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Respondent's Brief in DC v. Heller:

On Monday, the brief for Respondent was filed in DC v. Heller, the Supreme Court's case involving the DC handgun ban. The brief for Petitioners (DC and Mayor Fenty) is here.

The first portions of each brief raise textual and historical arguments. DC argues that the preamble of the Second Amendment ("a well-regulated militia") controls and limits the main clause ("the right of the people"). DC emphasizes that militias are subject to limitless state control.

The Heller brief offers well-known rules of construction from the Founding Era to argue that a preamble doesn't limit the main clause. Both sides quote Marbury v. Madison. The Heller brief contains a great deal of American history, partly based on David Young's new book The Founders' View of the Right to Bear Arms (2007), which presents General Gage's disarmament of the citizens of Boston as one of the key causes of the decision of Americans to finally resort to armed revolution, and as the kind of abuse which the Founders wanted to prevent in the new nation.

The DC brief spends a significant amount of words arguing that, even if the Second Amendment applies to ordinary citizens, it does not apply in DC. The argument is predicated on "necessary to the security of a free State" being a reference to state governments, not a free polity. Respondent's brief gives short shrift to this argument, citing various cases that governance of the District of Columbia is controlled by various parts of the Constitution which only limit (or used to only limit) Congress, and not state governments. Eugene Volokh's Notre Dame L. Rev. article "Necessary to the Secureity of a Free State," collects every use of "a free state" during the Founding Era, and shows that the phrase was a term of art which was used only to mean "a free polity" and never to mean "a free American state government."

DC presents more social science data than does the Heller brief, which confines itself to some quick rebuttals. On both sides, the in-depth debate in social science is in the amicus briefs. (More on those next week, after the pro-Heller amici file on Monday.)

DC's gun lock law literally requires that all guns in the home (rifles, shotguns, or pre-1977 handguns owned pursuant to a grandfathering clause) be locked up or disassembled at all times. The locking law makes an exception for guns on business premises and for guns being used in sporting activities. DC concedes that a ban on use of long guns for self-defense in the home would be unconstitutional, but argues that the functional firearms ban must contain an implicit self-defense exception. DC points to a case where a court found that a duress exception must exist in an another law.

Heller retorts by pointing to the 1977 D.C. Court of Appeals (the District's equivalent of a state supreme court) case of McIntosh v. Washington. In that case, the Court of Appeals upheld the self-defense ban as an intended feature, not a bug, of the District's new gun law.

Both briefs are very well-written, and merit study by any law student or lawyer looking for good examples of persuasive brief-writing on sophisticated topics.

wuzzagrunt (mail):
Having read both Petitioner's and Respondent's briefs, it looks to me like DC has (metaphorically speaking) brought a knife to a gunfight.
2.7.2008 5:45am
David M. Nieporent (www):
The worst part of the DC brief is the citing of the loony Gary Wills piece as though it were scholarly. I remember reading it when it was first published, and kept waiting for him to get to an argument, and the most we got was that the Latin equivalent of the phrase "bear arms," in Ancient Rome, referred to military use only.
2.7.2008 6:05am
Porkchop:

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.
2.7.2008 7:30am
Wondering Willy:
I'll admit that I'm a little biased by being an acquiantance of Alan Gura, counsel of record for Heller, but the DC brief is not particularly persuasive. I expected more out of Tom Goldstein and Walter Dellinger.

Gura's brief, on the other hand, is a masterful piece of legal writing and one of the best I have ever seen. DC did bring a knife to a gunfight.
2.7.2008 7:52am
Brett Bellmore:
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.
2.7.2008 8:17am
martinned (mail) (www):
L.S.,

@Brett Bellmore: A nicer way of putting that is that it is a good thing that the outcome of the case is not completely dependent on the strength of each side's advocacy. 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.
Ideally there should be a relatively small Supreme Court bar (at least smaller than the SCOTUS bar at the moment, which, I think, has about 200.000 members). In the UK, only QCs are allowed to argue before the Courts of Appeals and the House of Lords. In my country, the Netherlands, it requires (formally) a member of the bar in The Hague. Absent some way of assuring a high level of quality of representation in all cases, the Justices of the Supreme Court should be careful to consider whether there are arguments not suggested by parties.
2.7.2008 8:45am
ClosetLibertarian (mail):
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/
2.7.2008 8:54am
Bob Leibowitz (mail) (www):
The brief itself with citations runs 82 pages and is a thing of beauty with a bit of lawyerly humor.

There is an in depth review at Heller: The Good Guys Shoot Back, With Effect.
2.7.2008 9:19am
Dan Markel (mail):
Prof. Adam Winkler's got an interesting post up on Prawfs about the 2d Amendment you and other readers might enjoy.
2.7.2008 9:23am
The Ace:
Could SCOTUS eliminate problems with the DC Voting Rights Bill with this opinion? One of the main objections to that bill was that DC is not a "state" and thus giving it a vote in the House would be unconstitutional. If DC is a state within the meaning of one section of the constitution, should it not be a state within the meaning of of another section?
2.7.2008 9:42am
Bob Leibowitz (mail) (www):
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.
2.7.2008 9:59am
Jim at FSU (mail):
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.
2.7.2008 10:20am
Jim at FSU (mail):
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.
2.7.2008 10:20am
Jim at FSU (mail):
Comments are busted I think. It is supposed to be doing a redirect after you submit, but it gives you an error page.
2.7.2008 10:21am
Brett Bellmore:

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.
2.7.2008 10:40am
Dangermouse:
It's a pity guns aren't used in abortion procedures

Comment winner.
2.7.2008 10:52am
Hans Bader (mail):
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."
2.7.2008 11:01am
Kazinski:
Miller wasn't dead when the case was argued, he was dead by the time the case was announced.
2.7.2008 11:17am
Wondering Willy:
But Miller's lawyer didn't attend the oral argument, as I understand it, due to a mail snafu.
2.7.2008 11:37am
wuzzagrunt (mail):
Brett Bellmore wrote:
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.


I half suspect that the Petitioners are counting on their friends on the court to read between the lines and understand that the case is too important to get bogged down in quaint concepts like "the rule of law". The fate of entire bureaucracies hangs in the balance, by gawd.

I wonder, however, whether the liberal wing of the court is going to want to start throwing bombs so close to a presidential election. A reversal of the lower court would change the dynamic of the vote far more than the opposite result. To me, it's looking like the Dems are going to take the Whitehouse in a walk, and increase their majorities in both houses. That could very well go right out the window, if the DC ban is upheld.

Of course, we all know the SCOTUS is above the partisan political fray....I'm just sayin'.
2.7.2008 11:43am
Bruce Hayden (mail) (www):
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.
2.7.2008 11:46am
Bruce Hayden (mail) (www):
David,

I will admit that I was looking forward to this thread after having read the Heller brief yesterday. So, thanks.
2.7.2008 11:58am
therut:
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.
2.7.2008 12:09pm
The Ace:
Bob Leibowitz,

I am not talking about Heller's argument with regard to the meaning of a state. I am talking about DC's argument:

The DC brief spends a significant amount of words arguing that, even if the Second Amendment applies to ordinary citizens, it does not apply in DC. The argument is predicated on "necessary to the security of a free State" being a reference to state governments, not a free polity.

