DC v Heller (PARKER) - The Cross Petition

[publius42]

Mods, if this should be in the mega-thread, I'm sorry and merge it there.

Here is the conclusion of the cross petition for cert filed on behalf of the people excluded from the initial case (Parker and the rest).

In demanding individualized threats of prosecution, a pre-enforcement challenge is virtually always too early, since even the government’s open-court vow to prosecute a plaintiff is apparently too generalized a threat. But if a threat is not sufficiently particularized until it rises to the level of actual arrest and prosecution, the putative plaintiff can only be a criminal defendant, owing to Younger abstention. In that respect, a post-enforcement civil challenge is always too late.

The court of appeals’ standing error is particularly troubling because it represents the law of the circuit that has direct jurisdiction over the seat of federal government. The impact of this errant doctrine is thus widespread and significant because it substantially curtails the people’s right to access the federal courts to obtain judicial review of governmental conduct – not only by the District of Columbia, as in this case, but by the federal government as well. Restoring a pre-enforcement right of access to federal courts, regardless of the Court’s decision on the merits of Respondents’ claims, is essential.


********* CONCLUSION **********

Cross-Petitioners respectfully request that the Court take this opportunity to clarify that pre-enforcement challenges under the United States Constitution may be heard in the nation’s capital without demonstration of a personalized prosecutorial threat.

Respectfully Submitted,
ALAN GURA*
ROBERT A. LEVY
CLARK M. NEILY III
Attorneys for Cross-Petitioners

Why did the Court not address this cross petition? It seems to me it would not have muddied up the issues in the question they have decided to address. Parker and the others are still people who are unaffiliated with any state militia and who wish to have operational guns in their homes for private use.

As they noted, granting the cross petition and resolving the conflict the DC Circuit has on the issue of standing is a something with widespread and significant impact, far beyond just gun issues. Perhaps they (SCOTUS) are concerned that the resulting avalanche of pre-enforcement challenges to federal laws would bury the federal courts. I can think of other answers, but they're kind of cynical. What do you think?

 

[Al Norris]

Mods, if this should be in the mega-thread, I'm sorry and merge it there.

This is now a completely separate issue and is a stand alone thread.

Why did the Court not address this cross petition? It seems to me it would not have muddied up the issues in the question they have decided to address. Parker and the others are still people who are unaffiliated with any state militia and who wish to have operational guns in their homes for private use.

As to that first question, see below.

Correct. And the question presented by the Court takes that into account by the way it is phrased.

Perhaps they (SCOTUS) are concerned that the resulting avalanche of pre-enforcement challenges to federal laws would bury the federal courts.

This answers your question. Any who thought the Court was not political is in for a rude awakening!

Currently, the cross-petition is still on the docket. Cert has neither been granted nor denied. Only time will tell what the SCOTUS may do.

Should the rest of the Circuits adopt the standard that the D.C. Circuit is using, the Court may deem there to be no controversy and deny cert...

The next dates for conferences are Nov. 30th and Dec. 7th. We'll just have to keep an eye on the calendar to see what happens.

 

[GoSlash27]

This would be a huge boon to us if granted and upheld. Effectively it would mean that anyone can challenge an unconstitutional law regardless of whether they were personally affected by it or not.

Personally I don't think it will go this way since the SC's current makeup has rejected other appeals on these same grounds (or am I reading it wrong?)

 

[publius42]

Currently, the cross-petition is still on the docket. Cert has neither been granted nor denied. Only time will tell what the SCOTUS may do.

Oh, OK. I do think it would be a heck of a can of worms, but hey, I like worms. Why keep 'em canned up?

 

[tatera]

It was my understanding the Supreme Court just ruled on this issue, essentially concluding that a citizen should not have to risk liberty in the redress of grievances. Perhaps I misunderstood the article NPR.

Withdrawing standing certainly seems particularly harse, especially in the light of any fundamental rights being allegedly infringed. I believe an alternative seems necessary; perhaps meeting some burden of evidence and review prior to consuming court time. As tax payers - I see it reasonable we'd flip the bill for the extra process to allow our grievances be addressed by means other than prosecution. I'd consider it a price paid for freedom.

 

[FirstFreedom]

but hey, I like worms. Why keep 'em canned up?

You and the early bird - hey as long as it doesn't give the SCOTUS a reason to punt the main issue, I'm all for deciding more issues rather than fewer issues.