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

[Luger_carbine]

Does anyone know the durations associated with the en banc petition process for the United States Court of Appeals for the District of Columbia Circuit?

Like: "Judges have n number of days to either do nothing, 'stop the clock', ask the original panel if they will re-hear the case or call for an en banc vote" ?

[KyJim]

The short answer is that there is no time limit to decide whether a petition for rehearing or rehearing en banc will be granted. For further info, continue reading.

A petition for rehearing en banc operates both as a request for the panel to re-hear the case and for en banc rehearing (often called a suggestion for rehearing en banc). Under Federal Rule of Appellate Practice 35, no response is allowed unless ordered by the court. In turn, D.C. Circuit Rule 35 says there will be no significant modification in the judgment/opinion unless the court orders a response to the petition for rehearing.

The D.C. Circuit's Handbook of Practice and Internal Procedure states explains that a vote sheet is sent first to see if any judge wants a rehearing en banc and, "If no judge asks for a vote within a specified time, and none requests more time to consider the matter, the Clerk will enter an order denying the petition." Ibid at 58 (emphasis added). I do not see any guidelines for what the "specified time" should be. I suspect this is variable depending upon the complexity of the case, court schedule, and other factors.

If a judge calls for a vote, the court will evidently sometimes order a response at this point, but not all of the time:

If a judge calls for a vote on the petition for rehearing en banc, the Clerk’s Office transmits electronically to the full Court a new vote sheet, along with any response to the petition ordered by the Court. The
question now is whether there should be a rehearing en banc.

Ibid.

[Al Norris]

Rule 35, FRAP:

(b) Petition for Hearing or Rehearing En Banc. A party may petition for a hearing or rehearing en banc.

(1) The petition must begin with a statement that either:

(A) the panel decision conflicts with a decision of the United States Supreme Court or of the court to which the petition is addressed (with citation to the conflicting case or cases) and consideration by the full court is therefore necessary to secure and maintain uniformity of the court's decisions; or

(B) the proceeding involves one or more questions of exceptional importance, each of which must be concisely stated; for example, a petition may assert that a proceeding presents a question of exceptional importance if it involves an issue on which the panel decision conflicts with the authoritative decisions of other United States Courts of Appeals that have addressed the issue.

An en banc rehearing will be granted, based on the highlighted section above.

[raimius]

I really hope we can get another originalist/textualist on the court in the near future. The Heller 5-4 has not really changed much with Gorsuch taking Scalia's seat. It's a VERY precarious position (which I'd bet is why we haven't seen much movement since McDonald).

...just wish some of the lower courts would have the guts to rule on the text and historical meaning, rather than personal opinions.

[ATN082268]

Originally Posted by raimius

I really hope we can get another originalist/textualist on the court in the near future. The Heller 5-4 has not really changed much with Gorsuch taking Scalia's seat. It's a VERY precarious position (which I'd bet is why we haven't seen much movement since McDonald).

...just wish some of the lower courts would have the guts to rule on the text and historical meaning, rather than personal opinions.

It's pretty bad when you have to wish the courts should generally function like they should...

[Al Norris]

It looks like the DC Circuit didn't waste a lot of time. Plaintiffs in both Grace and Wrenn have 15 days to file briefs.

Then a couple of hours later, Everytown filed an amicus brief.

Looks like the en banc is on (or the orders to file briefs wouldn't have gone out).

[armoredman]

*sigh* Of course. DC Circuit is packed with antis, isn't it?

[Armed_Chicagoan]

Now we'll get to see where Garland stands, won't we?

[TDL]

It looks like the DC Circuit didn't waste a lot of time. Plaintiffs in both Grace and Wrenn have 15 days to file briefs.

Then a couple of hours later, Everytown filed an amicus brief.

Looks like the en banc is on (or the orders to file briefs wouldn't have gone out).

Thanks. IE shall issue is dead for DC given the makeup of the full court, right?

[Armed_Chicagoan]

En banc hearing denied, the decision stands!

http://www.prnewswire.com/news-relea...300528007.html

[Armed_Chicagoan]

And the WaPo story: https://www.washingtonpost.com/local...efa_story.html

The Circuit Court order indicates that none of the court’s 10 judges who reviewed the city’s petition asked for a vote on the request for rehearing.

[Metal god]

Wow didn't see that coming . After are Peruta en-banc disaster here in CA I thought this case was doomed . Nice to see there is hope out there .

Do you think this goes to the supreme court or the district lets it go ? My thinking is CA , NY and the like are asking them to drop the case .

Has the 9th circuit or any other said good cause/reason is constitutional ? Do we have a split for the SCOTUS to resolve ?

[armoredman]

Holy...I gotta go buy a lottery ticket now.

So, legal eagles, what happens next? They have seven days to appeal - so if they do they set up a huge potential win/loss...we'll have the same gamble as Heller with the same odds, or am I wrong?
If they leave it alone they "lose" DC while "winning" everywhere else for now...but could they stand that loss in such a symbolically important place?
Oh, the fear and loathing that must permeate the air at Brady and Everytown right now...

[Glenn E. Meyer]

So if it went to the full SCOTUS and they found against such restrictions, would that wipe out the NY, etc. laws demanding such?

That would be sweet if it happened. However, the pressure of DC just to eat it and save the evil other states is interesting. If SCOTUS decides to just let it stay in DC because most of them don't want to expand gun rights and don't care about the split, that's possible. Or if five of them (assume Kennedy) want to shut down expanding gun rights - they take it? Then find for DC.

Oy!

[maestro pistolero]

Oy, indeed. It probably couldn't be heard until next term. But we need at least one more favorable SCOTUS appointee confirmed before this goes up. WAY too much at stake.

