VICTORY IN PALMER!!!!

[esqappellate]

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."

I like Aggies. I have good friends who are Aggies. Hell, my son nearly went there (he chose VMI instead). College Station is a bit hot for me and the campus is truly enornous (as is its stadium), but the people are great! Anyway, you got to understand that the complaint and the injunction address specific statutory provisions. If a new law is enacted, then you need to find plaintiffs with standing to challenge that new law. Since may issue is different than NO issue, the legal issues are different too. See answer above.

 

[Maestro Pistolero]

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."

Read the post directly above yours. It spells out many of the possibilities. The short answer is it depends. This judge is not shy about his decisions. We are going to know a lot more after 17 October with oral arguments and the motion for reconsideration is dealt with.

 

[kcbrown]

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.

Then what is to prevent any jurisdiction from repealing the offending provisions that have been struck and enacting new ones that contain the previously struck provisions? And how does that not void the review power of the judiciary?

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.

The problem as I see it is this: if the court intended to leave the possibility of a permit standing, it would have not struck the permit requirement, but instead would have ordered DC to pass a law allowing law-abiding citizens to get permits, or some other law consistent with the decision. This is exactly what the 7th Circuit did in Moore, so there exists an example this court could have followed if it had chosen to. Courts are, as I understand it, loathe to strike laws when alternatives exist, and such would be the case here if the intention of the court were to retain the possibility of permits. That it struck the permit requirement directly, separately, and unconditionally suggests that those alternatives were not sufficient in the eyes of this court.

That does not mean that DC is permanently enjoined from enacting *any* permitting system, only the existing one that had that effect.

In light of the above, I don't see how that can be the case, unless one posits that this court is unable to say what it means.

 

[esqappellate]

Then what is to prevent any jurisdiction from repealing the offending provisions that have been struck and enacting new ones that contain the previously struck provisions? And how does that not void the review power of the judiciary?


The problem as I see it is this: if the court intended to leave the possibility of a permit standing, it would have not struck the permit requirement, but instead would have ordered DC to pass a law allowing law-abiding citizens to get permits, or some other law consistent with the decision. This is exactly what the 7th Circuit did in Moore, so there exists an example this court could have followed if it had chosen to. Courts are, as I understand it, loathe to strike laws when alternatives exist, and such would be the case here if the intention of the court were to retain the possibility of permits. That it struck the permit requirement directly, separately, and unconditionally suggests that those alternatives were not sufficient in the eyes of this court.


In light of the above, I don't see how that can be the case, unless one posits that this court is unable to say what it means.

That has actually happened believe it or not. As the 4th Circuit recently stated in Rock for Life-UMBC v. Hrabowski, 411 Fed.Appx. 541 (4th Cir. 2010), “n Valero, which addressed the mootness of a plaintiff's claim for injunctive relief against enforcement of several state regulatory statutes, we held that ‘”statutory changes that discontinue a challenged practice are ‘usually enough to render a case moot, even if the legislature possesses the power to reenact the statute after the lawsuit is dismissed.”’” quoting Valero Terrestrial Corp. v. Paige, 211 F.3d 112, 116 (4th Cir.2000), quoting Native Village of Noatak v. Blatchford, 38 F.3d 1505, 1510 (9th Cir.1994)

Judge Scullin's opinion is merely precedent, and not binding precedent at that, on whether and how DC may issue "may issue" regs. BTW, federal courts do not have the power to compel a legislative body to enact legislation. THe courts have the power to set aside legislation that conflicts with the Constitution, not compel the enactment of legislation that would be compliant. Whether or not a may issue system would be to this Judge's liking was simply not before him in this case. When and if DC enacts such a law, it could be challenged by plaintiffs with standing to do so. Thus far, no law has been enacted and no actual or imminent injury inflicted on anyone. This is the nature of our system. Courts have no power until or unless a case is properly brought before them by someone with Art. III standing to complain. And, as an aside, the 7th Circuit did not command Illinois to pass a law. IT merely stayed its decision to give them a chance to do so for a specified period of time. At no time did the 7th Circuit purport to review in Moore or Shepard the constitutionality of the law that was passed. Indeed, as indicated above, the Court expressly held that would take a new lawsuit. See Shepard v. Madigan, 734 F.3d 748, 752 (7th Cir. 2013) ("We do not mean to belittle the plaintiffs' complaint about delays built into the new law. But if they don't like the new law, and wish to invalidate it, they must bring a new suit.")

