Sebastian the Ibis
Member
The National Rifle Association’s interference with gun rights lawsuits, most notably in Heller and McDonald, is a serious problem for gun rights in America. They have stolen 1/3 of Gura’s argument time in McDonald, while disparaging him in the press and refusing to coordinate. They nearly aborted Heller f/k/a Parker, and a full 60% of their litigation involves hijacking lawsuits brought by other parties, for which they try to steal credit. They need to shut up and get out of the way of Gura and others who have actually accomplished something before this infighting jeopardizes the right to keep and bear arms.
NRA involvement in Parker v. District of Columbia
When U.S v. Emerson 270 F.3d 203 (5th Cir. 2001), came down, creating a circuit split over the militia clause of the Second Amendment., a group of conservative lawyers (Bob Levy, Clark Neily, Institute for Justice and others) in DC realized that a good civil case with honest plaintiffs affirming the right to keep and bear arms (hereinafter “RTKBA”) had to be in the appellate courts since it was inevitable that SCOTUS would take a Second Amendment case to resolve the circuit split, and the RTKBA would probably stricken from the Constitution if SCOTUS took one of the horrible second amendment cases which were then currently pending. These horrible cases usually involved some sort of career criminal appealing his life sentence on the grounds that he had a right to use a machine gun to commit some violent crime. Therefore those lawyers spent several years gathering effective plaintiffs and finding a lawyer with the time, skills and energy to bring the case- Alan Gura. The Free Republic has a good write up on this here: http://www.freerepublic.com/focus/f-news/1886556/posts.
When Levy, Gura and the other lawyers finally brought the case they sued upon very narrow issues so that there was no way the courts could avoid the RTKBA. Additionally, in a very shrewd tactical decision, they sued only the City of Washington and its mayor. They did not sue the United States or the Attorney General. This allowed Gura to proceed through the appellate courts challenging federal law, without facing the superb lawyers at the U.S. Department of Justice (hereinafter “DOJ”); he only had to compete against the lesser D.C. appellate office. However, after Parker began to attract attention the NRA swooped in. They rounded up whatever plaintiffs they could find in DC and sued everyone, including the Attorney General, for every claim they could think of hoping that something would stick. They then tried to merge their case, Seegars v. Ashcroft, with Parker. Fortunately after wasting an inordinate amount of time and money, Gura was able to fight off the NRA. Unfortunately, the NRA had sued Ashcroft who brought in the DOJ. The DOJ came up with a standing argument that resulted in the dismissal of each of the NRA’s Plaintiffs. The DC appellate lawyers, who had not thought of this argument on their own, then used the same argument to disqualify all of Gura’s Plaintiff’s except Dick Heller. There are numerous articles covering this including: http://www.gurapossessky.com/news/parker/overview.html, Gura’s own website. That is why the case is Heller not Parker. I honestly do not know whether the NRA intentionally tried to scuttle Parker, or are incompetent and selfish. Either way I find it despicable that the NRA claims credit for it, on their website: http://www.nradefensefund.org/litigation.aspx.
NRA Hijacking of other Pro-Gun Cases
Despite nearly aborting Heller for us, the NRA has continued to hijack other people’s cases. By my count The NRA was involved in 10 federal district court cases in 2009. A full list of the cases for those who want to follow up is attached below. In six of those cases the NRA filed a copycat suit and tried to merge their case with someone else’s case, i.e. Jackson v. City of San Francisco, or the NRA tried to intervene as a defendant i.e. the national parks cases. Instead of bringing these cases themselves, or offering to contribute to the case with lawyers, lobbying, money or coordination, the NRA jumped in as a party and attempted to take control of the whole case!
In this same time period the NRA highjacked six cases, the NRA only brought two cases on its own. One was NRA v. Washington; the other was Doe v. San Francisco Housing Authority. These were good pro-gun victories, and the NRA should continue to pursue and settle cases like these. However, both cases settled and neither are even remotely close to Heller and McDonald in terms of stakes or complexity. The NRA’s other two (2) cases were unrelated to gun issues, in one the NRA sued a donor, and in the other the NRA was sued over its insurance plan.
