Goldwater vs. the Solicitor General, in DC v. Heller:

The brief of the Goldwater Institute in District of Columbia v. Heller is another brief that merits study by persons interested in seeing a model of a first-rate Supreme Court brief. Lawyers on the brief are led by Bradford Berenson, of Sidley & Austin, and by Clint Bolick, of Goldwater.

The brief's focus is responding to a section in the Solicitor General's brief, which had argued for intermediate scrutiny as a the standard of review in Second Amendment cases. The Goldwater brief is not a brief of firearms law experts; it is the brief of Supreme Court precedent experts, and it cites a vast number of cases to make its argument that strict scrutiny is the proper standard.

The Goldwater brief has an inherent advantage, since it devotes all 9000 words to a topic which the Solicitor General covered in just a few pages. But even with the limited space available, the Solicitor General's brief was surprisingly shallow. The SG brief more or less declares its intermediate scrutiny test by fiat, and for support pointed to some election law cases.

Yet a short, well-written brief from the Libertarian National Committee points out, the cases cited by the Solicitor General themselves have a strict scrutiny standard. (Strict scrutiny for an "undue burden" on voters, intermediate scrutiny for everything else.) The Solicitor General brief just pointed to the intermediate scrutiny part of the election cases.

My guess is that there was something odd in the drafting of the Solicitor General brief. The brief was filed electronically late in the day when it was due. (UPDATE: A VC reader points out that the meta-data for the SG's PDF says that the file was created at 9:14 PM on January 11, the due date.) The brief has no Table of Contents or Table of Authorities--both of which are required by Supreme Court rules. My guess would be that there was no time to prepare these mandatory parts of the brief because the brief took a sudden change in direction, perhaps on the day it was due, and all the available time was consumed by trying to cobble together an intermediate scrutiny section of the brief. Just a guess, but the absence of a TOC and TOA surely suggests that there was some unanticipated time crunch at the end. (UPDATE: Another commenter says that the SG frequently files late, and adds the TOC and TOA later.]

Paul Milligan (mail) (www):
Of possible interest - considering your comment "My guess is that there was something odd in the drafting of the Solicitor General brief. The brief was filed electronically late in the day when it was due."

The metadata of the file says that it was in fact created as a PDF at 9:14 PM on 1/11/2008, 'the last minute', I guess

"21:14:50-05:00" = military time, - 5:00 Zulu IOW East Coast time

xap:ModifyDate 2008-01-11T21:14:50-05:00
xap:MetadataDate 2008-01-11T21:14:50-05:00 /xap:MetadataDate

Creator(PScript5.dll Version 5.2)/
Producer(Acrobat Distiller 7.0.5 \(Windows\))/

from their source file ( where they did their composing )

Title(C:\\Documents and Settings\\bhicks\\Local Settings\\Temporary Internet Files\\OLKA7\\Heller 07-290 amicus.wpd)>>

What inferences you may draw, I leave to you :-)
2.12.2008 2:59pm
M. Lederman (mail):
Nothing odd about the filing at all. The SG often files late on the due date and provides TOC and TOA afterward. Of course, it's fair to assume the brief was being edited until some time on the 11th -- perhaps even that Paul Clement was resolving difficult sticking points on that date; but there's nothing unusual about that, either. I'd be willing to bet a bundle that the basic contours of the brief, such as the decision to urge intermediate scrutiny, were reached weeks, if not months, earlier, although of course one can never be sure.
2.12.2008 3:33pm
Tony Tutins (mail):
Not every First Amendment law merits strict scrutiny: Uncited by either side was Scalia's majority opinion in Employment Division, Department of Human Resources of Oregon v. Smith where he argued that laws impinging on the free exercise of religion should not be subjected to the compelling interest test, if they were neutral laws of general applicability. Unless they also impeded exercise of another right, such as freedom of speech.
2.12.2008 4:15pm
Just curious...
Has the other side filed any briefs in this case?
2.12.2008 4:57pm
Tony Tutins (mail):
Has the other side filed any briefs in this case?
Yes, as petitioners they went first.
2.12.2008 6:04pm
KeithK (mail):
But it's not surprising or unreasonable that Kopel would blog about filings on the side he agrees with.
2.12.2008 7:06pm

My guess is that there was something odd in the drafting of the Solicitor General brief. The brief was filed electronically late in the day when it was due.

Dave? Maybe I'm mixing you up with some other David Kopel from the Univ. of Michigan Law School class of '85, but didn't you work for a while in the appellate section of the Manhattan D.A.'s office many years ago before you went home to Colorado? You should know better. Filing briefs on deadline isn't "odd," it's more the norm.

