I write this note (and others to follow) with considerable trepidation, knowing how the Silveira v. Lockyer case has already divided the gun-rights community-and with sometimes startling acrimony. (And to reveal my possible bias: I've read and considered carefully the arguments on all sides, and find myself in agreement with Mr. Kopel's assessment of the case.) But I have concerns that don't derive from that opinion of the case-that, in fact, I would be even more worried about if I thought that Silveira was going to be granted cert--that I can't allay by myself, and so I seek the insight of others.
The most visible champion of the Silveira case has been Angel Shamaya, through his usually wonderful web site, www.keepandbeararms.com. Recently, several items have appeared on that site relating to one Roy Lucas. This is the most informative one:
http://keepandbeararms.com/lucas/roy.asp
This doesn't say outright, but seems to be implying (if I'm understanding it correctly, and perhaps I'm not), that Mr. Lucas has been chosen to present oral arguments in Silveira, if the case is accepted by the Supreme Court. In Mr. Lucas's comments on another page, he says that he wrote the Silveira cert. petition "for" and "with" Mr. Gorski, the attorney of record.
I read this page Sunday (I think), never having heard of Mr. Lucas previously, and was favorably impressed by its description of him. My concerns began, however, when shortly thereafter I read Mr. Lucas's reply to David Kopel's 2-part critique of the Silveira case in NRO: http://keepandbeararms.com/Silveira/kopel.asp and then his comments about Steven Halbrooks's performance at oral arguments in the NRA-sponsored D.C. case: http://KeepAndBearArms.com/Silveira/Halbrook.asp
More about these later, but for now I'll just say that they struck me as incredibly self-serving and personal, rather than academic and argument-focused. It also seemed extremely strange to me that an apparent newcomer to the field of 2A studies and litigation would introduce himself to the world of those of us deeply interested in the subject by attacking two of the most respected researchers and writers in the field.
______
As you said, this is an issue that has generated considerable acrimony. (A little like saying firing on Ft. Sumter initiated a political disputed). ______
I then read his "Miller revisited" paper, reportedly now being reviewed for law journal publication. It, too, seemed to me far below the caliber I'd expect for an attorney of the experience his history describes-about the level of writing of a mediocre student comment in a law review. It's disorganized, highly repetitive, shallow where it isn't completely derivative, full of irrelevant meanderings, and embarrassingly self-congratulatory.
All of this made me deeply curious about what sort of person, scholar, and litigator is entering the fray. A Google search didn't turn up much except many, many references to Mr. Lucas's work on Roe v. Wade and Doe v. Bolton.
[snip]
Case Cite Win/Loss/Other Vote Comments
1. Simopoulos v. Virginia 462 U.W. 506 (1983) L 8-1 2. Bellotti v. Baird 428 U.S. 132 (1976) L 9-0 3. Doe v. Bolton 410 U.S. 179 (1973) L 7-2 4. Roe v. Wade 410 U.S. 113 (1973) O 7-2 Won appeal, lost cross-appeal
[snip rest of list]
I just checked a few (reading Blackmun opinions is no way to start a Saturday... couldn't the guy ever say anything in less than a hundred pages?). 1 is a loss. 2 I now forget. 3 and 4 are wins (I think the only cross appeal in Roe was on denial of injunctive relief; Court said would count on State obeying the ruling. ________ [snipping]
BTW, I found the Miller article or whatever a fun read. Hard to
believe the Supremes gave Miller's atty something like three weeks to
brief the case and appear in DC for argument, when he hadn't yet been
served with the government's brief!
The person who sent me the link originally said something to the
effect of "I have always found Miller a most ambiguous ruling, but
now I know the reason. Its author was an idiot."
I should add I am not particularly comfortable with a headlong
attack on Miller, which does have useful aspects.________ I have no idea what to make of all this. Everything I've said may be either wrong or have a perfectly logical, innocent, plausible explanation. That's why I'm throwing it all together here and asking for help making sense of it; to see if others have noticed any of the same peculiarities; to see if others think I'm making more of it than I should; to seek additional information that might lessen (or deepen) the mystery. ________
What I find interesting is the approach taken by the petition for cert., online at same site--
http://keepandbeararms.com/Silveira/TenReasons.asp [it's a pdf file linked in, so you have to go to that site and find the link]kop
Now... big problem has always been how to get a test case on "Is the 2nd Amendment an individual right, yes or no" rather than "is this law (assault gun ban, whatever) unconstitutional under the 2nd Amendment?" To be more precise, posing the first, abstract, issue while still retaining case and controversy.
The twist taken in the petition for cert. seems to be along these lines: The 9th Circuit's 2nd Amendment approach is a question of standing. (I think they're the only circuit that treats it this way) -- individuals have no standing to sue under the 2nd Amendment because it's not an individual rights.
So the petition for cert. poses the issue as one of standing to sue. And in that way, the abstract question of whether it's an individual right can be asked via cert., while still retaining case and controversy. A very interesting twist. If the Supremes take it, they can decide (if such is their conclusion) that the 2nd is an individual right, plaintiffs had standing to challenge the AW ban, remand to the 9th Circuit to rule on that challenge (which will certainly uphold the ban, but the process of fleshing out what the individual right may be will have been begun).
A very interesting tactical twist, which make the 9th Circus position useful for a challenge. --
