Legal/NRA: NRA originally against DC HG ban case?

[Perldog007]

You have to understand what a threat this is to the NRA. Gun bans are the best thing that ever happened to them. If gun bans become a non-issue, the NRA loses a lot of money.

Ahhhh, yeh. I never realized that the politics of victimhood were played by the "pro" gunners. Dang, that's kind of weird when the obvious hits you like that.

Makes sense. The NRA would have known to bring an action like this thirty years ago.

In my time the unregistered handgun (or using your SPO duty weapon for SD/HD) was a misdemeanor. When it became a felony to carry your service revolver from one room of the house to another and have any unregisterd handgun, I got out of Dodge.

D.C. was a beautiful place in the 1960's from what remains of my childhood memories. By 1990 the ban had turned the Capitol into a Cesspool.

Even the D.C. police chief got on national tv and said that the ban had caused a slight decrease in domestic violence and a radical increase in street violence with overall crime increasing.

Seems such a shame the NRA acted the way it did. Power corrupts.

 

[publius42]

Does anyone here actually possess a copy of the order denying the consolidation?

There are a couple. The first one because the sharp legal minds at the NRA filed with the wrong court.

When they got to the right court, the Brief Opposing Consolidation and Supporting Recusal of Counsel laid out how the NRA was attempting to complicate the issue and why Stephen Halbrook should be recused from the case for taking a position in opposition to his former clients.

When asked why Seegars and its consolidation motion were filed, Mr. Halbrook admitted that the motivation is the NRA’s desire to have its counsel share argument time in the Court of Appeals – clearly an improper purpose for filing litigation, and an attempt to subvert both the circuit court’s rules governing the filing of amicus curiae briefs as well as plaintiffs’ absolute right to their choice of counsel and litigation strategy.

The court agreed that consolidation would unnecessarily complicate the case and denied the motion.

Violations of constitutional rights are not mere 'tangential issues'. If DC's gun laws violate any part of the constitution, they ought to be struck down, and a court can't find a violation unless that violation is specifically alleged.

But those questions don't require consolidation. No one is saying the NRA could not press the Seegars case, but just because they have a case with lots of issues, one of which is the same issue as Parker, does not mean the cases should be consolidated.

As stated above, the original plaintiff's claim that the law violated his second amendment constitutional rights would still have been adjudicated if the case had been consolidated.

Eventually, perhaps, after sorting through other issues, but thankfully the Court saw no reason to delay Parker's case by sorting through the issues the NRA was trying to tack on to the case.

none of it would have prevented a ruling addressing the second amendment.

But the legislative remedy the NRA was simultaneously pushing most certainly would have done so. Any comment on that part of the sabotage attempt?

 

[Al Norris]

OK, then I don't understand how this works. Why do they still treat Lopez as if it is precedent, when the law which they tossed has been rewritten?

United States v. Lopez, 514 U.S. 549 (1995) overturned the The Gun-Free School Zones Act of 1990. In doing so, the Court made some specific findings that the Congress used in 1996 (Public Law 104-208) to revise and restate the former provisions of 18 USC 922(q).

In essence then, the old law was invalidated and Congress applied the specifics of the ruling and devised a new law that met the requirements laid down by the Court.

I know that the change in the law had the practical effect of mooting the Lopez decision, but did it mean Lopez should no longer be treated as a precedent?

Actually, no. It was a new law. If anything diminished Lopez it was the Raich decision. The dissent by Justice Thomas lays it out.

Did things really get worse there?

There is always the potential for things to get worse, especially when dealing with a right that the Court refuses to accept a fundamental.

Consider those States that have "Duty to Retreat" laws. Would you care to see a national law like that?

Since self-defense is one of the "private purposes" of the question, would you care to see laws that limit self-defense to only have rational basis as the test of legality?

I see one of the controlling factors as being that the Court has, until now, refused to comment upon the scope of the 2A. If such a decision is handed down (not a fundamental right - rational basis applies), the controls will have been taken off.

 

[publius42]

In essence then, the old law was invalidated and Congress applied the specifics of the ruling and devised a new law that met the requirements laid down by the Court.

