The Volokh Conspiracy

Having read both Petitioner's and Respondent's briefs, it looks to me like DC has (metaphorically speaking) brought a knife to a gunfight.

Having read both Petitioner's and Respondent's briefs, it looks to me like DC has (metaphorically speaking) brought a knife to a gunfight.

You are absolutely right. The DC brief is, to use a technical term, lame.

My only concern is that lame arguments prevail at the Supreme court occasionally, when a majority of the 'Justices' just don't care who's right on the merits. If a majority on the Court is determined to find gun bans 'constitutional', DC could go into court quoting the NYC phone book, and prevail.

DC's arguments makes no sense. What would be left of freedom of speech if they apply their arguments there. They are reading all meaning out of the second amendment. Of course the reasoning in Miller and Roe is pretty hard to swallow too, so I hope this is a real decision and not a predetermined result looking for rationale.

PS
DCvMiller.com is available if someone is interested. See http://www.closetlibertarian.com/

Prof. Adam Winkler's got an interesting post up on Prawfs about the 2d Amendment you and other readers might enjoy.

The Ace -- Heller doesn't suggest that D.C. be treated as a state, rather that the District is a creature of the federal government. As such, it is restricted by the Constitution just as is (at least theoretically) Congress.

As long as Gura doesn't take off his clothes during OA, I think this is looking really good for Heller. It was a very entertaining and persuasive brief, which can hardly be said of the self-contradictory mess that the DC committee turned in.

Anyway, can't wait to see respondent's amici.

Pro-gun scholars have, for a long time, argued that part of the problem with Miller is that Miller himself was dead, and therefore not reprsented before the court.

The other problem was that Miller came after "the switch in time that saved nine", and there simply wasn't any way that the federal government was going to fail to win an argument about how much power it had. The Court had given up on upholding limits on federal power. I've often thought that we lucked out in Miller; If he'd been represented before the Court, the Supreme court would have been presented with all the arguments we can muster today, and would have dismissed them all. His lack of representation allowed a Court which was going to rule in favor of the government no matter what to do so in the weakest possible way.

The situation is barely better today, though. It's a pity guns aren't used in abortion procedures; We'd be guaranteed to win then. As it is, the last 80 or so years of Supreme court cases suggest that if there's a limit to how lame an argument for federal power can be, and still prevail, we've yet to reach it.

There's a word missing in the following sentence of the post, probably the word "ban" after "self defense":

"In that case, the Court of Appeals upheld the self-defense as an intended feature, not a bug, of the District's new gun law."

But Miller's lawyer didn't attend the oral argument, as I understand it, due to a mail snafu.

I found the latest brief one of the more persuasive ones I have read. I suspect that it is well enough written that at least some of the Justices are going to enjoy reading it. My guess is that quoting almost every founding father that you could think of is going to be more persuasive than quoting a bunch of social scientists - who were quickly dismissed in the Heller brief.

Gary Wills. It iritates me to no end that fools like him become famous, rich and fawned over at wine and cheese parties. He is obnoxious and a liar or either supremely ignorant.

I have heard suggestion that death was to avoid his presenting evidence to the courts.

The Miller quote was that 'in the absence of evidence' presented by Miller as to the military use of short barreled shotguns, they could be banned.

Miller could have easily presented said evidence on remand, since during WWI the 'trench broom' short barrel shotgun had been very popular with the troops.

Instead, he ended up dead with his 45 at his side and full of bullets from the same type of pistol police and federal agents carried. He was unable to present the evidence that would have won the case for gun owners.

If I'm on the Supreme Court, I want to know one thing from Respondents (and this is no matter where one comes down ideologically on the issue), and that is, what's the test to determine which regulations get struck down and which regulations get upheld.

It's fine to praise these guys for their reading of history and their scholarly approach and their writing style, but the purpose of a brief is to tell the Cout what it wants and needs to know.

My guess is that quoting almost every founding father that you could think of is going to be more persuasive than quoting a bunch of social scientists - who were quickly dismissed in the Heller brief.

Not to worry--one of the amicus briefs that I helped with utterly demolishes the Loftin study, demonstrating that it engages in intentional deception.

Clayton:

Just because the Court didn't grant cert on it doesn't mean Respondents don't have to answer the question. You think they are going to decide the individual right question without considering what the implications are, including how broadly it will end up sweeping? No appellate court ever acts like that, and especially not the Supreme Court.

If I were counsel for Respondent, I would prepare to get battered on this at oral argument. Because he will.

And I stand by my statement-- a brief is not a book. It is supposed to assist the Court. A well-written brief that doesn't tell the Court what it wants to know does NOT constitute good appellate advocacy.

