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aileron
09-11-2007, 7:02 AM
I don't know if this is good news, but Im glad to see this. Anybody have any thoughts on what this might mean?




WASHINGTON, Sept. 10 /PRNewswire-USNewswire/ -- Five Washington, D.C. residents today filed a petition in the U.S. Supreme Court asking the court to reinstate their legal case against the District's restrictive gun laws. The five citizens, Shelly Parker, Tom Palmer, Gillian St. Lawrence, Tracey Ambeau, and George Lyon, filed a federal court challenge to the District's gun ban in 2003 along with D.C. resident Dick Heller. That lawsuit led to a historic court ruling by the U.S. Court of Appeals for the District of Columbia Circuit that D.C.'s gun ban violates the Second Amendment to the U.S. Constitution.

But the appellate court also held that among the six plaintiffs, only Heller had the necessary "standing" to challenge the law. On September 4, 2007, the District filed papers asking the Supreme Court to reverse the lower court on the merits of the gun challenge. The five other plaintiffs besides Heller -- Parker, Palmer, St. Lawrence, Ambeau, and Lyon -- today filed their own petition asking the Supreme Court reinstate their case against the District and allow them to proceed along with Heller as they did in the lower courts for over four years. The Supreme Court will likely decide in late October whether to accept the appeals.

Today's cross-appeal raises an extraordinarily important question about when citizens may vindicate their constitutional rights in federal court. Defying decades of Supreme Court precedent, the D.C. Circuit Court of Appeals held it was not enough that people who wish to keep guns in their home for lawful self-defense risk going to jail under the District's well-known "zero tolerance" policy if they do so. Instead, the court held that in order to challenge any criminal law in federal court, citizens must first break the law, wait for the authorities to discover their violation, and then receive a personal threat of prosecution. But the U.S. Supreme Court has repeatedly rejected that view, recognizing the unfairness of forcing citizens to choose between breaking the law and going to prison, on the one hand, or giving up valuable constitutional rights, on the other.

The Parker plaintiffs' lead counsel Alan Gura explained, "The government isn't in the habit of sending warning letters to people before it violates their civil rights. Requiring this type of personalized threat as a prerequisite for filing a civil rights lawsuit slams the courthouse door on law-abiding people who just want to exercise their constitutional rights."

Plaintiff Gillian St. Lawrence said, "I want to keep a gun in my home for self defense. I believe I have that right under the Constitution. But the only way for me to get a court ruling is to get break the law and wait to get caught? That's not right. I should be able to stand up for my rights without having to risk going to jail."

The appellate court found that among the six plaintiffs only Heller had standing to challenge D.C.'s gun ban because he -- unlike the other plaintiffs -- tried unsuccessfully to register a pistol in the District. But that was a futile act because District law prohibits the registration of any pistol after 1976. As a matter of common sense and Supreme Court precedent, the government may not require citizens to jump through meaningless hoops in order to have their civil rights claims heard in court. The court of appeals' conclusion that Parker, Palmer, St. Lawrence, Ambeau, and Lyon lacked standing to challenge the District's unconstitutional gun laws because they did not first fill out a meaningless form contradicts that principal and creates a dangerous civil rights precedent in the nation's capital.

Cato Institute

tgriffin
09-11-2007, 7:58 AM
I think its a good thing

cartman
09-11-2007, 9:05 AM
Sounds good to me but I'm not as law savy as some of our brethren

Anthonysmanifesto
09-11-2007, 9:13 AM
Im not an attorney or a groupie, but on the surface looks good to me.

I hope they get back on the case.

Id hate to have to get a criminal record before I can challenge the law that got me there.

elenius
09-11-2007, 9:25 AM
Sounds good. Hopefully this doesn't slow down the process.

CCWFacts
09-11-2007, 9:56 AM
The court of appeals' conclusion that Parker, Palmer, St. Lawrence, Ambeau, and Lyon lacked standing to challenge the District's unconstitutional gun laws because they did not first fill out a meaningless form contradicts that principal and creates a dangerous civil rights precedent in the nation's capital.

Yeah but they should have filled out that paperwork because it's obvious that without applying for a permit they would not have standing. That would be like me suing my sheriff for not issuing me a CCW before I had even applied. That would not make sense.

I hope they are allowed to rejoin the case, but I do think the court was right to reject them for not having standing. This shows, a court will use "you don't have standing" to throw out claims without ruling on the issues, if you give the court any opportunity to do that. It was a mistake for those guys to not take the ten minutes to fill out that form.

bulgron
09-11-2007, 10:15 AM
I hope they are allowed to rejoin the case, but I do think the court was right to reject them for not having standing. This shows, a court will use "you don't have standing" to throw out claims without ruling on the issues, if you give the court any opportunity to do that. It was a mistake for those guys to not take the ten minutes to fill out that form.