I don't think one can draw any conclusions from the timing of the S.G.'s filing. Especially when you're talking about DOJ appellate litigators, where the review layers tend to be deeper than in private practice. Best to stick to the merits rather than looking for the second gunman on the Grassy Knoll. Let's leave that question for Oliver Stone to have fun with when he makes a movie about the Heller case...
2.12.2008 7:18pm
Tony, that's an interesting case to mention, but it's possible that the failure to cite the case was deliberate. I haven't read the case recently (or ever in light of the second amendment), but it strikes me that it isn't on point. The law in that case is neutral because it wasn't directed at or enacted with animus toward the first amendment.

But the DC case, obviously, was enacted squarely to affect the right to keep and bear arms (if there is one), which would ordinarily require heightened scrutiny.
2.12.2008 7:33pm
The SG often files late on the due date and provides TOC and TOA afterward.

Do "ordinary" lawyers get this privilege too? Or is it reserved for those "special people" -- bureaucrats?

Given the general sloppiness of the "intermediate scrutiny" portion of the SG's Brief, if I worked there, I'd want the excuse that the bosses changed their mind late in the day and we cobbled together what we could in the time we had left. Isn't the SG subject to the printed brief rule? Or is there another "special people" exception?

Seems to me that Jim Bob in Blooming Prairie, Kansas has to jump all the hurdles, but the "pros" at the SG's Office get in through the back door. I hate that sort of special privilege of the government "aristocracy."
2.12.2008 10:46pm
On the merits of the Goldwater Institute brief: the guys from Sidley &Austin may have written what may be the most important amicus on respondent's side. I think even petitioners realize they're likely to lose the individual v. collective rights argument. The standard of review is going to be dispositive as to the practical scope of permissible Second Amendment regulation, and the Goldwater amicus directly takes on the Solicitor General's standard of review and remand suggestions in a comprehensive way.

But that is not to say the Goldwater brief is without its weaknesses. I found the assurances in §I.C to the effect that strict scrutiny will not jeopardize other Federal firearms regulation be too glib by half. The brief posits that

a machine gun would be very unlikely even to fall within the ambit of the Second Amendment's protection as an 'Arm[],' since it fails both prongs of the Miller test the D.C. Circuit applied. Machine guns, unlike handguns, are not a "lineal descendent of [a] founding-era weapon" that was needed for "the preservation or efficiency of a well regulated militia,' nor are they in common use today." (citations omitted).
Goldwater Amicus at 15.

Really? Frankly, I have a hard time figuring out how one can argue with a straight face that one handheld repeating firearm is a "lineal descendent" but another is not -- especially if we're talking about the relatively trivial mechanical difference between a semi-automatic versus automatic selfloader. They can have the same receiver and the same exact chambering and ejection mechanisms; the only difference is number of rounds cycled per trigger pull. For many rifle designs, the difference between a semi-automatic version and a full auto version of the same weapon is relatively insignificant on a mechanical basis -- replace the sear with an autosear, slightly different machining of the trigger group, different fire selector/safety, possibly a bolt swap, and you've got a machine gun in the same receiver. The (illegal) parts kit to convert a legal AR-15 into an automatic takes a minimally skilled user less than a half hour to install. I once saw a BATF firearms tech convert a defendant's Bushmaster (a .223 AR clone) into a machinegun in open court in about 15 minutes, using only a baggie of parts seized from defendant's dresser drawer (the judge later regretted permitting that prejudicial little demonstration, but that's another story). In WWII some GIs supposedly experimented with converting their M1 Carbines into full-auto carbines, using only a screwdriver and a file -- the only problem was often the modified gun wouldn't stop firing until the magazine was empty, which somewhat limited its usefulness (to put it mildly).

Conclusion: if a semi-automatic pistol (or Mr. Heller's revolver) is a lineal descendent of George Washington's flintlock horse pistol, it's not logically defensible to discriminate between the automatic and semi-automatic versions of the same rifle design as lineal descendents of a flintlock musket or rifle.

You also cannot hide behind the "common use" gloss -- the Army has had automatic carry rifles in its inventory since the adoption of the BAR just after the end of WWI. And the most popular rifle design in the world (on a unit basis) is still the AK-47/74. And even in the U.S. after 70+ years of restriction and 20 years of §922(o), there are 250,000 legally-registered NFA machineguns, about half of which are in private hands.

