Is it good the NRA got involved in McDonald v. Chicago?

[ArmedBear]

I don't think arguing for P or I sabotages the case.

And I think you're wrong. So do people who were there yesterday, and who follow SCOTUS. See Volokh, too. Libertarians are not all starry-eyed, and one gets the notion that Gura, for a moment, was.

It just wasn't the best argument to make and just about everyone but Gura knew it.

I'm not sure Gura didn't know it. I think he wanted to make the argument, and since I sympathize with that libertarian agenda, I understand the temptation.

The problem as Clement and NRA saw it, and as I see it, is that asking 9 justices to look at something that 8 of them don't want to touch is a losing strategy. I hope Gura finds a case that FORCES the PorI question. This WASN'T that case, however, and I will take RKBA over nothing, any day of the week!

If Cato et al. want to see Slaughterhouse overruled, they'll have to find a much, much, much better case for that purpose.

 

[RDak]

And what would that be ArmedBear if an outright ban on firearms ownership doesn't fit the bill?

 

[MisterMike]

I don't think that it hurt that the NRA got involved, but if this turns out the way we hope, the greater credit should go to Gura. He, not alone of course, really engineered the legal mechanism that has brought us to the brink of incorporation of the Second Amendment, whereas the NRA has long feared bringing any Second Amendment question before the Supreme Court.

Oral arguments can provide some insight into the leanings of the Court, but they're not entirely reliable in that sense. My view is that, in most appellate settings, the oral arguments are little more than courtroom theatre. The McDonald arguments are a good illustration--having read through them, do you have any doubt that the justices each came into the room not knowing what position they would stake out?

Certainly Clement lent credibility to the push for incorporation under Due Process, but my belief is that the end result--still months away--would not have differed had the NRA hired Peewee Herman as its advocate before the Supremes.

Having read and re-read the arguments and briefs, and having some scant command of Constitutional law, my belief is that the Second Amendment will be incorporated under Due Process. I'm not entirely sure, though, that incorporation under the Privileges and Immunities clause is past consideration. There is a considerable body of thought that the past decisions on P&I have been dead wrong; were it not for the practical implications of incorporation under P&I, I suspect that a number of justices might take that route to attain a higher level of intellectual purity. However, pragmatism and predictability are also important considerations in the function of the Supreme Court, and adopting the P&I approach would toss a great many issues into question.

 

[RDak]

I agree Mike and feel the SCOTUS will take great pains in analyzing and discussing the P&I issue. They asked the question and will give a detailed answer.

They might say no, but there is still a chance they might say yes. Time will tell.

My biggest worry with the P&I argument is a real world argument. The Justices probably feel the courts will be overwhelmed with suits and litigation if they approve of the P&I argument IMHO.

I think that is the real problem Gura is facing.

 

[ArmedBear]

And what would that be ArmedBear if an outright ban on firearms ownership doesn't fit the bill?

I'm not sure. I do know that this case did not force the P or I question, and forcing it is the only way it will be revisited. Yesterday made that extremely obvious to anyone who wanted to believe otherwise.

What I do know is that none of the Bill of Rights has been applied to the states per P or I, and nearly all of it has been applied using SDP. Therefore, there is no need whatsoever to revisit Slaughterhouse when the question is simply whether to apply one of the few "unincorporated" rights.

There is no reason whatsoever that this case would force the P or I question, any more than a 1st Amendment case, or a 4th Amendment case would.

Seriously, do you know anything about 14th Amendment jurisprudence and precedent, or about the judicial philosophies of the Black Robes currently on the bench?

I mean, I think that a lot of that jurisprudence and precedent is utter bunk. But we have 4 liberal justices who like it too much to change it, and 4 conservative justices who don't believe in changing anything if they can help it, even if they think it's bunk. I like Thomas' judicial philosophy, but he's alone.

Do you score a goal against a tough hockey goalie by considering how you'd like to shoot the puck into the net, or do you score a goal by noticing that the goalie is slower on his left side than his right?

My biggest worry with the P&I argument is a real world argument. The Justices probably feel the courts will be overwhelmed with suits and litigation if they approve of the P&I argument IMHO.

I think that's a concern they have, but it's not the top concern. They granted cert., and if a favorable ruling for McDonald doesn't invite a host of lawsuits, then I don't know what would.

