DC Fires Heller case lawyer

[K-Romulus]

UPDATE: Replacement named

http://www.washingtonpost.com/wp-dyn/content/article/2008/01/03/AR2008010303853_pf.html

City Picks Head of Team for Supreme Court Case

By David Nakamura
Washington Post Staff Writer
Friday, January 4, 2008; B04

Acting D.C. Attorney General Peter Nickles has selected former acting U.S. solicitor general Walter E. Dellinger to defend the District's handgun ban in a high-stakes Supreme Court case.

Dellinger, now with the private firm of O'Melveny & Myers, had been working on the handgun case with a team of more than a dozen lawyers under the direction of D.C. special counsel Alan B. Morrison. Nickles fired Morrison late last week, however, in what Morrison has called a politically motivated act.

Nickles said Dellinger, will assume the lead role in the case without a hiccup because he helped Morrison write the 15,000-word brief that is due to the high court today. The Supreme Court is likely to hear the case in March.

Among the cases Dellinger has argued before the high court are ones dealing with physician-assisted suicide and the Brady Handgun Violence Prevention Act.

"I have confidence in Walter Dellinger," Nickles said. "He has argued a huge number of great cases."

Nickles also said he has brought on Robert Long, a former colleague of Nickles's from Covington & Burling, to assist the team. D.C. Solicitor General Todd Kim and Thomas Goldstein of Akin Gump, who also were part of Morrison's team, will remain on the case in key positions, Nickles said.

After Morrison was fired, some city leaders expressed concern that the District would not have a government lawyer in charge of the high-profile handgun-ban case. The city appealed to the Supreme Court to maintain the ban after a lower court overturned it in the spring. The court has not examined a Second Amendment case in 70 years.

Nickles said that he considered handing the reins to Kim, who has never argued before the Supreme Court, but that Kim was concerned that his time would be limited because of a family matter.

Ultimately, Nickles said, "Dellinger was the most experienced guy."

Dellinger served three years as U.S. assistant attorney general and head of the Office of Legal Counsel under President Bill Clinton. He currently is special counsel to the Board of Directors of the New York Stock Exchange, according to O'Melveny & Myers's Web site.

Nickles was Mayor Adrian M. Fenty's general counsel until two weeks ago, when Attorney General Linda Singer resigned in frustration, saying Fenty (D) relied more heavily on Nickles to make key legal decisions. Fenty replaced her with Nickles, who met with Morrison on Dec. 21 and chose to dismiss him last Friday.

Morrison, who has argued 20 Supreme Court cases and is highly regarded in the city's legal community, has complained that Nickles removed him as a way to purge Singer's allies from the attorney general's office. But a government source said Nickles was upset when Morrison failed to heed some suggestions Nickles made about the handgun brief.

"Bottom line: I did not have confidence in Morrison," Nickles said.

Morrison said yesterday that he had one conversation with Nickles about a relatively "tiny point" in the brief and that the matter was resolved after discussions between them and several other lawyers.

"That can't be the basis of why he lost confidence in me," Morrison said.

Morrison is well-regarded in the city's legal community, but so is Dellinger, who has argued 17 cases before the Supreme Court and compiled a record of 12 wins and 5 loses. He has two other cases scheduled before the high court before the D.C. gun ban case will be heard.

Dellinger said he had never met Nickles before Nickles offered him the lead role Wednesday evening. Although Dellinger said he thinks highly of Morrison, he said that ultimately, "my obligation is to the District and to do what is best in the case. Therefore, in these circumstances, I agreed to do the arguments."

His work for the city has been pro bono.

And the requisite ComPost editorial:

http://www.washingtonpost.com/wp-dyn/content/article/2008/01/03/AR2008010303595_pf.html

Mr. Dellinger at Bat
The city gets a top lawyer to argue its gun control case, but the process wasn't pretty.

Friday, January 4, 2008; A20

THE DISTRICT is expected to announce today that Walter E. Dellinger will become its lead lawyer on the landmark gun rights case before the Supreme Court. This is terrific news for the residents of the city and the effort to revive the District's gun ban, which was struck down earlier this year.

