Federal appeals court overturns DC's "Good Reason" restriction

[Bartholomew Roberts]

Imagine if landmark rulings like Brown v. Board of Education were litigated in this manner. Outrageous, right?

Scalia is adjudicating, not litigating. And considering that the predecessor case for integration of public schools was Plessy v. Ferguson (1896), referencing Brown (1954) is probably not the example you were looking for.

Aside from the judicial malpractice you advocate in ruling on an argument not even raised by the plaintiff, Scalia also had to get five votes. We know acknowledging the Second as an individual right (at least in the Heller dissent) had broad support; but four justices were willing to make that individual right toothless by saying a security guard could not even keep an assembled .22LR revolver in his own home under that "right."

And by the time the McDonald decision rolled around the dissenters abandoned even accepting a toothless individual right as a compromise and insisted Heller was wrong about an individual right entirely.

Scalia was not El Supremo Commandante, at liberty to write whatever he wished and have it become law.

[JERRYS.]

bottom line, is the status quo going to be tied up in court for how long, or when do the permits start getting issued the proper way?

[Koda94]

what happens if say SCOTUS actually hears the case and rules against carry outside of the home? What are those odds?

[Al Norris]

First things first!

First, we have to wait and see if D.C. is going to file an appeal. If they do file, then we have to read the appeal to see what question(s) the appeal asks the SCOTUS to settle.

If D.C. does not appeal, then the case goes back to trial court for further proceedings.

Edited to correct myself: If D.C. does not appeal, then the District Courts will file permanent injunctions against enforcement of the "good reason" portion of the law.

[publius42]

My guess is that DC will appeal the permanent injunction issued by the District Court because they can't let this stand:

the legally decisive fact: the good-reason law is necessarily a total ban on most D.C. residents’ right to carry a gun in the face of ordinary self-defense needs, where these residents are no more dangerous with a gun than the next law-abiding citizen.

They will appeal to the en banc court and likely get a favorable ruling.

The SCOTUS will not grant cert, probably for the same reasons they didn't in Peruta. Concealed carry has never been protected and they're not going to start. Not even where there's an open carry ban.

I think they might hear a case on open carry bans.

[Bartholomew Roberts]

Lower courts are largely misinterpreting or outright ignoring SCOTUS rulings on the 2A - a point Scalia made several times before his death.

It might ultimately help us get better rulings if SCOTUS waits until some favorable lower court vacancies are filled before taking the next 2A case. In that instance, the timing for this case would be very fortunate.

[natman]

Originally Posted by Bartholomew Roberts

Lower courts are largely misinterpreting or outright ignoring SCOTUS rulings on the 2A - a point Scalia made several times before his death.

It might ultimately help us get better rulings if SCOTUS waits until some favorable lower court vacancies are filled before taking the next 2A case. In that instance, the timing for this case would be very fortunate.

Why should the Supreme Court have to wait for more favorable lower courts? It's called the SUPREME Court for a reason.

SCOTUS should start sending these lower court decisions that pervert / ignore Heller back for reconsideration without even hearing the case via a per curiam opinion, just as they did with Caetano v. Massachusetts in 2015. They simply can't allow lower courts to dump on Supreme Court decisions like this. Not if the word "Supreme" is going to mean anything.

[Bartholomew Roberts]

That's the same point Scalia, Thomas and now Gorsuch have argued in their rare dissents of denial. Evidently, that approach doesn't have four votes on SCOTUS. Let's hope that is because SCOTUS favors a soft touch; because the alternative isn't in our favor.

[62coltnavy]

My two cents: D.C. will undoubtedly seek en banc review. There is no way that the city council, which unanimously abhors guns and has enacted every conceivable barrier to issuance of permits of which it can conceive, and the city attorney who does as well, can let this decision go unchallenged. The City must necessarily elect to seek en banc review for two reasons: 1. It gives them two bites at the apple, as opposed to one if they go all in for Supreme Court review now; and 2. the Democratic Party appointed judges outnumber the Republican appointees 11-4 (and one of those 4 was the dissenter), which means that they are appealing to a panel that is likely favorably disposed to their "conundrum."

