Judge de facto? Order defective?

The public thinks of constitutional disputes in terms of “big” issues—can a disadvantaged transgendered doctor perform a late-term abortion near a wetland while carrying guns, if her incorporated clinic made a movie criticizing the city council?

But courts, first and foremost, care about their authority to decide these controversies. And so, while the parties to Wrenn v. District of Columbia have been arguing the (un)constitutionality of some of Washington, D.C.’s gun laws, the D.C. Circuit asked: was the judge who had enjoined the challenged laws properly authorized to do so? And if not, does it make a difference?

I think the answers are “yes” and “no,” respectively. The city now believes the answers are “no” and “yes.”

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Amicus Detritus

If your mom never told you the rule about “if you’ve got nothing useful to say,” the Supreme Court is here to help:

An amicus curiae brief that brings to the attention of the Court relevant matter not already brought to its attention by the parties may be of considerable help to the Court. An amicus curiae brief that does not serve this purpose burdens the Court, and its filing is not favored.

— Supreme Court Rule 37.1

Lawyers and their clients should heed this advice not just because it’s the polite and proper thing to do. Amicus detritus, a parasitic species feeding on the host merits case, is

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Messages weren’t immediately returned

Last week, we lost a case in U.S. District Court, Pena v. Lindley.  I respond to media inquiries about my cases whenever reasonably possible, whether the news is good or bad, and this time was no different.  So it’s a bit dismaying to see an AP story about the case ending with the sentence, “Messages seeking comment from Alan Gura, an attorney who represented the gun groups, weren’t immediately returned.”

Well….

The decision came down on Thursday, February 26, at 12:29 pm Pacific/3:29 pm Eastern.

The AP called and emailed me on Friday, February 27, at 9:20 pm Eastern. The email read, “We are writing a story on the ruling tonight, Friday, February 27, and would appreciate hearing from you.” So, yes, I didn’t “immediately return” the messages that came way after hours on a Friday concerning a case that was decided at lunchtime the previous day. And when I got the message over the weekend, the deadline had apparently passed.

I did return a message from, and give a quote to, a Bloomberg reporter who found me Friday afternoon at 5:06 pm my time.

To be fair to the AP, I don’t know when they learned of the ruling, although they must have people who watch the courts for interesting developments. And what they wrote is technically true. But maybe the AP should have written, “Messages seeking comment from the plaintiffs’ attorney, sent at 9:20 pm his time on a Friday, to comment on a court decision announced midday Thursday, were not immediately returned.” That would have given it a different flavor.

And even if the AP couldn’t have managed to wrangle a comment from me, it would have made sense to report that the case was being appealed, a fact that had been left on the docket within 29 minutes of the judgment.

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Putting teeth in Heller’s promise

[Cross-posted at the Collateral Consequences Resource Center, www.ccresourcecenter.org]

When Congress enacted the federal Gun Control Act of 1968, with its broad provisions for the disarmament of potentially dangerous people, the Second Amendment laid dormant. Courts paid the Second Amendment cursory attention, considering the provision only when rubber-stamping it with an erroneous, unexamined “collective right” interpretation that rendered the right to arms a nullity.

Some of the Gun Control Act’s Congressional sponsors were happy to parrot that view. S. Rep. 89-1866 at 68 (1966) (individual views). But Congress understood that the Act ensnared many people whose disarmament could not be justified as beneficial to society or basically just. As the title of a leading article on the subject asks, “Why Can’t Martha Stewart Have a Gun?”

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Putting guns back in the hands of totally harmless citizens

In 1996, Dan Binderup did a bad thing.  He conducted an affair with an employee at his bakery. The relationship was fully consensual, and the employee was legally able to consent to the affair under state law (Pennsylvania). But she was just 17, and you know what I mean when I tell you that the government couldn’t just see him standing there… Binderup pled guilty to a “Corruption of Minors” charge, a misdemeanor for which he might have received five years in state prison, though he sensibly received only a fine and a sentence of probation.

Binderup’s wife forgave him. They remain happily married, in their 41st year together, having successfully raised two great kids. Binderup has no record of violence of any kind, and indeed, has otherwise stayed completely out of trouble. He continues to be a productive, self-employed member of his community.

