Circuit denies new review of Second Amendment
UPDATE 8:30 p.m.
District of Columbia Mayor Adrian M. Fenty told reporters on Tuesday that an appeal to the Supreme Court is one option being considered as the city seeks to regain full authority to regulate private possession of handguns. In a public statement issued before his meeting with the media, the mayor said city officials “will evaluate our options over the next few weeks and will soon make a decision on how we will proceed.” He reiterated that he was committed to “vigorously defending the laws of the District of Columbia.” Beyond that statement, the mayor said in his meeting with reporters that another option, in addition to or instead of an appeal, would be to write new regulations to keep guns off the streets. Under Supreme Court rules, the city has 90 days from Tuesday to file a petition for review there.
In a brief order that clears the way for a potentially major dispute in the Supreme Court over the meaning of the Second Amendment, the D.C. Circuit Court on Tuesday refused to rehear en banc a test case on the validity of a sweeping gun control law in the District of Columbia. The denial was by a vote of 6 to 4. Among the dissenters were both conservative and liberal members of the Court. Here is the Court’s order.
The District government had sought reconsideration following a Circuit panel’s 2-1 ruling on March 9 that held the Second Amendment protects an individual right to have a handgun in one’s own home. (The rehearing petition is discussed and linked in this post ) The denial of rehearing leaves that decision intact.
Because local government officials regard their power to regulate guns in the capital city as a “life or death” matter, they are expected to challenge the panel decision in the Supreme Court. Such an appeal almost certainly would not be reviewed until next Term. (D.C. Mayor Adrian Fenty is expected to make a statement later Tuesday.)
A grant would appear to be quite likely, because there is a definite conflict among the Circuit Courts on the meaning of the Second Amendment, and the Supreme Court has not ruled on the issue since a somewhat ambiguous decision in 1939 (U.S. v. Miller0 .In fact, Justice Clarence Thomas in 1997 suggested that the Court some day should re-think the issue, and he indicated he was sympathetic to the individual right argument.
While the Fifth Circuit Court has ruled in favor of an individual right theory, it did not use that theory to strike down any specific gun control law. By contrast, the D.C. Circuit ruling was the first to apply that theory directly in nullifying a gun law. Every other Circuit Court to rule on the issue has rejected the indiviual right theory, largely based upon the Supreme Court’s Miller decision. There is also a 10 to 7 split among state appellate courts on the issue.
Moreover, there is also a direct conflict over the Second Amendment as it applies specifically to the D.C. gun law — the city’s highest local court, the District of Columbia Court of Appeals, has upheld the same law by embracing the collective right theory. It reiterated that position as recently as last week, in the case of Andrews v. United States (D.C. Court of Appeals docket 02-1043) — a ruling that the city government had brought to the Circuit Court’s attention last Friday, before rehearing was denied.
The Bush Administration has publicly said it favors the individual right interpretation of the Amendment, but it has never found that the Amendment so interpreted would strike down any federal gun law. If the D.C. case goes on to the Court, the Administration would be quite likely to take a position on it; it was not involved in the case in the Circuit Court or the District Court.
In unsuccessfully calling for rehearing in the D.C. Circuit, the local government had said that, if the ruling stood, “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.”
Because the case of Parker v. District of Columbia deals only with the Second Amendment as a federal issue, it does not raise the question of whether the Second Amendment applies at all to state and local government. The Supreme Court last faced that issue in 1886 in Presser v. Illinois, finding that the Amendment only applied to the federal government. That would not be an issue in the Parker case in the Supreme Court, but a state or local case would be almost certain to arise to test it.
(As a reader points out, below, Circuit Judge Karen LeCraft Henderson, who dissented from the panel decision, did not vote for en banc review. The dissenters were a conservative, A. Raymond Randolph, and three liberal or moderate judges, Merrick Garland, Judith Rogers and David Tatel. Had Henderson voted with them, the Court would have been split 5-5 but review would still be denied, because a majority is required.)
How strange that Judge Henderson, who dissented from the panel opinion, didn’t vote to grant rehearing. It wouldn’t have changed the outcome, but it would have made the vote 5-5.
Comment by madisonian — May 8, 2007 @ 1:26 pm
Note that Judge Randolph also voted to re-hear Seegars, the NRA copy-cat case. In Seegars, the D.C. Circuit found that its unique standing doctrine, as announced in Navegar, Inc. v. U.S., 103 F.3d 998 (D.C. Cir. 1997), precluded the challenge to the DC gun laws.
Navegar was also an issue in our case. In dismissing some of the plaintiffs, the Parker panel felt bound by Navegar despite, as in Seegars, observing that Navegar is inconsistent with Supreme Court precedent.
It is not safe to assume that Judge Randolph disagreed with the panel’s decision on the merits. This case would have been an excellent vehicle for revisiting Navegar. But we’re satisfied with the outcome just the same, and look forward to litigating this matter in the Supreme Court should cert. be granted.
Alan Gura
Lead Counsel, Parker v. Dist. of Columbia.
Comment by Alan Gura — May 8, 2007 @ 4:27 pm
can anyone explain why Judge Henderson would not vite to rehear when she dissented from the case? it doesn’t really make any sense.
