Armed Polite Society
Main Forums => Politics => Topic started by: freakazoid on February 02, 2010, 06:10:33 PM
-
http://www.jpfo.org/kirby/kirby-nra-elbows-way.htm
The NRA elbows its way into
the McDonald Case
By Kirby Ferris
Jews for the Preservation of Firearms Ownership.
Copyright JPFO 2010
One wonders if NRA members should be proud of their organization’s apparent newfound fiduciary conservatism. The so-called “premier” gun rights organization has now managed to finagle its way into the spotlight after someone else’s sweat and money rented the hall, built the stage, and set up the sound system.
NRA lawyers are now second guessing pro-gun lawyer Alan Gura’s expertise. And this, after Gura masterminded and navigated the vitally crucial landmark Heller case to a victorious decision in favor of the Second Amendment.
The NRA’s leadership must have looked at each other and realized that (coming so close on the coat tails of Heller) McDonald actually had a good chance at victory. I can just hear them clinking their drinks in toast and chuckling: “Gura will likely win this one too. Let’s get on board now!”
All that might not be so bad, but look who the NRA has hired as their head counsel in this wedge into McDonald: Paul Clement, the very attorney who advocated against our gun rights in Heller!
That’s right, Clement led the federal government’s charge to protect the Washington D.C. ban on handgun ownership!
Here are some of Paul Clements espousals during Heller. These are from Clement’s oral arguments to SCOTUS and from the written brief filed in the case. He penned or uttered these little nuggets of liberty loving patriotism.
“In our view it makes a world of difference, Justice Ginsburg, because we certainly take the position, as we have since consistently since 2001, that the Federal firearm statutes can be defended as constitutional, and that would be consistent with this kind of intermediate scrutiny standard that we propose.”
Oh yeah?
Now take a look at this one:
“The Second Amendment talks about "the right to bear arms", not just "a right to bear arms". And that preexisting always coexisted with reasonable regulations of firearms.”
Don’t you love the word “reasonable”? It sound so…so reasonable! Unfortunately what Clement is talking about here is a ban on the possession of a handgun in your own home for your own self defense!
And here’s an intriguingly slippery one for you:
“Absolutely, Justice Ginsburg, and just... I mean, to give you a clear example, we would take the position that the kind of plastic guns or guns that are specifically designed to evade metal detectors that are prohibited by Federal law are not "arms" within the meaning of the Second Amendment and are not protected at all.”
Hmmm…. Very lawyerly. I’m not going to comment on that one. Just read it a couple of times for your own smell test.
And now a couple of tidbits from Paul Clement’s written brief in Heller:
"Given the unquestionable threat to public safety that unrestricted private firearm possession would entail, various categories of firearm-related regulations are permitted by the Second Amendment."
How does “shall not be infringed” somehow sneak past this guy’s obviously impressive intellect?
Some icing on the cake:
“Nothing in the Second Amendment, properly understood -- and certainly no principle necessary to decide this case — calls for invalidation of numerous federal laws regulating firearms.”
Oh boy…
Yes, friends, this is the man the NRA has hired to defend your gun rights in the unbelievably crucial McDonald vs. The City of Chicago case.
This is the same NRA that still believes the BATFE has a warm and fuzzy place in our lives. See: "NRA Letter"
This is also the same NRA that has not called for the completed destruction of “gun control” laws. And it’s the same NRA that does not appear to have a problem with Nazi “gun control” laws used as a basis for “The Gun Control Act of 1968”. See: this handbill and see also: the film "No Guns for Negroes".
In a recent JPFO alert article I speculated on what might knock McDonald off the rails. See: "Will Your Gun Rights Live or Die?" This present turn of events should certainly not deter our fears. JPFO is not alone in our concern with this NRA/Clement issue. See: this Cato @ Liberty article, (also archive copy here on JPFO).
Paul Clement is like a shark who just tried to bite our legs off. And now the NRA has crashed the pool party and tossed him in with us! Is it “hire a crook to catch a crook” logic? How can Clement’s oral arguments in the upcoming McDonald case possibly be all that effective? Those nine Justices (four of whom are obviously anti-gun Liberals) might truly wonder to themselves: “Hey! This guy was here about a year ago and argued the exact opposite of what we’re hearing now!”
Hey NRA, do you call that good legal strategy? And more importantly: Do you really want a McDonald victory?
-
Sigh.
Damned NRA.
I'm only a member to keep my NRA RSO card. That's it.
I'm calling tomorrow to talk to them about this. Very angry. Thanks for posting this.