If the Court follows Prof Volokh's article and finds that "state" means polity, then the term "state" in Article I Section 2 may also mean polity. In which case, it becomes more difficult to sustain a constitutional objection to the DC voting rights act.
2.7.2008 12:10pm
Happyshooter:
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.
2.7.2008 12:38pm
Sam Draper (mail):
I don't see there being any confusion between "a free State" and "the several states" in Article 1, Section 2. The use of the indefinate article in the first instance I think shows that the second amendment is talking about polities generally. The definate article is used when referring to the states composing the union. The terms "the several states" is used in the constitition as amended 15 or so times (I lost count).
2.7.2008 12:39pm
Dilan Esper (mail) (www):
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.
2.7.2008 1:02pm
Clayton E. Cramer (mail) (www):

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.
They only have to answer the one question which the Court granted cert on: Does the Second Amendment protect the right of an individual living in DC to have a handgun in his home? And this is answered beautifully. I wasn't entirely happy with Gura's decision to address the machine gun regulation question in the brief, and I argued forcefully against even raising the issue, but his concerns for why it had to be addressed had to do with the Solicitor General's legally ignorant claims about machine guns.
2.7.2008 1:21pm
Clayton E. Cramer (mail) (www):

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.
2.7.2008 1:23pm
Clayton E. Cramer (mail) (www):

I have heard suggestion that death was to avoid his presenting evidence to the courts.
Uh, no. His attorney wasn't being paid to represent him before the Court.
2.7.2008 1:24pm
Dilan Esper (mail) (www):
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.
2.7.2008 1:25pm
David E. Young (mail) (www):
Brett Bellmore wrote:

If he'd [Miller] been represented before the Court, the Supreme court would have been presented with all the arguments we can muster today

All of the arguments we can muster today? This is a joke, right? How could Miller's lawyer in 1935 known all that we know today about the Second Amendment after decades of dispute and research into the subject?

The Miller Court, as I recall, relied on no historical evidence regarding the development of the Bill of Rights. State militia laws were relied on for an understanding of what the term militia meant. In Miller, there actually was no decision on what the Bill of Rights meant. The Court passed the buck back down to the District Court. Today there is a vast amount of historical evidence that would not have been available to Miller's lawyer or the Miller Court.
2.7.2008 1:26pm
Bruce Hayden (mail) (www):
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.
2.7.2008 1:29pm
Clayton E. Cramer (mail) (www):

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.
The amicus briefs answer these questions. Realistically, within the word limits, this is probably not even possible within the Respondent's brief while dealing with the other issues that are there.

I'm curious: did the anti-segregation implications of Missouri ex rel Gaines v. Canada (1938) get discussed in oral arguments? Did someone ask the attorneys, "So, if we decide against Missouri on this, is it going to cause us to abolish segregation of the lower grades?"
2.7.2008 1:37pm
Dilan Esper (mail) (www):
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.
2.7.2008 1:38pm
Dilan Esper (mail) (www):
The amicus briefs answer these questions. Realistically, within the word limits, this is probably not even possible within the Respondent's brief while dealing with the other issues that are there.

That's a cop-out, Clayton. A good advocate can do it in a page or two.

I can imagine all sorts of reasons why the Respondents' counsel don't WANT to do it, but that's a different issue.

As I said, prepare to get battered at oral argument.

And no, how the Court announced rights 70 years ago really doesn't say much about how the Court goes about doing it now.
2.7.2008 1:40pm
Bruce Hayden (mail) (www):
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.
2.7.2008 1:44pm
Bruce Hayden (mail) (www):
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).
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.
2.7.2008 2:01pm
Clayton E. Cramer (mail) (www):

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.
2.7.2008 2:07pm
33yearprof:
RE: Wills

In what is supposed to be a pro-control "apologia," 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. Robert E. Shalhope, To Keep and Bear Arms in the Early Republic, 16 Const. Comment. 269, 275 (1999).
2.7.2008 2:12pm
Clayton E. Cramer (mail) (www):

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.
2.7.2008 2:13pm
Clayton E. Cramer (mail) (www):

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.
And yet Shalhope signed the other side's brief--apparently because he found Bellesiles's fraud so persuasive!
2.7.2008 2:15pm
Dilan Esper (mail) (www):
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.
2.7.2008 2:16pm
Dilan Esper (mail) (www):
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.
2.7.2008 2:22pm
MXE (mail):
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.
2.7.2008 2:35pm
Bruce Hayden (mail) (www):
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.
It was their addressing the revolutionary aspects of the historical roots that I was questioning from a strategic point of view.
2.7.2008 2:38pm
David E. Young (mail) (www):
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?
2.7.2008 3:00pm
ClosetLibertarian (mail):
Clayton,

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

Oh and I meant that DCvHeller.com is available if someone is interested.
2.7.2008 3:00pm
Bruce Hayden (mail) (www):
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.
2.7.2008 3:01pm
Dilan Esper (mail) (www):
Bruce:

Just trust me, you are being too airy here. While, rhetorically, many judges are very concerned about whether a right is expressed in the constitution or is implied, ALL judges are concerned about the logical implications of their decisions. Even the most strict textualists and originalists are very concerned about it, and will not issue decisions that recognize rights if they are convinced that it will foul up the state of the law.

Experienced appellate advocates know that they need to be able to answer questions about the implications of their argument in some detail and clarity. Simply saying "it's in the Constitution" isn't good enough, because, as a matter of brute political power, it isn't in the Constitution unless these nine judges say it is. And I say this as someone who believes the Respondents are correct on the constitutional question.

Respondents are going to be battered on this point in oral argument. And they better be prepared with good answers.
2.7.2008 3:19pm
Clayton E. Cramer (mail) (www):


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!
2.7.2008 3:34pm
Clayton E. Cramer (mail) (www):

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.
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. At this point, the Court has not found (nor asked to find) that the Second Amendment is incorporated against the states.

Most of the federal laws are completely safe--they prohibit gun ownership by convicted felons, a few people subject to domestic violence restraining orders, people committed for mental illness o adjudicated mentally defective, U.S. citizens who have renounced their citizenship. These can all be traced to equivalent provisions of American laws in 1789 without difficulty. (I've already given the necessary material to Gura.)

You might argue that the background check requirements on firearms purchases are questionable to the extent that they charge a fee. If there was still a waiting period on all firearms purchases, that might be questionable as well.

The wait that some purchasers experience now because of difficulties in verifying identity should survive strict scrutiny as well, because it only applies to those for whom there is some question. It is narrowly tailored in that respect (only applies to those where there is real question) and it is not overbroad (we don't make everyone wait because some people are hard to check). It also involves a compelling governmental purpose--keeping guns out of the hands of felons, mental patients, and those likely to be a domestic violence problem.

The only federal laws that might be subject to challenge would be: the national parks ban on loaded firearms, and the 1986 ban on new manufacture of machine guns for civilian use--which has already been given a pretty serious injury in U.S. v. Rock Island Armory (C.D.Ill. 1991).
2.7.2008 3:43pm
Clayton E. Cramer (mail) (www):

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.
2.7.2008 3:46pm
Dilan Esper (mail) (www):
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.
2.7.2008 3:51pm
Philistine (mail):
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.
2.7.2008 4:04pm
Dilan Esper (mail) (www):
Philistine:

Don't expect that the Court is just interested in the easy cases of laws that the NRA doesn't oppose like felons-in-possession statutes and instant background checks.

The Court also wants to know whether laws that the NRA DOES oppose might get struck down, and if so, under what standard. E.g., is a waiting period constitutional? An assault weapons ban? Gun registration? Licensing? Limitations on concealed carry?

These questions are going to come out of the mouths of the justices, rapid fire, when this case is argued. And that's what the brief needed to address.
2.7.2008 4:13pm
Carl Donath (mail):
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).
2.7.2008 4:25pm
Clayton E. Cramer (mail) (www):

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.
As Philistine points out, they did.
2.7.2008 4:25pm
Vinnie (mail):
NRA brief is in.
here:
2.7.2008 4:32pm
Vinnie (mail):
ok here:
http://www.nraila.org/media/PDFs/nra_amicus_heller.pdf
2.7.2008 4:32pm
Dilan Esper (mail) (www):
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.
2.7.2008 4:33pm
Clayton E. Cramer (mail) (www):

The Court also wants to know whether laws that the NRA DOES oppose might get struck down, and if so, under what standard. E.g., is a waiting period constitutional?
Is there a compelling governmental purpose to it? Does the waiting period actually accomplish that end? The government at one time could have argued that background checks on the buyer provided a compelling governmental purpose, but today, with instant check, that argument is dead. They might argue that it reduces crimes of passion--but the evidence is pretty clear that if it makes any difference, it is pretty well overwhelmed by other factors.

