From Alan Korwin:
4- Insider Details on NRA "Plan" to Overturn Parker Case
The D.C. Circuit Court of Appeals decision in Parker v. D.C. was a milestone in Second Amendment decisions -- the court declared in no uncertain terms that the right to keep and bear arms is an individual right. Gun lovers popped champagne and gun haters popped an artery.
But talk on the street says the NRA didn't want this case to be heard, doesn't want this case appealed to the Supreme Court (which may very well occur), and wants it vacated and moot by repealing the D.C. gun ban in the first place. That would erase the gains made by the brilliant decision. A good deal of evidence implies a degree of truth to the rumor. What's up?
The NRA is indeed promoting the "D.C. Personal Protection Act," which if enacted would repeal the 31-year-old D.C. total gun ban. If that bill succeeds it will make the Parker case moot. Parker is a superb gun case -- the plaintiffs include a black woman in a dangerous neighborhood threatened by vicious thugs, an officer who can carry on the job but not in his own apartment, a member of the Cato Institute... not the usual bottom-feeding criminals trying to squirm out of felony criminal charges by challenging the constitutionality of a law. Why would the NRA try to derail that?
I asked around at the NRA convention in St. Louis last weekend (4/12-4/15), and there were plenty of answers. Some you may like and some you may reject.
[Comments from the chief sponsor of the case, attorney Robert Levy, appear in brackets. Levy is a Senior Fellow in Constitutional Studies at the Cato Institute, but is acting independent of the Institute.]
If you get a sense that there are personality conflicts or some bad blood underlying parts of this, you wouldn't be completely wrong. You get the NRA and this many powerful attorneys buzzing around a crucial case and you're going to have some friction and disagreement -- and I'm being nice about it.
Now, don't get angry at me -- I'm not necessarily agreeing with any of this -- I'm just the messenger, so you can know what's floating around:
- In all seriousness NRA Exec. VP Wayne LaPierre announced publicly at the Grassroots seminar, "Parker is going to go up and we have a damn good chance of winning it!"
- In contrast, NRA president Sandy Froman accurately said during her formal remarks at the Member's Meeting, "Although we know what the outcome (of Parker) should be, there's no guarantee that it will be what it should be."
- Froman did the math and said two votes are sure, and two more are likely. "Two and two makes four. But four Justices out of nine is not a majority." Just that suggestion is chilling, implying we have a Court of people not laws. But we do, and both sides know it. The details of the case are less of an issue than the people on the bench.
- Strategy-wise, this is "a dual-track plan," one wonk notes. "Hope for the best, prepare for the worst," another says cautiously. Parker would make good law, but it's not guaranteed to succeed. If it fails, you want a backup strategy.
[Levy notes: Why have a backup more than a year before the Supreme Court could possibly decide Parker? If a backup is necessary, there's plenty of time without risking that the DC Personal Protection Act will be added as a rider to some legislation that has bi-partisan support (that almost happened a couple of weeks ago).]
- Congress has numerous new players with no grade on gun issues. The push to repeal the gun ban has the side benefit of getting both chambers on the record -- do you support a particularly bad gun ban or not? Congress members recognize this.
[Levy notes: Ditto, previous comment. Why run the risk now? There's plenty of time to score members of Congress. If the DC Personal Protection Act is such a rush issue, where has it been for the past 31 years?]
- Legislators who commit to repeal the ban by co-sponsoring the bill earn an "A" as far as it goes, and we'll see what the future brings.
- Three tries to repeal the ban didn't pass when Republicans controlled Congress so it has a low chance of passage now. Unlikely for Waxman to allow it heard in committee, or a unanimous consent resolution to take it to the floor. Its chances of making Parker moot are thus slim, and no effort will go into forcing that prematurely. This is no secret to Congress watchers.
[Levy notes: If the DC Voting Rights bill hadn't been pulled from the floor, it might well have passed with a rider that mooted the Parker litigation. Those kinds of things happen in Congress, all the time ... and they're not entirely predictable. ]
[Korwin points out: If it isn't obvious by now it should be -- the NRA is less than pleased that it isn't running this show, and the various players are not tightly aligned on strategy. Well-meaning individuals can have legitimate differences of opinion. You're getting to see the fly-on-the-wall perspective that is so often hidden from view.]
- 41 Senators are on the bill at introduction, which is itself a good thing. Those commitments have value later (69 are on the House bill).
