Petition for rehearing en banc in Seegars

A kind source has provided me with the Petition for Rehearing and Petition for Rehearing En Banc in the Seegars v Ashcroft case, coming this time from Stephen Halbrook's website. It is worth noting that, because Ashcroft was named in his official capacity, with the change of the Attorney General the common name of the case changes to Seegars v Gonzalez. This petition asks the entire (active) DC Circuit to hear an appeal of the case following the unfavorable opinion from the three-judge panel.

In some ways, this petition for rehearing was inevitable. Seegars v Ashcroft is a case that was intended to strike down the District of Columbia's ban on self-defense firearms. In filing it at all, the NRA (which is funding the legal work) has committed themselves to creating a potentially-negative precedent. That precedent, which was inevitable in the lower courts, becomes more binding each time it is upheld on appeal. So the question is, how much damage is the NRA willing to do to 2nd Amendment jurisprudence in their attempt to invalidate DC's firearms ban?

Absent Parker v DC, a very similar case also in appeals, the answer would have been "none". Seegars v Ashcroft was a case that exists primarily to give a nervous appellate court room to strike down the DC ban without relying on the 2nd Amendment. If the ban is struck down in that manner, the issue in Parker v DC becomes moot.

The NRA is justifiably afraid that Parker v DC will reach the Supreme Court and receive a ruling that explicitly denies a modern right for the general public to possess firearms. Such a ruling would be contrary to all serious scholarship on the Amendment, but perfectly in keeping with a Supreme Court that rules, 5-4, to consider "international law" and foreign opinion as the basis for invalidating the death penalty for juvenile offenders tried as adults. Parker is a gamble, attempting to force the 2nd Amendment issue before the Supreme Court with the best possible facts and obtain a precedent that can be used to overturn established precedents in lower courts. The stakes are high for both sides.

If my speculation concerning the NRA's legal strategy is accurate, they will appeal their case as high as they need to in order to prevent Parker v DC from reaching the Supreme Court first. They want whatever case comes before the Supreme Court to offer ample cover for the Justices to avoid ruling on 2nd Amendment grounds whichever way the ruling goes. Parker does not offer that cover; Seegars does.

So that's how the NRA ends up petitioning a case that invokes everything they could come up with, up to and including the kitchen sink, before the DC Circuit.

With all that said... this petition makes a strong case for granting the Seegars plaintiffs standing to challenge the law. While I think the inclusion of many of the non-2nd-Amendment claims are messy and spurious, I understand why they are there, and they don't have much influence on the question of standing. There's no question in my mind that the Seegars plaintiffs deserve standing as a matter of law. As a matter of politics, of course, it may not turn out that way. I've called out the main arguments briefly below.

Navegar, which is cited as controlling precedent by the appellate panel in Seegars, is clearly out of step with the standards of review for First Amendment cases and imposes a substantial burden upon plaintiffs seeking to demonstrate standing.
Requiring a credible threat of prosecution limits the challenges to those citizens who are criminals, or "who recklessly live on the murky edge", precluding exactly the challenges from law-abiding citizens that are most likely to invalidate a law and are also the most important.
Navegar could have been distinguished from Seegars, because there is no question of vagueness; plaintiffs' desired actions are accepted as being in violation of the law.
Navegar conflicts with existing standing precedent for corporations bringing pre-enforcement challenges to import/export regulations.

All of these are persuasive arguments on the merits of the panel ruling. Unfortunately they do not address, and cannot address, the real reasons for the ruling: no judge wants to rule against the 2nd Amendment openly, yet few judges desire to open the can of worms that is the open unConstitutionality of gun control law.

Unlike the District court, which reached the merits of the case and produced a dramatically unfavorable 2nd-Amendment ruling, the appellate panel has produced a politically neutral ruling that upholds the gun control laws in the District of Columbia on technical grounds. I suspect that the courts will prefer to leave the matter there if at all possible, and that the en banc appeal will be denied. Of course, the DC circuit may wish to put its stamp on a prominent case likely headed for Supreme Court review, and Halbrook makes strong arguments, so that result is by no means certain. If the petition is denied, it will most likely be a political decision rather than a legal one.

Posted on 2005-04-07 00:53:04.0 by matthew@triggerfinger.org

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Update on Seegars v. Ashcroft Gonzalez

by FreedomSight

TriggerFinger has an update. The NRA has filed a petition for rehearing in Seegars v. Ashcroft, which is now officially known as Seegars v. Gonzalez, since the Gonzalez has succeeded Ashcroft as Attorney General. Matthew also mentions the potential for impact to the Parker v. DC case. Should the DC gun ban be struck down in Seegars before Parker is heard again, Parker would become moot, because it concerns the same law. Matthew puts it this way.The NRA is justifiably afraid that Parker v DC will reach the Supreme Court and receive a ruling that explicitly denies a modern right for the general public to possess firearms. Such a ruling would be contrary to all serious scholarship on the Amendment, but perfectly in keeping with a Supreme Court that rules, 5-4, to consider "international law" and foreign opinion as the basis for invalidating the death penalty for juvenile offenders tried as adults. Parker is a gamble, attempting to force the 2nd Amendment issue before the Supreme Court with the best possible facts and obtain a precedent that can be used to overturn established precedents in lower courts. The stakes are high for both sides. If my speculation concerning the NRA's legal strategy is accurate, they will appeal their case as high as they need to in order to prevent Parker v DC from reaching the Supreme Court first. They want whatever case comes before the Supreme Court to offer ample cover for the Justices to avoid ruling on 2nd Amendment grounds whichever way the ruling goes. Parker does not offer that cover; Seegars does.I can certainly understand the NRA's concerns here, if this is indeed their strategy. But then the question is, when will there be a good case, or a good Supreme Court available to hear it? I'd feel better about it if Ginsberg were replaced with Kozinski from the 9th Cirucit, but that ain't gonna happen anytime soon, if ever.

Carnival of Cordite #8

by Resistance is futile!

Before we begin the Carnival, I'd just like to say a few words about other events in the world this week: We lost our Pope.

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