But that action by Congress didn't moot Lopez as precedent. The court invalidated parts of the DC code, and if Congress revised the code to make a new law which would conform to what they said, wouldn't the ruling of the court still have standing as precedent, like Lopez?

In other words, if the NRA did manage to get the law changed and the case tossed out as moot at this point, would we be back to pointing to the 5th as the only place where the individual rights model is recognized, or could we continue to also point to DC?

If anything diminished Lopez it was the Raich decision. The dissent by Justice Thomas lays it out.

Thomas is my favorite, but it was O'Connor in the primary dissent who said, "If the Court is right, then Lopez stands for nothing more than a drafting guide..."

Consider those States that have "Duty to Retreat" laws. Would you care to see a national law like that?

I don't think the current interpretation of the 2A would stop such a law, and the current interpretation of the commerce clause is certainly broad enough to allow it. Heller can only change that for the better.

Since self-defense is one of the "private purposes" of the question, would you care to see laws that limit self-defense to only have rational basis as the test of legality?

Isn't that where we are today? Again, Heller can only make it better.

I see one of the controlling factors as being that the Court has, until now, refused to comment upon the scope of the 2A. If such a decision is handed down (not a fundamental right - rational basis applies), the controls will have been taken off.

But their refusal to comment has meant in practice that no 2A controls are on, so how can they be taken off?

 

[johnbt]

"Central to Gura's litigation strategy was to craft a case where there was absolutely no issue involved except the 2nd amendment"

I predict that if they lose this so-called perfect case we'll see two things. First ,there will be blame heaped on the NRA for letting it happen. Second, there will be numerous demands for the NRA to do something to save us.

John

 

[buzz_knox]

In other words, if the NRA did manage to get the law changed and the case tossed out as moot at this point, would we be back to pointing to the 5th as the only place where the individual rights model is recognized, or could we continue to also point to DC?

It would still be a valid decision that could be adopted or rejected depending on the case law and whim of the other circuits. The risk of an all out defeat at the Supreme Court level would be eliminated, though.

 

[Musketeer]

I actually spoke to LaPierre about this 2 years ago at a meeting on Long Island. The bottom line is would you bet your house and entire life's savings on something that was not a sure thing? Being RIGHT doesn't matter squat if the court, for personal reasons and agendas, decides against you. Frankly speaking some of the SCOTUS justices appointed by conservatives have turned out to be anything but... The is no certainty how things will go. At the same time you have new justices who MAY be real Constitutionalists but could also be in favor of allowing gov't power in situations where they feel it is the greater good. Remeber, we have W appointees who were put in at a time when he was looking to expand governmental powers with no counterbalance. Having justices who agree with him in such matters might be benificial...

What does that mean for the 2A? We don't know. We do know we have two justices who were put there by a man who thinks the gov't should be able to take actions against individuals with minimal opposition or answerring to due process... Now both Roberts and Alito may turn out to be strong Consitutionalists but it is very early to bet the house on that. They could also think it more important that the gov't be able to disarm individuals for the greater good as part of the "War on Terror." Justices have acted out of their own idealism in the past and will continue to do so.

I THINK we can win. I am 80 -90% certain we can win. At the same time I would not bet everything I own on an 80 or even 90% bet and that is the same path the NRA took. Now that it is going forward they are backing it but originally they saw the huge downside as too great a risk.

 

[Fremmer]

Asking a court to adjudicate common issues of law and fact is not sabatoge and conspiracy. Well, unless you're a member of GOA, in which case everything is one massive conspiracy. The NRA lobbies, and they do it quite well. The GOA can lobby if it wants to, too. Although I'm unaware of any substantive accomplishments by GOA, other than complaining about the NRA.

Please let me know how consolidation would have prevented the adjudication of the plaintiff's second amendment claims.

 

[Al Norris]

In other words, if the NRA did manage to get the law changed and the case tossed out as moot at this point, would we be back to pointing to the 5th as the only place where the individual rights model is recognized, or could we continue to also point to DC?

The NRA was not wanting to change the law in D.C. They wanted to outright repeal the D.C. Code. That is what moots the case.

The Circuit Court flat out said the law was unconstitutional. It did not give any legislative "road map" to reword or revise it.

