Friday, January 04, 2008

How Many Lawyers Does It Take to Make a Circular Argument? In Heller, a Lot!

The District of Columbia’s legal brief to the Supreme Court in the Heller case, where the District defends its version of gun control against a decision by the Second District Court of Appeals that the District is violating the constitutional rights of its residents, was due and filed January 4th. Interestingly, the filing was simultaneous with the resignation of the District’s top lawyer and the firing of her special assistant on the case. To say it is rare to change lawyers after they’ve filed a brief before SCOTUS but before oral arguments is to understate the situation.

But, not to worry. To prepare its case, the District hired seven outside attorneys, some of the top guns—no pun there!—from two of the area’s most prestigious and expensive firms, to help write and now perhaps argue its case.

The brief, 58 pages in chief with 162 separate citations, likely cost DC taxpayers at least $500,000, perhaps twice that, for research and writing. The result bears the hallmarks of authorship by a brilliant committee of highly skilled, charged and ego-endowed lawyers. It is a writing of which only a lawyer—no, only a conclave of lawyers paid by the word or the hour—could be proud. Each point is made with pinpoint precision in a well-organized pyramid of arguments, crafted and printed only after hours, days and weeks of research, collaboration, argument and honing by memo.

In the end, though, the DC brief shares the failing of all committee works in that the logic is unconvincing. It fails because it is alternately both over-reaching and terminally circular.

The arguments fall into three groups, The Militia, The District and The Regulation:

First: The Second Amendment Protects Only “Militia-related” Firearm Rights.

This gets 35 pages of coverage. It is the major thrust of their argument and is, therefore, the most convoluted.

The District deconstructs, in more ways than one, the language of the Constitution in order to argue that the Second Amendment protects only members of state militias from being disarmed by Congress.

Their linguistic arguments bear (no pun) on four points:

  • “Bear” is a strictly military term.
  • “Arms” is a strictly military term.
  • “Keep” is most often a military term and in this case means that members of the militia may “keep” on hand the “arms” that they’re required to available to them.
  • “People” means “members of state militias.”
Others have done the historical research the language deserves, so I'll leave the area to them.

DC’s lawyers recognize that the Second Amendment may protect a possible “pre-existing” right that predates the Constitution. However, they dismiss that possibility as lacking a “persuasive reason” to be believed.

While DC recognizes and even observes for the Court that under Article I, Section 8,
“Congress shall have the power… (t)o provide for organizing, arming and disciplining the Militia,”
and that Congress may from time to time call up the militia for national service, its lawyers then argue that the Bill of Rights amends the Constitution to explicitly deprive from Congress any power to ever disarm the very same folks that it is specifically charged with arming.

Their theory is that the various states might have need of militias to protect themselves from, among other things, threats from the federal government, and only independent state forces can assure against that threat.
The primary concerns that animated those who supported the Second Amendment were that a federal standing army would prove tyrannical and that the power given to the federal government in the Constitution’s Militia Clauses (of the Constitution, in Article 1, Section 8) could enable it not only to federalize, but also disarm state militias.
The Bill of Rights limited the federal government to protect both individual liberty and states’ rights. In the context of the Second Amendment, both causes were served by establishing a check on a new federal government that might otherwise disarm the people serving in state militias under the powers granted by the Militia Clauses.
The authors don’t explain why the states required to ratify the Bill of Rights would rely on militias that are subject to the will of Congress for protection from that same, possibly “tyrannical,” federal government. Actually, they describe the army as being potentially tyrannical, apparently confusing the role of tyrant and his tool, a common problem among some classes in DC.

Either alternatively or in addition, they also seem to argue that the members of the militia—this would be the people, who are different from the people who have rights of assembly and freedom from searches—may have an actual duty to arm themselves with militia-style weapons, a duty DC's lawyers see as imposed by… the Second Amendment.

Their brief explicitly confirms “the right of citizens (in the militias) to own guns to support those militias…” (Emphasis added.) Why DC would concede actual ownership of the militia's weapons to the members escapes me, but vertigo was setting in so I'll let it go.

