D.C. vs. Heller (Supreme Court and the 2A) - Mega Thread

[Mike40-11]

The Parker lawyers now have a website with information on the case.
http://dcguncase.com/blog/
Looks like it will be a good place to keep up with the status.

[Al Norris]

A bit of history of this case and associated websites.

For several years now, the Law Firm of Gura & Possessky, PLLC have had a website that included a page with all the pleadings, available for download. It was http://www.gurapossessky.com/parker_pleadings.htm. It has been the site from which I and many others have gotten our information on this from. The pleadings included all the filings of both the plaintiffs and defendants, from the original compliant onward. Also included are the details of the NRA's attempt to derail the case by consolidating it with Seegars.

After the refusal for the en banc hearing, it was changed to /news/parker/pleadings.html. In addition, they put up a page to describe their case, here, with links to the pleadings and a link to the overview of the case.

The link that Mike40-11 provided is a blog, that Alan Gura has started to keep folks informed, since D.C. has filed its petition for certiorari with the Supreme Court.

[RDak]

Thanks for the info. Mike!!

I hope you don't mind me telling members at another site what you provided?

Thanks again!!

[BillCA]

The sites are interesting reading if you can weed through some of the "lawyerese".

But people should be warned that you can spend a LOT of time reading these documents. Especially those in support of the 2nd. I also suggest, if you decide to read the opposing side's arguments you keep some No-Doze handy, as well as a :barf: bag.

[Yellowfin]

I gather Seegars got smoked.

[Al Norris]

This post is long, but necessary to best summarize the various issues this single case may resolve.

Seegars?

Actually, after all was said and done, the plaintiff in Seegars had not suffered an injury-in-fact, the Court held that the prior standing precedent in Navegear was weak, enhanced the standing requirements, and dismissed the case due to lack of standing. The SCOTUS declined to grant cert.

This meant (among other things) that within the D.C. Circuit, in order to achieve standing for a pre-enforcement challenge, you must have suffered a verifiable injury.

In Parker, the court went to great lengths to reconcile Navegear to Seegars in order to explain why 5 of the appellants were dismissed as not having standing, but why Heller did in fact suffer an injury-in-fact, and the court handed down the ruling we all have sought.

What's the probable timeline for the Supreme Court to act?

It is my understanding that Heller has 30 days to respond to the petition - October 4th. This will put it just after First Monday, the official beginning of the Courts term. This is when the Court will begin to grants certs. Possible that cert. could be granted mid to late October (but this is not set in stone).

Complicating this somewhat, Robert Levy has said they plan to respond with the other 5 plaintiffs-appellants, challenging the Standing ruling. They have the same 30 days to file a cross petition.

Alan Gura, for the plaintiff-appellant Heller, may or may not file a response. Unknown at this writing.

If cert. is granted, D.C. will have 45 days to file its brief. This puts things into the first part of December. Respondents will have 35 days to respond with its brief - First part to mid January. Reply Brief will be due 35 days after that - Mid February.

Remembering that this time frame is without continuances being granted, Oral Arguments could be scheduled as early as mid April to early May (again, not set in stone).

A decision could be published (also not set in stone) in early to mid summer of 2008.

Regardless of the decision, at least until it's published, this will play heavily in the upcoming Presidential election cycle... Assuming, of course, that cert. is granted.

The above is a best-guess scenario based upon past performance with no continuances being asserted and granted.

Why do the other 5 plaintiffs wish to challenge the standing rule?

Under normal situations (Federal Law), a resident of one state may not purchase a handgun from another state, without going through a FFL from point of sale to destination - requires an FFL at each end of the transaction/transfer.

The District of Columbia is not a State. Nor are FFL's permitted to operate within the D.C. city limits. For the purposes of regulation, the BATF&E promulgated a rule that a D.C. resident may purchase a handgun from an FFL in any contiguous State (the same regulation used for long guns). This rule has never been revoked.

However, a D.C. resident who purchases a handgun must take it to the nearest PD precinct to his home and register the firearm (an older D.C. code, still on the books). Since no handgun can be registered, we are left with a citizen possessing an unlawful firearm and subject to immediate arrest. In the District Court, D.C. attorneys said that this would absolutely happen, should any of the appellants try this (The D.C. attorneys not only said this in open court, but also in the Washington Post). This meets the definition of standing according to Navegear. But during the time between the various filings in the District Court, Seegars was ruled upon. The District Court then dismissed the case (erroneously it seems... at least for Heller) for lack of standing.

Levy, if I am understanding the reasoning, will attack the standing issue on those grounds. The obvious chilling effect is that the purchase/transfer of the handgun was lawful. It became an unlawful act of possession, despite the citizen doing everything according to the law, only because the D.C. code won't allow for the registration of the lawfully purchased handgun.