[62coltnavy]

"Do you think this goes to the supreme court or the district lets it go ? My thinking is CA , NY and the like are asking them to drop the case ."

One of these days I will figure out how to quote a post, but until then...

Metal god has a valid point. A Supreme Court affirmance of this decision means the end of "may issue" in all states that maintain such systems, which include CA, NY, NJ, HI and MD (and probably a couple of others I've missed. Is Ct may issue? MA is kind of hinky as I understand it.)

The Ninth Circuit, to respond to your question, held in its en banc opinion Peruta v. Gore (cert. den.) that there is NO right to concealed carry of a firearm, and that therefore the "may issue" law essentially raised no constitutional issue.
The Court refused to answer whether that means that there is necessarily a right to open carry firearms under the Second Amendment. Open carry, by the way, is illegal in most circumstances in ALL incorporated areas of the state, i.e., all cities and towns, to say nothing of the fact that, except for security guards, there is no open carry permit that would avoid the 1000' exclusion zone of the California Gun Free School Zone Act. To put it bluntly, except while hunting or fishing or hiking in a national or state forest or park, there is no RIGHT to bear arms in the State. A CCW is NOT an exercise of a 2A RIGHT, it is the exercise of a privilege accorded by the State. So yeah, a Supreme Court affirmance of the Wrenn decision would completely overturn California law--which no doubt, California would hate to have happen. Appealing therefore carries grave risk that do not come into effect as long as this remains a Circuit court case that applies solely to D.C.

[rwilson452]

A though hit me late last night. Is there anyone on that court on Trump's A list for the USSC?

[62coltnavy]

Oh, I just wanted to add that I was dead bang wrong about the en banc petition. I am flabbergasted. I just could not conceive that a panel dominated by judges appointed by Democratic presidents, and presumably liberals, would allow this decision to stand. I would love to know what they were thinking, individually or in private conversations, that led them to decline review.m Maybe just punting, knowing that whatever they decided a petition for cert. was inevitable? Who knows.

[armoredman]

Threw me for a loop too - what do they know we don't?

[steve4102]

Originally Posted by 62coltnavy

. I just could not conceive that a panel dominated by judges appointed by Democratic presidents, and presumably liberals, would allow this decision to stand. I would love to know what they were thinking, individually or in private conversations, that led them to decline review.m Maybe just punting, knowing that whatever they decided a petition for cert. was inevitable?

Originally Posted by armoredman

Threw me for a loop too - what do they know we don't?

How about this?

They know, or are relatively certain that this will be appealed to the Supreme Court, granted Cert. and ruled 4-5, making "May Issue" the law of the land all across America not just a select few states.

[Aguila Blanca]

Originally Posted by armoredman

Threw me for a loop too - what do they know we don't?

What do they know?

Maybe something more about this: http://www.foxnews.com/politics/2017...eculation.html

[Glenn E. Meyer]

May issue wouldn't be the law of the land if you mean all states have to adopt it. However, finding it to be constitutional is blow to the RKBA and we are better off with NO decision. That has always been a threat with SCOTUS cases. Folks were worried that Heller would find no right to keep and bear arms. It was close.

With Alito and Roberts not being strong, they could easily give us a defeat or 6 to 3.

In the Fox story - I wish some folks would be more interested in the RKBA then birthday cakes - enough said on that!

[Bartholomew Roberts]

I don't think Alito is going to be our weak link. But at this point, the only Justice from the Heller majority who we can rely on for a strong Second Amendment interpretation is Thomas. The rest support an individual right to bear arms that is incorporated to the states; but are a bit more vague on whether semi-automatics or carry outside the home is protected. I suspect at least one of the Heller/McDonald majority is weak on those areas.

[Aguila Blanca]

Originally Posted by Glenn E. Meyer

With Alito and Roberts not being strong, they could easily give us a defeat or 6 to 3.

Both Alito and Roberts have been disappointments. IMHO, much more so Alito. I expected Roberts to be a politician first and a justice second.

[TDL]

At this point it is just "sources say" but a couple of news outlets are reporting Racine has decided not to appeal to SCOTUS:

http://www.nbcwashington.com/news/lo...449515203.html

D.C. Attorney General Karl Racine has decided not to appeal a federal appeals ruling that the city's restrictions on concealed carry permits violate residents' Second Amendment rights, multiple sources familiar with the decision tell News4.

I think this is a classic example of not a clean case, given DC specifically saying its goal with its law was to limit the numbers of CCL, ie conceptually like rationing a right with the per se aim of reducing the exercise of the right. Ie as if a jurisdiction in debating promulgation f codes related to freedom of assembly, or court defense of such code, had outright and explicitly said its goal was to reduce the ability of the otherwise qualified population to avail themselves of that right.

There is also the issue this 25:1 criminal gun owners to legal gun owners in DC. DC has, according to gun control adovacy groups that had been cited by DC or amicus, 25.6% gun ownership rate. With 6,000 gun owners registered, this means 170,000 illegal (mostly felony) gun owners in a population of 800,000. Since DC had already cited sources that used those numbers as a basis for calculations on gun ownership rates and crime, it would have had to acknowledge that perhaps up tot 1/4 of DC residents are weapons criminals, and that 6,000 residential/business licensees that constitute the main pool from which the carry permits would be drawn.

I am not aware of anywhere else the country where the gun control lobby data itself says so definitively there is a 25:1 ratio of illegal gun owners to legal ones.

Thirdly perhaps they did the calculus on how much Gura could delay, surmised he could push it to 2018-19, and know more than is public about Kennedy's plans.

DC perhaps was uniquely exposed in ways Peruta etc are not.