NRA’s Hijacking of McDonald
The NRA filed their own case against Chicago, NRA v. Chicago, this was not selected by SCOTUS, McDonald was. Instead of moving to the sidelines and/or offering to support the team that made it through to SCOTUS, the NRA has done everything they can to take over McDonald. The NRA has successfully taken 10 minutes, one third, of the Petitioners’ oral argument time, and are now falsely claiming credit for all due process arguments, while telling anyone who will listen that Gura is a constitutional simpleton who will lose McDonald by arguing the Privileges and Immunities clause too, despite the fact that SCOTUS specifically asked to hear both Privileges and Immunities and Due Process arguments, and SCOTUS granted cert. to McDonald which included both arguments, and not NRA v. Chicago which did not. See Clement’s swipe at Gura here: http://volokh.com/2010/01/25/nra-gets-oral-argument-time-in-mcdonald-v-city-of-chicago/
The NRA is correct that Due Process is the more likely avenue for incorporation. However, SCOTUS asked to hear both Due Process and Privileges and Immunities, and it is necessary to argue both, since conceivably four Justices might vote for Due Process and one Justice might vote for Privileges and Immunities and there would be no majority without both. Also, incorporation through Privileges and Immunities would more firmly entrench the RTKBA, since the right would be rooted directly in the language of the constitution and not the court’s due process doctrine. Since it is necessary to make both arguments and Privileges and Immunities is the more difficult argument Gura devoted most of his brief to it, but still made an excellent concise Due Process argument. The NRA, on the other hand, spent most of their brief on Due Process but their arguments were still flawed, by not really using Duncan, Glucksberg, and the other recent Due Process cases. The NRA failed to even discuss Nordyke, the 11th circuit gun case that created the circuit split on incorporation!!! See Josh Blackman’s Blog for a better discussion of this http://joshblackman.com/blog/?p=3903.
The only sensible thing the NRA has done in their whole fiasco is hire Paul Clement. Unfortunately 1) They hired him after the brief was submitted, so the NRA completely missed the modern due process cases, and 2) it allowed them to steal ten minutes of Gura’s time at oral argument. The divided argument time is completely counterproductive here since the NRA and Gura cannot split arguments. Both Gura and Clement will have to be prepared to individually answer every question, and both will have to explain the differences in their positions if they come up. Upon information and belief, Clement will not coordinate with Gura, and Gura would not trust him even if they did.
Paul Clement is one of the best SCOTUS litigators of his generation, however contrary to what the NRA says Gura didn’t just fall of the turnip truck. He has already beaten Paul Clement and Walter Dellinger, another former acting solicitor general, in Heller, and there is no rational reason that anyone can question his intellect or dedication. He is ably backed up by numerous amici and veteran civil rights attorneys. The NRA should get out of McDonald and other RTKBA cases, their interference does not help, they do not know what they are doing, and they do not deserve credit for cases they hijack.