Why?

Under Seegars, the other appellants would have to commit the crime (violate the prohibited Codes of D.C.), that is, suffer the injury, to achieve Standing.

This effect on standing is already beginning to ripple outward to the other Circuit Courts (see Bronson v. Swensen, 2007 U.S. App. LEXIS 20631 (10th Cir. 2007)).

If the Supreme Court does not rule on this particular issue of Heller, then it is likely that this will become a universal principle, instead of a general principle, best stated by another friend of mine:

"A person should not be required to suffer the threat of prosecution in order to create an actual case, because of the uncertainty of the result combined with the potential chilling effect. I.e., if the act would be legal but for an unconstitutional criminal statute, the person is thus "chilled" from performing a legal act; but this being uncertain prior to judicial testing, the person must otherwise risk prison or otherwise suffer a life-changing prosecution." Ian Jeffrey Slavin
-----

As yet, we have not even touched upon the main issue: Is the Second Amendment a personal right and does it protect a persons right to own a handgun for personal protection?

That's not exactly the question the D.C. government asks, but it is the ruling handed down by the D.C. Circuit.

[Solitar]

Excerpt from
Cato Institute]Cato Institute release

Posted : Mon, 10 Sep 2007 17:39:34 GMT
Author : Cato Institute

WASHINGTON, Sept. 10 /PRNewswire-USNewswire/ -- Five Washington, D.C. residents today filed a petition in the U.S. Supreme Court asking the court to reinstate their legal case against the District's restrictive gun laws. The five citizens, Shelly Parker, Tom Palmer, Gillian St. Lawrence, Tracey Ambeau, and George Lyon, filed a federal court challenge to the District's gun ban in 2003 along with D.C. resident Dick Heller.
...
The five other plaintiffs besides Heller -- Parker, Palmer, St. Lawrence, Ambeau, and Lyon -- today filed their own petition asking the Supreme Court reinstate their case against the District and allow them to proceed along with Heller as they did in the lower courts for over four years. The Supreme Court will likely decide in late October whether to accept the appeals.

[Al Norris]

You may download/read the cross-petition here.

[Al Norris]

Reading (for the umpteenth time) D.C. petition for certiorari, I have got to say, they really don't want the Supreme Court to grant cert. They are simply going through the motions... And there are plenty of good political reasons for this.

So this raises the question: You have won your case at the Circuit Court level, but you actually want the case to go before the Supreme Court, in order to become the law of the land. So how do you do that when only the loser gets to petition for a writ of certiorari?

Why, you file a conditional cross-petition for a writ of certiorari, challenging the findings of standing issued by the Circuit Court!

QUESTION PRESENTED

Whether the court of appeals erred in holding, in
acknowledged conflict with this Court’s decisions in
Babbitt v. United Farm Workers National Union, 442 U.S.
289 (1979) and Virginia v. American Booksellers Ass’n, 484
U.S. 383 (1988), that cross-petitioners cannot maintain a
pre-enforcement constitutional challenge to a criminal law
without showing that they “have been singled out or
uniquely targeted by the D.C. government for prosecution.”
Petitioners’ Appendix (“Pet. App.”) at 7a.

It appears that the cross-petitioners are not just challenging the precedent of Seegars but also that of Navegear. If successful, this will bring the D.C. Circuit in line with not just the rest of the circuits, but the Supreme Court itself, as respects pre-enforcement challenges of criminal law.

The arguments are, to this layman, persausive:

I. On the Issue of Standing, the Opinion Below Admittedly Contradicts This Court’s Settled Precedent.

II. On the Issue of Standing, the Opinion Below Conflicts with Other Federal Courts of Appeals.

III. The D.C. Circuit’s Erroneous Standing Doctrine Renders the Declaratory Judgment Act a Dead Letter in the Nation’s Capital.

Argument starts on page 9 (as you read the PDF) and ends on page 23.

If cert is granted, then this issue will be decided along with the issue of the 2nd Amendment.

[Al Norris]

The news just keeps getting better and better!

Yesterday, 09/12/07, Clark Neily wrote in the DCGunCase Blog:

The cert petition filed by the District on September 4 was odd in a number of respects, including the extent to which it focused more on the supposed merits of maintaining D.C.’s gun ban than explaining why, from a broader jurisprudential standpoint, the Supreme Court should accept this particular case. Equally remarkable was D.C.’s attempt to reinvent the case as merely involving a handgun ban, rather than a ban on all functional firearms, which is the actual law. Thus, D.C. Code § 7-2507.02 specifically provides that all lawfully owned firearms in the home must be kept unloaded at all times and either disassembled or bound by a trigger lock. That’s a gun ban, every bit as much as it would be a book ban if the law said you can have a book in your home, but you have to keep it closed at all times.

