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MILLER: Justice delayed is justice denied - Appeal for decision on D.C.’s gun carry-rights ban

- The Washington Times - Wednesday, October 23, 2013

The nation’s capital is the only place in America where no one is allowed to exercise his right to bear arms.

This is clearly unconstitutional, but the courts have thrown up repeated roadblocks to delay the law getting overturned for more than four years. The federal appeals court now will decide if this delay can continue. 

On Tuesday, attorney Alan Gura petitioned for a writ of mandamus to the U.S. Circuit Court of Appeals for the District of Columbia on behalf of the plaintiffs to force the district court judge to issue an opinion in the case Palmer v. District of Columbia. 

This type of request is rare in the legal process. 

“We’re not sure what else we’re supposed to do,” the lawyer representing the Second Amendment Foundation in the case told me in an interview. “It's not a step we took casually, but we don't wish to wait another four years."

The appeals court can either deny it summarily or ask for a response from the District before holding arguments and then ruling.

George Lyon is one of the plaintiffs in the case and an attorney who lives in the District. He noted that Mr. Gura first tried to go to Judge Frederick J. Scullin directly by filing a motion to expedite the case.  

“Mandamus was our only option because there is no other way to force the judge to make a decision,” said Mr. Lyon. “The lack of a decision places me at risk any time I leave my house without the most effective means available to protect myself, a right clearly spelled out in the Constitution.”

The Palmer case was first filed in August 2009 by petitioners who said that the Second Amendment guarantees the right to carry arms outside the home for self-defense. They asserted that while that right may be regulated — as it is in most states’ various degrees of concealed-carry permits laws — it cannot be completely forbidden. 

Judge Henry H. Kennedy heard arguments in the case in Jan. 2010, but he never issued a ruling.

Finally, Supreme Court Chief Justice John Roberts intervened in in order to expedite its decision in July 2011 and reassigned this case to Judge Scullin of New York.

Even then, Judge Scullin waited until Oct. 1, 2012, to rehear arguments. After both sides presented their cases, the judge promised a decision “within a short period of time.”

A full year has since passed, and Judge Scullin has not made a peep. Mr. Gura said that, “The delay is unusual."

As the D.C. case enters its fifth year, the contrast in time frame is stark compared to the last state to have its total ban on carry rights overturned. 

Illinois’ law restricting the right to bear arms — Moore v. Madigan — was filed in May 2011, argued, appealed, decided as unconstitutional and upheld by Feb. 2013. The state legislature spent six months writing a new carry law, which went into effect just over two years from the day it was filed. 

Dragging out the case for more than twice as long appears to be a deliberate attempt by lower courts to leave intact this infringement on a fundamental right. The appeals court ought to expedite its decision and force the lower court to rule immediately. 

The American people have to disarm themselves when stepping into Washington, D.C. That is unconstitutional and just wrong. 

Emily Miller is a senior editor of opinion for The Washington Times and author of "Emily Gets Her Gun" (Regnery, 2013).

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