PDA

View Full Version : Gura just kicked the District when they were down...


the_quark
09-12-2007, 3:43 PM
http://dcguncase.com/blog/2007/09/12/time-to-enjoin-the-functional-firearms-ban/

Bottom line: Since DC failed to mention the requirement that firearms be non-functional in their request for cert, the DC Circuit should enforce that part of their decision, now, instead of waiting for the Supreme Court...

the_quark
09-12-2007, 3:47 PM
Favorite quotes so far from the filing:

Thus, it appears the city has conceded the unconstitutionality of the functional firearms
ban. If so, there is no reason for the stay of the mandate to remain in effect with respect to that
provision.


The certiorari petition’s description of this Court’s holding is, at best, inaccurate.

Librarian
09-12-2007, 4:07 PM
Oooh, nice!

I like the conclusion.
CONCLUSION
The question before this Court is whether any reason exists to continue depriving District residents of their constitutional rights under a law that the city refuses to defend any further. The city has abandoned its defense of the functional firearms ban. It has suggested that if the Court’s understanding of the provision is accurate, then the law is indeed unconstitutional.

And most critically, the city has represented to the Supreme Court that a legal environment exists in the District of Columbia in which rifles and shotguns are “allowed” – an environment in which the functional firearms ban no longer exists. If that representation is accurate, then the mandate to enjoin enforcement of the city’s ban on functional firearms, D.C. Code § 7-2502.07, should issue forthwith.

Scarecrow Repair
09-12-2007, 4:07 PM
Is this the kind of filing that is likely to get a quick response, as in days, or will it drag on for months?

And if the stay is lifted and people buy buy buy, suppose SCOTUS eventually reverses Heller -- what would happen to all those people who bought during the interim? Would they be grandfathered in, or have to surrender their guns, or could they (worst case) be charged with a crime?

Liberty1
09-12-2007, 4:22 PM
Nice! Sweet! Oh Baby!

JawBone
09-12-2007, 4:40 PM
So this would only lift the DC ban against functional long arms -- essentially, because DC didn't appeal the long gun issue, SCOTUS has nothing to decide and that would end the issue. DC citizens would be free to buy long guns and keep them functional in their houses as they please. Nice end run.

This cuts both ways - it will be a nice quick win for DC residents on the long guns, but we won't get a National decision on the constitutionality of the "functional" long gun ban. Of course, if the handgun decision goes our way, it likely won't matter.

:lurk5:

EastBayRidge
09-12-2007, 5:46 PM
Nice... I kind of wondered about that when reading the cert petition - they seemed to gloss over the non-functional long arms portion of DC law.

GU-RA ! GU-RA ! GU-RA !

HK fan
09-12-2007, 7:27 PM
Is this the kind of filing that is likely to get a quick response, as in days, or will it drag on for months?

And if the stay is lifted and people buy buy buy, suppose SCOTUS eventually reverses Heller -- what would happen to all those people who bought during the interim? Would they be grandfathered in, or have to surrender their guns, or could they (worst case) be charged with a crime?

need I say it? Two weeks...

tango-52
09-12-2007, 7:29 PM
So this would only lift the DC ban against functional long arms -- essentially, because DC didn't appeal the long gun issue, SCOTUS has nothing to decide and that would end the issue. DC citizens would be free to buy long guns and keep them functional in their houses as they please. Nice end run.

This cuts both ways - it will be a nice quick win for DC residents on the long guns, but we won't get a National decision on the constitutionality of the "functional" long gun ban. Of course, if the handgun decision goes our way, it likely won't matter.

:lurk5:
Actually, in the footnote on the next-to-last page, Gura makes the comment that they can (i.e. will) bring the long gun issue up before SCOTUS. Apparently, since they will be agreeing with the Appeals Court on this issue, the Parker/Miller side can use it in their arguments to SCOTUS but the DC side can't because they didn't contest it. Sweet victory!

Fjold
09-12-2007, 8:32 PM
http://dcguncase.com/blog/2007/09/12/time-to-enjoin-the-functional-firearms-ban/

Bottom line: Since DC failed to mention the requirement that firearms be non-functional in their request for cert, the DC Circuit should enforce that part of their decision, now, instead of waiting for the Supreme Court...