An assault weapons ban?
Talk about the quintessential "militia weapon"! Now some sort of licensing to make sure that only the law-abiding have access to assault weapons might survive strict scrutiny--but based on actual criminal misuse, such licensing would make more sense for handguns--and again, the law would have to be narrowly tailored to serve that compelling governmental purpose.

Gun registration?
This survives strict scrutiny, as long as the cost to do so is either trivial or zero. You can make a compelling governmental purpose for being able to trace guns to a criminal. Of course, if the Court recognizes an individual right on this, much of the enthusiasm for registration (which is openly stated as a step towards confiscation) goes away.

Licensing?
In the discretionary abuse sense of licensing, certainly not.

Limitations on concealed carry?
Probably again subject to strict scrutiny. From an original intent standpoint, this doesn't stand a chance. Such laws are entirely post-1789. The experience of the states with non-discretionary permit issuance laws (and the two states that don't require a license to carry concealed) argue that discretionary permit issuance isn't narrowly tailored to serve a compelling governmental purpose.
2.7.2008 4:36pm
Dilan Esper (mail) (www):
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.
2.7.2008 4:45pm
Brett:
Dilan: We get it. You think the brief should have contained a more thorough prudential analysis; is lousy because it doesn't; and that the Respondents are going to get crucified at oral argument as a result.

Again, we get it. Move on.
2.7.2008 5:20pm
Dilan Esper (mail) (www):
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.
2.7.2008 5:29pm
Brett:
To my mind the the weakest part of the brief is the formulation of the "Miller Test": that arms covered by the Second Amendment are those:

(1) Which were and are in common civilian use;

(2) Which have a civilian purpose; and

(3) Which are suitable for military use.

The problem with this formulation is that there are whole categories of weapons which, while having a civilian purpose and while being suitable for military use, have fallen out of common civilian use precisely because they've been subject to decades of federal regulation -- Jack Miller's short-barreled shotgun, for example.
2.7.2008 5:45pm
Brett:
Dilan: So you're basically trolling? Okay. Carry on.
2.7.2008 5:47pm
Dilan Esper (mail) (www):
Brett:

Naah. Just making sure that by the end of this thread, people aren't talking about the lawyers for the Respondent in this case in the same breath as Abraham Lincoln, Horace Rumpole, Clarence Darrow, and F. Lee Bailey.

Just keeping it real, man.
2.7.2008 5:48pm
Sam Draper (mail):
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.
2.7.2008 6:14pm
Sam Draper (mail):
Oops, meant to say "The arms test given in the respondent's brief ..."
2.7.2008 6:23pm
wuzzagrunt (mail):
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.
2.7.2008 6:35pm
Brett:
Sam: I'm thinking more along lines of assault rifles and submachine guns. These weapons have obvious civilian purpose (recreation, if nothing else) and obvious militia utility. To the extent that civilian use hasn't been common, though, it's chiefly a function of the onerous licensing requirements of the NFA, price increases due to skyrocketing demand after the 1986 ban on new manufacture and import, and state-level bans.

Yet the first prong of the "Miller Test" outlined in the brief essentially puts controls on such weapons outside constitutional scrutiny merely because said controls have been effective at reducing civilian use of the weapons.

Another thing to consider: that first prong of the "Miller Test" may also be a license for government to keep non-incremental advancements in firearms technology out of civilian hands, insofar as such advancements can't be said to be in "common civilian use".

In all, the "Miller Test" looks like something that will enable courts to maintain the status quo of federal gun regulation indefinitely, even if Mr. Heller gets to keep his revolver. This doesn't strike me as a positive outcome.
2.7.2008 6:38pm
zippypinhead:
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...
2.7.2008 6:50pm
Mike Gallo (mail):
martinned - this is a bit off-topic, but I found it hilarious that I (as a biochemist) didn't think twice about reading "200.000" as "200,000." Some laywers might wonder how many significant figures are to be used for litigators.
2.7.2008 6:51pm
Dilan Esper (mail) (www):
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.
2.7.2008 6:55pm
wuzzagrunt (mail):
zippypinhead wrote:

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?"

Striking down 18 U.S.C. §922(o) should present no major problems, beyond certain justices believing that machine guns are "too scary" for civilians to own. The virtual absence of a record of civilian misuse of legally owned NFA weapons, makes it a non-issue.
2.7.2008 7:08pm
Kevin P. (mail):

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.
2.7.2008 7:12pm
Dilan Esper (mail) (www):
Kevin:

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. is simply not the way the Supreme Court thinks.

I can't count the number of times I have gone to an MCLE seminar where an appellate judge talks about what they don't like, and starts going off about briefs that tell the courts what they already know and using all sorts of flowery rhetoric without telling them the implications of a ruling in the client's favor would be. This is one of the standard gripes of appellate judges. Not quite as aggravating as misciting the record, but right up there.

It isn't "adequate" to casually pop off about strict scrutiny without saying what that means. Strict scrutiny means thousands of laws are now unconstitutional. Strict scrutiny means thousands of people are going to get out of jail.

The Supreme Court doesn't go off half-cocked subjecting laws right and left to strict scrutiny. They want to know not only what happens to the pistol in Respondent's home, but what happens to the entire system.

Whoever is paying Mr. Gura's bills, the fact of the matter is his he clearly felt constrained about either doing the right thing for his client (by saying that controversial gun control laws will not be struck down) or coming out and saying what his proposed strict scrutiny test would really mean. It certainly has the appearance of someone who is operating under the sorts of constraints I spelled out.
2.7.2008 7:22pm
Sam Draper (mail):
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.
2.7.2008 7:49pm
zippypinhead:
Dilan Esper wrote:

Strict scrutiny means thousands of laws are now unconstitutional. Strict scrutiny means thousands of people are going to get out of jail.

Not likely. Even under a strict scrutiny analysis, felon-in-possession and use of firearms in the commission of a crime laws are obviously going to be upheld. That accounts for the VAST majority of people in prison on firearms convictions. 18 U.S.C. §922(g), for example, simply isn't at risk under strict scrutiny.

Not many people are in jail for simple possession of unregistered NFA weapons (or in D.C., for simple unregistered possession of a firearm in general). I haven't seen the Federal statistics in a while, but I seem to recall that somewhere in the footnotes one could tease out there are practically NO convictions for NFA violations without there being an underlying felon-in-possession or other crime, except in the context of charge-bargaining plea agreements where the U.S. Attorney gave up other counts in exchange for a plea on the NFA charge. I'm willing to speculate that, similarly, D.C. hasn't been locking up very many otherwise law-abiding grandmothers for keeping a .38 in their nightstand drawer.

Heller would also have to be applied retroactively before anybody starts printing get out of jail free cards. Not at all clear that it would qualify (especially since we don't know what the opinion will say). Although just that question could start a whole 'nother thread.

I still suspect that at least the moderates on the Court may fixate on whether Heller might start a "slippery slope" that jeopardizes statutes like §922(o), rather than the much more remote likelihood that all the D.C. jail cell doors will suddenly swing wide open if they affirm the D.C. Circuit. I didn't catch much of a whiff of concern about retroactivity in the Solicitor General's brief (that was obviously motivated by the fear strict scrutiny would impact Federal gun control), either. Maybe the only reason for the Court wanting to draw a line that preserves the validity of the 1934 NFA and 1986 FOPA is Justice Kennedy having the visceral feeling that machineguns are "too scary," but that's not a view briefing is likely to change. Maybe a few trips to the range at Quantico to sample the fun of playing with an M-4 would overcome this fixation, but I don't think the Court does field trips very often...

