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Gun Case Argument Schedule is Set
LegalTimes.com
February 25, 2008
Tony Mauro

In a brief order on today's order list the Supreme Court dashed the hopes of gun rights advocates who hoped to have two lawyers and additional time arguing their cause before the Supreme Court when it hears arguments in the historic case D.C. v. Heller on March 18.

Without explanation, the Court denied the motion of Texas Solicitor General R. Ted Cruz for argument time on the side of Alan Gura of Gura & Possessky, who has argued the pro-Second Amendment position from the start of the case.

But the Court did agree to give Solicitor General Paul Clement 15 minutes to argue, in addition to the 30 minutes for each side in the case.

The Court's action can be read as a small but not insignificant victory for supporters of D.C.'s handgun control ordinance at issue in the case.

Cruz had argued to the Court that he should be heard on behalf of 31 states favoring a broad view of the Second Amendment, because Solicitor General Paul Clement's brief in the case is "contrary" to the position of gun rights supporters. While Clement supports an "individual right" view of the Second Amendment, he advocates a standard of review that critics say will allow too many gun regulations to stand. Clement also urged vacating and remanding the lower court ruling of the U.S. Court of Appeals for the D.C. Circuit in the case, the first ever to strike down a gun regulation on Second Amendment grounds. Walter Dellinger of O'Melveny & Myers, who will argue in defense of the D.C. handgun ban, had opposed the Texas motion, but supported Clement's request for added argument time.

It is very common for the Court to say yes to a request from the solicitor general for argument time as amicus curiae no matter where he stands. As for states, in recent years they have won argument time with greater frequency — four times last term alone — though this term the success rate has been lower. One factor working against Texas in the D.C. case is that states are not unanimous on the Second Amendment issue; New York, joined by Hawaii, Maryland, Massachusetts, New Jersey, and Puerto Rico, filed a brief on the gun control side.

So, even though Clement's brief lends support to both sides, the net effect of today's Court action is that the justices will hear 45 minutes of advocacy from those who want the lower court ruling eliminated, and 30 minutes from those who want it upheld.

Tony Mauro can be contacted at tmauro@alm.com. The following article originally appeared on The Blog of Legal Times.

Now before anyone gets angry with me, I am still hoping I am horribly wrong...

What is it in 15 extra minutes can you actually say before the Supreme Court of the United States, that you can't make the correct point in 60 seconds???

So, with that being saidm I would also caution that I do not believe all is lost, nor should we get too worked up about it...

I do believe the deck is stacked against us, but then again, what can happen to us, when you really get down to it if the ruling goes against us...

It won't be pleasant, it will make a whole lot of us angry...I am just not all that surprised that this is happening, and that the lines are already being drawn in how we are going to have those fighting for us given a slight disadvantage...

I wish we could get a read on who these folks are that are actually going to speak on behalf of the gun owners in this country...

I would love to have a crack at this...Otherwise, I would rather someone like Charles Cotton go up there and do what he does best...I look forward to giving him some time to address us as if we were the Supreme Court, and have him work us over with the logic and law behind this case this next weekend...I think it would be something I would carry for a very long time, if not till they plant me...

Good time for a gut check...

Actually, I don't think this is such a big deal. There are several justices (Thomas for one) who never cares what is said during the oral part. He figures that the best arguments possible have already been made in the briefs and reads those. He does listen in open court, but he very rarely asks a question.

Sorry, I forgot where I read this so I can't provide a source.

Kalrog wrote:Actually, I don't think this is such a big deal. There are several justices (Thomas for one) who never cares what is said during the oral part. He figures that the best arguments possible have already been made in the briefs and reads those. He does listen in open court, but he very rarely asks a question.

Sorry, I forgot where I read this so I can't provide a source.

As a matter of fact, just today there is a CNN article that covers Justice Thomas's preference for listening over questioning.

http://www.cnn.com/2008/POLITICS/02/25/ ... index.html

As to the SG's brief: I was not surprised the SG got his own time allotment. I was a lot more (unpleasantly) surprised that the SG put forth such a ludicrous argument. Someone, Dave Hardy at his blog "Of Arms and the Law" I think, read through the brief and commented that it seemed rather poorly written, as if it has been radically changed at the last minute and hadn't been properly edited to account for the changes.

I am mildly disappointed that the Supremes gave the other side extra time, but I do not necessarily read it as a slam dunk against us. Given the rather atrocious arguments they have put forward in the briefs, I can easily see this as the SCOTUS giving them one last chance to do better before getting denied.

elb

I would say that this is not good or bad news yet. It depends on exactly what happens at the court. One of the reasons I say this is that the court is well known for not letting anyone actually say their argument. They will interrupt with questions fairly quickly, and can spend much of the time on their questions instead of presenting your arguments. Of course, I do agree that the best arguments have already been made in writing, so I think they see the oral arguments as more of a chance to pose questions to the logic of what was written.

It kind of depends on the questions asked whether or not this is good news. It could be that they see the anti-argument as bad, and want to see exactly how the SG could support a lower review level. Someone might have already decided that there is an individual right, and trying to see what the review level should eb and how they can jsutify not throwing out a lot of gun control laws. They might be trying to prevent some of the unforeseen circumstances that could result.