 

[swinokur]

Here is a DC press release issued yesterday. Seems like may issue to me.

 

[kcbrown]

That has actually happened believe it or not. As the 4th Circuit recently stated in Rock for Life-UMBC v. Hrabowski, 411 Fed.Appx. 541 (4th Cir. 2010), “n Valero, which addressed the mootness of a plaintiff's claim for injunctive relief against enforcement of several state regulatory statutes, we held that ‘”statutory changes that discontinue a challenged practice are ‘usually enough to render a case moot, even if the legislature possesses the power to reenact the statute after the lawsuit is dismissed.”’” quoting Valero Terrestrial Corp. v. Paige, 211 F.3d 112, 116 (4th Cir.2000), quoting Native Village of Noatak v. Blatchford, 38 F.3d 1505, 1510 (9th Cir.1994)

But that's not really what's at issue here. What's at issue here is a case where the legislature actually uses its power to reenact the statute's effects. Further, the bit you cited was applied in this context:

Citing our decision in Valero Terrestrial Corp. v. Paige, 211 F.3d 112 (4th Cir. 2000), the district court held that the plaintiffs' facial challenge to the facilities use policy was moot in light of its permanent revisions, which the plaintiffs concede are sufficient to render the policy facially constitutional.

Here, the problem is that the plaintiffs would not be conceding the Constitutionality of the revised law. Hence, how is Valero applicable?

Judge Scullin's opinion is merely precedent, and not binding precedent at that, on whether and how DC may issue "may issue" regs. BTW, federal courts do not have the power to compel a legislative body to enact legislation.

You're right, and I erred in suggesting that they have the power to force the legislature to pass new legislation.

But they have the power to strike legislation, and to hold the effects of doing so for a period of time while compliant legislation is passed. That's precisely what happened in Moore.

Here, the question isn't whether or not the court has the power to compel legislation, but whether or not it has the power to strike legislation that conflicts with its order without the overhead of a new case.

If it does not, then the legislative branch can thumb its nose at the judicial branch forever without consequence to itself or the actual effect of the law, because laws take effect immediately and remain in force until successfully challenged in the judiciary, and bringing a new case takes a long period of time. Even if we were talking about a preliminary injunction, the process takes months.

ETA: As applied here, all the legislature would have to do is substitute one unachievable condition on the permit for some other one. As there is no shortage of such conditions, and each new iteration would have to be independently challenged, it follows that a legislature which is determined to undermine a fundamental Constitutional right can do so with impunity simply by continuously reenacting legislation which imposes some unachievable requirement for acquisition of the permit.



In light of that, if you're right, whence the power of the judiciary? It would be sound and fury, signifying nothing.

 

[TxAggie]

I like Aggies. I have good friends who are Aggies. Hell, my son nearly went there (he chose VMI instead). College Station is a bit hot for me and the campus is truly enornous (as is its stadium), but the people are great! Anyway, you got to understand that the complaint and the injunction address specific statutory provisions. If a new law is enacted, then you need to find plaintiffs with standing to challenge that new law. Since may issue is different than NO issue, the legal issues are different too. See answer above.

VMI is a great school. I'm honored that you liked us ol' Ags.

Thank you for helping us out with trying to understand all of this.