The link is broken.

tango-52
09-12-2007, 8:34 PM
Here is an updated link:

http://www.gurapossessky.com/news/parker/documents/lift_stay.pdf

CCWFacts
09-12-2007, 8:40 PM
A great step forward in the march to VICTORY!

That is so cool. It is awesome when the enemies of freedom, um, shoot themselves in the foot.

What's especially cool is that the court granted DC an extension on its request for cert, so they had plenty of time and therefore no excuses for their brain-dead mistake.

Happy New Year everyone! Shana tova!

EastBayRidge
09-12-2007, 8:50 PM
It may be a brain-dead mistake, or they may have deliberately jettisoned long arms in order to concentrate on the handgun ban...

I'll have to look through the petition again, but I have a hard time believing that a brief lawyered by both Akin and O'Melveny, both top-notch firms, would make a "mistake" like this... OTOH, stranger things have happened.

Fjold
09-12-2007, 9:11 PM
Here is an updated link:

http://www.gurapossessky.com/news/parker/documents/lift_stay.pdf

Thanks for that. That was a surprisingly easy read for being written in legalese.

hoffmang
09-12-2007, 11:58 PM
This was not a mistake in the classic sense.... It was a lack of imagining the possible.

Akin and O'Melveny made the strategic call to narrow the issues to the things they thought had the best chance of being winners (or giving SCOTUS an out)... The didn't think through what an aggressive counsel might do to the issues left on the table by their strategic narrowing...

What Gura did today was both pwn DC and cement his win in a way that even the scariest bad SCOTUS rulings couldn't undo.

-Gene

FreshTapCoke
09-13-2007, 1:47 AM
I have never seen anyone get kicked in the teeth so hard.

A question has arisen for me though. We're all assuming that the purpose of the convoluted argument from DC it to limit a possible Supreme Court decision on whether or not handguns are protected under the Second Amendment instead of actually answering whether or not the 2nd is an individual right.

If the Supreme Court were to accept this request, it truly has no bearing on the scope of the appeal, right? DC, having had their nose rubbed in their pile, can modify their argument to encompass all of the points brought up in the District Court ruling when they make their initial argument, yes?

I guess what I'm trying to get at is that Gura is probably not really trying to get the Stay overturned; is he trying to box DC into a corner where they have to address the Individual Rights issue in their argument?

hoffmang
09-13-2007, 2:22 AM
DC appealed on three and only three issues:

1. The 2A doesn't grant individuals rights unless they are directly connected to a state militia.

2. Even if #1 is wrong, the 2A doesn't limit DC.

3. Even if DC is wrong about #1 and #2, a handgun ban isn't a prohibited regulation since District residents can exercise their right to keep and bear arms with long guns.

Gura basically said... ok, fine. #3 must mean that you agree that DC residents have the right to keep and bear long arms which directly implies that DC agrees that the restrictions on functional long arms are unconstitutional. Otherwise, DC would have had a #4 that defended their ban on functional long arms...

DC put themselves in a corner they deserve... Gura is quite trying to get the stay, as it relates to long arms, overturned.

DC's option is to return to SCOTUS on its hands and knees saying, "oops - we lied in our Cert appeal..."

As your mother always told you, its hard to keep a web of lies straight....

-Gene

383green
09-13-2007, 9:30 AM
It is awesome when the enemies of freedom, um, shoot themselves in the foot.


It's even better when they aim for their foot, but miss the foot and hit their kneecap instead. :D

Liberty1
09-13-2007, 12:48 PM
It may be a brain-dead mistake, or they may have deliberately jettisoned long arms in order to concentrate on the handgun ban...

I'll have to look through the petition again, but I have a hard time believing that a brief lawyered by both Akin and O'Melveny, both top-notch firms, would make a "mistake" like this... OTOH, stranger things have happened.

Upon review I agree. I think considering the make up of the current court and the strength of the DC decision, they chose to do just that; jettison the long arm issue. After all even if long arm become protected in the home people are less able to carry them around town on normal business.