Bottom line: at oral argument, there'd better be a good answer why Heller's position won't start a slippery slope of firearms law invalidations (especially regulating the "too scary" kind), or there will be a problem. Tactical considerations like this DO matter...
2.7.2008 8:07pm
wuzzagrunt (mail):
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?
2.7.2008 8:11pm
Dilan Esper (mail) (www):
zippy:

1. Strict scrutiny, if taken seriously, is "fatal in fact" (that is what the Supreme Court itself has said about it). Only a handful of laws survive it when it is seriously applied. (Examples of strict scrutiny include race discrimination-- where only the narrowest forms of affirmative action survive and only by bare 5-4 majorities of the Supreme Court, and restrictions on core political speech, which never survive.)

If firearms regulations are subject to strict scrutiny, it means by definition that the are almost all, or all, unconstitutional.

If what Respondent's counsel really envisions is a test where many firearms laws are in fact constitutional, that would not actually be strict scrutiny.

Strict scrutiny is not a rhetorical pose for "treating something as really important". Rather, it is a doctrinal description of "the government can almost never do this". That's why you can't just throw it around the way the Respondent's brief does.

2. Under Teague v. Lane, not only would ANY Second Amendment right be retroactive, but it would be retroactive on both direct review AND habeas. Everyone imprisoned pursuant to an unconstitutional firearms statute gets out of jail.

Some folks on this thread may not be aware of all the implications of an individual right to bear arms that invalidates any restriction that does not survive strict scrutiny. But I assure you, the justices on the Court are quite aware of them.
2.7.2008 10:22pm
juris_imprudent (mail):
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?
2.7.2008 10:35pm
NickM (mail) (www):
The past few years' Sentencing Guidelines cases should dispel the notion that the Court carefully reviews the implications of its rulings before it makes them.

Nick
2.7.2008 10:49pm
Dilan Esper (mail) (www):
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).
2.7.2008 10:55pm
Dilan Esper (mail) (www):
Nick:

Actually that's wrong. One of the big reasons Booker and Fanfan came out the way they did rather than simply invalidating the whole thing is because if the guidelines are advisory most everyone in federal prison doesn't have to be resentenced, whereas if they are flat-out unconstitutional most everyone does.
2.7.2008 10:57pm
federal farmer (www):

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.
2.8.2008 12:39am
zippypinhead:
Dilan:

I think focusing on potential retroactivity of the Heller decision may be getting a bit far afield. That is seldom a serious enough concern to skew the Court's decisionmaking on the merits. And here there's especially not much likelihood of successful retroactive collateral attack, IMHO.

Funny you should cite Teague; that's a case I once knew well, along with Batson and Allen, since when they came down I was in a part of the legal biz where I had to study them carefully to figure out how they affected my employer's preemptory challenge practices. Not sure you've read the plurality in Teague correctly on retroactivity, particularly in light of the general rule of Solem v. Stumes. Among the factors in a retroactivity decision are the extent of the reliance by law enforcement authorities on the old standards, and the effect on the administration of justice of a retroactive application of the new standards. If throwing 70 years of Federal firearms law enforcement out the window isn't worthy of consideration there, then Allen and Solem's teaching that a decision announcing a new Constitutional rule that explicitly overrules an old precedent "is almost automatically nonretroactive" can be used to ensure the jail cell doors don't swing open. If the Court explicitly overrules Miller in whole or in part, then there's an excellent case for non-retroactivity (but see my earlier post for ruminations on other problems this may cause).

Getting even further afield: your description of the inevitable effect of strict scrutiny review of governmental actions sounds like what I recall my Con Law professor long ago opined was the "lazy man's rule," immediately before we launched into a discussion of Establishment Clause jurisprudence. More recent research has suggested he was right -- the real world application of strict scrutiny may not be nearly as fatal as popular myth, except in "super strict scrutiny" cases like those involving First Amendment prior restraints or de jure racial discrimination. Adam Winkler's study in Vand. L.Rev. a couple of years ago found that laws actually survive strict scrutiny challenges between 30 and 60% of the time, with the highest number found in some clearly "fundamental" First Amendment rights cases. And while the Second Amendment is likely to be found to be a "fundamental" right, there's plenty of wiggle room for the Court to rule that laws such as felon-in-possession prohibitions should be evaluated more like post-conviction disenfranchisement statutes than like speech prior restraints. And I suspect Brady/NICS background checks, and even most non-confiscatory registration requirements, could be found to meet the compelling interest/narrowly tailored/least restrictive test.

The problem as I see it is that some on the Court may have qualms about articulating a principle that might well throw out regulation of NFA weapons and destructive devices. Result-oriented, yes. Based on ignorance and fear that they're just "too scary," yes. But that's the way the world sometimes works, as other posts in this thread have suggested. Tactically counsel will be able to make the Court more comfortable with an individual rights ruling if he can convince it they're not starting down a "slippery slope."

It's been fun, but it's late and now I've got some amicus briefs to read. Bye...
2.8.2008 12:46am
federal farmer (www):

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"?
2.8.2008 12:57am
juris_imprudent (mail):
Dilan,

I would note that certain touchstone cases (e.g. Brown v. Board of Education) are heralded for precisely the 'chaos' they created. However, this tends to be a one way street. It is most debatable if Kelo really would've thrown a broad swatch of LAW into turmoil, but it certainly would've upset some POLICY (and it's very arguable that that would not have been a good thing). Raich would have undressed the commerce clause just as Brown did to Jim Crow. It thus becomes a matter of perspective as to the relative goodness of that outcome. This really isn't pragmatism, in law - it is conservatism in preserving the status quo, just or not. I will grant you that this is the way things are - but I will not grant that this is the ideal to which our society should aspire.

Sheesh, and liberals think THEY'RE the idealists.
2.8.2008 1:01am
Tony Tutins (mail):
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.
2.8.2008 1:29am
Dilan Esper (mail) (www):
zippy:

Under Teague, there is no retroactivity issue when it comes to changes in substantive law. All such decisions are fully retroactive in habeas cases (that's one of the two exceptions to Teague's general rule of nonretroactivity). It's only procedural rules that are usually nonretroactive on collateral review.

For instance, if the Supreme Court decided that obscenity was now fully protected by the First Amendment, EVERY person now in jail on an obscenity charge would get out, even if it would take a habeas petition to do it.
2.8.2008 1:01pm
Dilan Esper (mail) (www):
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.
2.8.2008 1:08pm
Clayton E. Cramer (mail) (www):

1. Strict scrutiny, if taken seriously, is "fatal in fact" (that is what the Supreme Court itself has said about it). Only a handful of laws survive it when it is seriously applied.
This isn't correct. Winkler's paper on strict scrutiny points out that about 1/3 of the laws to which strict scrutiny is applied actually survive.
2.8.2008 2:46pm
Dilan Esper (mail) (www):
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.
2.8.2008 3:33pm
wuzzagrunt (mail):
And yet, McCain-Feingold was upheld.
2.8.2008 5:39pm
Dilan Esper (mail) (www):
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't get strict scrutiny. The other is a ban on certain communications 60 days out from the election, which is arguably a time place or manner restriction.

Those campaign finance restrictions that regulate the expenditure side of the ledger are subject to strict scrutiny and always get struck down. What the Respondent is asking for is THAT same level of scrutiny (which results in everything being struck down) being applied to gun laws.
2.8.2008 5:52pm
wuzzagrunt (mail):
Dilan Esper wrote:

The other is a ban on certain communications 60 days out from the election, which is arguably a time place or manner restriction.

I'll admit to some ambivalence about the limits on contributions. Not that I believe there is a fundamental right to dash off a seven figure check to one's Congressman.

