amicus briefs

Uncategorized

Old Enemies Become Friends

August 14, 2024 by 1 Comment

I saw something put out yesterday by NRA-ILA that brought back memories.

If you have ever read Adam Winkler’s book Gunfight: The Battle over the Right to Bear Arms in America (#commission earned), you know there were those within the NRA that tried to discourage the Heller case. The fear was that a loss in the Supreme Court would forever end the Second Amendment as an individual right. Nonetheless, Alan Gura, Bob Levy, and Clark Neily persisted and the case went to the Supreme Court where it was won.

Alan Gura has since moved on to become the VP for Litigation at the Institute for Free Speech. He is the lead counsel on an amicus brief supporting the respondents in a case before the US Supreme Court. That case, Lackey v. Stinnie et al, deals with entitlement to attorneys fees in civil rights cases and preventing the government from strategically mooting cases to avoid paying these fees.

From ILA:

The issue before the Court is whether plaintiffs who win a preliminary injunction granting their requested relief are “prevailing parties” under 42 U.S.C. § 1988(b)—and thus entitled to attorney fees—when that injunction is never reversed. The amici argue that if such plaintiffs are not “prevailing parties,” governments that violate constitutional rights would be able to avoid attorney fee awards by strategically mooting cases. This would embolden abusive governments and discourage public interest litigation. By contrast, requiring the government to pay attorney fees for violating constitutional rights deters such violations and ensures that civil rights plaintiffs can afford to vindicate their rights through litigation.

Joining the NRA and Institute for Free Speech as amici in this brief are Southeastern Legal Foundation, Cato Institute, New Civil Liberties Alliance, Liberty Justice Center, and Second Amendment Foundation.

I am glad to see old adversaries now cooperating. Even more important is the NRA’s win in NRA v. Vullo which dealt with free speech and governmental coercion intended to suppress it. There is no question the case was a win for the NRA but it was also remanded back to the Second Circuit for further proceedings. There is nothing to say New York State won’t adopt a law or regulation that would effective moot this case. Attorneys have told me it can cost upwards of $1 million (or more) to bring a case up through the courts and be heard by the Supreme Court. It would be nice to have New York’s Department of Financial Services have to pay this back to the NRA.

Uncategorized

How Not To Win Friends And Influence Justices

August 14, 2019 by 5 Comments

Sen. Sheldon Whitehouse (D-RI) considers himself worthy of authoring an amicus brief for a case before the Supreme Court. He should think again. Despite a long legal career before being elected to the Senate which culminated with him serving as both the Attorney General of Rhode Island for one term and before that as the Clinton-appointed US Attorney for Rhode Island, his brief in NY State Rifle and Pistol Association v. City of New York is a polemic and not an argument.

Moreover, as the son and grandson of diplomats, you would have thought somewhere along the line it would have rubbed off on him how to be diplomatic towards those that matter. Daddy served as deputy ambassador to the Republic of Vietnam followed up as the ambassador to Laos and then Thailand. Granddad was ambassador to Guatemala and Colombia and served earlier on the commission that wrote the Treaty of Versailles.

Whitehouse was joined in this polemic, I mean amicus brief, by Senators Dick Durbin (D-IL), Mazie Hirono (D-HI), Richard Blumenthal (D-CT), and Kirsten Gillibrand (D-NY) who are all lawyers by training. They begin the brief arguing that the NYSRPA, the petitioners, are asking the Court to be their allies in ” a “project”
to expand the Second Amendment and thwart gun-safety (sic) regulations.” They continue that it is no wonder polls show the Supreme Court is “motivated mainly by politics.” It goes downhill from here.

They then argue that it was the National Rifle Association, the Federalist Society, and other conservative groups fought to make sure that Justices Gorsuch and Kavanaugh would be on the Court to “break the tie” in favor of the Second Amendment. It goes on to say about the Federalist Society:

The Society counts over eighty-six percent of
Trump administration nominees to the circuit courts
of appeal and to this Court as active members. It is
not yet clear who the powerful funders are behind
Leonard Leo and the Federalist Society judicial
selection effort, nor what took place as the Federalist
Society was “insourced” into the Trump
administration’s judicial selection process.5 But
massive political spending and secrecy are rarely a
salubrious combination.

In other words, these fine senators are pissed off that President Trump has nominated active members of an organization dedicated to an interpretation of the Constitution that preserves the original meaning. They would much prefer those of the Living Constitution stripe.

