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.]
All Related Posts (on one page) | Some Related Posts:
- Military Brief in DC v. Heller:
- District Attorneys, the ABA, and precedent in DC v. Heller
- Errors Brief in DC v. Heller:
- Goldwater vs. the Solicitor General, in DC v. Heller:
- State-level Battle of the Attorneys General in DC v. Heller...
- Claremont Institute Empirical Brief in DC v. Heller:
- NRA brief in DC v. Heller:
- Respondent's Brief in DC v. Heller: