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.
All Related Posts (on one page) | Some Related Posts:
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.
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.
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.
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.
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.
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.
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.
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?
# 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.
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.
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.
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.
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.
Now, the government (DC and SG) are trying to lie again. This gets the lies on the record.
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.
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.
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.
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).