Heller II trial court rules for DC 3/26/10

CypherPunk said:

Millett's intelligence stood out. The attorney speaking over the judge started to make we wince.

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Yeah, that was pretty painful to listen to. And it didn't really seem that D.C.'s attorney was being very forthright in her answers. A couple times, as I remember, she was asked the same question again and continued to equivocate.

Fingers crossed.

At about 1:04 the DC attorney reveals that a purpose of the 1 in 30 law is to suppress the number of guns in the home to prevent suicide, firearms accidents involving children, etc.

In other words she concedes that the law's suppression of the fundamental right in the interest of public safety is a goal of the legislation. This is what Heller l said the government cannot do.

I am appalled at the lack of decorum of the DC attorney. She talked over several entire questions from the bench, interrupted constantly, and kept avoiding difficult unanswered (and perhaps unanswerable) questions by 'moving on' to her next items.

esqappellate said:

When a judge speaks, the advocate *stops talking* (in mid-word if necessary) and "listens.* A hot bench is a good bench......(snip)
........Prepare for an argument for days (eat the time if necessary, this is your professional reputation at stake) and *always* have a moot court (my moots typically last hours). Conduct your argument the night before in front of mirror,*out loud* so you can hear yourself. Practice a turn of phrase you will want to use.

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Sincere thanks esqappellate for the legal education. I will never argue a case at the appellate or any other level but I can appreciate an education for its own merits. Thank you for all your incites.

Listened to the audio:

Mr. Halbrook, among other things, pointed out the absence of “facts and data” supporting the adverse expert opinions and Rule 702.

The nut of 702 requires (as a matter of law) that an “expert opinion” must be shown to have a sufficient factual foundation before being admitted into evidence. As most here are aware . . . there is no study (utilizing scientific research methodology) that has found much of what is commonly touted as “gun control” to be of any proven efficacy. Seems to me, any objective judicial review of the adverse expert opinions in this case would find a failure to meet the most elementary requirement in the law of evidence, i.e., a foundation in fact.

Some questions from the bench indicated a realization that ruling for the District presents a 702 override problem; however, a number of questions seemed to show an inclination to examine the District’s regulations from a liberal approach, i.e., never mind the rules, or what the overwhelming weight of the evidence shows.

Despite the fishing for avenues (including severability) around, or through 702 . . . it remains possible (not probable, based on the questions from the judges) both Heller and Kolbe could be decided using a direct application of the law of evidence. If so, it is game over on these two cases (and others) for Second Amendment opponents.

If the District prevails in whole, or in part, the basis will likely be essentially a cut and paste from the lower courts opinion which avoided a direct confrontation with 702 by using a smoke screen that included qualifications, experience, interest balancing, intricacies of scrutiny, “substantial” evidence, leaps of logic and deference to the legislative body as did the lower court in Kolbe. Much of the precedent cited by the lower courts was pre 2000. None of this ought to prevail in the face of 702, as amended, or at least that’s the way it looks to me.

For sure, the game is being played by the judges and lawyers at such a level of sophistication that I, for one, can only guess about the strategy.* Having said that, could be this case is being postured by Halbrook for a 702 error of such magnitude as to facilitate a cert. petition.

For now, there is reason for hope and speculation remains fun.

Regards
Jack

*"Litigation, like war, presents endless fog and complexities." Clausewitz, Carl von. On War: Berlin, Germany, 1832.

really smart...

wolfwood said:

Could you expand on this. I am probably on the hook for two arguments at the Ninth in the next year or so. So how to present oneself at a argument is of interest to me. To me she sounded really smart. As in I was thinking man I'd be intimated to have her arguing against me.

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I got that she was smart about the facts of DCs very weak defense.
I got the impression that she felt she was smarter than the judges, given her discourtesy in her interruptions, evasions, and borderline contempt by way of offering the same answer in the slow patient way one might explain to a child.

I got the impression Ginsberg and Millett were being remarkably patient with her, and Millet was losing her patience, towards the end.

IANAL, so cant speak to legal arguments. But I remember a saying about levels of information/intelligence, explained once by a very successful, yet humble, consultant:

Data are facts.
Like the weak or absent facts, surveys, on the part of DC, etc for which this case was remanded.

Patterns, interpretations, and conclusions about the facts, is knowledge.
That the DC attorney floundered on, or misrepresented, or evaded, when asked, by judges.

How to use, and present, or persuade based on knowledge is wisdom. That is gained by experience, if you are paying attention, and leveraged by help of a mentor. It does require humility.

I see another example here where "Very smart" often gets in the way of wisdom, and I hope DCs lawyers learning curve remains flat.
A feature, not a bug, and not surprising given DC pol's history.

PS: in regards to Esqappellate's gracious comments about DC's counsel,
more along that line; from Prof Volokh:

http://volokh.com/archives/archive_2009_07_19-2009_07_25.shtml#1248459505

rlc2 said:

I got that she was smart about the facts of DCs very weak defense.
I got the impression that she felt she was smarter than the judges, given her discourtesy in her interruptions, evasions, and borderline contempt by way of offering the same answer in the slow patient way one might explain to a child.

I got the impression Ginsberg and Millett were being remarkably patient with her, and Millet was losing her patience, towards the end.

IANAL, so cant speak to legal arguments. But I remember a saying about levels of information/intelligence, explained once by a very successful, yet humble, consultant:

Data are facts.
Like the weak or absent facts, surveys, on the part of DC, etc for which this case was remanded.

Patterns, interpretations, and conclusions about the facts, is knowledge.
That the DC attorney floundered on, or misrepresented, or evaded, when asked, by judges.

How to use, and present, or persuade based on knowledge is wisdom. That is gained by experience, if you are paying attention, and leveraged by help of a mentor. It does require humility.

I see another example here where "Very smart" often gets in the way of wisdom, and I hope DCs lawyers learning curve remains flat.
A feature, not a bug, and not surprising given DC pol's history.

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It's a pattern with these extreme anti-gun localities. They believe their laws are "smarter" than the rest of the country's laws, and they know even if they lose with the 3 judge panel that the antis on the rest of the court will step in and en banc the opinion.

Even more of a concern...fascist mindset of DC Council

press1280 said:

It's a pattern with these extreme anti-gun localities. They believe their laws are "smarter" than the rest of the country's laws, and they know even if they lose with the 3 judge panel that the antis on the rest of the court will step in and en banc the opinion.

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Agreed. Notwithstanding the DC Council and Mayors own self-regard, since I might take issue with the "smart" part...

http://www.washingtonpost.com/wp-srv/special/local/dc-corruption-scandals/

What is a bigger issue is the arrogance, and belief that never mind the laws, they the DC Council can do as they like, even to the point of threatening individual citizens, indirectly, in their comments.

That is fascism on display, by the left, in our nation's capitol.

http://www.ammoland.com/2014/09/d-c...ares-about-the-confidentiality-of-gun-owners/