While I have had some major disagreements with SCOTUS (ntoably on things like McCain-Feingold), as a general rule, I think they try their best to be fair and support our rights over government powers.

srothstein wrote:I would say that this is not good or bad news yet.

I would agree...I'm not really that much of a doom and gloomer...

It kind of depends on the questions asked whether or not this is good news. It could be that they see the anti-argument as bad, and want to see exactly how the SG could support a lower review level. Someone might have already decided that there is an individual right,

Someone already has recently, his name was Ashcroft...At least in an official capacity...

While I have had some major disagreements with SCOTUS (ntoably on things like McCain-Feingold), as a general rule, I think they try their best to be fair and support our rights over government powers.

Steve refuses to hold his breath...

16 days and counting...And then the real wait begins...

Looks like Congress is against us. In their brief to the Court, they strongly suggested the Court reverse the decision. Sad. Consider the following,
"Under this Court’s interpretation of the Second
Amendment (United States v. Miller, 307 U.S. 174,
178 (1939); Lewis v. United States, 445 U.S. 55, 65
n.8 (1980)), that provision lends no support to
Respondent’s claims, since he does not assert that
his desired use or possession of the firearms at issue
relates to “the preservation or efficiency of a well
regulated militia,�3 and the decision below should be
reversed.
Had the Court been presented with a colorable
claim that the challenged conduct infringed the
“right to keep and bear arms� in a manner ...."

USMC-COL wrote:Looks like Congress is against us. In their brief to the Court, they strongly suggested the Court reverse the decision. Sad. Consider the following,
"Under this Court’s interpretation of the Second
Amendment (United States v. Miller, 307 U.S. 174,
178 (1939); Lewis v. United States, 445 U.S. 55, 65
n.8 (1980)), that provision lends no support to
Respondent’s claims, since he does not assert that
his desired use or possession of the firearms at issue
relates to “the preservation or efficiency of a well
regulated militia,�3 and the decision below should be
reversed.
Had the Court been presented with a colorable
claim that the challenged conduct infringed the
“right to keep and bear arms� in a manner ...."

I believe that exerpt is from a brief filed by a (very) small group of anti gun rights members of Congress.

In contrast, a majority of both houses have signed on to a brief submitted that strongly supports the RKBA as an individual right. I think our own Kay Bailey Hutchinson was out in front on that one.

Well, it looks like I don't have to make a trip to DC to listen to the proceedings.

The Washington Post is reporting the Supreme Court will release the audio on the day of the proceedings

http://www.washingtonpost.com/wp-dyn/co ... 02005.html

The oral arguments start 10:00 a.m. Eastern time on Tuesday, March 18. The March 4 press release from SCOTUS indicated the audio would be released on an expedited basis, and said the feed of the recording is intended for broadcasters only.

Does anyone have any inside info about who will air the audio for public consumption? My best guess right now is c-span.org, but I haven't seen any network claiming a broadcast time yet.

In the past
when things like this have come up
broadcasters and others have
downloaded the material from the primary source and
published it on a secondary site.

That way "a million" folks aren't trying to download from c-span.

frankie_the_yankee wrote:

USMC-COL wrote:Looks like Congress is against us. In their brief to the Court, they strongly suggested the Court reverse the decision. Sad. Consider the following,
"Under this Court’s interpretation of the Second
Amendment (United States v. Miller, 307 U.S. 174,
178 (1939); Lewis v. United States, 445 U.S. 55, 65
n.8 (1980)), that provision lends no support to
Respondent’s claims, since he does not assert that
his desired use or possession of the firearms at issue
relates to “the preservation or efficiency of a well
regulated militia,�3 and the decision below should be
reversed.
Had the Court been presented with a colorable
claim that the challenged conduct infringed the
“right to keep and bear arms� in a manner ...."

I believe that exerpt is from a brief filed by a (very) small group of anti gun rights members of Congress.

In contrast, a majority of both houses have signed on to a brief submitted that strongly supports the RKBA as an individual right. I think our own Kay Bailey Hutchinson was out in front on that one.

To flesh out the the point:

- Vice President Cheney, 55 Senators, and 250 Members of Congress filed a brief supporting the respondent, Dick Heller, and the individual right to bear arms.
-- Senator Hutchison, R-TX, is listed as lead member.
-- Senator Cornyn, R-TX, also signed.
-- As did Senator McCain, R-AZ

-- It was too tedious for me to pick out all the Texas Representatives that signed. However, I was interested to see that both Rep Cuellar, D-TX-28, and Rep Ciro Rodriguez, D-TX-23, had signed on.

- No Senators, and 18 Members of Congress filed a brief in support of the petitioner, the city of Washington, D.C.
-- Rep Green, TX-09 is the only Texan signed on (Interestingly, this brief does not list party affiliation like the other one does...)

I did not see Senator Clinton or Senator Obama on either brief. Nor Senator Schumer for that matter.

If you go here:

http://dcguncase.com/blog/case-filings/

You can see a list of all the briefs (in fact, all the case filings).

Heller lawyer, Robert Levy, never owned a handgun. Click here.

Interesting article, worthy of reading by those blaming lawyers for their RKBA problems.

Jim

An interesting letter to the editor of the Boston Globe from Bob Levy today, a very important day for something other than being St. Patty's Day, here.

Jim

im listening to C-Span now.....conservative justices are ragging on DC attorney pretty hard! sounds good so far..