April 3, 2007

MORE ON PARKER: Bob Levy sends this as a followup to my earlier post:

Let me briefly recap the pro-cert argument for Parker, and make a couple of other points:

First, black-letter law is pretty clear. Parker will be vacated — either by the Circuit or the Supremes — if a mootness event (e.g., passage of the DC Personal Protection Act) occurs anytime between now and the date that the Supremes either deny cert or issue their opinion. In other words, if the bill passes, Parker is almost certainly history, with no precedential value anywhere.

Second, the time is ripe for SCOTUS review: (1) The Court’s makeup is better than it has been and better than it’s going to be. (2) The other side has more to lose (47 states) than we do (3). (3) Congress and state legislatures can trump the Court if necessary. (4) An adverse decision on the merits is unlikely, especially during an election year. (5) If the Court is so inclined, it has ways to reverse Parker without reaching the merits (e.g., standing, DC statehood). (6) A bad case will ultimately go up if Parker doesn’t. Public Defenders continue to challenge felon-in-possession charges on 2d Amendment grounds. Sooner or later, a bad Court is going to grab one of those cases. (7) Silberman’s opinion is great, and so are the underlying facts of our case. (8) Incorporation isn’t an issue. (9) DOJ will likely change its view of the 2d Amendment under a liberal AG.

The NRA has stated to me and others that cert is desirable. Sen. Hutchison’s press release says she agrees. The other major gun groups, Gun Owners of America & Second Amendment Foundation, also agree. That’s the “official” position of insiders who are supposed to have the best crystal ball regarding the Supremes.

Nobody at the NRA has provided a credible answer to this simple question: Why is the NRA pushing the DC Personal Protection Act? If the NRA were to say, “You’re going to lose, so we want to kill the litigation,” I would understand that argument — although I would dispute the premise. Instead, we’re hearing that the NRA wants the Supremes to review Parker. There’s a disconnect somewhere.

Beats me. My assumption has been the “you’re going to lose” argument. Maybe I’m wrong.

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