The Volokh Conspiracy -

The Second Amendment in the Supreme Court:

The D.C. Circuit refused to rehear the Parker case en banc. A few thoughts on this case in the Supreme Court:

1. Timing: I assume that the District of Columbia will petition for certiorari; it has 90 days to do this, so the petition will likely be filed in mid-August. That would mean the Supreme Court will decide in late September whether to hear the case — and if it does agree to hear the case ("grant cert"), it will hear it in early 2008, with a decision handed down by early July of 2008.

2. Chances of the Supreme Court's Hearing the Case: High, I'd say well over 50% (unless Congress moots the question by preempting D.C.'s gun ban). That's a rare thing to say, given that the Court hears only about 1% of the cases that it's asked to hear. But here there is a split among federal courts of appeals on an important constitutional question — the D.C. Circuit and the Fifth Circuit take the individual rights view (see here and here for why the Fifth Circuit's decision can't be dismissed as dictum), while I think nine other circuits take the collective rights view. There is also a split between a federal court of appeals and D.C.'s highest court on the constitutionality of a specific law, which is itself usually seen as a strong signal in favor of cert. This is also the sort of question that the Justices would likely think ought to be decided by the Supreme Court; it's one thing to have different views in different circuits on some technical question, and another to have different views on whether an Amendment in the Bill of Rights secures an individual right or not.

3. Chances of the Supreme Court's Accepting the Individual Right View: Now that's a mystery. I think the individual rights view is correct, and I think the historical evidence should be a powerful influence on the Court.

But note how the vote in the D.C. Circuit broke down: Two conservatives (Silberman and Griffith) supported the individual rights view, but one Republican appointee (Henderson) seemed to reject it. In the en banc vote, the three Clinton appointees (Rogers, Tatel, and Garland) voted to rehear the case, but so did Randolph, a Bush Sr. appointee who to my knowledge is a pretty solid conservative; it's possible that they voted to rehear the case en banc just because it's extremely important, deepens a circuit split, and creates a split with the D.C. Court of Appeals — but generally speaking judges don't vote to rehear a case en banc unless they suspect the panel decision was mistaken. (On the other hand, sometimes judges vote against rehearing a case en banc even though they disagree with the panel decision; I'm not sure why Henderson voted against en banc, but I take it that it isn't because she changed her minds on the merits.)

[UPDATE: Alan Gura, lawyer for the plaintiffs, observes that Judge Randolph also voted to rehear Seegars v. Gonzales, an earlier D.C. Circuit case that rejected on standing grounds a challenge to the gun control law. Gura therefore speculates that Judge Randolph might not disagree with the individual rights view of the Second Amendment, but might instead want to reverse the standing decisions in Seegars and Navegar, Inc. v. U.S.. I'm not sure whether that's so, but in any event that would leave Judge Henderson as an example of a Republican appointee who nonetheless seems to endorse the states' rights / collective rights view of the Second Amendment.]

It's true that in the Ninth Circuit's Silveira v. Lockyer, archliberal Judge Pregerson and Clinton appointee Judge Gould endorsed the individual rights view, alongside the conservative Judges Kozinski, Kleinfeld, O'Scannlain, and T.G. Nelson; so it might be that some of the liberals on the Supreme Court will take a similar view. Still, supporters of the individual rights view ought to worry about the possibility that the Supreme Court vote on the merits will break down much as the D.C. vote seems to have — the liberal Justices being joined by one or two of the conservatives to endorse the states' rights / collective rights view. And on the Supreme Court, that would make a majority for that view, rather than the 2-1 split on the D.C. panel, and the 5-5 split on the court as a whole.

4. What Might a Pro-Individual-Rights Decision from the Supreme Court Do? I expect it will be very narrow, will leave open considerable room for gun controls that are less comprehensive than D.C.'s total ban, and will not resolve the question whether the Second Amendment is incorporated in the Fourteenth Amendment to cover state regulations (though that latter question would of course come up in another case within a few years).

5. How Might the Case Affect the Presidential Campaign? I asked a set of questions about this when the Parker panel decision was handed down; let me repeat them, now that the prospect of Supreme Court review in 2008 is less hypothetical, and now that we are further into the election campaign.

A. What, if anything, will the extra prominence of the issue do to the primaries?

B. Assume the decision comes down in late June 2008, and is 5-4 in favor of the individual rights theory. What will that do to the general Presidential election race?

C. Assume it's 5-4 in favor of the collective rights theory, with Kennedy joining the four liberals on the collective rights side. What will that do to the race? What if it's 5-4 with Roberts or Alito joining the liberals? I take it that if it's not 5-4, or (possibly) if it's 5-4 with a less liberal/conservative split, the effect will be less; is that right?

D. Or is this decision not that relevant, either on the theory that the issue won't energize people that much, or on the theory that plenty of people would be energized on gun control and the Second Amendment regardless of how the case comes down?

Naturally, if one of the Justices retires this year or next, the effect on the Presidential race would be still greater, I suspect.

