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Thread: Amicus Brief, Do they matter? Should they?

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    Regular Member VAopencarry's Avatar
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    Everyone but Elvis has filed or signed onto an Amicus brief on Heller. Does SCOTUS really read them? do they care? should they care?
    "The tree of liberty must be refreshed from time to time with the blood of patriots and tyrants." - Thomas Jefferson

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    Yes, they read them, yes they do matter, because even if the SCOTUS didn't read them, lawyers for both sides do. If one side finds an angle in an amicus brief that could help them, they'll develop it into their arguments and the other side, seeing it, will prepare a defense.

    Also, SCOTUS isn't liketraffic court or Law & Order. The justices are active participants in the hearing and will ask questions and play devil's advocate.Each side's30 minutes of allotted time for arguments on the daycould become a Q&A 5 minutes in. Those questions and briefs are often based on information in amicus briefs that was not covered in the plaintiff's or defendant's briefs.

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    Perhaps noting that consent must be granted by all parties to submit will suggest their weight - that and due judicial dilligence. They are subject to SCOTUS Rules of procedure and Federal Rules of Appellate Procedure. The rules are in a .pdf on the SCOTUS web site.

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    Doug Huffman wrote:
    Perhaps noting that consent must be granted by all parties to submit will suggest their weight - that and due judicial dilligence. They are subject to SCOTUS Rules of procedure and Federal Rules of Appellate Procedure. The rules are in a .pdf on the SCOTUS web site.
    Consent is almost always a blanket consent given at the time of the Merits Briefs. The parties to the controversy have almost no control over who files and generally only suggest the topics that they address. In this, Alan Gura has done a remarkable job of coordinating the amici to address specific issues.

    Some notes on what's happening here, to those who may not be familiar.

    There have been 20 amici briefs filed for the petitioner (DC) and 47 amici for the respondent (Heller). The most filed briefs ever was a case called, Webster v. Reproductive Health Services (1989), where 32 amici filed to affirm and 46 filed to reverse.

    So while this case did not set a record, it is instructive to note that a wide variety of interests have filed. This simply means to the Court that the case is very important to a whole lot of people.

    So what does the Court do with all these briefs? Each Justice has a number of clerks. They will be assigned to read the briefs and submit a summary to the Justice for whom they clerk. The Justices themselves will read the individual briefs, should they interest the Justice, based upon the summaries of their clerks.

    Another thing to note, is that each of the respondents amici have addressed one or more of the petitioners amici briefs in rebuttal and some have expanded upon what the respondent was saying. The initial Merits Briefs are limited to 15,000 words, including citations and footnotes. The amici are limited to 9,000 words.

    So we have at the present, something like 633K words written on the meaning of the 2A, or a volume (or three) of legal work containing approximately 2500 written pages.

    On top of all this, the SCOTUS has some rather peculiar printing standards. IIRC, each amicus must file seven copies, with an average cost of 2K for each copy, plus the time the associated attorneys took to prepare the brief - say, 20 billable hours each, minimum. Add to this the costs of the Merits Briefs themselves, and you are looking at a multi-million dollar endeavor.

    And we have yet to reach the Orals stage.

    Ask any Constitutional scholar (regardless of their actual views) about this case and you will get the impression that this is the single most important case to come before the Supreme Court in decades. Perhaps in our lifetimes. Most of us, here, know this. Yet it is instructive to look at how others view this case. Scholars; Legal Analysts; Public Policy Think Tanks; State Governments; City Governments; Federal Agencies - all agree with us. This case is THE most important Constitutional Issue, perhaps ever.

    All of this and more, yet it is only a single footstep in the move to take back our rights. A decision in our favor will be but the first of many cases to nail down the extent of the RKBA (what is referred to as the scope of the right).

    A decision for D.C. will, at first, do nothing more than preserve the status quo. It will however, open the way to the most Draconian anti-gun laws imaginable. A decision for D.C. will in effect, complete the shredding of the Constitution that we have been witnessing these last 70 or so years.

