Tuesday, June 17, 2008

More Heller Commentary

Bob Levy, one of the attorneys who orchestrated and financed the landmark Heller (formerly Parker) challenge to the D.C. gun ban, comments on the upcoming decision, and gives a recap of the circumstances surrounding the Supreme Court's 1939 Miller decision:
This month, the U.S. Supreme Court is expected to decide District of Columbia v. Heller, the most important Second Amendment case in the court's history.
Does the right to keep and bear arms belong to us as individuals? Does that right extend to private use of arms? Or does the Second Amendment simply authorize the states to arm the members of their militias? The court will have to answer those threshold questions before deciding whether the D.C. gun ban is constitutional. Given the bizarre history of the Miller case, its dubious analysis and inconclusive result, about the only guidance Miller offers is how not to go about setting a Supreme Court precedent.

In Miller, two mobsters, Jack Miller and Frank Layton, were indicted for transporting a sawed-off shotgun across state lines, in violation of the 1934 National Firearms Act. Neither Miller nor Layton was charged with firing the gun or committing any crime involving use of the gun. They were indicted for a technical violation of the registration and tax requirements of the Act.

When the lower court held that the NFA violated the Second Amendment, the U.S. government appealed to the Supreme Court. There, the case took a strange turn. The court gave Miller's counsel, Paul Gutensohn, a mere two weeks to submit his written brief and prepare for a grueling interrogation by the justices. Gutensohn, who was court-appointed and had not been compensated, replied he had received neither the government's brief nor a copy of the trial record. He said he wanted to file a brief, but doubted he could travel all the way to Washington, D.C., for oral argument.

The court then offered Gutensohn a delay until late April. Apparently exasperated, he declined by telegram: "Suggest case be submitted on [government's] brief. Unable to obtain any money from clients to be present and argue case." Gutensohn's proposal - that only the government's brief would inform the court, with no response by the defendants - was arguably malpractice and surely contrary to his clients' interests. He should have asked that new counsel be appointed and that the argument be further delayed if necessary. That would have offered a semblance of due process to Miller and Layton. More important, it would have ensured that the crucial Second Amendment question would get a full briefing and fair hearing before the court. In any event, Miller and Layton had no written brief to support them, and no legal representation at oral argument.
Read the rest here.

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