The limits on communications as time/place/manner restrictions are, in my opinion, pure equine alimentary effluent. These types of communications--at election time--go to the very heart of the 1st Amendment. Calling themm "in kind contributions" is just wrong. Even if they are, the 1st Amendment doesn't only guarantee speech in forms we find acceptable.
2.8.2008 6:16pm
Dilan Esper (mail) (www):
wuzz:

I'm actually pretty libertarian on campaign finance (I can even justify striking down contribution limits, as long as quid pro quo exchanges are prohibited). I only was noting that the reason BCRA gets upheld, to the extent it does, was because it arguably isn't subject to strict scrutiny under the Court's current jurisprudence, rather than it surviving it.
2.8.2008 6:20pm
federal farmer (www):
So you are saying that the 1st Amendment is subject to all kinds of different levels of scrutiny?

And this developed full blown from one case, like Athena sprung full grown from Zeus' head? Or did it evolve over decades?
2.8.2008 7:46pm
Clayton E. Cramer (mail) (www):

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.
1. The Second Amendment has not been incorporated against the states. So the state laws aren't at immediate risk.

2. I'm curious: which gun control laws do you think can't be justified?

Felon in possession laws seems pretty easy to justify (and there's also an originalist argument that this was recognized and understood in 1789).

The domestic violence restraining order laws can be again justified as a compelling state interest--and narrowly tailored.

General bans (DC, Chicago) can't be, because they apply to everyone, including people who are at effectively no risk of misusing a gun.

Very restrictive licensing laws (Mass., New York) probably won't survive unless they get a lot less restrictive.

The various assault weapon bans wouldn't survive--but some sort of licensing scheme that allowed the vast majority of law-abiding adults to own them would survive. (Unless you believe that the vast majority of law-abiding adults are likely criminals.)

What other gun control laws are you expecting to be difficult or impossible to justify, or that you are admitting are overbroad?
2.8.2008 7:56pm
Clayton E. Cramer (mail) (www):

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.

The argument for gun control laws is to reduce murder and other violent crimes involving guns. Is this not a compelling state interest? Or is only smearing chocolate sauce across a naked body on stage a compelling state interest? :-)


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.
Can you give some examples of gun control laws that are easier, less expensive, or more effective than other ways of solving those problems? Remember that there is very, very little evidence that gun control laws even work--much less are "easier, less expensive, or more effective" than other strategies.
2.8.2008 8:02pm
Dilan Esper (mail) (www):
Clayton:

You are missing the point. Again, I am not saying that every gun law is constitutional, or unconstitutional. I am saying that you can't drop "strict scrutiny" out there like an aside, a little "oh yeah, that's the standard of review". Strict scrutiny means just about everything fails.

For instance, in Palmore v. Sidoti, strict scrutiny meant that even a showing that a child would be stigmatized by being brought up in an interracial household was not sufficient to justify race discrimination in child placement. Now, nobody would deny that the welfare of a child is a compelling interest, and yet, the law failed. Because strict scrutiny is fatal in fact.

In New York Times v. United States, strict scrutiny meant that the disclosure of classified information in wartime didn't justify a prior restraint, even though its publication might endanger American troops. Why? Because strict scrutiny is fatal in fact.

That's what it means. Now, if what you have in mind is a different standard where some gun laws get upheld and some get struck down, that's fine. BUT IT'S NOT STRICT SCRUTINY.

Indeed, my point is that the lesser standard is what the Respondent should have argued for. The reason they went for strict scrutiny is because that's what the MOVEMENT wants. But it wasn't good for the client's interest, and the client is supposed to come first.
2.8.2008 8:25pm
Clayton E. Cramer (mail) (www):

You are missing the point. Again, I am not saying that every gun law is constitutional, or unconstitutional. I am saying that you can't drop "strict scrutiny" out there like an aside, a little "oh yeah, that's the standard of review". Strict scrutiny means just about everything fails.
You keep saying this. But Professor Winkler says that 30% of laws tested under strict scrutiny survive--higher in some categories than others.

Who should I believe? A law review article that says that strict scrutiny isn't necessarily fatal in fact? Or you?

By the way, freedom of the press ever since Minnesota v. Near (1931) has been under something call "super strict scrutiny" while some other rights are under "strict scrutiny"--a doctrine that appears with Korematsu (where the law was upheld) and is fully developed in the 1960s. I notice that some of your examples above involve freedom of the press questions.

The fact is that by the standard of strict scrutiny, the government has to:

1. Show a compelling governmental interest. Preventing violent crime is a compelling governmental interest. Check.

2. Narrowly tailored. If a law is actually aimed at a particular group or class that is especially likely to engage in violent crime (for example, minors, or convicted felons), then the law would seem to work.

3. It can't be overbroad. DC's law is overbroad. It affects everyone. A gun control law that doesn't treat everyone as a potential criminal would be just fine.

4. The law is permissible if there is no other way to achieve the compelling governmental interest. Okay, are you arguing that there are a lot of gun control laws that achieve a compelling governmental interest, and there is a way to accomplish that compelling governmental interest without a gun control law?

I keep asking you to list specific gun control laws that are going to fail this test. Some will fail. The Sullivan Law (if the Court ever incorporates against the states) will fail. The various state and local assault weapon bans will fail. But felon in possession is safe. Background checks are safe. Waiting periods probably aren't safe. Registration is safe. Arbitrary concealed weapon permit laws are certainly in big trouble--many of which suffer from equal protection claims that the courts generally ignore.
2.8.2008 11:23pm
Dilan Esper (mail) (www):
You keep saying this. But Professor Winkler says that 30% of laws tested under strict scrutiny survive--higher in some categories than others.

Who should I believe? A law review article that says that strict scrutiny isn't necessarily fatal in fact? Or you?

You should believe the Supreme Court, which itself said that strict scrutiny is fatal in fact.

I indicated what the problem was with Winkler's methodology, Clayton-- the percentage is meaningless, because many laws won't even get passed if strict scrutiny is in place, because they are so obviously unconstitutional.

Further, Winkler's also irrelevant for another reason. His study includes LOWER COURTS. The issue is what the SUPREME COURT does with strict scrutiny, not what lower courts do. And Winkler's OWN research shows that the Supreme Court strikes down a higher percentage of laws under strict scrutiny than other courts.

Moreover, it matters what the Court THINKS, not just what it does. Even if courts don't live up to the command, if you read the RHETORIC of strict scrutiny cases, it is clear that it is supposed to mean that almost all laws fail. That's what the justices THINK they are doing. Whether or not they accomplish that goal, it means that only an advocate hemmed in by ideological correctness and uninterested in his client's interests would suggest half-cocked that the Court adopt strict scrutiny.

By the way, freedom of the press ever since Minnesota v. Near (1931) has been under something call "super strict scrutiny" while some other rights are under "strict scrutiny"--a doctrine that appears with Korematsu (where the law was upheld) and is fully developed in the 1960s. I notice that some of your examples above involve freedom of the press questions.

Really? Clayton, you are WAY out of your expertise here. It is true that the level of scrutiny doesn't always tell the full story, but this idea that there is an actual standard of review stricter than strict scrutiny (other than categorical prohibition) is ridiculous.

Also, it contradicts Winkler, who didn't find significantly different levels of struck down laws in free press cases.

In any event, Clayton, you are trying to draw me into a debate about gun control laws, and in doing so miss my point. Whatever Adam Winkler or Clayton Cramer says, THE SUPREME COURT THINKS STRICT SCRUTINY IS SERIOUS BUSINESS. Sorry, but they do.

I assure you that I could come up with arguments as to why just about any gun control law fails the least restrictive means test of strict scrutiny. Felons? Parole and probation and supervised release and mointoring are available. Registration? Don't need it; the government can subpoena purchase records in the event of a crime, or use fingerprinting and DNA to identify the provenance of weapons. As you point out, there are arguments on waiting periods and concealed weapons permits and licensing. Restrictions on types of weapons? As you point out, assault weapons bans are going to fall-- I would suspect machine gun laws would fall too. Time, place, and manner restrictions? Hiring more police would be less restrictive. The only thing that I would agree with you is likely safe is an instant background check.