(I)t was O'Connor in the primary dissent who said, "If the Court is right, then Lopez stands for nothing more than a drafting guide..."

One of my favorites from Thomas, was this:

If the majority is to be taken seriously, the Federal Government may now regulate quilting bees, clothes drives, and potluck suppers throughout the 50 States. This makes a mockery of Madison’s assurance to the people of New York that the “powers delegated” to the Federal Government are “few and defined,” while those of the States are “numerous and indefinite.” The Federalist No. 45, at 313 (J. Madison).

Since self-defense is one of the "private purposes" of the question, would you care to see laws that limit self-defense to only have rational basis as the test of legality?

Isn't that where we are today? Again, Heller can only make it better.

No. Currently, several States have laws and case law that requires strict scrutiny. Should the Supreme Court hold that the right is not fundamental, then it becomes "law of the land" and the lessor test would have to be used everywhere.

Asking a court to adjudicate common issues of law and fact is not sabotage and conspiracy. Well, unless you're a member of GOA, in which case everything is one massive conspiracy.

I think, if you go back over a few of my posts, as they regard the GOA, you can not say that about me.

However, by all criteria, the NRA was against the Parker case simply because they weren't in control. They did try to sabotage the case.

Fremmer, this isn't bashing the NRA. This is simply telling the tale as it played out. You can call it whatever you want. It won't change the facts. I laid it out in this post, to which you had no reply... Until now.

 

[publius42]

No. Currently, several States have laws and case law that requires strict scrutiny. Should the Supreme Court hold that the right is not fundamental, then it becomes "law of the land" and the lessor test would have to be used everywhere.

I have been asking the same question over and over here and elsewhere, and finally there is an answer. A real downside risk from the Heller case, at least for some states. Thanks for the education, Antipitas.

 

[Brett Bellmore]

I predict that if they lose this so-called perfect case we'll see two things. First ,there will be blame heaped on the NRA for letting it happen. Second, there will be numerous demands for the NRA to do something to save us.

John

Well, I certainly won't be heaping any of that blame. There's no question at all that bringing this case is a gamble. And it's a gamble the NRA was flatly opposed to.

The problem is that NOT bringing this case is also a gamble.

Right now, for this brief moment, we've got a decent Court. That we'll win is by no means guaranteed, but it's certainly plausible. But in a couple years President Obama or Guliani could have a lucky break when Thomas and Scalia die while carpooling to work, and suddenly the Court has a guaranteed majority in favor of declaring the 2nd amendment a dead letter.

Then the antis find some crackhead who got off on murder charges on a technicality, and fund HIS challenge to D.C.'s law, with lead counsel playing to lose. And the NRA's got no way at all of stopping it all from going down the tubes.

You strike when the iron is hot, and take your chances. The iron is hot, this is the best shot we're ever likely to get at having the 2nd amendment actually enforced in court.

And if we lose, as we very well might? I say it's time to press "reset" on the Constitution, and have that Convention. Because there ain't much left of the Constitution at this point to preserve.

 

[Fremmer]

The court agreed that consolidation would unnecessarily complicate the case and denied the motion.

No, the court held that attorney-client issues precluded the Motion to Consolidate. So you know know that the assertion regarding the other constitutional violations is legally incorrect, and had nothing to do with the denial of consolidation.

In fact, the NRA did exactly what it should have done. It acted to help other citizens whose constitutional rights were also violated by the DC gun laws. It tried to lobby for a change in the legislation. This is what an effective lobby does -- it acts to obtain results. Which is exactly what NRA members expect the NRA to do.

And as a matter of law, consolidation of the cases would not have precluded the adjudication of the second amendment claims. So everything I'm hearing about the NRA's so-called conspiracy against the case doesn't hold any water at all. If you disagree, please cite a case to Rule 42 holding that consolidation somehow would have prevented the court's ruling on the second amendment claim.

 

[Brett Bellmore]

So you know know that the assertion regarding the other constitutional violations is legally incorrect, and had nothing to do with the denial of consolidation.

Has anybody claimed that the consolidation was denied because the NRA was trying to raise other issues? Not that I noticed. Gura was lucky, if the NRA had been less rushed and clumsy in it's effort to hijack his case, it would have been permitted.

