NRA Motion for time in the Chicago Gun Case
Short version: People say Hey, Uncle, what the Hell is all that about? And I say Well, NRA feeling a bit left behind after Heller, is trying to get a little credit here.
Folks are wondering what this is all about. And, no, it’s not about any sort of conspiratorial enemy action. It’s about credit. And NRA wants some since gun rights are their issue. The tried to stop Heller (back when it was Parker) with their own case for, what I thought, were valid reasons (i.e., they didn’t have the votes on the court). But this looks like showboating and trying ride Alan Gura’s coattails.
The NRA is using Paul Clement to argue the case. He’s the former Solicitor General who argued for the United States that the D.C. handgun ban was not necessarily unconstitutional. To which Alan Gura brings the snark:
I hope that this time Paul understands that handgun bans are unconstitutional.
Well played.
Update: Another view from Anon Reader Dude in comments:
The thing is, Gura is more of a libertarian crusader than a gun guy, and his brief did, in fact, devote only a few pages to the Due Process Clause argument for incorporating the Second Amendment against the states — even though that is the easiest, most straightforward path to victory for gun rights. There are some Justices whose votes we need in McDonald that are unlikely to go along with Gura’s Privileges or Immunities argument, but who may be very interested in a Due Process-based argument.
NRA intervened in order to make sure the Due Process argument is fully and sympathetically presented at oral argument. Perfectly legitimate and appropriate move.
I have heard this paraphrased before as: NRA wants to save gun rights. Gura wants to save the republic.
January 26th, 2010 at 10:25 am
See what I mean, this guy is GOOOOOOD! Oh well, who can blame the NRA for wanting a bit of the limelight. They better not screw this up, people will not let them off the hook.
P.S. Paul Clement is a fuckin’ tool bag.
January 26th, 2010 at 10:26 am
Hey, that’s my wife’s pet name for me!
January 26th, 2010 at 10:31 am
Ok, then Paul Clement is a tool box! Your tooliness is far different from his!
January 26th, 2010 at 11:03 am
In one respect, Clement is the ideal person to deflect this question:
Justice Ginsberg: “Mr. Clement, you have previously argued that handgun bans were constitutional, isn’t that right?”
Clement: “Madam Justice, this court has since ruled in Heller that handgun bans are unconstitutional, and that question is now stare decisis [already decided]. The question before the Court today is whether the Fourteenth Amendment incorporates the Second Amendment against the States.”
Trying to look on the bright side…
January 26th, 2010 at 11:14 am
The thing is, Gura is more of a libertarian crusader than a gun guy, and his brief did, in fact, devote only a few pages to the Due Process Clause argument for incorporating the Second Amendment against the states — even though that is the easiest, most straightforward path to victory for gun rights. There are some Justices whose votes we need in McDonald that are unlikely to go along with Gura’s Privileges or Immunities argument, but who may be very interested in a Due Process-based argument.
NRA intervened in order to make sure the Due Process argument is fully and sympathetically presented at oral argument. Perfectly legitimate and appropriate move.
Now, NRA’s choice of Paul Clement as their counsel is another story. I’m a lot less certain that was a good move. I guess we’ll see.
January 26th, 2010 at 12:50 pm
Not enough votes for P&I. Otherwise the SCOTUS would have granted cert in NRA v Chicago which didn’t address P&I, only due process. Why put cert on hold in your due process open and shut case and instead grant the P&I case but then suddenly say “whoops, P&I isn’t popular up here in the court and maybe we want to look at due process again so we don’t botch this easy incorporation case.”
Ain’t looking good for Gura’s case. We will get the W but it will be on due process with some concurring opinion by Thomas on why P&I is awesome and due process sucks.
Although I’m holding out hope for P&I and the court is doing this to win over the liberals.
January 26th, 2010 at 3:40 pm
The thing is, Gura is more of a libertarian crusader than a gun guy…
As much as, not more of. I’m not sure in what light Gura’s gun rights credentials are weaker than his libertarian credentials.
and his brief did, in fact, devote only a few pages to the Due Process Clause argument for incorporating the Second Amendment against the states — even though that is the easiest, most straightforward path to victory for gun rights.
Gura and the Chicago team made a very deliberate strategy decision to coordinate amici curae briefs among everyone who was willing to do so to minimize overlap of topics covered. The NRA was in on that discussion and coordination. To then say, “oh, he didn’t devote much space to Due Process” when they know he knew what was going to be in their brief, when he’s stated repeatedly he’s prepared to argue Due Process as well as his favored argument, and when Due Process is in fact on such firm ground on precedent that a comparison of straight word count in his brief is irrelevant, is incomplete to the point of dishonesty.
January 26th, 2010 at 7:43 pm
Beware the upcoming betrayal during oral arguments that we will see from NRA. All of a sudden there will be a third option allowing a no-change decision in actuality while appearing to render an affirmative decision.
How else can NRA send all those “send more money” letters?
Don’t bother going all hysterical over my comment. Wait until March. Then we’ll see.
January 26th, 2010 at 8:26 pm
You have a typo in your last line. I’ve fixed it so its accurate:
NRA wants to save its cash cow, gun control. Gura wants Liberty.
January 26th, 2010 at 9:08 pm
Regardless of the outcome of the McDonald case (and I think we win), gun rights will still be under attack in Congress and state legislatures across the country.
A win in McDonald isn’t going to change the fact that gun prohibitionist will continue to introduce all manner of legislation to undermine our rights. I don’t think anyone at NRA is worried that they aren’t going to have anything to do if the Supreme Court sides with McDonald. That’s just silly and paranoid.
Btw, have anyone of you actually read the brief Paul Clement wrote on behalf of more than 300 members of congress in support of McDonald? http://www.nraila.org/media/PDFs/litigation/mcdonald_ac_congress..pdf
January 26th, 2010 at 9:59 pm
Ahh, the glorious hypocrisy of righteous indignation.
January 27th, 2010 at 12:55 am
What Linoge, you are afraid to wait and see? How does encouraging observation play into your stupid accusation of hypocrisy? Or did you just have a bout of stupid righteous indignation?
January 27th, 2010 at 2:25 am
I concur as usual with straightarrow. It seems recent SCOTUS likes not having their decisions over turned by legislation or further review, which is why the Heller case was won. Gura is right under P&I, and still gave 7 pages of his brief to Due Process. How may more obama justices should we wait for? How many more GCA’s can we have passed before ammo is totally dry. The only reason .223 is commercially available is that Wolf is imported and keeps the demand for ATK/Federal/American Eagle down. Gura spent his whole professional life preparing for these cases, and the court isn’t going to become any more conservative in the next 4 years.
January 27th, 2010 at 8:28 am
Hypocrisy: telling those who would dare to disagree with the great and almighty straightarrow to “wait and see” while straightarrow himself indulges in ceaseless prognostications of doom and gloom – the very antithesis of “waiting and seeing”.
Somehow, though, I am not surprised at how that went right over your head…
January 28th, 2010 at 2:03 am
It didn’t go over my head. I said what I had to say. you could have done the same, but in the end we have to wait and see. I didn’t see any need to get into a big rant/rave since we have months to wait and some of us will be proven right and some of us proven wrong.
Obviously, that went over your head. So if this is going to be personal go fuck yourself. There now, feel better?