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More Parker Stuff

Via Insty, Robert Levy thinks congress and the NRA might be mucking up the case:

Parker is a much better vehicle to vindicate Second Amendment rights than an act of Congress. First, legislative repeal of the D.C. gun ban will not stop criminal defense attorneys and Public Defenders from citing the Second Amendment when they challenge ďfelon in possessionĒ charges. Thus, if Parker is derailed, the next Second Amendment case to reach the Supreme Court could feature a murderer or drug dealer instead of six law-abiding citizens.

Second, a bill aimed at D.C. does only part of the job. It could be repealed by a more liberal Congress. And it will have no effect on state law outside of D.C. In effect, those who support the D.C. Personal Protection Act will be opposing an unambiguous Supreme Court proclamation on the Second Amendment, applicable across the nation.

Third, the Supreme Court is more conservative today than itís been for some time, and probably more conservative than itís going to be. In the unlikely event that five current justices decide to read the Second Amendment out of the Constitution by upholding a total ban on handguns, that would be the time for Congress to act. Until then, the D.C. Personal Protection Act is premature and counter-productive.

I see the danger in passing the bill. A bill like this pops up every couple of years. This year, it’s bad timing.

22 Responses to “More Parker Stuff”

  1. Snowflakes in Hell » NRA Not Quite So Confident? Says:

    […] Levy wrote, Instapundit and SayUncle linked it.¬†¬† Levy asserts that the NRA’s actions make it appear that they want to derail […]

  2. cleb Says:

    Did you ever think that maybe passing the law is what the politicians want… then can claim to be 2a friendly while totatly derailing the case that will serve the greater good??

  3. Countertop Says:

    Frankly, Levy is full of a whole lot of bullshit.

    He has a better chance than any other case of getting picked up by the Supremes, but then he also faces incredible odds in getting the case heard.

    Frankly, if I was a betting man I would say there are better than even odds SCOTUS doesn’t take it (but I’ll be there if they do).

    This bill, likewise, has better than even odds of not going anywhere either.

    I don’t see why we cant push both.

  4. straightarrow Says:

    Countertop, I just don’t understand why you said what you did. Clarifications.

  5. anon Says:

    “In the unlikely event that five current justices decide to read the Second Amendment out of the Constitution…” then it won’t matter what congress does!

  6. anon Says:

    It would be better for congress to (now) address DC’s absurd ‘machine gun’ definition (basically, any semi-auto with a detachable mag), and eliminate the gun registry. These were NOT addressed by Parker, and still need to be overturned.

  7. countertop Says:


    I assume you are talking about the case getting heard. This is by no means a complete treatise on the process, and excuse the typos as my kids sleeping on my lap between me and the laptop but here goes – in a nutshell

    First, its not guaranteed this case is going to be heard.

    That’s entirely dependent on whether DC feels the need to seek a writ of cert. Parker won – Levy doesn’t get to decide to appeal (unless the full DC Circuit reverses). Its entirely up to DC. While I have some concern that the court will do the right thing, so do the gun banners. Don’t think they won’t be advising DC. Plus, DC can impose pretty significant regulatory hurdles that effectively continue the present ban (for all intents and purposes) while still responding to the DC Circuit and preventing the case from going on to the Supremos (which is what I think is most likely to occur)

    Then, assuming DC even files the Writ, there is no guarantee the Supremes will grant it.

    Any case has little chance of reaching SCOTUS. Unlike an intermediate court of appeal (ie: Federal Circuit Courts of Appeal) for most cases (such as Parker) SCOTUS’s hearing is an entirely discretionary matter. In any one year, there are somewhere around 10,000 petitions for certiarori (essentially requests to the court that it hear a case) filed at the court. The court hears 100.

    All petitions are reviewed, but only those which the justices find present a compelling interest are heard. Frankly, I don’t see this case presenting that compelling interest – its scope is rather narrow – a single DC law – and while us gunnies are professing its importance, I don’t know if they will see it as being such (it creates some split in the law, but only on the issue of individual right vs collective right … most gun control regimes in place now would be upheld under either interpretation (and certainly under the DC Circuits).

    Plus, at the same time DC is arguing for the court to grant Cert (and presumably Parker is agreeing) there will be plenty of people filing briefs to the court asking them not to take the case. While I’ve never argued before the court, I have both submitted Cert petitions (none were granted) and have successfully defended against Cert petitions – but frankly on those the odds are overwhelmingly in the defendant’s favor.

  8. Alan Gura Says:


    If the Supreme Court does not take the case, then the D.C. Circuit will remain an individual-rights circuit. Given the Attorney General’s official residence in Washington, D.C., any federal gun control law could be challenged under Parker in the D.C. Circuit. It is thus doubtful that the D.C. Circuit’s individual rights precedent would be left unreviewed by the Supreme Court for very long, even if Parker is not the case that lands in the Supreme Court.