- The Cato Institute (presumed by many to be the force behind the case, though it is actually a private effort that includes some Cato members), according to random scuttlebutt: understands the law well but doesn't understand the politics at all; doesn't care; doesn't "get" it; can just walk away later; won't have to pick up the pieces like the NRA will if the case fails, is rolling the dice with your kid's tuition on the line.
[Levy notes: Let me say this in plain terms: the Cato Institute did not start this case, has nothing to do with the litigation, hasn't even filed an amicus brief, and won't be involved in any legal tactics or strategy at any point. At most, Cato will help generate media support, and file a brief with the Supremes. So to suggest that Cato "can just walk away later" is irrelevant and absurd. Cato can't walk away from something it never has been associated with. As for the "private effort that includes some Cato members" -- i.e., me -- I have years of work and plenty of bucks invested in constitutional issues like this one. I'll match my commitment of time and resources against anyone at the NRA or elsewhere. It's frankly offensive for someone to suggest that I "don't understand," "don't care," "don't get it," or that I'm "rolling the dice." That applies doubly with respect to both of my co-counsel.]
[Korwin points out: People were willing to speak to me, an arms-length third party, in realistic and candid terms they would likely not use face-to-face, which is why I have identified none by name. Some remarks were made in personal confidence and do not appear here at all. I told everyone I spoke with that I don't know what to say when people ask me why NRA objects to the Parker case, or seems to be trying to scuttle it, and openly sought help in understanding so I could explain it (I have not even begun to explore the Seegars debacle). It is clearly instructive to hear what's going on, though it's perhaps less than satisfying, or painful, to hear what people really think about you when you're not in the room, whether they're right, wrong, or nuts.]
- Everyone expects a conservative outcome. So where was that on the Kelo case (eminent domain)? On McCain Feingold campaign finance reform (suppression of speech before an election)? On the EPA case (global warming pollution from CO2)? The results are far from guaranteed.
- "Show me five votes! Show me five! You can only show me four."
- This case was filed when O'Conner was on the bench -- it was terrible timing, even though the timing now is better, and might get even better if there's another vacancy soon.
[Levy notes: When this case was filed (Feb. 2003), it was virtually certain that the Court would look better by the time Parker went up. That's what we told the NRA when its representatives cautioned against filing the case. Our prediction turned out to be 100% correct. The Court now looks better than anytime in recent memory, and better than it's going to look longer-term.]
- Just because a vacancy may come up doesn't mean Bush can get a good appointee through the Democrat controlled Senate and committees.
- Just because there's a vacancy doesn't mean Bush won't fold with a squishy candidate, or a candidate who changes stripes once appointed.
- NRA filed a powerful and significant amicus brief, documenting state-level Second Amendment actions that invalidated unconstitutional gun bans.
- NRA also supported a Congress of Racial Equality amicus brief.
- The Parker decision still blatantly denies rights to residents that a ban repeal would fix -- it only allows possession by registration and permit, at government discretion, only at home, with no way to get a gun to the home, and no way to purchase across state lines. What good is a registered permitted gun that you can't obtain? A ban repeal addresses that (somewhat).
[Levy notes: Anything that Parker doesn't address can certainly be addressed by suitable legislation -- but NOT a bill with a provision that would moot Parker. By all means, let the NRA introduce legislation that will accomplish all of its many goals. In fact, my co-counsel and I have already drafted legislation (sent to selected senators) that does everything the NRA-sponsored bill does, without putting Parker at risk. And of course, it's too obvious to point out that the DC Personal Protection Act addresses only DC; a Supreme Court pronouncement applies everywhere.]
- You're talking about arguing the most crucial issue at the highest court in the land, with an attorney some observers at the NRA do not hold in high esteem. One person questioned whether any attorney at the NRA itself was of sufficient mettle to tackle the case, and suggested you want someone of at least the stature and competence of Ted Olson, or perhaps Lawrence Tribe, on something this big.
[Levy notes: Well, let's see: Which lawyers sued the Justice Department in Seegars, only to have the DOJ attorneys prevail on a standing argument that DC lawyers never thought of? Which lawyers neglected to have one of the Seegars plaintiffs apply for registration to ensure there would be legal standing? Which lawyers asserted every cause of action imaginable in Seegars, giving the court a non-Second-Amendment path to resolving the case? Then again, which attorneys won in Parker?]
