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Errors Brief in DC v. Heller:

A brief of the Citizens Committee for the Right to Keep and Bear Arms, and for several scholars, takes an unusual approach. As far as I know, it's the first brief of its kind in a Supreme Court brief (although my knowledge of amicus briefs is far from comprehensive). Written by Washington state lawyer Jeff Teichert, the "Errors Brief" focuses entirely on refuting what it sees as plain errors in the briefs of DC and DC's amici. The 9000 word limit drastically reduced the number of items which could be addressed, and the brief chooses to address some items at relatively great length, rather than greatly shrinking certain discussions so as to address more items briefly.

Viceroy:
I was initially wondering about whether the clerks/justices actually read every brief in a case such as this with a ton of briefs. Also, what is the impact of each brief coming from a very narrow perspective (on either side). Are they discounted as a result?

This particular brief hurled around the f word too much. I think given the credible lawyers on the other side doing so undermined its own credibility.
2.12.2008 5:29pm
Hanes of the Loom (www):
Great uses of the word "brief."

I'm sure the word has been swirling in your mind (as it has been in all of ours) over these past few weeks of posts that are anything but.
2.12.2008 5:32pm
NaG (mail):
I do not think that this brief is very effective. This is a big-picture case, not a nitpicking exercise. The way it jumps around and forces the reader to reference several other briefs makes it somewhat boring and unreadable. However sympathetic I am to its position, I don't think this brief will carry much weight with the law clerks or the Justices themselves as a result.
2.12.2008 5:51pm
great unknown (mail):
Viceroy: The credibility of the brief comes from its citations. If the correlation between the f word and the proof thereof is sufficiently strong, then after a while, the f word becomes a powerful rhetorical device.
2.12.2008 5:56pm
Viceroy:
great unknown - that's true up to a point, in a big picture case with big picture lawyers on the other side, the bar for using that word is a bit higher. After taking another look at the brief I'd agree with NaG it's fairly ineffective.
2.12.2008 6:14pm
zippypinhead:
This is an odd brief for an appellate case. Felt almost like I was reading a memorandum in opposition to a summary judgment motion and accompanying statement of no material issues of fact. See Fed.R.Civ.P.56. OK, so there are controverted material facts? Is that what you're trying to say? That's usually not a good argument to make when you're asking an appellate court to affirm a final decision on the merits in your favor.

This brief tends to suggest there are in fact a lot of disputed factual and "legislative history" issues that ought to be clarified, and thus perhaps the whole case ought to be remanded for a guided do-over.

Possible positive from this brief (just because I'm inherently an optimist): it might make any Justice wanting to rule for petitioner slightly less likely to just cite petitioner's factual arguments as gospel truths.
2.12.2008 6:25pm
Annonymous Coward (mail):
Just possibly some of the various amicus briefs are targeted at current and potential supporters of the organization named on the brief more than being aimed at the Court.

It does seem to me the various briefs taken as a whole damage the collective right argument. I would say destroy the collective right argument beyond any intellectually honest support.
2.12.2008 6:51pm
Nessuno:
I think the commenters here are being a little too hard on the brief. It obviously is not meant to be taken alone as an argument toward the result, but it is oriented effectively toward achieving that result.

Look, the authors probably evaluated the field and decided all the major points had been addressed but that not enough time had been spent in refuting key arguments of their opposition. It's a very strategic decision, and I think it's a sound one.

The simple fact is that the petitioner briefs rely on a pretty narrow set of historical facts and modern assumptions. By directly attacking those facts and assumptions, this goes pretty far in undermining the foundation of the petitioner's argument.

Will it carry the day? Who knows, but it will at a minimum underscore the point that much of what D.C. relies on is controverted.
2.12.2008 6:56pm
therut:
They were trying hard to be nice and not flat out call a liar a liar.
2.12.2008 7:04pm
alias:
Same thought as Nessuno. If someone at the Court, sees an argument that seems plausible in a brief supporting the petitioner, that person might think it worthwhile to see if the "Errors" brief offers a rebuttal. The section headings are easy enough to navigate.

As I was reading through DK's earlier summaries of the briefs, I began to wonder if there are any Second Amendment people who haven't filed a brief. I doubt if we'll ever know if the Errors brief was effective, but the strategy seems sensible in a case like this with the volume of other briefs.
2.12.2008 7:41pm
Peter Wimsey:
It is usually a cardinal sin in appellate advocacy to spend too much time focusing on the adversary's argument, the theory being that you want the court to focus on *your* arguments, not their arguments. (Which is not to say you don't point out where they are wrong; it's just you want to spend more time pointing out why you are right).

But in a case like this, with dozens (I don't know how many, really) of amicus briefs, this may be a useful approach. I'm not sure, though - because it's an amicus brief, there is no opportunity for the petitioner to respond to their arguments, which may make the court less likely to want to rely on the brief standing alone.

