frogman68
товарищ плачевная
- Apr 7, 2013
- 8,774
so he can say sit on it for 5 yrs and deem this bs law not to his ruling and allow constitutional carry and no court can stop it ?
VICTORY IN PALMER!!!!
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so he can say sit on it for 5 yrs and deem this bs law not to his ruling and allow constitutional carry and no court can stop it ?
jrosenberger
Active Member
No, he denied the 180 day stay. There will be an oral argument about the motion for reconsideration on 10/17. I'm guessing the decision on that will be made on or before the 10/22 stay expiration, along with the decision on the new stay motion, should the district make one.
Patrick
MSI Executive Member
Another thing to keep in mind here is the November electoral outcome. DC really wants to wait and see how the winds blow there. If the Senate goes GOP, then the congress is GOP controlled and they've already made clear they are going to upend DC's laws - probably by forcing through a modification. Remember that the Congress has exclusive authority over DC - what we see as a legislative body in the city council is nothing but borrowed authority from the Congress. Also, every law that the council passes is really nothing but a proposal - the Congress has 30 days to deny the proposed law based on a simple vote. There is no chance at all that DC is going to get a GOP Congress to go along with a may-issue regime.
Timing is funny for them. On the one hand you could see them passing something fast knowing that the split Congress could not disapprove it. BUT...the pressure on Senate Dems is strongest in states where guns are pivotal in a tight year: NC, WV, MT, LA, CO, MT, NH, GA.
DC passing that law right now would cause the House to vote against it, and then force the Senate Dems into decision-making time. Sure, Reid could avoid a vote but then the GOP gets to go nuts on TV calling out Dems as anti-right bigots. And if the vote actually happened, I think we'd see some defections that could also cause harm.
On the other side: if the Senate goes GOP, then DC deniers have really only one hope: appeal the ruling. However...Congress can moot that easily by removing from DC the privilege of making law on guns. I think an appeal would probably cause Congress to act, especially considering the GOP has said they are going to do this, anyway.
So I am the one holdout here thinking there is a shot that if the Senate goes GOP, then DC bites the bullet (pun) and creates a permit system that is hard to navigate, but possible to get. Kind of like their response to Heller. Expect an "Emily carries her gun" series, to boot (go Emily!). It might be enough to split the true believers and the RINOs who really don't like the little people or their rights.
But if Congress is going to act no matter what, DC will do whatever it takes to put up a good show. The council has the inside scoop on where things might go in these scenarios, and their actions suggest they are wary of Congress. Seriously, there is absolutely nothing that DC can do if Congress wills it.
The scariest thing for the DC Council is that there exists within the Congress a large block of people who want to roll-back significant portions of DC Home Rule. To give you an idea of how tenuous their grip on power is, the entire gun law regime of DC could be wiped out by modifying a single line of the Home Rule act, by amending it to state that their police powers do not extend to firearms. All of their authority disappear in about six words. So in a run-up to 2016, when Dems have used guns as a divisive issue, the DC Council probably really, really does not want to give the Congress an excuse to modify any part of their Home Rule authority. Because if they can kill DC Gun Control is six words, imagine what a paragraph could do. Nobody in the nation will fall on their sword for DC Home Rule, but you can bet gun owners will vote their appreciation.
The #1 hope right now for DC deniers rests in the Dems keeping the Senate.
Timing is funny for them. On the one hand you could see them passing something fast knowing that the split Congress could not disapprove it. BUT...the pressure on Senate Dems is strongest in states where guns are pivotal in a tight year: NC, WV, MT, LA, CO, MT, NH, GA.
DC passing that law right now would cause the House to vote against it, and then force the Senate Dems into decision-making time. Sure, Reid could avoid a vote but then the GOP gets to go nuts on TV calling out Dems as anti-right bigots. And if the vote actually happened, I think we'd see some defections that could also cause harm.
On the other side: if the Senate goes GOP, then DC deniers have really only one hope: appeal the ruling. However...Congress can moot that easily by removing from DC the privilege of making law on guns. I think an appeal would probably cause Congress to act, especially considering the GOP has said they are going to do this, anyway.
So I am the one holdout here thinking there is a shot that if the Senate goes GOP, then DC bites the bullet (pun) and creates a permit system that is hard to navigate, but possible to get. Kind of like their response to Heller. Expect an "Emily carries her gun" series, to boot (go Emily!). It might be enough to split the true believers and the RINOs who really don't like the little people or their rights.
But if Congress is going to act no matter what, DC will do whatever it takes to put up a good show. The council has the inside scoop on where things might go in these scenarios, and their actions suggest they are wary of Congress. Seriously, there is absolutely nothing that DC can do if Congress wills it.