Which raises an interesting question.

Suppose you want to sue over your inability to get a CCW. So you decide to start by filling out the paperwork.

What if the Sheriff won't even accept the application? But instead of saying that, suppose he just "loses" it? So after some months of waiting, he tells you that he lost the paperwork and he tells you to re-file. So you do. And he "loses it" again.

And round and round you go.

At what point do you have grounds to sue over an infringement of your constitutional rights? How long do you have to wait, and how many times do you have to re-file the same paperwork, before you get to declare a de-facto denial and proceed with your lawsuit?

At the end of the day, I believe you should be able to sue over an unconstitutional law without taking any action to be overtly harmed by that law. So long as you live in a jurisdiction affected by the law, you ought to have standing. It cuts through all the crap. This motion is a good thing.

tombinghamthegreat
09-11-2007, 10:30 AM
Sounds good and hope they win. At least the NRA has more court rulings to show that owning a gun is a constitutional right.

hoffmang
09-11-2007, 10:34 AM
Allow me to elucidate the strategy a bit here.

First note that many of the non Heller parties wanted to keep functional long arms in their home. There is no permit you can get to allow you to keep a functional shotgun in the home in DC. You can store it locked, unloaded, and it appears that it must be dissassembled.

DC's argument on their part of the appeal is that Handguns are so bad that we can ban them and we're not infringing their rights because they can keep long arms in the home!

Except they can't keep functional long arms in the home. That issue is most clearly elucidated by the other appellants and that's why Gura and Levy are cross appealing. It's kind of like saying that DC doesn't ban printing presses in the home - they just require you not put any ink on them...

As to exhausting your remedies, you always want to. It is enough to have certified mail or fedex tracking info that you sent something and followed up and were ignored. That's exhaustion. You have to simply imagine whether you can firmly answer a strict skeptic in a black robe whether you made best efforts.

-Gene

CCWFacts
09-11-2007, 11:01 AM
Which raises an interesting question.

Suppose you want to sue over your inability to get a CCW. So you decide to start by filling out the paperwork.

What if the Sheriff won't even accept the application? But instead of saying that, suppose he just "loses" it? So after some months of waiting, he tells you that he lost the paperwork and he tells you to re-file. So you do. And he "loses it" again.

And round and round you go.

At what point do you have grounds to sue over an infringement of your constitutional rights? How long do you have to wait, and how many times do you have to re-file the same paperwork, before you get to declare a de-facto denial and proceed with your lawsuit?

At what point? Sheriff won't give you an app? Send a letter, by certified / return receipt mail, saying, "Leroy, give me an app". If there is no response, that's all you need. Took ten minutes to send the letter and gives the plaintiff standing.

If the sheriff gives you an app, you fill it in, send it in certified / return receipt. If the sheriff claims he lost it, you show the judge the return receipt, signed by someone at the sheriff's mailroom, and the judge says, "yes, the sheriff received it." That also hurts the sheriff in court because it shows that he's lying or is not competently able to process applications.

That's all. It takes ten minutes to do these things. A simple certified / return receipt letter or application creates standing. Not doing it creates no standing.

Interesting bit about no permit being available for an assembled long gun. That makes it more logical as to why they didn't apply for a permit.

chico.cm
09-11-2007, 11:32 AM
Wow. I think it's great. IANAL, but I am a *reasonable person* and it makes no sense to me to have to break a state law that denies a federal right in order to have standing in the eyes of the court.

CCWFacts
09-11-2007, 12:04 PM
Wow. I think it's great. IANAL, but I am a *reasonable person* and it makes no sense to me to have to break a state law that denies a federal right in order to have standing in the eyes of the court.

Right, that is how it works, but the citizens must show that they have exhausted their options. To put it in CCW terms, someone here would have to show that he applied for a CCW, was denied, and then appealed the denial, and was denied again. Until that has happened, the person has not exhausted his options. The court would say, "you didn't appeal your denial? You still have options that are less than court intervention. You don't have standing. Go away."

Exhausting options creates standing. It's not necessary to violate the law (carry without a CCW for example) to get standing.

pnkssbtz
09-11-2007, 12:29 PM
Right, that is how it works, but the citizens must show that they have exhausted their options. To put it in CCW terms, someone here would have to show that he applied for a CCW, was denied, and then appealed the denial, and was denied again. Until that has happened, the person has not exhausted his options. The court would say, "you didn't appeal your denial? You still have options that are less than court intervention. You don't have standing. Go away."