Mostly though - and I say this as person who has written hundreds of appellate briefs - it doesn't read like a brief. It reads like some other kind of document.

I guess I have no idea what the court will do with it.
2.12.2008 8:24pm
DiverDan (mail):
This is a bit off-point (I liked this Brief, BTW, it seemed to effectively address some of the more egregiously deceptive cites &arguments made by Petitioner - District of Columbia &its supporters), but while perusing all of the Amici Briefs filed in this case on the SCOTUS website, I saw that the American Bar Association filed an Amicus Brief in support of the District of Columbia, and I was wondering why this site never had a post on the ABA Amicus Brief - or did I miss it?

The ABA Brief never addressed the text of the Second Amendment, but justifies D.C.'s total ban of handguns as supported by stare decisis and "nearly two centuries of precedent" upholding the right of government to "regulate" arms. Of course, the ABA never attempted to explain why a total ban on handgun ownership was simply a "reasonable regulation", and the Brief repeatedly and consistently quoted only the favorable language in cases, while completely ignoring the language in the same cases that demonstrates the error of its argument.

It's not as if I needed another excuse to refuse membership in the ABA - I joined in law school, but quit in disgust in 1988 and have refused to rejoin ever since. Just wondering, any ABA members out there? Were you aware that your dues are being used to argue for the gutting of the Second Amendment? Are you happy about that?
2.12.2008 8:31pm
John (mail):
I thought this brief was a terrific idea. As others noted, the main substantive points are covered in the gazillion other briefs. This one says, "just go and try to write an opinion supporting the DC position without being able to use the following points they argue."
2.12.2008 8:41pm
Paul Milligan (mail) (www):
The scorecard to date :

# of briefs filed = respondent 47, petitioner 19

Senators signing Amici briefs = respondent 55, petitioner 0

Representatives signing Amici briefs = respondent 250, petitioner 18

# of Vice Presidents of the Untied States = respondent 1, petitioner 0

I suspected several weeks ago, when I first heard of the upcoming 'Errors brief', that it would be exactly what it turned out to be - another piece of the 47-piece puzzle put together by Levy, Gura et al.

This particular brief was no more intended to be 'the whole shebang' than ony of the others. IMO, each one was assigned a role in a strategy, that much I think is obvious. The timing and sequence of submisson was also planned, I believe. This one was assigned the role of 'point out the more blatant BS coming from the other side, call it right out on the carpet in front of everyone and call it what it is', and that's what it does.
2.12.2008 9:01pm
Bob Leibowitz (mail) (www):
In answer to an earlier question, there are 45 briefs in favor of Heller and 20 briefs supporting the District. A significant number of the briefs mention VC contributors.

I've reviewed nine of the briefs in depth at Leibowitz's Canticle and agree with the comments here, that the "Error Brief" is unusual. To a significant degree it also reiterates points made in a number of the other briefs.

There are two arguments in its favor, though, that are interesting. In a political campaign the candidate attempts to avoid personally calling the other side bad names or to point out major blemishes, but allows surrogates to do so. The approach might have value here. Rather than Heller pointing out the number of times D.C. and its allies stretched the facts or cooked the numbers, and there are dozens of examples, perhaps its better to have these folks do the dirty work.

The second point is that for the slower Justices and the less open minded clerks, there may be value in having all the horse manure in one pile for easy reference.
2.12.2008 9:12pm
Alan Gunn (mail):
alias said,

Same thought as Nessuno. If someone at the Court, sees an argument that seems plausible in a brief supporting the petitioner, that person might think it worthwhile to see if the "Errors" brief offers a rebuttal. The section headings are easy enough to navigate.

Yes. This could be very useful. A brief on the merits can't really do all this demolishing of nonsense, lest its own points be obscured, so this brief has pointed out many serious errors in the other side's arguments. At the very least, this should keep the Court from using those arguments itself.

I do wish they'd gotten the possessive of "linguists" right, though. Elementary blunders like this may make people wonder just how careful the authors really were.
2.12.2008 9:20pm
Millenial Klingon (mail):
This is an Oral Arguments Talking Points Brief. I imagine Petitioners will have many nasty questions hurled at them because of their intellectual fraud.
2.12.2008 9:25pm
Andrew Hyman (mail) (www):
Here's a quote from Clinton v. Englebrecht, 80 U.S. 13 (1871), which involved an act by a territorial legislature:

"In the first place, we observe that the law has received the implied sanction of Congress. It was adopted in 1859. It has been upon the statute book for more than twelve years. It must have been transmitted to Congress soon after it was enacted, for it was the duty of the secretary of the territory to transmit to that body copies of all laws on or before the 1st of the next December in each year. The simple disapproval by Congress at any time would have annulled it. It is no unreasonable inference, therefore, that it was approved by that body."


