Scotusblog.com thinks 2nd will be incorporated

This has been a concern all along. Gura is a great guy, but he's never really been doing this for "gun" angle, rather the bigger Constitutional picture.

I agree with that 100% but having a fallback to win the gun side of this if things went south didn't seem to be in his plans.

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Exactly. And that's where the big, dumb, annoying, populist, incremental, lowest-common-denominator, Establishment NRA that some people here love to hate, was a DAMN GOOD THING TO HAVE AROUND.

That's why I have a little card that says, "Life Member" on it, even though the NRA's aesthetics can sometimes be way too Hummel/Lladro/Trailer Park for my taste.

does it seem that Feldman really didn't perform very well?

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He did his best, I think. His arguments were ineffective because they were nonsensical -- but they are the arguments he was being paid to make. I doubt he had a good feeling about his position today...

You can Johnny Cochrane an attention-craving jury from Los Angeles, but not the SCOTUS justices.

Couldn't disagree more strongly in regards to winning or losing the case visa via Gura of Clements arguments. The justices were well aware of due process and if you read the transcripts it is fairly clear that at least the majority in Heller (though Thomas never speaks) are already on their way to that decision. The only mystery is why they granted cert with a nod to P&I in their question in the first place. The justices obviously wanted Gura's argument on P&I or they wouldn't have granted for it and included it in their initial question when granting the case cert. Just as obviously they aren't going to overturn Slaughterhouse. I thought both Gura and Clement did a good job and I could have kissed Gura when at the end of oral arguments in the last of his rebuttal he said: "But at least we know one thing, which is that in 1868 the right to keep and bear arms was understood to be a privilege or immunity of citizenship, and if the Court is considering watering down the Second Amendment perhaps it should look to text and history."

I think full incorporation is pretty much a done deal - on a 5 to 4 vote. I do think the Justices hinted at less than strict scrutiny and there is an open question as to AWB and CCW - as some of the 5 majority seemed to want to leave such things up to the states.

mack, the point is not that Gura shouldn't have tried the argument. The point is that it's a good thing that someone else was there who wanted to win the case more than they wanted to expand the scope of the decision, because Gura wasn't that guy.

Did you see the Fiesta Bowl this year, BTW? One coach wanted to play a strong game of football, and charged down the field. The other coach had winning as his top priority, and his team planned and practiced various alternative ways to win the game in the face of a strong, single-minded opponent. They won.

^ Would love to see it, why do you think so?

What will cause the Feds to not be able to regulate under this decision?(Assumptions being made about outcome, based on reading the transcript).

They currently use interstate commerse, how do we challenge that or nulify it based on McDonald & Heller?

Yes, Chicago's position seemed to be scorned by all the Justices who spoke. Gura's position is a no-winner with the court, that is pretty clear.

The justices did seem to be almost grateful for the NRA position, allowing them to incorporate without overturning Slaughterhouse. I wager that's what they base their decision on.

They currently use interstate commerse, how do we challenge that or nulify it based on McDonald & Heller?

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The Constitution doesn't allow the use of the Commerce Clause to ban Bibles or to license newspapers that travel across state lines.

I'm not saying it's a done deal; I'm just saying that, if the 2nd Amendment is affirmed an incorporated individual right, that's the avenue we'd have to go down.

The justices did seem to be almost grateful for the NRA position, allowing them to incorporate without overturning Slaughterhouse. I wager that's what they base their decision on.

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In that way, Gura may have won the case. SCOTUS would probably rather decide that the Federal Government must hand each of us an M4 at taxpayer expense, than to overturn Slaughterhouse. Therefore, he made the NRA's argument seem like a good "out."

Gura wanted to win the case, he included both P&I and due process in his briefs and coordinated with amici briefs that included both arguments. The McDonald decision is not going to turn on oral arguments and the court was well aware of due process. It was the USSC that included P&I in their question when they granted cert to McDonald vs Chicago the question as to whether the second amendment was incorporated against the states under the P&I clause or under due process. So, it was the court itself that asked for the response that they got from Gura arguing P&I incorporation and/or due process - if they wanted just due process they could have got that by just going with the NRA's case from the outset and they - the court - didn't. So I think it is disingenious to take Gura to task for arguing P&I as part of his case.