Exhausting options creates standing. It's not necessary to violate the law (carry without a CCW for example) to get standing.

As Gene pointed out, there is no such permit for long guns. Ergo there was no such 'avenues' for them to "exhaust" their options upon, other than to apply for a CCW permit while not owning a handgun, which I do not know if it is possible to do so.

Regardless of whether or not they "exhausted their options" is irrelevant to the fact that they cannot legally have an assembled firearm in their own home.


I see the refusal of their standing as a straw man on behalf of the appellate courts.

Rob P.
09-11-2007, 1:03 PM
The problem with the 'exhaustion of remedies' requirement is that it doesn't work at the Federal/Constitutional level.

One need not 'exhaust' their remedies before speaking in protest against the government. One may, if one so chooses, go to the park and stand on one's soapbox and declaim one's problems to the world without fear of retribution (supposedly). One does not need a 'permit' to do this nor does one need to show that one requested said permit and was denied under a blanket law.

This is applicable in Heller (ne Parker) because the cross appellants wish to assert their constitutional rights that are being denied to them under the blanket law banning ALL handguns in D.C.

(Interestingly enough, the D.C. law appears in practice to be an attempt to repeal the second amendment without proper process or ratification. Strange how someone could think that it passes muster.)

turinreza
09-11-2007, 1:13 PM
Which raises an interesting question.

Suppose you want to sue over your inability to get a CCW. So you decide to start by filling out the paperwork.

What if the Sheriff won't even accept the application? But instead of saying that, suppose he just "loses" it? So after some months of waiting, he tells you that he lost the paperwork and he tells you to re-file. So you do. And he "loses it" again.

And round and round you go.

At what point do you have grounds to sue over an infringement of your constitutional rights? How long do you have to wait, and how many times do you have to re-file the same paperwork, before you get to declare a de-facto denial and proceed with your lawsuit?

At the end of the day, I believe you should be able to sue over an unconstitutional law without taking any action to be overtly harmed by that law. So long as you live in a jurisdiction affected by the law, you ought to have standing. It cuts through all the crap. This motion is a good thing.


maybe always apply using registered certified mail with hand signature required..

bulgron
09-11-2007, 1:30 PM
maybe always apply using registered certified mail with hand signature required..

Well, you should do that regardless.

But I'm curious why people are defending the "exhaust all possible avenues" situation. Why is that a good thing? Never mind that the burden is not heavy. Why should I have to jump through a bunch of hoops before I can go about suing the state over, say, good cause statements in firearms license laws?

Let me put it this way.

Once upon a time, the good cause concept was probably not a heavy burden. No doubt, there was (and even still are) places where a good cause is as simple as wishing to defend your own life, and the Sheriff accepted it and you were good to go.

But in some places, this not very troublesome burden has turned into a requirement that the average citizen cannot possibly meet. And so it is literally impossible for millions of Californians to legally carry a firearm if they are so unfortunate as to live in a bad county.

So let's suppose that we successfully sued over good cause statements and "may issue" laws. How long do you suppose it would take for a devious state legislature to create an avenue for obtaining a weapons carry permit that can be met by all -- if you jump through all the hoops and those hoops take, say, 10 years to complete? Must I then exhaust all possible avenues before I can sue over a process that takes an entire decade to complete? And how would I sue over that, anyway, if I have to exhaust all possible avenues before I can sue? Suppose I went through that decade-long process. Then I have my permit. What would I sue over, exactly?

Is there some law, some theory of public permits, that says a permit system must be accessible within a reasonable amount of time? I don't know of any such thing. But perhaps people more knowledgeable about these things than I am have an answer for this scenario.

hoffmang
09-11-2007, 2:02 PM
The simple and only reason one should be forced to exhaust remedies is that Federal Courts are expensive and most people win their pre-litigation appeals.

-Gene

Yankee Clipper
09-11-2007, 8:47 PM
Well, you should do that regardless.
But I'm curious why people are defending the "exhaust all possible avenues" situation. Why is that a good thing? Never mind that the burden is not heavy. Why should I have to jump through a bunch of hoops before I can go about suing the state over, say, good cause statements in firearms license laws?

I agree that ‘exhausting all posssible avenues’ is a hoop we shouldn’t have to hurdle – but from a different perspective. These legal stumbling blocks feed the pig that is our litigious society. It’s up to the authorities that are denying our 2nd amendment rights, with (do you believe this) city ordinances, to prove they have a right to so. I know, I know they do it all the time but - that doesn't make it rght.

CCWFacts
09-11-2007, 8:54 PM
Needing a permit to own a gun is not like needing a permit to speak. There is a huge difference. "Shall not be infringed" does not mean "shall not be regulated".