Mr. Dellinger, who served as acting solicitor general during the Clinton administration, is a top-notch appellate advocate with an impressive record of Supreme Court appearances. He has ably argued cases across the legal spectrum, including those involving civil rights, corporate affairs and, most relevant, gun control. Just as important, Mr. Dellinger has been steeped in the D.C. gun rights case since the beginning and was instrumental in shaping the District's opening brief, which is to be filed today. He'll be able to hit the ground running in preparation for the likely oral argument in March -- a distinct plus, since Mr. Dellinger already has two Supreme Court cases scheduled for February.

While Mr. Dellinger's appointment is welcome, it is unfortunate that it coincides with the District's shoddy treatment of its former lawyer, Alan B. Morrison. Last Friday, Mr. Morrison received an e-mail kicking him off the case; he was also instructed to clean out his District office by next Monday. The e-mail came one week before Mr. Morrison and the D.C. team were scheduled to file their opening brief, and it was sent not by General Counsel Peter J. Nickles, who made the decision to fire Mr. Morrison, but by Mr. Nickles's deputy.

Mr. Morrison believes he was let go because he was hired by former attorney general Linda Singer, who resigned last month after expressing frustration with Mr. Nickles. Mr. Nickles said Mr. Morrison's allegations are "absolutely" not true and that he simply came to believe that Mr. Morrison was not the best lawyer to represent the District in the landmark gun case. As for the e-mail pink slip, Mr. Nickles said that he could not have sent it because he is not scheduled to take over as acting attorney general until Sunday. He said he asked his deputy to deliver the bad news early to give Mr. Morrison as much notice as possible.

This kind of public personnel turmoil in advance of a Supreme Court argument doesn't exactly show the District in its best light. And it was unfair to Mr. Morrison, a highly qualified lawyer who made significant contributions to the District's legal case. But it's reassuring that the District has ended with able representation.

 

[SWMAN]

Looks to me like the District doesn't have much faith in their case and decided to bring in someone who's been before the Court and won, hoping he can work verbal magic into a thinly reasoned brief.

 

[Megistopoda]

Regarding the "Mr. Dellinger at Bat" article, I like this comment coming out of Chicago:


WashPost Eds said: "...it's reassuring that the District has ended with able representation...terrific news for the residents of the city and the effort to revive the District's gun ban..."

Terrific news for the residents that have a lawful right to defense against lawlessness?

Terrific news for residents that have no right whatsoever to police protection?

Terrific news that the city is spending tax money arguing for an unconstitutional and effectively illegal local ordinance?

Washington Post...wake up and come down to earth. It is high time this issue is made right for the residents of the district - you owe them the truth. And the truth is anything but your position that the DC gun ban is necessary to the security of a free state (let alone the security of individual residents).

 

[madmike]

So, Nickles has the pickle

As to "fair market value," that would be the fair market value at the time the law is passed. Plenty of precedent exists on that.

If we assume a low average of $200/weapon, times 300 million weapons, that's $60 billion.

The WORST that will happen is they grandfather the lot.

But I firmly believe that $180 billion would be even more intimidating to people who would propose this, so, despite recent attacks on me (elsewhere) that I'm a "Zumbo" who "hates the Second Amendment," I propose to buy more guns.

Sarah Brady's birthday is Feb 6. I will once again celebrate with a new gun.

 

[Crashola]

Wow, this gives some good insight into what's making things tick on the D.C. end of the appeal. Rather than make a concerted effort to present their best case on a very important constitutional issue that may have a significant national impact, the District seems to be more concerned about the politics of who's in charge and who gets to argue the case to the Court. The anti-gunners must be pulling their hair out knowing that the most important Second Amendment case in nearly 100 years is being run by a bunch of hair-brained politicians.

 

[ServiceSoon]

I thought the job of news casters was to report the news so you could ponder the facts, not to tell you what to think.

 

[publius]

The anti-gunners must be pulling their hair out knowing that the most important Second Amendment case in nearly 100 years is being run by a bunch of hair-brained politicians.

It is quite a circus.

 

[Robert Hairless]

As to "fair market value," that would be the fair market value at the time the law is passed. Plenty of precedent exists on that.