So, Congress arms the militias… as do the states… as do the members themselves. Once armed, the members own the weapons, which apparently no one can take from them. Now that would make for an interesting social order, especially given that the purpose of these militias is to protect the states from the military might of the United States. I can see it now. Washington and Kansas get the Boeing aircraft, California the Northrup goodies. Utah and Colorado the biological and nerve stuff. The nuclear toolkit… hmm.

Finally, as others have pointed out, Glenn Reynolds and Don Kates first among them with their paper "The Second Amendment and States' Rights: A Thought Experiment," when one defines the Second Amendment as requiring state militias and argue that it explicitly forbids Congress from disarming them, one creates the real potential for a supra-military force. On this point alone, a DC win could change the core dynamics of our federal republic government. It would certainly change the attendance at and dynamics of state militia meetings!

Second: The Second Amendment Does Not Apply to Laws Limited to the District of Columbia.

This is worth five pages in the brief, but even so circularity seems to rule, while over-reaching comes in a close second.

The writers acknowledge that the Bill of Rights was written to protect citizens from the predations of a too-powerful federal government, primarily by placing restrictions on its power.

According to the District, the Second Amendment doesn’t apply to it because:

The District isn’t a state and therefore isn’t entitled to a militia, the members of which would otherwise be protected from disarmament by Congress. The lawyer who wrote this section of the brief included as part of his argument that there could be no conflict between the District, its citizens and Congress specifically
because Congress retains ultimate legislative power over whether and how to arm any militia, even when it delegates power to the District’s local government.
I wonder if he read the first section of the brief?

The authors make the point that because the Second Amendment doesn’t (yet!) apply to the states, it is unlikely that the Framers meant for Congress to be more limited in its powers in the seat of power, the federal district, than are the various states. They describe the ability to enact firearms regulation as “the most important power of self-protection” Congress has, an interesting perspective to the thousands of Capitol police, Secret Service, and military members tasked with protecting those folks.

Again, the circular: They argue that because the District Council is only a creature of Congress and not Congress itself, the Second Amendment cannot restrict its powers. By the same logic, it is difficult to imagine any limitation imposed by the Bill of Rights that cannot be ignored with impunity by the politicians of the District of Columbia on the same basis. Free speech, well, no. Fourth Amendment protections, uh, well. Heck, why not save a few bucks and house the troops amongst the residents, too?

Third: The District’s Reasonable Gun-Control Laws Do Not Infringe The Right to Keep and Bear Arms (sic)

Wherein the rabbit popped down the hole, spun several times, and re-emerged a natural blonde.

DC states the factual basis on which the Council based its regulatory framework
After concluding that existing laws were insufficient, the Council reasonably found that it could substantially reduce the tragic harms caused by guns by regulating which weapons are available to District residents, how residents should store them, and who should be licensed to carry concealable weapons.
Note: The District uses the term “concealable.” Fast readers might slide over the term, thinking it means “concealed.” Not so. While more than 40 states now either allow or license citizens to carry weapons concealed on their person, the District requires a license to carry any weapon, at any time, in any location if that weapon is capable of being concealed. In other words, to carry a pistol from the kitchen to the bedroom requires a license issued by the District. To round the circle, any pistol for which a license is sought must be registered. However, no handguns manufactured or brought into the District in the last 30 years are eligible to be registered. Catch-22.

According to DC lawyers, a “ban,” and yes they use that word, on the registration of handguns is defined as “reasonable regulation” of “particularly dangerous types of weapons.”

The regulation was promulgated when the District
“reasonably found that a handgun ban would mitigate the very serious problem of handgun violence in the District, including the use of handguns in crimes and their misuse by normally law-abiding citizens.”
They acknowledge that the use of handguns in DC was substantially more prevalent than it was nationally, that in the year prior to the ban
“In 1974, handguns were used to commit 155 of the 285 murders in the District.”
They neglect to mention that in later years the number of murders in DC nearly doubled even while the population fell substantially, leading to the common description of the District as the murder capital of the country.

