Will the Supreme Court Take Parker?:
Having mentioned in passing yesterday that I think the Supreme Court would take the Parker case, I wanted to respond briefly to Randy's very interesting post below that predicts the Court will not take the case.
My thinking is that Parker is a good case for cert because there is a split on the constitutionality of the D.C. gun ban: the federal U.S. Court of Appeals for the D.C. Circuit struck it down in Parker, but the "local" D.C. Court of Appeals upheld it in Sandidge v. United States, 520 A.2d 1057 (D.C. 1987). Sandidge adopted a "collective rights" view of the Second Amendment, and under Sandidge the D.C. "local" court system has rejected all Second Amendment challenges to D.C.'s gun laws.
I would imagine the conflict between Sandidge and Parker justifies Supreme Court review because no other court can resolve the conflict within the D.C Court system as to the constitutionality of the D.C. gun ban. (I'm assuming that the federal ruling doesn't somehow trump the "local" court ruling; this would be the case with federal versus state rulings on federal constiutional law questions, although I suppose it's possible that there is a difference with the unusual D.C. court system. Does anyone know?)
Finally, Randy rightly mentions the possibility of en banc review in the D.C. Circuit. I don't know how likely it is, as I would imagine it depends on the internal dynamics within that court (a topic on which I remain rationally ignorant).
UPDATE: In the comment thread, "Dr.Grishka" writes:
My thinking is that Parker is a good case for cert because there is a split on the constitutionality of the D.C. gun ban: the federal U.S. Court of Appeals for the D.C. Circuit struck it down in Parker, but the "local" D.C. Court of Appeals upheld it in Sandidge v. United States, 520 A.2d 1057 (D.C. 1987). Sandidge adopted a "collective rights" view of the Second Amendment, and under Sandidge the D.C. "local" court system has rejected all Second Amendment challenges to D.C.'s gun laws.
I would imagine the conflict between Sandidge and Parker justifies Supreme Court review because no other court can resolve the conflict within the D.C Court system as to the constitutionality of the D.C. gun ban. (I'm assuming that the federal ruling doesn't somehow trump the "local" court ruling; this would be the case with federal versus state rulings on federal constiutional law questions, although I suppose it's possible that there is a difference with the unusual D.C. court system. Does anyone know?)
Finally, Randy rightly mentions the possibility of en banc review in the D.C. Circuit. I don't know how likely it is, as I would imagine it depends on the internal dynamics within that court (a topic on which I remain rationally ignorant).
UPDATE: In the comment thread, "Dr.Grishka" writes:
It would seem to me that the federal ruling "trumps" the DC Court of Appeals ruling. Anyone prosecuted under that statute can seek federal habeas relief on the grounds that he cannot be prosecuted under the federal habeas statute.I believe that's wrong, though. My understanding is that under the District of Columbia Court Reform and Criminal Procedure Act, Pub.L. No. 91-358 (1970), defendants convicted in the DC local court system cannot seek habeas relief in the DC federal court system. See Swain v. Pressley, 430 U.S. 372 (1977).
-Gene
If the local D.C. Courts were state courts, the split of authority would have greater significance because AEDPA mandates that state court convictions can't be overturned by federal courts unless they are not only unconstitutional but "clearly" so in light of Supreme Court precedent.
I don't think that limit applies to the D.C. courts, as opposed to state courts, so the federal D.C. Circuit may have broader ability to overturn convictions of D.C. residents who are prosecuted for gun possession after using a gun to defend themselves. (I am not certain of this, though; I am not an expert on habeas).
So the convictions by the local D.C. courts can presumably be tossed out on habeas by the D.C. Circuit.
But defendants may have to wait for a conviction in the local courts before they can seek relief from the federal courts. Pre-conviction injunctive relief under 42 USC 1983 will not be available, because of the Younger abstention doctrine, in which federal courts refuse to enjoin pending state prosecutions.
(Of course, the parties that win an injunction from the federal courts will be able to enforce that judgment; and that injunction, if it expressly bars enforcement of D.C.'s gun laws by all District officials, will presumably be separately enforceable by contempt proceedings even prior to any conviction).
D.C., of course, is not a state, and the Supreme Court has never applied Younger abstention to local D.C. Courts.
But the federal D.C. Circuit has applied Younger abstention to shield local D.C. courts (in my opinion, probably erroneously, since the Younger doctrine is based on states' rights and federalism, which do not apply to the D.C. municipal government).
So until there is an injunction expressly barring the D.C. government from enforcing the challenges ordinances, local D.C. prosecutors might be able to continue prosecuting people in D.C. for possessing guns to protect themselves, even if the federal courts later will overturn those convictions on collateral review.
It takes 4 votes to grant cert; so if 5 Justices want to affirm the ruling, why would they not vote for cert to affirm the individual right theory? The DC-(non)-statehood issue makes it easier to reach the merits of the individual right issue, since a case from eg Chi-town or NYC would have to grapple with incorporation first--something I'd wager is less likely to garner 5 easy votes than the individual rights interpretation of the amdt.
It would seem to me that the federal ruling "trumps" the DC Court of Appeals ruling. Anyone prosecuted under that statute can seek federal habeas relief on the grounds that he cannot be prosecuted under the federal habeas statute.
Like it or not, we already live in a predominantly collective right legal environment. Even so, the mixed tide of gun legislation is running in favor of the pro-freedom side. It can continue to do that in the face of a Supreme Court decision favoring the collective right. Theoretically, we could still get an individual right through federal legislation, even if the Supreme Court decides against the DC Circuit.
