Another step on Second Amendment appeal
UPDATE: The D.C. government’s motion for a stay indicates that an appeal to the Supreme Court would include these questions: “(1) whether the [Circuit Court] panel decision conflicts with the Supreme Court’s decision in United States v. Miller (1939)…; (2) whether the Second Amendment protects firearms possession or use that is not associated with service in a State militia; (3) whether the Amendment applies differently to the District because of its constitutional status,…and (4) whether the challenged laws represent reasonable regulation of whatever right the Amendment protects.” The motion sought a stay of the issuance of the Circuit Court mandate for the 90-day period open for Supreme Court review — a period that began to run on May 8.
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The District of Columbia’s local government has taken another step toward the Supreme Court in a major case on the Second Amendment and gun rights, and it has come under some pressure from an unusual source — a federal judge — to go ahead with the appeal. Laurence H. Silberman, a senior U.S. circuit judge who wrote an opinion relying on the Second Amendment in striking down the District’s strict gun control law, has argued that District officials would be acting improperly if they did not now pursue an appeal.
This peculiar situation arose this week, after the District’s lawyers had asked Silberman and two other judges on a D.C. Circuit Court panel to put on hold their ruling March 9 in Parker v. District of Columbia (Circuit docket 04-7041). The District said it may take the case to the Supreme Court and asked the judges to stay the issuance of their mandate to allow that. The panel did so on Thursday in a brief order, delaying the mandate until Aug. 7. That is the date by which the city would have to pursue an appeal to the Supreme Court (unless it sought and obtained an extension from the Supreme Court). The city gained no additional time from the Circuit Court to make up its mind, and the Circuit Court order probably will mean the city will have to act by the August date. But, with the stay, it can continue to enforce its gun law. (NOTE: Howard Bashman has posted a link to the Circuit Court order on his blog, How Appealing.)
All of that was not at all out of the ordinary, since the request for a stay had not been opposed by the local citizens who successfully challenged the District’s gun law, and won the first federal appeals court ruling nullifying a gun control law on the theory that the Second Amendment protects an individual right to possess a gun in one’s own home.
What was unusual was the additional gesture that Judge Silberman, the author of Parker, made. He issued a one-paragraph statement that said: “Although the District’s motion for stay only indicates it ‘may’ petition for certiorari, since appellants did not object, I assume it is understood that the District intends to petition for review in the Supreme Court. If it did not so intend, in my view, it would be inappropriate for it to have sought the stay.” That statement spoke only for Silberman, it appears.
As authority for his view, Silberman cited an order of the Seventh Circuit Court on July 15, 2002, in the case of Boim, et al., v. Quranic Literacy Institute, et al. (Circuit dockets 01-1969 and 01-1970). That is an important case recognizing civil damages liability in American courts for acts of terrorism abroad. The Holy Land Foundation for Relief and Development, which had lost that case in the Seventh Circuit, sought a stay of the mandate pending an appeal to the Supreme Court.
The Foundation had told the Seventh Circuit Court that it had not had a sufficient opportunity to talk with its lawyers about whether to appeal to the Supreme Court, but said it was “actively consdiering” doing so. Circuit Judge Ilana Rovner wrote: “HLF seeks a stay not to file a petition for a writ of certiorari but to have time to decide whether it wishes to file such a petition in the first place. HLF cites no authority for this novel use [of federal appellate rules].” Judge Rovner denied the motion, finding no “good cause” for delaying the mandate, and ordered it issued a week later. (As it turned out, HLF did not appeal to the Supreme Court, and the case went to trial, resulting in a $156 million veridct — now on appeal to the Seventh Circuit.)
Judge Silberman obviously saw a parallel in the Parker case, and at least implied he would have opposed any delay in issuing the mandate if he thought the District would back out of a Supreme Court appeal. His comment, however, does not compel the District to actually file an appeal.
There is no doubt that gun rights advocates want the case to go on to the Supreme Court, because they have repeatedly filed Second Amendment appeals in the past, only to see them more or less routinely denied. Justice Clarence Thomas, though, has suggested the Court ought to revisit the issue one day. Advocates of gun control have made it clear that they are nervous about winning a straightforward Second Amendment test in the current Court.up
I think a cert grant would be a lose-lose situation for gun rights advocates. The individual rights interpetation has had remarkable success on the ground in the absence of court enforcement. Because the virtual unanimity in the lower federal courts has kept SCOTUS from addressing the issue head on, gun rights advocates have been able to convince the public in the vast majority of state and local jurisdictions that the second amendment guarantees an individual right to bare arms and thus scuttle most gun control legislation, without having to fight an uphill battle to convince the public to enact laws on the basis of a constitutional interpetation explicitly rejected by the Supreme Court.