    As for Parker’s suitability for cert., virtually all knowledgeable people from whom we have heard, regardless of their views on the issue, agree that this case is as good a candidate for cert. as any. Such analysis is not pulled from thin air: there is a circuit split, there is a void of guidance from the Supreme Court, it is an issue of great public importance, and it is an issue on which there has been intense academic debate. These are understood to be the basic criteria that render a case suitable for certiorari. Are there any particular factors at play that make you believe it is a poor candidate for cert.?

    In any event, if you are correct, and Parker has no chance of going to the Supreme Court, then why would you want the opinion vacated?

    Make no mistake — if the repeal legislation is passed now, the Parker opinion will be wiped off the books. That is the unmistakable effect of repealing the legislation at this stage. United States v. Munsingwear, Inc., 340 U.S. 36 (1950); Harper v. Poway Unified Sch. Dist., 75 U.S.L.W. 3472 (March 5, 2007); Clarke v. United States, 915 F.2d 699 (D.C. Cir. 1990) (en banc).


    There are many bizarre and unconstitutional aspects of D.C.’s gun laws, but we cannot have one case about everything. Our goal here is to establish that the Second Amendment secures an individual right. The way to do that is to craft the narrowest, least adventurous case possible. That’s what we did — and it is unlikely that such an effort can be duplicated elsewhere.

    The current bills have some useful features to them, but they can be undone by any future Congress. The current bills also do nothing to enable D.C. residents to actually purchase handguns, which would be impossible even if the mandate in Parker were issued tomorrow, owing to the lack of D.C. firearms dealers and the federal ban on interstate handgun purchases. If the authors of the current legislation were really interested in helping implement Parker, they could have addressed these issues. You may soon see alternative legislation that is actually constructive, not merely destructive.

  9. Alan Gura Says:


    I see we cross-posted. Let me address your post:

    Whether a provision of the Bill of Rights secures an individual right that can be used to strike down legislative enactments is about as important an issue as exists in our system.

    You are the first and only person I’ve encountered thus far, on either side of this issue, who believes the question of whether the Second Amendment secures an individual right is not a “compelling interest.”

    We’ll just have to agree to disagree on that. But even if you are right, it still does not explain the so-called “D.C Personal Protection Act.”

  10. Sebastian Says:

    I think everyone here thinks it’s a compelling interest, but will 4 of the 9 justices see it that way?

  11. nk Says:

    Mr. Gura,

    Will DC gun-owners be able to sue you for malpractice if you lose? You do understand that you are asking them to put all their eggs in your basket.

  12. countertop Says:


    I think you misunderstood my position on the issue of a compelling interest, though Sebastian nailed it. I think it does, but in the context (and seen through the yes of 9 VERY disinterested jurists who’ve seen it all and heard it all and before whom EVERYONEs case presents a compelling interest, I just don’t know. It certainly isn’t beyond the pale for them to look at this, and decide as you stated, if we decline cert than there is one standard for the federal government (who in this case – realizing the DC Council ultimatly exists solely at the leisure of Congress – has gone and band virtually all guns) and the many states – none of whom have banned guns to the extent DC (and hence the Federal Government) has and who all, for the large part, have gun control schemes that would withstand the test in Parker (well, maybe the Chicago area is getting close).

    Regarding the issue ofwhether the DC Personal Protection Act would vacate Parker, I haven’t had time to look at the case you cited. Will do that when I get in the office this morning and probably put up a post on it. My presumption is that your allegation is incorrect (or at least not fully correct) because passage of the DC Personal Protection Act is no different than if the DC Government decided to drop its appeal (which they would be forced to) and revise its law pursuant to Parker. Remember, at this point and assuming the full DC circuit doesn’t reverse, the decision whether to petition for a writ of cert rests with DC not you. If it was the other way around, and DC had won and you were petitioning SCOTUS, I would agree with you, but that’s not how the case is playong out.

    Of course, I haven’t researched this point (or you citation) in particular, I’m just shooting from the hip here on my blackberry as I prepare baby formula and get ready to leave for work. Once I do, Ill post something more detailed.

  13. countertop Says:

    Please excuse the typos, and none of my post are intend in anyway to discredit or discourage Mr Gura, Mr Levy or anyone else associated with Parker from forging ahead. Good job I say.

    Its only that I would hate to see you distracted from your mission by something that has no bearing on it. Focus on the front you’ve engaged and leave others to worry about other fronts.

    And NK – there are no DC gun Owners and whatever happens from here on out they owe Alan and Robert Levy a hue note of appreciation.

  14. AughtSix Says:

    Ummm, CT, there are DC gun owners. I know a guy who shoots at Izaak Walton with a MAS-36 (French WWII bolt-action). There are tons of hoops to go through (including either two or three safes… rifle in one, bolt in another, and ammo either in one of the two, or a third, I can’t remember). But he’s a (legal) DC gun owner.

