Heller: Can we go back if we win?

[usmarine0352_2005]

In his defense of handguns in D.C. vs. Heller, Guru agreed that "reasonable restrictions" are ok and that it's ok to ban machine guns, plastic guns (to avoid metal detectors), armored piercing bullets and other things.


If we WIN and the individual right is decided upon obviously other cases are going to be brought up to the courts, ie. machinegun ban and so forth.


Since we are now on the record saying that the 2nd Amendment does not protect machine guns, plastic guns and certain types of bullets, how can we go right back to court and say, "Nope, we were wrong in D.C. vs. Heller, machine guns and plastic pistols should be allowed?

 

[gc70]

The written decision from the court is what matters. Gura's oral arguments will carry less weight in future cases than a misplaced comma in the court's decision.

 

[RedLion]

Plastic guns?????

 

[LawBot5000]

Let me share with you the things that law students learn in legal writing 101:

• There are two types of legal authority- binding authority and persuasive authority. Things that are binding authority must be followed. Things that are persuasive authority can optionally be taken into account, if the judge wants. For example, a prior case in the 11th circuit is binding on the 11th circuit judges but it is only a persuasive authority for other circuits that haven't decided the matter yet. If they have decided the matter already, their prior decisions are the binding authority. State, local and federal statutes are also sources of law, as are state and federal constitutions, county charters, etc etc.
• Oral arguments aren't even persuasive authority. They aren't anything. A lawyer isn't bound by his own previous oral arguments. Once Scalia (or maybe Rehnquist) called a lawyer out for arguing the opposite of what he had argued once before- he said "I think better when I'm paid better." They all laughed. Gura could have argued that eating children is legal and even if the court decided for Heller, what he said would have no legal weight.
• Questions not before the court that get discussed in the opinion are not binding either. They are what is called dicta. Now obviously a good lawyer is going to try to paint the dicta as part of the decision or paint parts of the decision as being dicta, but generally speaking, stuff not relating to why the DC ban is unconstitutional are going to be irrelevant to future judges.

Here, the source of law is the US Constitution. As has been mentioned elsewhere, it is the supreme law of the land. This means that whatever the supreme court decides the 2nd amendment means is going to be pretty much set in stone. The only way to undo it is for the supreme court to revisit the subject somehow (there are all sorts of way to overturn opinions without overturning them, see Wisconsin Right to Life v FEC "upholding" McConnell v FEC) or for us to amend the US constitution. If we get what we are expecting from them, this is very good. If we fail, this is very damaging.

But we are certainly free to come back and apply the Supreme Court's decision in US v Heller to reach whatever legal result we want. The antis will do their best to construe it as allowing every regulation conceivable and we will try to construe it as forbidding them.

 

[icebones]

i've never seen a plastic gun, please Mr. Heller, i would like you to show me an example of your so-called "plastic gun"

oh you mean glocks, HK's, S&W mp series, springfield XD's---
what about the slide, barrel, striker and springs. thats metal Mr Heller...


and for the point on armor piercing bullets, nothing is bulletproof, only bullet resistant.
and a .50bmg is simply what it is, just another rifle, show me ONE single case where a .50 was used in crime, i'll be waitin'


a machinegun, wait a minute arent all guns machines? oh you mean fully automatics? (you can see where im goin here)

 

[usmarine0352_2005]

Yes, I know about the fallacy of plastic guns, armor piercing bullet (a .30-06 could be considered "armor piercing", it will go thru most of today's bullet proof (resistant) vests.


My main question was about what was said either orally or in our amicus brief or other such things.


Can they be used against us later, since we are the ones who stated it, especially if it's written by us.

 

[LawBot5000]

Please read my post and stop rehashing the issue again and again.

Counsel can make any legal argument they want during oral arguments and they won't be estopped from coming back and making a different one in the next case.

The only thing that matters is what the judges put in their opinion. That is what will limit the arguments they can make next time.

 

[ClonaKilty]

Thank you, Lawbot, for shining light on the process. That is what I thought was the case (i.e., oral arguments mean nothing in terms of future cases) but it is good to see it confirmed by someone knowledgeable.