The Parker attorneys have clearly stated that. http://dcguncase.com/blog/faqs/

it is important to remember that the rights secured by the Second Amendment, like the rights secured by other portions of the Bill of Rights, are not absolute. Regulations – subject to court review – can be imposed on some weapons and some persons.

Read the entire FAQ to see this in context.

Of course, maybe the Parker attorneys don't really believe in the 2A or don't know how to interpret it properly...

bulgron
09-11-2007, 9:07 PM
Needing a permit to own a gun is not like needing a permit to speak. There is a huge difference. "Shall not be infringed" does not mean "shall not be regulated".

If "Shall not be infringed" does not mean "shall not be regulated," what does it mean, exactly?

The Parker attorneys have clearly stated that. http://dcguncase.com/blog/faqs/


The more I think about it, the more I feel the need to disagree with the Parker attorneys on this point.

Look, no one's saying that dangerous violent felons should be allowed to legally keep and bear arms. Heck, they do it anyway, regardless of the law, so they don't really need 2A protection.

But once the state performs a background check and finds out that you aren't some kind of a loose cannon out to shoot up schoolyards, then IMO that should be the end of the state's ability to regulate your 2A rights.

This means no weapons bans and no "gun free zones" (excuse me, make that "come kill me zones").

Well, I'll grudgingly make one compromise here. Clearly one of the historical reasons for average people to individually own weapons was so that they would be sufficiently knowledgeable about those weapons that they could be turned into a fighting force with a minimal amount of effort. Many historical figures extoll us to train people, especially our young people, in the use of arms. So from that perspective, I suppose the state might have the right to ensure that bearers of arms are trained to one degree or another in their use. But I submit to you that this requirement must be reasonable. Certainly any training requirement that exceeds that which the local professional police must pass would be an unreasonable burden.

Anyway, this is my definition of "shall not be infringed." What's yours?


Of course, maybe the Parker attorneys don't really believe in the 2A or don't know how to interpret it properly...

I don't really know this for sure, but I suspect that the Parker attorneys may be attempting to make an individual rights argument that doesn't make the really scary leap all the way to "and you really can't regulate this right very much either." They aren't really going for a home run here; more like a double....

CCWFacts
09-11-2007, 9:29 PM
Anyway, this is my definition of "shall not be infringed." What's yours?

Well, there you go. You just justified NICS requirements for purchase, and perhaps a training requirement. Those are regulations. They seem reasonable to you. There are other opinions, but the point is, some level of regulation is reasonable. Shall not be infringed doesn't mean "beyond regulation".

What do I think is reasonable? NICS for purchase and transfers. Mandatory training in states where people don't grow up with gun or hunting experience. A shall-issue CCW system, or a VT-style system; either way is fine with me.

I would have four classes of weapons:

Sporting arms (hunting or sport type double-barrel shotguns) should be cash-and-carry and hardly regulated.

Ordinary rifles, pistols and shotguns, and small full-auto weapons (subguns, assault rifles) would be the class of "ordinary weapons". These all should be transferable with simple NICS.

"Exceptionally dangerous weapons", to include things like large MGs (M2HBs and bigger), artillery pieces, rockets. Those might be subject to registration and a more detailed BG check, but it would all be "shall issue".

Weapons that are not permitted for civilians: large bombs, nuclear weapons, long-range missiles, that kind of thing.

Those are my opinions. We don't all agree on what is reasonable. A court would figure this out by compromising, taking into account various opinions, etc.

hoffmang
09-11-2007, 9:38 PM
I don't really know this for sure, but I suspect that the Parker attorneys may be attempting to make an individual rights argument that doesn't make the really scary leap all the way to "and you really can't regulate this right very much either." They aren't really going for a home run here; more like a double....

When one is down by two in the bottom of the 9th with one out, a double is much more valuable than a homerun.

The attorneys in Parker/Heller are quite well aware of the larger issue set. Look at the parallels from the First. Shall make no law doesn't include laws about speech that disrupts traffic or speech that is above certain decibel levels. As such there will be many parallels to regulations that do pass muster. It's just that our (and the Parker/Heller attorneys) definition of "sensible regulation" is going to be quite different than the Brady's...

-Gene

bulgron
09-11-2007, 10:27 PM
What do I think is reasonable? NICS for purchase and transfers. Mandatory training in states where people don't grow up with gun or hunting experience. A shall-issue CCW system, or a VT-style system; either way is fine with me.

I'm OK with your definition of reasonable. As long as outright bans aren't permitted (and this includes bans on carrying) so that a reasonable path to ownership and carrying is available to all law-abiding citizens, I'll be ecstatic.