[Korwin points out: And just for the record, lead attorney Alan Gura, a graduate of Cornell (1992) and Georgetown Law (1995), does have an impressive list of accomplishments, including the stunning win in the Parker case.]
- The devastation of a loss is so great that of course you have to be reluctant to jump into the fray. (I've been saying this for years -- that both sides are terrified to bring a case, and rightly so.) A lack of reluctance to proceed is viewed by some as reckless.
[Levy notes: There are more than enough reasons to go for the Supremes NOW. But if only one reason were needed, here it is: Virtually every wrongly-decided 2d Amendment case has been US v. Someone -- in other words, a criminal case -- brought by an accused felon-in-possession or some bank robber or crackhead seeking to reverse a sentencing enhancement. Sooner or later, when four liberal justices sense that the time is right, the Court is going to reach down and grab one of those cases. We warned the NRA about that four years ago. And we still haven't heard a game plan to avoid the problem. In short, if a good case doesn't go up, a bad one will.]
- A cogent case can be made for a collective rights view (Militia as response to Founders' fear of standing army, recent-history court activity, foreign precedents, etc.) which although bogus, can be used by ideologues on the Court to justify a decision that is results driven, instead of law, fact or precedent driven. If some Justices are seeking a means to an end, do you give them the opportunity?
[Levy says: That's an argument for never doing anything. There's always a risk in going to the Supremes. But this time we have a good Court, a great case, the perfect venue, a sympathetic Justice Department, no incorporation issue, outstanding plaintiffs, 47 states to win, only 3 to lose, and a terrific appellate opinion. In the unlikely event that 5 of the current justices decide to read the 2d Amendment out of the Constitution by upholding a total ban on handguns, that would be the time for Congress to act. Furthermore, a ruling that the 2d Amendment is effectively meaningless seems unlikely during the heat of the '08 election, when it would be a rallying cry for the pro-gun community. Finally, if the Court is so inclined, it has ways to reverse Parker without reaching the merits (e.g., standing). Wayne is supposed to have some insight on these matters. Let's take him at his word: "Parker is going to go up and we have a damn good chance of winning it!"]
4- Insider Details on NRA "Plan" to Overturn Parker Case
The D.C. Circuit Court of Appeals decision in Parker v. D.C. was a milestone in Second Amendment decisions -- the court declared in no uncertain terms that the right to keep and bear arms is an individual right. Gun lovers popped champagne and gun haters popped an artery.
But talk on the street says the NRA didn't want this case to be heard, doesn't want this case appealed to the Supreme Court (which may very well occur), and wants it vacated and moot by repealing the D.C. gun ban in the first place. That would erase the gains made by the brilliant decision. A good deal of evidence implies a degree of truth to the rumor. What's up?
The NRA is indeed promoting the "D.C. Personal Protection Act," which if enacted would repeal the 31-year-old D.C. total gun ban. If that bill succeeds it will make the Parker case moot. Parker is a superb gun case -- the plaintiffs include a black woman in a dangerous neighborhood threatened by vicious thugs, an officer who can carry on the job but not in his own apartment, a member of the Cato Institute... not the usual bottom-feeding criminals trying to squirm out of felony criminal charges by challenging the constitutionality of a law. Why would the NRA try to derail that?
I asked around at the NRA convention in St. Louis last weekend (4/12-4/15), and there were plenty of answers. Some you may like and some you may reject.
[Comments from the chief sponsor of the case, attorney Robert Levy, appear in brackets. Levy is a Senior Fellow in Constitutional Studies at the Cato Institute, but is acting independent of the Institute.]
If you get a sense that there are personality conflicts or some bad blood underlying parts of this, you wouldn't be completely wrong. You get the NRA and this many powerful attorneys buzzing around a crucial case and you're going to have some friction and disagreement -- and I'm being nice about it.
Now, don't get angry at me -- I'm not necessarily agreeing with any of this -- I'm just the messenger, so you can know what's floating around:
- In all seriousness NRA Exec. VP Wayne LaPierre announced publicly at the Grassroots seminar, "Parker is going to go up and we have a damn good chance of winning it!"
- In contrast, NRA president Sandy Froman accurately said during her formal remarks at the Member's Meeting, "Although we know what the outcome (of Parker) should be, there's no guarantee that it will be what it should be."