But I will say one more thing. Let's assume you are right about what fails strict scrutiny and what gets upheld. YOU STILL WOULD BE CRAZY TO ARGUE THAT POSITION TO THE COURT AS THE LIKELY RESULT OF THIS ACTION. The LAST thing the Justices want to hear is that if they rule for Respondent, thousands of gun control laws at the local, state, and federal level will all be thrown into a state of flux if they rule for Respondent.

This was a really dumb thing for Respondent's counsel to do. The right wing has already lost two big cases in recent years, as noted above, that turned on the pragmatic implications of recognizing a new right. Want to go for the trifecta?
2.9.2008 1:35am
Clayton E. Cramer (mail) (www):

Further, Winkler's also irrelevant for another reason. His study includes LOWER COURTS. The issue is what the SUPREME COURT does with strict scrutiny, not what lower courts do. And Winkler's OWN research shows that the Supreme Court strikes down a higher percentage of laws under strict scrutiny than other courts.
Because the Supreme Court doesn't have to take every case that is appealed to it, perhaps the ones that they do take are the ones that they consider especially egregious?


Moreover, it matters what the Court THINKS, not just what it does. Even if courts don't live up to the command, if you read the RHETORIC of strict scrutiny cases, it is clear that it is supposed to mean that almost all laws fail. That's what the justices THINK they are doing. Whether or not they accomplish that goal, it means that only an advocate hemmed in by ideological correctness and uninterested in his client's interests would suggest half-cocked that the Court adopt strict scrutiny.
Winkler points to a couple of opinions by Sandra Day O'Connor, such as Grutter v. Bollinger and Adarand Constructors v. Pena, where she specifically rejects "strict in theory, fatal in fact." Maybe you know this subject better than Winkler does, but so far, I'm seeing a lot of statements of opinion, but nothing citable.

I will be the first to agree that this is a subject that I am not an expert about. But I can find law reviews that make a strong argument against your position about strict scrutiny being fatal in fact. Are there any recent scholarly articles defending your position?
2.9.2008 9:39am
juris_imprudent (mail):
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.

I take it then that you share Scalia's concern on the standard of review applied in Lawrence v. Texas.
2.9.2008 5:19pm
federal farmer (www):
Dr. Hupp and friends have filed an amicus that might get some folk's strict scrutiny panties unbunched.
2.9.2008 6:21pm
Dilan Esper (mail) (www):
Winkler points to a couple of opinions by Sandra Day O'Connor, such as Grutter v. Bollinger and Adarand Constructors v. Pena, where she specifically rejects "strict in theory, fatal in fact." Maybe you know this subject better than Winkler does, but so far, I'm seeing a lot of statements of opinion, but nothing citable.

Clayton, O'Connor was probably, along with Powell, the most likely to be willing to uphold laws under strict scrutiny at least with respect to race discrimination. You mention two affirmative action cases. Well, O'Connor and Powell stand between the liberals-- who wanted a lighter level of scrutiny for affirmative action, see Metro Broadcasting v. FCC, and the conservatives, who felt that strict scrutiny should be fatal in fact. So of all the justices who have sat on the Court in the last 30 years, exactly 2 think it shouldn't be fatal in fact.

I take it then that you share Scalia's concern on the standard of review applied in Lawrence v. Texas.

I don't agree with Scalia's homophobia or his belief that homophobia dressed up as morality supplies a legitimate basis for laws, but yes, I do think he had a valid point about the Court not really applying rational basis review in Lawrence.

Dr. Hupp and friends have filed an amicus that might get some folk's strict scrutiny panties unbunched.

That's an AWFUL brief, federal. Basically, it says that EVERY gun control law is unconstitutional except for laws that ban CATEGORIES of firearms. There is no way in a million years that position would get even ONE vote on the Court.

This is fantasyland for the NRA. It will be really funny-- and sad, because I do believe in an individual right to bear arms-- when these guys lose this case because they flew too close to the sun.
2.10.2008 4:15pm
zippypinhead:

Dr. Hupp and friends have filed an amicus that might get some folk's strict scrutiny panties unbunched.

Nope... There are two basic points made: (1) apply the same strict scrutiny standard to the Second Amendment as to First Amendment political speech (at least as relates to "traditional" firearms such as pistols), and (2) ignore the machinegun-toting elephant standing in the corner.

#1 is interesting, except (a) you have to not only embrace but also extend the factually disingenuous Miller precedent to get to this conclusion, and (b) it tends to overlook the fact that machineguns can just as easily be classified as direct lineal follow-ons to colonial-era muzzleloading flintlock rifles as can any other repeating firearm -- all the modern firearms propel projectiles through a barrel and downrange by explosive force without the necessity of manually reloading. The M-16 is classified as a rifle, as is the BAR ("Browning Automatic Rifle") and pretty much every other automatic firearm with a 16"+ barrel. Trying to distinguish between single versus multiple trigger pulls is no more legally or theoretically defensible than disregarding single-shot versus repeating chambering systems. Or open lock/primer versus firing pin and hard cartridge systems. Let's just bag the "lineal descendant" argument altogether -- it's just too squishy to be useful.

#2, I'm afraid, may be intellectually attractive to Scalia, Thomas and just maybe Alito, but probably not most of the rest of the Justices. The elephant in the corner casts a long shadow, and the Court is going to be reluctant to open a floodgate of litigation on this issue. No matter how hard folks argue to the contrary. In the last few decades the Court has worked hard to anticipate and avoid follow-on judicial firestorms from their holdings whenever possible.

Bottom line: this brief will just encourage the Justices to flyspeck the standard of review question to come up with a result that gets the elephant to quietly leave the room. They probably won't succeed, but they'll likely muddy things up by trying.
2.10.2008 5:07pm
juris_imprudent (mail):
...but yes, I do think he had a valid point about the Court not really applying rational basis review in Lawrence.

I would agree with your opening to that sentence as well. But the point here is about "fundamental" rights versus whatever 'lesser' rights we have (which in itself is a tendentious argument). That is the jurisprudential corner the Court has painted itself into. And Scalia could not have written this dissent were it not for the excessive lengths that the other wing of the Court goes to in order to see their desired results.
2.10.2008 10:03pm
Dilan Esper (mail) (www):
juris:

If your point is there is plenty of results oriented jurisprudence to go around, absolutely there is.

But that doesn't mean that they don't care about the categories or are blithe and unaware to the effects of recognizing a "new" right subject to strict scrutiny. The fact is, I think a lot of people who don't carefully follow the Court assume that it is either-or, that since they can get so political that they don't care about doctrine. In fact, they are political, but they also care a lot about doctrine. And the best appellate advocates know that if you put ideology ahead of doctrine, you don't win your cases.
2.11.2008 1:36am
occidental tourist (mail):
Sorry I'm behind the curve- can't keep up with the reading. I think the criticism has been healthy if the consequentialist horse has been flogged a bit much -- perhaps in response to some of the pollyannish earlygoing in the comments.

While it does seem to me that Dellinger and company are looking at a glass that is a quarter full as half full, I enjoyed their brief.

When else has a liberal brief been so concerned with the founders design? It is refreshing to see an argument take place on that turf. Of course, like Napoleon, once you commit to the battlefield at Waterloo, you may find you do not have the advantage.

Perhaps the cleverest gambit which drags the left furthest to the right in its argumentation is in what amounts to the pivotal historic contention of the brief (p. 34, italics in original):


But the fear that congress might disarm the citizenry outside the context of militia service was never expressed by any person know to be involved with the passage of the Second Amendment. Indeed, it is doubtful that Congress's limited powers, as understood in 1791, would have been thought to encompass any power over firearms outside the militia context.


What a pleasing admission regarding an original understanding of the powers of the federal government utilized to gain a consensus for ratification and as informing the debates over amendment.