They then attempt to square the round circle. This is probably the most target-rich paragraph in the entire brief, so much so that highlighting would only blight the words. I’d guess it is also probably the most expensive paragraph, given the number of lawyers who must have shipped in their best thoughts on how to state this.
In 1994, the Council extended the prior requirement that those who “carry” concealable weapons in public be licensed. A license is now required regardless of where such a weapon is carried. The licensing requirement, which enables the District to prevent felons and other dangerous persons from keeping concealable weapons, is separate from the registration requirement applicable to all firearms. Absent the handgun ban, District residents could register handguns and then apply for licenses to “carry” them. (Quotations marks in the original.)
To translate from the committee wordsmithing: Prior to 1994, a license was required to “carry” a concealable weapon in public, whether or not the weapon was concealed. That law was “extended” to cover carrying a concealable weapon anywhere. Anywhere. Even kitchen to bedroom, or from closet to hall, even out of a drawer where it has rested legally, untouched for 30 years, in order to greet a burglar in the entryway. This was designed to keep undesirables from “keeping,” there’s that military term, a weapon. In the final sentence they’re making the argument that this law is not unconstitutional because it is only a “licensing” requirement and if it were not for the ban, a different law entirely, it would not be… effective. No harm, no foul, no possibility of constitutional infringement.

The brief expressed what seemed like surprise at the appellate court’s findings.
The majority also invalidated the licensing law. It ruled that individuals have not only a constitutional right to possess a handgun, but also an ancillary right to move it about their homes for self-defense.
For those keeping track, the argument is that the ban is not unconstitutional because it is only a registration requirement and the licensing requirement is not unconstitutional because were it not for the ban there wouldn’t be an issue.

There’s enough slippery slope language here to keep the NRA in rhetorical ammunition for a century.

In a later argument, the attorneys reach too far to rely on truth
In any event, subsequent evidence supports the Council’s judgment that banning handguns saves lives.
Perhaps they haven’t seen the numbers of the lives lost in the murder capital of the country since they deprived its citizens of any possibility of self defense. Here is a graphic that I cite below in SCOTUS Discovers 2nd Amendment, Decides It Needs Attention.

As someone once asked, “With friends like this, who needs enemies?”

UPDATE: According to The Washington Post, Acting DC Attorney General Peter Nickles fired lead attorney Alan Morrison because of a lack of confidence in the only Supreme Court specialist employed by the District. Morrison, who has argued 20 cases before SCOTUS and wrote the brief filed Friday, attributes his termination to politics. The District, in a move that didn't please some city leaders, has delegated oral arguments to a private lawyer, a former Solicitor General in the Clinton administration. Mr. Nickles also bolstered his outside team with a third brand-name law firm. This in a case that anti-gun groups urged the District not to take to the Supreme Court because of the risks of losing, and which Mayor Fenty now describes as "the most significant legal case in the history of the District of Columbia."

Alan Gura, lead attorney for Mr. Heller and the chief strategist for the District's opponents, described the District's arguments in the brief as "creative but wrong."

Randy Barnett, a law professor at Georgetown University and contributor to the respected Volokh Conspiracy blog, agreed that the District's argument is "strained," and described it as being "at odds with the text and the original meaning of the Second Amendment and the rest of the Bill of Rights."

UPDATE II: Professor Barnett is also author of an article certain to be cited when the Heller team replies. Was the Right to Keep and Bear Arms Conditioned on Service in an Organized Militia? is available here. Hat tip to Anonymous in the comments for the reminder.

UPDATE III: Fred Thompson adds his thoughts.

UPDATE IV: Commenter jmwildenthal points out that The Washington Times is quoting Acting DC AG Nickles as commenting that the three law firms are donating their services on the Heller case. Earlier reports from the same news conference quoted Walter Dellinger as saying that he "has been working on the case pro bono."

If all three firms are chipping in all their costs, that's a pretty substantial contribution on the part of Akin Gump Strauss Hauer & Feld LLP, O'Melveny & Myers LLP and Covington & Burling LLP.

