An odd dispute over gun rights (UPDATED)
on Dec 3, 2015 at 12:59 pm
UPDATED Friday 4:28 p.m. The director of the Administrative Office of U.S. Courts, in a letter to lawyer Alan Gura, said that no action will be taken on the assignment of a judge in the gun rights case because the controversy over that is now under review by the D.C. Circuit. The letter did not say what might happen after the D.C. Circuit rules.
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A private lawyer who has had a major role in gaining broader gun rights under the Second Amendment is asking Chief Justice John G. Roberts, Jr., to help preserve one of his court victories. Alan Gura of Alexandria, Va., in an apparently unprecedented plea, wants the Chief Justice to sort out which judge should handle a case about a new District of Columbia gun law.
Gura had argued and was on the winning side in the Court’s 2008 ruling finding in the Second Amendment a personal right to have a gun (District of Columbia v. Heller) and in the 2010 decision which extended that right nationwide (McDonald v. Chicago). He has won a new case testing a Washington, D.C., law limiting the right to carry a gun in public. But that trial court victory is now in jeopardy.
The new dispute goes back four years, at a time when the federal district court in Washington needed help with its always-crowded docket. Roberts, using his role as Chief Justice in approving visiting judge assignments, selected a senior federal district judge from Syracuse, N.Y., Frederick J. Scullin, Jr. One of the cases put on his docket was the then-pending case of Palmer v. District of Columbia.
After a complicated series of procedural difficulties and delays, Scullin in July 2014 struck down a version of a new District law limiting the right to carry a gun in public. He found that it violated the Second Amendment — a ruling that extended the Heller precedent beyond its specific scenario (a right to have a gun inside one’s home, for self-defense).
When the District’s local government tried again and amended that law, the Palmer challengers made a new objection. Meanwhile, another lawsuit testing the latest law was filed by other local residents along with the Second Amendment Foundation. That was the case of Wrenn v. District of Columbia. Alan Gura was the lawyer in each of the two cases.
Apparently because he had handled the Palmer case, Scullin was assigned by the local clerk to handle the new lawsuit too. On May 15 of this year, Scullin decided not to do anything further at that point in Palmer, but decided the Wrenn case by striking down the new law, which required proof of a need to carry a handgun in public.
The local government filed an appeal with the U.S. Court of Appeals for the District of Columbia Circuit in the Wrenn case. In September, with that case on the way to a hearing by a three-judge panel, the court on its own raised the question of whether Scullin was authorized to take up the Wrenn case and, if not, whether he lacked jurisdiction to decide it.
The D.C. Circuit held a hearing on November 20, and the question of Scullin’s authority was a dominant issue. The local government’s lawyers asked that the case start over with a different district judge. Gura strongly opposed the request.
Three days later, Gura sent to the Supreme Court a formal application to the Chief Justice, asking him to clarify that Scullin was properly assigned to the Wrenn case, or to retroactively assign him to it.
The Clerk’s office at the Supreme Court promptly returned the application to Gura, saying that the Court”s rules simply make no arrangement for an administrative request.
Yesterday, Gura wrote directly to the Chief Justice, saying that he had been advised that such a letter “would be read and reviewed” by the Chief Justice. He said he was unaware of any formal process for sorting out such things. He argued that the D.C. Circuit’s inquiry into the assignment issue “threatens to undo a year’s worth of significant litigation efforts in my clients’ case, and raises profound questions about the scope of visiting judges’ authority generally.”
So far, there has been no response from the Chief Justice to this overture. Presumably, the D.C. Circuit is working on an opinion in the Wrenn case in the meantime.
(The blog thanks Howard Bashman of How Appealing blog for the alert to this development.)