One thing to keep in mind is that "reasonable regulation" is likely to mean different things depending on your geographical location -- as you point out above. However, I'd go further and say that "reasonable regulation" is arguably something that needs to be set at a much more local level than at the state level.

Consider CCW licenses, for example. Does someone who grows up hunting in a rural county really have all the skills and legal knowledge necessary to safely and successfully practice CCW, especially in an exceptionally densely populated area such as New York City? And if the answer to that is 'not necessarily', how does that play out when you get into state-wide and even nationwide carry licenses?

I'm not saying I know the answer to this. I am saying that it's a potentially thorny legal issue that could come up someday if the "right to keep and bear arms" is found to be an individual right that shall not be infringed.

CCWFacts
09-11-2007, 10:43 PM
Definitely, there aren't easy answers on these topics. And I agree, what makes sense in one location (rural Montana for example) might make no sense in another location (NYC for example). The only problem with local (non-state-wide) regs is you can end up with a crazy patchwork of laws. "Oh, you can't carry that 11-round magazine when you're in Santa Barbara!" kind of thing.

I think the Parker attorneys are arguing for a legal standard like strict scrutiny, which requires the state the strictly justify every aspect of the regulation.

CCWFacts
09-11-2007, 11:02 PM
By the way, taking this from the realm of theory to the realm of reality, I would be happy if:

1. CA's AWB, not-unsafe handgun list, and large-cap mag ban were thrown out or attenuated

2. CA's discretionary system is reformed, bringing it in line with shall-issue systems in other states

3. 922(o) is thrown out, period

4. CA's NFA de facto bans are thrown out.

Those are the real-world results I would like to see, and they would be enough to make me happy. Of them all, CCW reform has the most real-world impact and importance.

hoffmang
09-11-2007, 11:05 PM
Gents,

I was having an interesting conversation that is tangential but directly related. Someone who posts on here asked me in the hallway today whether I'd rather have an RKBA in the CA Constitution or an excellent outcome in Parker/Heller. I answered Parker/Heller and here is why.

Federal constitutional rights don't vary much from circuit to circuit very long. The fifth circuit and all the other states that have RKBA provisions in their constitutions are going to be the places where the rights get defined. Texas' version of reasonable restrictions are likely to end up being the contours of the right that gets re-imported into California.

As such, the stronger protections in the states that aren't NY, NJ, MD, HI, CA, and MA are the norms that the individual right of the Second Amendment is likely to take on.

-Gene

CCWFacts
09-11-2007, 11:16 PM
I agree completely with your logic on that. This is one of those cases where a federal court needs to come in and stop states from violating their citizens' rights. Much like in the civil rights era. You couldn't count on the state of Mississippi to leap into action to end segregation, for example.

bulgron
09-12-2007, 12:19 AM
3. 922(o) is thrown out, period


I should probably know this, but what is 922(o)?

stag1500
09-12-2007, 11:07 AM
By the way, taking this from the realm of theory to the realm of reality, I would be happy if:

1. CA's AWB, not-unsafe handgun list, and large-cap mag ban were thrown out or attenuated

2. CA's discretionary system is reformed, bringing it in line with shall-issue systems in other states

3. 922(o) is thrown out, period

4. CA's NFA de facto bans are thrown out.

Those are the real-world results I would like to see, and they would be enough to make me happy. Of them all, CCW reform has the most real-world impact and importance.

The only thing I would add to your list is the repeal of the May 19th, 1986 machine gun ban. The price of machine guns today is way too over inflated and out of reach of most gun owners. Not too many people can afford to spend $15,000 on a select fire weapon.

ke6guj
09-12-2007, 11:15 AM
The only thing I would add to your list is the repeal of the May 19th, 1986 machine gun ban. The price of machine guns today is way too over inflated and out of reach of most gun owners. Not too many people can afford to spend $15,000 on a select fire weapon.

He mentioned that,3. 922(o) is thrown out, period

ke6guj
09-12-2007, 11:17 AM
I should probably know this, but what is 922(o)?
922(o) is the ban on civilians owning post-1986 manufactured machineguns.

Toolbox X
09-12-2007, 3:49 PM
Where can I get an Assault Weapon Registration form so I can submit it and get denied?

bwiese
09-12-2007, 4:03 PM
Where can I get an Assault Weapon Registration form so I can submit it and get denied?

You don't want an AW *registration* form. That can be denied for various other reasons - mainly, the reg period is closed.

Do an AW *permit*, I believe the forms are somewhere on DOJ website.

But hold off for a bit so we can trigger things at the right time.