National Law Journal Provides More Background on Luttig's Second Amendment Brief

Judge Luttig, as well as Carter Phillips, were affected by gun violence.


On Monday, I wrote about the amicus brief that Judge Luttig, Carter Phillips, and others filed in the New York Second Amendment case. The National Law Journal provides more background on the brief. Marcia Coyle reports that Judge Luttig, as well as Carter Phillips, were affected by gun violence:

One of the 17 is veteran Supreme Court advocate and Sidley Austin partner Carter Phillips. Bernstein and Temple are former Sidley partners, he said, and they reached out to him to see if he'd be interested in joining the brief.

"But my part of the story is personal," Phillips said. "I have had strong anti-gun views ever since one of my co-clerks with Chief Justice [Warren] Burger, Chris Walsh, had one of his best friends shot and killed on the same day the Chief was having his reunion. I saw what that tragedy did not only to Chris's friend's family but also what it did to Chris and his family. I have been strongly in favor of regulating gun use ever since. After reading the brief, it was easy to join."

Also on the brief is former Judge J. Michael Luttig of the U.S. Court of Appeals for the Fourth Circuit. Gun violence touched his family in 1994 when his father, John Luttig, was fatally shot in a carjacking.

The implication here is that their legal views on the Second Amendment were affected by their personal experiences. On balance, I think Philips's interview reduces the effectiveness of the brief.

NEXT: The Procedural Puzzles of SB8, Part V: Standing in State-Court Litigation

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  1. Maybe lawyers can stop voting for the pro-criminal party. Maybe they can stop coddling criminals who are the clients of the scumbag lawyer profession. Victims generate no fees and may rot. No career criminal should make it out of his teens alive. We know who they are at age 3. That is the age of onset of their career.

    1. Scumbag lawyers want the nation disarmed so people cannot fire on government thugs imposing Commie rule. That is the real purpose of the Second Amendment, to enable the people to kill the soldiers of tyrants.

      1. John Luttig was killed by a fatherless diverse product of Democrat agenda ghetto trash jurisdiction. He should not have made it past 14. The lawyer is in denial about the result of lawyer failure to control crime namely, the murder of a loved one.

        1. Yes. Feral males raised without fathers are the single largest contributor to violent crime.

          1. Today’s testimony about the FBI failure to protect Olympic athletes from a sex predator is a good argument to end all discretion. Lazy government workers want to slurp coffee, chomp on donuts, chat up the secretaries. They do not want to do any work. They take our money and return nothing of value.

    2. Besides being mentally ill, Behar is not even pretending not to be an out-and-out racist anymore.

      1. Why try to hide it? This blog is a safe space for racists. By design.

        And they have so few safe spaces for conservatives these days in modern America, thanks to those liberal-libertarian mainstreamers and all of their damned progress.

      2. David, those are just insults. Try to formulate an argument for a change of pace. Come on, you can do it.

      3. David, those who call others racist arecalled race hooers. Do not be a race hooer.

        I believe you and Artie need to be replaced by a diverse. Diversity is what makes our nation strong. Let me know when that will happen, when you give up your white privilege as a lawyer earning money. Until you give up your white privilege, STFU about racism.

      4. David, what mental illness do I have, and how did you come to the diagnosis? You already believe minds can read. Go ahead and do it across the internet with a stranger you never met.

  2. A black lawyer’s brief on racial issues is “less effective” to the good Professor Blackman because they’ve experienced racism. Cool story bro.

    1. It depends whether the brief focuses on emotional arguments or legal arguments, it can be very effective when the brief does both, but not effective when it focuses on emotional issues using weak legal arguments.

      I thought the Black Defenders of Legal Aid, Bronx and Brooklyn defenders brief did a good job on focusing on the legal issues of how NY’s gun control laws are used to oppress Black and Brown citizens of NY and fill the jails with BIPOC for trying to exercise constitutional rights most Americans take for granted.

      1. NYC’s Sullivan Law, from the early 20th Century, was originally aimed at Italian immigrants, but enforcement has since shifted targets.

        1. Early gun control laws were aimed at disfavored minorities. What’s unusual about the modern ones is that they’re aimed at everybody but the exempted elites. Our rulers went from distrusting minorities, to distrusting everybody but themselves.

          Hardly an improvement.

          1. But in practice, they are still primarily used against minorities.

            Hunter Biden is alleged to have lied on a Form 4473. Anyone care to guess what would happen to a young Black man from the ‘hood who lied on a Form 4473?

