DC v Beretta: Supreme Court denies cert

The Brady Campaign is making noise about the Supreme Court's denial of cert in DC v Beretta. It's kind of silly, because the Supreme Court's refusal to hear the case doesn't really change much. While we had of course hoped that the Supreme Court would take the case and strike down the Strict Liability Act that the District is so fond of, the court has repeatedly emphasized that denial of cert is neither meaningful or precedential.

And I can probably tell you why the court declined to take that case, and the reason is rolled up in the new Chief Justice. Rehnquist would have been a solid vote for gun rights. Chief Justice Roberts might be, but he has indicated that he would recuse himself from participating as a Supreme Court Justice in decisions that he took part in as a lower court judge... such as this case, which was heard en banc while he was on the DC Appeals Court.

While he's not listed in either of the opinions before that court, the simple fact that he was on the court and the case was heard en banc might well be enough to earn a recusal, particularly since I do not have a vote count for this case (Roberts would probably have voted). It's also possible that Roberts recused himself simply because he was not familiar with the work that has been done on the case; the denial of cert was handed down on his first day.

Whatever the reason, the Supreme Court docket clearly states that the Chief Justice took no part in the case. If he would have continued that practice for the remainder of the case, our side would have lost one of our strongest voices and surest votes. Under those conditions, it's clearly better to retreat for the moment. The outcome of DC v Beretta is not really in doubt following the appeals court's decision; the industry will face ongoing legal costs, discovery, and a potential settlement, but they will face those things in a matter of eight individuals rather than all victims of gun violence in the District of Columbia.

In addition, the plaintiffs will have a very hard time proving the link from their injuries to a specific weapon manufactured by one of the defendents, something that almost certainly prevents them from winning anything. They can only hope to drag the case out as long as possible in discovery, running up the industry's legal costs and praying for some embarassing document or testimony to turn up.

Any further suits will likely follow a similar path to the Supreme Court, and that Court will have a new Chief Justice and possibly a new Associate Justice, both of whom are presumably in favor of the right to keep and bear arms and able to participate in the case.

And that's assuming that any such suits are still around after Congress finishes the liability protection act designed to block these cases.

Make no mistake, this is not a loss. It's simply not a complete victory.

Posted on 2005-10-05 16:16:59.0 by matthew@triggerfinger.org

Check the groups below and enter your email address to receive updates by email:

The trackback URL for this entry is: http://triggerfinger.org/weblog/servlet/trackback/6783

No trackbacks have been posted so far.

No comments have been posted so far.