Chicago Gun Case Incorporation Lawsuit

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Gura: “The suggestion that I wouldn’t present all the arguments to the Court was uncalled for. I hope that this time Paul understands that handgun bans are unconstitutional.”
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This is bad news, mostly because I'm wary of Clement arguing for us in any capacity before the Court. For Pete's sake, let's hope he doesn't try bringing up machine guns again.

If this case is set to be as important as I expect, it's likely a few Justices have cold feet in regards to overturning Slaughterhouse, and it's likely that Clement is being allowed to speak for the sake of further clarification.
 
The logical portion of my mind knows that Mr. Clement will aggressively argue on his clients (NRA) behalf, just as he argued for his former client (the U.S.). That's what attorneys do. I can find no fault there.

It is the political and therefore emotional side of me that wishes it was anyone else.

I fear entrapment by Justice Ginsberg in bringing back his (Clements) prior arguments over machine guns (to sway Kennedy).
 
Antipitas said:
I fear entrapment by Justice Ginsberg in bringing back his (Clements) prior arguments over machine guns (to sway Kennedy).
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I think the machinegun question was resolved in Heller. Shouldn't Clement be able to answer that one using the "in common use" and "dangerous and unusual" standards? Anyway, the arguments Clement proposed in Heller were not his own but that of his client. Now he has a different client. Still can't believe Bush/Cheney allowed that to happen.

I think the machinegun question is pretty well dead except on TFL of course!
 
Well, I've kind of taken the position that while I didn't agree with the NRA butting in here; I could understand their concerns and that it was one of those reasonable differences of opinions that people might have about legal strategy.

However, Ilya Shapiro (of Volokh Conspiracy, CATO, and Professor at George Washington Law School) gives the NRA a really brutal dressing down for this interference today:
http://www.cato-at-liberty.org/2010...han-gun-rights-liberty-professional-courtesy/

As somebody who has worked side-by-side with both Clements and Gura, he makes some solid points and implies that this is more about the NRA wanting to be able to brag about its participation to its membership and less about what is in the best interest of the case. I actuallly respect Shapiro's opinion quite a bit, and he does make a good argument, so I may have to rethink that.
 
Bartholomew Roberts said:
I actuallly respect Shapiro's opinion quite a bit, and he does make a good argument, so I may have to rethink that.
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Bartholomew, Don't you think the NRA was embarrassed by the success of Heller which was a gamble but one they didn't support until late in the game? Are they afraid they won't look so good to their membership (read money) as other RTKBA groups? Politics!:barf:
 
Bartholomew, Don't you think the NRA was embarrassed by the success of Heller which was a gamble but one they didn't support until late in the game?
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I think they were and I think they haven't helped themselves by their silence on that issue. They've spent a lot of time trumpeting Heller; but have yet to have an honest discussion with their membership about everything that happened with it.

Are they afraid they won't look so good to their membership (read money) as other RTKBA groups?
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That is certainly one way to look at it. Barring some direct evidence of it, I am inclined to give them the benefit of the doubt here; but I do find it hard to believe that they don't think Gura was willing/capable of the due process argument.

Part of me thinks that it is more about a clash between the NRA's inherently conservative approach and Gura's style than just fundraising/politics though.
 
[T]hey haven't helped themselves by their silence on that issue. They've spent a lot of time trumpeting Heller; but have yet to have an honest discussion with their membership about everything that happened with it.
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Some of their mistakes in the Heller debacle were explainable and (nearly) understandable. Essentially, they backed another horse because they were worried about the consequences should Gura have lost.

They should have been more forthcoming with their membership, and with the media about that. Their silence was interpreted by many as obstruction or apathy.

Gura has since proven that we can cases like this. The NRA needs to start supporting him, not working at cross-purposes. It's divisive in terms of strategy, and it's bad for public perception.

Given her position, I can certainly understand Ms. Shapiro's anger. Her article is on the mild side of criticism I've been hearing of the NRA lately.
 
Disappointed

I'm pretty disappointed and annoyed by the NRA's interference here, enough so that in addition to writing them I am trying to decide if I will continue to be a member. It looks like they are at the least obstructing Gura, in part because of their choice of counsel, I mean come on hiring Clement? As the Cato Institute article says someone taking a nap ought to be able to argue for due process incorporation successfully so why bother interjecting someone who argued for a federal districts gun ban unless it's to a) muck up the argument so you continue to have a cushy lobbying gig or b) to take credit that isn't really yours to take?
I'm pretty tired of giving money to an organization that cares more about self perpetuation and compromise than fighting for a civil right. They keep this up and they may go back to being 600,000 strong instead of the 5 million they have now.
 
I'm pretty tired of giving money to an organization that cares more about self perpetuation and compromise than fighting for a civil right.
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I know this is thread drift, so I'll keep it short.

The ILA is a very small part of the organization, and one that is not funded by membership dues. Your dues go towards safety education, instructor networks, and industry support. The ILA is solely funded by donations. Hence the phone calls and mailers.