            1. Wait, you think Hunter Biden got a pass because he’s white, rather than because he’s Joe Biden’s son?

              This is a joke, right?

      2. Here’s a link to the brief:


        Excerpt for Jon:

        …each year, we represent hundreds of
        indigent people whom New York criminally charges for
        exercising their right to keep and bear arms. For our
        clients, New York’s licensing regime renders the
        Second Amendment a legal fiction. Worse, virtually all
        our clients whom New York prosecutes for exercising
        their Second Amendment right are Black or Hispanic.
        And that is no accident. New York enacted its firearm
        licensing requirements to criminalize gun ownership
        by racial and ethnic minorities. That remains the effect
        of its enforcement by police and prosecutors today.
        The consequences for our clients are brutal. New
        York police have stopped, questioned, and frisked our
        clients on the streets. They have invaded our clients’
        homes with guns drawn, terrifying them, their
        families, and their children. They have forcibly
        removed our clients from their homes and communities
        and abandoned them in dirty and violent jails and
        prisons for days, weeks, months, and years. They have
        deprived our clients of their jobs, children, livelihoods,
        and ability to live in this country. And they have
        branded our clients as “criminals” and “violent felons”
        for life. They have done all of this only because our
        clients exercised a constitutional right.

  3. Really? Its a brief. Sure, if Luttig was actually ruling on the issue, it would be fairly irresponsible, but … people who have stakes in the outcome of certain issues are supposed to file briefs! That’s kinda the point!

    Why shouldn’t Luttig, who has personally been affected by guns AND as a judge probably has some legal idea of the 2nd amendment be foreclosed from discussing both of them?

    Amici briefs contain personal stories all the time. The people filing them aren’t solely legal organizations, they are plainly self-interested parties, as are the plantiffs and defendants. It has always been fact that behind the high-high mindedness of legal interpretation there are real people with real stakes who want something..

    There are amici briefs that dispense with legal interpretation altogether and simply say this is the real world implication of your decision.

    And those briefs are often useful! As long as Luttig isn’t ruling on this issue based on his personal opinion, what exactly is the problem here? How does it reduce the effectiveness at all?

    1. “And those briefs are often useful! ”


      Almost no amici briefs are useful.

      Maybe the S/C could decide more than 80 cases if we had fewer amici briefs. Especially from fossils.

  4. “Really? Its a brief. Sure, if Luttig was actually ruling on the issue, it would be fairly irresponsible,”

    “There are amici briefs that dispense with legal interpretation altogether and simply say this is the real world implication of your decision.

    And those briefs are often useful! ”

    I’m sensing a certain disconnect here. Useful because they encourage the judge actually ruling on the issue to be irresponsible?

    1. Oh come on. You are acting as if real world implications are never allowed in legal opinions. They are. They shouldn’t be the first thing, or the second thing, but they are important. Even for a textualist. Expecially for a textualist, you cant practice proper textualism without actually understanding what the words on the page actually mean.

      An amici brief without legal analysis but literally just saying “ok, here is what an electrical grid is and here is how it works, when an electrical engineer reads this this is how, informed by their professional practice, they see the world and how this law fits in” is extremely useful.

      In fact, Thomas, about as far from consequentialism as you can get, expressly stated that was his favorite amici brief he ever read.

      And judges should understand the things they are ruling on. Even if we dispense with real world consequences it is important that if a law mentions code, they understand what that means. Otherwise you end up with ridiculous dissent a la Google vs. Oracle, and a very convoluted majority because the people writing it didn’t actually understand it.

      The meaning of words is informed by people who understand the meaning of those words and use them in day to day life. All legal philosophies, consequential or not, rely upon expert opinion, personal experience, and knowledge of the thing that is being decided.

      1. The amici brief here makes legal arguments, no?

        Lustig et al. are not gun or crime experts.

        The brief is just an appeal to authority [I am a former judge! and these other guys are from Big Law!] in the first place. Appeal to emotion devalues it further.

        1. Those who worked at large, strong, elite law firms in successful, modern communities recognize your envy, Bob, and decline to apologize for achievement, skill, and reputation. If it wasn’t for guys like you, being elite might not be possible.

          1. Ooh! Good one! Now do Justice Kavanaugh!

      2. If it would be irresponsible for him to judge based on his emotionalism, how does laundering it through an amicus brief make it less irresponsible?