Despite the fact that the text of the statute contains no exception for self-defense — and despite the fact that D.C. has a track record of prosecuting people who use unregistered pistols for self-defense — the District represented to the Supreme Court that it ”does not . . . construe this provision to prevent the use of a lawful firearm in self-defense.” Let’s say we take that statement at face value, as well as the one where D.C. told the Supreme Court that D.C. law ”authoriz[es] private possession of shotguns and rifles.” Surely that means functional shotguns and rifles, right? Because otherwise, how are citizens supposeed to use their shotgun or rifle in self-defense, as D.C. now claims § 7-2507.02 permits? Swing their unloaded shotgun or rifle like a baseball bat or throw it at their assailant? Or maybe victims are supposed to ask their would-be robber/rapist/murderer for a “time out” while they painstakingly reassemble and then load their shotgun or rifle in order to render it an actual, functional firearm.

Assuming D.C. really means what it said to the Supreme Court — namely, that D.C. only limits the ownership of handguns, not shotguns or rifles — and assuming further that D.C. recognizes that only functional firearms can be used for for self-defense, then it stands to reason that D.C. has no further intention of trying to defend D.C. Code § 7-2507.02. Accordingly, we filed this motion today asking the D.C. Circuit to lift the stay of its mandate and formally enjoin D.C. from enforcing the provisions of § 7-2507.02 requiring lawfully owned firearms in the home to be unloaded and either disassembled or trigger-locked at all times. We will post D.C.’s response when it arrives.

This is gamemanship by a master! If you read through the motion to remove the stay, you will find that this was hand delivered to the D.C. Attorney General. Not the usual method, but one calculated to evoke an immediate response.

That response came today. District Breifing: End of Rifle Rule Sought.

"It appears the city has conceded the unconstitutionality of the functional firearms ban," wrote Alan Gura, one of the attorneys.

Melissa Merz, a spokeswoman for the District attorney general, said that this is not the case and that the city would oppose Gura's motion.

The City has 10 days to file their response. Since that falls on a Saturday, they have until the 24th of September.

Under normal circumstances, when a challenger petitions for a writ of certiorari, the respondents will generally file a petition covering why cert. should not be granted. But in this case, Alan Gura & company want the Court to grant cert. So how does he get the necessary criteria to counter petition?

The motion to lift the stay was bait. It appears the City took the bait and once the motion to deny the lifting of the stay is filed, Gura, I feel sure, plans to counter petition the court for certiorari, and will spell out in great detail why the Court now needs to review this case. D.C. has just given them all the ammunition they need.

I believe the odds of the Court granting cert. just doubled.

[txgho1911]

I tried to read DC's petition. I could not complete this. I had to instead skim searching for relevancies. The side note that bastardized DC's position on functional rifles and shot guns just blew my mind.
I must agree this is sabotage. Missing it was written without order and as Heller's motion to drop the stay on the long arm ban ruling points out. Did not address every point in the circuit courts ruling. In total DC's petition is disgustingly insulting to my sense of reality and surely the SCOTUS's deserved respect. SCOTUS should hear the case just to correct DC's manners in this.

Turn the page and read the counter petition and dread of long dry reading disappears and is replaced with anticipating excitement. I found a note warning of Heller's new motion to the DC Court of Appeals. And I cannot describe how much easier reading this material has been.

DC got spanked with the ban overturned.
DC lied to get the order held for 90 and again for 30 more days.
They tripped all over the place to make an appeal and jinx it.
The mistakes they made in the petition are back haunting them in the counter appeal and now in Heller's motion for the stay on functional long gun ban. Mistakes and attitude are biting them on the tail in every way they cannot expect.

I'm lovin it.

[Mike40-11]

This is gamemanship by a master!

You ain't kiddin! Sure get the feeling that Gura and Co. have a much better handle on DC's current gun laws than the AG's office and know exaclty where they're going with all this.

[LoneStranger]

I wonder how the NRA's legal team is handling this? Seems that Gura & company are doing good.

[Al Norris]

The NRA can best help by simply leaving Gura & Possessky alone! If you know the history of this case, then you know why I say this.

[Wildalaska]

I'm lovin it.

me too

WildstrictscrutinyAlaska TM

[LoneStranger]

I am aware of the history of this case with regards to the NRA legal team and that is why I was wondering how they were handling it.

Must irk to realize that others are potentially on the verge of opening up the way for attacking gun control at its source.

[Al Norris]

I'll just bet it does... But you wouldn't know it from the way they are playing it! LOL!! Life's a gamble. and sometimes you have to take the risk. Pity the NRA thought it too risky.

In other news: D.C. has filed their Opposition to Motion to Lift Stay of Mandate. Gurra & Possessky say they will file their reply early next week.

I'm reading it now.