This brief then goes on to attack the amicus briefs in favor of the NY State Rifle and Pistol Association implying that they are stooges of the NRA. Eight of the amici are affiliated with the NRA. However, most of those are from only one amicus brief – that of the National Sheriffs Association. Then, heaven forbid, a number of amici are 503(c)(4) social welfare organization who are not required to disclose their donors. As the secretary of the Maryland Democratic Party might note, this makes them harder to dox. Of course much of this is ludicrous. Accusing groups like the Pink Pistols and GOA of being stooges of the NRA is laughable.

Whitehouse ends Section I of the brief with this.

Out in the real world, Americans are murdered
each day with firearms in classrooms or movie
theaters or churches or city streets, and a generation
of preschoolers is being trained in active-shooter
survival drills. In the cloistered confines of this
Court, and notwithstanding the public imperatives of
these massacres, the NRA and its allies brashly
presume, in word and deed, that they have a friendly
audience for their “project.”

You might think Whitehouse might now try to curry favor with the justices in Section II and you’d be wrong. After a few paragraphs saying how the Court shouldn’t be answering moot questions and legislating from the bench, he then accuses the Court’s majority of being the tools of big business, the GOP, and fat cats.

Recent patterns raise legitimate questions about
whether these limits remain. From October Term
2005 through October Term 2017, this Court issued
78 5-4 (or 5-3) opinions in which justices appointed by
Republican presidents provided all five votes in the
majority. In 73 of these 5-4 decisions, the cases
concerned interests important to the big funders,
corporate influencers, and political base of the
Republican Party. And in each of these 73 cases,
those partisan interests prevailed.

Then he accuses the petitioners of engaging in strategic “faux litigation”. What he is speaking of is strategic civil rights litigation with carefully chosen plaintiffs and with the purpose of building precedent. The interesting historical aspect of this is that the model for this strategic litigation was none other than the NAACP Legal Defense Fund run at the time by future Justice Thurgood Marshall.

For example, we have seen flocks of
“freedom-based public interest law” organizations
that exist only to change public policy through
litigation, and which often do not disclose their
funders. We have seen behavioral signals, like
litigants who rush to lose cases in lower courts “as
quickly as practicable and without argument, so that
[they] can expeditiously take their claims to the
Supreme Court” (ordinarily, in litigation, litigants
seek to win).
Almost invariably, and as we have seen in this case, such plaintiffs are accompanied by
throngs of professional amici, whose common funding
sources and connections to the organizations behind
the supposed party-in-interest are obscured by
ineffective disclosure rules.

Instead of being flattered, Whitehouse seems to say how dare these dirty, low down conservatives imitate the tactics and strategies of the Left!

He then ends the brief with a threat.

The Supreme Court is not well. And the people
know it. Perhaps the Court can heal itself before the
public demands it be “restructured in order to reduce
the influence of politics.” Particularly on the urgent
issue of gun control, a nation desperately needs it to
heal.

Whitehouse is no FDR but he thinks his threat of packing the Court is going to sway it. His demeaning attitude should irritate even the most ardent liberals on the Court. Whether this case is ultimately dismissed as moot or not, there will be more cases that have even more impact for Second Amendment rights that are now or soon will be in the pipeline.

UPDATE: I’m not the only one who found Whitehouse’s brief to be a polemic and not a real argument. Prof. William Jacobson at Legal Insurrection covered it as well. Note the comments. I agree with the person who said ” The Court should strike the brief without a right to refile an amended brief, and impose sanctions.”

Uncategorized

It Was A Big Day For Amicus Briefs

May 15, 2019 by

Monday and Tuesday were big days for amicus briefs in NY State Rifle & Pistol Association et al. v. City of New York. By my count, there were 25 briefs submitted pro and con but mostly in favor of NYSRPA. Obviously, when you have 25 briefs that is a lot of reading. I haven’t even begun to start.

In Favor of New York City

In Favor of Neither Petititioner

In Favor of NY State Rifle and Pistol Association

The counsels of record for the petititioners (NYSRPA) read like a who’s who of Second Amendment attorneys. You have Alan Gura, Stephen Halbrook, Dave Kopel, Don Kilmer, Stephen Stamboulieh, David Jensen, Dan Schmutter, Dave Hardy, and the list goes on. If you have been following Second Amendment law for the last 10-15 years you would have come across them one way or another.