An individual right ruling by the Supreme Court would be disastrous to the anti-freedom lobby. The effect would probably be both crippling and permanent. All kinds of laws would come under scrutiny, and there would be a much greater burden on legislative bodies who want to pass restrictive laws. The present mixed pro-freedom tide would become a tidal wave. People at the Brady campaign would have to go look for productive work.
I think they will take their loss and bide their time.
If the Brady Center were calling the shots, they might opt for a tactical retreat. But the DC government is in the driver's seat, and the mayor has already explicitly said they will appeal. He has to, or he gives up on DC's gun ban -- something the Brady Center et al. might be willing to do for political expediency, but that DC politicians are not.
I think you're wrong about that; see the update in the post.
I can't see more than 4 votes, let alone 6, for review. One for denying review would, presumably, be Griffith, who was in the majority of Friday's opinion. Silberman is senior, so he wouldn't vote. Another 3 "for sure" votes against review would be Brown, Ginsburg, and Sentelle. They're perhaps the three closest to being true "Constitution in Exhile" judges out there. Then, for fifth and sixth votes for denying review there's Kavanaugh, a recent appointee who is quite conservative, and Randoplh who it is hard to believe would believe in the "collectivist rights" theory.
So that's 6 near-for-sure votes against en banc review. Now, perhaps they would vote for review, but then uphold the opinion. Perhaps, but the only result would be an even more individual rights opinion (my God, imagine if Brown or Ginsburg--the Chief judge who would assign the opinion--wrote it instead of Siblerman. It might be even stronger (if that's possible) for the individual rights position).
So the end result is en banc review would at best delay the due date for a cert petition. DC's best strategy might very well be to argue that Sandidge controls.
The D.C. Circuit explained why in 1998:
Blair-Bey v. Quick, 151 F.3d 1036, 1042 (D.C. Cir. 1998).
I am not sure whether a conflict between the D.C. Circuit and the the D.C. appellate court in and of itself meets this test. However, at least one federal judge in the District of Columbia thinks that a 2254 standard should apply, at least in a case of "actual innocence" of the petitioner. Eldridge v. United States, 372 F.Supp.2d 26, 45 n.35 (D. D.C. 2005).
Related to this, are the portions of 1986 FOPA that concern things like interstate transport (and the protection of owners from local prosectution, if they are simply "passing through") severable from the rest of the law (such as the machine gun restrictions) if they were overturned?
Of course, I also wondered about the use of US v. Miller in this case to affirm the protection of "militia suitable" weapons. It would seem to me that the proliferation of machine guns and short barreled shotguns and rifles in military use might be used to argue against the 1934 National Firearms Act.
I was quite possibly dead wrong when I stated above that:
"If the local D.C. Courts were state courts, the split of authority would have greater significance because AEDPA mandates that state court convictions can't be overturned by federal courts unless they are not only unconstitutional but 'clearly' so in light of Supreme Court precedent."
In fact, based on Swain, the federal courts may even feel less free to overturn local D.C. court convictions than they would a state conviction.
A state court conviction, once upheld by a state's highest court, can be overturned by the federal courts whenever it violates "clearly established" Supreme Court precedent.
By contrast, the federal courts in Washington, D.C. have no general jurisdiction to hear collateral challenges to local-court convictions, which are left at least in the first instance to those very same local courts. They can only hear such challenges if the remedy in the local courts would be inadequate or ineffective.
Based on the Swain case and the jurisdictional provision that Dave N. cites, it is not absolutely certain that the federal courts would intervene to overturn even a local D.C. court conviction even if it violates clearly-established law.
One could certainly argue, though, that the local courts' persistent failure to follow D.C. Circuit authority (the authority of the local Article III court) makes using any local-court challenge to a conviction in violation of D.C. Circuit precedent "inadequate" and "ineffective," and thus justifies the extraordinary step of going into federal court to mount the collateral challenge to the gun ban that the D.C. Circuit has already ruled unconstitutional.
The D.C. Superior Court and D.C. Court of Appeals, as non-article III courts designed to handle essentially municipal tasks, logically don't merit the same degree of deference that state supreme courts receive as the highest court of a sovereign state.
But sometimes, logic doesn't prevail.
Because doing nothing keeps the strong D.C. Circuit opinion in full force, while hearing the case risks a member of the majority wanting to water it down. *coughcoughKennedycoughcough*
Thanks for the update. I was not aware of this statutory provision. (And oh, I just noticed how ridiculous my sentence read. It should have finished "cannot be prosecuted under an unconstitutional statute," not "cannot be prosecuted under federal habeas statute." This is what happens when you type faster than you think.).
I still wonder though if on collateral review asserting federal constitutional rights, the Superior Court would be bound by pronouncements of the DC Circuit? It is not bound by DC Circuit's pronouncements on the meanings of local laws, but it would seem to me that they ought to be bound by their constitutional pronouncements. In other words, if say the 2d Circuit declared that some say abortion statute in CT is unconstitutional, an identical language abortion statute in NY cannot be applied. Would not the same logic apply to DC Courts?
State courts are not bound by the constitutional interpretations of their regional federal circuit courts. Federal circuit courts are not "higher" than state supreme courts on issues of federal law; they are parallel to them, and the U.S. Supreme Court the only court that can resolve disagreements that arise. That's been my understanding, at least.
Musladin v. Lamarque, 427 F.3d 647, 651-52 (Kleinfeld, J., dissenting from denial of petition for rehearing en banc) (footnotes omitted). I should note that Judge Kleinfeld's view ultimately prevailed when the Supreme Court reversed in Carey v. Musladin this term.
Says the "Dog"