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Thread: NRA cares more about ? the NRA or the Second Amendment ?

  1. #1
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    Yesterdaythe Supreme Court granted the NRA’s motion for divided argument in McDonald v. Chicago. What this means is that Alan Gura’s 30 minutes of argument time on behalf of Chicagoland gun owners just became 20, with 10 going to former Solicitor General Paul Clement, whom the NRA hired at the last minute to pursuethis motion and argument. (Full disclosure: Alan Gura is a friend of mine, and of Cato.)

    The NRA’s motion was premised on the idea that Alan had not fully presented the substantive due process argument for selective incorporation of the Second Amendment — presumably out of an outsized concern for the Privileges or Immunities Clause arguments about which I’ve previously blogged and written a law review article. This is a highly unusual argument and is a facial slap at Alan’s abilities as an advocate.Sadly, it’s also typical of how the NRA has behaved throughout this case and before that during the Heller litigation — sabotaging Alan at every turn and showing again and again that, even in the face of winning arguments that fully support its legal positions,the NRA prefers to seek glory for itself rather than presenting the strongest case for its purported constituency of gun owners.

    Alan rightfullyopposed the NRA’smotion because the group’s participation at argument adds nothing substantive to the case. No one will ever know why the motion was granted, as the Court need not (and did not) provide any reasons. Nonetheless,it’s a safe bet that this is solely a testament toClement’s talent and reputation (notably, the motion was not filed by any of the NRA’s other excellent attorneys, who briefed and argued their case in the lower courts and in a cert petition andbrief before the Supreme Court).

    I have great respect for Paul Clement, and have worked withhimby filing amicus briefs in two cases he’s already argued this term, but Ido take issue with his repeated suggestion that the motion’s purpose — and the reason behindits granting — wasso that “all the avenues to incorporation, including the due process clause, are fully explored at the argument.” This kind of comment — again impugning Alan’s litigation strategy — is uncalled for, and renews concerns over the NRA’s conduct.

    Throughout this case, Alan has consistently and forcefully advocated for the Second Amendment’s incorporation under the Due Process Clause. That didn’t change when his case was taken up by the Supreme Court. The thing is that thedue process arguments are not all that complex, and simply do not merit the same care and attention in the briefs as arguments based on the Constitution’s actual text and history. A first-year law student who’s taken constitutional law– let alone a Supreme Court clerk– could write a due process incorporation argument in her sleep! In any event, the oral argument will be drivenby the justices’ questions, not by any long soliloquies by counsel. Alan’s — and all attorneys’ — job is to be ready for anything.

    If the NRA were concerned about the final outcome of the case, it would be unlikely to attack Alan’sstrategy or question his preparation (an odd way to be “helpful” to one’s side). It is not a stretch to predict that this case will be favorably decided at least in part on due process grounds, however, so what we are seeing here is likely anattempt by the NRA to position itself as responsible for such a victory –and that Alan isn’t.

    Ultimately, then, the NRA is engaging here in fundraising, not liberty-promotion or ethical lawyering.

    NRA Granted Time to Argue in McDonald: The Supreme Court this morning granted a motion by the National Rifle Association for argument time March 2, when the justices will consider whether the Second Amendment individual right to bear arms applies against state and local restrictions on firearms. The NRA will take an unspecified number of minutes from the plaintiffs who are challenging Chicago's gun restrictions, and who are represented by Alan Gura of Gura & Possessky of D.C. and Virginia. The case is McDonald v. City of Chicago. Adding the NRA to the list of those arguing may seem unremarkable, but in fact, the NRA has not been the pivotal player in the recent Supreme Court litigation over the Second Amendment. That title goes to Gura, something of an upstart, who took the landmark D.C. v. Heller case to the high court in 2007. As we reported at the time, there were old rivalries and no love lost between Gura and NRA lawyers, whom Gura felt were obstacles, not allies in the litigation… So why did the Court grant the motion? Clement is a familiar face at the Court, and his presence may also represent a "cover all bases" strategy by justices who favor incorporation but are uncertain how the privileges or immunities argument will play out. Asked about the Court's decision Clement said, "I think the grant of the NRA's motion may signal that the Court is interested in ensuring that all the avenues to incorporation, including the due process clause, are fully explored at the argument." Clement added, "Of course, I look forward to working with Alan." … (First, the NRA actually tried to sandbag Parker, the case which became Heller, ostensibly out of fear that the time was not ripe for such a big gamble. Second, many people fear that if McDonald is won via the “due process” clause of the Fourteenth amendment, instead of via the “privileges and immunity” clause, the power of the federal judiciary will again be expanded.)


    [font=""]…The lawyers for Otis McDonald and his co-plaintiffs are libertarian activists, who are pushing an aggressive and potentially risky constitutional theory to the Court. Without getting too much in the legal weeds, McDonald is arguing that the Court should extend gun rights to the states through the little-known Fourteenth Amendment Privileges or Immunities Clause, and overrule a venerable precedent from 1873 called the Slaughter-House Cases, which protects state sovereignty by limiting the reach of Congress and the courts. The Slaughter-House Cases is only one step removed from Marbury v. Madison as one of the most important cases in American history… The problem is that this approach could endanger gun rights. The narrower your focus when arguing a case, the easier it is to get a court to go along with you. The broader your argument, the steeper the hill you must climb… For that reason, the National Rifle Association is working hard to keep the focus of this case where it belongs, on gun rights. Whether the Second Amendment gives 300 million Americans a right against state or local laws that ban guns is a monumentally-important issue for personal liberty, and so the NRA’s argument presents only that issue before the justices…


    Meanwhile, Back in DC…: The outstanding lawyer Alan Gura, who won the case before the Supreme Court that struck down the ban on ownership of firearms in the District of Columbia today argued our case for the right, not only to “keep,” but to “bear” arms, i.e., to carry them in public. Alan’s smart and focused and we’ve got a strong case. Cato Chairman Robert A. Levy, who funded the previous case entirely out of his own pocket, made the case for the right to carry in an article in the Washington Post last year: “Gun Owners’ Next Victory in D.C.” That’s the same Robert A. Levy who wrote “The moral and constitutional case for a right to gay marriage” for the New York Daily News earlier this month. Bob is neither a gun owner nor gay; he’s just a decent person who believes in liberty and the rule of law. Oh, and he’s brilliant, too.


  2. #2

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    This is fascinating stuff:

    Agreed that NRA is a shameless self-promoter.

    Also would be interested in seeing the teeth of the Privileges and Immunities clause.

    But I am concerned though that this Court would use P & I to take us back to the early 1930s and the bad old days of the Lochner case. Especially after Citizens United, not sure we can trust this Court to do the adult job ofinterpreting P & I.

    That may be good enough reasonapplaud thatNRA Clement gets to do the Substantive Due Process argument -- so the Court hears from someoneadvocating incorporation on narrower Due Process Clause grounds.

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