    2. Brett, the nation has plenty of legal supremacist lawyers. It needs other lawyers who understand that to know what a law means it is not enough to know what the law says. To know what a law means you also have to have accurate insight into the activity the law purports to govern. Among legal supremacists, willingness to admit that kind of knowledge into legal discussions seems to be in short supply.

      1. Yes, among people who understand that it’s the legislature’s job to write laws, and it’s only their job to enforce them, the goal is to understand what the law says, not to second guess the legislature.

  5. If we want to play “pull the heart strings game” there are an equal amount, if not greater, number of stories about people who could have avoided serious violence or death if they were able to legally carry a firearm.

    I think there are very good arguments for *some* forms of gun control. But, what the modern left advocates is a death by a thousand cuts type ban which is a country with probably as many guns as people is never going to work and just subject law abiding citizens to increased violence. Much like we saw in the 70’s and 80’s when guns were effectively banned in some jurisdictions.

    1. That’s always been why the anti-gun movement has been strong in medical circles: Doctors deal with people who were shot, they never, ever see the people who weren’t victimized because of guns. They only see one side of it.

      “I think there are very good arguments for *some* forms of gun control.”

      I could argue for some things that you might call “gun control” in another environment. Mandating, not prohibiting, silencers. Maybe requiring people to use frangible ammo that won’t penetrate walls, when living in high density housing.

      They’re not the sort of thing that actually gets proposed, because the only problem the gun control movement has any interest in doing anything about is the ‘problem’ of people still being allowed to own guns.

      1. Yes if the gun control crowd was actually interested in public safety I agree we would have ammo restrictions that won’t punch holes through apartment building walls in high population density cities that ban such rounds.

        The objective of the gun control people has always been a complete ban. Everything else is just theater to achieve that end. Like what is the point of telling someone who has a gun permit in NYC that they can’t lawfully transport their pistol, locked and separate from the ammo, outside of the arbitrary city limits to practice at a gun range? There is absolutely no public policy ends that promotes other than complicating gun ownership and making unwitting criminals that can be selectively prosecuted.

        1. NYC literally has arranged with the airlines to be notified if anybody flying with a checked gun is diverted to JFK by weather or mechanical trouble, so that they can be arrested when they take possession of the bag, and the gun confiscated, while they’re charged with a felony. That’s how hostile to gun ownership, even on the part of people who live elsewhere, they are.

          1. They also have an arrangement with the airlines that if you check a firearm at the gate, they are told to call police to ensure you have the correct permit (based on whatever they consider the correct permit).

            1. At least people stopping or arriving in a NY airport actually have a legal obligation to comply with NY law, and to have made some effort to determine what it is. People diverted there by the airlines have no such obligation to determine or comply with the laws of a state they had no intention of visiting.

              1. Yes. And then the 3rd Circuit ruled (this was a Newark, NJ case) that even FOPA didn’t protect the defendant, because cops couldn’t reasonably be expected to know the laws at origin and destination, which is what the safe transport provision protects. So even if you are covered by the law, the cops are justified in arresting you for it.

                These people act utterly in bad faith, and it’s apparent to everyone who is not delusional.

              2. Actually the FOPA is poorly worded and does not apply well to air travel. It was mainly designed for travel by automobile. There is a case from the Third Circuit that basically found the protection ends when you grab your checked bag. The majority suggested you either have to tell the airline to keep custody of the bag or hope law enforcement helps you out. Otherwise you better have possession and transportation in line with local and state law.

                I’m sure an actual prosecution will not fair well, but the process is the punishment here. You are going to get arrested and sit in jail for a few days for the crime of ending up in NYC against your will on a diverted flight if you touch your checked bag.

                1. Agreed, but the spirit of FOPA is clear. Air travel should be protected as well provided that the trip from house to airport complies.

                  In any case, mere possession of a firearm should never be a crime. It’s that simple.

                2. And your firearm will probably be destroyed, or at least rendered scrap.

      2. In a lot of ways, it’s like vaccines. The people who have nasty side effects to them are right in the open, but those who DON’T get the disease, like measles or polio, aren’t as visible.

        1. Oh, I agree. I’m very pro-vaccine, (As opposed to mandates…) and routinely get every shot my doctor recommends. It was just dumb luck I got Covid before the vaccine became available locally for my cohort, or I’d have gotten that one, too.

