I'm reading the new DC district court decision.
I have just enough legal knowledge to be a danger to myself and those around
me, and these thoughts are not highly processed. Caveats everywhere.
In the limited experience I've had with court cases in which I've been
involved, where I've done the writing of memoranda either entirely by myself
or largely so, the most frustrating experience is when the decision comes
out and the judge just plain *ignores* a solid argument. I flatter myself to
think that it's usually because he or she can't effectively show it to be
wrong, so to arrive at a pre-determined result the easy way, they ignore it.
It's infuriating.
Now, I understand that judges can't produce masterpieces of legal reasoning,
ready to be carved into the walls of the Judicial Hall of Fame, every time
they're asked to rule on a summary judgment motion. But here, the judge
*knows* that it's going to be appealed by whichever side loses, and thus
subject to scrutiny. In fact, he presumably knows that this case is being
deliberately set up for a run up to the supremes, and has a fighting chance
of getting there. Were I the judge in such a case, I'd work extra hard to be
sure that my opinion wasn't going to be the object of scorn for amateurish
errors, simple oversights, sloppy logic, etc. I may not get it right, as
eventually judged by reviewing courts, but by gum, I wouldn't make myself an
easy target for derision.
I'm egotistic enough that I'd also think, Hmmmm. When the SC gets a case, it
often quotes heavily from the district court's opinion, and then either
dismisses it with corrective language, or endorses it. If the district court
got it right, its language effectively becomes the SC's language, and gets
quoted everywhere. And even if nobody remembers that I wrote the words that
are the dispositive language in a SC decision, I'd love it. This case has a
far better than average chance of getting SC cert, so I'd better be sure
I've got the merits right. And, damn, if I can think of a really great
Posner-esque way of phrasing the thing, I'm going to do it. Think in
quotable phrases. Think in quotable phrases. Think in quotable phrases.
(And just how many judicial decisions have you written, Dr. Woolley? Well,
exactly zero, of course. I'm like the movie critic who's never been to film
school.)
Here's what I'm talking about:
Plaintiffs suggest that Miller may simply have proposed a test
to separate weapons "covered" by the Second Amendment from weapons
"not covered" by the Second Amendment. Cf. Fraternal Order of
Police v. United States , 173 F.3d 898, 906. (D.C. Cir.
1999)(raising the question of the potential meaning of the Miller
test).
While plaintiffs' arguments are not without merit, if the
Supreme Court truly thought that Miller was being read to stand for
a proposition much greater than the Court intended, it surely would
have taken one of the opportunities it has had in the last sixty-five
years to grant certiorari and correct the misunderstanding.
This Court is thus reluctant to accept plaintiffs' reading of
Miller .
Now, the judge has earlier quoted the famous lines from Miller:
... we cannot say that the Second Amendment guarantees the right to keep and
bear such an instrument. Certainly it is not within judicial notice that
this weapon is any part of the ordinary military equipment or that its use
could contribute to the common defense.
Certainly the facial reading is that the court *is* talking about THE GUN. I
don't know how you can escape the implication that, if it *were* within
judicial notice that the weapon was part of the ordinary military equipment,
the legal conclusion about 2A protection might come out differently. I admit
my bias, but, damn--isn't that just obvious?
So this judge reads the briefs where the plaintiffs make that argument
forcefully and at length, admits that he's looking at a precedent from his
own circuit that at least acknowledges the argument as plausible, and with
what substance does he refute it?
With the argument that if the Supremes had thought it was being
misunderstood by the other circuit courts, they'd have accepted cert and
straightened things out.
I ain't even been to pre-law, and I know that, much as we all might think
that such reasoning has some validity, you DON'T BASE FORMAL LEGAL
CONCLUSIONS ON IT! I've read some of the nasty swipes the SC takes when such
a suggestion is made, and *even if I thought the reasoning was correct*, I
wouldn't sign my name to it in a decision that they might be reading before
too long.
But even beyond the argument's tendency to call down shame and ridicule on
the one making it so openly, the real scandal of it is how it completely
ducks the merits of the argument. The *only* reason I can think of that one
would take such a wimpy way out is that he recognized that the argument was
a damn good one, and didn't know how to confront it head-on. So he
sidestepped it. But it wasn't the graceful sidestepping of a champion
bullfighter, whisking the red cape away as he smoothly directs the charging
horns away from his tender bits. It's terribly, terribly clumsy. It's using
one of the weakest arguments at his disposal. And I don't understand it.
Everyone here knows the important "argument from absence" about Miller;
i.e., if the Supreme Court had thought that only a member of the militia
could claim 2A protection, it would not have bothered going into its
analysis of whether the weapon in question was useful to a militia (a
question on which it had no information). Here, plaintiffs certainly made
that point very clearly, but the judge ignores it. Again, I understand that
the judge can't always respond to every point each party makes. But if
you're seriously wrestling with how to construe Miller, there's no
intellectually honest way to say nothing about this point--it's absolutely
essential to seeing whether the other circuit courts have got it right.
Instead of reasoning from the Supreme Court's decision, he hides behind what
he *thinks* the DC circuit court would decide if faced with that question
(pp. 12-13)! Again, it seems that the dodge can only be because he couldn't
think of a convincing counter. But again--why such a wimpy way of doing it?
Who the hell argues from the authority of a case that hasn't been written
yet? (Well, excepting when federal courts have to guess at how a state
supreme court will construe a state statute. But that's not the situation
here.)
He also pretends that the plaintiffs didn't tell him about all of the SC
cases in which, even if in dicta, there's an unmistakable sense that the 2A
is being treated as an individual right. Just completely ignores that entire
line of thought. Again, if I thought my decision might be heading up their
stairs, I think I'd want to quote them liberally. Of course, doing so here
would mean arriving at a different conclusion. But I would think to myself,
well, if they stick with what they've been saying about the 2A being an
individual right, I'll be right when they review me. And if they reverse me,
at least they won't be able to say that I ignored the clear signals they
were sending.
Second criticism. Again, if I were issuing an opinion I knew was going to
come under heavy scrutiny, I'd have the sharpest legal secretary in the
building go over it for grammar, punctuation, spelling, etc. Wouldn't you?
If this judge did that, how did we get, e.g.,
The two judge majority (instead of "two-judge majority") (at least five
times)
and
saw-off shotguns (instead of "sawed-off shotguns")
Sloppy writing and editing prejudices me to think that not much care was
taken. It reflects poorly on the author.
(If I were teaching a college class, the students would hate me, because I
absolutely would grade down their papers for non-ortho orthography.)
Well, anyway, congratulations are in order (paradoxical as it may seem) to
Levy, Gura, et al. They succeeded in doing something that nobody else has
done, well, *ever*, really: they got a dismissal on exactly and purely the
2A issue that they wanted, with a nearly ideal set of plaintiffs. It's de
novo review at each level hereafter, so losing doesn't really put you
behind, and gains the benefit of the reply brief, whatever that's worth.
1:00 a.m. I guess I can stop ranting now.
--
Bob Woolley
St. Paul, MN
[EMAIL PROTECTED]
"If I care to listen to every criticism, let alone act on them, then this
shop may as well be closed for all other businesses. I have learned to do my
best, and if the end result is good then I do not care for any criticism,
but if the end result is not good, then even the praise of ten angels would
not make the difference."
-- Abraham Lincoln
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