If I'm on the Supreme Court, I want to know one thing from Respondents (and this is no matter where one comes down ideologically on the issue), and that is, what's the test to determine which regulations get struck down and which regulations get upheld.

The Heller brief did address this. First, it argued that no standard of review was relevant if there was a total ban of a fundamental right, as they suggest is the case here. But then, they argued that if there were a standard of review, it would have to be strict scrutiny, since it is an enumerated fundamental right.

which regulations get struck down and which regulations get upheld

if there were a standard of review, it would have to be strict scrutiny

The second statement doesn't exactly answer the first-- unless Respondents are arguing that the strict scrutiny is going to be "fatal in fact", as the Court has said in other areas of the law. And I can't believe they are really saying that (assuming they want to win the case rather than simply maintaining ideological purity).

Again, what the Court wants to know is what's likely to get struck down and what's likely to get upheld. The idea that they are going to announce an individual right definitively for the first time without a pretty clear picture of its affect on current laws is absurd.

One part of the Heller brief that may or may not be a strategic blunder is that they pointed to the huge white elephant in the room. There were a number of reasons why ownership and possession of firearms was deemed essential by our founding fathers, and these included self defense, likely hunting, and the ability to revolt. It is that later, that is ignored by many 2nd Amdt. proponents because of its implied threat to the status quo.

You just have to go back to the Declaration of Independence to see the importance of this factor. If rights are from the creator, and our government is by consent of the governed, then a majority always have an inherent right to throw off the tyranny of a despotic regime. And the best way to prevent this is to disarm the populace. The complement of this is that the best way to prevent a despot is through a well armed populace. The Heller brief went on to point out that the start of the Revolutionary War involved British attempts to seize arms, and the colonials response to it (and that they were able to respond because they had not been armed).

I would suggest that throughout most of the country (I would exclude Idaho here, esp. with the presence of Clayton in this conversation) this provision for armed insurrection scares those in power, and it scares the communitarians the most (which is one big reason that the Democratic Party has a big problem with gun laws and gun rights).

My worry here is the possibility that five Justices might just figure that armed insurrection, regardless of merit, is just too dangerous today in our complex society. I would also suggest that this risk is one reason that most gun right arguments today revolve around self-defense instead.

I would suggest that throughout most of the country (I would exclude Idaho here, esp. with the presence of Clayton in this conversation) this provision for armed insurrection scares those in power, and it scares the communitarians the most (which is one big reason that the Democratic Party has a big problem with gun laws and gun rights).

I agree that it does, and it should scare anyone. As the Declaration of Independence observes:

Prudence, indeed, will dictate that governments long established should not be changed for light and transient causes; and accordingly all experience hath shown that mankind are more disposed to suffer, while evils are sufferable, than to right themselves by abolishing the forms to which they are accustomed.

There are times that there may not be an alternative. Imagine if President Bush had, after 9/11, started arresting every antiwar protester, refused to recognize writs of habeas corpus, members of Congress started disappearing, and he put off the 2002 Congressional elections because of the emergency. I think enough of the fevered left of the Democratic Party has suffered from fearful fantasies like this in the last several years to make the "appeal to Heaven" option look less dangerous to them.

My worry here is the possibility that five Justices might just figure that armed insurrection, regardless of merit, is just too dangerous today in our complex society. I would also suggest that this risk is one reason that most gun right arguments today revolve around self-defense instead.

Well, the Respondent's Brief addresses the historical rooots of the Second Amendment, and so do some of the amicus briefs. If the Court decides to just ignore history and an explicit guarantee of the Constitution--while finding all sorts of other rights that are, at best, implicit in it--it will utterly destroy their credibility with a significant fraction of the American public. It will likely cause a fair number of Americans to rethink how much they hate the Republican Party in November, too.

I also think I remember a mention of the argument that we have heard here that strict scrutiny is required for an enumerated right, esp. since it is required for rights found by pnuembras and emanations.

More importantly, strict scrutiny standard of review is usually traced back to U.S. v. Carolene Products (1938) n. 4, which is explicit that explicit guarantees in the Bill of Rights should enjoy such a high standard. Strict scrutiny has been applied (at times) to abortion rights in Roe v. Wade (1973), the right to collect welfare without having to wait one year for residency, and the right to have multiple generations of a family living in the same house, Moore v. East Cleveland (1977).

None of these are explicit rights in the Constitution. At best, they are extrapolations from other rights. (The right to collect welfare without waiting for a one year residency in that state was based on the right to travel interstate.) If these implicit and arguable rights get strict scrutiny, while explicit rights are not, then the Court is just doing what they have done for a very long time--playing superlegislature.