CCWFacts
09-13-2007, 1:37 PM
If they were deliberating jettisoning the long-arms issue, then they should have filed a motion with the circuit court saying, "hey, we don't want you to stay this part of your ruling because we're not going to bother with it." Or does it work that way?

mblat
09-13-2007, 2:12 PM
I almost cried :D
That is ROYAL kick in the arse.....

tango-52
09-13-2007, 3:55 PM
If they were deliberating jettisoning the long-arms issue, then they should have filed a motion with the circuit court saying, "hey, we don't want you to stay this part of your ruling because we're not going to bother with it." Or does it work that way?

If you remember, they got a postponement on their submittal for cert because they were waiting for a special, hot-shot gun law expert to be added to their team. I bet he came on board and looked at the case, then told them how badly they were screwed. They then prepared this limited filing, to have a case that they could present to SCOTUS, and hoping nobody noticed that they had left 75% of the case uncontested. But that is just a theory. :D

tango-52
09-14-2007, 6:05 PM
Anybody have any idea how long the 5th Circuit should take to rule on this? And don't tell me two weeks. lol

JawBone
09-14-2007, 6:18 PM
I read that DC has until Sep. 24th to file a response. (http://www.scotusblog.com/movabletype/archives/2007/09/dc_resident_see.html)

I don't know how long it will take the D.C. Circuit Court to rule, but given their Appellate Ruling, I don't think it will take too long.

hoffmang
09-14-2007, 11:48 PM
I expect Judge Silberman to hand DC what's left of their head promptly after DC files a response.

-Gene

aileron
09-15-2007, 11:22 AM
I'm just wondering if this is really true, where could one find this, and if its true, I hope NRA, or others post it in the friends of the court briefing. Seems relevant if its true.



*It would do us all well to remember through Federalist and other contemporaneous works that the wording of the 2nd morphed thusly:

*The right of the people to keep and bear arms shall not be infringed; a well armed and well regulated militia being the best security of a free country; but no person religiously scrupulous of bearing arms shall be compelled to render military service in person.

*A well regulated militia, composed of the body of the people, being the best security of a free State, the right of the people to keep and bear arms shall not be infringed, but no person religiously scrupulous shall be compelled to bear arms.

*A well regulated militia, composed of the body of the people, being the best security of a free state, the right of the people to keep and bear arms shall not be infringed; but no one religiously scrupulous of bearing arms shall be compelled to render military service in person.

*A well regulated militia, composed of the body of the people, being the best security of a free state, the right of the people to keep and bear arms, shall not be infringed, but no one religiously scrupulous of bearing arms, shall be compelled to render military service in person.

* A well regulated militia, being the best security of a free state, the right of the people to keep and bear arms, shall not be infringed

*A well regulated militia being necessary to the security of a free State, the right of the People to keep and bear arms, shall not be infringed

hoffmang
09-15-2007, 11:53 AM
That progression of the 2nd Amendment's drafting is accurate to basically everything I've read. The big problem is that the people who try to read that as meaning that the 2A was only martial miss a couple of key points. First, they think the definition of militia is really "select militia" and miss that militia has been defined as all citizens (as that has morphed over the years) since about 1790 in the same part of the US. Code. Second, they are correct that the color of the right is mostly about being able to defend oneself from the government. If that's the version of the right they want enforced, then I'm very fine with that and its implications. A martial 2A would really call into question registration and would certainly allow much broader access to man portable military arms than even some 2A proponents would like to see.

As to Amici - there is a very big get together in the next couple of weeks and every pro-gun group and attorney that matters will be there to dole out all the issues. To get a feel for what it might look like, I suggest you read the Amici in the Court of Appeals for Parker. There is a good list here: http://dcguncase.com/blog/case-filings/

This may be one of the best briefed SCOTUS cases in years. It's certainly one of the most important for the long term health of the union.

-Gene

CCWFacts
09-15-2007, 9:30 PM
It's certainly one of the most important for the long term health of the union.

