Federal appeals court overturns DC's "Good Reason" restriction

csmsss said:
Scalia's scribblings on Heller are, sadly, in my opinion the worst written opinion he ever sat down. He leaves ambiguous the two most fundamental questions that needed to be solved:
1) Do citizens have the right to protect themselves wherever they may be, and
2) Does the 2A protect that right wherever they find themselves

Scalia goes to great length in Heller discussing the common law and historical antecedents and references, which is all well and good, and then punted by so narrowly (and unnecessarily, in my opinion) tailoring Heller around the specifics of that particular case that any lawyer worth a nickel could use it to justify any restriction he/she wanted. Scalia was no fool - he knew what was riding on this decision and that it would be parsed seven ways to Sunday for any opening in which a gap could be exploited to shrink the fundamental 2A right, and he gave them exactly what they asked for. For God's sake, he even invented a notion of some sort of "core" 2A right as a subset of the entirety of 2A rights, basically inviting his opinion to be evaluated in this fashion.

Imagine if landmark rulings like Brown v. Board of Education were litigated in this manner. Outrageous, right? Yet Scalia knew that is exactly how his opinion would be litigated and one can only assume he deliberately wrote it in such a way as to allow it to heppen.

All he needed to do was make clear the answers to those two fundamental questions above.
Click to expand...

It would have been nice if Heller had addressed those questions, and I agree that SCOTUS does need to address them, but the law Heller was about didn't involve defense outside the home, so it's not surprising that they weren't answered. The Supreme Court has to answer the question posed by the case they are hearing, not issue blanket policies. To quote Heller:

But since this case represents this Court’s first in-depth examination of the Second Amendment, one should not expect it to clarify the entire field.
DC v Heller, p63
Click to expand...

Heller does refer to self defense as a core protection of the 2nd, but you're going to have to provide citations where it's defined as a subset of anything.

Blaming Scalia isn't called for; there is no limit to how far anti-gun bigots will twist any ruling they don't like to make it say something it doesn't, as recent lower court decisions have proven.
 
It would have been nice if Heller had addressed those questions, and I agree that SCOTUS does need to address them, but the law Heller was about didn't involve defense outside the home, so it's not surprising that they weren't answered. The Supreme Court has to answer the question posed by the case they are hearing, not issue blanket policies. To quote Heller:
Click to expand...
No offense, but I think your argument is unconscionable. Either something is a fundamental right or it is not, and if so, it does not solely exist within a specific context. I think it is complete obfuscation to claim that Scalia was bound to speak to 2A only in the home in the Heller ruling - in no other case asserting a fundamental right is the opinion tailored so slosely to the context of the case itself - if anything such opinions are universally broadly tailored in favor of the right, not to its disparagement.
 
Either something is a fundamental right or it is not, and if so, it does not solely exist within a specific context. I think it is complete obfuscation to claim that Scalia was bound to speak to 2A only in the home in the Heller ruling - in no other case asserting a fundamental right is the opinion tailored so slosely to the context of the case itself - if anything such opinions are universally broadly tailored in favor of the right, not to its disparagement.
Click to expand...

Well that's not true even a little bit . If that were true why are there so many 1st , 2nd & 4th amendment cases in history . If the judges are supposed to rule on the complete right and everything it encompasses in every case . That would seem to mean we should only need one or two cases to solve all disputes involving any presumed right .

I've read many opinions that only answered the question at hand . In fact I've read arguments in appeals that the judge would shut down because they were not brought up in the original arguments of the case even though they were perfectly valid points .

Not having the judges rule outside the scope of the argument is exactly what you should want . It's either that or you get even more legislating from the bench .

At least that's how I understand it , YMMV but I'll let the lawyers link case after case for you to read where judges only ruled on the arguments at hand and not every aspect of the right there could be .
 
Last edited:
csmsss said:
No offense, but I think your argument is unconscionable. Either something is a fundamental right or it is not, and if so, it does not solely exist within a specific context. I think it is complete obfuscation to claim that Scalia was bound to speak to 2A only in the home in the Heller ruling - in no other case asserting a fundamental right is the opinion tailored so slosely to the context of the case itself - if anything such opinions are universally broadly tailored in favor of the right, not to its disparagement.
Click to expand...