As I understand the argument, it is that a total ban of an enumerated fundamental right is a per se violation of the Constitution, and that you only get to levels of review when you have a partial ban. Thus, a total ban on someone speaking would be a per se violation, whereas a partial ban, based on content, time, place, etc., would require applying the proper level of review. But as I noted, the Heller brief also did point out that absent a total ban, strict scrutiny was required, since it is an enumerated fundamental right. I also think I remember a mention of the argument that we have heard here that strict scrutiny is required for an enumerated right, esp. since it is required for rights found by pnuembras and emanations.

With respect, Bruce, that's ducking the question. First of all, to say the DC law is a "total ban"-- though I don't object to that characterization colloquially-- is not quite precise. It is effectively a total ban, but my understanding is it permits certain types of unloaded guns in the home. Now, is that regulation too strict? How are you going to evaluate that without a level of scrutiny. Indeed, if the standard of review is extremely deferential rational basis (the standard for economic due process), isn't it possible to construct arguments that even a total ban is constitutional?

So the Court is going to have to have a level of scrutiny or other test (remember, they aren't bound by the traditional 3 levels of scrutiny from equal protection law but can pick any test they want to) in mind, and to determine the level of scrutiny, the Court is going to want to know what is likely to be upheld and what is likely to be struck down.

Further, even if the Court decides not to announce the level of scrutiny (i.e., because it isn't in the question presented), the idea that they would announce the individual right without considering the implications is crazy. Of course they want to know whether this means the death knell for all gun control, a narrow prohibition on what are effectively total bans (or maybe not even that), or something in between.

This is the whole ballgame. I assure you that while history and scholarship looks elegant on paper (and the Court certainly cares about it to some extent), when it comes down to brass tacks, the Court wants to know whether it is doing something that is going to throw a huge area of the law into utter chaos, and if not, why not.

And the Respondents aren't particularly interested in answering that question forthrightly. I'll say it once more-- Respondents' counsel, prepare to be battered in oral argument.

I really do give ideological opponents the benefit of the doubt, but the authors of the Petitioners' brief are almost certainly fully aware that their arguments are total crap.

Very, very rarely would I level an accusation of bald intellectual dishonesty, but I am right now.

33yearprof wrote:

an acclaimed historian rips Gary Will's article totally apart. Shalhope goes on to candidly note that the "militia members only" substitute theory (used by D.C.) was invented to meet quite contemporary ideological needs.

Professor Shalhope is one of the historians involved in an amicus supporting D.C. and advocating exactly what he supposedly destroyed in his 1999 article. Is it possible that some of the historians supporting that amicus brief have been mislead about what the brief contains compared to their own actual views?

With respect, Bruce, that's ducking the question. First of all, to say the DC law is a "total ban"-- though I don't object to that characterization colloquially-- is not quite precise. It is effectively a total ban, but my understanding is it permits certain types of unloaded guns in the home. Now, is that regulation too strict? How are you going to evaluate that without a level of scrutiny. Indeed, if the standard of review is extremely deferential rational basis (the standard for economic due process), isn't it possible to construct arguments that even a total ban is constitutional?

Respondents would argue no, as to your last point, with the argument, I suspect, that a standard of review is appropriate to determine how much of a ban is allowable, but if it is a total ban of a fundamental right, then there is nothing to evaluate. Of course, I think that the basis of this is the belief by respondents that an enumerated fundamental right, so fundamental that it was placed 2nd overall in the Bill of Rights, requires essentially a per se determination of violation in regards to a total ban.

In regards to a total ban versus an almost total ban, I think that the argument is that there are actually two parts here, with a effective total ban on handguns, a total ban on having a gun ready for self-defense in the house, but not a total ban on guns in general. But applying the Miller test, handguns are clearly within the ambit of the arms covered by the 1st Amdt., and so effectively banning them in the home would violate the 2nd Amdt.

So the Court is going to have to have a level of scrutiny or other test (remember, they aren't bound by the traditional 3 levels of scrutiny from equal protection law but can pick any test they want to) in mind, and to determine the level of scrutiny, the Court is going to want to know what is likely to be upheld and what is likely to be struck down.

"or other test" I think is the operative phrase. Of course, any other test would at some level be a level or scrutiny or review.

Further, even if the Court decides not to announce the level of scrutiny (i.e., because it isn't in the question presented), the idea that they would announce the individual right without considering the implications is crazy. Of course they want to know whether this means the death knell for all gun control, a narrow prohibition on what are effectively total bans (or maybe not even that), or something in between.

