A do-over on D.C. gun law
on Dec 16, 2015 at 8:57 am
Reaching back seventy-eight years to find a limit on the Chief Justice’s power to assign visiting judges, the U.S. Court of Appeals for the District of Columbia Circuit on Tuesday wiped out a judge’s ruling on the scope of gun rights under the Second Amendment. The ruling will require a new judge to conduct a new trial on the constitutionality of a District of Columbia gun law.
Under a federal law, Chief Justice John G. Roberts, Jr., has the authority to designate a judge from another city to rule on cases in a city that has an overloaded court docket. But, the D.C. Circuit ruled, that power lapses once the initial task has been performed.
After striking down one version of a new D.C. gun law in July 2014 on a Washington assignment by the Chief Justice, visiting U.S. District Judge Frederick J. Scullin, Jr., of Syracuse, N.Y., was given the task of deciding a sequel case when the local law was revised. The local calendar panel apparently gave him the case because he had decided the related, earlier dispute. (The controversy over this new assignment was discussed in an earlier post.)
Last May, Judge Scullin found the new law unconstitutional under the Second Amendment. The law required proof of a need to carry a gun in public. At the time, there was no protest over his power to rule in that case, but the D.C. Circuit raised that issue on its own after the city governmemt pursued a new appeal.
That new assignment, the D.C. Circuit ruled, went beyond Judge Scullin’s jurisdiction, so his ruling was “null.” The three-judge panel based its ruling on two arguments: first, it said the federal law giving the Chief Justice assignment power would settle the issue because his initial role was “limited to specific and enumerated cases,” not including the second-round case; and, second, it said there is a “clear precedent” controlling this dispute.
It cited a 1937 Supreme Court ruling in the case of Frad v. Kelly. In that case, a New York federal judge sitting in a different city in the state acted on a plea to reduce a probation period, part of a sentence he had imposed while on the assignment. He acted on the request twenty months later, after returning to his home city. The Supreme Court ruled that he had lost authority to act in that case.
In striking down Judge Scullin’s second ruling in the Washington case, the D.C. Circuit did not fault the local calendar panel for assigning the second case to him. It said that was “quite understandable,” given his related ruling earlier.
Although it acknowledged that “we are undoing the work of litigation to date,” the D.C. Circuit concluded that “we have no choice.”
The ruling was written by Senior Circuit Judge David B. Sentelle and joined by Circuit Judge Cornelia T.L. Pillard and Senior Circuit Judge Laurence H. Silberman.
The decision was the outcome that the city government had sought, after the assignment issue arose. Lawyers for the challengers to the D.C. law now have the option of asking the full D.C. Circuit to reconsider the case, or seek to take it to the Supreme Court.
