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DC Circuit denies en banc rehearing for Parker case:

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."

Related Posts (on one page):

  1. The Second Amendment in the Supreme Court:
  2. DC Circuit denies en banc rehearing for Parker case:
Houston Lawyer:
It will be interesting to see whether DC will appeal to the Supreme Court. I guess it depends upon how they see their odds. Wouldn't it be worse for gun control advocates for the Supreme Court to uphold this ruling?
5.8.2007 1:49pm
Guest Poster:
Well I guess the breakup was definitely down partisan lines.

Randolph: Bush 41
Rogers:Clinton
Tatel:Clinton
Garland:Clinton


We'll see if D.C. will request Cert.
5.8.2007 1:51pm
Oren (mail):
Even if this particular one doesn't go the supremes they will have to deal with it sooner rather than later. The next move (assuming DC doesn't appeal) would be to file suit against a similar prohibition elsewhere in a circuit that has consistently ruled against the individual rights interpretation. Unless the circuit overrules itself (unlikely), the Supreme Court would be hard pressed to deny cert in the case of a circuit split.
5.8.2007 1:55pm
Alan Gura:
Interesting to note that Randolph also voted to rehear Seegars, where the gun ban survived because it was not reached on standing.

The only unifying logic of those two votes, as far as I can see, is that Judge Randolph wanted to reach the standing problems posed by Navegar. I would not interpret his vote as necessarily opposed to the panel's opinion on the merits.
5.8.2007 1:57pm
Guest Poster:

Even if this particular one doesn't go the supremes they will have to deal with it sooner rather than later. The next move (assuming DC doesn't appeal) would be to file suit against a similar prohibition elsewhere in a circuit that has consistently ruled against the individual rights interpretation. Unless the circuit overrules itself (unlikely), the Supreme Court would be hard pressed to deny cert in the case of a circuit split.



Wouldn't it be better to press for another case in the 5'th to get them to explicitly agree with Parker?
5.8.2007 1:58pm
Anonymous2124:
I'm confused. Henderson dissented but then does not vote for rehearing en banc? What's the logic there?
5.8.2007 2:00pm
Chris Pugrud (mail) (www):
What can we expect for an ETA of the appeal to the Supreme Court?

I'd be really surprised to see the District drop this case and not appeal it.

Good news overall, I hope, for the restoration of the second amendment.
5.8.2007 2:10pm
Oren (mail):

Wouldn't it be better to press for another case in the 5'th to get them to explicitly agree with Parker?


Supposing they did and then the 5th agreed with parker; logically the defendant in that case would not seek cert, hoping to avoid have the supreme court validate that claim.

In order to "force" the supreme to rule on the issue, you have to be on the losing side of the appeal.
5.8.2007 2:14pm
Brett Bellmore:

Henderson dissented but then does not vote for rehearing en banc? What's the logic there?


Maybe, after talking it over with the other judges, he thought the rehearing would just uphold the decision he'd dissented from?
5.8.2007 2:18pm
anonVCfan:
1. Judge Henderson is a she, not a he.

2. On a court with only three active judges appointed by Democrats, it's hard to characterize any split as "definitely down partisan lines." Although all 3 Clinton judges voted for rehearing en banc, Judge Randolph voted with them, and we know that Judge Henderson thinks that the panel decision was wrong. As some of the bloggers on this site and Balkinization have noted, the Second Amendment isn't a purely liberal/conservative issue, and it's silly to assume that the D.C. Circuit judges merely voted their policy preferences without giving the issue any serious thought.

3. As Mr. Bellmore notes, a vote for or against rehearing en banc often has to do with things other than the merits of the case.
5.8.2007 2:30pm
volokh watcher (mail):
The Supreme Court, when this issue does arrive, will have to confront the very interesting goose/gander issue -- discussed here by Prof Sandy Levinson. That is, if the Second Amendment's words mean what they appear to say (and protect the right of the individual to own firearms), then similar language in other amendments is good enough to, well, mean what it says.

Such a radical notion would, or maybe should, start undoing the last 38 years of statist drift in the SCOTUS's reading of the Bill of Rights.

For example, there are four clear votes on SCOTUS for the proposition that a search warrant that lists nothing to be seized, let alone a particularized list, complies with the Fourth Amendment . . . based on the judicially-invented "good faith" execption (which goes along with the other 27 or so judicially invented exceptions to that amendment). O'Connor was in the majority in that case, Groh v. Ramirez, 540 U.S. 551 (2004).

Would an individualist-rights view of the 2nd Amendment give a toe-hold to those who favor a far lest statist view of the Bill of Rights?

Will the demise of Roe/Casey point, ironically, to a more individual-friendly view of the first 9 amendments?

Doubtful. Possible. But doubtful.
5.8.2007 2:42pm
Brett Bellmore:
Oops!

At any rate, the thin edge of the wedge is finally in. If D.C. doesn't appeal, more cases in that circuit with different facts will test just to what extent the circuit is willing to uphold the 2nd. While this case may given the 5th circuit the courage to apply to a new case that strict scrutiny they claimed they applied in the Emerson case, and this time strike down a law.

At some point, we'll reach the Supreme court.
5.8.2007 2:45pm
Mark Seecof (mail):
In interest of the nationwide anti-gun conspiracy, to which they profess complete loyalty, D.C. local elected officials can hardly afford to drop their appeals of Parker. If they fail to appeal, Parker will be the controlling precedent on "gun control" in the D.C. Circuit.