This appears to be at least a theoretically nettlesome challenge and seems to have been overlooked by Gura and Co. and by commentors here. I think it was deserving of more direct address in Respondent's brief -- Monday morning quarterbacking literally and figuratively here -- both to lock in this view of the founding's limited federal purview as a relevant filter for present day constitutional adjudication and to respond to the logical import of the point in the present case.

After all, when it came to Shay's Rebellion, Madison didn't propose to send the continental army to suppress it although that was conceivably if controversially within the power of congress, esp. upon entreaty from the state in question (Massachusetts resorted to the mercenary approach instead) -- albeit the continental army was largely a frontier defense force at that time and the challenge was to state, not federal, sovereignty.

But this view of the limited federal legislative purview must be balanced against the powers that were explicitly federal and their implications. Indeed, the federal militia power that appellants make central to the case is the very source of the concern they would assuage. Thus their clever constitutional ploy can be turned upon its head.

The militia power is largely transfered to the federal government in contrast to the articles of confederation and explicitly incorporates under the militia's contemplated enforcement actions "execute the laws of the union" and "suppress insurrections"

These premises were politely lacking in the articles of confederation and the Posse Comitatus, like incorporation of the bill of rights against the states was a century away. So it was clear that the federal power extended to military action exceeding "the common defense". As such disarmament could be seen not as a legislative matter but rather as a military tactic.

That is not to say that parliament and various colonial governances did not give legislative form to some disarmaments but it seems quite likely that disarmament as a tactic rather than as a rule of law question was at the core of the 2nd amendment debate at the founding.

As to consequentialist concerns. It is hard to say that Gura and Co. ignored them, as, strategically, they largely ask the court to avoid decide the case short of the standard of review question. They at least offer a plotline whereby banning or highly regulating machine guns better withstands the concept of complete ban on a lineal class and, if moved to the standard of review, the level of regulation has been necessary and effective.

This certainly isn't designed NOT "to tick off the gun lobby" and while not wholly conceding the question offers a results oriented differentiation of not a completely disingenuous nature.

I certainly agree that this is playing with fire in allowing, nee endorsing, a Milleresque or perhaps supraMilleresque notion that the arms must be in common civilian usage. But some formulation of this must attend. Perhaps the idea of bearing and use by an individual is more relevant as controlling the availbility of lars rockets to the gneeral public, albeit stinger missles present a challenge.

Of course if the insurrectionist premise is valid, which I think it is although Gura disclaims support for any, then the arms race might be considered to be an internal question as well. Although the French Revolution demonstrated -- if not the best that Republican government has to offer -- that the citizens who were largely dispossessed of firearms as an economic matter used pikes and cudgels as weapons to leverage their seizure of more military capacity.

I certainly think, despite Madison's distaste for Shay's rebellion at the time he was focused on building up rather than tearing apart a nation that his own acceptance of the premise if not the merits of each and every grievance that lead to its invocation, is well established and that jurisprudential heavy hitters, esp. Story, for instance, have kept this premise vital if not exercised.

In any event,I don't think it the elephant in the Kitchen given the extensive references in Gura's brief. While maintaining the contemporary relevance of the paradigm Gura quotes the same philosophical temperance cited in the comments above:


Respondent does not suggest that members of
private paramilitary organizations have a right to
commit violent acts under the auspices of acting as a
citizen militia. See, e.g., Va. Code § 18.2-433.2; Cal.
Penal Code § 11460. The Framers, who organized the
militia under the new constitution, doubtless agreed
that citizens should not compete with legitimate
government authority. “Prudence, indeed, will dictate
that Governments long established should not be
changed for light and transient Causes. . . . Mankind
are more disposed to suffer, while Evils are suffer-
able, than to right themselves by abolishing the forms
to which they are accustomed.” THE DECLARATION OF
INDEPENDENCE, para. 2 (U.S. 1776).


Of course such careful rationale may not inform petty insurrections ranging from the guy with the bulldozer in Colorado to the carnage that McVeigh and a few companions committed, but it certainly should inform the public and the polity in choosing sides (and to make the point that neither of these rebellions involved the use of firearms - although Kirkwood demonstrates the armed petty insurrection). After all, the worry isn't really whether disgruntled folks are going to go postal now and again but whether their cause is taken up by a significant contingent of their fellow citizens - making the civil war, for instance much harder to parse.

I can't see this vital history, as integrated with the founding as it is and with the demonstrablbe health of the polity in this regard for two centuries proving anywhere near the 'scary' elephant that the machine gun ban might pose if we're putting our finger to the consequentialist winds.

Brian
2.11.2008 10:15am
Dilan Esper (mail) (www):
Brian:

Very nice analysis. I would say, however, that the historical arguments are much more susceptible to the ideological filtering that many in this thread argued is going to happen anyway, i.e., assuming a divided Court, Thomas will select the history that supports his position, and Breyer, will select the history that supports his position. And neither side will tell the full story.

But the standard of review question and whether a decision for Respondent will cause havoc is exactly the sort of thing that tends to be less susceptible to ideology. It really is true that if, for instance, Justice Scalia may believe that a particular interpretation of the Constitution is correct but that enshrining that interpretation into law will cause legal chaos, he can be persuaded not to do it despite his ideology. And the same is true of the liberals on the Court as well. That's why experienced advocates know that the most important thing they can do when they are arguing to change or introduce new doctrine is to reassure the Court that it isn't going to lead to tons of reversed convictions and tons of laws getting invalidated and hundreds of court challenges.

The fact that Gura doesn't do that-- and he really doesn't, as telling the Court not to rule on the standard of review is just saying that they should delay the havoc until later, and dropping strict scrutiny in as an aside is a very dumb thing to do, as I set out above-- tells us that he IS, in fact, concerned about taking a position that would be helpful to his client but harmful to the gun rights movement.
2.11.2008 3:02pm
Paul Milligan (mail) (www):
"Dilan Esper
Brett:

Naah. Just making sure that by the end of this thread, people aren't talking about the lawyers for the Respondent in this case in the same breath as Abraham Lincoln, Horace Rumpole, Clarence Darrow, and F. Lee Bailey."

Dilan, you just did. And you are the only person to do so that I have seen. I hope your foot gets better soon. You had the RIGHT to do what you did to it, BTW :-)
2.11.2008 4:45pm
occidental tourist (mail):
Dilan,

I trust you perceive that, while I may have seen the most vociferous of your consequentialist statements as overstating the under address of that concern in respondents brief, I hear your argument and think your concerns are not misplaced.

I am somewhat convinced by your line of reasoning that spending a page on the demographics and criminological arguments demonstrating why 'gun felons' wouldn't all be filing habeus petitions and pulling together the various threads of arguments that suggest this wouldn't be a societal sea change.

While I know that they will eventually get to the standard of review, and to incorporation of the 2nd amendment against the states, by leaving those questions for a later case Heller respresents judicial incrementalism to right the course of justice with regards to the 2nd amendment.

I think an important point is not that they don't know that they will have to cross those rubicons once making explicit a 2nd amendment right in this case, but that the pace of the administration of justice is suited to carefully addressing these questions in cases presenting those contexts.

But I do think the arguments on habeus are probably as important as arguments about whether certain state bans might get struck down if the court eventually clarifies the incorporation of the 2nd amendment.

The interesting point raised by the state question is that Thomas is the one who has made the case that incorporation of protections explicitly addressed to the actions of the federal government are not suitable to the incorporation doctrine, e.g. the establishment clause.

Of course that is much clearer because it explicitly addresses specific federal conduct, as in, Congress shall make no law, rather than stating a right of the people. But militia contextualists could make a reasonable argument that that the history and text of the 2nd amendment related to concerns that the federal government would take these actions, i.e. disarming the militia through neglect or operatively using the organized militia or standing army against the rest of the body of citizens composing the entirety of the militia.

In other words, a private right was protected but as against the federal government with specific concern regarding the soverign that could raise a standing army.