As I have said before read the transcript and it is apparent that he majority are already on board for incorporation so Gura wasn't risking anything in his argument - it was just a matter of under what process it would occur. For some reason the justices wanted P&I brought up and therefore they focused on that with Gura - look at how Clement was barely interupted at all by the majority from Heller - obviously they didn't have much question about incorporating under due process.

As for another comment that Gura doesn't really support guns or gun rights that much, and that he was just using this case -that doesn't explain his involvement in 2 or 3 other currently pending gun rights cases involving the right to bear arms. Heck if you want to question purity of motivations consider that Clement the NRA's lawyer was arguing for the justice department against Heller. And I think he did a good job presenting the due process case.

If anything, it sounds like NRA's motion for divided argument to argue Due Process incorporation may well have saved the case.

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I strongly disagree with this. This case is going to be decided on the briefs. Short of an abysmal performance, which Gura wasn't going to give, there is no way that the case was going to be lost at orals. Gura was perfectly capable of making the Due Process argument and I have full faith he would have made an excellent one. However, since he had one of the top Supreme Court Constitutional litigators in the country standing behind him to argue that point, there wasn't much need to waste a lot of time on it.

Gura's problem was that he never addressed the Justices' concerns about expansive interpretation of the P&I clause adequately. Instead he went "full-libertarian" and just said "It is in the Constitution and we should read it that way" - which is a great sentiment that I agree with; but plainly if that was the case, we wouldn't be having this conversation.

This is also the problem with Ilya Shapiro's argument (which is basically the same one Gura offered) - that by using an originalist understanding of the P&I clause, there were "clear signposts" that showed what those rights meant. The truth is that those signposts aren't that clear and a substantial number of both judges and Justices are not strict originalists. Those signposts can be whirled around like a Bugs Bunny cartoon and used to argue for all kinds of unenumerated rights. The Shapiro/Gura theory of why we shouldn't worry about Pandora's Box only works if all of the Justices/judges are originalists - and pretty clearly, they aren't.

Although I have to say it did bug me to see the Justices keep badgering Gura to name the unenumerated rights? Exactly what does the word "unenumerated" mean to them anyway? If it were possible to enumerate them all, I imagine the Framers would have gotten around to that; thus the whole 10th Amendment thing.

As it was, I am glad Clements was around though. He definitely showed the experience of his previous 49 oral arguments in addressing the Court.

Feldman though, o my, that was awful to read. I can't imagine what it was like to hear it. Not that he was in a great position to begin with; but when one of the Justices who wrote the majority in Heller asks you "Isn't that what the losing side in Heller argued?", the correct answer is not "No! That is what Heller meant."

As for another comment that Gura doesn't really support guns or gun rights that much, and that he was just using this case -that doesn't explain his involvement in 2 or 3 other currently pending gun rights cases involving the right to bear arms.

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That's not what I said. What I said was he was hoping to overturn Slaughterhouse, which has implications way beyond the gun angle. If he was going SOLELY for the gun angle he would have taken the easy and guaranteed path. It's not a bad plan, if it had worked it would have been fantastic.

If you are going to quote me, quote me accurately please.

Damn Scalia is good!

So I think it is disingenious to take Gura to task for arguing P&I as part of his case.

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And it is disingenuous of you, if you're claiming that I did.

If anything, NRA's argument made it possible for Gura to go to town with what he wanted to argue.

BTW see this. It's not true that the SDP argument was made fully in the petitioner's brief:

http://legaltimes.typepad.com/blt/2010/01/nra-will-argue-in-second-amendment-case.html

The NRA made its request for argument time in a Jan. 5 motion by its lawyer, former solicitor general Paul Clement, now at King & Spalding. Clement indicated the request was driven in part by the fact that the brief by Gura emphasizes the "privileges or immunities clause" argument in favor of applying the Second Amendment to the states, whereas the NRA wants to advance a more traditional "due process clause" argument for incorporation. Clement noted that the due process argument occupied only 7 of 73 pages in the petitioners' brief. Gura, in his reply, said the due process argument "will be presented fully" at oral argument without the NRA intervening.