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    Another brief filed by 31 state's Attorney's General



    Statement from National Rifle Association on Attorneys General from 31 States Signing Pro-Individual Rights Amicus Brief in D.C. v. Heller



    Fairfax, Va. - The NRA is pleased to note that an overwhelming majority of state Attorneys General filed a significant amicus curiae brief with the United States Supreme Court in the case of District of Columbia (D.C.) and Mayor Adrian Fenty v. Dick Anthony Heller. This brief, supported by 31 state Attorneys General, supports the decision of the U.S. Court of Appeals for the D.C. Circuit, holding that the Second Amendment protects an individual right to keep and bear arms, and therefore that the D.C. bans on handguns, on carrying firearms within the home, and on possession of loaded or operable firearms for self-defense violate that fundamental right.

    The 31 state Attorneys General who signed this latest amicus brief are as follows: A.G. Troy King of Alabama, Talis Colberg of Alaska, Dustin McDaniel of Arkansas, John Suthers of Colorado, Bill McCollum of Florida, Thurbert Baker of Georgia, Lawrence Wasden of Idaho, Steve Carter of Indiana, Greg Stumbo of Kentucky, Buddy Caldwell of Louisiana, Mike Cox of Michigan, Lori Swanson of Minnesota, Jim Hood of Mississippi, Jay Nixon of Missouri, Mike McGrath of Montana, Jon Bruning of Nebraska, Steve Six of Kansas, Kelly Ayotte of New Hampshire, Gary King of New Mexico, Wayne Stenehjem of North Dakota, Marc Dann of Ohio, W.A. Drew Edmundson of Oklahoma, Tom Corbett of Pennsylvania, Henry McMaster of South Carolina, Larry Long of South Dakota, Greg Abbott of Texas, Mark Shurtleff of Utah, Bob McDonnell of Virgnia, Rob McKenna of Washington, Darrell McGraw of West Virginia, and Patricia Crank of Wyoming.

    This brief by the state Attorneys General comes on the heels of last week’s congressional brief, having the largest number of co-signers of a congressional amicus brief in American history, with 250 House Members, 55 Senators and the Vice President of the United States, acting in his capacity as President of the Senate.

    In March, the U.S. Court of Appeals for the D.C. Circuit held that “[T]he phrase ‘the right of the people,’ when read intratextually and in light of Supreme Court precedent, leads us to conclude that the right in question is individual.” The D.C. Circuit also rejected the claim that the Second Amendment does not apply to the District of Columbia because D.C. is not a state. This case marks the first time a Second Amendment challenge to a firearm law has reached the Supreme Court since 1939.

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    Thanks Allen.

    A neighbor was some sort of corporate atty for DC and SCOTUS bar. I have had brief opportuities to discuss 'Heller' and SCOTUS rules but he has been either close-mouthed or not particularly interested. You have expanded nicely. Thank you.

    Thank you on the note on cost, it makes me feel good having contributed to my original gun rights organization's costs in preparing their brief - Grass Roots South Carolina.

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    Accomplished Advocate BB62's Avatar
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    Seeing the depth of the answers here to the OP question, I thought this would be the place to ask something I've wondered about since the "amicus wars" have begun in this case...

    How can various state AG's file briefs stating, presumably with a straight face,that firearm laws ought to be subject to strict scrutiny, despite the fact (well actually IMHO) their own laws would not withstand such scrutiny?


    Edited to add - and another thanks to Allen.

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    The legislatures write the law. The executive branch enforces the law and directs the AG.

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    Doug Huffman wrote:
    The legislatures write the law. The executive branch enforces the law and directs the AG.
    Legislatures write law, executives enforce law, judges interpret and review law. Sounds like very seperate powers.

    However,each branch must anticipate the others. The legislature must ensure that the law is enforceable by executives, and is also constitutional and so clear as to prevent misinterpretation. Executives must interpret the law in a similar way as to the judiciary, so that the law is not enforced in a way that contradicts with interpretation. And the judiciary in applying law is enforcing it (the executive branch actually has no inherent power to assign punishment by itself; all punishments must be assigned by a judge), and in interpreting and reviewing law is writing it. The cross-talk is necessary if anything at all is going to be done by government.