I remain unconvinced that they can't find for the respondents without expressly finding an individual right. Nevertheless, I do expect that they will, and really stop about there.

This is the whole ballgame. I assure you that while history and scholarship looks elegant on paper (and the Court certainly cares about it to some extent), when it comes down to brass tacks, the Court wants to know whether it is doing something that is going to throw a huge area of the law into utter chaos, and if not, why not.

Except that they have the out of the level of incorporation via the 14th of the 2nd amdt. That is why this case is strategically so interesting, that it is one of the only pure 2nd Amdt. cases we have seen for a long time. Because the level of incorporation via the 14th is not implicated here, they are being pushed into applying the text of the 2nd using well established methods of interpretation.

Maybe I am looking at it from the opposite point of view. You appear to be starting at a desired result, and working back to the analysis, and I am suggesting that if that is done, and the analysis appears fudged in order to come to a community rights decision, as I suspect it would, then they lose a lot of credibility.

More importantly, strict scrutiny standard of review is usually traced back to U.S. v. Carolene Products (1938) n. 4, which is explicit that explicit guarantees in the Bill of Rights should enjoy such a high standard.

Actually, footnote 4 simply speaks of more exacting scrutiny. Strict scrutiny as we know it was announced in Korematsu, dealing with the equal protection clause and ethnicity, where there was a pretty strong textual basis for the right being claimed.

And that's why I said "traced back to". I'm aware that Korematsu is the first strict scrutiny case--and they upheld the internment!

You mentioned your "Academics" brief, but I don't see a link to it anywhere. Did I miss it?

Amicus briefs in support of Heller aren't out yet. Soon.

Finding that the Second Amendment protects an individual right to have a handgun in your home doesn't throw any law into chaos except DC's.

That may or may not be true, Clayton, but if it is true, it would have been nice of Respondents' counsel to tell the Court that. Especially since the fate of an actual client hangs in the balance here.

Isn't that kind of the point of Section IV of the Brief, talking about the standard. Throughout the Brief, they are very careful to say that current federal laws would not be impacted by strict scrutiny:

For example:

Because the governmental interest is so strong in this arena, applying the ordinary level of strict scrutiny for
enumerated rights to gun regulations will not result in wholesale abandonment of the country’s basic firearm safety laws. Strict scrutiny is contextsensitive and is “far from the inevitably deadly test imagined by the Gunther myth.” Adam Winkler, Fatal in Theory and Strict in Fact: An Empirical Analysis of Strict Scrutiny in the Federal Courts, 59 VANDERBILT L. REV. 793, 795 (2006). The prohibition on possession of guns by felons, 18 U.S.C. § 922(g), and the requirement that gun buyers undergo a background check for history of criminal activity or mental illness, 18 U.S.C. § 922(t), would easily survive strict scrutiny.

ALL judges are concerned about the logical implications of their decisions ... and will not issue decisions that recognize rights if they are convinced that it will foul up the state of the law.

As I read it, the brief takes great pains to assure the court that little will change:
- no state amici have bans anywhere this comprehensive
- arms unsuitable to "common use" are not protected
- regulations are permissible, nay expected, so long as it passes strict scrutiny
- NFA registration + $200 tax is reasonable and will survive
- even the 922(o) new machinegun ban is brushed aside as not a ban.

I see few of the 20,000 existing related laws succumbing to what Heller is asking for. To address those would require going well outside the narrow scope of what Mr. Heller wants: reasonable tools &permission for home defense. Despite popular rhetoric, at the federal level at least, one can still generally own, keep, and bear what one wants (if only subject to a small fee and a little paperwork).

NRA brief is in.
here:

Clayton and Carl:

And as I pointed out in response to Philistine, they don't address many of the laws that the Court will be interested in. Trust me, the moment the justices read the words "strict scrutiny", they are going to think "so this means invalidating thousands of gun control laws across the country?". And saying, "don't worry, felon in possession will still be constitutional" doesn't answer that.

Once again, expect a rocky oral argument. The best appellate briefs take on the actual concerns the Court is likely to have, rather than simply deflecting and distracting.

Clayton, I know you have answers to my questions. I have been through these arguments with you before, and I freely concede you know this stuff a lot better than I do.

But I know a bit about good appellate advocacy. And given that the result of this case is quite possibly going to depend on whether justices sympathetic to the individual rights position believe that announcing an individual right is going to lead to a parade of horribles or not, a good appellate brief has to take that issue head-on, including the hard cases. Simply invoking "strict scrutiny" isn't enough. Indeed, it's worse than not enough, because it conveys exactly the WRONG impression with respect to the interests of the client, because it implies that large swaths of gun control are going to be struck down in the wake of these decisions.