 

[RDak]

I see what you're saying ArmedBear. That has to be the only remedy for the P&I argument to be a good case in your opinion.

That makes sense.

ETA: We'll just have to agree to disagree on the "overwhelming" litigation problem. Any P&I approval would create far more litigation than a specific gun ruling under the SDP argument IMHO. But that is neither here nor there. Just something to talk about.

In the end, I am just giddy with the very real possibility that incorporation will carry the day.

 

[Ohio Gun Guy]

I think its 99.9% that SCOTUS will not use P&I. They will incorporate the way the others were by Due Process.

But look, The Heller decision was 2 years ago (Very hard to believe!) and if you would have told me that in 3 years time, we would have moved the ball this far I would have done back flips! (And that wouldnt be pretty)

1. an individual right - Heller
2. incorporated against all levels of government - McDonald

We still need to get the court or the congress to make the BAR very high for scrutiny regarding 2nd amendment legislation. That is the reality. I would rather see a decison be 5/4 in McDonald if it builds in some level of scrutiny or minimums....... (And I hope Scalia writes it). The wedge we have is that we should expect and demand that this right, be treated the same as the others (All but the procedural items in the 6th). This leaves a fairly inconsistant argument for the gun grabbers, unless they want to trash the whole Bill of Rights (And thats a whole lot less popular that trashing the 2nd amendment, they will have few friends in that fight.)

I cant keep from reading all I can about this case.....It was said here previously, but I agree 100% that it great that there is an argument about who should get the credit for the win (NRA or Gura). That is not a bad place to be!!!!!!!!!

 

[RDak]

Unbelievable Ohio Gun Guy........but that seems to be what will occur!!

I would have bet the farm that we wouldn't have two decisions like this going our way in only two years.

 

[ArmedBear]

That has to be the only remedy for the P&I argument to be a good case in your opinion.

I think so. That's why it's so hard to come up with a hypothetical case.

If I had to hazard a guess, it would be something like a state refusing to recognize a marriage performed in another state. No state is currently doing that. Gay marriage could bring something like that to SCOTUS, but only after a series of other events. Or maybe a DOMA case, if enough states have gay marriage. Even then, SDP could be used by a creative Court...

Like I said, I think that SDP is mostly bunk. But it's the doctrine of incorporation that's been used for every single other 14th Amendment case.

What does "due process" have to do with my legal right to sell t-shirts with swastikas on them, to print "Bush Lied" bumper stickers, to perform abortions, to have a church, or to operate a newspaper? Nothing whatsoever. It also has nothing to do with my right to have a shotgun under the bed or a pistol behind the counter of my store. These would be "immunties", i.e. "Congress shall make no law..." or "shall not be infringed".

Now I fully believe that the 14th Amendment was intended to enforce all individual rights guaranteed under the Federal Constitution, and all evidence points to this as its intent. I just don't think that this "doctrine" is necessary. "Due process" meant that all citizens in all states are entitled to the same legal rights in court, and in other legal matters (marriage, contracts, etc.). If "due process" means "anything and everything" then why the "P or I" clause? It seems quite clear to me that, under the 14th Amendment, individuals are immune from any law barring freedom of speech, the press, religion, keeping and bearing arms, cruel and unusual punishment, etc.

BTW "cruel and unusual punishment" is not about due process, either. One could have a perfectly-conducted jury trial, with all rights properly protected, and still have the sentence be drawing and quartering. This is an IMMUNITY, and to me, it's clear.

Still, I'd rather win this case than lose it.

 

[Bartholomew Roberts]

I am glad that the NRA got involved and having Clements there was definitely a plus. Having said that, the notion that the NRA "saved" the case is BS that has no merit.

Do you think the NRA and Gura would have collaborated?

They DID collaborate. All you have to do is look at the briefs and it is clear they divided the labor. Otherwise it would be near impossible for two respondents to address the same issues of law and write briefs that magically managed not to repeat something said in the other brief.

Why didn't they talk about that prior to asking for their 10 minutes to speak?

Well, there is the big question isn't it? If you are collaborating with someone and you both agree "My brief will go after this argument and your brief will cover this argument." Then when you get to orals, your collaborator says "You didn't spend very much time on the argument we agreed I would cover, I would like some of the oral argument time to address that."