Comment by rufus peckham — May 8, 2007 @ 5:57 pm
It is my understanding that sometimes judges vote to deny en banc review strategically. In other words, en banc review temporarily precludes and/or delays Supreme Court review. Often times judges would rather see SCOTUS take it up, especially if they are gambling on SCOTUS slapping the appellate court down. So that could explain Henderson’s vote.
Comment by DrGrishka — May 8, 2007 @ 7:18 pm
Re Henderson,
Let’s keep in mind that en banc review of a panel opinion is an extraordinary step. The D.C. Circuit sees many split opinions — surely the dissenter does not call for en banc review every time.
The Federal Rules of Appellate Procedure set forth two and onyl two justifications for en banc review: “(1) en banc consideration is necessary to secure or maintain uniformity of the court’s decisions; or (2) the proceeding involves a question of exceptional importance.” Maybe Judge Henderson simply did not believe that this case satisfied either standard. Indeed, I don’t think that “uniformity” is at issue. And I wouldn’t fault Judge Henderson for concluding that this issue just isn’t, in the big scheme of things, a very important issue.
Likewise, the court’s handbook warns: “petitions for rehearing en banc are frequently filed but rarely granted. Federal Rule of Appellate Procedure 35(a) expressly states that en banc hearings are not favored and ordinarily will not be ordered except to secure or maintain uniformity of decisions among the panels of the Court, or to decide questions of exceptional importance.” Perhaps Judge Henderson simply didn’t believe that this case made the grade.
Judge Henderson is a fine and principled judge — one of the best on that court. I’d guess that her vote was based not on the “strategic” considerations raised above but, rather, on her fundamental respect for the high standard needed to justify en banc review.
Comment by Adam White — May 9, 2007 @ 12:22 am
Apologies for the mis-formatting. It looked better in the “preview” window.
Comment by Adam White — May 9, 2007 @ 12:23 am
2nd Amendment partisans have often framed the argument as a State’s Rights issue. In particular the slanting of the “well regulated militia” as having two thrusts the most important of which (to them) is to have an armed militia to thwart off the Federal Government when they invade. (hey – i’m just a lay person reading the arguments). Simplified but that is what it is.
Now we have something in the District of Columbia..certainly not a state’s rights issue as this is a special place.
As the District has a certain amount of limitations to those bestowed upon the rest of us by the constitution, doesn’t a cause/resolution in this area still provide wiggle room on both sides regarding “real” state’s interests? Can it not be argued that DC isn’t a state, therefore…. or in the alternative, the constitution treats all citizens alike..which it clearly does not.
As to Judge Thomas the strict constructionist signaling that he might like to visit the issue…why is that? The matter was obviously debated and put to bed in the 1780s…does it need debate or fiat “that’s what it says”…whatever that is.
I just don’t get it and that is the problem. There is no resolution and we drift and drift from one of these ordanances to another..just important enough for all to take interest and just short of a clear statement.
Comment by harold d. house — May 9, 2007 @ 7:02 am
Harold D. House: If the D.C. Circuit ruling is upheld because SCOTUS denies review or because affirms the ruling on the merits, then the binding precedent of the D.C. Circuit could be used to challenge any federal gun control law using a D.C. resident as the test case.
Of course, such a ruling would not bind the other circuits. But, it could easily set up a circuit split on the constitutional of many federal gun control laws.
I also have to disagree with Adam White on Judge Henderson’s likely motives. Given the intra-D.C. spit on the issue described in the original post, and the fact that this is the first time in the history of the Republic that a gun control law has been invalidated on Second Amendment grounds in a federally created court, it is hard to see, given the nature of the dissent that Henderson did not believe that this was a case where “(1) en banc consideration is necessary to secure or maintain uniformity of the court’s decisions; or (2) the proceeding involves a question of exceptional importance.”
I think the better inference is the Judge Henderson believed that D.C. Circuit en banc review would either not change the ruling, or would fail to resolve a vital constitutional issue.
Comment by Andrew Oh-Willeke — May 9, 2007 @ 12:37 pm
Andrew– This doesn’t qualify as a case where en banc review is necessary “to secure or maintain uniformity of the court’s decisions,” because the intra-D.C. split you reference is with the D.C. Court of Appeals, not the D.C. Circuit.
Am I correct that the court never ordered the plaintiffs to file a response to the rehearing petition? If not, I find that revealing. My understanding is that the court will issue such an order if even a single judge requests one. So, that suggests to me that no one on the court (not even the four dissenters) was particularly keen on rehearing the case; if they had been, they would have asked for a response — thereby delaying final disposition of the petition and providing an opportunity to lobby for a sixth vote. (They could have delayed it even further by asking for time to draft a dissenting opinion.) I suspect that all 10 judges reasoned that the Supreme Court was likely to hear the case eventually, so why not let the case reach the High Court sooner rather than later? It’s hard to believe that Judge Henderson changed her mind on the merits so quickly, and without the benefit of another brief from the plaintiffs. But that is not to suggest that there is anything unprincipled about her vote against rehearing. There is nothing unprincipled about voting against rehearing despite disagreeing with the panel decision, based on a belief that justice is best served by expeditious Supreme Court review.
Comment by Richard Samp — May 9, 2007 @ 4:10 pm