The scariest thing for the DC Council is that there exists within the Congress a large block of people who want to roll-back significant portions of DC Home Rule. To give you an idea of how tenuous their grip on power is, the entire gun law regime of DC could be wiped out by modifying a single line of the Home Rule act, by amending it to state that their police powers do not extend to firearms. All of their authority disappear in about six words. So in a run-up to 2016, when Dems have used guns as a divisive issue, the DC Council probably really, really does not want to give the Congress an excuse to modify any part of their Home Rule authority. Because if they can kill DC Gun Control is six words, imagine what a paragraph could do. Nobody in the nation will fall on their sword for DC Home Rule, but you can bet gun owners will vote their appreciation.
The #1 hope right now for DC deniers rests in the Dems keeping the Senate.
redeemed.man
Ultimate Member
I like your thought process here, I hope you are right. If I could carry in DC today I would extend my business into DC for sure. The crazy thing is that my business license (Public Adjuster) is reciprocal (they will recognize my MD license by issuing a DC license) and can be activated online in a matter of minutes. All insurance licenses work this way throughout most of the United States. I am actually in the process of expanding into Pennsylvania as we speak. PA allows me to use my MD Public Adjuster license to activate a non-resident Public Adjuster license in Pennsylvania. PA also allowed me to do the same thing with my MD handgun permit by using it to grant me a PA LTCF. There are some great examples for DC to follow or for Congress or Judge Scullin to force them to follow. Above is just one example.
fightinbluhen51
"Quack Pot Call Honker"
- Oct 31, 2008
- 8,974
Any legislative act by congress w/ regards to the Federal Enclave will also telegraph to the courts, they better pay attention, or Congress will FIX what THEY are screwing up too.
The mime's box is very small using your insight.
esqappellate
President, MSI
- Feb 12, 2012
- 7,408
He won't do that now that he has ruled
TxAggie
Ultimate Member
Patrick,
I'm still new to the DC/Congress game, so please excuse my ignorance. The way you just described this, I take it the President does NOT have veto authority with regards to DC oversight laws?
Yep Article I Section 8 of the Constitution gives Congress the oversight of DC.
The Executive Branch is not involved. Thank God.
The Executive Branch is not involved. Thank God.
TxAggie
Ultimate Member
esqappellate
President, MSI
- Feb 12, 2012
- 7,408
I love that thought. But, I remain more than a little skeptical that Congress will act to fix DC gun law. They could have done it back in the Bush administration when Republicans controlled both houses and the Presidency.
Didn't happen. And even if the Dems are a minority after 2014, they could still filibuster it for no other reason than to appease the Left. A congressional fix is but a faint hope, I think. Still, no matter how remote, the in terrorem affects are worth something
Esq-I'm still not clear as to how this might play out. Assuming they tell Scullin that the "progress" they're making includes a may-issue scheme. Who determines whether a new case challenging may-issue is necessary? If Scullin smells a rat (aka may-issue), can he keep the case going in his court and force DC's hand?
esqappellate
President, MSI
- Feb 12, 2012
- 7,408
Scullin gave them a stay to give DC time to pass a law so as not to leave DC without any gun regulation re outside the home. If they are making progress, Scullin could extend the stay. If they aren't or if Scullin decides for any reason that a further stay is inappropriate, the judgment and the injunction goes into effect and DC would stand enjoined from enforcing the two statutory provisions specified in the injunction. Now, DC could pass the next day a new law, which would not, by definition, be affected by the injunction. Or, DC could say "Screw it" file a notice of appeal and seek an emergency stay pending appeal, first from the district court and then, if unsuccessful, from the court of appeals. They would very likely get a stay, leaving the old law in effect pending appeal. Scullin does not have the power, IMHO, to keep the case going to address, sua sponte, any new law, because that new law has not been challenged and is not properly before him. He merely has the power to extend or not extend the existing stay of his injunction on the existing law. To challenge a new law would take a new suit which may or may not be assigned to Scullin.
Brooklyn
I stand with John Locke.
Well that explains the motion to reconsider... .it had no consequences to DC. But a new case may not need to plaintifs if its a different claim.... but yes we start over...but the good news is that it gives us another shot if the other carry cases are passed over for cert.
jrosenberger
Active Member
What makes this different from the situation in Ezell? The fact that an injunction was actually issued by the district court?