I think that is going to be an awkward moment for anyone.

Considering the ferocity with which Gura and P&I were attacked, we were lucky to have at elegant, articulate, eloquent voice to apply 2A through Due Process.

Clements definitely showed the experience of his previous 49 oral arguments and did a fantastic job. However, the implication that Gura couldn't have handled those due process questions is flat out ridiculous. Gura handled much more difficult issues in Heller and he could have done due process. He didn't have to do due process here because the NRA had already made it clear they were going to do it. So why would he waste his reduced time addressing an issue the NRA was already covering?

People keep making the assumption that Gura would have approached this case with the same strategy if the NRA wasn't there; and I think that does a disservice to a talented litigator who is smarter than that.

(Don't get me wrong, Chicago fared just as poorly, but for different reasons.)

There is no comparison between Gura and Feldman's performance. Feldman got eviscerated. Heck, even when the Justices sympathetic to him practically gave him the argument they planned to use, Feldman not only ignored it, he outright refused it as being the proper approach.

Gura in contrast made the typical Libertarian (note the big L) error of "because the Constitution says so" without giving an answer that made the Justices feel better about the practical issues involved. If Gura couldn't sell them on his answer to the Pandora's Box problem in the briefs, then he wasn't going to do it in orals (as the transcript makes clear). Besides that though, Gura did pretty well considering he was asking the Justices to overrule 140yr old precedent.

What I do know is that none of the Bill of Rights has been applied to the states per P or I, and nearly all of it has been applied using SDP. Therefore, there is no need whatsoever to revisit Slaughterhouse when the question is simply whether to apply one of the few "unincorporated" rights.

The concern is that incorporation has not always been used to apply "the whole right" and you can see echoes of that discussion in the transcript. Applying the Second through P&I would avoid that issue, and since the Second Amendment is one of the few cases left where a right had not already been applied through SDP, it is one of the few chances left to revisit the ruling in Slaughterhouse. So there are good, sound reasons for going that route - which is why the NRA offered two different ways to apply the Second through Privileges & Immunities in their brief.

The idea that this was an either/or choice of Gura and P&I or NRA and SDP is fallacious. Both respondents briefed on both of those issues (though with remarkably little overlap despite that). Like I said, I am glad Clements was there and he did a bang up job; but what I don't understand is the skepticism that Gura could not have done the job well enough to win. SDP isn't that much of a stretch - note that even the Brady Campaign wouldn't argue against it. Clements is an experienced pro who got a nice slow one lobbed across the plate. Naturally, he took advantage of it.

 

[esquare]

One thing no one has brought up yet is that Gura and CATO have spent years (maybe a decade) planning this endeavor and I'm sure Gura has the next ten plays outlined in his playbook of how he wants to tackle a lot of the other issues in returning 2A rights to where they should be. So, I have a hard time believing that he would spend so much time (both in briefs and orals) on P&I if it somehow isn't going to be useful down the road. These guys obviously are very intelligent and astute, and I don't think they would be very careless - after all, they have millions and their careers on the line for this. Something tells me that the P&I argument is a risk well worth taking at this time.

 

[wishin]

It's obvious that Gura is a brilliant lawyer as evidenced by his big win in Heller. The hidden agenda that's been alluded to can to attributed to the fact that he's human. I think his heady win in the Heller case and the accolades from his peers convinced him that HE was the chosen one to convince SCOTUS that Slauterhouse was bad law. A successful P&I argument could propel him to God-like status for all time. Yes, he a champion of RKBA, but his ego got in the way of his brilliance.

 

[ArmedBear]

I have a hard time believing that he would spend so much time (both in briefs and orals) on P&I if it somehow isn't going to be useful down the road.

True. And that strategy will need some adjustment, if they thought this case would establish P or I precedent on which they could build.

Something tells me that the P&I argument is a risk well worth taking at this time.

True also. But intelligent risk-taking involves backup plans, exit strategies, etc. NRA provided those, allowed Gura/Cato to do whatever they wanted to do, and probe the court for receptiveness to P or I arguments, while ensuring that the case could still be won.

The fact is, the risk, while worth taking, didn't result in the hoped-for outcome.

