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How Not to Persuade

I just read a brief that went something like this: Hey, judge, there was this case about the Second Amendment.  Heller, I think it was called.  Anyway, my client is charged under 18 U.S.C. 922(g)(9).  That law is unconstitutional under Heller, I think.  I'm not certain, because the Supreme Court said that Section 922 might not be unconstitutional.  Anyway, my client clearly has a Second Amendment right to own a gun.  This is so under strict scrutiny, intermediate scrutiny, or rational basis review.  The end. You think I'm kidding?  Read this brief and decide for yourself whether the paragraph above is a caricature. In any event, that brief is a good example of a throw-away brief.  Oftentimes in criminal cases you spot an issue that there is no way in Hell you will win...continue to full post

Full post as published by Crime & Federalism on August 11, 2008 (boomark / email).