This is NOT a good appellate brief, because it doesn't tell the Court what I assure you it is going to want to know. And as a result, they are going to find out at oral argument, and it may not be pretty.

Brett:

I know you get it. But I am enjoying this because a lot of the gun rights advocates who frequent here have formed a self-congratulatory society about this brief, because it so beautifully lays out the theoretical case that they have devoted their entire lives to.

Unfortunately for them, this case is being brought before a court, not a debating society.

Dilan: So you're basically trolling? Okay. Carry on.

The arms test given in the petitioner's brief is quite a bit different from the one given in Miller and Parker. Sticking "civilian" in there seem unwarranted and leaves it to judges to decide whether any particular gun is suitable for civilian use. Miller and Parker just ask if it is a weapon that would be useful in a military context; I especially like Parker's clarification that a pistol is protected because it is "a lineal descendant of that founding-era weapon." That IMHO is a more workable standard than Miller. It clearly sets forth what is protected - rifles, pistols and shotguns, with the only exceptions being those that have features without common military utility (aka prone to criminal misuse, e.g. short barelled shotguns, the fabled plastic pistols, etc.). I know it will not please those who want crew served weapons to be covered by the second amendment, but if you need help to carry it can you truly "bear" it? Why would an individual right protect weapons that you would can not carry or crew by an individual?

Gura's brief does leave the standard of review a bit of a mess. I think he would have been better off to argue for strict scrutiny as far as keeping weapons, which is what this case is about, and imply that there may be a different standard for bearing arms and leave that to another day. Historically, at least until 1934, there were basically no limits on what people could keep; the few restrictions that did exist regulated bearing only.

Dilan: just about all of what little I know about litigating cases before the SCOTUS, comes from reading blogs like this. I am interested in hearing about weaknesses in the Respondent's brief, because all the high-fives being exchanged within the pro-RKBA community makes me nervous. If "over confidence" isn't one of the deadly sins, it should be added to the list. However, I think:

1) The points you raised--it seems to me--were addressed in the brief. Perhaps not at great length, but I assume it's called a "brief" for a reason.

2) It seems likely that by the time one has ascended to the highest court in the land, one may have given these questions some passing thought--not that would preclude the justices from hammering the litigants, even if just for fun.

3) I'm gonna go way out on a limb here, and predict that Mr. Gura will come prepared.

A thought from the sidelines: The Court will almost certainly find that the Second Amendment guarantees an individual right to keep and bear arms by applying standard principles of Constitutional and statutory construction. In fact, that part of the decision might even be unanimous. But that doesn't end the inquiry. I am concerned that when the Court rules an individual Second Amendment right exists independent of any connection to a "militia," it is possible that a majority might also take the opportunity to repudiate the much-criticized Miller test. In fact, overruling or limiting Miller would arguably be an elegant way of avoiding "slippery slope" challenges to at least those gun laws that regulate the TYPES of firearms that may be lawfully possessed.

Miller of course holds that a particular type of weapon may be protected by the Second Amendment, inter alia, if it is "ordinary military equipment or . . . could contribute to the common defense." If the Miller test is applied in Heller, handguns are clearly protected; they have been standard military armament since at least the invention of the flintlock (and not just Mr. Heller's revolver -- since the U.S. Army's current standard M9 sidearm is basically indistinguishable from the civilian Beretta 92, prohibitions on large-magazine semi-autos also should go away). If the Court applied Miller in this way, all that will be left is to determine the standard of review by which to adjudge the permissibility of the obvious governmental infringement.

BUT -- It is obvious that today's Court would never have accepted a case with Miller's well-known procedural and factual record failings. What if the Court holds that the Miller test is in fact not appropriate for determining what types of firearms can be restricted in the context of an explicitly non-Militia right to keep and bear arms? Decoupling the non-Militia right from Miller would be one way of avoiding the rather large machinegun-toting elephant in the corner -- I almost guarantee a question from the Bench during oral argument asking "what happens to 18 U.S.C. §922(o)'s new civilian machinegun registration prohibition if respondent prevails?" I am sure it will occur to some Justices that if the Court slavishly applies the Miller test, it might also be laying the groundwork for the intuitively absurd result that bans on harmless airsoft and BB guns are OK, while select-fire and full automatic machineguns must be allowed. Given the amount of ink devoted to technically not relevant discussions of machineguns in some briefs so far, this point wasn't lost on the litigants either.