[publius42]

Well, we lost the motion to lift the long gun ban. I'm not lovin it.

http://dcguncase.com/blog/wp-content...-lift-stay.pdf

[RDak]

I wouldn't worry much Pub. I would think it's normal for the ban to remain while the appeal to the Supreme Court is active.

I was disgusted that the anti-gun DC politicians threw a curveball in their appeal where they say they allow rifles and shotguns. Hogwash! See how slippery and dishonest liberals can be? Disgusting!

I would be very surprised if the Supreme Court didn't reject that curveball argument quickly if they choose to hear the case.

I would also hope that the Justices would get a little angry with that curveball avenue taken by DC. This might become evident in questions to the attorneys during opening statements?

I'm excited about this case. We might finally get a ruling on whether the 2nd Amendment is an individual right. If the case isn't accepted for cert., than we still win IMHO.

My guess, the Supreme Court will overwhelmingly rule for an individual right. I only see the rabidly liberal Judge Ginsberg going for the collective right. There may be others but I ain't so sure about that. I honestly think it will go, at worst, 6 to 3 in our favor.

It is this possibility that caused me to vote for Republican Presidents for the last 35 years (i.e., to get conservative Justices on the Supreme Court). Why Bush, Sr. EVER picked Souter is beyond me. Who did Clinton pick - Ginsberg! But we got two GOOD ones with Bush, Jr.

What are your opinions?

[Wildalaska]

What are your opinions?

The 2nd Amendment will be found to be an individual right and laws involving that right will be subject to strict scrutiny. Under that analysis, the instant check and most provisions of the GCA will be upheld, the NFA registry will have to be reopened, non issue laws like DC will go, maybe issue laws like NYC will eventually get loosed by way of legislation, CCW laws will be upheld, Sarah Brady and her crew will be even more annoying and the L&P section of gunboards will wither away


WildjustcallmejeannedixonAlaska TM

[9mmHP]

More like Pollyanna. I hope you're right.

WildjustcallmejeannedixonAlaska

[Garand Illusion]

My concern ... Fenty may be an idiot, but I'm sure he'd getting plenty of advice from anti-gun non-idiots. If he's going to SCOTUS after telegraphing he might not, he probably thinks he'll get a win.

I'm trying to stay even on this, but I really fear what will happen if SCOTUS rules against the 2nd amendment.

The best option would be the 90 million or so US gun owners get energized and get the problems fixed. Either get legislation or a new amendment SCOTUS can't thumb its collective nose at.

I think it's more likely it will be the beginning of the end of private gun ownership in the US. Between UN treaties and etc. and the police slowly whittling away at the "molon labe" patriots over a period of decades we will slowly become like England.

It will take a long while, but it will happen.

I SURE hope I'm wrong about that!

[Al Norris]

This from the Circuits' Decision:

Originally Posted by D.C. Circuit

The denial of the gun license is significant; it constitutes an injury independent of the District’s prospective enforcement of its gun laws, and an injury to which the stringent requirements for pre-enforcement standing under Navegar and Seegars would not apply. Since D.C. Code §22-4504 (prohibition against carrying a pistol without a license) and D.C. Code §7-2507.02 (disassembly/trigger lock requirement) would amount to further conditions on the certificate Heller desires, Heller’s standing to pursue the license denial would subsume these other claims too.

is in direct opposition to this, from the denial to lift the stay:

Originally Posted by D.C. Circuit

But our opinion does not specifically address the constitutionality of that statute as it applies to shotguns and rifles because the only plaintiff we concluded had standing under our precedent was Dick Heller, who complained solely about the restrictions on ownership and use of a handgun.

You will excuse me if I say... What?!

If Heller subsumes the other claims, then Heller includes with his specific argument, all the arguments of the other apellents. So that whether or not the Court specificly ruled D.C. Code § 7-2507.02 unconstitutional as regards rifles or shotguns is irrelevant, as Heller subsumed the other claims and therefore such a ruling in general, applies to rifles, shotguns and handguns.

Now the Circuit can deny the motion on any number of grounds, but to try to rewrite its decision after the fact simply smacks of politicizing.

[9mmHP]

I would have to read back through all the case history to see the precise arguments, but presuming the other plaintiffs did not have the same injury, they would not be entitled to the same relief.

From Order denying motion:

At least one other plaintiff (Gillian St. Lawrence) did address Section 7-2507.02 as it applied to shotguns but she did not have the same injury as Heller – the denial of a license.

[Eghad]

The Circuit court probably realizes it has opened Pandora's box and wants to help limit the damage. Like WA said the effect could be a backhand slap to state and local ordinances that have do not issue laws or deny permits without a legal basis. If affirmed by the Supreme Court it will strike a blow to the anti-gun rhetoric. Hear Mrs. Brady screeching at the top of her lungs..lol.

I think it is a little late now