	[David Kopel, May 8, 2007 at 12:32pm] Trackbacks 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): The Second Amendment in the Supreme Court: DC Circuit denies en banc rehearing for Parker case: Comments [Eugene Volokh, May 8, 2007 at 1:40pm] Trackbacks The Second Amendment in the Supreme Court: The D.C. Circuit refused to rehear the Parker case en banc. A few thoughts on this case in the Supreme Court: 1. Timing: I assume that the District of Columbia will petition for certiorari; it has 90 days to do this, so the petition will likely be filed in mid-August. That would mean the Supreme Court will decide in late September whether to hear the case — and if it does agree to hear the case ("grant cert"), it will hear it in early 2008, with a decision handed down by early July of 2008. 2. Chances of the Supreme Court's Hearing the Case: High, I'd say well over 50% (unless Congress moots the question by preempting D.C.'s gun ban). That's a rare thing to say, given that the Court hears only about 1% of the cases that it's asked to hear. But here there is a split among federal courts of appeals on an important constitutional question — the D.C. Circuit and the Fifth Circuit take the individual rights view (see here and here for why the Fifth Circuit's decision can't be dismissed as dictum), while I think nine other circuits take the collective rights view. There is also a split between a federal court of appeals and D.C.'s highest court on the constitutionality of a specific law, which is itself usually seen as a strong signal in favor of cert. This is also the sort of question that the Justices would likely think ought to be decided by the Supreme Court; it's one thing to have different views in different circuits on some technical question, and another to have different views on whether an Amendment in the Bill of Rights secures an individual right or not. 3. Chances of the Supreme Court's Accepting the Individual Right View: Now that's a mystery. I think the individual rights view is correct, and I think the historical evidence should be a powerful influence on the Court. But note how the vote in the D.C. Circuit broke down: Two conservatives (Silberman and Griffith) supported the individual rights view, but one Republican appointee (Henderson) seemed to reject it. In the en banc vote, the three Clinton appointees (Rogers, Tatel, and Garland) voted to rehear the case, but so did Randolph, a Bush Sr. appointee who to my knowledge is a pretty solid conservative; it's possible that they voted to rehear the case en banc just because it's extremely important, deepens a circuit split, and creates a split with the D.C. Court of Appeals — but generally speaking judges don't vote to rehear a case en banc unless they suspect the panel decision was mistaken. (On the other hand, sometimes judges vote against rehearing a case en banc even though they disagree with the panel decision; I'm not sure why Henderson voted against en banc, but I take it that it isn't because she changed her minds on the merits.) [UPDATE: Alan Gura, lawyer for the plaintiffs, observes that Judge Randolph also voted to rehear Seegars v. Gonzales, an earlier D.C. Circuit case that rejected on standing grounds a challenge to the gun control law. Gura therefore speculates that Judge Randolph might not disagree with the individual rights view of the Second Amendment, but might instead want to reverse the standing decisions in Seegars and Navegar, Inc. v. U.S.. I'm not sure whether that's so, but in any event that would leave Judge Henderson as an example of a Republican appointee who nonetheless seems to endorse the states' rights / collective rights view of the Second Amendment.] It's true that in the Ninth Circuit's Silveira v. Lockyer, archliberal Judge Pregerson and Clinton appointee Judge Gould endorsed the individual rights view, alongside the conservative Judges Kozinski, Kleinfeld, O'Scannlain, and T.G. Nelson; so it might be that some of the liberals on the Supreme Court will take a similar view. Still, supporters of the individual rights view ought to worry about the possibility that the Supreme Court vote on the merits will break down much as the D.C. vote seems to have — the liberal Justices being joined by one or two of the conservatives to endorse the states' rights / collective rights view. And on the Supreme Court, that would make a majority for that view, rather than the 2-1 split on the D.C. panel, and the 5-5 split on the court as a whole. 4. What Might a Pro-Individual-Rights Decision from the Supreme Court Do? I expect it will be very narrow, will leave open considerable room for gun controls that are less comprehensive than D.C.'s total ban, and will not resolve the question whether the Second Amendment is incorporated in the Fourteenth Amendment to cover state regulations (though that latter question would of course come up in another case within a few years). 5. How Might the Case Affect the Presidential Campaign? I asked a set of questions about this when the Parker panel decision was handed down; let me repeat them, now that the prospect of Supreme Court review in 2008 is less hypothetical, and now that we are further into the election campaign. A. What, if anything, will the extra prominence of the issue do to the primaries? B. Assume the decision comes down in late June 2008, and is 5-4 in favor of the individual rights theory. What will that do to the general Presidential election race? C. Assume it's 5-4 in favor of the collective rights theory, with Kennedy joining the four liberals on the collective rights side. What will that do to the race? What if it's 5-4 with Roberts or Alito joining the liberals? I take it that if it's not 5-4, or (possibly) if it's 5-4 with a less liberal/conservative split, the effect will be less; is that right? D. Or is this decision not that relevant, either on the theory that the issue won't energize people that much, or on the theory that plenty of people would be energized on gun control and the Second Amendment regardless of how the case comes down? Naturally, if one of the Justices retires this year or next, the effect on the Presidential race would be still greater, I suspect. Related Posts (on one page): The Second Amendment in the Supreme Court: DC Circuit denies en banc rehearing for Parker case: Comments