And as a matter of law, consolidation of the cases would not have precluded the adjudication of the second amendment claims.

]

Oh, come off it. Sure, consolidation of the cases wouldn't have prevented the Court from adjudication of the second amendment claims, IF IT WANTED TO ADJUDICATE THEM. What it would, unquestionably have done, is enable the Court to avoid adjudicating them, if it so wanted. And Gura's aim was to craft a clean case where they couldn't avoid adjudicating them.

That was the NRA's aim in consolidating the cases: To give the Court an "out", so that they could go on ducking the 2nd amendment for a little longer.

In fact, the NRA did exactly what it should have done. It acted to help other citizens whose constitutional rights were also violated by the DC gun laws.

But, as you're well aware, they didn't need to consolidate the cases to do that.

You're putting a remarkable amount of effort into this attempt to rationalize away the obvious, that the NRA was trying to sabotage Gura's litigation strategy. But it isn't working, it's just making you look silly.

 

[publius42]

No, the court held that attorney-client issues precluded the Motion to Consolidate.

Here is what the order said:

Consolidation of the two cases would require resolution of complex attorney-client ethical and professional responsibility issues prior to any attempt to resolve the underlying substantive issues. Accordingly, in an effort to avoid any protracted delay in the resolution of the merits in either case, the Court will not consolidate the two cases.

In fact, the NRA did exactly what it should have done. It acted to help other citizens whose constitutional rights were also violated by the DC gun laws. It tried to lobby for a change in the legislation.

That ban has been there for 30 years, and the NRA finally got around to lobbying for a repeal when the Parker case came along. Interesting timing, to say the least.

And as a matter of law, consolidation of the cases would not have precluded the adjudication of the second amendment claims.

No, but as the topic article, Brett, Antipitas, and I have pointed out, it would allow the cases to be resolved without addressing the 2A issues. From the topic article:

Discouraging freelance plaintiffs is important to the NRA, whose lawyers worry they tend to file complaints that throw multiple theories against the wall to see what sticks.

So when a pure 2A case comes along, the NRA suddenly abandons that strategy and tries to consolidate the case with one that throws multiple theories against the wall to see what sticks.

It looks like sabotage to me. They could pursue the Seegars case without consolidation. Why do you think the NRA felt consolidation was necessary? Is there some reason other than gaining control of the Parker case for them to pursue consolidation, against the wishes of the Parker group of plaintiffs?

 

[Fremmer]

LOL. You cite the order holding that attorney client issues barred consolidation, and then allege that "muliple theories" show some kind of purported scheme by the NRA against the case. But none of that really matters, because....

If you disagree, please cite a case to Rule 42 holding that consolidation somehow would have prevented the court's ruling on the second amendment claim.

You can't, and that's because consolidation wouldn't have prevented the same ruling that we have now.

 

[publius42]

You can't, and that's because consolidation wouldn't have prevented the same ruling that we have now.

It wouldn't have prevented it, and no one said it would, but would have made it a heck of a lot less likely.

Why do you think consolidation of a pure 2A case with one carrying lots of other distracting baggage was necessary, or even a good idea at all? Why is it so important to you to justify this attempted consolidation as "protecting other citizens" when that could as easily have been done without consolidation?

What purpose do you think it served?

 

[Al Norris]

Fremmer, you are dancing all over this issue.

Your defense of the NRA's using Rule 42 to consolidate the cases is without merit.

What you steadfastly refuse to acknowledge is the fact that the subsidiary issues involved in Seegars, would have clouded the single 2A issue involved in Parker.

The issue is not that the courts could have still reached the merits of the 2A issue(s), but that the courts would have taken the proffered "out" of deciding the questions on grounds other than the 2A.

You are ignoring that, in your resolute defense of the NRA to some imagined bashing. Bashing, that I remind you, I have stated that I will not allow in this thread.

If it looks like a duck, walks like a duck and quacks like a duck, then in all probability, it is a duck. That is all anyone is saying.

 

[Fremmer]

I suppose you could look at it that way.

And I sincerely hope that the US Sup court holds individual right, applicable to states and districts.

We'll have to see.