In the case of the DC handgun ban, the ban was against longstanding federal policy. There's no way that the implied consent of Congress can be reasonably inferred. And the lack of implied consent is emphasized by the amicus brief filed by majorities of the House and
Senate.
2.12.2008 9:46pm
Tomm:
By the "f word", do you mean 'free' and its variants? I searched for 'fuck', but found no instances.
2.13.2008 6:54am
Sam Draper (mail):
I think that is a good point Mr. Leibowitz makes about this brief being able to be more aggressive than respondent's brief could be. It is an attack by proxy, with all of the effect and none of the potential backlash. Judicial Swiftboating. :D

On a similar vein I'm guessing the NRA financed a number of these briefs, and was able to coordinate some things that respondent's team would not have been able to do themselves under the rules.

I thought the Errors brief was effective because it, for the most part, introduced new material that the other briefs did not cover. How many times does the court really need to hear the textual argument?
Some of the other briefs are aimed squarely at petitioner's amici, or at the DOJ's standard of review; I thought those would be very helpful to the court.
2.13.2008 10:19am
Happyshooter:
This is smart. Freedom lovers in America got shafted by government lies in Miller (the government, knowing it was unopposed, lied and said short barrel shotguns had no military use when in fact the trench broom had been very popular with the troops in the late war).

Now, the government (DC and SG) are trying to lie again. This gets the lies on the record.
2.13.2008 10:22am
Clayton E. Cramer (mail) (www):
The "f-word" here is false, and to be blunt, false is the only way to describe many of the claims made by the amici for DC. These aren't even arguable points: the Tennessee statute upheld in Aymette, for example, didn't ban guns of any sort. It applied only to knives. You can see the statute here.

Listing the 1837 Georgia statute that banned carrying of handguns--but failing to mention that the Georgia Supreme Court struck it down for violating the Second Amendment when is widely known--is not just wrong, it crosses the line into fraudulent.
2.13.2008 11:38am
Clayton E. Cramer (mail) (www):
I should mention with special relevance to the DC case, the 1837 Georgia statute also prohibited sale, transfer, or possession of all handguns except "horseman's pistols."
2.13.2008 11:44am
Tony Tutins (mail):
Although the Chicago brief did misstate the Tennessee law, the Tennessee law did prohibit the sale of a class of arms (Bowie knives), as well as prohibiting carrying members of that class concealed, as well as assaulting and battering people with such arms. A reasonable influence could be made that the sale of these arms was prohibited because they were (1) concealable, and (2) deadly, much as handguns are. Now you would want to show that handguns were just as concealable as Bowie knives, back at that time.

The lawyer citing the Georgia statute violated his duty of candor to the tribunal if he knowingly omitted the reversal by the Georgia Supreme Court. He probably could excuse his failure to cite the 1846 Nunn decision as unintentional, though, considering the amount of research it probably took to find it.

The problem with citing the GaSC. decision based on the Second Amendment is that they are not the last word on Federal Constitutional interpretation, although they certainly had the power to strike down that part of the Ga. statute.
2.13.2008 1:37pm
Clayton E. Cramer (mail) (www):

Although the Chicago brief did misstate the Tennessee law, the Tennessee law did prohibit the sale of a class of arms (Bowie knives), as well as prohibiting carrying members of that class concealed, as well as assaulting and battering people with such arms. A reasonable influence could be made that the sale of these arms was prohibited because they were (1) concealable, and (2) deadly, much as handguns are. Now you would want to show that handguns were just as concealable as Bowie knives, back at that time.
The Aymette decision upheld the ban because these knives weren't weapons that would be useful to overthrowing the government. The Tenn. Const. guarantee includes a "common defence" clause (unlike the Second Amendment), and this is what the Aymette decision hangs its claim on. Even this clause, however, didn't render the right collective, as the decision makes very clear. It was only the class of weapons (better suited to brawling than revolution) that wasn't protected. My book Concealed Weapon Laws of the Early Republic (Praeger Press, 1999) goes into the legal and cultural development of these laws, and the reasons, in excruciating detail.

The lawyer citing the Georgia statute violated his duty of candor to the tribunal if he knowingly omitted the reversal by the Georgia Supreme Court. He probably could excuse his failure to cite the 1846 Nunn decision as unintentional, though, considering the amount of research it probably took to find it.
Since the Nunn decision is cited in every scholarly article and book that our side has written in the last 50 years, I don't see how they missed it.

The problem with citing the GaSC. decision based on the Second Amendment is that they are not the last word on Federal Constitutional interpretation, although they certainly had the power to strike down that part of the Ga. statute.
Agreed. But it does demonstrate (as do a number of other decisions from the period) that the Second Amendment was widely understood as protecting an individual right. The only real disagreement among the antebellum decisions is whether the Second Amendment protected an individual right from federal power (as most of the cases held, especially after Barron v. Baltimore) alone, or from state power as well (as was the case with the Louisiana Supreme Court, and arguably the Texas Supreme Court).
2.13.2008 3:01pm