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.
usmarine0352_2005 said:
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.
Alan Korwin via Michael Thomason said:
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.
Armed Bear said:
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.