So I would not be surprised if Heller's sole reliance on Miller to place handguns into the protected category of arms -- on a per se basis with no need for even articulating a standard of review on this point -- in hindsight turns out to have been a risky gamble. I hope some of the pro-Heller amicii address possible standards to be applied to determine whether a regulation is in fact an infringement of a purely "civilian" right to keep an bear arms, outside the confines of the Miller test.

Relatedly, Heller's insistence that a handgun ban is in fact a "total" infringement of his Second Amendment right struck me as the weakest point in the brief. That seems to play directly into D.C.'s argument that there remain adequate Second Amendment alternatives to handguns, and begs for a remand to determine the extent to which a right to personal self-defense can be maintained with rifles or shotguns. What a mess that would be: an able-bodied person like me can probably repel a home invasion with my Ruger mini-14 even better than I could with Heller's revolver (assuming no "assault weapon" ban) and therefore a court could hold that I don't need a handgun (but somebody may get upset when a few wayward rounds go through the wall of my house, through my neighbor's house, and into the school two blocks away). Unfortunately, my frail 78-year old father may no longer be able to use a long gun effectively to repel an attack, so perhaps if he moved to D.C. he gets to keep his Ruger Blackhawk .357 (it would be too much to hope D.C. would let him keep his preferred defense gun, a Sig P229 semi, but that's a case for another day)? In a worst case scenario, maybe the scope one's right to keep and bear specific arms could turn on whether you can give a judge a note from your doctor saying you can't physically hold a rifle on target? Sheesh...

Which of course rolls right into the biggest hazard Heller faces -- the standard of review. Strict scrutiny, Heller wins. And the S.G. will probably lose §922(o) someday. Undue burden could get Heller a remand for just the type of ridiculous balancing test that I hypothesize above. Although the S.G. will be happy, since he likely can preserve §922(o), pretty much any other Federal gun law, and even the proposed McCarthy "assault weapon" ban under that standard. And heaven forbid a rational basis test is somehow deemed sufficient -- poor Mr. Heller will be left to defend himself with TSA-approved plastic cutlery...

wuzza:

The point is, the brief spends a lot of space and time making arguments in detail that the Court is well aware of (this is the Supreme Court-- you have 36 clerks working on this case), while ignoring what the Court really will want to know about. And this is going to make Mr. Gura's life more difficult at oral argument, and may turn out to be bad for his client (whose interest he is required to protect under ethical rules even if it conflicts with the gun rights movement's interests).

And you are missing the subtext here (which is partly my fault, because I didn't spell it out). The reason that Gura doesn't tell the Court what is going to happen to the major, contested gun control laws is because he doesn't want to tell the Court that. If he spells out the effect of strict scrutiny (which would be to invalidate most gun control laws, as Clayton noted above), he's not going to win his case. But if he reassures the Court that most gun controls are going to survive, the people who are paying for this appeal are going to be very upset, because they are ideologically committed to strict scrutiny.

The thing is, you can't get away with that as an appellate advocate. Appellate courts don't really care about your client or organizational imperatives. They want to know one thing, which is if they rule for you, will it foul things up. Especially when tens of amici are going to be telling them precisely that it will.

Gura really needed to tell the Court EXACTLY why his position won't lead to the wholesale invalidation of thousands of gun control laws. He can't distract or deflect or use euphamism or discuss only the easy cases where even the NRA supports gun control. He's now going to face a very rough time in oral argument-- when he would like to be selling his case-- answering a bunch of questions that should have been addressed in his brief.

This is a classic example of what happens when institutional imperatives trump client imperatives. And yes, it just reduced the Respondent's chances of prevailing.

Dilan Esper:
...the people who are paying for this appeal are going to be very upset, because they are ideologically committed to strict scrutiny

The person paying for this appeal is Robert Levy, not the gun rights community as a whole. Alan Gura is not beholden to the gun rights community, and he has been a fine job so far.

The issues you raised are adequately addressed in Alan Gura's brief. He is in the Supreme Court to secure his client's right to keep a pistol in his home, not to carry a brand new machine gun on the Mall. While I am sure that the justices will have prudential questions, I think you are just beating your drum here. You may as well have dinged him for not, in not less than one hundred pages, addressing the questions of felons keeping guns in their homes. There are some states like Texas that actually automatically allow this after a disability period of five years.

Brett:

I’d agree that assault rifles have obvious military utility, but if you are speaking about fully automatic weapons I doubt your typical federal judge would see any civilian purpose. I doubt “they are fun” is going to get you very far. For civilian use, and really for military use as well, a semiautomatic AR-15 can do anything that an automatic M16 can (besides scare the uninformed). Gura’s insertion of “civilian” in his arms test really makes a mess of things. I just do not see that anywhere in Miller or Parker.

