My head hurts…

I think my brain’s full!

I’ve been continuing my reading relating to Heller. In particular, I’m trying to figure out exactly what the consequences of Gura’s machine gun remarks can be on future cases. Without going into too much legal theory on the subject, it looks like it may not be bad as I first thought–maybe. It is apparently a squishy area of law.

First, our legal system makes allowances for the concept that a lawyer argues the case he’s paid to argue–this is how a Federal prosecutor can change places and become a criminal defense attorney without causing all the cases he won as a prosecutor to be called into question. This would mean that Alan Gura can in effect say one thing in the Heller case but argue differently in a future case.

Second, there’s the issue of legal authority (also known as legal precedent). There are two kinds here, binding and persuasive. Binding authority is a law or a legal decision by a higher court. Going back into history, if the Supreme Court decides that income taxes are unconstitutional, the the 9th Circuit couldn’t ever hold that they are (unless the Constitution is changed).

Persuasive authority is anything that isn’t binding. For example, the Federal 2nd Circuit court decides that guns can be totally banned. The 3rd Circuit Court later receives a similar case. It isn’t bound by the 2nd Circuit’s decision, but it can take it into account in its decision as a “persuasive authority”. (This is the same way that certain of our current Supremes’ have taken various international laws into account in various ruling. The number of things that can be used as persuasive authorities is pretty long and broad, but I’ve yet to find a case where any lawyer’s arguments were ever used as a persuasive authority.

Interestingly enough, an dissenting opinion by a sitting judge can be a persuasive authority. This could open the door for Gura’s words on machine guns to be used against us in a future case. For example, let’s assume we win Heller big, but Justice Stevens writes a dissenting opinion where he uses a lack of Federal ability to regulate certain kinds of weapons, like machine guns, as part of the rationale for his dissent. At some future point, his dissenting opinion can be used as a persuasive authority in a court case.

How do you see why my brain hurts? You could argue this in circles all day, and never reach a conclusion. I suppose this is why we have so many lawyers these days.

So at this point, I’m going to STFU on the subject, and wait to see what SCOTUS decides. Then, if I live long enough, maybe I’ll be able to see my kids reap the benefits of this fight. Or not.