- Froman did the math and said two votes are sure, and two more are likely. "Two and two makes four. But four Justices out of nine is not a majority." Just that suggestion is chilling, implying we have a Court of people not laws. But we do, and both sides know it. The details of the case are less of an issue than the people on the bench.
- Strategy-wise, this is "a dual-track plan," one wonk notes. "Hope for the best, prepare for the worst," another says cautiously. Parker would make good law, but it's not guaranteed to succeed. If it fails, you want a backup strategy.
[Levy notes: Why have a backup more than a year before the Supreme Court could possibly decide Parker? If a backup is necessary, there's plenty of time without risking that the DC Personal Protection Act will be added as a rider to some legislation that has bi-partisan support (that almost happened a couple of weeks ago).]
- Congress has numerous new players with no grade on gun issues. The push to repeal the gun ban has the side benefit of getting both chambers on the record -- do you support a particularly bad gun ban or not? Congress members recognize this.
[Levy notes: Ditto, previous comment. Why run the risk now? There's plenty of time to score members of Congress. If the DC Personal Protection Act is such a rush issue, where has it been for the past 31 years?]
- Legislators who commit to repeal the ban by co-sponsoring the bill earn an "A" as far as it goes, and we'll see what the future brings.
- Three tries to repeal the ban didn't pass when Republicans controlled Congress so it has a low chance of passage now. Unlikely for Waxman to allow it heard in committee, or a unanimous consent resolution to take it to the floor. Its chances of making Parker moot are thus slim, and no effort will go into forcing that prematurely. This is no secret to Congress watchers.
[Levy notes: If the DC Voting Rights bill hadn't been pulled from the floor, it might well have passed with a rider that mooted the Parker litigation. Those kinds of things happen in Congress, all the time ... and they're not entirely predictable. ]
[Korwin points out: If it isn't obvious by now it should be -- the NRA is less than pleased that it isn't running this show, and the various players are not tightly aligned on strategy. Well-meaning individuals can have legitimate differences of opinion. You're getting to see the fly-on-the-wall perspective that is so often hidden from view.]
- 41 Senators are on the bill at introduction, which is itself a good thing. Those commitments have value later (69 are on the House bill).
- The Cato Institute (presumed by many to be the force behind the case, though it is actually a private effort that includes some Cato members), according to random scuttlebutt: understands the law well but doesn't understand the politics at all; doesn't care; doesn't "get" it; can just walk away later; won't have to pick up the pieces like the NRA will if the case fails, is rolling the dice with your kid's tuition on the line.
[Levy notes: Let me say this in plain terms: the Cato Institute did not start this case, has nothing to do with the litigation, hasn't even filed an amicus brief, and won't be involved in any legal tactics or strategy at any point. At most, Cato will help generate media support, and file a brief with the Supremes. So to suggest that Cato "can just walk away later" is irrelevant and absurd. Cato can't walk away from something it never has been associated with. As for the "private effort that includes some Cato members" -- i.e., me -- I have years of work and plenty of bucks invested in constitutional issues like this one. I'll match my commitment of time and resources against anyone at the NRA or elsewhere. It's frankly offensive for someone to suggest that I "don't understand," "don't care," "don't get it," or that I'm "rolling the dice." That applies doubly with respect to both of my co-counsel.]
[Korwin points out: People were willing to speak to me, an arms-length third party, in realistic and candid terms they would likely not use face-to-face, which is why I have identified none by name. Some remarks were made in personal confidence and do not appear here at all. I told everyone I spoke with that I don't know what to say when people ask me why NRA objects to the Parker case, or seems to be trying to scuttle it, and openly sought help in understanding so I could explain it (I have not even begun to explore the Seegars debacle). It is clearly instructive to hear what's going on, though it's perhaps less than satisfying, or painful, to hear what people really think about you when you're not in the room, whether they're right, wrong, or nuts.]
- Everyone expects a conservative outcome. So where was that on the Kelo case (eminent domain)? On McCain Feingold campaign finance reform (suppression of speech before an election)? On the EPA case (global warming pollution from CO2)? The results are far from guaranteed.
- "Show me five votes! Show me five! You can only show me four."
- This case was filed when O'Conner was on the bench -- it was terrible timing, even though the timing now is better, and might get even better if there's another vacancy soon.
