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

[Michael Thomson]

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.

I disagree. Admittedly, the written briefs are the most important part of the case and oral argument simply provides Justices an opportunity to follow up or clarify arguments made in the briefs.

In this case, Gura's brief was overwhelmingly on P or I and overturning Slaughterhouse, an argument that was thoroughly and embarrassingly rejected by the Justices on Tuesday. Gura used only 6 or 7 pages of his written brief on Due Process incorporation. If the briefs are the most important part of the case as most have suggested, then I'm not sure he did the Second Amendment any favors with his brief or his oral argument.

In contrast, NRA's focus was on Due Process and they hired one of the most respected Supreme Court attorneys in the country, something they caught a lot of flak over.

I think Gura forgot who his client is. For the record, it was McDonald, not CATO.

 

[mack]

No, McDonald and all Gura's clients in the case knew from the outset when they met with Gura that P&I was part of the deal. Also of course Gura had a rough time, he was presenting an option to due process that would require overturning Slaughterhouse and starting a new jurisprudence based on P&I which was part of the courts own request in granting cert. And it seems like the court also pretty much wanted Gura to focus on P&I and not due process as they gave NRA and Clement 10 minutes to do the simpler due process argument. Given those circumstances it would therefore have been odd in orals for Gura to not focus on just P&I. As was noted by the justices themselves it was a huge task - I think he did well considering the scope of it - and regards due process - it definitely seemed that it was already a done deal - the justices seemed most interested in exploring the issues of P&I. Chicago had no case and their oral was pathetically embarrassing.

Put another way - the courts majority seemed to have settled on due process before oral arguments - but they definitely still wanted to discuss P&I if not adopt it - So Gura got fastballs high and inside, Clement got a big fat softball over the heart of the plate, and Chicago's atty didn't even make it into the batters box.

I guess we just disagree, because I don't see where incorporation was at all at risk by Gura bringing up P&I - as due process was always the safe fall back. In fact during orals the justices in the majority themselves asked Gura if he would accept incorporation under due process instead of P&I and Gura said he would, it was really pretty much done deal at that point. Arguing P&I was a chance to fix the RKBA even more solidly as an individual right that would make it even more resistent to any future courts attempt to overturn it or minimize it. Therefore it would have been foolish not to argue for it.

 

[Bartholomew Roberts]

In this case, Gura's brief was overwhelmingly on P or I and overturning Slaughterhouse, an argument that was thoroughly and embarrassingly rejected by the Justices on Tuesday.

Embarrassingly? I guess I missed that part. What did you have in mind that you thought embarrasing?

Gura used only 6 or 7 pages of his written brief on Due Process incorporation. If the briefs are the most important part of the case as most have suggested, then I'm not sure he did the Second Amendment any favors with his brief or his oral argument.

First, as has been mentioned a dozen times already, Gura had the luxury of briefing the P&I argument more thoroughly because there were two respondents in this case and there was a division of labor on the briefs. You seem to be assuming that Gura would not have changed his strategy had there been only one respondent; but I don't know what factual basis you have for that assumption.

Second, the due process argument was so straightforward that even the Brady Campaign refused to argue against it in this case. Instead of counting how many pages Gura spent on the argument, why don't you tell me what part of his due-process argument that you thought was deficient or lacking?

I think Gura forgot who his client is. For the record, it was McDonald, not CATO.

I am not sure what the purpose of this remark was. Did that sound like a clever remark to you and so you typed it?

Or were you suggesting that Gura is an ethically deficient lawyer who put his own personal interests above that of his clients (and apparently both SAF and McDonald agreed with his strategy)? If so, that is a very serious charge to make - especially considering you haven't bothered to actually offer facts in support of that contention.

Or were you simply assuming I was so stupid I needed to be reminded who Gura's client was?

 

[ArmedBear]

What did you have in mind that you thought embarrasing?

Yeah, lawyers don't get embarrassed. But an ordinary person being mocked by a bunch of SCOTUS judges as he stands in front of and beneath them, might feel a bit embarrassed. Or a lot embarrassed.

Second, the due process argument was so straightforward that even the Brady Campaign refused to argue against it in this case.

...which is funny, really, given the sorts of mental and linguistic gymnastics one has to go through to apply the "due process of law" to the right to own and use a gun, whereas, to an ordinary person, "Priveleges or Immunities" would be a slam dunk.

apparently both SAF and McDonald agreed with his strategy

Well, he is the bigshot lawyer. What were they going to say? I'm sure it sounded great when he presented it.

As I wrote above, I don't think he was unethical. I think he wanted, and believed, this case to be about something even bigger than it is, and the Court almost always resists such attempts to tell it what to decide, beyond what is necessary for the case at hand. Furthermore, he could have scored big with this one, and I, along with Cato et al. would really have liked it if he had.