The odds are undeniable that a reversal is more likely than not. The real question is on what grounds the city law will be upheld (whether in whole or in part). I would not be surprised if they went the route of the Ninth Circuit en banc panel in Peruta v. Gore, and deny that there is any right to carry a concealed firearm outside the home, although to be honest, that decision was logically and legally dishonest, given the further fat that a) California bans open carry of firearms, loaded or not, in all incorporated cities and towns, and b) even if open carry were permitted, the California Gun Free School Zone Act (which is not being challenged in the pending open carry case) effectively prohibits open carry in the majority of all areas of every city. Alternately, and more likely, it will decline to address whether there is a right to carry outside the home, but will assume so for the purpose of review. And then it will apply the so-called "intermediate" review standard applied in all of the liberal circuits (2, 3, 4, and 9) that is nothing but rational basis review tied up in a pretty package, and uphold the restrictive law on the basis of the public interest in "public safety."

It appears that the city's petition for en banc is due in September (unless extended). since no mandate will issue until that process is complete, the City may elect to drag out the process as long as possible. Assuming that review is granted, the briefing will likely go at least through November or December, with argument at the very earliest sometime next spring or summer. Just like the city, since the status quo is maintained, the court is under no particular pressure to act expeditiously.

[armoredman]

So what is the time frame for the City requesting this review, and have they done so?

[dreaming]

Per an article from WAPO the district has 30 days from the date of the decision to request a rehearing en banc, which was what happened with Peruta in the 9th Circuit. If none is requested, the injunction goes into effect 7 days later.

This assumes that certiorari is not petitioned and that SCOTUS does not grant a stay pending the petition process.

[publius42]

So by August 24th then? A date I will always associate with hurricane Andrew.

There's no reason to appeal to SCOTUS. They have a better shot with the en banc circuit.

[zukiphile]

Originally Posted by Bartholomew Roberts

Scalia is adjudicating, not litigating. And considering that the predecessor case for integration of public schools was Plessy v. Ferguson (1896), referencing Brown (1954) is probably not the example you were looking for.

Aside from the judicial malpractice you advocate in ruling on an argument not even raised by the plaintiff, Scalia also had to get five votes. We know acknowledging the Second as an individual right (at least in the Heller dissent) had broad support; but four justices were willing to make that individual right toothless by saying a security guard could not even keep an assembled .22LR revolver in his own home under that "right."

And by the time the McDonald decision rolled around the dissenters abandoned even accepting a toothless individual right as a compromise and insisted Heller was wrong about an individual right entirely.

Scalia was not El Supremo Commandante, at liberty to write whatever he wished and have it become law.

Succinct, direct, colloquial, persuasive...extra-ordinarily well put.

I can blame no one for feeling frustration at the product of a complex government with cities and lower courts and other Sup Ct justices who fail to embrace or actively oppose the right. Placing the blame on the man who wrote the Heller majority opinion is an error.

[publius42]

Per an article from WAPO the district has 30 days from the date of the decision to request a rehearing en banc

So that would be by tomorrow. Can they file for an extension on that deadline? The pattern since 2008 has been to drag things out as long as possible so I'd expect as many extensions as are allowed, if any.

[maestro pistolero]

Per Esqappellate at Maryland Shooters, they have until tonight if they file electronically. Posted here:
https://www.mdshooters.com/showthrea...20#post4908320

[The_Jerkman]

Already filed

Sent from my SM-G935V using Tapatalk

[armoredman]

Oh, they did get around to filing it? I didn't think they'd let that one slide.

[Al Norris]

Here is the request for en banc hearing:

[Luger_carbine]

Does each Circuit have their own rules regarding time limits for how long it takes to accept or deny an en banc rehearing?

Like a lot of people, I'm trying to figure out how long we have to wait for the next step to be determined...

[publius42]

I got around to looking at the dissenting opinion from last month.

Wanted a look at what the eventual en banc opinion will look like.

The fundamental idea seems to be that, since the "core right" is "most acute" within the home per Heller, any "less acute" right that might exist outside the home must fall outside "the core."

But self-defense was announced as the core purpose of the right to keep and bear arms, not the "core right" itself. I think that purpose exists outside the home.

