If you think about it, pro-gun right movements are slow and take a lot of time to evolve, however anti-gun opinion takes only a shooting or massacre and there is an endless "protect the children" rant that moves the public opinion very rapidly.

It would be worse to let public opinion slide down about guns and then get a case with a bad fact pattern...

Politically it may be a different matter, but I still think that the Justices will hear the case.

 

[Thain]

Bartholomew, you are correct that the BATFE does have regulations that affect gun owners across America... But you seem to not grasp what I'm trying to say here: only Washington D.C. laws are involved in this case, it is not a case from the Federal Circuit, and if cert is not granted it will not affect any jusrisdiction outside of the D.C. Circuit.

If the Court grants cert, and if they then rule for an "individual right," then they will have set a precedent that all lower courts will need to follow. But those lower courts will need someoen to challenge the law in their jurisdiction first.

The APA just doesn't enter into it, man...

 

[Bartholomew Roberts]

only Washington D.C. laws are involved in this case, it is not a case from the Federal Circuit, and if cert is not granted it will not affect any jusrisdiction outside of the D.C. Circuit.

Thain, the United States Court of Appeals for the District of Columbia Circuit has jurisdiction to hear APA challenges. This is also the same court that issued the ruling that the Second Amendment is an individual right in Parker.

You seem to be referring to the Federal Circuit Court of Appeals. The Federal Circuit Court of Appeals has jurisdiction based on subject matter instead of geographic location. I understand that the Federal Circuit is not involved. However the United States Court of Appeals for the District of Columbia Circuit is the court that hears most APA claims (because they are brought at the government's "home" of D.C.) and this is the same court that heard Parker. So was this just confusion over the jurisdiction of the courts involved or are you suggesting that the D.C. Circuit when faced with an individual right claim under the APA is going to say "No. The Second Amendment is only an individual right in D.C. law. We don't think that holding applies here."?

 

[SWATcashJeremy]

Bartholomew, you are correct that the BATFE does have regulations that affect gun owners across America... But you seem to not grasp what I'm trying to say here: only Washington D.C. laws are involved in this case, it is not a case from the Federal Circuit, and if cert is not granted it will not affect any jusrisdiction outside of the D.C. Circuit.

If the Court grants cert, and if they then rule for an "individual right," then they will have set a precedent that all lower courts will need to follow. But those lower courts will need someoen to challenge the law in their jurisdiction first.

The APA just doesn't enter into it, man...

Denying cert is the same as denying an appeal. If the supreme court denies cert then they are saying that as far as they care the appeals court decision was the right one and any citizen can then challenge the laws thru legal procedings and there IS a precedent set. The fact that a law was found unconstitional in another circuit DOES hold water. A judge CANNOT say "Well it may be legal there but I where the robes and what I say goes." (well he can try but only if he likes being reversed on appeal)

 

[Bartholomew Roberts]

Denying cert is the same as denying an appeal. If the supreme court denies cert then they are saying that as far as they care the appeals court decision was the right one

Not exactly. All denying cert says is that the Supreme Court isn't going to address the issue at this time. To give an example, the Supreme Court denied cert in Emerson v. United States and United States v. Warin. One says "Second Amendment is an individual right." The other one says "Second Amendment is only a collective right." Obviously, both of those cannot be right and the Supreme Court cannot be approving both. They are just allowing the circuits to develop divergent law for whatever reason.

The fact that a law was found unconstitional in another circuit DOES hold water. A judge CANNOT say "Well it may be legal there but I where the robes and what I say goes." (well he can try but only if he likes being reversed on appeal)

The fact that a law was found unconstitutional by another circuit court of appeals is persuasive; but not binding. A judge may decide to accept that other circuit's decision; but he is not required to do so unless he is within that court's jurisdiction. To give another example, the D.C. Circuit looked at the 5th Circuit's decision in Emerson. They were not required to adopt the 5th Circuit's ruling. They could have looked at the 10th or 8th Circuits that have ruled for a collective right ruling just as easily. The 5th Circuit ruling was only persuasive outside its own circuit because no court higher than the D.C. Circuit has ruled on it.

Which makes me reconsider something Thain said earlier...

If cert is not granted it will not affect any jusrisdiction outside of the D.C. Circuit.

Maybe I missed your point and you were just saying that a ruling by the D.C. Circuit cannot affect any jurisdiction outside of that circuit, APA jurisdiction or not? In that case you are right that in the event an APA challenge is brought before the 10th Circuit, the D.C. Circuit ruling wouldn't be anything but persuasive.

However my point was that someone living within the 10th Circuit could challenge ATF regulations or decisions under the APA in the D.C. Circuit instead of bringing them in the district court subject to the 10th Circuit's jurisdiction. Maybe that is where we are getting our wires crossed?

