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New insight - NRA on Parker v. DC

Discussion in 'Legal' started by F4GIB, Apr 19, 2007.

  1. F4GIB

    F4GIB Well-Known Member

    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!"]
  2. LAR-15

    LAR-15 Well-Known Member

    Congress shot down the DC PPA a few weeks ago.

  3. Bartholomew Roberts

    Bartholomew Roberts Moderator Emeritus

    Great discussion. Seems like it mirrors the similar discussion we had here at THR not too long ago.
  4. Titan6

    Titan6 member

    I must say at this point I have more faith in Levy than the NRA. This was not always the case. When Levy was against lifting the ban years ago so that the case could be heard I thought then that the NRA was on the right track.

    However Levy has achieved tangible results here that the NRA never achieved. If they lose in court than the NRA can still go against the ban later, if indeed their primary goal is to lift the ban.

    If the goal is to prevent the case from being heard than I think that is unfortunate. No one gave the NRA license to represent every gun owner in the country or even the people in the Parker case, or the people of DC.
  5. ArmedBear

    ArmedBear Well-Known Member

    Realistic assessment.

    Froman is a long-time DC lawyer, and probably the smartest person to head the NRA in a long, long time.
  6. Titan6

    Titan6 member

    Yeah but he makes some awfully good points;

  7. ArmedBear

    ArmedBear Well-Known Member

    Kelo? Raich? Whatever.

    Alberto Gonzalez?

    They'd act all right, as would a number of state legislatures. They'd try to ban handguns. Congress may not succeed, but some states would.

    The states won't be the majority of the states, but they may well comprise the majority of the US population.

    I can't know what the outcome would be. I know what the 2nd Amendment means, and there's plenty of writing from those who wrote and signed it at the time to show what it means. But we have a court of men, not of laws. You know it, and I know it. That's the game we're playing.

    Sandra Froman is, however, not being stupid by being cautious about a Supreme Court case that will impact the US for its entire remaining history.
  8. Coronach

    Coronach Moderator Emeritus


    I think the NRA is hoping that Stevens retires sometime very, very soon, and/or that we get someone in the White House who will appoint a good replacement. I don't know how likely those hopes are to come to fruition.

    The court is looking better than it has in years? That might be true, but it doesn't matter. The only thing that matters is if it is good enough. The breakdown looks like:

    Yes: 2
    Probably yes: 2

    That's only four. We need five.

    Seeing as how this decision will be either a foot in the grave or the first step on a long road back for the 2nd A, I really cannot fault the NRA for biding their time on this one.

    For both sides, a defeat is worse than a victory is good. Both sides can fight legal battles dickering over waiting periods this and gun bans that...the Antis like it this way because they can still gain ground, and the NRA can still fight effectively and quash legislation and sometimes get stuff rolled back. Both sides are terrified of a defeat, however. For the Antis, it literally is the string that can unravel the tapestry. For us, a defeat in Parker is something from which we may never recover, at least in our lifetimes.

    If I was in charge of strategy for the NRA, I would want to know that I had 5 votes before I put a case up there. Right now, we have 4. Is there always a risk? Sure. "Knowing" you have 5 is still risky. There is no totally safe bet. But I would certainly want to know that I have 5 people who were probably going to vote my way before I sought cert.

  9. ArmedBear

    ArmedBear Well-Known Member

    Preface: I am not pro-life. Please DO NOT get into arguments about abortion. This is just a current SC decision, and the method, not the specific content, is what is important here.

    Note that Ginsburg just wrote the dissenting opinion for the partial-birth abortion case. She is pro-abortion, and she opposed allowing Congress to ban this specific procedure.

    Ginsburg has long held that Roe v Wade, while an outcome she politically favors, was a poorly-judged case because its underlying logic and legal scholarship were flawed.

