Second motion for argument on the merits
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Now that the NRA's 2nd-Amendment case in DC (Seegars v Gonzales) has had it's petitions for re-hearing denied at the appellate level, the Cato Institute case (Parker v DC)
can move forward. In my last report on the Seegars case, I noted
that the judge in Parker had asked for motions regarding the next steps
in the case, with a July 22nd deadline. The Parker attorneys have
filed their motion, with several attachments. We should be expecting the government to file their own soon. The short version is that the Parker attorneys want the court to set a briefing schedule and dates for oral argument. No surprise, it's pretty much the same thing they asked for last time, and nothing much has changed since then. The precedent set by the denial of standing in Seegars is inconvenient, but there are several potential points of differentiation in the record. Parker attorneys need to convince the judge that their case can be differentiated from the various relevant unfavorable precedents on the matter of standing. Here are some of the major cases, in reverse chronological order:
The main point of difference between the two cases is the statements made by city officials and defense team regarding whether the Parker plaintiffs would be prosecuted if they violated the law. Seegars plaintiffs were not threatened directly or specifically (and the defense was careful to point out that they might not be prosecuted even if they broke the law). Parker plaintiffs, however, have received specific threats of prosecution for violating the law they are challenging, and the lower court agreed that they had standing to bring their suit -- even though it found unfavorably on the merits. The Parker attorneys argue that those specific threats of prosecution meet the Seegars standard, and additionally address the question of administrative remedies. The latter discussion contains the meat of the brief. The Parker attorneys claim that persuing administrative remedies prior to a challenge is not a necessary component of standing in cases where such would be futile (eg, where administrative judgement is not required). To use a contrasting example, someone appealing a denial of their may-issue concealed-carry permit might be required to follow the administrative procedures to apply before doing so, because it is an administrative judgement whether the individual will receive their permit or be denied. But if the denial is certain -- as it is in the case of the District's handgun ban -- then there is no need to follow the futile procedures before challenging in court. It's easy to see how any other view could be abused, simply by defining administrative procedures that no one would be willing or able to follow. Who would consent to an application procedure that involved a million-dollar application fee and needed to be renewed yearly, for example? There are three specific subpoints, dealing with the doctrine of administrative exhaustion in purely Constitutional cases, whether futile acts are required to sustain standing, and a rather interesting civil rights angle. The first two points are well-supported by cited precedent, including not only First Amendment cases (which, as you will recall, was a point of contention in Seegars; government attorneys claimed that "freedom of expression" was a special case with regard to standing) but also civil rights law and rules forbidding inmates from possessing legal materials. It seems clear that the administrative exhaustion point is a victory for our side. If nothing else, one of the Parker plaintiffs actually did submit an application to possess a handgun in his home and was denied, thus indicating that at least some of the procedures were followed. It will be difficult for the court to deny standing on that basis. Whether the 2nd Amendment is to be treated as establishing a protected civil right for individuals, however, remains a more vulnerable point, for simple lack of precedent. That matters less in this particular case, however, because to answer that question would involve reaching the merits of the case. Here, the Parker attorneys make an argument that has not been seen before in this case. They argue that District citizens have a Constitutional right to access the Federal Courts for the District, on the same basis as citizens of the States. This argument is interesting because it is almost, but not quite, an argument for incorporating the 2nd Amendment against the States. The basic idea is that the citizens of a State are entitled to redress of their Constitutional grievances within the Federal Courts. This argument depends on the various precedents "incorporating" the Bill of Rights into application against the States, for prosecution of civil rights violations by the States against their own citizens. Readers familiar with history will of course recognize the fallout from Civil War and Civil Rights jurisprudence. When State courts refused to permit certain citizens to exercise their rights, the Supreme Court ruled that the Federal Courts could -- and would -- enforce those rights over the objections of the State court systems. The catch is that the Supreme Court has so far refused to rule that the 2nd Amendment can be so applied. The beauty of this argument is that it makes use of incorporation precedent (ie, that citizens whose State has violated their Federal Constitutional Rights have standing to bring their case in Federal Court) without relying on incorporation of the 2nd Amendment specifically. I've noted before that both Seegars and Parker are interesting cases because they do not require the court to incorporate the 2nd Amendment for application against the States; the District is a Federal territory and is thus explicitly bound by the 2nd Amendment, whereas the States are only bound by it due to incorporation. As this argument suggests, however, to deny standing to District residents in Federal Court would be akin to giving a Federal territory more latitude to violate a Federal Constitutional Right than the States are permitted. Clearly, that result does not make sense -- and thus, the District residents must have at least as much right to persue their claims in Federal Court as State residents. If this argument succeeds, it would be a substantial, if small, step closer to incorporating the 2nd Amendment against the States, in addition to the weight of the argument in this case. Very clever, in my unlearned opinion. The second major point in the brief deals with those appellants who do not have an administrative remedy: specifically, those who wish to possess a functional long arm inside their home. This is an established weakness of the standing argument; both the Seegars and Parker cases reached the merits in the lower courts on these claims. The argument against standing on this claim rests on the claim by the government that prosecution for violation of the law is hypothetical rather than actual. Inconveniently for the government, and certainly unpleasant for those involved, but luckily for us, there are a number of cases wherein individuals who possessed and used a functional firearm in self defense were prosecuted for their possession but not their use. One of the cases cited is that of Carl Rowan, one that I have mentioned before. The other cited case is new to me, involving Adrian Plesha's use of a 9mm handgun to shoot a burglar. Both cases demonstrate that, in the mind of the District's prosecutors, there is no self-defense exception to the charge of handgun possession -- although a jury may feel differently, as it did in Rowan's case. The fly in the ointment is the fact that the threat of prosecution is still effectively speculative. If the violation were discovered, as would be the case if the firearm were used to shoot an intruding criminal, there can be little doubt that it would be prosecuted. But the discovery of the violation itself remains hypothetical, at least while the 4th and 5th Amendments remain intact. That hypothetical quality may allow the court to duck the question of standing on this point, but in my opinion, it would be wrong to allow the District to hide behind the 4th and 5th Amendments to protect their infringement of the 2nd. The pleading also includes several exhibits with the details of Adrian Plesha's case:
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