It really is. Self-defense is a basic biological need / reality of all animals. No animal trusts his defense to someone else. That's apolitical reality. But there are people (many people) who think that we humans should no longer have responsibility for our own defense. The state should provide for that. That implies the state will ultimately be responsible for a lot of other things.

This was the old model that was called feudalism, in which the lord was responsible for the defense of his serfs. He also was responsible for taking away as much of their assets as he could, even if they sometimes starved. And just to make the whole thing personal, he had something else called le droit de seigneur (http://en.wikipedia.org/wiki/Droit_de_seigneur).

Anyway, feudalism is emotionally comforting to many people, because hey, at least there's someone in charge. It's comforting the same way gun control is comforting. Exactly the same way.

So this case really is that important: do we go with the old model of feudalism (which is now being called socialism) or do we stick to this new, scary, free concept where we are all responsible for our own basic needs?

dfletcher
09-15-2007, 10:09 PM
Le droit de seigneur?

It's good to be the king.......

CCWFacts
09-15-2007, 10:19 PM
Yup!

NB, le droit de seigneur is not historically documented / established. But the point is, lords owned serfs and could and did get away with whatever they wanted to do, and could not criminally liable for, say, murdering a serf. Even if le droit de seigneur wasn't actually a written law, certainly there was no recourse if a feudal lord raped one of his peasants.

gcrtkd
09-16-2007, 1:59 PM
If personal responsibility is your bag, then Ayn Rand's Anthem is required reading: http://www.noblesoul.com/orc/texts/anthem/basic.html

It's a very quick read and well worth it.

-gcrtkd

aileron
09-17-2007, 6:47 AM
That progression of the 2nd Amendment's drafting is accurate to basically everything I've read. The big problem is that the people who try to read that as meaning that the 2A was only martial miss a couple of key points. First, they think the definition of militia is really "select militia" and miss that militia has been defined as all citizens (as that has morphed over the years) since about 1790 in the same part of the US. Code. Second, they are correct that the color of the right is mostly about being able to defend oneself from the government. If that's the version of the right they want enforced, then I'm very fine with that and its implications. A martial 2A would really call into question registration and would certainly allow much broader access to man portable military arms than even some 2A proponents would like to see.



-Gene

Speaking of the Devil.

http://gunshowonthenet.com/2ALEGAL/Precedent/HouseAmend08171789.html


House of Representatives, Amendments to the Constitution

17, 20 Aug. 1789 Annals 1:749--52, 766--67

[17 Aug.]

The House again resolved itself into a committee, Mr. Boudinot in the chair, on the proposed amendments to the constitution. The third clause of the fourth proposition in the report was taken into consideration, being as follows: "A well regulated militia, composed of the body of the people, being the best security of a free state, the right of the people to keep and bear arms shall not be infringed; but no person religiously scrupulous shall be compelled to bear arms."

Mr. Gerry*.--This declaration of rights, I take it, is intended to secure the people against the mal-administration of the Government; if we could suppose that, in all cases, the rights of the people would be attended to, the occasion for guards of this kind would be removed. Now, I am apprehensive, sir, that this clause would give an opportunity to the people in power to destroy the constitution itself. They can declare who are those religiously scrupulous, and prevent them from bearing arms.

What, sir, is the use of a militia? It is to prevent the establishment of a standing army, the bane of liberty. Now, it must be evident, that, under this provision, together with their other powers, Congress could take such measures with respect to a militia, as to make a standing army necessary. Whenever Governments mean to invade the rights and liberties of the people, they always attempt to destroy the militia, in order to raise an army upon their ruins. This was actually done by Great Britain at the commencement of the late revolution. They used every means in their power to prevent the establishment of an effective militia to the eastward. The Assembly of Massachusetts, seeing the rapid progress that administration were making to divest them of their inherent privileges, endeavored to counteract them by the organization of the militia; but they were always defeated by the influence of the Crown.

Davidwhitewolf
09-27-2007, 10:52 AM
Update: the Circuit denied the motion. See here (http://volokh.com/posts/1190912263.shtml).

Davidwhitewolf
09-27-2007, 2:48 PM
Sorry, didn't see the other thread on this topic (http://www.calguns.net/calgunforum/showthread.php?t=70201).