I think Gura tries to cover for the problem associated with weapons being uncommon because they are banned in when he stated, on page 44, that common weapons should be protected “in the absence of, or even despite, legal prohibition.” This is another area where his “civilian” standard is difficult to apply.

Some here are arguing that Gura would have been better off disregarding the Miller test, and going with something else to appease the court's fears about machineguns. He essentially did that with his insertion of "civilian" in the Miller test.

Submachineguns are an interesting case. I don’t think there is any sort of “lineal descendent” of such a weapon from colonial times. Nevertheless, it was common in the military for a period of time but has now been almost completely (and perhaps entirely) replaced by assault rifles and carbines. Unlike semiautomatic and automatic rifles, submachineguns are a big step-up in firepower from pistols and some are still somewhat concealable (or, as some would have it, prone to criminal misuse). They are a hard case, and I think the Parker opinion intentionally left them out in the cold.

The Parker decision left open the possibility of registration, so at least that part of the NFA would be legal even under their standard. Heller is not suing to stop DC from registering handguns, only to open the registry. The parallel to the ’86 machinegun ban is obvious. Gura explicitly argues that registration of machineguns would pass strict scrutiny. Given their acceptance of registration, neither the court of appeals nor Heller are setting this case up as way to get rid of the entire NFA.

I think a narrow status quo ruling, where rifles, pistols and shotguns can be kept by anyone who is not under disability, is not a bad result. It would get rid of the egregious DC and Chicago bans, and maybe give pro-gun activists a way to repeal the ’86 ban through the courts. Plus, they will never have to play defense again; things will never get worse than they are right now, and all of their efforts politically can be concentrated on repealing existing laws. IMHO, a straightforward ruling that protects what we have is better than a mushy intermediate scrutiny or rational basis test.

NFA weapons are in common civilian use, even aside from "fun" uses. Wasn't Teddy Kennedy's bodyguard arrested for attempting to bring a fully automatic machine pistol into the Capitol building?

Dilan

This is one of the standard gripes of appellate judges. Not quite as aggravating as misciting the record, but right up there.

I find this amusing in considering how badly appellate judges are at citing proper law and facts when their minds are thoroughly made up in opposition. Classic example, Hickman v. Block from the 9th discussing U.S. v. Miller.

What I read you saying (if I may wax deconstructively a moment), is that you see this case (and brief) in the way that Stevens or another all-but-certain opponent of the individual RKBA will - and that Respondant should have crafted an answer to such intransient prejudice (based largely on potential outcome rather than faithful application of law). Why not ask for him to clean the Augean stables as well?

juris:

Appellate judges are not politicians. Yes, they sometimes, perhaps more than sometimes, issue decisions that are consistent with their political leanings. But they don't go into a case and read the briefs looking to simply move the law to whatever their ideological predilections point towards.

Appellate judges, rather, read factual records. That's why they sometimes rule on issues of standing, or dismiss writs of certiorari as improvidently granted.

And they are very concerned with the pragmatic implications of their decisions, especially when they are asked to recognized "new" (and I realize RKBA is in the Constitution, but I think you know what I mean here) rights.

I'll give you a couple of recent examples. Kelo and Raich were both cases that conservatives-- and some liberals, including myself-- had high expectations for. It was thought that these cases would allow the Court to move towards more plausible readings of the Constitutional text.

And yet, both cases adhered to prior precedent and rejected the textual arguments. And in both cases, nominally "conservative" judges joined the majority. Why? Well, I would suggest that this has a LOT to do with concerns about pragmatic implications. Obviously, if there were a way to keep the homeowners in Kelo in their homes, and allow Angel Raich to grow her own marijuana, without affecting other cases, that would be one thing. But the Court was concerned in Kelo that a ruling for Kelo would hamstring local government redevelopment which is, rightly or wrongly, seen as an engine for revitalizing moribund communities. And a ruling for Raich could call into question many national laws that, let's face it, have less to do with regulating commerce and more to do with using commerce as a hook for regulating some activity that a widespread consensus has found to be wrong, for instance, civil rights laws, or ensuring uniformity on issues that the public considers very important.

By making this point, I am not saying that the majorities were right. But I am saying that this is how courts work-- and indeed, it is how courts are supposed to work. Text and original intent are important, but so are settled expectations, carefully crafted regulatory schemes, and longstanding social consensus.