  15. nk Says:

    Well … I didn’t want to say “DC gun-lovers”. You know … these days anything can be misconstrued. ūüėČ And most importantly, I meant no disrespect whatsoever to Mr. Gura in my previous comment. I appreciate and praise him for everything he is doing. If there is a legislative victory it will still be because of his court victory.

  16. Alan Gura Says:


    I don’t “shoot from the hip,” or rely on gut feelings or wishful thinking. I would not be taking a public position about a piece of legislation without being sure of its effects.

    “The established practice of the Court in dealing with a civil case from a court in the federal system which has become moot while on its way here or pending our decision on the merits is to reverse or vacate the judgment below and remand with a direction to dismiss.” United States v. Munsingwear, Inc., 340 U.S. 36, 39 (1950) (footnote: “This has become the standard disposition in federal civil cases”) (numerous citations omitted). “That procedure clears the path for future relitigation of the issues between the parties and eliminates a judgment, review of which was prevented through happenstance. When that procedure is followed, the rights of all parties are preserved; none is prejudiced by a decision which in the statutory scheme was only preliminary.” Id., at 40.

    Most recently, the Supreme Court applied Munsingwear to vacate the 9th Circuit’s opinion holding a school can discipline a student for wearing a t-shirt bearing anti-gay messages. The student had graduated from the school, mooting the case, while the petition for cert. was pending. The Supreme Court granted cert for the purpose of erasing the circuit’s opinion. Harper v. Poway Unified Sch. Dist., 75 U.S.L.W. 3472 (March 5, 2007).

    And in Clarke, the D.C. Circuit vacated its own panel opinion when the law changed pending completion of the appellate process.

    I’m not going to engage in some strained hypothetical exercise that would distinguish our situation should the current legislation become law prior to the final issuance of the mandate. The law is very clear on this topic and it is pointless to debate it.

  17. Michael Says:

    It is this kind of behavior that has gotten the NRA into hot water with some of its memebers. It has even caused members to walk away from the organization, such as myself and my father. Between the two of us we have were members for over 90 years.

    Personally, I believe that the NRA has lost its spine to give the good fight any more.

  18. straightarrow Says:

    Countertop, thank you for the response. I understand your position a little better. I don’t agree that you have analyzed the situation properly in all its aspects, but if the conditions you believe obtain, then your position becomes understandable from a pragmatic stance.

    I believe there is a good chance the court will deny cert. For no other reason than the court has been too cowardly to declare one way or the other. If they declare correctly, they will have dismantled many decades of encroachment of rights by the state, thus pissing off the state. If they decide improperly they may fear a popular armed uprising when the state then moves further in its encroachments. The ruling itself will not be the trigger if such were to happen, but rather the expansion of state power to deny, restrict, confiscate, which they will do should they win the Parker decision, will eventually result in the triggering of a rebellion, when the state overplays its hand. Not just DC, but all those jurisdictions that hate human survival. ( the preceding is not hyperbole).

    However, having said all the doomsday stuff, I believe that if Congress wanted to repeal the DC gun ban, they could have done so at any time prior to the Parker decision. They did not. Now, that there is some fear that Parker may be heard by the USSC, and that the ruling may, in fact, support an individual right, they all of a sudden jump in with both feet with a bill that should it become law could render Parker moot, or give the USSC a seemingly valid excuse for not granting cert.

    However, if they really meant it, they could always wait until the court hears the case or rejects the case. Further, if the case is heard and a ruling upholding the District Court is issued, they have no need to pass this bill into law. If the ruling goes against liberty, then (again, if they are really serious) they can change the law in DC by passing this bill into law.

    Nothing then is lost. Not true, though, should this proposed law moot Parker. Then the entire nation suffers a loss.

  19. Xrlq Says:

    I agree with Countertop that we should fight the DC ban on both fronts. The chances of the D.C. Personal Protection Act passing both houses and being signed into law before the Supremes grant or deny cert in the case is infinitesimal. If the Supremes take the case, Congress could hold off on voting on it then. If they don’t, full speed ahead.

  20. markm Says:

    “if the repeal legislation is passed now, the Parker opinion will be wiped off the books.”

    IANAL, but I don’t think this is true. Parker would remain a precedent for the DC circuit only. There’d be no Supreme Court precedent – except Miller from the 1930’s, which the DC Circuit actually read and followed for once – but we’d be no worse off.

  21. A Lawyer Says:

    markm: No, would not be a precedent anywhere if the repeal legislation is passed now. Until the case is truly final–meaning the Supreme Court issues its own opinion, or denies cert. (and maybe even beyond that if the case were to go back to the district court to impliment the judgment)–then the opinion is subject to being vacated. That’s as if it never happened. Get it straight–this legislation is only being pushed now to kill as a live case and as a precedent in the DC Circuit. There can be no other reason.

  22. The Countertop Chronicles » Parker Says:

    […] you may recall, I got into something of a tiff over this decision, and efforts in Congress to preempt DC law, with one of the attorney’s who […]