          I think a lot of stupidity is going on, on both sides of the Covid vaccine fight, (Such as the FDA sitting on the updated vaccines that have been developed to go after the more recent strains of Covid.) but the anti-vaxers are the winning the stupidity competition.

          1. I got Covid back in 2020, but never had symptoms or antibodies, so I got the vaccine. Had I had antibodies, it would have been a tougher sell.

            1. Got bad news for you: If you didn’t get antibodies from the infection, you likely wouldn’t have gotten them from the shot, either.

              More likely, if you came up negative on the antibody test, you didn’t actually have Covid, but instead one of the numerous respiratory viruses that have roughly the same set of symptoms, and were just inferred to be Covid prior to the widespread availability of the tests.

              1. No, I actually got a positive COVID test, but was negative for antibodies later. So one of the tests was inaccurate, I guess.

                1. Probably a false positive on the Covid test. Not only does it have a significant false positive rate, there was at least one lab that was screwing up processing the tests in a way that produced an absurdly high false positive rate.

                  Coronavirus testing at Boston lab suspended after nearly 400 false positives

                  And no particular reason to suppose they were the only lab screwing up. They were only discovered because their false positive rate was through the roof.

      3. Brett, your comment is baloney. To fix your baloney problem, endorse federal funding of expansive public health research on guns and gun crimes.

        Gun advocate attempts to suppress that kind of information gathering give the lie to gun advocates’ endlessly repeated charges that gun opponents try to do the wrong things, or don’t know what they are talking about.

        1. That kind of information gathering was never prohibited. The Dickey amendment merely prohibited the CDC (And nobody else!) from spending money advocating gun control.

          They decided on their own that if they couldn’t advocate gun control, there was no point in doing any research. Or perhaps it would be more accurate to say that they didn’t see any difference; They’d only been funding researchers who’d arrive at pre-determined conclusions, after all, and had announced in advance of the funding what they were expecting to find: “We need to revolutionize the way we look at guns, like what we did with cigarettes … It used to be that smoking was a glamour symbol—cool, sexy, macho. Now it is dirty, deadly—and banned.”

          Doesn’t sound like somebody planning on an open minded inquiry…

  6. “The implication here is that their legal views on the Second Amendment were affected by their personal experiences.”

    Now do the anti-vaxxers’ statements as they die from COVID.

    1. Now do the countries with the highest vaccination rates (triple jabbed at that), like Israel, (yet somehow) with the highest COVID numbers ever, for which the country of Sweden blocked travel because of it.

      Put that in your narrative pipe and smoke it.

      1. Oh, that one’s easy: Higher testing rates. It’s estimated that only about a quarter of Covid cases are actually being confirmed by testing in the US. Mind, that’s because most cases of Covid are mild enough to pass for a common cold, but it still makes our case numbers look artificially low.

        Israel has a cumulative total of 818 deaths per million population, and 22 per million in the last week. The US is at 2,007 cumulative deaths per million population, and about 33 per million in the last week.

        How’s that make them look worse than us?

  7. “A conservative is a liberal who’s been mugged, and a liberal is a conservative who’s been arrested.”

    Funny how real-world experiences may change ones opinion. Perhaps when Josh grows up he’ll have more reality-based opinions.

    1. Funny of the people I know who have been arrested (most of which were for petty drug crimes like carrying a small amount of weed) they went from either conservative or liberal to libertarian. Funny how liberty minded you get once the government restrains your liberty for what is really a silly arbitrary “offense” that only .001% of the population is ultimately ever prosecuted for.

  8. Sorry about his friend; how does that rewrite the US Constitution?

    1. The constitution is a convenient rhetorical device used on occasion by the left. They do not actually believe in it as a “permanent thing” at all. And really do you think people who view America as being inherently racist, with some original sin of slavery that occurred 400 years ago before it was even America, care about a dusty old document written by rich, white men 250 years ago?

  9. Frankly I am less concerned with Luttig et al briefs than the procedural posture of this case.

    The reply brief NY changes the question to “Whether the restrictions placed on petitioners’ concealed-carry licenses violate the Second Amendment” from “Whether the State’s denial of petitioners’ applications for concealed-carry licenses for self-defense violated the Second Amendment”

    Seems like NY has spontaneously granted the petitioners restricted carry licenses potentially mooting this case. Or at least, making a strong case for a remand to consider whether the restrictions are constitutional (a question which was not briefed).

