Thumbing Their Noses at the Constitution

Last Friday, the U.S. Court of Appeals for the D.C. Circuit struck down the District of Columbia’s gun ban in Parker v. District of Columbia, ruling that citizens have a right to possess guns in the home for self-protection. I discussed why that ruling is supported by the text of the Second Amendment and basic principles of constitutional interpretation here and here.

Does this mean that Washington, D.C. courts will stop prosecuting people who use firearms in self-defense for unlawful gun possession? Not necessarily.

Indeed, as hard as it may be to believe, they may be able to thumb their nose at the decision, unless and until the decision leads to a court injunction expressly barring D.C. prosecutors from enforcing the gun ban.

D.C. has two parallel court systems: a branch of the national court system, headed by the prestigious U.S. Court of Appeals for the D.C. Circuit (known as the “D.C. Circuit”); and a local court system, headed by the D.C. Court of Appeals, and including a local trial court known as the D.C. Superior Court.

While the D.C. Circuit has said that the gun ban is unconstitutional, the staunchly liberal D.C. Court of Appeals disagreed in a 1987 decision, and has rejected challenges by people convicted of gun possession in the local D.C. Superior Court.

Prosecutors may be tempted to go right on prosecuting people for gun possession in the D.C. Superior Court, even when the gun possession only came to light as a result of the gun’s owner using it in justifiable self-defense.

The D.C. Circuit, which struck down the gun ban, won’t intervene to block those prosecutions because of something called Younger abstention, in which a federal court refuses to block prosecutions in state courts, even if they are unconstitutional, unless their unconstitutionality is unusually blatant and flagrant, or the prosecutor has already been ordered not to enforce the law in a lawsuit brought by someone not yet prosecuted.

The D.C. Superior Court isn’t a state court, of course. But the D.C. Circuit, in an act of unilateral disarmament, decided to apply Younger abstention a couple years ago to avoid having to hear challenges to prosecutions in the D.C. Superior Court. (I think this was an error, since the Younger doctrine is based on notions of federalism and states’ rights, and D.C. is not a state).

So the D.C. Circuit may be powerless to do anything as the D.C. Superior Court thumbs its nose at the D.C. Circuit’s decision.

Although a federal court generally can’t block a prosecution to prevent a subsequent conviction, it can overturn a state court conviction after it has been upheld by a state’s highest court. That’s called the writ of habeas corpus.

But as Orin Kerr and DaveN observe at the Volokh law blog, the writ of habeas corpus doesn’t usually apply in Washington, D.C., which is not a state, and a challenge to a local court conviction can only be brought in the federal D.C. Circuit if it is first shown that post-conviction remedies in the local D.C. court system are “inadequate or ineffective.”

It’s not clear if a mere disagreement between the D.C. Circuit and the local D.C. courts about whether the gun ban is constitutional would be deemed by the D.C. Circuit to render local court procedures for challenging a gun ban conviction “inadequate or ineffective.”

So it’s not at all clear if a person convicted of gun possession can challenge the conviction in federal court after losing a challenge in the local D.C. courts.

(On another note, it is conceivable that the D.C. local courts are themselves unconstitutional, since although they were set up by the federal government, they do not meet the requirements of Article III of the federal Constitution, and properly-constituted Article III federal courts already exist in the D.C. [namely, the federal D.C. Circuit, and the U.S. District Court it hears appeals from]).