If we assume a low average of $200/weapon, times 300 million weapons, that's $60 billion.

The WORST that will happen is they grandfather the lot.

Whew. That's a relief. It's why I always go to knife makers who write novels for all my general legal advice on the Constitution.

So when the Thirteenth Amendment went into effect in 1866, the federal government paid slaveowners the fair market value of their freed slaves? I wonder how much it was at the time.

In 1919 Prohibition became the law of the land through the Eighteenth Amendment. I guess that everyone with a bathtub and a radiator made "trillions" of gallons so that when Elliot Ness showed up to pay them the fair market value of it they all got rich. Rich, I tell you! Rich beyond their wildest dreams!

Now is the time to stock up on the cheapest guns we can find. They don't even have to work or be in any reparable condition. Stock up on them and sell them to the BATF for fair market value. Become wealthy. Then you buy a boat, go to Colombia for batches of cheap happy powder, drive it to Florida, call the BATFE and reap your fortune.

Them gun grabbers don't realize that there are smart guys here just hoping to cash in when they fall into the trap. Heh, heh, heh. You've got them by the short hairs and they don't realize it. "The WORST that will happen is they grandfather the lot." Yeah. They don't know who they're fooling around with.

I don't believe that there could be anyone silly enough to call you a "Zumbo." Show me the cites. Where are the links. Let's see the precedents.

You're going to set the fair market value of the guns, right? This is the price that an interested but not desperate buyer would be willing to pay and an interested but not desperate seller would be willing to accept on the open market assuming a reasonable period of time for an agreement to arise?

Is this the price that an interested but not desperate buyer would be willing to pay after he knows the guns will be banned? Or will it be the price he would be willing to pay if that information has been withheld from him?

When you're finished with that buyer please send him to me? I have some land in Florida that's underwater only a few times each day, a car that looks good but can't run, and an ugly female friend of low moral character and sublime laziness who wants to enter into a lasting relationship with a twit who would pay anything at all for illegal property that's about to be confiscated. You'll get a nice commission: more or less the fair market value of that service.

 

[madmike]

Slaves are people, not tangible property.

Liquor is consumable, and a time frame to consume it was available.

As I've been seeing the "Zumbo" and similar slams on my blog as well, I'm going to take my leave.

 

[Robert Hairless]

Nope, mike, at the time of that amendment slaves were property under the law. See, that was the reason for the amendment.

But I really like your thought that because liquor is consumable it wasn't property either. It gives me visions of Jim Beam and other distillers consuming their entire stock in anticipation of Prohibition. Such a hangover!

Dope is consumable too. So when the cops come to get your ganja or your horse do they have the option of paying you fair market value or letting you consume it?

When a law includes forfeiture of property does the sheriff who arrests the dope peddler pay him fair market value for his house and car, or does he have the opportunity to eat them first?

Why in the world would so many people be posting "the "Zumbo" and similar slams" on your blog as well? How could so many people be so wrong.

Best thing about having a blog is that you get to run it the way you want without pesky people disagreeing with you. Don't you just hate it when people contradict you? As you say on your blog, "There are morons on every forum. It is inevitable." On a blog you get to say that those people are "morons" and "pansies" and "talk out of their a**" and all that good stuff.

Get those guys who are calling you a "Zumbo" and "similar slams" off your blog, Mike. Blog them. But don't forget to pay them fair market value for anything they post that you remove. It's not just a good idea, it's the law.

 

[Deavis]

If Heller fails, nothing changes.

madmike that is an incredibly naive statement in my opinion. Let's take a look at the question the USSC will answer when they rule on Heller.

The petition for a writ of certiorari is granted limited to the following question: Whether the following provisions, D.C. Code §§ 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?

Are you really telling me that if the Supreme Court answers no to that question that nothing changes? The Supreme Court is going to rule on whether an individual, devoid of connection to a militia, can keep firearms in their homes. This is exactly the situation almost all normal gun owners are in today and you are saying Heller isn't going to change anything? If the answer is in the negative, it will not only break the tenuous connection of most gun owners to their right but you can be guaranteed it will be blown out of proportion if it is a negative answer. Which of course, you confirm with your second sentence that is completely at odds with your first.