    HOWEVER, she showed in this decision that, when there is a political issue about which she has an opinion, she will go against her own legal judgment and decide according to her politics instead. Furthermore, this case did nothing near overturning Roe v Wade or the principles of the judgment, as it only really looked at the precise definition of what "at birth" means. It was not a very broad-reaching decision, if you read it. But she judged it by her personal politics anyway.

    This is illustrative not just of Ginsburg, but of the court in general.

    What's important here is that, even assuming that the court finds that the 2nd Amendment means what the Framers said it meant, only 4 of them are likely to CARE, when the Constitution doesn't square with their political agendas.
  10. Rem700SD

    Rem700SD Well-Known Member

    Thanks for the post. It clarifies a few things I've been confused on for years. We just heard the umpteenth abortiion ruling since 1972, and not a peep on 2A since 1939? This helps.

  11. Titan6

    Titan6 member

    I know this is old ground and many disagree but I think Stevens could go either way. When you look at issues like free speech, you may not like it as it is anti-conservative but it is libertarian, which IMHO is better.

    Besides, even though he is 87 tomorrow he shows no signs of stepping down.
  12. billwiese

    billwiese Well-Known Member

    NRA supports taking Parker v. DC further. It will not only not interfere, but will aid, and will do nothing to moot it. This is straight from the mouth of Chris Cox.

    NRA's initial caution 4 years ago was based on perceptions of a court with different personalities. We don't have a Supreme Court, we have "Supreme Courts" whose attitudes vary with composition, and things are (luckily) more favorable now.

    [DC PPA is gone and NRA is not promoting it now either. Anything that was out there was 'hangover' stuff not reeled in right after Parker, and/or folks are getting some old material handed down thru local organizations due to propagation delay.]

    Bill Wiese
    San Jose CA
  13. Sam Adams

    Sam Adams Well-Known Member

    What I don't like about the NRA pushing the DC Personal Protection Act is the fact that this particular case seems to be about perfect. It was started for the express reason of getting the DC ban overturned, it involves regular - that is to say law-abiding - citizens who aren't even being charged with a crime, it already has a favorable decision by a 3-judge panel (including the senior and highly-respected judge on the DC Circuit), and it has broad implications beyond the Beltway (i.e. the "individual right" language). By NOT using this case, the NRA isn't playing it safe, it is gambling that the "perfect" case or "perfect" Supreme Court will come along before a lousy case with a scumbag criminal asserting his 2nd Amendment rights.

    I've been an NRA member since 1989 (when Bush 41 outlawed imports), and I intend to renew this year. BUT. I sometimes wonder at their judgment AND motivation. Some of the motivation behind avoiding a decision is, IMHO, related to the loss of contributions if we win. Well, guess what: IF that is the motivation, then it is #1 a betrayal and #2 a mistaken belief - because there will be LOTS of legislative and court battles after any USSC win in Parker. Case #1, as I see it, will be a challenge to 922(o), a challenge which will be impossible to win without a win in Parker. If the DC Act passes, no 922(o) repeal - and that isn't acceptable.

    So what if we lose Parker? Guaranteed, lots of Dems will lose the next election, resulting in better USSC Justices and probable legislation to overrule that aspect of the decision. And if not, if the 2nd is going to go down in flames - well, shouldn't we be able to see the government's agenda stripped naked of all of the meaningless platitudes? Shouldn't we know who, exactly, wants to send people door-to-door, etc.

    The NRA seems, more than anything else, to have its panties in a wad about not controlling this process from start to finish. Well, TS. I want my 2nd Amendment rights to mean as much as they meant when my grandfathers were young men, when you could walk into a store and buy a full auto, or you could order pretty much anything by mail or fromt the Sears catalog.
  14. Bartholomew Roberts

    Bartholomew Roberts Moderator Emeritus

    Well if you look at the Justices by age:

    Stevens - 87
    Ginsburg - 74
    Scalia - 71
    Kennedy - 71
    Breyer - 69
    Souter - 68
    Thomas - 59
    Alito - 57
    Roberts - 52

    We know Stevens is a definite vote for collective rights; but considering that he is 87 years old and still on the Court, I don't see him retiring while Bush is in office. He will wait for a Democrat president or die on the bench.