As unhappy as I am with this, it's not going to derail the case, and it's not worth quitting over. Is it annoying and meddlesome? Yes. But the Justices' minds are likely already made, and orals are just a chance to clarify a few minor points. Though I'd like Gura to have his full 30 minutes (and I imagine the Justices could have 30 minutes worth of questions over PorI alone), his brief is what the Court will be using as the source for their decision.
 
Well, I would love to have an easy answer here; but I don't. There is a fair amount of complexity in this decision.

crashm said:
As the Cato Institute article says someone taking a nap ought to be able to argue for due process incorporation successfully
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If this wasn't about guns, then I would agree with you and Ilya Shapiro more decisively. The problem though is that normally the Justices we would count on to give us a resounding due process incorporation are not very positive about firearms. Heller was a 5-4 decision. If we presume we will not get any of those 4 votes, we have a problem because Due Process Incorporation is not popular with some of the more conservative Justices, particularly Scalia.

For example:
J. Scalia said:
During a talk at Concordia Seminary in St. Louis in January, Scalia was asked about the controlling power of the incorporation doctrine over the application of First Amendment law to the states.

"I doubt whether that's an accurate interpretation of it, but that's what the court said," was Scalia's reply. "The court has interpreted that as essentially sucking up the Bill of Rights and applying the Bill of Rights against the states," said Scalia. "And not the whole Bill of Rights, just some of the Bill of Rights, essentially those provisions that we like."
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Source.

Scalia does not like Due Process incorporation. P&I gives a better angle from an originalist perspective; but Scalia isn't going to be a fan of a broad reading of P&I or the potential for a reinvigorated P&I clause to be broadened by later courts.

If you are concerned about Scalia, Clement is going to be an excellent choice since he clerked for Scalia, worked for the U.S. in Heller, and can anticipate and address many of the arguments that might be presented.

On the flip side, Gura is no chump or neophyte. He unquestionably has the skill to handle the due process argument himself, so I tend to be skeptical of the NRA's claims here.

From what I can gather, the request is less about the NRA grandstanding and more about the NRA and Gura just do not and have not gotten along because the NRA is substantially more conservative and risk-averse than Gura.

And given some of the ideological hit pieces like the Ken Klukowski article in Town Hall, I think there are at least a few RKBA supporters who want to see a due process win because they are scared of a reinvigorated P&I clause. For this crowd, the Clement decision is a great thing.

Either way, I don't expect the divided time at orals to have much effect. The old joke is that you can't win a losing argument at SCOTUS with a brilliant oral argument; but that you can lose a winning argument with a poor oral argument. I don't think either Gura or Clement are likely to commit the latter mistake.
 
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.
 
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Antipitas, I think your link points towards the Congressional brief Clement authored. The Chuck Michel memo is here: http://www.calgunlaws.com/images/stories/Docs/NRA_McDonald_Chicago/154007_1.pdf

It does give a nice just-the-facts timeline, though I'm not sure what the multi-page dissertation on Bluebooking accomplished. It reminded me of someone bringing up the "clip vs. magazine" discussion. As long as everybody knows what you are talking about, what is the point of the distinction?

I find the reasoning little more than headlining and fund-raising.
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Well, I can think of one other reason. The Second Amendment being applied to the States is highly likely here; but how it is applied to the States has some long-term implications way beyond the Second Amendment. There are no shortage of pro-Second Amendment allies (see ACRU brief for example) who are appalled at winning through the P&I clause.

Reducing Gura's time probably doesn't endanger the overall chance that the Second is applied to the States; but it doesn't help the chances of the P&I argument.

Without strict scrutiny, 2A legal issues would result in the "mixed bag" adjudication we now have when the 4th amendment is considered.
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Of course the Court also upholds a fair amount of restrictions on Constitutionally protected behavior even with strict scrutiny. I am more concerned about how the Court applies scrutiny than what they call it. Justice Breyer outlined an "intermediate scrutiny" that was heinous in the Heller dissent. it was basically rational basis dressed up pretty so nobody would have to puke at the sight of an expressly enumerated right from the Bill of Rights being subject to a rational basis test.

My guess is that even if we get "strict scrutiny" (whether through P&I or due process), the actual application of it is likely to look a lot more like "intermediate scrutiny."
 
The separate Chicago and Oak Park cases were consolidated by the court of appeals.

Gura filed one, the NRA the other.
 
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Gura still has only had one Supreme Court argument. Clement has had like 50. Gura has done a tremendous job so far, but is it a good idea not to put all of our eggs in one basket?

Clement may not have argued as strongly for the RKBA as we all would have liked in Heller, but neither did Gura. They both accepted restrictions that most of us would probably disagree with. This could be kind of tricky for Clement this time. Imagine if he accepts restrictions at oral argument that the NRA has rejected. The NRA does, after all, formally oppose the ban on machineguns. If Clement accepts some of these "reasonable restrictions" that the NRA opposes in order to win this particular case, all of the NRA haters on the gun boards will finally have their proof that the NRA really does hate guns.:rolleyes:

I think is a little ripe to claim the NRA has an alternative agenda, when Cato and Gura obviously do as well with their emphasis on the P&I argument. This case is about a lot more than guns for them. They are libertarians who want the court to discover other unenumerated rights in the P&I clause to roll back the nanny state.
 
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