 

[TxAggie]

That has actually happened believe it or not. As the 4th Circuit recently stated in Rock for Life-UMBC v. Hrabowski, 411 Fed.Appx. 541 (4th Cir. 2010), “n Valero, which addressed the mootness of a plaintiff's claim for injunctive relief against enforcement of several state regulatory statutes, we held that ‘”statutory changes that discontinue a challenged practice are ‘usually enough to render a case moot, even if the legislature possesses the power to reenact the statute after the lawsuit is dismissed.”’” quoting Valero Terrestrial Corp. v. Paige, 211 F.3d 112, 116 (4th Cir.2000), quoting Native Village of Noatak v. Blatchford, 38 F.3d 1505, 1510 (9th Cir.1994)

Judge Scullin's opinion is merely precedent, and not binding precedent at that, on whether and how DC may issue "may issue" regs. BTW, federal courts do not have the power to compel a legislative body to enact legislation. THe courts have the power to set aside legislation that conflicts with the Constitution, not compel the enactment of legislation that would be compliant. Whether or not a may issue system would be to this Judge's liking was simply not before him in this case. When and if DC enacts such a law, it could be challenged by plaintiffs with standing to do so. Thus far, no law has been enacted and no actual or imminent injury inflicted on anyone. This is the nature of our system. Courts have no power until or unless a case is properly brought before them by someone with Art. III standing to complain. And, as an aside, the 7th Circuit did not command Illinois to pass a law. IT merely stayed its decision to give them a chance to do so for a specified period of time. At no time did the 7th Circuit purport to review in Moore or Shepard the constitutionality of the law that was passed. Indeed, as indicated above, the Court expressly held that would take a new lawsuit. See Shepard v. Madigan, 734 F.3d 748, 752 (7th Cir. 2013) ("We do not mean to belittle the plaintiffs' complaint about delays built into the new law. But if they don't like the new law, and wish to invalidate it, they must bring a new suit.")

As much as this sucks in this particular case, this structure undoubtably keeps the judicial branch from taking too much control. If they tried to exert that much control on a decision we disagreed with we would all be screaming about "Judicial Activism."

Again, thank you for making sense of all of this nonsense.

 

[esqappellate]

But that's not really what's at issue here. What's at issue here is a case where the legislature actually uses its power to reenact the statute's effects. Further, the bit you cited was applied in this context:




Here, the problem is that the plaintiffs would not be conceding the Constitutionality of the revised law. Hence, how is Valero applicable?


You're right, and I erred in suggesting that they have the power to force the legislature to pass new legislation.

But they have the power to strike legislation, and to hold the effects of doing so for a period of time while compliant legislation is passed. That's precisely what happened in Moore.

Here, the question isn't whether or not the court has the power to compel legislation, but whether or not it has the power to strike legislation that conflicts with its order without the overhead of a new case.

If it does not, then the legislative branch can thumb its nose at the judicial branch forever without consequence to itself or the actual effect of the law, because laws take effect immediately and remain in force until successfully challenged in the judiciary, and bringing a new case takes a long period of time. Even if we were talking about a preliminary injunction, the process takes months.

ETA: As applied here, all the legislature would have to do is substitute one unachievable condition on the permit for some other one. As there is no shortage of such conditions, and each new iteration would have to be independently challenged, it follows that a legislature which is determined to undermine a fundamental Constitutional right can do so with impunity simply by continuously reenacting legislation which imposes some unachievable requirement for acquisition of the permit.



In light of that, if you're right, whence the power of the judiciary? It would be sound and fury, signifying nothing.

Yes, it would become a circus. Such is the check on the power of the judiciary which, after all, is the only unelected branch of the Federal Government and must rely on the other branches to enforce and respect its decisions. By design, the branches compete for power all the time and it is up to the wisdom and common sense of the inhabitants of these branches to keep things in check. Fortunately, it does not break down very often, as the moral force of and comity paid to a federal court decision is enough to prevent it. Judges, in turn, have an obligation to show respect and restraint. Only in America and Britain has this actually worked well, most of the time. But it does break down. Is anyone old enough or studied what happened with respect to the massive resistance to Brown v. Board of Education? (Hint: I am both old enough to remember and studied the matter closely later in life). It took decades to overcome. And not for the first time. See also remarks of President Jackson with respect to the Supreme Court's ruling in Worcester v. Georgia: "John Marshall has made his decision; now let him enforce it!"