    If the NRA believes that they will have a strong voice in the selection of the next Justice, waiting is probably a smart strategy since the collective rights/unknown justices are older and more likely to be replaced.

    If the NRA doesn't have that voice though, waiting doesn't gain us much and may even increase the risk as one of our known votes (Scalia) and a possible swing vote (Kennedy) could be replaced by someone unsympathetic to the individual rights argument.

    Levy is either betting that Stevens goes away prior to Summer 2008 or that one of those unknowns is going to take an individual rights stance. I see at least three definite collective rights votes (Stevens, Breyer, Ginsburg) so Levy seems to be placing his faith in Souter or Kennedy. I've tried to read all the remotely gun-related opinions of both and so far, I am not real encouraged by Kennedy. Souter is tough to call though. It could easily go either way. If a pro-gun President doesn't win every election (and appoint pro-RKBA Justices) until Stevens is off the court, then Levy is right that this is the best chance we are likely to see in a long time.
    Last edited: Apr 19, 2007
  15. Bartholomew Roberts

    Bartholomew Roberts Moderator Emeritus

    Then you clearly haven't been reading his court opinions since he flat out states in Lopez that Congress has the power to ban guns entirely in his opinion.

    That is a really good point. Parker would hit the Court right around Summer 2008 which would make the decision a hot election issue. If Parker takes a collective rights view, the resulting outrage would almost certainly guarantee us a Congress and President who would appoint a pro-RKBA justice in the 2008 elections. There aren't a lot of cases as good as Parker out there; but there are a few and they would come along at a perfect time to overturn a collective decision from Parker.

    If Parker goes our way, then we get to keep these cases as backup to define the boundaries of the individual right rather than having them defined by a bunch of criminals trying to save their own necks.
  16. ArmedBear

    ArmedBear Well-Known Member

    We already know as well as we ever will. Most of them say it straight out.
  17. ArmedBear

    ArmedBear Well-Known Member

    The SC doesn't just decide to overturn decisions. They might, if a case comes to them. Maybe.

    Furthremore, most of the time, they respect stare decisis, and don't even grant cert.

    You don't want a to lose a SC decision of that magnitude.
  18. Igloodude

    Igloodude Well-Known Member

    No, but the fight that gun owners have been fighting for 30 years would be almost completely identical if (say) SCOTUS had got Parker v DC in 1977 and came down with a collective rights interpretation. That's why I don't see the possible loss as being of the same magnitude as the possible victory.

    Individual right (and incorporation into the states) - courts can start throwing out near-100% bans in the states. Even without incorporation, AWBII is DOA, and all those Federal restrictions start getting judicially ripped up.

    Collective right - we keep fighting the same fight we always have.
  19. ArmedBear

    ArmedBear Well-Known Member

    I'm not so sure.

    While California's last AG kept spouting off about the collective right interpretation, I have little doubt that he was held in check by the knowledge that if he really pushed it, he'd probably get shot down.

    The anti-gun states have also been reluctant to see this ruling, because they, too, know they may well lose. A strict interpretation of the Constitution would guarantee their loss: there's no such thing as a "collective right" in the Constitution.

    If there'd been a definitive "collective right" ruling in 1977, it would have sent a no-holds-barred message to anti-gun states. Pro-gun states would probably be the same as they are now, but not the other 10+.
  20. Bartholomew Roberts

    Bartholomew Roberts Moderator Emeritus

    The Court respects stare decisis in the sense that they rarely outright overturn a law. Slaughterhouse is still good law for the 14th Amendment for example.... it just has a much, much narrower reading than the Justices who wrote it intended.

    I'm fairly confident that anyone who has the credentials to clerk for a Supreme Court justice can distinguish a collective rights decision in Parker accordingly. I'm not saying it would be easy or that it wouldn't be a setback; but a collective rights decision in Parker could actually have positive effects for us too.

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