 

[Jamie C.]

I think some of you are still having a little trouble grasping the basic concept here:

NOTHING except the court's final ruling matters at all. Not the oral arguments, not the written briefs, not even what the judges discuss either amongst themselves or in oral arguments.

All of that other stuff is just information that the Justices may or may not think about and consider on their way to that final decision.

Also, an argument that is presented to them and dismissed this time may very well be presented again in some future case and accepted, or vis versa. It just depends on the situation and circumstances of what they're considering.



J.C.

 

[Titan6]

Plastic guns were the only guns that were banned before they actually existed.

 

[goalie]

NOTHING except the court's final ruling matters at all. Not the oral arguments, not the written briefs, not even what the judges discuss either amongst themselves or in oral arguments.

Exactly. The written opinion of the court is the interpretation of the 2nd that all the courts will have to abide by. Period.

The 9th can't use oral arguments to base a decision on, if that's what you were worrying about. They have to base future decisions on the ruling by the USSC (if it applies) or risk getting the legal smack-down, something which they appear to be quite familiar with.

 

[IllHunter]

I may own one...or two... or three...

In the eary eighties, I bought my first Glock and rumor had it then,that if you took the metal slide off and taped it under your arm, it would pass thorugh a metal detector. That said, I've never tried it, even before 9/11 I felt that the risk/reward ratio was way off. After 9/11 it was moot. I talk guns alot, here and elsewhere and this hasn't come up since 1984. Now the hot shot attorneys are talking about it in the USSC! Has something slipped by me? Is there another "plastic" gun they're referencing, or have they just dusted off that "old saw" for the show? Perhaps it works and the 29idiots were wrong to use box cutters. If the metal detectors can detect the tiny titanium screws in my brothers ankle, how can anyone with a working brain believe that the 1pound .06 oz lump of steel that is the Glock slide/barrel would go undetected?

The use of this term "plastic gun" only demonstrates the users ignorance of guns.

 

[usmarine0352_2005]

Please read my post and stop rehashing the issue again and again.

Counsel can make any legal argument they want during oral arguments and they won't be estopped from coming back and making a different one in the next case.

The only thing that matters is what the judges put in their opinion. That is what will limit the arguments they can make next time.

Your first answer was descriptive but also confusing. I appreciate your response. If you had all of that and then added, thus the answer is yes or no, I would have understood.

I think some of you are still having a little trouble grasping the basic concept here:

NOTHING except the court's final ruling matters at all. Not the oral arguments, not the written briefs, not even what the judges discuss either amongst themselves or in oral arguments.

All of that other stuff is just information that the Justices may or may not think about and consider on their way to that final decision.

Also, an argument that is presented to them and dismissed this time may very well be presented again in some future case and accepted, or vis versa. It just depends on the situation and circumstances of what they're considering.



J.C.

J.C. thank you. This I can understand. I'm just a simple person, not a lawyer, so sometimes what is written is out of my grasp.

 

[Blackbeard]

The Court is likely to issue a narrow ruling, meaning that they won't rule on the reasonableness of machine gun bans. They'll only rule that a total handgun ban is unconstitutional, and leave open the question of where the upper bounds of "reasonable regulation" lies.

 

[Dallas239]

My main question was about what was said either orally or in our amicus brief or other such things.


Can they be used against us later, since we are the ones who stated it, especially if it's written by us.

I don't know who "our" and "us" refer to in your post. Are you one of the Heller plaintiffs or attorneys or author of an amicus brief? Gura was up there representing a client and a particular position. He wasn't arguing on behalf of everyone in the US who nominally agrees with him.

If you (through your attorney) go to the Court, you may argue whatever you like. And while Gura's future arguments in this case might be somewhat constrained, if he goes back with a different client and issue, he can say pretty much whatever he wants.

 

[Bobarino]

Gura's oral arguments about anything but the DC ban won't matter one whit in the end. the decision will likely be very narrow and probably won't even touch upon machine guns, registration, licenses, armor piercing bullets etc.

remember this is the only question at hand in the case;

“Whether the following provisions — D.C. Code secs. 7-2502.02(a)(4), 22-4504(a), and 7-2507.02 — violate the Second Amendment rights of individuals who are not affiliated with any state-regulated militia, but who wish to keep handguns and other firearms for private use in their homes?”

all that other stuff will come at later dates. the SCOTUS is only going to rule on the DC statutes this time around.

