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March 12, 2007

Parker Decision: Celebrate, but with Grave Concerns


By now the news about the decision Parker v. District of Columbia case has reached many gun owners and rights advocates via Internet.

http://www.nytimes.com/2007/03/10/washington/10gun.html? em&ex=1173758400&en=6f0dd1043eae85fb&ei=5087%0A

or http://tinyurl.com/26ow2m

In a nutshell, the United States Court of Appeals for the District of Columbia Circuit declared the D.C. gun law unconstitutional to the extent that the law prohibits all firearms possession.

This decision is better news for the right to keep and bear arms than was the Fifth Circuit's Emerson decision. Although the Emerson case contains an excellent and correct analysis of the Second Amendment, the decision did not strike down any laws and the armed citizen still lost. In this recent Parker case, the statute was declared unconstitutional and the armed citizens won.

Our joy must be tempered by two potential factors:

(1) The losing party can petition the D.C. Circuit to review the matter "en banc" -- which means having the matter redecided by a panel of *all* of the D.C. Circuit judges. The D.C. Circuit is authorized to have 12 active judges, so if there are no vacancies, it would take only seven judges to vote for rehearing. The only reason to vote for a rehearing en banc would be to reverse the current decision. It seems likely that there are seven judges on the D.C. Circuit who would follow their political leanings and vote to reverse.

Truth be told, it would be worse for Second Amendment jurisprudence if the D.C. Circuit does reverse the Parker decision, because en banc decisions of federal circuit courts have especially strong precedential value.

(2) The losing party can petition to the Supreme Court. They have a very slim chance of having the case heard in the Supreme Court, but until they have filed their petition and it has been denied, the possibility exists.

The potential results of a hearing before the Supreme Court are highly uncertain for two reasons. First, the actual views of the justices about the Second Amendment are not well known. Second, the "conservative" justices on the Court are the sort that tend to believe that, when in doubt, local and state powers should be upheld. This current Court has no great record of protecting individual rights at all -- not against state legislatures. Since the D.C. gun laws are the equivalent of state laws, we could expect the Supreme Court to find a majority of votes in favor of the easy way out: just support the local law, and chalk it up to "democracy."

Between possibility (1) and (2), we far more fear (1). The D.C. Circuit could very likely take this case en banc -- all it takes is a vote of the judges -- and this great precedent will likely be erased and disgraced (in the eyes of the "mainstream" judges around the country).

Nevertheless, it is wonderful news that at least two federal appellate judges on the D.C. Circuit court can speak the truth accurately, clearly and publicly. Looking at both the Parker decision and the Fifth Circuit's Emerson decision, we can now point out that our individual-rights view is held by distinguished judges as well as by scholars across the nation. Our position cannot be disregarded as purely a fringe movement.

Then again, we never did quite realize why the fundamental right to self-defense -- and the right to possess peaceably the tools to implement that right -- should be anything other than self-evident.

- The Liberty Crew

 


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