MILLER was a 2A decision specifying EXACTLY what was covered. "Weapons commonly used by the militia." It's been used against us.

Unfortunately, when reams and reams of decisions go against you, it is a bad thing. Precedent carries weight and a lie repeated often enough becomes reality. The courts will use a negative Heller just like Miller to push their perverse but LEGALLY ACCEPTED interpretation of the 2A. Even though many people here KNOW what the 2A says, it doesn't matter if the courts say the opposite. It has taken 70 years to get a good case up there, don't fool yourself into thinking this isn't important. If Heller is a no, then it gives more ammunition to further distance the individual's right to have firearms, which hasn't even been firmly established yet at the highest level. The fact that they posed a question framed for an individual's right doesn't make it a ruling yet. More than that, who cares if the USSC says it is an individual right if DC can write laws that basically erase that right? What good is a right you "have" but can't exercise?

Lastly, who is going to finance this trillion gun buying spree? The ordinary Fudd or Dudd (buys 1 gun, talks big about guns, never does anything)? Who says the government will pay fair market value if they chose to seize them? When something is declared illegal, the government can take it without compensation. Given the power of the police, they’ll probably take the guns without compensation and take the house that they found them in as well. You can thank the war on drugs for that little trick. Besides, to talk of such things is ridiculous right now, our best chance of winning is in the courtroom not on the streets. Despite what some people here think, most of the country won't go out shooting if the 2A is severely curtailed or even removed. That is reality, we have so much to lose if it comes down to it.

 

[ilbob]

If Heller fails, nothing changes.

madmike that is an incredibly naive statement in my opinion. Let's take a look at the question the USSC will answer when they rule on Heller.

The petition for a writ of certiorari is granted limited to the following question: Whether the following provisions, D.C. Code §§ 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?

Are you really telling me that if the Supreme Court answers no to that question that nothing changes? The Supreme Court is going to rule on whether an individual, devoid of connection to a militia, can keep firearms in their homes. This is exactly the situation almost all normal gun owners are in today and you are saying Heller isn't going to change anything? If the answer is in the negative, it will not only break the tenuous connection of most gun owners to their right but you can be guaranteed it will be blown out of proportion if it is a negative answer. Which of course, you confirm with your second sentence that is completely at odds with your first.

I think his statement is mostly right. No one in this country depends on the 2A to protect their RTKBA. In most cases, what gun "rights" we have, stem from the individual states, and not the 2A. And those are not likely to change much if Heller goes south. it might even push gun owners to do something in some of the bad states like IL and NY.

 

[Kim]

This Dellinger guy is someone that I dislike. If I remember he is a member of the "Constitutional Law Center" a lefty Ass. of lawyers. I believe he was also on the short list of Pres. Clinton USSC nominees. Many including him were dissappointed he was not picked. He is a danger to liberty in my book.

 

[Kim]

This Dellinger guy is someone that I dislike. If I remember he is a member of the "Constitutional Law Center" a lefty Ass. of lawyers. I believe he was also on the short list of Pres. Clinton USSC nominees. Many including him were dissappointed he was not picked. He is a danger to liberty in my book.

 

[Kim]

This Dellinger guy is someone that I dislike. If I remember he is a member of the "Constitutional Law Center" a lefty Ass. of lawyers. I believe he was also on the short list of Pres. Clinton USSC nominees. Many including him were dissappointed he was not picked. He is a danger to liberty in my book.

 

[JimmyN]

You can't compare drugs and property seizures to firearms. Drugs are illegal to start with, and it was illegal to have them in your possession. Therefore they can confiscate the drugs and property associated with their possession.

Legally owned firearms would be a completely different scenario, should the law change to make them illegal.

 

[publius]

You can't compare drugs and property seizures to firearms. Drugs are illegal to start with, and it was illegal to have them in your possession. Therefore they can confiscate the drugs and property associated with their possession.

One absurd result of the abuse of civil asset forfeiture laws to punish crimes without bothering to prove an actual person guilty was the seizure of the yacht "Monkey Business" (made famous by Gary Hart) when it was found that a crew member had a joint.