The conviction triggered a firearms prohibition under both state and federal law, but with the prosecutor’s blessing, the state court restored Binderup’s firearm rights… as far as Pennsylvania is concerned. The federal government, we had to sue.

Today, we won. The case is somewhat complex, and as this really isn’t a work day for me (happy 5775 everyone!) I have other things to do right now than go into the ins and outs of this 86 page opinion.  You can read the whole thing, but the bottom line is:

IT IS DECLARED that application of 18 U.S.C. § 922(g)(1) to plaintiff Daniel Binderup for his prior conviction for Corruption of minors under 18 Pa.C.S.A. § 6301 violates the Second Amendment to the United States Constitution.

IT IS FURTHER ORDRERED that defendants, their officers, agents, servants, employees, and all persons in active concert or participation with them who receive actual notice of this Order shall be permanently enjoined from enforcing 18 U.S.C. § 922(g)(1) against plaintiff Daniel Binderup for his prior conviction for Corruption of minors under 18  Pa.C.S.A. § 6301.

Special thanks to Douglas Gould for teaming up with me on this and to the Second Amendment Foundation for making it possible.

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Palmer Stay Proceedings

The District had filed a motion for a stay of the injunction in Palmer.

We didn’t object to a short, 90 day stay, but we’re not on board with anything beyond that.

The Court stayed its injunction for the 90 day period, but…

Based on the papers that Defendants have filed in support of their motion for a stay pending appeal, the Court is not convinced that Defendants will be able to demonstrate a likelihood of success on the merits to warrant such a stay. Nonetheless, the Court will provide the parties with an opportunity to present their arguments in full before ruling on this part of Defendants’ motion.

Stay tuned…

 

 

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Your D.C. Handgun Carry Permit — UPDATED

Want to know what the District of Columbia’s Metropolitan Police Department is being told about Palmer? A confidential informant has supplied the memo.

Two caveats:

1. If you have any questions about how MPD interprets this memo, please direct those to MPD.  It’s not my memo.

2. The District has indicated that they will seek a stay of the decision. If a stay were to be granted, this policy would doubtless change, and I can’t guarantee that I’ll be able to update this blog post in real time. So be careful out there.

UPDATED:

I have a better understanding of what the city will now do.

The city will probably file an appeal — that’s within their right.

The city would ask for a stay pending the resolution of the appeal — they can ask for that, and we would oppose that.

The city would ask, in the alternative, for a shorter, closed-ended stay of the Palmer decision to allow the city council time to enact remedial legislation. In Moore, the state of Illinois received first 180 days, then over our strenuous objections, another 30 days on top of that.  We would not agree to anything in that neighborhood here, but we would not oppose a shorter stay that would give the city council some reasonable window in which to make a decision, without frustrating the progress of the appeal. The decision as to whether to grant any stays and if so for how long, of course, belongs to the courts.

I’d expect the city to file something later this afternoon.

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Victory in Palmer v. D.C.

Justice never sleeps…. not even on a Saturday afternoon, when this opinion was just handed down.

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Brief of the Day — Zivotofsky v. Kerry

This morning, I had the distinct honor and pleasure to file an amicus brief co-written with Prof. Eugene Kontorovich, in Zivotofsky v. Kerry, the “Jerusalem passport case.” We filed on behalf of the Brandeis Center for Human Right Under Law, on whose Legal Advisory Board I serve, and twelve leading professors of foreign relations and constitutional law from across the ideological spectrum (see below) — I’m not sure how often it happens, but we are blessed to have support from both Erwin Chemerinsky and John Eastman in this endeavor.

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Lisa Madigan Doesn’t Want You to Tip

“[D]efendants should not be required to pay the tips provided by Gura for the cab fare and his meals.”

Waiters, cabbies, and anyone else whose Illinois livelihood depends at least in part on gratuities, listen up: your attorney general is against tipping. Or at least, she doesn’t want me to tip you when I travel to Illinois on business. Or, at least on the business of stopping her from violating your constitutional rights.

Madigan is spending gobs of taxpayer money–the money withheld from your wages–fighting the idea that tipping is customary and ordinary. And it’s probably a losing battle, which will cost you more money.

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