RELATED LINKS: DC Fires Lawyers, Files Anti-Gun SCOTUS Brief in Heller
Where's The Militia? I Want to Enlist!

I know that Justice Thomas never asks questions from the bench. He views it as unnecessary given these are the best arguments from the best, most expensive lawyers in the land. This might warrant an exception, though.

The question I’d ask: Is this really the best you can do?


Anonymous said...

"Why DC would concede actual ownership of the militia's weapons to the members escapes me"

My guess would be for consistency with the Miller court’s stated understanding of “militia”...

"And further, that ordinarily when called for service these men were expected to appear bearing arms supplied by themselves and of the kind in common use at the time."

Bob Leibowitz said...

Good comment. If so, doesn't that weave the texture of circularity even tighter? While it is very possible to attach reasonable limits to the rights of individuals, not to cry "fire" in a theater, for instance, won't it be very difficult to argue later that Congress has power over state militias that it is expressly forbidden from disarming?

Anonymous said...

The first argument was answered before the DC brief was written, seeBarnett, Randy E., "Was the Right to Keep and Bear Arms Conditioned on Service in an Organized Militia?"

The next argument (that DC is not a state) was answered very well by the majority in Shelly Paker vs. DC:"First, the dissent (and the District) mistakenly reads “a free State” to mean an actual political unit of the United States, such as New York, etc., rather than a hypothetical polity. In fact, Madison’s initial proposal to the First Congress stated that a well-regulated militia was “the best security of a free country.” THE COMPLETE BILL OF RIGHTS, supra, at 169. The House committee then substituted “State” for “country” when it initially altered Madison’s proposal. We have no record of the House committee’s proceedings, but it is not credible to conclude that a profound shift was intended in the change from “country” to “State,” particularly as there was no subsequent comment on the change.The use of both the indefinite article and the modifier “free” with the word “state,” moreover, is unique to the Second Amendment. Elsewhere the Constitution refers to “the states” or “each state” when unambiguously denoting the domestic political entities such as Virginia, etc. With “a free State,” we understand the framers to have been referring to republican government generally.”I'll add my own 2 cents here concerning the DC is not a state claim.From Madison’s Memorial and Remonstrance(1785):"We the subscribers, citizens of the said Commonwealth, having taken into serious consideration, a Bill printed by order of the last Session of General Assembly, entitled "A Bill establishing a provision for Teachers of the Christian Religion," and conceiving that the same if finally armed with the sanctions of a law, will be a dangerous abuse of power, are bound as faithful members of a free State to remonstrate against it, and to declare the reasons by which we are determined. " (my emphasis in boldface)Was Madison referring to Virginia as “a free state” in the sense that the commonwealth was one of the states of the Union? Or was he characterizing Virginia as “a free state” meaning a non-tyrannical government in which citizens were able, and duty bound, to defend their rights against dangerous abuses of power by the government?The answer to that question is found in the list of reasons that Madison gives for opposing the Bill for establishing a provision for teachers of the Christian Religion –the first of which concerns the protection of an individual’s right to worship as his own conscience directs and includes Madison’s observation that the will of the Majority sometimes tresspasses on the rights of the minority. Thus the concern is not merely for the freedom of action of the “state” or the “government” but for the freedom of the individual in relation to government. "Because we hold it for a fundamental and undeniable truth, "that religion or the duty which we owe to our Creator and the manner of discharging it, can be directed only by reason and conviction, not by force or violence." The Religion then of every man must be left to the conviction and conscience of every man; and it is the right of every man to exercise it as these may dictate. This right is in its nature an unalienable right. It is unalienable, because the opinions of men, depending only on the evidence contemplated by their own minds cannot follow the dictates of other men: It is unalienable also, because what is here a right towards men, is a duty towards the Creator. It is the duty of every man to render to the Creator such homage and such only as he believes to be acceptable to him. This duty is precedent, both in order of time and in degree of obligation, to the claims of Civil Society. Before any man can be considerd as a member of Civil Society, he must be considered as a subject of the Governour of the Universe: And if a member of Civil Society, do it with a saving of his allegiance to the Universal Sovereign. We maintain therefore that in matters of Religion, no man's right is abridged by the institution of Civil Society and that Religion is wholly exempt from its cognizance. True it is, that no other rule exists, by which any question which may divide a Society, can be ultimately determined, but the will of the majority; but it is also true that the majority may trespass on the rights of the minority"Returning to the Second Amendemnt, one could, as a thought experiment, try adding the words “of the union” after “A well regulated Militia being necessary to the security of a free state”. Is the meaning retained? What function would the word “free” have in that sentence? Would it act to limit the protection to only “free” states? Which states were not free? Did the framers believe that "a well regulated militia" was necessary only to "free states" of the union, or did they hold that belief as a general proposition, and assume that the Union was a "free state" in the sense that Madison earlier used the phrase in Memorial and Remonstronce ? Mike HansberrySee also Volokh Conspiracy -Straight out of Blackstone- for a discussion of this topic.

