Alan Gura is still kicking ass and taking names on the RKBA front:
What are the odds that this case makes it to the Supreme Court? Do you think the District will appeal?
The District will definitely appeal it to full court. After that, they can appeal it to the SC. Why wouldn’t they appeal? They have nothing to lose.
They may not have anything to lose, but places like MD, NJ, and CA sure do.
But if they don’t appeal, and other lawsuits are filed in MD, NJ and CA, and if those are decided against the plaintiffs, then there will definitely be an appeal to the SC, and the DC Circuit decision will provide the “circuit split” that facilitates such appeals.
I mean, yes, if DC doesn’t appeal it will get dragged out more for MD NJ and others. But it will wind up as an appeal to the SC anyway.
The District will probably request en banc. I would guess the District would prevail in that case, then Gura could appeal to SCOTUS. I am skeptical if SCOTUS would take that case since they just denied cert in Peruta which was nearly the same thing.
This case stems from the 2009 Palmer case which was discussed here.
A few more thoughts. The District has 30 days whether to request an en banc hearing. 7 days after that I believe this ruling goes into effect if there is no other action. Currently the District is not issuing licenses or changing any practice.
One of the plaintiffs that was combined in this ruling was a member of the Pink Pistols (Grace and Pink Pistols named litigants). The Pink Pistols have been deeply involved in the gun rights movement. One of the original plaintiffs in Heller (Tom Palmer) is a member and they have filed numerous amicus briefs in support of gun rights over the years. This is another win for the LGBT rights and gun rights. Kopel discusses some of the history of the LGBT aspects here.
Of the 3 judge panel, Judge Griffith was a George W. Bush appointee. Judge Williams was a Reagan appointee, and Henderson an George H.W. Bush appointee. Federal judges at the district and appellate level are very important and the cause of gun rights can move forward even with very flawed executives.
The judge who dissented, Henderson, was also on the original Heller case and dissented there as well. In her original dissent she wrote:
Suffice to say her legal reasoning is sub-optimal. In the current dissent, she notes that Heller stated that the core right of self defense is most acute in the home, therefore self defense outside the home is not part of the core right and therefore banning carry of any type doesn’t implicate the 2nd amendment at all. She conveniently ignores the word “bear”.
The decision of the District Court of Appeal is probably correct, under the Heller analysis. It’s hard to argue that an individual right to keep and bear arms should be limited to cases where the state agrees to let them do so.
Neat. For once, I 100% agree with your analysis of the situation. Why wouldn’t they appeal it as far as they can go? Sure, the SC may refuse to hear it, but they’re definitely going to try.
This seems like a fairly reasonable law that nonetheless pisses me off to no end. It’s obviously not going to pass muster post-Heller. This is the kind of thing like those laws that place odious, pointless restrictions on abortion providers - they know it’s unconstitutional (or if they don’t, they’re idiots incapable of reasonable governance), and the only purpose is to bend the law as long as possible to punish people.
The problem with this is that you’re a few years too late. There has already been litigation in MD (Woolard), NJ (Drake), CA (Peruta), and NY (Kachalsky). All had the “May issue” permitting scheme that DC copied. In each case, at the federal appellate level the plaintiffs lost and cert was denied. Some won initial cases, but either overturned at the appellate level, or overturned en banc. The only circuit that was successful in overturning the may issue scheme was Moore in the 7th circuit (Chicago actually).
That means that there is already a circuit split, and there was when Peruta and others were denied cert. It’s unlikely that is a significant enough motivator to get this case accepted by SCOTUS. What I think is the most likely outcome is that the District requests en banc, it is granted, and the decision of the en banc court would match all other districts except the 7th, and the may issue permitting scheme survives. The best chance of carry at the no-issue states would be national reciprocity.
Obvious to me is that the carry scheme in DC is unconstitutional, but that relies on judges enforcing the constitution. I’m skeptical with regards to the 2nd.
I doubt DC will start handing out CCW permits so that California’s ability to deny permits isn’t jeopardized.
This has to be resolved the SCOTUS and frankly one reason why they aren’t granting cert is because Heller was contentious and the amity of the court would be tested by a CCW case.
There are very few constitutional rights that require a license to exercise. There are no other constitutional rights where that license is granted at the discretion of the state.
Sub-optimal is being charitable at best. By her reasoning, the people who live in DC are not US citizens.
I might be ok with this conclusion 
(just kidding, I don’t actually want DC residents stripped of their citizenship, or their Constitutional rights)
And look, just about 30 days later, DC requests en banc.
There are currently 11 members of the DC court of appeals, 4 of which were appointed by Republicans, and 7 by Democrats. One of the Republican appointees, Janice Brown, is retiring in 6 days, so the panel will be 7-3. I’m going to predict en banc will be granted and the decision will be overturned. Then, SAF will appeal to SCOTUS.
The tricky part of timing is that if SCOTUS makeup doesn’t change, cert will probably be denied. So this en banc and ruling, and filing time need to take enough time for Kennedy and Ginsburg to retire. If those things happen first, then I’d say there’s a good shot of the initial ruling (carry is protected) being upheld. C’mon, Ruth! Rest, enjoy time with your family, you’ve earned it!
I was wrong. En banc request was denied:
I’m legitimately surprised. It really does put the focus on SCOTUS and whether DC wants to roll the dice on a cert petition. If cert is requested, granted, and the District loses, then they’d be responsible for setting in motion dismantling of more restrictive carry schemes nationwide. I would think that there would be a minimum of 3 votes at SCOTUS to grant cert, and 4 are necessary. One of the liberal justices could vote to grant cert if they had a side deal with Kennedy to kill concealed carry, but I’m not sure if judges make those kinds of deals. It’s like Survivor - if they collude before the vote they could probably get outcomes much more to their liking.
I’m not nearly-as-astute a court watcher as you, but this sounds like really good news for our side. Is it good news for our side, or am I misunderstanding something here?
If you are in favor of gun rights, it’s definitely an intermediate win. The biggest thing it does is move the status quo in DC. If nothing changes going forward, DC residents will be able to get a carry permit.
Whether it will be favorable in the long run depends on a few factors. If you are aggressive, and are optimistic that SCOTUS will agree with you, then this is great. One more step and then perhaps nationwide shall issue. If you are pessimistic about SCOTUS, then this could be potentially very damaging because if SCOTUS rules against, it would allow a floodgate of more restrictive laws to be available (though probably not much change at state levels).
But certainly en banc being denied is better than it being granted.
DC decides not to roll the dice and will not petition for cert.
Specifically citing the risk of setting nationwide precedent. Now the District must establish standards for permit issuance. I expect they will try other restrictive measures similar to Chicago and it will take further litigation to bring them in compliance. More fees for SAF.
I wish people in general would care about DC for more reasons than gun policy matters.