The NRA, The Second Amendment, Alan Gura And The McDonald Case
I would like to outline what I think is going on (another of my "long reads" - so please bear with me).
As a statement of the facts of Supreme Court adjudication, the merits of any case are argued within the briefs themselves. Briefs filed by the parties involved and briefs filed by any interested but non-involved parties: The amici (
Amicus Curiae - Friends of the Court).
Knowing how this works, I can state that before the orals arguments, the case has pretty much already been decided. What then is the purpose to the orals arguments?
While many legal minds offer their various opinions, I think it can be summed up as: The orals are a forum for the Court to get any remaining material out in the open, so to speak,
and for the Justices themselves to argue their own opinions to the other members of the Court in a public manner.
Because of this method, the old axiom of:
Cases are won by the merits briefs, but can be lost at orals; is rather true. A public utterance by an attorney during orals will snatch defeat from the jaws of victory.
Now let's turn to the Strategy of the McDonald Case.
Alan Gura was in close contact, and coordinated the efforts (of dividing the arguments) with all of the amici. The results of this was that the Due Process Incorporation method was well briefed by the majority of them (the amici).
It was understood, by everyone, that trying to overturn a centuries old precedent required Alan Gura to argue the case for P or I Incorporation more so than the DP clause. The primary reasoning for arguing P or I re-invigoration was that should the Court rule for Gura, then strict scrutiny automatically attaches to any "privileges or immunities" of U.S. Citizens (see
Dred Scott v. Sandford, 60 U.S. (19 How.) 393 (1857), and also
Corfield v. Coryell, 6 Fed. Cas. 546, no. 3,230 C.C.E.D.Pa. (1823)). The Court would not have to rule on scrutiny at all, if Due Process is the incorporation vehicle.
At these strategy meetings,
it was understood and agreed upon, that Gura would argue for the P or I clause while the NRA-ILA would argue for Due Process incorporation (If one is to believe what Gene Hoffman (CalGuns Foundation) and Donald Kilmer (
Nordyke, Sykes and
Pena) have said, this was agreed to by the NRA-ILA), within the merits briefs. It was also understood, and agreed upon, that Alan Gura would argue both at orals.
Now, we find that the NRA-ILA (through Paul Clement, former SG who argued against
Heller as the governments advocate) has argued that because Gura did not adequately brief the Court upon Due Process incorporation, that the Court needs to let the NRA (through Paul Clement) take 10 minutes of Gura's time (30 minutes have been allocated to Gura), to make just that Due Process argument.
This is no more (or less) disingenuous of the NRA than what the they did with
Parker v. D.C., before it became a winning case (
D.C. v. Heller).
The NRA has released their reasons for this behavior through their CA attorney, Chuck Michel
* (this is in no way meant to disparage Mr. Michel, he is an outstanding 2A advocate and attorney, merely a statement of fact).
I find the reasoning little more than headlining and fund-raising. The "urge" to appear to be out in the front of the "battle," for their 2A members, may get us incorporation, but at what cost? Years more litigation to settle the question of what form of judicial scrutiny applies to the second amendment, in an "as applied" case?
Without strict scrutiny, 2A legal issues would result in the "mixed bag" adjudication we now have when the 4th amendment is considered. Such a result has whittled down much of the protections that amendment was supposed to have had. Do we want to see this happen to the second?
This may have happened in any case, but now we will never know. all because the NRA wants to still appear to be relevant to its members and its cause.
There is hope that 2A incorporation will still be through the P or I clause, but that hope has just been narrowed considerably.
Please understand, this is not any kind of call to abandon the NRA. I don't for a minute think that the entire Board of Directors is behind this. I lean more towards this being something Chris Cox (NRA-ILA) has dreamed up.
*
NRA'S LEGAL STATUS IN McDONALD CASE, written by California 2A attorney, Chuck Michel.