DC Circuit denies en banc rehearing for Parker case

http://volokh.com/posts/1178641972.shtml ^ | 5/8/07

[ozoneliar]

In the Parker case, a 2-1 majority of the D.C. Circuit found that the DC city council's prohibition on handguns, and its ban on using any firearm for lawful self-defense, were violations of the Second Amendment. Today, the full Circuit denied the DC government's petition for a rehearing en banc.

The decision states: "Appellees' petition for rehearing en banc and the response thereto were circulated to the full court, and a vote was requested. Thereafter, a majority of the judges eligible to participate did not vote in favor of the petition. Upon consideration of the foregoing and appellees' Fed. R. App. P. 28(j) letter, it is ORDERED that the petition be denied."

A footnote to the order states: "Circuit Judges Randolph, Rogers, Tatel, and Garland would grant the petition for rehearing en banc." The following is the list of judges who voted on the petition, with affirmtive votes marked by an asterisk: "Ginsburg (Chief Judge), Sentelle, Henderson, Randolph,* Rogers,* Tatel,* Garland,* Brown, Griffith, and Kavanaugh."

[RexBeach]

Same deal in Boston. However, I think the Boston cops know their way around their city better than the DC cops do here.

Reminds me of the times my car was broken into(six times, and during the day) right under the noses of the Capitol Hill Police on Beacon Street. Now there’s a crackerjack police force for you!

[Lonesome in Massachussets]

You’re lucky. Boston Kops were actually in kahoots with a car theft ring a few years ago. The flatfoots would call in tow operators to tow late model expensive cars (regardless of whether or not they were legally parked) and turn them over to chop shops and export rings.

A couple of Revere cops looted a CVS after someone else had broked in. The cops in Everett (including a LT) were in kahoots with a bank robbery ring. When the bank alarm sounded in the Everett Police station, they ignored it, knowing their guys were looting the vault.

[Carry_Okie]

Where does the appeal process go after this?

Appeals? We don't need no steenking appeals.

[Dead Corpse]

w00t!

Now let's hope these idiots are just smart enough to press the issue for the SCOTUS to hear.

[Redbob]

"But, doesn’t the Supreme Court need to hear the case to overturn the precedent set in a 1930s era case that individuals do not have an absolute right to have a firearm?"

There is no such case.

If you were thinking of "Miller," you should read it.
In that case, the Justices made it clear that Miller was not entitled to his sawed-off shotgun BECAUSE it was not a military weapon - and Miller wasn't represented to argue that point.

[Labyrinthos]

As to the second, it’s a much-better-than-usual shot that SCOTUS will grant cert, because the DC decision created a “circuit split.” SCOTUS correctly abhors a circuit split because it means, as a practical matter, that federal law means one thing in ONE part of the country and a different thing in another.

I predict that either the SCOTUS will not take the case or it will take the case, but overturn on the standing issue rather than addressing the arguments on the merits. First, there really isn't a direct conflict between Circuits because Parker involves Federal regulation, whereas the other cases (except for Miller, if I recall correctly) involve State and local regulation. Until such time as the SCOTUS decides whether the 2nd Amendment even applies to the states through the 14th Amendment, Parker is of little relevance to the "conflicting" cases in the other circuits.

Second, if I recall correctly, the threshold issues in Parker concern the plaintiff's standing to sue and whether the case presents a justicable controversy. The SCOTUS can easily sidestep the 2nd Amendment issues by reversing the Circuit Court and ruling against the plaintiff on these threshold issues, which would result in the dismissal of the lawsuit and prohibit other courts and litigants from citing Roger as binding precedent.

[longtermmemmory]

Do not get tooo excited, denial of en banc is very routine.

Same for motion for rehearings or motions for summary judgement.

It is just a matter of routine to eliminate all avenues and open the appeal doors.

In fact this is more an appeal set up so don’t celebrate. DC municipals are going to appeal this.

[Parley Baer]

Hehehehe. Two out of three Circuit Courts agree on the definition of the 2nd Admendment. IMHO that is a majority. Only the much overturned Ninth Court is in the minority.

The 2nd admendment question needs to be asked of the Al-dimocRATS that are running for president. That would be to tough of a question.

[Little Bill]

I was renewing my pistol permit in Lynn, a few years ago, and the cops refused to recognize a Capitol Policeman as anything but a security guard. He was pissed that that was how it was listed on his permit.

[misterrob]

These liberals are beyond me. They want to talk about the ERA yet deny women the chance to have equality when it comes to some dirtbag trying to rape and murder them.

[robertpaulsen]

"Two out of three Circuit Courts agree"

Two out of twelve courts. And there have probably been 40 cases -- two of the 40 have been ruled an individual right.

[RetiredArmy]

One for Freedom!

[Hazcat]

Is there a better source to this?

[ExSoldier]

If the SCOTUS did take the Parker case, I'm still a little bit leery of being backstabbed by one or more of the new members of the court. Remember Souter was billed as a "conservative." I think I'd just as soon get us another Scalia on the High Court before we have to decide a 2nd Amendment case. Call me paranoid (no don't!), but I dunno that I want to risk the whole ball of wax just now.

[Hazcat]

I need a better source than a web blog that doesn’t list their source.

[American Quilter]

Excellent!

[appeal2]

They have to vote 5-4 to take the case. A tie in Scotus is an affirmance. Lets hope that someone is out ill when the vote comes.

[umgud]

If SCOTUS does hear this case and rule in our favor, the next this we’ll see is a whole bunch of cases whre someone then has to decide what “infringement” means.

[Labyrinthos]

I don’t think you are paranoid at all, which is why I think that the SCOTUS, if it even takes the case, would rather reverse on the standing issue than reverse on the merits of the 2nd Amendment issue. IIRC, four justices need to agree to grant certiorari. I assume the four libs will vote to hear the case because overturning Parker means more to them than affirming Parker means to us. After the case is briefed and argued the justices will take a poll. Kennedy seems the most likely to side with Ginsburg et al. and vote to reverse, whereas Roberts, Scalia, Thomas, and Alito will probably vote to affirm. Rather than allowing a vote to reverse on the merits, however, which would result in a decision that has precedential value going forward, Roberts et al., knowing that his side is about to lose, convinces Kennedy to reverse on the standing issue rather than the merits, which renders the Circuit Courts decision a nullity.

[saganite]

On to the Supreme court then! This will be a history making case either way. Where does Kennedy stand on the 2nd?