Tuesday, May 08, 2007

The Second Amendment--Next Stop Supreme Court?

Via David Kopel at Volokh, the DC Circuit has denied en banc review in Parker v. District of Columbia, the (for now) successful challenge to the District of Columbia's ban on handguns and functional longarms. I was all set to blog tomorrow about how it had been a month since the District filed its petition for review and no response had been requested by the Court. Guess this was why.

There is now nothing for the District to do other than petition for cert. in the Supreme Court or accept the decision of the Court of Appeals. One snarky suggestion made by some pontificators (I can't remember where on the blogosphere I read it) is that the District could not petition for cert, but still seek to enforce the ban as enforcement of it would likely be adjudicated in the District of Columbia's court system (akin to state courts) where there is precedent exactly opposite to Parker. A case noting this contrary precedent was just issued by the District of Columbia Court of Appeals (the "state" supreme court for the District) last week (Andrews and Mack v. U.S.).

However, the District has made no noise about backing down so you gotta think that they'll request cert. The quick timing of an en banc denial makes for a very interesting schedule. The cert. petition will be due in 90 days. That's around August 8, 2007. For no other reason than a parallel timeline, a case to view for when that means the case would be argued (if cert. were granted) is the famous Grutter v. Bollinger (the U of Michigan Law School affirmative action case), when the cert. petition was filed on a very similar August 9, 2002. As one can see from the Supreme Court's online docket, the respondents (the University) were given two different extensions of time to respond to the cert. petition, which was then filed on October 29, 2002. The reply brief was thereafter filed on November 12, 2002. The Court then granted cert. on December 2, 2002. That's four months later.

In Parker, unlike in Grutter, the appellees' attorneys are chomping at the bit to get into the Supreme Court (even more than the appellants!). They expressly brought the suit to get the issue to the Supreme Court with favorable plaintiffs. Therefore, I don't see them asking for an extensions of time at any point in the cert. proceedings. The District might, but that's less likely since they're the appellant.

What does all this schedule-talk mean? That if the Supreme Court grants cert. on this issue, of which there is all kinds of debate, it will be heard in the spring of 2008--smack-dab in the middle of the 2008 Presidential race. If the Democrats are smart (and so far they have been) they will briefly state that they are committed to gun rights, and say no more. Hillary probably can't say this with a straight face, considering her prior actions, but the rest might just get by with it. This case is shaping up to be big, really big.

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