As I read somewhere a few weeks ago (I regret my failure of memory and Googling skill prevents me giving proper credit here), since the Federal government is effectively "domiciled" in D.C. (anyone can sue the U.S. in D.C. even if they're aggrieved over Federal action somewhere else), should Parker go unappealed, future (if not existing) Federal gun control measures might be successfully attacked for violating Parker's reading of the Second Amendment (which would bind U.S. District and special courts in D.C. and would even, in theory, bind future D.C. Circuit panels).

Also, let me urge our gracious host and readers to look at David Hardy's take on Parker's chances before the Supreme Court. I for one hope D.C. appeals Parker and the Supreme Court grants certiorari, because the next cert-worthy case will feature much less appealing facts.
5.8.2007 5:05pm
Respondent (mail):
Volokh Watcher,
Unfortunately, the dissenters in Groh (+Alito) seem to be of the view that a searches that certainly violate the fourth amendment need not have any effective remedy. See Hudson v. Michigan.
5.8.2007 7:56pm
Respondent (mail):
As I have noted before, a cert grant is a lose-lose situation for supporters of gun rights. Gun rights have been doning fairly well in this country without much help from the courts, largely because advocates' claims of a constitutional individual right to bare arms are considered plausibel by a public that hasn't heard any significant court decisions in contradiction. That of course would change should the Supreme Court rule against an individual right to bare arms. And if the Supreme Court takes the country in a direction that recognizes the right to be individual, gun rights supporters still lose because the right is almost surely to be seriously limited by judicial interpetation more than so desired by supporters of gun rights, who will no longer be able to convince the public to further liberalize gun laws on the grounds that the old ones are unconstitutional. A few anti-gun states gun laws will have to be relaxed, but the major steady push in favor of gun rights across the nation is likely to be reversed, and, much like the effect of the federalization of the bill of rights (which I happen to support), within a couple of decades most gun laws across the nation will probably conform to little more than the Supreme Court mandated minimum.
5.8.2007 8:12pm
Dilan Esper (mail) (www):
DC will petition for cert., and it isn't because of any "loyalty to the national anti-gun conspiracy". They will appeal because the gun ban is very popular in DC, and even among gun rights supporters there, home rule is very popular. They don't like seeing their laws struck down by the federal government any more than they like Congress' constant meddling.

That said, I agree with the predictions here-- if they petition for cert., cert. is likely to be granted and Parker will be affirmed. The collective rights view of the Second Amendment has always been too cute by half to survive serious scrutiny.
5.8.2007 9:06pm
Carolina:
As best as I can recall, Judge Henderson's "DC is not a state" dissent in Parker was not well received. I thought it was pretty goofy myself.

Perhaps the criticism she received caused her to reconsider, and thus vote against rehearing en banc.
5.8.2007 10:05pm
TDPerkins (mail):
Gun rights have been doning fairly well in this country without much help from the courts, largely because advocates' claims of a constitutional individual right to bare arms are considered plausibel by a public that hasn't heard any significant court decisions in contradiction. That of course would change should the Supreme Court rule against an individual right to bare arms.


I do not believe that any person with a conscience will have their views swayed by any decision the SCOTUS could produce, most especially the views of the pro-2nd lobbying groups and their supporters, who have been making progress in the popularly perceived lack of support in the courts for a valid interpretation of the 2nd.

if the Supreme Court takes the country in a direction that recognizes the right to be individual, gun rights supporters still lose because the right is almost surely to be seriously limited by judicial interpetation more than so desired by supporters of gun rights, who will no longer be able to convince the public to further liberalize gun laws on the grounds that the old ones are unconstitutional.


Judicial interpretation cannot/cannot validly create law, legislatures do that. The pro-gun groups have been making good progress in the legislatures, and their is no reason to think thay will not continue to do so, their views are the popular ones, and lawyers [shakespearean] like being elected. That won't change. In fact, because so many gun right's supporters are already convinced of the unconstitutionality of the gun laws, they will accept nothing less than the full recognition of the right the 2nd protects, any less comprehensive decision by the SCOTUS notwithstanding.

A few anti-gun states gun laws will have to be relaxed, but the major steady push in favor of gun rights across the nation is likely to be reversed,


Why. Who will listen to the nine robes if they lie, who does not already listen when they lie?

much like the effect of the federalization of the bill of rights (which I happen to support), within a couple of decades most gun laws across the nation will probably conform to little more than the Supreme Court mandated minimum.
5.9.2007 7:18am
TDPerkins (mail):
whups accidental posting sorry

much like the effect of the federalization of the bill of rights (which I happen to support), within a couple of decades most gun laws across the nation will probably conform to little more than the Supreme Court mandated minimum.


I know of no reason the legislatures should suddenly find it to be appropriate that they no longer be elected, such that they pass such laws.

And I suppose you are aware that your argument is also one that works (well as poorly as it does) if the 1st, 4th, 5th, etc., are interposed for the 2nd in your arguments.

Do you propose instead that we simply do away with the courts?

Is is it the BOR you are opposed to?

Yours, TDP, ml, msl, &pfpp
5.9.2007 7:21am