    I can only hope that the SC has had enough gamesmanship to evade review. Probably not though. They seem to be encouraging it.

    1. When Texas designs a law to evade judicial review – BADDDDDD!!!!!

      When New York passes a law for the expressed purpose of mooting an active case to avoid judicial review – GOOOOOODDDDDD!!!!!

    2. Hopefully they won’t let NY get away with this tactic twice in a row, but I’m not holding my breath: The Supreme court, even now, is absurdly reluctant to actually take 2nd amendment cases. They’ll jump at any excuse to duck one.

      1. As long as the people aren’t generally issued permits, I don’t see the court ducking it again, as currently constituted.

        1. I don’t see the Court not ducking it again, if they can find any pretext at all for doing so.

  10. “The implication here is that their legal views on the Second Amendment were affected by their personal experiences. On balance, I think this interview reduces the effectiveness of the brief.”

    This one ices the cake for me. I now assume not only that most of the fans of this blog are on the spectrum (with plenty of gun nuts), but also that the person who thought it was a good idea to invite Prof. Blackman to join this stilted, stale, White, male blog is there with them, too.

    Not that there’s anything wrong with that — except, in this context, the part about being awkward, antisocial misfits. Effective interpersonal communication and social interaction just isn’t their thing.

    (At least Mr. Bellmore has the character to acknowledge the point, for which he deserves ample credit.)

    1. Maybe you should try to turn down the bigotry a bit there AK…Just saying…..

      1. Pointers from the Volokh Conspiracy’s right-wing fans on tolerance are quite the treat! I guess if this blog goes two weeks without gratuitous publication of a vile racial slur some of these clingers figure they’re suddenly modern role models rather than archaic, bigoted misfits.

    2. It “ices the cake” but then you go on your usual unhinged rant about something and toss in the aforementioned bigoted comment.

      If the cake is iced, are you happy it’s done and walk away, or do you plan to eat it.

  11. Strong Spaceballs vibes from Carter Phillips.

    “My father’s roommate’s cousin’s friend was shot…”

    1. Remember when the current VA governor got caught with his blackface photo AND offered to moonwalk at a press conference to prove it was only a Michael Jackson costume also used the excuse “I know lots of black people….” to “prove” he was not racist. That sort of reminded me of that situation….

    2. I got Conan the Destroyer vibes… same mood methinks 🙂

      “The bars were put up after your sisters brothers cousin escaped!”

  12. The goal of gun control legislation is not to remove the firearm but to make criminals out of innocent people, thus increasing the government’s hold over you. They know they cannot confiscate 400 million firearms in any amount of time.

    In the same vein as mail fraud, or obstruction of justice, government prosecutors will pin a firearms infraction on you should they decide to prosecute you for something else. In the end the jury will convict you on something, or you will plea bargain.

    1. If they already have all those other laws, why do they need firearms?

      Is there any gun control law under consideration that requires confiscation?

      Do you have any support for your telepathic thesis, or just your feelings?

      1. They already confiscated legally purchased bump stocks. Supreme Court refused the case. Now they’re going after legally purchased pistol braces.

        In both cases without bothering to pass new laws, just issuing tendentious ‘interpretations’ of old laws.

        1. Read the comment I was replying to.

          1. “Is there any gun control law under consideration that requires confiscation?”; That’s what *I* was replying to.

            1. they cannot confiscate 400 million firearms in any amount of time

              Pretty clear I wasn’t talking about bump stocks.

              But you knew that.

              1. They’re working their way up to the actual firearms; The thin edge of the wedge goes in first.

                Several states have already passed confiscation laws, so it wouldn’t be novel. But you knew that.

      2. No one wants to ban or confiscate guns. Ever! It’s a crazy and paranoid idea!

        [Video] Beto O’Rourke Promises to Confiscate Semi-Automatic Guns

        “How do you address fears that the government is going to confiscate people’s semi-auto firearms?” one of the reporters asks…

        O’Rourke’s frank response must have surprised the reporter.

        “I want to be really clear, that’s exactly what we are going to do,” he answers.

    2. ” The goal of gun control legislation is not to remove the firearm but to make criminals out of innocent people, ”

      That misapprehension strongly promotes failure over the medium to long term.

    3. Actually, it’s to further the vast Jewish conspiracy. Though, I can see why you don’t know this as you have not been invited to the meetings.

  13. Gun laws are like arresting sober people for drunk driving…

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