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.

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.

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.

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.

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.