The District Court Failed To Address Plaintiffs? Arguments.
The District Court Failed To Address Plaintiffs? Arguments.
The District Court conceded that ?plaintiffs? arguments [concerning the meaning of Miller] are not without merit.? JA 52. Yet without engaging their substance, it dismissed Plaintiffs? arguments because if the Supreme Court truly thought that Miller was being read to stand for a proposition much greater than the Court intended, it surely would have taken one of the opportunities it has had in the last sixty five years to grant certiorari and correct the misunderstanding. This Court is thus reluctant to accept plaintiffs? reading of Miller. JA 52.
Respectfully, parties are entitled to have their arguments considered, even if the Supreme Court has not taken an opportunity to endorse their positions. Nor may denial of certiorari be construed as an endorsement of the lower court?s opinion.
Indeed, Miller carries more precedential weight than any number of certiorari denials. Notably the District Court did not extend its logic to the denial of certiorari in Emerson, a missed opportunity to reject Plaintiffs? claims.11 Emerson v. United States, 536 U.S. 907 (2002).
This is a brilliant piece of lawyering between the Emerson judges and the Parker counsel. (Not that this was planned, but I remember commenting on what the Emerson decision set up when the appeals court decision was published, and the Parker counsel has made brilliant use of it).
Consider: The Emerson decision in the appeals court upheld the Lautenberg restrictions on firearms possession as having the minimal amount of due process required to validate the infringement of a 2nd Amendment right to possess arms. In the course of deciding this, they reached the merits of the 2nd Amendment claims and found in favor of an individual right with extensive and detailed analysis.
This means the government won't be inclined to appeal; after all, they won the case and got their conviction. The plaintiff appealed, but the Supreme Court was free to deny certiorari. Doing so leaves the original decision in place. The original decision is a 5th-circuit appellate-level ruling (en banc if I recall correctly) that has extensive analysis of the 2nd Amendment claim and finds for an individual right, all of which was necessary in order to examine and eventually reject Emerson's claim. Because of this, the entire 5th Circuit now has an individual right precedent on the books that lower courts are bound by.
That sets up a long-term circuit split (with the 9th Circuit, which has ruled for a collective right in a number of cases) that can only be resolved by the Supreme Court. In the meantime, it gives us a pro-individual-right precedent to cite in other cases like this one. One of those followup cases will presumably be accepted by the Supreme Court eventually, and that case will likely be a well-crafted civil rights case like Parker rather than a criminal defense (with apologies to Emerson, who most likely does not deserve what he got).
In addition, the way Emerson was decided allowed for a delay in resolving the 2nd Amendment issue at the Supreme Court. When the decision was handed down, remember, we didn't have either Roberts or Alito on the court. Those two judges are presumed to be good votes on the gun issue.
And here we have the Parker attorneys making use of that setup. They are citing Emerson extensively as precedent (admittedly out of circuit precedent, but still valid in the absence of conflicting in-circuit precedent) in the context of a cleanly-crafted case before a circuit that has had 5 years of a (relatively) conservative President and Senate to appoint judges.
Having rejected Plaintiffs? admittedly meritorious arguments regarding Miller ? principally because the Supreme Court had not reviewed collective rights interpretations of that case ? the District Court did little more than cite those interpretations as a basis for its holding. It did not analyze Miller itself, or those cases upon which it relied, most of which, in turn, contain virtually no discussion of Miller either.12
Similarly, the District Court approvingly cited Lewis, supra, 445 U.S. at 65 n.8, for the proposition ?that a statute that criminalizes possession of a firearm by a convicted felon "?[did not] trench on any constitutionally protected liberties.?" JA 51-52. Lewis does not elaborate, but Plaintiffs would not quarrel with the notions that felons may be disarmed without impairing the Militia?s effectiveness, and that felons, by their criminal activities, forfeit any number of constitutional rights available to the law-abiding.
As for Emerson, the court below refused to engage the Fifth Circuit?s reasoning, preferring to side with the concurring opinion?s assertion that the majority opinion is largely dicta. Yet the District Court?s opinion in Emerson held that the Second Amendment secures an individual right to keep and bear arms and dismissed the government?s indictment on those grounds. Emerson v. United States, 46 F. Supp. 2d 598 (N.D. Tex. 1999), rev?d, 270 F.3d 203 (5th Cir. 2001).
The Fifth Circuit, in reversing that outcome, necessarily reviewed the District Court?s individual rights analysis. See Emerson, 270 F.3d at 265 n. 66.
Dicta is a term of art for the sections of a legal opinion not necessary to decide the case; those sections don't have value as precedent. It's sometimes difficult to distinguish dicta from the important parts of a decision, especially since most judges try to avoid writing it. The district court refused to consider Emerson as precedent, saying that the individual rights analysis is dicta; yet both 5th circuit courts in Emerson found for an individual right. It cannot be dicta in the lower court because that court overturned the Lautenberg law; the appellate court opinion on an individual right cannot be dicta because it overturned the lower court's decision after reviewing the individual right finding.
Even if the District Court wishes to argue that the individual rights findings in Emerson at the appellate court were dicta because they did not overturn the lower court's findings, that leaves the lower court's findings in place -- and they are equally strong for the individual rights perspective. There's no way for the collective-rights view to effectively neutralize Emerson's individual rights precedent when used to support a carefully crafted civil rights case. The whole thing is a brilliant piece of legal strategy.
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