So why did the Court grant the motion? Clement is a familiar face at the Court, and his presence may also represent a "cover all bases" strategy by justices who favor incorporation but are uncertain how the privileges or immunities argument will play out. Asked about the Court's decision Clement said, "I think the grant of the NRA's motion may signal that the Court is interested in ensuring that all the avenues to incorporation, including the due process clause, are fully explored at the argument." Clement added, "Of course, I look forward to working with Alan."

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The point being that Gura covered both as did numerous amicus briefs - the NRA wanted in on the oral argument for the case and only wanted to argue due process - so what are they going to say in their petition to the court - well we think Gura covered it all but we'd still like time. Besides as you know no one believes in this case that the oral arguments will/would determine that outcome.

Read this entire thread again I wasn't just responding specifically to you - how many here are jumping on Gura for doing what the court asked him to do - and then to read posts saying thank god for the NRA they saved the day - when they tried to submarine Heller. I support the NRA, their atty did a good job on due process - I'm glad that the court gave him time - but really we wouldn't even have this case without Gura and Heller and incorporation was/is going to happen because of McDonald - another Gura case - whether or not the NRA was there.

TexasRifleman - you wrote - "This has been a concern all along. Gura is a great guy, but he's never really been doing this for "gun" angle, rather the bigger Constitutional picture.
I agree with that 100% but having a fallback to win the gun side of this if things went south didn't seem to be in his plans"

I apologize if I misquoted you but I was also just responding to implication in this thread that Gura risked losing the case over Slaughterhouse and that isn't true and as far as the hard feelings between NRA and Gura, and the NRA was just focused on winning the case - well they were focused on destroying Heller - and the principle name in this case is McDonald and it is a case that Gura and SAF brought.

The only mystery is why they granted cert with a nod to P&I in their question in the first place. The justices obviously wanted Gura's argument on P&I or they wouldn't have granted for it and included it in their initial question when granting the case cert.

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I'm pretty sure the answer is: they did it because of Justice Thomas. Thomas didn't speak at today's oral argument, and it's a shame, because he would likely have been less dismissive of Gura than Scalia and Roberts were. Justice Thomas's prior opinions (dissent in Saenz v. Roe and concurrence in Printz v. U.S.) strongly hint that he (1) supports incorporation of the right to arms, but (2) will only support its incorporation under the Privileges or Immunities Clause, not Due Process .

I apologize if I misquoted you but I was also just responding to implication in this thread that Gura risked losing the case over Slaughterhouse and that isn't true and as far as the hard feelings between NRA and Gura, and the NRA was just focused on winning the case - well they were focused on destroying Heller - and the principle name in this case is McDonald and it is a case that Gura and SAF brought.

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There is a reason the Court granted NRA's request for time. It wasn't random.

The Justices believed he was way overstepping things with this attempt to overturn Slaughterhouse clearly or they wouldn't:

a) granted NRA time to speak or
b) basically made fun of him for doing it

Scalia ripped into him pretty good for even trying it.

So again, it's not that Gura did anything wrong here, but he clearly had designs on going after "the whole enchilada" and it seems that the Justices on our side smacked him pretty hard for that.

I don't think the NRA argument "saved the day" by any stretch, since the oral arguments don't seem to carry as much weight as the written stuff.

But, the perception by the public is that they do, so by having the NRA give an ironclad argument as a fallback the pro 2A Justices made sure everything was covered.

I think it's a brilliant move, probably by Scalia, to sew this up in such a way as to preclude any attempt to bring it up again.

But, the perception by the public is that they do, so by having the NRA give an ironclad argument as a fallback the pro 2A Justices made sure everything was covered.

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It's also naive to assume that SCOTUS justices are not political animals.

Is it necessary to rehash the NRA and Gura history every time the two are in the same subject?

