What does the state want to discover?
Continuing from our last article, Cases are won and lost before they are heard, we look at —No. 36 Lafave v. The County of Fairfax, Virginia, No. 1:23-cv-01605 (E.D. Va.).
The state wants discovery. They put the plaintiff’s (good guys) reasoning as:
—id. at 1–2
The plaintiffs are correct. No discovery is required. Are the plaintiffs part of The People? Do they wish to keep or bear an arm? If the answers are both yes, the plaintiffs’ burden is met. The burden then shifts to the state to demonstrate that the regulation is consistent with this Nation’s historical tradition of firearm regulation.
—New York State Rifle & Pistol Assn., Inc. V. Bruen, 142 S.Ct. 2111, 8 (U.S. 2022)
Not only was Bruen resolved solely on the pleadings, so were Heller, McDonald and Caetano. I’m not sure about Stables.
When the question is purely of law, there is no need for experts. The experts are the courts. The parties bring forth their arguments via pleadings. The court reads the pleadings, listens to the arguments, evaluates case law, and then issues their opinion.
“Expert testimony” is expressly forbidden to give legal opinions. If there are legal arguments, the parties must present them, as their own experts.
In one of the Ninth Circuit cases, the state is arguing that certain expert testimony is actually opinions of law and must be discarded.
Even if the state was arguing about “The People” or “arm”, there are no experts involved.
—#36 in Lafave v. The County of Fairfax, Virginia (E.D. Va., 1:23-cv-01605), No. 1:23-cv-01605, slip op. at 2
The state offers a powerful argument. Surely, overpowering the weak argument of the plaintiffs, who relied on Supreme Court opinions and holdings. The state tells the court that other district courts allowed expert testimony and discovery.
This is as bad as the Seventh rejecting arguments for The People because courts inferior to them had ruled against The People.
Ignoring the courts that found for The People.
This discovery process can be very intrusive and expensive.
The reality of this is that the discovery process will add 5 months to this litigation.