 

[green-grizzly]

I think it is true that oral arguments do not make much difference, but Gura also spent 90% of his brief on P&I.

I thought Clement made a lot of solid arguments, which will make it harder for an intellectually honest judge to deny incorporation or apply a weaker RKBA to the states. Those arguments would not have been made if Gura alone was arguing, because the judges would have still have spent all of the oral argument pissing on P&I.

The judges certainly treated Clement and his arguments with much more respect than they did the other two attorneys.

I know a lot of people like to disparge the NRA, but I thought they were essential in this case. Even Gura acknowledged that the NRA was very helpful in Heller, once the NRA stopped trying to sink the case after Alito was appointed. Cato and Gura obviously have a larger agenda, and the NRA is only focused on two things: fighting for the RKBA and taking all the credit.

 

[ArmedBear]

BTW it's entirely possible that Gura would have written and said more about SDP if NRA were not involved.

However, it's clear what he wanted to do. And NRA enabled him to do it. Had he gotten serious traction with P or I, then he would still be the big hero here. As it stands, he's the co-hero.

 

[kludge]

If the NRA hadn't been allowed any argument time, Gura would have fielded both aspects.

This.

 

[ArmedBear]

This.

Yes. But would that have been as effective as letting the judges have their whipping boy, while having a fresh attorney make the SDP argument? We can never know.

Gura did a great thing by arguing P or I, both in briefs and oral arguments, even though the justices were not receptive -- their fault, not his. Having a backup to do SDP sure didn't hurt his ability to do his best with P or I, though.

 

[Fremmer]

Well, we'll have to see what the decision says, right? Then we'll know how well everyone did.

It is good for the NRA to be involved. That's what NRA members pay for. They wrote a good brief, and retained a good lawyer for oral argument. It can't hurt. The decision itself will let us know whether it helped. At this point, all we're waiting for is the decision, and wondering about which angle may or may not help is sort of like crying over spilled milk. Now we just wait.

 

[Ohio Gun Guy]

^^^^

You are right. I think it did work out well for our side (Planned or not?).
Nearly everyone who has read or whitnessed the Oral Argument has a firm opinion that the 2nd will be incorporated, which means between the 2 argumenst they are so strong that the 3rd argument (City of Chicago) appeared to not even be a viable option.


It was a bit ironic when Clements (Spelling?) had to use Heller to further his point, which to his credit he did.......

 

[HexHead]

I personally don't think it matters. From all I've read the oral arguments are a formality to a large extent, and most Justices seemed to come into the case with their minds pretty much made up already.

The oral arguments give the justices the opportunity to ask questions to clarify statements in the briefs. I agree that the written briefs hold more sway.

 

[ArmedBear]

I'd say that the oral arguments also give the press, bloggers and academics something to chew on, before the decision is handed down and the opinions are released.

In the modern world, they may serve more of a social function than a legal one.

 

[kludge]

ArmedBear wrote: Yes. But would that have been as effective as letting the judges have their whipping boy, while having a fresh attorney make the SDP argument? We can never know.

I'm not disagreeing; it's probably why Clement got time in the first place.

ArmedBear wrote: Now I fully believe that the 14th Amendment was intended to enforce all individual rights guaranteed under the Federal Constitution, and all evidence points to this as its intent. I just don't think that this "doctrine" is necessary. "Due process" meant that all citizens in all states are entitled to the same legal rights in court, and in other legal matters (marriage, contracts, etc.). If "due process" means "anything and everything" then why the "P or I" clause? It seems quite clear to me that, under the 14th Amendment, individuals are immune from any law barring freedom of speech, the press, religion, keeping and bearing arms, cruel and unusual punishment, etc.

BTW "cruel and unusual punishment" is not about due process, either. One could have a perfectly-conducted jury trial, with all rights properly protected, and still have the sentence be drawing and quartering. This is an IMMUNITY, and to me, it's clear.