Courts limit the scope of their decisions all the time. If they didn't they'd hear two or three cases a year while hashing out every detail of the few cases they managed to squeeze in. Just as on any project, you have to manage the scope or it will expand forever and you'll never finish anything.

I think you're confusing "didn't address because it's out of the scope of the case before them" with "disparagement". Just because the decision on a given case doesn't address a certain related aspect of the case doesn't mean that the aspect is approved or denied, it means it wasn't addressed.

The expectation that every aspect of a constitutional amendment is going to be resolved in one case simply isn't realistic. There have been 151 Supreme Court cases involving just the free speech aspects of the 1st amendment, never mind the hundreds involving freedom of the press, religion, etc.

https://en.wikipedia.org/wiki/List_...eme_Court_cases_involving_the_First_Amendment
 
Last edited:
You also have to remember that Heller was a 5-4 decision, and Scalia likely wrote it trying to maintain that critical 5th vote. The case was also narrowly tailored to try to eke out a win. If Gura had gone for the whole enchilada, we probably would have lost, sad to say.
 
Imagine if landmark rulings like Brown v. Board of Education were litigated in this manner. Outrageous, right?
Click to expand...

Scalia is adjudicating, not litigating. And considering that the predecessor case for integration of public schools was Plessy v. Ferguson (1896), referencing Brown (1954) is probably not the example you were looking for.

Aside from the judicial malpractice you advocate in ruling on an argument not even raised by the plaintiff, Scalia also had to get five votes. We know acknowledging the Second as an individual right (at least in the Heller dissent) had broad support; but four justices were willing to make that individual right toothless by saying a security guard could not even keep an assembled .22LR revolver in his own home under that "right."

And by the time the McDonald decision rolled around the dissenters abandoned even accepting a toothless individual right as a compromise and insisted Heller was wrong about an individual right entirely.

Scalia was not El Supremo Commandante, at liberty to write whatever he wished and have it become law.
 
bottom line, is the status quo going to be tied up in court for how long, or when do the permits start getting issued the proper way?
 
what happens if say SCOTUS actually hears the case and rules against carry outside of the home? What are those odds?
 
First things first!

First, we have to wait and see if D.C. is going to file an appeal. If they do file, then we have to read the appeal to see what question(s) the appeal asks the SCOTUS to settle.

If D.C. does not appeal, then the case goes back to trial court for further proceedings.

Edited to correct myself: If D.C. does not appeal, then the District Courts will file permanent injunctions against enforcement of the "good reason" portion of the law.
 
My guess is that DC will appeal the permanent injunction issued by the District Court because they can't let this stand:
the legally decisive fact: the good-reason law is necessarily a total ban on most D.C. residents’ right to carry a gun in the face of ordinary self-defense needs, where these residents are no more dangerous with a gun than the next law-abiding citizen.
Click to expand...

They will appeal to the en banc court and likely get a favorable ruling.

The SCOTUS will not grant cert, probably for the same reasons they didn't in Peruta. Concealed carry has never been protected and they're not going to start. Not even where there's an open carry ban.

I think they might hear a case on open carry bans.
 
Lower courts are largely misinterpreting or outright ignoring SCOTUS rulings on the 2A - a point Scalia made several times before his death.

It might ultimately help us get better rulings if SCOTUS waits until some favorable lower court vacancies are filled before taking the next 2A case. In that instance, the timing for this case would be very fortunate.
 
Bartholomew Roberts said:
Lower courts are largely misinterpreting or outright ignoring SCOTUS rulings on the 2A - a point Scalia made several times before his death.

It might ultimately help us get better rulings if SCOTUS waits until some favorable lower court vacancies are filled before taking the next 2A case. In that instance, the timing for this case would be very fortunate.
Click to expand...

Why should the Supreme Court have to wait for more favorable lower courts? It's called the SUPREME Court for a reason.