List of NRA’s 2009 District Court Cases:
NATIONAL PARKS CONSERVATION ASSOCIATION et al v. KEMPTHORNE et al,
BRADY CAMPAING TO PREVENT GUN VIOLENCE v. KEMPTHORNE et al, 1:08-cv-02243-CKK
CENTER FOR BIOLOGICAL DIVERSITY v. UNITED STATES BUREAU OF LAND MANAGEMENT, et al, 3:09-cv-08011-PGR
DEFENDERS OF WILDLIFE et al v. SALAZAR et al, 9:09-cv-00077-DWM
HUMANE SOCIETY OF THE UNITED STATES, THE et al v. SALAZAR et al,
NATIONAL RIFLE ASSOCIATION OF AMERICA v. FLEMING, 6:08-cv-00649-MV-RHS
EZELL v. NATIONAL RIFLE ASSOCIATION OF AMERICA ENDORSED INSURANCE PROGRAMS et al, 1:08-cv-00073
NATIONAL RIFLE ASSOCIATION OF AMERICA, INC. et al. v. STATE OF WASHINGTON et al. 2:08-cv-01613-RSM
JACKSON et al v. CITY AND COUNTY OF SAN FRANCISCO et al, 4:09-cv-02143-PJH
DOE et al v. SAN FRANCISCO HOUSING AUTHORITY et al 3:08-cv-03112-THE
NRA involvement in Parker v. District of Columbia
When U.S v. Emerson 270 F.3d 203 (5th Cir. 2001), came down, creating a circuit split over the militia clause of the Second Amendment., a group of conservative lawyers (Bob Levy, Clark Neily, Institute for Justice and others) in DC realized that a good civil case with honest plaintiffs affirming the right to keep and bear arms (hereinafter “RTKBA”) had to be in the appellate courts since it was inevitable that SCOTUS would take a Second Amendment case to resolve the circuit split, and the RTKBA would probably stricken from the Constitution if SCOTUS took one of the horrible second amendment cases which were then currently pending. These horrible cases usually involved some sort of career criminal appealing his life sentence on the grounds that he had a right to use a machine gun to commit some violent crime. Therefore those lawyers spent several years gathering effective plaintiffs and finding a lawyer with the time, skills and energy to bring the case- Alan Gura. The Free Republic has a good write up on this here: http://www.freerepublic.com/focus/f-news/1886556/posts.
When Levy, Gura and the other lawyers finally brought the case they sued upon very narrow issues so that there was no way the courts could avoid the RTKBA. Additionally, in a very shrewd tactical decision, they sued only the City of Washington and its mayor. They did not sue the United States or the Attorney General. This allowed Gura to proceed through the appellate courts challenging federal law, without facing the superb lawyers at the U.S. Department of Justice (hereinafter “DOJ”); he only had to compete against the lesser D.C. appellate office. However, after Parker began to attract attention the NRA swooped in. They rounded up whatever plaintiffs they could find in DC and sued everyone, including the Attorney General, for every claim they could think of hoping that something would stick. They then tried to merge their case, Seegars v. Ashcroft, with Parker. Fortunately after wasting an inordinate amount of time and money, Gura was able to fight off the NRA. Unfortunately, the NRA had sued Ashcroft who brought in the DOJ. The DOJ came up with a standing argument that resulted in the dismissal of each of the NRA’s Plaintiffs. The DC appellate lawyers, who had not thought of this argument on their own, then used the same argument to disqualify all of Gura’s Plaintiff’s except Dick Heller. There are numerous articles covering this including: http://www.gurapossessky.com/news/parker/overview.html, Gura’s own website. That is why the case is Heller not Parker. I honestly do not know whether the NRA intentionally tried to scuttle Parker, or are incompetent and selfish. Either way I find it despicable that the NRA claims credit for it, on their website: http://www.nradefensefund.org/litigation.aspx.
NRA Hijacking of other Pro-Gun Cases
Despite nearly aborting Heller for us, the NRA has continued to hijack other people’s cases. By my count The NRA was involved in 10 federal district court cases in 2009. A full list of the cases for those who want to follow up is attached below. In six of those cases the NRA filed a copycat suit and tried to merge their case with someone else’s case, i.e. Jackson v. City of San Francisco, or the NRA tried to intervene as a defendant i.e. the national parks cases. Instead of bringing these cases themselves, or offering to contribute to the case with lawyers, lobbying, money or coordination, the NRA jumped in as a party and attempted to take control of the whole case!
In this same time period the NRA highjacked six cases, the NRA only brought two cases on its own. One was NRA v. Washington; the other was Doe v. San Francisco Housing Authority. These were good pro-gun victories, and the NRA should continue to pursue and settle cases like these. However, both cases settled and neither are even remotely close to Heller and McDonald in terms of stakes or complexity. The NRA’s other two (2) cases were unrelated to gun issues, in one the NRA sued a donor, and in the other the NRA was sued over its insurance plan.
