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Thread: Lawyer Fight! Plot Thickens in Huge High Court Gun-Control Case' Ashby Jones Blogs.WSJ.com/law

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    http://blogs.wsj.com/law/2010/02/08/...-control-case/

    We’ve made no bones of the fact that McDonald v. Chicago is our favorite case of the current Supreme Court term. The case has it all: a hot-button political issue (gun control), a set of fascinating constitutional questions, and plenty of pre-game controversy.

    For those who aren’t familiar with the case, we suggest you get up to speed by reading Jess Bravin’s story on the case, from last March, as well as our blog post on Bravin’s article.

    That backdrop sets up nicely a story in Monday’s Washington Post on some early wrangling going on among lawyers working on the case.

    Specifically, the story involves groups of lawyers working on the gun-rights side of the ledger, those arguing the Supreme Court should shoot down a Chicago gun-control ordinance. In the 2008 Heller v. District of Columbia case, in which the Supreme Court shot down Washington D.C.’s gun-control law, it was, according to the WaPo, an “upstart band of libertarian lawyers” that handled the lifting for the gun-rights side, with the powerful National Rifle Association on the sidelines.

    But leading into McDonald, the NRA has vowed not to be relegated to the sidelines again. And a recent decision by the justices has ensured that the organization will, yes, have its say this time around. The court’s move might also signal the way they’re feeling on one of the more high-profile constitutional issues as well.

    The news reported by the WaPo is this: The court, without explanation, granted the NRA’s request to give its attorney time at oral argument. The court sliced the lead attorney’s time by a third and gave it to the NRA and its recently hired attorney, Paul Clement, the former Solicitor General now at King & Spalding.

    Why might Clement need time when the attorney for those challenging the ordinances, Alan Gura (pictured), seemed to do just fine on his own in the Heller case?

    The answer lies in the fact that Gura and Clement will push different constitutional solutions to a court that might be looking to apply the Second Amendment to the states, and therefore shoot down the gun-control laws at play. The WaPo explains that the court has done that with most of the amendments — but not the Second — by relying on the “due-process clause” of the 14th Amendment.

    Gura says that using that path would be fine but that the best way to make the decision is through another clause of the 14th Amendment, one that forbids states from passing laws that would dilute the “privileges or immunities” that come with U.S. citizenship.

    Clement, however, argues that the most “straightforward route” to incorporating the Second Amendment on the states is through the Due Process Clause of the 14th Amendment. He implictly states in a recent filing that Gura hasn’t adequately addressed that argument.

    Gura bristles at “the suggestion that I wouldn’t be prepared to make that argument.” He added: “They’re not bringing anything substantive to the argument. The NRA is principally interested in taking credit and fundraising.” The NRA and Gura’s group petitioned the court to hear the review of the Chicago law, and the court picked Gura’s argument.

    But the NRA has made a good play through the back door, it seems. NRA spokesman Andrew Arulanandam responded: “Our client is the Second Amendment. We wanted to make sure that all avenues were addressed and all bases covered” in convincing the court that the amendment applies to state and local governments.



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    Regular Member rodbender's Avatar
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    I agree with Gura on this one. Follow the money.
    The thing about common sense is....it ain't too common.
    Will Rogers

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    rodbender wrote:
    I agree with Gura on this one. Follow the money.
    Ditto. I like the NRA for the most part but this is just plain stupid and they know should know better. It almost smells of sabotage, like they're trying to partially derail things so it'll take longer to wipe out the anti gun folks. It's totally unnecessary, of course, as there's plenty of fight to be had in breaking NY, NJ, MD, MA, HI, IL, and CA of their bad laws, courts, and LE that will provide plenty of targets. They should be focusing on liberating the urbanized 40% of the population and wiping out the anti gunners forever and not one bit of this tomfoolery. If they absolutely run out of all anti gun laws, organizations, and judges and cops then they can start working internationally and wipe out the anti gun political establishment totally from the face of the Earth. It needs to be done and that'll take them the century or two they want to get out of it.

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    BillMCyrus wrote:
    rodbender wrote:
    I agree with Gura on this one. Follow the money.
    Ditto. I like the NRA for the most part but this is just plain stupid and they know should know better. It almost smells of sabotage, like they're trying to partially derail things so it'll take longer to wipe out the anti gun folks. It's totally unnecessary, of course, as there's plenty of fight to be had in breaking NY, NJ, MD, MA, HI, IL, and CA of their bad laws, courts, and LE that will provide plenty of targets. They should be focusing on liberating the urbanized 40% of the population and wiping out the anti gunners forever and not one bit of this tomfoolery. If they absolutely run out of all anti gun laws, organizations, and judges and cops then they can start working internationally and wipe out the anti gun political establishment totally from the face of the Earth. It needs to be done and that'll take them the century or two they want to get out of it.
    Whatever is motivating the NRA, when the Supreme Court granted their Motion to Present Argument, it was signaling that it wanted to hear a stronger presentation on incorporation under the Due Process Clause. This is the more traditional route to incorporation.

    Gura's reasons for stretching the Privileges and ImmunitiesClause have more to do with pursuing a libertarian agendain general than gun rights specifically. Exploring the bounds of P & I is something I'd prefer to see with a differently constituted Supreme Court.

    Gura needs to coordinate his arguments with Clement. He should put the bad blood aside now and work with Clement to present the killer one/two punch.

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    So SCOTUS is susceptible to the "lesser of two weevils" argument just like the electorate? No wonder we are stuck with the left and right wings of the democrap party.



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    Master Doug Huffman wrote:
    So SCOTUS is susceptible to the "lesser of two weevils" argument just like the electorate?. . .
    Somethingmore like the "greater of two blessings" . . . . perhaps the more well trodden path.

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    This being the same NRA that brought us the Firearms act of 1934. That kind of help I think we can all do without.

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    The Donkey wrote:
    Master Doug Huffman wrote:
    So SCOTUS is susceptible to the "lesser of two weevils" argument just like the electorate?
    Somethingmore like the "greater of two blessings" . . . . perhaps the more well trodden path.
    Hey, I know about the rut that racing rats use and then complain that things never change. What's the old saw about different effects from the same old same-old causes?

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    Master Doug Huffman wrote:
    The Donkey wrote:
    Master Doug Huffman wrote:
    So SCOTUS is susceptible to the "lesser of two weevils" argument just like the electorate?
    Somethingmore like the "greater of two blessings" . . . . perhaps the more well trodden path.
    Hey, I know about the rut that racing rats use and then complain that things never change. What's the old saw about different effects from the same old same-old causes?
    The definition of insanity? Naw. Insanity would be not even trying to take what youknow isthe shortest route to the cheese. Due process is the rutted route to incorporation. Not imaginative, but effective.

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    I think this is silly...

    They're both right. It's like saying that one Attorney's argument that 'the right to bears arms' does not specify what kind or where, and that another attorney argues that 'the militia is the whole people.' And then trying to kick each others' ass over it.

    They're both right. I don't care what the rationale is, or what the record is for the parties involved. It doesn't matter. Lose the cat fight, ladies...

    They're both technically right. Presenting both arguments can't hurt. I don't like the NRA, and for some of the very reasons written about here. But that doesn't mean I'm going to throw the baby out with the bathwater...

    So they're riding along and taking credit... What lobby doesn't? They never have the balls to step up, they just Negotiate Right Away. I do think it is good that, even though they are cowards, they at least did step in behind the real doers.
    "The fourth man's dark, accusing song had scratched our comfort hard and long..."
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    Tyranny with Manners is still Tyranny.

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