Recap of Ezell from my recollection:
dismissed at district level
overturned at CA7 with order to the district court to issue an injunction
Chicago issues new law that's effectively still a ban on ranges and moves to dismiss in district court
court denies MTD, asks for proposed injunctions and amended complaint
court denies injunction and starts discovery on whether the new law is a defacto ban
around we go for 3 more years so far
esqappellate
President, MSI
- Feb 12, 2012
- 7,408
A timely motion for reconsideration tolls the time to file a notice of appeal and is thus very valuable to DC. That coupled with the stay gives DC breathing room to consider what to do next. It seems like, from the Washington Post this morning, that they have decided to pass new legislation. If so, that probably would moot any appeal. They know that of course so the debate in DC is how restricitive they think they can make it and have it survive attack. They can read the decisions of the 3d Cir, the 4th Cir and the 2d cir. just as well as anyone so that's their model. That way they can have very limited carry (NJ, anyone), get out of Judge Scullin's court and buy themselves a lot of time and perhaps even win the next round ala Woollard. The wild card is Congress, as Patrick says and that is just impossible for me to predict.
kcbrown
Super Genius
- Jun 16, 2012
- 1,393
That's all well and good, but such regulation has to be consistent with both the decision and the order, right?
I may be wrong, but hear me out...
The order separately and unconditionally strikes two different parts of the law.
The first part is the bit that limits non-LEO firearm registration to self-defense in the home, and thus limits the legal self-defense use of firearms to the home.
The second part, and this is the important part, is the requirement for a DC-issued permit to carry in public.
Now, yes, together those two bits of law represent a complete ban on carry outside the home. But importantly, the court unconditionally and separately struck the permit requirement. The court did not order DC to begin issuing permits, or to craft a law which made permits available to the law-abiding public. It unconditionally struck the permit requirement itself.
So answer me this: how can a "may issue" permit scheme, which would of necessity prohibit carry in public without a permit, possibly be consistent with the court's orders when that very requirement was struck unconditionally and directly?
To say that the government could do that and somehow be consistent with the court's order is to insist that the court's power to strike legislation is void, for it means that the government could simply pass new legislation that incorporates the very same prohibitions that were struck and not run afoul of the court.
Mr H
Banana'd
Thank you...
The "second part" is what I've been trying to make into a cohesive question, and I'm glad you articulated it as you did.
esqappellate
President, MSI
- Feb 12, 2012
- 7,408
This gets tricky. The City can pass a new statute and claim the case is now moot. An amended complaint, if accepted, effectively starts a new lawsuit, as the claims are brand new. That is effectively what happened in Ezell. Whether to accept an amended complaint is discretionary with the court. He could make them file a separate lawsuit. Either way, you start over from ground zero with new claims and discovery and delay. An amended complaint just keeps the case with this Judge. Which is a big advantage. Now, it may not may not be available in this case, as standing will rear its ugly head. Generally, to have standing to challenge a may issue statute, you have to submit an application and have it denied. That has to happen BEFORE a suit is filed as standing must be established at the outset of the complaint and maintained throughout the litigation. So an amended complaint may not be an option. In Ezell, in contrast, IIRCC, such standing issues were not such a probem becasue of the nature of the claim itself. It gets tricky
TxAggie
Ultimate Member
Man, just when I thought I had this down.
Again, I'm an Aggie, so bear with me, please.
So let's say DC does pass a new law and it does not conform to the limits imposed by Scullin. Does this become a completely new case starting from scratch or can an injunction be filed with Scullin? Can he put a stay on both the new law and the laws he already struck, or do the old laws become invalid and the new law active, thus warranting a completely new complaint?
This is exactly why I didn't go to law school. Well, that and the fact that I can barely spell "law school."
Again, I'm an Aggie, so bear with me, please.
So let's say DC does pass a new law and it does not conform to the limits imposed by Scullin. Does this become a completely new case starting from scratch or can an injunction be filed with Scullin? Can he put a stay on both the new law and the laws he already struck, or do the old laws become invalid and the new law active, thus warranting a completely new complaint?
This is exactly why I didn't go to law school. Well, that and the fact that I can barely spell "law school."
esqappellate
President, MSI
- Feb 12, 2012
- 7,408
Yes, the legislative body can play these games. And yes there is case law on that as part of the mootness doctrine. It woud not be so blatant here. DC could simply repeal the offending provisions the court has enjoined and create new rules for may issue. That is completely within their power to do so without any risk of contempt. Now, Judge Scullin's reasoning and legal rulings would constitute precedent on the legality of such new rules, but there is absolutely no contempt issue. Remember, the injunction strikes down the ban on issuing permits for outside the home, but did so where the result was a complete ban on outside the home carry. That does not mean that DC is permanently enjoined from enacting *any* permitting system, only the existing one that had that effect.
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