[Levy notes: When this case was filed (Feb. 2003), it was virtually certain that the Court would look better by the time Parker went up. That's what we told the NRA when its representatives cautioned against filing the case. Our prediction turned out to be 100% correct. The Court now looks better than anytime in recent memory, and better than it's going to look longer-term.]
- Just because a vacancy may come up doesn't mean Bush can get a good appointee through the Democrat controlled Senate and committees.
- Just because there's a vacancy doesn't mean Bush won't fold with a squishy candidate, or a candidate who changes stripes once appointed.
- NRA filed a powerful and significant amicus brief, documenting state-level Second Amendment actions that invalidated unconstitutional gun bans.
- NRA also supported a Congress of Racial Equality amicus brief.
- The Parker decision still blatantly denies rights to residents that a ban repeal would fix -- it only allows possession by registration and permit, at government discretion, only at home, with no way to get a gun to the home, and no way to purchase across state lines. What good is a registered permitted gun that you can't obtain? A ban repeal addresses that (somewhat).
[Levy notes: Anything that Parker doesn't address can certainly be addressed by suitable legislation -- but NOT a bill with a provision that would moot Parker. By all means, let the NRA introduce legislation that will accomplish all of its many goals. In fact, my co-counsel and I have already drafted legislation (sent to selected senators) that does everything the NRA-sponsored bill does, without putting Parker at risk. And of course, it's too obvious to point out that the DC Personal Protection Act addresses only DC; a Supreme Court pronouncement applies everywhere.]
- You're talking about arguing the most crucial issue at the highest court in the land, with an attorney some observers at the NRA do not hold in high esteem. One person questioned whether any attorney at the NRA itself was of sufficient mettle to tackle the case, and suggested you want someone of at least the stature and competence of Ted Olson, or perhaps Lawrence Tribe, on something this big.
[Levy notes: Well, let's see: Which lawyers sued the Justice Department in Seegars, only to have the DOJ attorneys prevail on a standing argument that DC lawyers never thought of? Which lawyers neglected to have one of the Seegars plaintiffs apply for registration to ensure there would be legal standing? Which lawyers asserted every cause of action imaginable in Seegars, giving the court a non-Second-Amendment path to resolving the case? Then again, which attorneys won in Parker?]
[Korwin points out: And just for the record, lead attorney Alan Gura, a graduate of Cornell (1992) and Georgetown Law (1995), does have an impressive list of accomplishments, including the stunning win in the Parker case.]
- The devastation of a loss is so great that of course you have to be reluctant to jump into the fray. (I've been saying this for years -- that both sides are terrified to bring a case, and rightly so.) A lack of reluctance to proceed is viewed by some as reckless.
[Levy notes: There are more than enough reasons to go for the Supremes NOW. But if only one reason were needed, here it is: Virtually every wrongly-decided 2d Amendment case has been US v. Someone -- in other words, a criminal case -- brought by an accused felon-in-possession or some bank robber or crackhead seeking to reverse a sentencing enhancement. Sooner or later, when four liberal justices sense that the time is right, the Court is going to reach down and grab one of those cases. We warned the NRA about that four years ago. And we still haven't heard a game plan to avoid the problem. In short, if a good case doesn't go up, a bad one will.]
- A cogent case can be made for a collective rights view (Militia as response to Founders' fear of standing army, recent-history court activity, foreign precedents, etc.) which although bogus, can be used by ideologues on the Court to justify a decision that is results driven, instead of law, fact or precedent driven. If some Justices are seeking a means to an end, do you give them the opportunity?
[Levy says: That's an argument for never doing anything. There's always a risk in going to the Supremes. But this time we have a good Court, a great case, the perfect venue, a sympathetic Justice Department, no incorporation issue, outstanding plaintiffs, 47 states to win, only 3 to lose, and a terrific appellate opinion. In the unlikely event that 5 of the current justices decide to read the 2d Amendment out of the Constitution by upholding a total ban on handguns, that would be the time for Congress to act. Furthermore, a ruling that the 2d Amendment is effectively meaningless seems unlikely during the heat of the '08 election, when it would be a rallying cry for the pro-gun community. Finally, if the Court is so inclined, it has ways to reverse Parker without reaching the merits (e.g., standing). Wayne is supposed to have some insight on these matters. Let's take him at his word: "Parker is going to go up and we have a damn good chance of winning it!"]