If it does not, then what purpose might the second amendment serve outside the home? She offered none.

[Aguila Blanca]

It's just shameful when judges are so intent on their agenda that they overlook the clear language of the law itself. The words "in the home" and "self defense" do not appear anywhere in any version of the Second Amendment that I've seen (irrespective of meandering commas).

[johnm1]

Originally Posted by Aguila Blanca

It's just shameful when judges are so intent on their agenda that they overlook the clear language of the law itself. The words "in the home" and "self defense" do not appear anywhere in any version of the Second Amendment that I've seen (irrespective of meandering commas).

Question, in the lower courts are we now adjudicating the original text of the second amendment or, as I suspect, the modified text of both the original text as it was clarified (or not clarified) by the USSC rulings since?

So in AB's statement above, does it matter anymore what the original text says? I can think of a million follow up questions that is the onion of the basic question of USSC rulings. Peel off one layer of skin and have a new onion to start all over with.

I rarely post in L&CR because I'm just not read well enough to truly understand all of the ins and outs of how the system really works. But I'm curious.

[Glenn E. Meyer]

It's just shameful when judges are so intent on their agenda that they overlook the clear language of the law itself.

As I said before from reading some books on higher level judicial decision making, the judges vote their politics and then mine the past decisions and literature to support their politics.

The idea of them 'following the law', 'intent', whatever isn't driving most decision processes. True on both sides of the fence.

[Luger_carbine]

I got around to looking at the dissenting opinion from last month.

Wanted a look at what the eventual en banc opinion will look like.

The fundamental idea seems to be that, since the "core right" is "most acute" within the home per Heller, any "less acute" right that might exist outside the home must fall outside "the core."

But self-defense was announced as the core purpose of the right to keep and bear arms, not the "core right" itself. I think that purpose exists outside the home.

If it does not, then what purpose might the second amendment serve outside the home? She offered none.

- publius42 -

Well I hope the judges are persuaded by Judge Posner's opinion in Moore v Madigan

To confine the right to be armed to the home is to divorce the Second Amendment from the right of self-defense described in Heller and McDonald this case, like Heller and McDonald is just about self-defense.

The Supreme Court has decided that the amendment confers a right to bear arms for self-defense, which is as important outside the home as inside.

What does it mean to bear arms if there's no right to carry arms in a public place?
You don't bear arms in your house, you don't march around with a gun over your shoulder right?

- Judge Richard Posner -

[Aguila Blanca]

Originally Posted by johnm1

Question, in the lower courts are we now adjudicating the original text of the second amendment or, as I suspect, the modified text of both the original text as it was clarified (or not clarified) by the USSC rulings since?

So in AB's statement above, does it matter anymore what the original text says? I can think of a million follow up questions that is the onion of the basic question of USSC rulings. Peel off one layer of skin and have a new onion to start all over with.

It should matter what the original text said, because when any case comes before a court it's still the same text of the same law (in this case, the Second Amendment). As Glenn E. Meyer wrote in post #48, "... the judges vote their politics and then mine the past decisions and literature to support their politics." Which is how we get a bunch of circuit court decisions purportedly based on (and citing) Heller that say things like "the Second Amendment doesn't apply outside the home" or "the Second Amendment doesn't apply to scary looking guns copied after military-style weapons."

The Heller decision did NOT in any way limit the right of self defense to inside the home. The case was specifically about the constitutionality of a Washington, DC, regulation which said that it was not legal to keep a functional firearm within the home. The question before the Supreme Court was: Is that regulation legal under the Constitution? And, despite the length of Justice Scalia's majority decision, that's really ALL the court ruled on in that case. Lower court justices who are using [dare I say "twisting"?] it to say or mean anything beyond that are not deciding the law, they are advancing their agenda(s).

Supreme Court decisions are binding as precedent, but only when the question in a new case has been addressed by a previous Supreme Court decision. Just about all the 2A cases since Heller that cite Heller have not been about the question of a law prohibting the keeping of a functional firearm in the home, so in the strictest sense Heller doesn't apply as precedent, only as guidance. And they are abusing the guidance shamefully.