Bob Leibowitz said...

Anonymous -- Very good.

I fully expect to see Professor Barnett's review, "Was the Right to Keep and Bear Arms Conditioned on Service in an Organized Militia?" cited by the Heller team in their response.

Thank you, too, for the Madison reference. I had not seen it before.

Anonymous said...

I think a significant deficiency in DC's brief is how little attention was given to the concept of a pre-existing right and the nature of that right. A paragraph is written on it, almost in passing, at the bottom of page 19. They've taken a cite from Cruikshank completely out of reference. As a favorite of anti-gunners, the well-known " not a right granted by the Constitution" statement is generally taken out of context to "prove" that the right to bear arms doesn’t exist. Of course, the real point was that as a pre-existing right, the right to keep and bear arms didn't qualify as a privilege or immunity under the 14th amendment. But in the DC brief, I can't even figure out what point they're trying to support with that cite.

If the Court should find the right to keep and bear arms is a pre-existing right, the DC brief leaves the door wide open for respondent’s brief to guide the Court in determining the nature of that right.

Bob Leibowitz said...

Willy -- I think your point will carry with 2-3 of the Justices, but unfortunately not 5-6. It seems much easier for the Court to find penumbras than pre-existing rights.

Like you, I thought their single paragraph was a slight, but given that the pre-existing issue is either yes or no, perhaps there was little else they could do with it.

Remember, "If you've got the facts, argue them. If you've got the law, argue it. If neither. be quiet and hope for the best."

Anonymous said...

Your link "http://http//"

needs fixing. Too many http's!

Bob Leibowitz said...

Anonymous -- Thank you very much. Fixed. -- Bob

Unknown said...

According to the Washington Post, Nickles (Fenty's lawyer) is saying the attorneys are working pro bono.

Bob Leibowitz said...

jmwildenthal -- Thanks.

I'd earlier seen where Walter Dellinger said that he "has been working pro bono" on the case.

However, the article that you've linked to at The Washington Times does report Nickles as saying the firms are also donating their time.


That's a substantial donation on the part of the Akin Gump, O'Melveny & Myers and, now, Covington law firms. As I wrote earlier, the total tab is likely to approach a million dollars of time.

Anonymous said...

Thanks to all for the cogent comments on DC's bogus submmision. I look forward to the Heller team's brief. I think the phrase "BLUED SCREWED AND TATTOED" comes to mind of the DC plutocrats screed.

Bob Leibowitz said...

fiftycal-- Thanks for your comment.

I've read a fair number of lawyers's briefs, though not many at the level of SCOTUS.

Generally when I read the opposition's brief I think to myself, "We're in trouble. These guys are better than I thought. I hope we can muster the better facts, law or arguments. I usually get pretty anxious.

For better or worse, on this one I'll stick with my last question in the post and hope its not hubris!

30 days from now we'll know what the good guys, and the team is VERY good, say.

Anonymous said...

Sent the following to Bob Levy of the Cato Institute a couple of weeks ago, in response to an editorial, and I think the comments still hold, moreso with DC' emphasis on the freshness of the memories of the writers of the Bill of Rights.