 

[CypherPunk]

Isn't DC, In fact, "may issue" now?

How could the DC Council possibly substitute one may issue scheme for another and satisfy the judges order?

 

[krucam]

Isn't DC, In fact, "may issue" now?

How could the DC Council possibly substitute one may issue scheme for another and satisfy the judges order?

They're technically "No Issue" for John/Jane Q. Public. The last hold out after Chicago went from "No Issue" to "Shall Issue" with help from the Legislature after the Court wins (Sheppard/Moore). Hawaii is close...

 

[press1280]

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

This is where it gets scary, and I agree with KCBrown that today it'll be may(no) issue. If we happen to get that overturned, the next time it'll be 2000$ permit fees, then it'll be some other nonsense that the DC Council comes up with. They could endlessly come up with a new burdensome regulation until its challenged and struck down in court or until the judiciary has had enough and the special master comes in to play (but IIRC this is EXTREMELY rare).

Now, on a side note, since DC had may-issue right before Heller, and didn't issue permits for years (and admits so), will Scullin perhaps say no way Jose?

 

[Elliotte]

This is where it gets scary, and I agree with KCBrown that today it'll be may(no) issue. If we happen to get that overturned, the next time it'll be 2000$ permit fees, then it'll be some other nonsense that the DC Council comes up with. They could endlessly come up with a new burdensome regulation until its challenged and struck down in court or until the judiciary has had enough and the special master comes in to play (but IIRC this is EXTREMELY rare).

Now, on a side note, since DC had may-issue right before Heller, and didn't issue permits for years (and admits so), will Scullin perhaps say no way Jose?

If DC keeps swapping different forms of restrictive permit requirements, forcing each new version to be taken to court, can't one of these judges just get so fed up with the repeated following the letter of the order, but not the spirit, that the judge issues an order that forbids anything other than strict shall-issue or Constitutional carry?

 

[esqappellate]

If DC keeps swapping different forms of restrictive permit requirements, forcing each new version to be taken to court, can't one of these judges just get so fed up with the repeated following the letter of the order, but not the spirit, that the judge issues an order that forbids anything other than strict shall-issue or Constitutional carry?

Quite unlikely that it will ever get to that. DC will get to pass may issue and it will be adjudicated in due course. If they lose they will respect the judgment

 

[Patrick]

So they are pursuing a law much like Maryland: http://www.washingtontimes.com/news/2014/sep/17/lawmakers-grudgingly-introduce-bill-authorize-conc/

They haven't passed it but it is on track.

They obviously timed this to coincide with the Congressional break that started...yesterday. How convenient for them.

Congress will be back before the window expires on their Home Rule review. The question is whether the Senate will be pressured to vote on the act. I don't see Reid scheduling one on his own, but a floor petition would be interesting right before an election where many Dem Senators from gun-friendly states will be put in the crosshairs.

Of course, if the whip count on the petition is just short of forcing a vote, Reid will let all his at-risk Dems vote in favor so they can claim the pro-gun credit.

 

[Patrick]

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?

No. Exclusive authority for DC belongs to the Congress. The President just lives there and administers all the agencies that happen to be there. So it's not like his opinion is ignored. But yes, he has no veto.

If Congress decided to toss Home Rule and nationalize every square foot, I doubt there is much anybody could do.

 

[danb]

Seems to me a lot of this depends on the actual "may issue" law that they pass (which no one has seen yet). If it's structured so that the police chief has discretion to accept self defense as a reason (without proof) then they have a scheme that could be anywhere from permissive may issue (nearly the same as shall issue) to restrictive no-issue, depending on the Police Chiefs mood. This also makes challenging the law more difficult because it might be a challenge to the regulations or police approval policy, not the law itself (someone has to get denied first). It may also make getting a down vote in Congress hard.