Also, it's important to remember that McDonald, Heller, and others are not necessarily looking merely to have their cases decided. If McDonald merely wanted a handgun, he would have just moved out of the city. So McDonald wasn't really a "client" in a traditional sense. He was part of the team that included SAF, Alan Gura, and a number of peripheral supporters of the case. There is no dichotomy between McDonald and Cato, really. McDonald isn't some guy who is sitting in jail, paying his lawyer a bag of money to get him out.

 

[Bartholomew Roberts]

...which is funny, really, given the sorts of mental and linguistic gymnastics one has to go through to apply the "due process of law" to the right to own and use a gun, whereas, to an ordinary person, "Priveleges or Immunities" would be a slam dunk.

Yes, ironic isn't it? The Justices ignore the plain language of the 14th Amendment, so later Justices create this elaborate process to give some effect to the 14th Amendment without overruling the earlier precedent (and without provoking a popular backlash in a society not ready for it) and now we refuse a chance to apply the plain language in favor of the elaborate process; because we're not sure what would happen if we just used the plain language.

 

[ArmedBear]

Yes, ironic isn't it? The Justices ignore the plain language of the 14th Amendment, so later Justices create this elaborate process to give some effect to the 14th Amendment without overruling the earlier precedent (and without provoking a popular backlash in a society not ready for it) and now we refuse a chance to apply the plain language in favor of the elaborate process; because we're not sure what would happen if we just used the plain language.

I.e., Sir Walter Scott: "Oh what a tangled web we weave, when first we practice to deceive."

 

[JohnKSa]

Having read the transcript it seems clear that Clements' arguments were better received than anyone else's. I think it would be extremely difficult to objectively make the case that his being there hurt our chances for a win.

 

[Bartholomew Roberts]

Having read the transcript it seems clear that Clements' arguments were better received than anyone else's. I think it would be extremely difficult to objectively make the case that his being there hurt our chances for a win.

*
True; but I don't think anyone is making that argument. Though it does appear that Michael Thomason feels Gura would have lost the case without Clement - which is a much different argument.

As for being well-received, well, Clement is a well-respected litigator and former Supreme Court clerk making his 50th oral argument in front of the Court and the issue is so straightforward that even the Brady's didn't challenge it. In a situation like that, he is going to get a chance to shine.

By immediate contrast, you have Gura arguing to overturn 140yrs of precedent and shake up Constitutional law from the foundation and Feldman arguing the position even Brady wouldn't defend even though he seems to have no real clear idea how to get there. That is a formula that is bound to make you look good.

 

[Sebastian the Ibis]

Mr. Michael Thomson,

There is a professional political consultant specializing in social networking (i.e. blogging) in the D.C. area with nearly the same name as yours. http://www.linkedin.com/in/naipchair Most of your posts on this site either link to an NRA-ILA press release, defend the most minute details of the NRA like Wayne LaPierre's salary or trash other pro-firearms organizations Cato, Gura, and JPFO http://www.thehighroad.org/showthread.php?t=325288

If you are expressing your own opinions that is fine. However, I believe it would be remarkably non-highroad if an organization were to send professional political consultants into a forum like this to trash their colleagues, and those professional consultants did not disclose that fact and the organization for whom they work.

 

[Sebastian the Ibis]

Also, Mr. Thomson.

I completely fail to see how Gura embarassed himself. He won Heller after the NRA filed Seegars and did everything they could to derail it. He got McDonald to SCOTUS in lightning speed. He graciously yielded the easier, but less effective, argument to NRA when they made it clear they were going to jump into McDonald, after the NRA's case was not granted cert. Yet in spite of all this you do nothing but bash him, without any compelling authority or arguments.

So please explain, with something more than a page count, how specifically Gura embarrassed himself, or sabotaged the RTKBA.

 

[RDak]

Gura didn't embarrass himself IMHO.

He had the tougher issue to tackle and, as stated by others, it was planned that Clements would handle the much easier SDP argument.

I do agree with ArmedBear, in that, to an ordinary person like myself, the P&I argument seems to be the slam dunk.

 

[rattletrap1970]

I hear a lot of legaleese, but to a layman that doesn't speak Lawyer, did this go well or not?

 

[Sebastian the Ibis]

did this go well or not?

Very well if you are a gun owner.

Poorly if you are Mayor Daley.

 

[RDak]

very well if you are a gun owner.

Poorly if you are mayor daley.

+1

At the very least, Heller will be incorporated against the States.

 

[mack]

Agree with Mr. Roberts here.

In regards to how it went - well lets just say we aren't moving in anytime before June - but we can start measuring for drapes.

 

[Sebastian the Ibis]

Mr. Thomson,

I am still waiting for any specific explanation you might have as to how Gura embarrassed himself or is sabotaging the RTKBA.