 

[Thain]

Maybe I missed your point and you were just saying that a ruling by the D.C. Circuit cannot affect any jurisdiction outside of that circuit, APA jurisdiction or not? In that case you are right that in the event an APA challenge is brought before the 10th Circuit, the D.C. Circuit ruling wouldn't be anything but persuasive.

Correct. But more importantly, I am saying that there is no APA question in the Heller case. The case at hand has very specific questions, and they were addresses by the D.C. Circuit.

If the Court does not grant cert, then the D.C. law is repealed, and the rest of the U.S. continues to live life under the current status quo. The decision of the D.C. Cicuit is merely a persuasive point in all other jurisdictions... If cert is granted, then we have a national precedent.

There is no APA issue involved, so I am confused as to why it was even brought up in the first place... o-O,

 

[Bartholomew Roberts]

There is no APA issue involved, so I am confused as to why it was even brought up in the first place... o-O,

I brought it up because if the same court that hears APA appeals (regulatory and administrative agency decisions of federal agencies) has ruled that the Second Amendment is an individual right, then the next time you see an ATF decision that seems in conflict with an individual rights interpretation, you have a venue with good precedent that you can reach regardless of where you are located. Even though there are no APA issues involed in Parker, it isn't a huge stretch of the imagination to think that the D.C. Circuit would be open to hearing a Second Amendment argument under an APA challenge.

I think this is the point that Al Norris and others were making. I know it is the point I was making.

 

[Thain]

Even then, the APA requires the court to conclude that a regulation is "arbitrary and capricious, an abuse of discretion, or otherwise not in accordance with the law," in order for the courts to have standing to overturn a decision by the agency.

That is, IMHO, one hell of a high hurdle to clear with any agency. Especially one that can make a reasonable claim of operating under both the "police powers clause" and the "tax and revenue clause."

 

[LawBot5000]

Statutes and regulations interfering with the exercise of a fundamental right receive a higher level of scrutiny. Instead of being an insurmountable obstacle for us, it becomes an obstacle to the government regulations. That's the whole reason we are doing this.

As for standing "not in accordance with the law" would be satisfied if they take a view of the 2nd amendment that is inconsistent with the DC Circuit's decision.

 

[Titan6]

Okay I am a little confused about the whole interplay on the question of local vs. Federal. Is not "The Government of District of Columbia" a federal entity? The entire thing is at the will of congress.

The rules, regulations and laws of DC would not apply outside of DC any more than say the Park Service rules apply outside of Parks but they should still be a Federal Agency so any ruling would apply everywhere? (or is it just anywhere DC has authority?)

 

[Bartholomew Roberts]

Okay I am a little confused about the whole interplay on the question of local vs. Federal.

We are discussing why an individual right decision in the D.C. Circuit is more significant than the same decision in the Fifth Circuit. A decision in the Fifth Circuit is only persuasive if you don't live in the Fifth Circuit. It doesn't help anyone in the rest of the United States beyond saying "Well, look what they did over there."

However, because the D.C. Circuit is the appeals court overseeing the "home" where the Government lives, it often hears challenges to regulations or decisions by administrative agencies under the Administrative Procedures Act (APA). You don't have to actually live in D.C. to take advantage of this... you can live in say, Alaska, and challenge the ATF regulation in the D.C. Circuit.

This means instead of having the Ninth Circuit (Second is a collective right, only for states) review your challenge to the ATF regulation as they normally would. You could have the D.C. Circuit (Second is an individual right) review it, even though you don't live in D.C. (because the government "lives" in D.C. for the purposes of the APA).

 

[Titan6]

Okay got it.

Which brings an interesting question to mind. Why are not more ATF challenges brought to the DC Court? Especially now.

 

[ozwyn]

I am not sure Titan, but I am thinking if Heller goes as well as it could, it may be open season on winning our rights back in court.

 

[Thain]

We are discussing why an individual right decision in the D.C. Circuit is more significant than the same decision in the Fifth Circuit. A decision in the Fifth Circuit is only persuasive if you don't live in the Fifth Circuit. It doesn't help anyone in the rest of the United States beyond saying "Well, look what they did over there."

However, because the D.C. Circuit is the appeals court overseeing the "home" where the Government lives, it often hears challenges to regulations or decisions by administrative agencies under the Administrative Procedures Act (APA). You don't have to actually live in D.C. to take advantage of this... you can live in say, Alaska, and challenge the ATF regulation in the D.C. Circuit.

Except this is all null and void in Heller because no one is bringing the APA up in this case. There is no federal agency involved in the issue, Heller has at issue the District of Columbia Firearms Control Regulations Act of 1975, which is a local law enacted pursuant to District of Columbia home rule.

Since Heller doesn't involve any federal agency, it is pointless to continue to talk about it as if it did.