I don’t think that the situation can improve much in the aggregate for the gun-rights side. While it is already known that Roberts, Scalia, and Thomas support an individual-rights interpetation, the other justices’ positions are unknown, and a ruling rejecting an individual rights interpetation would probably result in, within a decade, a landscape with far more gun control legislation then seen now. Gun rights advocates would be almost entirely deprived of what had heretofore been the strongest weapon in their arsenal, the second amendment argument, which would be almost impossible to be effective aginst a public accustomed to hearing from legislatures not to worry about bill XYZ said to endanger civil liberties, because legislation of the sort has “already been upheld by the Supreme Court”, as if legislatures have no role in protecting civil liberties beyond the outer constitutional limits.
Even in the event that SCOTUS upholds the DC circuit’s judgement, and subsequently incorporates the second amendment against the states a term later, gun rights advocates still lose. There is no chance on earth that the Supreme Court is going to enforce the second amendment anywhere nearly as aggressively as it has enforced the first, and all sorts of regulations will ultimately be held to pass muster when the Supreme Court delineates its tests. Although states and local jurisdictions with restrictive gun laws will be forced to amend or enforce them in a manner consistent with supreme court doctrine, the national aggregate effect will be much less gun rights, since most jurisdictions already have quite liberal gun laws and will be unlikely to go any further once the courts start controlling the parameter of the right. Furthermore, over a gradual period of time, protections that go beyond what the Supreme Court requires are likely to disappear, much as interpetations of state constitutional rights have now largely been confined to match the federal ones. (E.g. the Michigan Supreme Court’s “Block of Four” voting nearly two-thirds of a century after Michigan adopted the exclusionary rule to add a “good faith exception”). It seems to me that the any marginal gain of gun rights in gun-control states would be more than offset by a corresponding stagnation, and ultimate reversal, of the gun-rights trend in the more than 40 states that allow concealled carry, and would ultimately result in most jurisdictions offering no more protection than the Supreme Court mandated minimum. So a strategy of getting the Supreme Court involved in this arena seems penny wise and pound foolish.
Comment by Jacob Berlove — May 25, 2007 @ 6:59 pm
I have to disagree with Mr. Berlove. Single issue interest groups such as the NRA, abortions rights organizations, and the like become stronger when they lose before the Supreme Court. If the Supreme Court reverses the DC Circuit, that will anger the NRA’s membership. They will intensify their lobbying efforts and push for new members. The argument will be that since the court has abandoned us, we must do more to convince state legislatures to restrict gun control. Remember, the religious right in this country has its genesis not in any legislative defeats but in court rulings during the past fifty years restricting public displays of religious symbols and creating a constitutional right to abortion. Losing before the court on a “hot button” issue sends an incendiary message to the faithful: we were robbed by a bunch of elitist lawyers who have contempt for our values. It is a powerful message outside of urban areas in America. If the court upholds the DC Circuit, as I believe it will, the NRA will respond with a self congragulatory “I told you so” but warn its members that the right is not absolute and that heavy lifting still needs to be done. Mr. Berlove is correct in that the court will never accord 2nd Amendment rights the same protection it does 1st Amendment rights or should it. The protection would be akin to that of the 4th Amendment. And keep in mind that the legislative battles the NRA has fought over the past forty years have been over regulation and not confiscation. The DC legislation is an aberration. The court’s action, one way or the other, will not affect the type of peripheral regualation that the NRA sees as a threat to its membership. The NRA, contrary to media stereotypes, is not an organization whose leadership is some reactionary group of zealots. Members of the NRA are well educated and intense in their beliefs. They see gun control efforts as more than simple mechanical tinkering; they view it as an affront to their culture and deeply held beliefs. The leadership reflects this view completely and has harnessed the zeal as a message to politicians that is as democratic as one can be: you either vote the way we want or our members will show up on election day in your district and vote you out of office.
Comment by Dennis Bedard — May 28, 2007 @ 7:51 am
I think parts of the first two comments are true. I reckon the Supremes would want to avoid this sort of thing. OTOH, as a matter involving a federal enclave, it is actually more than responsibility (see also federal trials) than many other things. Also, I seriously think the ruling — somewhat unnecessarily actually — misapplied U.S. v. Miller.
Anyway, thanks for the update.
Comment by Joe Paulson — May 28, 2007 @ 11:10 pm
I hate to sound like a pretend-member of the SG’s office, but is this case a “good vehicle” for a broad Second Amendment look by SCOTUS? There are no “states’ rights” questions in this case (because it’s all about the District). Is there precedent for SCOTUS taking a DC-only law and using an appeal of it as the basis for reviewing a states’ rights question?
Comment by David.Huberman — May 29, 2007 @ 1:31 pm