"Guilty" property is an absurdity promulgated by advocates of big government. In New Jersey a couple of years ago, a politician suggested expanding the civil asset forfeiture rules to firearms.

In the Miller decision, the Supreme Court relied on drug war precedents to say that the power to tax could also be used to regulate guns:

Considering Sonzinsky v. United States (1937), 300 U.S. 506, 513, and what was ruled in sundry causes arising [p178] under the Harrison Narcotic Act...

In the Stewart case, the Supreme Court confirmed that the power of the government to regulate interstate commerce applies just as much to a homegrown cannabis plant for personal consumption as it does to a homegrown machine gun for personal consumption.

The idea that what happens in the arena of drug law will not affect firearms is ignorant. Ignorance can be fixed.

 

[IA_farmboy]

I agree that drug laws and firearm laws are closely linked. In both cases it was the convoluted tax code, stamps, background checks and what not to determine whether or not something is legally owned or not.

I find that both drug law and firearm law are both equally condescending (the people don't know what's good for them), overreaching (the "commerce clause" lets us regulate personal use/consumption), and stepping all over our inherent and natural rights.

Both drug law and firearm law were created to punish minorities and lead to a huge government that we cannot afford to maintain. Also, both are sitting on top of tax law, the commerce clause, and a number of similar legal concepts. Bring one down and the other is likely to follow.

The main difference between drug law and firearm law is that arms are explicitly protected. Drugs are not explicitly protected but we do have our rights to liberty, property, and a pursuit of happiness.

What bothers me the most is that drug law and firearm law are both claimed to be in place to control crime. I think that these laws FEED the crime. We don't see people killing each other over coffee grounds but we do see them fighting over guns and drugs. That is because there is an artificial scarcity created by law. Recreational use of firearms and drugs hurts no one. Many of these drugs that are controlled have medicinal purposes, and... I guess firearms have "medicinal" purposes as well.

 

[Deavis]

I think his statement is mostly right. No one in this country depends on the 2A to protect their RTKBA. In most cases, what gun "rights" we have, stem from the individual states, and not the 2A. And those are not likely to change much if Heller goes south. it might even push gun owners to do something in some of the bad states like IL and NY.

Again, I think you are being naive by not thinking this through. Look at the big picture over the course of years, not the last 5 or 6. The gun rights you have (sigh what an oxymoron) at a federal level exist because Congress is afraid to pass the laws they think will offend people who support the 2A. They have slowly increased the number of laws since 1934 as necessary to promulgate their agenda. Slowly they have used Miller in various settings to give their bans weight and legal backing.

Now, A negative Heller meaning would take the teeth out of the 2A, which they still are forced to pay homage too. Don't fool yourself, the 2A protects you from more onerous gun laws because it appears that it can possibly limit the government. For a ruling to come out that says that it no longer limits the government would be a critical wound for gun rights at the federal and eventually the state level. Candidates would no longer have to act like they respect the 2A and wouldn't dress up in camo for photo ops. They'd dance on it and pass gun control without a concern. Moreover, they'd have a court case to use AGAINST us if the law was challenged. It wouldn't be bluffing anymore like it has been in the past.

Besdies, what makes you think that if the 2A is effectively nullified at a federal level that your State "right" won't be nullified as well through the same tactics? Think it through, every little chip in the dam counts no matter how small it is.

 

[ctdonath]

No one in this country depends on the 2A to protect their RTKBA.

Just because it WORKS doesn't mean it's not NEEDED.

Face it: machineguns and imports aside*, federally speaking you can own whatever you can buy or build. Your state may infringe (let's push the "incorporation" issue soon), or there may be annoying paperwork - but federal restrictions are still almost nil. Even the vile AWB was pretty much a ban on cosmetics, not basic functionality.

The feds haven't gone a lot farther because they KNOW that doing so will spring the 2ndA on them.

* - Machineguns and imports have been restricted/prohibited only pretty recently, and only because the feds have gradually been emboldened to try crossing the 2ndA line with a very few fringe items.