But even if one views this as a completely illegitimate mode of judging, the problem is it is nonetheless the dominant paradigm. There's only one justice on the Supreme Court whom I would classify as not following it. And the parties to the Heller case have to get to five, not one.

It is easy to lose this point when one is frustrated about judges issuing decision that one disagrees with but which appear political. But I will tell you that experienced appellate lawyers can't afford to lose the point. If you wind together a beautiful narrative of history, tradition, and original intent, you can still end up losing 8-1 (or even 9-0) in the US Supreme Court if the justices are convinced that if they find for your client, all hell is going to break loose, the law will be thrown into chaos, unjust results will be reached in other caes, or the Court will be forced into a supervisory role having to take cases in the future to refine the doctrine.

The Supreme Court justices have ideologies-- all judges do-- but they are nonetheless still judges. And that's why even the conservatives will want to know what will happen, how many laws will be invalidated, and how many people will be let out of jail if they rule for the Respondent. And that's why a good Respondent's brief that served the client's interest would have reassured the Court explicitly that this wouldn't happen (and would have been unacceptable to the gun rights movement).

My worry here is the possibility that five Justices might just figure that armed insurrection, regardless of merit, is just too dangerous today in our complex society. I would also suggest that this risk is one reason that most gun right arguments today revolve around self-defense instead.

Those 5 justices are probably smart enough to realize that the quickest road to armed insurrection might be through ruling that the 2nd Amendment is meaningless.

But if he reassures the Court that most gun controls are going to survive, the people who are paying for this appeal are going to be very upset, because they are ideologically committed to strict scrutiny.

There is only one "people" paying for this appeal and that "people's" name is Bob Levy. Were you thinking of some other "people"?

A goldmine of information regarding NFA weapons is the James Bardwell NFA website. Unfortunately updating stopped in 2003. It also includes summaries of all the notable gun-related cases to that date.

federal:

That's answered above. Respondent's counsel is certainly briefing the case like someone who doesn't want to tick off the gun rights movement.

juris:

No doubt some cases do make a mess of the law for good reasons. I'm just telling you that if courts believe that this will happen, it makes it much much harder to win the case even with a politically sympathetic court.

Indeed, if you go back and look how Thurgood Marshall argued those race desegregation cases, he was always emphasizing how incremental it was and how it would not lead to broader disfavored changes and chaos. That's why he's considered one of the great appellate lawyers of all time.

Clayton:

That's a meaningless statistic because the application of strict scrutiny will change legislator behavior. And I can think of only one other situation where something that was not routinely considered unconstitutional at all has suddenly been subjected to strict scrutiny (and in that instance-- Roe v. Wade-- every state abortion law was invalidated, even though Roe arguably didn't even apply actual strict scrutiny in its normal form). (In the instances of things such as race discrimination and First Amendment speech, laws were being invalidated under other tests before the strict scrutiny formulation was adopted, so legislator behavior was presumably already being affected.)

Let me spell out the black letter doctrine here because the more your side speaks on this, the more I think you guys are being brutally dishonest about this. Strict scrutiny means EVERY law that regulates the right to keep or bear arms is presumptively unconstitutional. Every single law. They are all gone unless the state can justify them.

And the justification that has to be established by the state is that the laws are NECESSARY to serve a compelling state interest. That means that only the most important interests of the government may justify a gun regulation.

It also means, more importantly, that only if the gun regulation is absolutely necessary to achieve that compelling goal is it constitutional. If there's another way of doing it that is less restrictive of gun rights, the law is unconstitutional, even if that other way is more difficult, more expensive, or less effective.

Indeed, if the gun rights side WON and established a strict scrutiny test, I assure that in EVERY gun rights case the NRA supporters will emphasize exactly these points.

So saying "oh, strict scrutiny doesn't really mean strict scrutiny" isn't an answer. It certainly isn't one that the Court-- which knows the real meaning of strict scrutiny-- is giong to accept.

Strict scrutiny means every gun law gets struck down, except perhaps a very few where the government can meet its enormous burden to justify them. It means every person imprisoned under the invalidated laws gets out of jail. That's right, every single person.

You can't minimize the impact that recognition of the right to keep and bear arms will have and also argue that the proper test is strict scrutiny. And the Supreme Court didn't just get off the turnip truck-- they are going to cream Respondent's counsel on this at oral argument.

wuzza:

Well, McConnell upheld it against a facial challenge. WRTL struck down part of it as applied.

Further, bear in mind that BCRA (McCain-Feingold) has two major provisions-- one is a ban on soft money, which is arguably a contribution limit and not an expenditure limit; it thus doesn'