Uncategorized

Plain Meaning Of Statutory Terms? I Don’t Think They Understand The Term

March 12, 2019 by 1 Comment

The Giffords Law Center to Prevent Gun Violence, otherwise known as the Cult of Personality’s Legal Arm, has filed a notice that they will be filing an amicus brief in Guedes et al v. BATFE et al. This is the bump stock ban case that is on appeal to the US Court of Appeals for the DC Circuit after the denial of a temporary restraining order. The amicus brief will be in support of the government’s position.

Pursuant to D.C. Circuit Rule 29(b), Giffords Law Center to Prevent Gun
Violence (“Giffords Law Center”) hereby gives notice that it intends to file a brief
in this matter as amicus curiae in support of Defendant-Appellees. Giffords Law
Center focuses specifically on firearms policy and the plain meanings of statutory
terms, highlighting Appellants’ reasoned approach to and the pressing need for
bump stock regulation. All parties have consented to the filing of this brief.

Beyond the fact that the BATFE are the appellees and this notice highlights”Appellants’ reasoned approach”, to say that Giffords Law Center focuses on “the plain meanings of statutory terms” is an oxymoron. The National Firearms Act is clear on the definition of a machine gun and the BATFE’s own expert from the Firearms Technology Division Richard Vasquez got it right when he said bump stocks were not machine guns.

The rule from BATFE and the DOJ justification of it were made up from whole cloth. Both the NFA Handbook and ATF Ruling 2006-2 are clear on the definition of a machine gun and a bump stock doesn’t meet that definition. Congress was clear in what they meant in their definition of a machine gun and that is the real plain meaning.

Uncategorized

Anti-Gun Law Professors Pen Amicus Brief In Bushmaster Lawsuit

April 20, 2017 by 11 Comments

Thirteen law professors have penned an amicus brief supporting the plaintiffs in Soto et al v. Bushmaster et al. This is the Connecticut state case where Bushmaster, the distributor, and the FFL are being sued for negligent entrustment for selling an AR15 to the Newton murderer’s mother. The case is before the Connecticut Supreme Court on appeal after it was dismissed at the superior court level where the judge said negligent entrustment did not apply.

From the Connecticut Law Tribune:

While a state Superior Court previously ruled negligent entrustment doesn’t apply in this case, the professors’ brief claims the “flexible tort has been applied to a range of domains, including firearms.”


The brief’s co-author, Stanford law professor Nora Freeman Engstrom, said negligent entrustment boils down to one question. “That is, did the defendant take adequate precautions given the magnitude of the foreseeable risk? And, here, the jury might ultimately find the defendant failed to take adequate precautions in their sale of military grade assault weapons to an untrained civilian population.”


Negligent entrustment occurs when a party provides a product to another party knowing the receiving party may injure someone.

The first case cited in their brief is State v. Skakel in support of their argument for a “flexible tort”. That was the murder case involving the Kennedy cousin who may or may not have killed a 15 year old girl with a golf club. As things would have it, Michael Skakel’s original attorney was my mom’s first cousin and the Skakel family attorney. How weird is that?

Among the group of attorneys on the brief is Prof. John J. Donohue III of Stanford University. Prof. Donohue is best known for his attacks on John Lott’s research.

Uncategorized

There Are Amicus Briefs And Then There Is This One

March 29, 2014 by 5 Comments

Amicus briefs are intended to be a way for interested parties to point out relevant aspects of the law to the judges or justices hearing a case. In the Second Amendment realm, the pro-2A amicus briefs come from the NRA, the Second Amendment Foundation, GOA, or other groups or individuals interested in securing the right to keep and bear arms. Conversely, the amicus briefs from those who take a more restrictive view would come from the Brady Campaign, the Law Center to Prevent Gun Violence, and others of their ilk. All of these briefs tend to cite relevant law pro or con to support their arguments. Even the best written of them tend to be, to put it politely, boring.

But what about in other constitutional realms? They, too, tend to be boring. Thus, the brief submitted by the Cato Institute and P. J. O’Rourke in support of the petitioners in the case of Susan B. Anthony List, et al v. Steven Driehaus, et al stands out. It is, frankly, a hoot to read. While ostensibly written by Ilya Shapiro of the Cato Institute, one gets the feeling that it was heavily edited by P. J. O’Rourke. How else could you explain the first footnote?

Pursuant to this Court’s Rule 37.3(a), letters of consent
from all parties to the filing of this brief have been submitted to
the Clerk. Pursuant to this Court’s Rule 37.6,
amici
state that
this brief was not authored in whole or in part by counsel for
any party, and that no person or entity other than
amici
made a
monetary contribution its preparation or submission. Also,
amici
and their counsel, family members, and pets have all won
the Congressional Medal of Honor.

