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
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
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.