NRA’s Hijacking of McDonald
The NRA filed their own case against Chicago, NRA v. Chicago, this was not selected by SCOTUS, McDonald was. Instead of moving to the sidelines and/or offering to support the team that made it through to SCOTUS, the NRA has done everything they can to take over McDonald. The NRA has successfully taken 10 minutes, one third, of the Petitioners’ oral argument time, and are now falsely claiming credit for all due process arguments, while telling anyone who will listen that Gura is a constitutional simpleton who will lose McDonald by arguing the Privileges and Immunities clause too, despite the fact that SCOTUS specifically asked to hear both Privileges and Immunities and Due Process arguments, and SCOTUS granted cert. to McDonald which included both arguments, and not NRA v. Chicago which did not. See Clement’s swipe at Gura here: http://volokh.com/2010/01/25/nra-gets-oral-argument-time-in-mcdonald-v-city-of-chicago/
The NRA is correct that Due Process is the more likely avenue for incorporation. However, SCOTUS asked to hear both Due Process and Privileges and Immunities, and it is necessary to argue both, since conceivably four Justices might vote for Due Process and one Justice might vote for Privileges and Immunities and there would be no majority without both. Also, incorporation through Privileges and Immunities would more firmly entrench the RTKBA, since the right would be rooted directly in the language of the constitution and not the court’s due process doctrine. Since it is necessary to make both arguments and Privileges and Immunities is the more difficult argument Gura devoted most of his brief to it, but still made an excellent concise Due Process argument. The NRA, on the other hand, spent most of their brief on Due Process but their arguments were still flawed, by not really using Duncan, Glucksberg, and the other recent Due Process cases. The NRA failed to even discuss Nordyke, the 11th circuit gun case that created the circuit split on incorporation!!! See Josh Blackman’s Blog for a better discussion of this http://joshblackman.com/blog/?p=3903.
The only sensible thing the NRA has done in their whole fiasco is hire Paul Clement. Unfortunately 1) They hired him after the brief was submitted, so the NRA completely missed the modern due process cases, and 2) it allowed them to steal ten minutes of Gura’s time at oral argument. The divided argument time is completely counterproductive here since the NRA and Gura cannot split arguments. Both Gura and Clement will have to be prepared to individually answer every question, and both will have to explain the differences in their positions if they come up. Upon information and belief, Clement will not coordinate with Gura, and Gura would not trust him even if they did.
Paul Clement is one of the best SCOTUS litigators of his generation, however contrary to what the NRA says Gura didn’t just fall of the turnip truck. He has already beaten Paul Clement and Walter Dellinger, another former acting solicitor general, in Heller, and there is no rational reason that anyone can question his intellect or dedication. He is ably backed up by numerous amici and veteran civil rights attorneys. The NRA should get out of McDonald and other RTKBA cases, their interference does not help, they do not know what they are doing, and they do not deserve credit for cases they hijack.
List of NRA’s 2009 District Court Cases:
NATIONAL PARKS CONSERVATION ASSOCIATION et al v. KEMPTHORNE et al,
BRADY CAMPAING TO PREVENT GUN VIOLENCE v. KEMPTHORNE et al, 1:08-cv-02243-CKK
CENTER FOR BIOLOGICAL DIVERSITY v. UNITED STATES BUREAU OF LAND MANAGEMENT, et al, 3:09-cv-08011-PGR
DEFENDERS OF WILDLIFE et al v. SALAZAR et al, 9:09-cv-00077-DWM
HUMANE SOCIETY OF THE UNITED STATES, THE et al v. SALAZAR et al,
NATIONAL RIFLE ASSOCIATION OF AMERICA v. FLEMING, 6:08-cv-00649-MV-RHS
EZELL v. NATIONAL RIFLE ASSOCIATION OF AMERICA ENDORSED INSURANCE PROGRAMS et al, 1:08-cv-00073
NATIONAL RIFLE ASSOCIATION OF AMERICA, INC. et al. v. STATE OF WASHINGTON et al. 2:08-cv-01613-RSM
JACKSON et al v. CITY AND COUNTY OF SAN FRANCISCO et al, 4:09-cv-02143-PJH
DOE et al v. SAN FRANCISCO HOUSING AUTHORITY et al 3:08-cv-03112-THE