That sets the tone for the rest of the brief which speaks to such things as truthiness. Included are such gems as the following:

  • After all, where would we be without the
    knowledge that Democrats are pinko-communist
    flag-burners who want to tax churches and use the
    money to fund abortions so they can use the fetal
    stem cells to create pot-smoking lesbian ATF agents
    who will steal all the guns and invite the UN to take
    over America?

  • Driehaus voted for Obamacare, which the Susan B.
    Anthony List said was the equivalent of voting for taxpayer-
    funded abortion.Amici
    are unsure how true the allegation is given that the healthcare law seems to change daily, but it
    certainly isn’t as truthy as calling a mandate a tax.

  • It is thus apparently illegal in
    Ohio for an outraged member of the public to call a
    politician a Nazi or a Communist—or a Communist
    Nazi,     for that matter. That is no exaggeration: the
    law criminalizes a misstatement made in “campaign
    materials,” which includes “public speeches.”

  • Even in the absence of the First Amendment, no
    government agency could do a better job policing
    political honesty than the myriad personalities and
    entities who expose charlatans, mock liars, lambaste
    arrogance, and unmask truthiness for a living.

  • Politicians who are caught lying about
    themselves or others regularly attract more attention
    from the press than the subject of the original lie.
    The typical outcome is that the lie or cover up
    becomes more important than the original accusation
    or offense. And that dynamic predates smartphones
    and their latest “apps.” The impeachment of
    President Clinton was not based on any sexual
    activities he might have engaged in with Monica
    Lewinsky, but over the attempt to cover it up.
    Similarly, President Nixon’s resignation was
    prompted by his obfuscations rather than his
    orchestration of a third-rate burglary. And if this
    Court isn’t yet convinced of this point, amici have
    but two words more on the subject: Anthony Weiner.

Read the whole thing and make sure you read the footnootes. You just have to wonder who is laughing harder – the law clerks or the justices of the Supreme Court.

Uncategorized

Support For Kachalsky Petition From States

February 14, 2013 by 1 Comment


Attorney Generals from 20 states have filed an amicus brief in support of the Second Amendment Foundation’s petition for a Writ of Certiorari before the US Supreme Court. This brief is in addition to supporting briefs from the NRA, the Cato Institute, and others.

BELLEVUE, WA – Twenty state attorneys general have filed an amicus brief to the U.S. Supreme Court in support of the Second Amendment Foundation’s petition for a Writ of Certiorari in a case challenging New York’s gun permitting statute, along with several other interested parties that have filed their own briefs.

The case is known as Kachalsky v. Cacace and was argued before the Second Circuit Court of Appeals. SAF is represented by attorney Alan Gura, who won both the Heller and McDonald Second Amendment cases before the Supreme Court.

“We are delighted at the support being shown by attorneys general in Alaska, Alabama, Florida, Oklahoma, Nebraska, New Mexico and 13 other states, and particularly for the leadership of Virginia Attorney General Kenneth Cuccinelli in bringing them all together,” said SAF founder and Executive Vice President Alan Gottlieb. “This case is all about an individual’s right to carry a firearm outside the home for personal protection, and it is gratifying to see so much support.”

In addition to the brief filed by the attorneys general, supporting amicus briefs have also been filed by the Center for Constitutional Jurisprudence represented by former Attorney General Edwin Meese III, the National Rifle Association represented by former Solicitor General Paul D. Clement, plus the American Civil Rights Union, Academics for the Second Amendment, Cato Institute, the Second Amendment Preservation Association, New Jersey Second Amendment Society and Commonwealth Second Amendment, Inc.

“This is an important case,” Gottlieb said, “and that’s why so many parties are interested and supportive of our issue.”

SAF and the five individual plaintiffs are challenging whether the state can arbitrarily restrict the Second Amendment right to bear arms outside the home by requiring people to prove a special need to the satisfaction of a government official.

“Our case is about equal protection and the arbitrary authority of government officials to essentially decide on a whim whether average citizens can have the means of self-defense outside the confines of their home,” Gottlieb said. “Most crimes happen away from the home, and it is in public places and on public streets where a citizen is most likely to encounter a life-threatening situation where he or she might have to defend themselves.”

UPDATE: Dave Hardy of the Of Arms and the Law blog has links to all the pro-Kachalsky amicus briefs. You can find them here.