Is the risk of messy precedent a valid basis for denial?

Well, sort of. Concern for the neatness of precedent should not stand in the way of justice, but a judge doesn't have to explain himself or his reasons for denying or voting against an appeal. Furthermore, there are a lot of cases where minor errors might arguably have been made, but where those errors did not unjustly alter the outcome of the case. Granting an appeal is motivated either by a desire to correct a clear error, set new precedent, or clarify the application of existing precedent. This argument amounts to saying that the present case won't result in clear and unambiguous precedent and doesn't constitute clear error.

It's reasonable to make those arguments, and particularly so in this case, since the case is clearly intended to set precedent. However, I don't buy it. While Seegars is definitely messy, it's dealing with the blanket abridgement of a fundamental, Constitutionally-protected right. That makes it a matter of justice, not just neatness, if the panel hearing got it wrong. Of course, if most of the judges don't think that the right to keep and bear arms is protected, then they won't be worried about setting precedent anyway.

What this argument is really aimed at, I think, is Parker v DC. It's saying, in effect, that judges who want to set 2nd Amendment precedent should look to the Parker case because it's cleaner. That's me reading in between the lines, but it seems pretty straightforward. Judges who want to set a clear 2nd Amendment precedent might be swayed by this argument, those who want to avoid it will vote against rehearing the case anyway. This is a fairly cynical point, since it can be assumed that the government doesn't want to set a clear 2nd Amendment precedent unless it's sure to be

Posted on 2005-06-17 04:22:31.0 by matthew@triggerfinger.org

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