SCOTUS should start sending these lower court decisions that pervert / ignore Heller back for reconsideration without even hearing the case via a per curiam opinion, just as they did with Caetano v. Massachusetts in 2015. They simply can't allow lower courts to dump on Supreme Court decisions like this. Not if the word "Supreme" is going to mean anything.
 
That's the same point Scalia, Thomas and now Gorsuch have argued in their rare dissents of denial. Evidently, that approach doesn't have four votes on SCOTUS. Let's hope that is because SCOTUS favors a soft touch; because the alternative isn't in our favor.
 
My two cents: D.C. will undoubtedly seek en banc review. There is no way that the city council, which unanimously abhors guns and has enacted every conceivable barrier to issuance of permits of which it can conceive, and the city attorney who does as well, can let this decision go unchallenged. The City must necessarily elect to seek en banc review for two reasons: 1. It gives them two bites at the apple, as opposed to one if they go all in for Supreme Court review now; and 2. the Democratic Party appointed judges outnumber the Republican appointees 11-4 (and one of those 4 was the dissenter), which means that they are appealing to a panel that is likely favorably disposed to their "conundrum."

The odds are undeniable that a reversal is more likely than not. The real question is on what grounds the city law will be upheld (whether in whole or in part). I would not be surprised if they went the route of the Ninth Circuit en banc panel in Peruta v. Gore, and deny that there is any right to carry a concealed firearm outside the home, although to be honest, that decision was logically and legally dishonest, given the further fat that a) California bans open carry of firearms, loaded or not, in all incorporated cities and towns, and b) even if open carry were permitted, the California Gun Free School Zone Act (which is not being challenged in the pending open carry case) effectively prohibits open carry in the majority of all areas of every city. Alternately, and more likely, it will decline to address whether there is a right to carry outside the home, but will assume so for the purpose of review. And then it will apply the so-called "intermediate" review standard applied in all of the liberal circuits (2, 3, 4, and 9) that is nothing but rational basis review tied up in a pretty package, and uphold the restrictive law on the basis of the public interest in "public safety."

It appears that the city's petition for en banc is due in September (unless extended). since no mandate will issue until that process is complete, the City may elect to drag out the process as long as possible. Assuming that review is granted, the briefing will likely go at least through November or December, with argument at the very earliest sometime next spring or summer. Just like the city, since the status quo is maintained, the court is under no particular pressure to act expeditiously.
 
Per an article from WAPO the district has 30 days from the date of the decision to request a rehearing en banc, which was what happened with Peruta in the 9th Circuit. If none is requested, the injunction goes into effect 7 days later.

This assumes that certiorari is not petitioned and that SCOTUS does not grant a stay pending the petition process.
 
So by August 24th then? A date I will always associate with hurricane Andrew.

There's no reason to appeal to SCOTUS. They have a better shot with the en banc circuit.
 
Bartholomew Roberts said:
Scalia is adjudicating, not litigating. And considering that the predecessor case for integration of public schools was Plessy v. Ferguson (1896), referencing Brown (1954) is probably not the example you were looking for.

Aside from the judicial malpractice you advocate in ruling on an argument not even raised by the plaintiff, Scalia also had to get five votes. We know acknowledging the Second as an individual right (at least in the Heller dissent) had broad support; but four justices were willing to make that individual right toothless by saying a security guard could not even keep an assembled .22LR revolver in his own home under that "right."

And by the time the McDonald decision rolled around the dissenters abandoned even accepting a toothless individual right as a compromise and insisted Heller was wrong about an individual right entirely.

Scalia was not El Supremo Commandante, at liberty to write whatever he wished and have it become law.
Click to expand...

Succinct, direct, colloquial, persuasive...extra-ordinarily well put.

I can blame no one for feeling frustration at the product of a complex government with cities and lower courts and other Sup Ct justices who fail to embrace or actively oppose the right. Placing the blame on the man who wrote the Heller majority opinion is an error.
 
Per an article from WAPO the district has 30 days from the date of the decision to request a rehearing en banc
Click to expand...

So that would be by tomorrow. Can they file for an extension on that deadline? The pattern since 2008 has been to drag things out as long as possible so I'd expect as many extensions as are allowed, if any.
 
You must log in or register to reply here.
Back
Top