I want to point out that the shots fired at Lexiington and Concord were due to the government's attempt to seize cannon and ammunition from the (soon to be) rebels.

With that in mind, it seems to me that the Second Amendment, being written with the events that fomented the rebellion still fresh in the memories of the authors, might very well have been meant to protect the right to bear arms above and beyond those which we define as "small arms."

cmblake6 said...

Excellent clarification points. Now, get these to the SCOTUS.

Bob Leibowitz said...

cmblake6 -- Thank you.

Counsel for the Heller/Parker teams are about the best there are.

They'll do a superb job. We can count on it. -- Bob

Anonymous said...

Bob, I hope you're right.

It worries me that high-profile law firms would do this pro bono. Do they really believe this, or are they trying to buy goodwill from the DC government?

I note that none of the heavy-duty commentators on our side (e.g. Vololkh and Reynolds) have written anything. Although if they are filing amicus briefs, I could well believe they might consider security more important - Clayton Cramer has mentioned that he is not talking much specifically because of that point.

The other worry I have is SCOTUS ruling on personal prejudice and faking the legal reasoning. It's not like that hasn't happened before.

Bob Leibowitz said...

Mike M. -- On this, I'm right. The Heller team is first-rate. As importantly, all of the intellectual weight of the arguments is aligned in favor of individual rights. When great liberals like Tribe come across you know it's based on the strength of the arguments.

Both Glenn and Eugene have written extensively on this over the past year. Both will be quoted heavily in the Heller filing. Eugene may be taking it easy in that his co-conspirator at Volokh, Randy Barrett, is taking good shots, so to speak. As I mentioned, Rand will also be cited.

There are a lot of truly first-rate minds taking our side on this.

As to SCOTUS, the Court has become a more disciplined place in recent years. At least four Justices voted in favor of taking the case and, very importantly, they took the unusual step of re-framing the question to their liking.

Someone up there wants to make this an up or down on the Second Amendment and he (not she!) got others to sign off on the approach.

The Brady Bunch would do anything to get out of this. I know that folks on our side are a little anxious, too, but… have no fear.

And keep your powder dry.

cmblake6 said...

Once this is heard, and provided the legal team on our side is as good as it needs to be, which I'm sure we've got the best we can possibly have, and provided we can sway those liberal appointed judges that are a "don't confuse me with facts..." sort, what next? Can we overturn 1968? 1934? Can we once again live in a nation free of fear of the government? The "bumper sticker wisdom" applies here. Fear the government that fears your guns. No knock warrants? And what of the "Castle Doctrine"? Ah well, one step at a time.

Bob Leibowitz said...

cmblake6 -- This will take decades, perhaps lifetimes to play out and perhaps that a helpful way to look at it.

This will not be so much for us as for our children and their children, that future generations can have the freedom and respect they deserve as citizens of the greatest nation on earth.

ctdonath said...

"And further, that ordinarily when called for service these men were expected to appear bearing arms supplied by themselves and of the kind in common use at the time."

Whither arms of "common use at the time" if broad categories of otherwise suitable arms are banned from ownership by the general populace?

Note as well it does not say "and of the kind specified by the legislature"; instead it refers to what the general populace generally chooses independent of legislative persuasion.

Bob Leibowitz said...

ctdonath -- Yep. -- Bob

Kevin said...

Thanks for the info. I updated Wikipedia's page with the names of DC's attorneys so that they are remembered for posterity.

Bob Leibowitz said...

Kevin -- Good idea. Perhaps you'll post this as a reference? -- Bob

Anonymous said...

ctdonath said...
"And further, ....of the kind in common use at the time."

The VA militia act cited in Miller has a reference to "the militia west of the blue ridge" and allows them to use their rifles instead of muskets to satisfy their duty to "keep" arms.

Given that Virginia allowed the militia on the frontier to use hunting rifles for militia duty, the Miller court's conclusion regarding "in common use at the time" is sound.

It is also clear evidence that at least the Virgina legislature expected that arms would be used for private purposes as well as militia duty.

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