ArmedBear said:

BTW see this. It's not true that the SDP argument was made fully in the petitioner's brief:

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Presumably, NRA and SAF coordinated on briefs and the reason the SDP argument wasn't made fully in the petitioner's brief is because they didn't want to waste limited page space on an argument that the NRA planned on covering thoroughly. Likewise, the NRA brief doesn't waste a lot of time on the P&I approach.

However, you can see where if you made that type of the arrangement, you might be a little peeved when your ally uses it against you to horn in on your oral argument time. Although considering how minor that issue is in the overall importance of the case, I am surprised it has stirred so much discussion.

mack said:

and then to read posts saying thank god for the NRA they saved the day - when they tried to submarine Heller.

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For about the 1000th time, the NRA actually provided substantial assistance to the Heller team in the Supreme Court fight (at least according to Robert Levy when I heard him speak shortly before Heller orals). The NRA initially opposed Heller/Parker because they were rightly concerned about the Court finding a collective right. People who bring up "the NRA opposed Heller" point often seem to forget that two of the five majority votes in Heller weren't even on the Court when it originally made its way through D.C.

Had the NRA not interfered in Heller, you would be betting your Second Amendment rights on Sandra Day O'Connor and William Rehnquist going the same way as Sam Alito and John Roberts - possible; but not quite as comfortable margin-wise.

And it isn't like the NRA was out in left field with that concern either - Heller was a 5-4 decision even though the evidence in favor of an individual right was practically overwhelming.

On the bright side, it is always nice to have enough success to be able to argue over who deserves the most credit for it. That is surely something that wasn't much in evidence prior to 2000.

Although considering how minor that issue is in the overall importance of the case, I am surprised it has stirred so much discussion.

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In court, or elsewhere? It's all anyone is talking about on law-chatter fora.

In court, or elsewhere? It's all anyone is talking about on law-chatter fora.

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Minor in the sense of having a substantial effect on the outcome of the decision. I can see why it would get traction on law-fora though, it is like an E! story for lawyers.

Ilya Somin just posted a rather long piece about McDonald, Ginsburg, P&I, and the property rights of married women, for example...

http://volokh.com/

to repeat what I've posted in the "McDonald Transcript" thread, I'd like to thank all you gents for dissecting the oral arguments for me. I read the transcripts, but you guys really enhanced my understanding of what went on.

I know what happened in Heller with the NRA - and yes they did come on board once it was a fait accompli. Frankly one can go back and say that well these two justices were on there then and these two later but that isn't completely true at least in regards to the Supreme Court hearing the case. Justice William H. Rehnquist died September 3, 2005; Justice O'Connor sent notice of her resignation on Saturday, July 2, 2005; Alito was sworn in on Jan 31, 2006 and Roberts before that on Sep 29, 2005. It wasn't until after May 8th of 2007 that Mayor Fenty and the District decided to appeal to the Supreme Court, but already by March of 2007 the NRA was pushing bills in the House and Senate to repeal the DC ban in order to fore close the possibility of the Heller case getting to the Supreme Court - a court that already had Roberts and Alito. The NRA only stopped after Levy and Gura went public complaining that the NRA was trying to sabotage the case, and the NRA got deluged with angry members upset at what they were doing. Basically if the NRA leadership had gotten their way then there would be no Heller decision.

My point is not to bash the NRA - I was a member and I still am a member and I wish more people would be members. But this Gura is stupid and he almost lost the McDonald case over P&I, and thank goodness the NRA saved the day is just plain garbage. The case the court granted cert to was Gura's case, the McDonald case and the court itself in its question for granting cert brought up P&I incorporation which means a number of the justices wanted it addressed. I think it was clear from the way orals went that the majority intends to incorporate under due process - but the orals obviously had little impact on that. I am more worried about the level of scrutiny they will apply.

already by March of 2007 the NRA was pushing bills in the House and Senate to repeal the DC ban in order to fore close the possibility of the Heller case getting to the Supreme Court

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A fact.

Can you elaborate on their reasoning/motivation/strategy or whatever might explain why they did this?