Parker Heads to SCOTUS

      (Manassas, VA, July 17, 2007) The Mayor of Washington DC, Adrian Fenty, yesterday announced that the District is indeed going to appeal the “Parker” case to the Supreme Court of the United States (SCOTUS).  The original deadline for filing an appeal was August 7, but the District has requested, and will likely be granted, a 30 day extension for preparing their appeal.

      There has been much speculation as the August deadline has drawn closer that DC would choose not to appeal the case for fear of strengthening the precedent set when the Federal Court of Appeals for the D.C. Circuit ruled that the District’s long-standing gun prohibition laws were a violation of individual rights protected

 

      (Manassas, VA, July 17, 2007) The Mayor of Washington DC, Adrian Fenty, yesterday announced that the District is indeed going to appeal the “Parker” case to the Supreme Court of the United States (SCOTUS).  The original deadline for filing an appeal was August 7, but the District has requested, and will likely be granted, a 30 day extension for preparing their appeal.

      There has been much speculation as the August deadline has drawn closer that DC would choose not to appeal the case for fear of strengthening the precedent set when the Federal Court of Appeals for the D.C. Circuit ruled that the District’s long-standing gun prohibition laws were a violation of individual rights protected under the Second Amendment of the U.S. Constitution.

      By pressing forward with the appeal, D.C. opens the door for the Supreme Court to finally make a definitive ruling on a purely Second Amendment case – something the Court has avoided for almost three quarters of a century. 

      After lawyers for the District officially file their appeal, there will be only three possible outcomes for the case, and two of those possibilities are favorable to Second Amendment advocates.  If the Court refuses to hear the case the Circuit Court ruling stands and is reinforced – Gun Rights Win.  If the Court hears the case and rules in favor of the plaintiffs, declaring the Second Amendment to refer to individual rights – Gun Rights Win.  If the Court hears the case and rule that the Second Amendment refers only to a collective right – Gun Rights Lose, but it’s not as bad as you might think.  Read on.

      The specific language of the Circuit Court ruling and the apparent strategy of the lawyers for the District makes it virtually impossible for the Court to deliver an opinion that fails to specifically address the two key questions of the Second Amendment debate:

     

* Does the Second Amendment speak to an individual right or a collective right?

 

* Are Second Amendment protections limited only to actions of the federal government or does it apply to states and lower government subdivisions as well? 

 

      Given the overwhelming consensus of constitutional scholars writing on the subject over the past 20 years and the very shaky precedents on which the “collective” theory is founded, a conclusion supporting that interpretation would be very difficult to justify.

      Fears of a bad Court decision resulting in massive gun restrictions are unfounded.  Even if the Court comes out with a worst case decision, the practical result is that the gun rights movement would be exactly where it is right now.  The politicians and the lower courts have been running on a “collective right” model with no applicability to the states for well over 50 years.  A bad decision in this case would simply reinforce that status quo and all but extinguish the faint hope that believers in liberty have held out that a Supreme Court decision would one day fix the problem. 

      Protection of gun rights hinges, as it always has, on electing the right politicians and that is not going to change regardless of what happens with this case.  While a good decision from the Court would help activists regain some lost ground and reinforce some bulwark around gun rights, the real fight will remain at the ballot box.

      All of this is just speculation though since the Court has not yet decided whether they will even hear the case.  Deciding whether to review a particular case is much less formal and much more collegial than the actual deliberation of a case.  The decision to hear a case – issuing a writ of certiorari, or granting cert as it is often called – is a matter of three Justices agreeing that the case warrants SCOTUS attention.  Politics and personal philosophy play an even bigger role in the Court’s decision whether to grant cert than in making a final judgment since no serious scholarship or study is required and there is little chance of a Justice’s intellectual integrity coming into conflict with their personal feelings at this stage.

      Second Amendment supporters on the Court are just as concerned about a bad precedent as anyone, and they are not likely to endorse granting cert if they do not believe that a good opinion will result.  If the Court does decide to hear this case, that’s probably a good sign of a favorable – though probably very narrow – outcome for gun rights.

      Barring some unforeseen delays, a decision on certiorari should be made late this year.  If the Court says “Yes”, the case should be presented to the Justices by early 2008 and a decision would be expected by mid-year, just in time to make the Second Amendment a major issue in the Presidential elections. 

     

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