Four years is too long to wait for a ruling on a constitutional claim. Not for the ultimate vindication of a right that’s been summarily denied, mind you, but a mere ruling in a case asserting this right that has long ago been briefed and argued.
That’s the situation faced by my colleague Tom Palmer and his fellow plaintiffs in a lawsuit challenging the District of Columbia’s complete ban on carrying guns for self-defense outside the home. Palmer v. District of Columbia was one of many suits filed in the wake of the Supreme Court’s 2008 ruling in District of Columbia v. Heller, which found that the Second Amendment protects an individual right to keep and bear arms. (Recall that two years ago the Seventh Circuit struck down a similar ban in Chicago, the only other place in the country where there is no legal way to exercise the right to carry – forget places like New York, New Jersey, and Maryland, where it’s possible in theory even if local law enforcement can, and always do, deny requests in practice.)
This case has now been pending for more than four years without a resolution of cross-motions for summary judgment – both parties agreed that the case can be decided by the judge on the law, without fact-finding or a trial. The docket (see pages 37-42 of this document) is one of the weirdest I’ve ever seen for a federal case: Palmer was filed in August 2009 and a hearing was held in January 2010, at which point Judge Henry Kennedy took the case under advisement. In July 2011, Chief Justice John Roberts (!) reassigned the case from Judge Kennedy to Judge Frederick J. Scullin, Jr. of the Northern District of New York. (In other words, Judge Kennedy sat on the case for 18 months and then retired.) There was a status conference soon after, then a motion hearing scheduled for August 2012 (more than a year later), which was rescheduled for October 2012, after which Judge Scullin took the case under advisement, and then… nothing. Plaintiffs’ counsel Alan Gura (my friend and sometime co-author) filed a motion to expedite in August 2013, and then a petition for a writ of mandamus – a request that a higher court command a government official to do something – with the U.S. Court of Appeals for the D.C. Circuit in October 2013.