Another step on Second Amendment appeal
on May 25, 2007 at 5:28 pm
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