From: Dred Scott

For if they were so received, and entitled to the privileges and immunities of citizens, it would exempt them [blacks] from the operation of the special laws and from the police regulations which they considered to be necessary for their own safety. It would give to persons of the negro race, who were recognized as citizens in any one State of the Union, the right to enter every other State whenever they pleased, singly or in companies, without pass or passport, and without obstruction, to sojourn there as long as they pleased, to go where they pleased at every hour of the day or night without molestation, unless they committed some violation of law for which a white man would be punished; and it would give them the full liberty of speech in public and in private upon all subjects upon which its own citizens might speak; to hold public meetings upon political affairs, and to keep and carry arms wherever they went. Dred Scott vs. Sanford, 60 U.S. 393 (1856)

Excerpted from http://www.constitution.org/col/intent_14th.htm :
Howard introduced the proposed amendment in the Senate on behalf of the Joint Committee, explaining "the views and motives which influenced that Committee."[114] After acknowledging the important role of the testimony before the Joint Committee, Howard referred to "the personal rights guaranteed and secured by the first eight amendments of the Constitution; such as freedom of speech and of the press;. .. the right to keep and bear arms"[115] (emphasis added). Howard averred: "The great object of the first section of this amendment is, therefore, to restrain the power of the States and compel them at all times to respect these great fundamental guarantees"[116] (emphasis added).
In the ensuing debate, no one questioned Howard's premise that the Amendment made the first eight amendments applicable to the states.[117] Howard explained that Congress could enforce the Bill of Rights through the Enforcement Clause, "a direct affirmative delegation of power to Congress to carry out all the principles of all these guarantees."[118] Howard added: "It [the amendment] will, if adopted by the States, forever disable every one of them from passing laws trenching upon those fundamental rights and privileges which pertain to citizens of the United States, and to all persons who happen to be within their jurisdiction."[119]
Howard's explanation that the Fourteenth Amendment would protect "the personal rights guaranteed by the first eight amendments of the United States Constitution such as ... the right to keep and bear arms" appeared on the front page of the New York Times[120] and New York Herald[121] and were printed in the National Intelligencer[122] and Philadelphia Inquirer.[123] The New York Times found his speech "clear and cogent,"[124] while the Chicago Tribune found that it was "very forcible and well put, and commanded the close attention of the Senate."[125] "It will be observed," summarized the Baltimore Gazette, "that the first section is a general prohibition upon all of the States of abridging the privileges and immunities of the citizens of the United States, and secures for all the equal advantages and protection of the laws."[126] Other newspapers were impressed with the length or detail of Howard's explanation.[127]
While Howard was explaining in the Senate that the Fourteenth Amendment would protect the right to keep and bear arms from state infringement, the House was debating the second Freedmen's Bureau Bill,[128] § 8 of which protected "the constitutional right to bear arms."[129]

You were saying?

 

[mack]

Well heck, if I would have read Batholomew Roberts post number 35 earlier - I could have just copied and pasted with attribution and saved a lot of typing.

 

[Sebastian the Ibis]

So, I have a hard time believing that he would spend so much time (both in briefs and orals) on P&I if it somehow isn't going to be useful down the road.

I agree. Incorporation through P and I would have been much more direct, by tying the RTKBA right into the language of the constitution. “The RTKBA is in the Bill of Rights; therefore it is a privilege and immunity of U.S. Citizenship of which no state shall make any law abridging. Slaughterhouse is overruled because……..”

Due Process Incorporation will have to hang on various concepts of fundamental rights, ordered liberty, active liberty, principals that any free society would adopt, charts of the relative importance of these issues, and other such hooey. All of these doctrines are judicial constructs that can be re-interpreted over time, at the whim of the courts. As Breyer has ably demonstrated these concepts can be gobbledygook that he uses to justify whatever is in his gut regardless of what the Constitution says.

Slaughterhouse has lasted for 140 years, despite being wrong, since it was tied right into the language of the Constitution. I would love for Heller and McDonald to attain similar longevity. P & I would have been better, but I'll take either.

It is like wanting a fence to be a new color. You can simply slap on another coat of paint, or you can strip off the old paint, sand it, prime it and paint it. Both will change the color, but the latter will probably last longer, since it depends solely on the wood beneath it and not numerous other layers applied over the years.

 

[usmarine0352_2005]

.

I think its 99.9% that SCOTUS will not use P&I. They will incorporate the way the others were by Due Process.

It definitely seems SCOTUS did not want to incorporate through P&I since it opens up an entire can of worms that have nothing to do with the 2nd Amendment.

It appears that through Due Process they can keep their opinion as narrow as possible and still incorporate the 2nd Amendment.
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