In fact, they could allow Lanier to issue permissively very very quietly if they do it right, by giving her discretionary authority.

All depends on how the law is written, and how Lanier enforces it.

 

[Patrick]

I love that thought. But, I remain more than a little skeptical that Congress will act to fix DC gun law. <b>They could have done it back in the Bush administration when Republicans controlled both houses and the Presidency. </b>
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

They came close in 2010, and were pretty serious about it: in exchange for a House seat in DC, Utah would get one and the gun control laws would go. The deal was "done", and even the city council went on the radio and said they'd accept the provision. Nancy Pelosi even "celebrated" the event. Then..."Change" happened.

Was the GOP proposal a poison pill? Probably. But they had signs early on that DC was willing to take it, because the thought was Pelosi would get back the House. The idea was the Dems would undo it. The reversal was last minute and happened just hours after nearly all the key players in DC gov't announced they were going to do it. I remember WTOP breaking in to the sports to announce the sudden reversal.


As for future efforts, I think it comes down to how hard we the community press for real action.

Our community needs to press, and be smart about the press. If I see Congresscritters writing major legislation- a FOPA-III, or something like that - I am going to be disappointed. Anything like that gets filibustered and vetoed. If I see a huge bill like that, then I know the GOP is just playing us as fools and peasants.

No, we need to be smart about our demands. We need incremental amendments on must-pass bills. The Continuing Resultion they just passed will only get us through mid-December, and the next CR after that will likely get us to Feb. There are a lot of "must-pass" funding bills for programs the President and the Dems desire. Slipping a DC fix, National Reciprocity or even what I hear being called the "Glenn Reynolds Rule"* would be the way to move forward. There would be gnashing of teeth, just when they attached guns in national parks and in Amtrak luggage to a credit card bill. But it passed, and remains law to this day. Neither will be overturned in the current political environment.

I was hopeful that we'd see these smart amendments to key Obama-desired bills, but then two weeks ago heard Paul Ryan tell Obama to "warm up his veto pen." Ryan saud they were going to use legislation to highlight the differences between the parties as a warm-up to 2016.

My heart sank. I used to like the guy. This is not a game to us - whether guns, the budget, the economy or whatever. This is real stuff for real people. We don't need Headline-inducing bills that allow the GOP and Dems to make clear choices that divide the land further. We need smart amendments and nuanced changes to murky bills that affect us in real ways.


* The Glenn Reynolds Rule: Congress uses federal supremacy to mandate that non-violent violations of carry or possession laws throughout the nation are subject only to a civil fine of no more than $500 and no criminal charges. He originally proposed this before Shaneen Allen got arrested in NJ, and I doubt he'd mind if we called it "Shaneen's Law".

 

[fightinbluhen51]

Here is a DC press release issued yesterday. Seems like may issue to me.

Sooooooooooooooo....basically, DC will make the entire ~60 sq miles off limits, even if you have a permit.

 

[Brooklyn]

[/B]


Yes, it would become a circus. Such is the check on the power of the judiciary which, after all, is the only unelected branch of the Federal Government and must rely on the other branches to enforce and respect its decisions. By design, the branches compete for power all the time and it is up to the wisdom and common sense of the inhabitants of these branches to keep things in check. Fortunately, it does not break down very often, as the moral force of and comity paid to a federal court decision is enough to prevent it. Judges, in turn, have an obligation to show respect and restraint. Only in America and Britain has this actually worked well, most of the time. But it does break down. Is anyone old enough or studied what happened with respect to the massive resistance to Brown v. Board of Education? (Hint: I am both old enough to remember and studied the matter closely later in life). It took decades to overcome. And not for the first time. See also remarks of President Jackson with respect to the Supreme Court's ruling in Worcester v. Georgia: "John Marshall has made his decision; now let him enforce it!"

Yes and of late a sitting president has seen fit to call out Scotia at a state of the Union over citizens united. the constuition is in crisis. The states are going to need to step up their game..