I don't think the liberal strain of constitutional interpretation could go there with a straight face or without great hypocrisy, but conservatives could. That is not to say that two way federalism is not a structure that favors liberty. It certainly is. State's Rights qua rights, to the extent that they afford unbridled state power, are not a tool for securing liberty. Ask anybody who has dealt with a local land use authority lately and tried fruitlessly to vindicate their 5th amendment rights as against the state.

Just because local government is theoretically closer to the people does not insulate it from the tendency to arbitrary action with majoritarian flare that does not uphold a strong tradition of individual liberty. Rather it is the theoretical inspiration that federal and state governments have in contending for power in which each will naturally contest the extent asserted by the other that structurally protects liberty.

All that said, there is some evidence that the founder's understood this, but protections from state government were largely left to state constitutions at the time and while incorporation is a convenient way around that, it seems the real challenge for textually and originally oriented thinkers is this design was not explicitly enshrined in our constitutional history.

Thanks for sticking around to discuss this while the rest of the debate rages in the amicus brief threads. See you there.

Brian
2.11.2008 4:59pm
Dilan Esper (mail) (www):
Dilan, you just did. And you are the only person to do so that I have seen. I hope your foot gets better soon. You had the RIGHT to do what you did to it, BTW :-)

Paul, go back and read the posts up top. It was a mutual admiration society of gun rights advocates who had no idea the difference between something that might persuade themselves and something that might persuade a court.

I was a useful corrective.
2.11.2008 5:34pm
Dilan Esper (mail) (www):
While I know that they will eventually get to the standard of review, and to incorporation of the 2nd amendment against the states, by leaving those questions for a later case Heller respresents judicial incrementalism to right the course of justice with regards to the 2nd amendment.

For the record, I am persuaded by both text and history that the Second Amendment protects an individual right. I also think that the text is actually quite hard to reconcile with strict scrutiny, but then, I don't buy the idea that the prefatory clause means nothing at all; I agree that it doesn't as a matter of grammar necessarily restrict the second clause, but as a matter of interpretation, it certainly bears relevance. A First Amendment that said "a well regulated debate about political subjects being necessary for the operation of a free state, Congress shall make no law abridging the freedom of speech" would simply not get as broad an interpretation as the one we actually have does, no matter what the grammarians and linguists say about that sentence.

But even if I thought that the Second Amendment text was a direct analogue to the text of provisions that have been held to require strict scrutiny, I still wouldn't argue for it in this situation (or at least not without going to great lengths to reassure the Court that not only uncontroversial but CONTROVERSIAL gun laws will survive).

The thing is, I realize it seems like an elegant solution to punt on standard of review, and the Court may eventually do it (though I doubt it), but it isn't the way judges decide cases. Even when judges decide to punt on the particular issue, they still need to reassure themselves that WHATEVER IT IS THEY ARE DOING ISN'T GOING TO LEAD TO CHAOS. So even a nondecision on standard of review is not going to be issued without consideration of what's going to happen to the standard of review if an individual right is recognized. And that's why dropping in the idea that it would be strict scrutiny is such a mistake.

And it isn't analogous to the incorporation issue either. The Court can't really bite off incorporation because incorporation has little to do with this case (because it arises out of DC). In contrast, to ultimately decide whether the DC law, or any gun law, is unconstitutional, standard of review is essential.
2.11.2008 5:35pm
Paul Milligan (mail) (www):
(Dilan Esper)
"Naah. Just making sure that by the end of this thread, people aren't talking about the lawyers for the Respondent in this case in the same breath as Abraham Lincoln, Horace Rumpole, Clarence Darrow, and F. Lee Bailey."

(Paul M )
"Dilan, you just did. And you are the only person to do so that I have seen. I hope your foot gets better soon. You had the RIGHT to do what you did to it, BTW :-)"

(Dilon)
"Paul, go back and read the posts up top. It was a mutual admiration society of gun rights advocates who had no idea the difference between something that might persuade themselves and something that might persuade a court."

I hope you argue a postion in court better than you do here in this thread, and in the reply above, where you merely pretend the factual point being made doesn't exist if you can't refute it.

(Dilon)
"I was a useful corrective."

I'm glad you think so highly of yourself. Your membership in the Dilan Esper Admiration Society is well preserved. Having read your posts, I had come to the conclusion that you're a pompous little twit who hasn't even read the briefs in the case. It's nice to know at least one person disagrees with that conclusion.
2.11.2008 6:23pm
federal farmer (www):
So explain it to me like I'm a three year old, because I actually work for a living.

Why is it good to trump up an unconstitutional charge to convict someone because you don't have the evidence to convict them for what they actually did?

In other words, you are saying we have to keep our unconstitutional laws because people were put in jail based on them and if we reverse we have to let them out.

Sounds like justice to me.
2.11.2008 7:09pm
juris_imprudent (mail):
Sounds like justice to me.

Dilan's point seems to be that the Justices might not want to inconvenience themselves with a bunch of follow-on litigation for an issue that isn't that important to them. Which given human nature, unfortunately isn't nearly as outrageous sounding as it should be. I can actually imagine Scalia going through such mental gymnastics on say, Raich.
2.11.2008 8:58pm
occidental tourist (mail):
federal farmer, from state farmer

I think this post did a fairly good job of detailing (without footnotes but the basic premises seem sound) why there would be relatively few felons furloughed if a 2nd amendment right were found.

I totally agree with your syllogism, but mostly law abiding people forego their right rather than risk being jailed for upholding it -- see, e.g., Heller.

my guess is there might be some argument for resentencing or a few people who got extra time might ask to get sprung. I will confess to not having a command of the penological statistics here but the representations seems plausible.

Paul -- Dilan may seem singleminded but I would say he has been polite if tendencious. He didn't claim any credit for anything until 100 odd posts in and we're still here. I ain't a psychologist but it doesn't really read like self-important to me.

Dilan -- Another point on the jursidprudential dominos theory, the DC brief did not play those up. I haven't read the SG's but sounds like it was narrowly focused on defending other federal laws. Thanks again to the Bush administration. Ah well, Dellinger defended the National Endowment for the Arts standards which no doubt bugged the crap out of the Clintonistas. (He gave an exceedingly quality account of himself , audio here, on that subject at the Federalist Society Convention in Nov. 06 on one of the best panels I've ever seen -- but I digress

Anyway, appellants are more focused on society coming apart at the seams as a consequence of losing this case than detailing legal chaos. Since most appellants say something to the effect that the world will end if they loose, I tend to think it falls on deaf ears except those attuned to believe it in the substantive context. A good argument about legal chaos by the appellant might have elicited more focused response.

I agree that the court can have these concerns sua sponte and that consequentialism is jurisprudence at its essence.

Brian
2.11.2008 10:02pm
Paul Milligan (mail) (www):
Brian - my thrust was that every single point Dilon has tried to raise as 'a flaw in filings or approach' has been covered in detail in at least one ( or more ) Amici. No, not every issue is covered in every brief - that would be silly. Among other things, he has missed 'the larger picture' of the cohesive structure formed by ALL the briefs taken as a planned whole ( as they obviously are ), and he attempts to single out 'This point is missing from that brief', oblivious to the fact it is well and clearly coverd in 3 OTHER briefs he apparently has not read.

There has not been a post he has made about his 'percieved deficiencies' that I haven't thought to myself 'I KNOW I have seen that in one or more of the Amici, even if I couldn't tell you from memory which one'. Every point where he has suggested 'Boy oh boy they are going to hammer you on that one in OA' has in fact been treated fully and clearly in the briefs.

To then self-proclaim himself as a 'needed counterpoint' strikes me as ludicrous at best. IMO, he is merely someone who has not taken the time to read the briefs. He has not yet found an actual flaw in THE ENTIRETY of them, taken as a whole ( as they must be ). So far he is 'three blind men describing an elephant', as the old tale goes.
2.12.2008 12:09am