Bobby

 

[LawBot5000]

The court's reasoning will be important. Realistically I don't think they will foreclose any future cases, but they could if it is required to get 5 votes. Ie- Scalia or Kennedy says "I will buy into this but only if no one can bring up plastic guns/AP handgun bullets/MGs." And then the decision would adopt reasoning that would absolutely foreclose some future issue. But this would be very unlikely.

Realistically I don't think the majority will be that worried about it. On the contrary, I think everyone recognizes that the lower circuits are more likely to be very deferential to legislatures in this area, so anything other than an ironclad strong individual right is going to result in NOTHING being struck down. The 9th circuit isn't going to go out of its way to find CA's AWB unconstitutional so I suspect any reasoning that allows it to survive would have that effect. I hope that the justices proceed with awareness of how the lower circuits are likely to apply the decision.

 

[icebones]

but you have to think: people like heller have no common sense, especially with guns.

 

[Ivy Mike]

In defense of the plastic guns comment, I think Heller and his lawyers understand quite well that there are no "plastic" guns. They are simply throwing a bone to the Bradys to avoid having to go into petty details.

 

[Jim March]

Chuck Michel is one of the top California RKBA lawyers, working directly with the NRA, NRA Member's Council chapters and CRPA (California Rifle and Pistol Association).

I've heard him speak with approval about a series of EIGHT federal supreme court cases brought in rapid succession by a single organization. This group carved out a whole body of case law regarding freedom of speech and freedom of religion across the 1930s and '40s. Each case was carefully crafted to bite off "an additional chunk" of what they needed and no more. And they won every case.

The organization was a religion: the Jehovah's Witnesses. They needed the right to sell religious literature door to door without need of a "peddler's permit", the right to not salute the flag in schools, all sorts of things. And they got 'em.

In reading the Heller transcript, it looks to me like Gura was following that gameplan. He knew that additional cases would be needed for full-auto, for state-level laws (incorporation of the RKBA via the 14A) and much more.

I'm not necessarily saying he's right...but...there's a fair chance this "JW gameplan" is the right choice. My only problem with it is that this court is on the elderly side and it's likely we're going to have a grabber president for four to eight years coming soon.

 

[LawBot5000]

I thought of it as the NAACP game plan, but it sounds like you have the right idea.

 

[El Tejon]

The NAACP plan was preconditioned on Old Media lobbying/forcing the federal judiciary to give them whatever they wanted. We do not have such an ally as Old Media wants us destroyed.

The JW precedent will be much more productive. It is a matter of money. Look how much whining there is here at THR in response to NRA-ILA solicitations. Just wait until they discovery how expensive litigation is.

 

[riverdog]

Since we are now on the record saying that the 2nd Amendment does not protect machine guns, plastic guns and certain types of bullets, how can we go right back to court and say, "Nope, we were wrong in D.C. vs. Heller, machine guns and plastic pistols should be allowed?

Who's this "we"? "We", whoever that is weren't there, only Gura was there and he wasn't representing us, he was representing one client with the limited goal of getting individual rights recognized and allowing handguns in DC.

Since machine guns, plastic guns and certain types of bullets weren't the issue of Heller v DC, if another 2nd Amendment case comes along regarding another topic that may have been discussed in Heller, that case can and will address those issues.

 

[KD5NRH]

In defense of the plastic guns comment, I think Heller and his lawyers understand quite well that there are no "plastic" guns. They are simply throwing a bone to the Bradys to avoid having to go into petty details.

Yup; let 'em ban all the metal-detector-proof guns they want and maybe they'll miss some more of the real guns.

Throw them all the flintlock machine guns too.

 

[icebones]

this has nothing to do with the DC handgun ban, but think about this.

instead of calling them "high capacity" mags

call 'em standard capacity. a simple play on words can mean a big diffrence.