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    Liko81 wrote:
    Doug Huffman wrote:
    The legislatures write the law. The executive branch enforces the law and directs the AG.
    Legislatures write law, executives enforce law, judges interpret and review law. Sounds like very seperate powers.

    However,each branch must anticipate the others. The legislature must ensure that the law is enforceable by executives, and is also constitutional and so clear as to prevent misinterpretation. Executives must interpret the law in a similar way as to the judiciary, so that the law is not enforced in a way that contradicts with interpretation. And the judiciary in applying law is enforcing it (the executive branch actually has no inherent power to assign punishment by itself; all punishments must be assigned by a judge), and in interpreting and reviewing law is writing it. The cross-talk is necessary if anything at all is going to be done by government.
    I disagree. I'll hang my disagreement on the word 'must' and my bit of experience in assisting in very small part in the writing of laws in South Carolina; writing our law as best we could, seeing how it was interpreted by the state (police) and having to appeal to 'legislative intent' for relief from onerous interpretations. Then re-writing, for instance, the 'no gun' sign specification.

    Laws are often found unconstitutional post hoc.

    Perhaps your state does not allow interest groups involvement in the legislative process.

    Likely the root of the disagreement is in 'if anything is going to be done by government.' The best government is the least government, in the limit a benevolent tyrant government of one. Absent that, an ineffective government is preferrable to an evil government.

    Either we are equal or we are not. Good people ought to be armed where they will, with wits and guns and the truth. NRA *******

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    Your welcome and I hope it helped in understanding the process.

    ETA: Ken Hanson (attorney of record for the Buckeye Firearms Brief) says that analyzing these things is like reading tea leaves. I think it's more like reading chicken entrails!

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    Anyone want to take a stab at this question - "How can various state AG's file briefs stating, presumably with a straight face,that firearm laws ought to be subject to strict scrutiny, despite the fact (well actually IMHO) their own laws would not withstand such scrutiny?"


    BB62

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    Fairfax, Va. - The NRA is pleased to note that an overwhelming majority of state Attorneys General filed a significant amicus curiae brief with the United States Supreme Court in the case of District of Columbia (D.C.) and Mayor Adrian Fenty v. Dick Anthony Heller. This brief, supported by 31 state Attorneys General, supports the decision of the U.S. Court of Appeals for the D.C. Circuit, holding that the Second Amendment protects an individual right to keep and bear arms, and therefore that the D.C. bans on handguns, on carrying firearms within the home, and on possession of loaded or operable firearms for self-defense violate that fundamental right.

    The 31 state Attorneys General who signed this latest amicus brief are as follows: A.G. Troy King of Alabama, Talis Colberg of Alaska, Dustin McDaniel of Arkansas, John Suthers of Colorado, Bill McCollum of Florida, Thurbert Baker of Georgia, Lawrence Wasden of Idaho, Steve Carter of Indiana, Greg Stumbo of Kentucky, Buddy Caldwell of Louisiana, Mike Cox of Michigan, Lori Swanson of Minnesota, Jim Hood of Mississippi, Jay Nixon of Missouri, Mike McGrath of Montana, Jon Bruning of Nebraska, Steve Six of Kansas, Kelly Ayotte of New Hampshire, Gary King of New Mexico, Wayne Stenehjem of North Dakota, Marc Dann of Ohio, W.A. Drew Edmundson of Oklahoma, Tom Corbett of Pennsylvania, Henry McMaster of South Carolina, Larry Long of South Dakota, Greg Abbott of Texas, Mark Shurtleff of Utah, Bob McDonnell of Virgnia, Rob McKenna of Washington, Darrell McGraw of West Virginia, and Patricia Crank of Wyoming.
    Woohoo! Go Tom Corbett!

    Anyhow, I'm a bit surprised that Vermont's AG didn't sign on. Perhaps he's filing his own? I'm not surprised, though, that the AG's of DPRNY, DPRNJ, DPRIL, and DPRCA haven't signed on...

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