At bottom, if one both wishes to adopt a "strict scrutiny" standard of review and still maintain restrictions on machineguns, maybe the Miller test for defining protected "arms" for Second Amendment purposes simply doesn't work -- at least not in the context of an explicitly non-militia or personal self-defense incarnation of the right. Given the obvious problems with that case, as discussed in other threads on this blog, I have to wonder if the Court may use Heller as the vehicle to either narrow or overrule Miller outright.
2.13.2008 12:06am
Tony Tutins (mail):
Heller isn't a machine gun case; talking about machine guns, bazookas, shoulder fired rocket launchers, tanks, Scud missiles, Stealth bombers, etc. makes D.C.'s slippery slope case for them. The dude would like to own a pistol, not a B.A.R.
2.13.2008 12:33am
arbitraryaardvark (mail) (www):
For those unfamiliar with the Goldwater Institute, it's an outgrowth of the institute for justice's Arizona chapter. The AZ branch was the first state chapter - there are now at least 4 - and was formed after Bolick moved from DC to AZ. IJ in turn has a pretty cozy relationship with the Cato Institute, where the Heller case was put together (as an unofficial side project.)
Heller could win, which seemed unlikely a couple of years ago. But if Heller loses, this could easily be the next Kelo,
where the political fallout of the case was greater than its legal significance. Like Kelo, it could spawn a wave of state legislation, some of it real, some of it toothless.
2.13.2008 12:50am

Heller isn't a machine gun case; talking about machine guns, [and other fun toys] makes D.C.'s slippery slope case for them. The dude would like to own a pistol, not a B.A.R.

Very true. If only it was that easy. But as pointed out in several other threads on this blog, the Justices do look beyond the narrow confines of what's in front of them to determine whether any generally-applicable rule they might enunciate will cause absurdities or legal chaos down the road. This cautiousness has become much more pronounced over the last couple of decades.

And given the number of briefs on both sides (including both petitioners' and respondent's merits briefs) that make a big deal about machineguns in particular, it's inconceivable that the Justices won't think really hard about ramifications of their ruling beyond just Heller's revolver. That horse already left the barn.

Closing thought just to gratuitously raise somebody's blood pressure: there's a cliche that "hard facts make bad law." In Miller, NO facts made REALLY bad law...
2.13.2008 10:39am
markm (mail):
Currently machine guns made before 1985 aren't banned; under the NFA (National Firearms Act) they are regulated by requiring registration and a background check, and taxed by a $200 "fee" per registration application. I wouldn't expect upholding the 2nd Amendment as protecting an individual right and subjecting regulations on arms to strict scrutiny to eliminate all of this scheme, but it should overturn the ban on post-1985 weapons, and might eliminate or reduce the registration fee. Since almost no one who could pass the NFA background check has ever committed a violent crime with a registered weapon, these changes would have no effect on public safety. They would simply lower the costs of owning machine guns, grenades, etc.
2.13.2008 12:34pm
Soronel Haetir (mail):
I came up with an alternative test last night that would allow machine guns, grenades, shoulder fired rockets and other such arms to fall under 2A protections while keeping WMD outside.

Test on who is responsible for basic maintaince, if it is the operator then the armament is protected, if not then it is not a protected arm. This would likely mean that tanks and artillery are also in the protected class while planes are not.

Just a wild idea.
2.13.2008 1:22pm
Tony Tutins (mail):
Under the NFA, machine guns were regulated under Congress's taxing power. This scheme of regulation was found to be Constitutional under Miller (even though Miller's decision was one-sided), and worked well for half a century at least. The least disruptive decision would be to leave certain arms: machine guns, sawed-off shotguns, destructive devices, etc. under this tax-based form of regulation, while allowing free purchase and ownership of one-bullet-per-trigger-pull firearms.
2.13.2008 1:50pm
But really - are machineguns that much more deadly than semi-automatic firearms? I would say they are more deadly by a degree, but not in kind. And that is a good thing.

As argued here before, today's US military mostly uses "select-fire" machineguns which fire 2-3 rounds per trigger pull rather 20-30 rounds. Are 2-3 rounds per trigger pull vastly more deadly than 1 round per trigger pull? What does more deadly mean - greater odds of killing a man or greater odds of killing more men?

A dead man (or leathally wounded man) is a dead man - select-fire just increases the odds of killing that one man rather than killing more than one man. Nobody can "spray" with slect-fire weapons - they can just better assure the lethality of the act of aiming at one man and pulling the trigger. And once one uses lethal force - is is better or worse to increase the efficiency of that lethal force against the acquired target? If a select-fire machinegun better stops the threat of an attacker's intent to inflict lethal injury or great bodily harm, it's simply a better tool to achieve a permitted end.

Giving honest men less effetive weapons to prevent dishonest men from having such weapons has never worked and never will. The case CANNOT be made to ban select-fire machineguns as they ARE proper arms for the common man.
2.13.2008 5:51pm
Vinnie (mail):
This scheme of regulation was found to be Constitutional under Miller (even though Miller's decision was one-sided), and worked well for half a century at least

You either don't want one or have vastly more money than I do. It doesn't work for me, I can't afford one.
2.13.2008 8:20pm
Tony Tutins (mail):
You can't afford $200 for the registration certificate? Then you most likely can't afford to shoot it.
2.14.2008 12:02am
David W. Hess (mail):
I suspect he can not afford the inflated price (20 times now?) of the weapon itself rather then the tax.
2.14.2008 1:19pm