-
Sigh.
Damned NRA.
I'm only a member to keep my NRA RSO card. That's it.
I'm calling tomorrow to talk to them about this. Very angry. Thanks for posting this.
SIGH.
Sooo, the fact that he was representing the government's position means nothing, hmm?
The NRA (nor the government) was not paying him to represent his own view. He is paid to represent his clients' views.
AND I may note that since his fee from the NRA is significantly below the market rate, he may be closer to representing his own views in supporting the NRA's case...
But please, continue with your RKBA group infighting. It's very productive. ;/
-
SIGH.
Sooo, the fact that he was representing the government's position means nothing, hmm?
The NRA (nor the government) was not paying him to represent his own view. He is paid to represent his clients' views.
AND I may note that since his fee from the NRA is significantly below the market rate, he may be closer to representing his own views in supporting the NRA's case...
But please, continue with your RKBA group infighting. It's very productive. ;/
[insert blanket NRA protectionism here]
Arglebarglefarglegargle
[/NRA]
How can anyone, even a supreme court justice, take a person seriously when he equivocates his representation on an issue?
There is a metric jillion tons of lawyers out there. This one represented an anti-gun angle.
Here's a novel idea: Respect Gura enough to leave him the hell alone, or ASK him if he wants help, and WHO he would like on his side of the courtroom?
I doubt Gura wants to share arguments with an equivocator.
-
AND I may note that since his fee from the NRA is significantly below the market rate, he may be closer to representing his own views in supporting the NRA's case...
Have you seen, and read about, what issue the NRA and Gura differ on?
-
SIGH.
Sooo, the fact that he was representing the government's position means nothing, hmm?
Means I can't trust the {s}ucker.
AND I may note that since his fee from the NRA is significantly below the market rate, he may be closer to representing his own views in supporting the NRA's case...
Then why the HELL would he represent the government view if he personally believed in RKBA? If you're qualified to argue before the SCOTUS then you ain't exactly hurting for money. He CHOSE to argue pro-government control before SCOTUS.
Now he wants to be on our side?
I smell a trojan horse.
-
SIGH.
Sooo, the fact that he was representing the government's position means nothing, hmm?
The NRA (nor the government) was not paying him to represent his own view. He is paid to represent his clients' views.
AND I may note that since his fee from the NRA is significantly below the market rate, he may be closer to representing his own views in supporting the NRA's case...
But please, continue with your RKBA group infighting. It's very productive. ;/
Sorry to be the Jerk to point this out, but he LOST the last time went before the SCOTUS.
Maybe he shouldn't be in charge of the legal strategy? Hiring him to help Gura with his strategy is pure win, kinda like a sparring partner pointing out your technique flaws.
-
This makes me not want to give either org any money.
Bunch of damned whiny bratty children aren't doing me and my trampled rights any good.
-
Means I can't trust the {s}ucker.
Then why the HELL would he represent the government view if he personally believed in RKBA? If you're qualified to argue before the SCOTUS then you ain't exactly hurting for money. He CHOSE to argue pro-government control before SCOTUS.
Now he wants to be on our side?
I smell a trojan horse.
http://www.justice.gov/osg/aboutosg/paul_d_clementbio.htm
Paul D. Clement was the 43rd Solicitor General of the United States. He was nominated by President George W. Bush on March 14, 2005, confirmed by the United States Senate on June 8, 2005, and took the oath of office on June 13, 2005.
Mr. Clement is a native of Cedarburg, Wisconsin, and a graduate of the Cedarburg public schools. He received his bachelor’s degree summa cum laude from the Georgetown University School of Foreign Service, and a master’s degree in economics from Cambridge University. He graduated magna cum laude from Harvard Law School where he was the Supreme Court editor of the Harvard Law Review.
Following graduation, Mr. Clement clerked for Judge Laurence H. Silberman of the U.S. Court of Appeals for the D.C. Circuit, and for Associate Justice Antonin Scalia of the U.S. Supreme Court. After his clerkships, he worked as an associate in the Washington, D.C., office of Kirkland & Ellis. Mr. Clement went on to serve as Chief Counsel of the U.S. Senate Subcommittee on the Constitution, Federalism and Property Rights. Afterwards, he was a partner in the Washington, D.C., office of King & Spalding, where he headed the firm’s appellate practice. Mr. Clement also served from 1998 to 2004 as an Adjunct Professor at the Georgetown University Law Center, where he taught a seminar on the separation of powers.
Mr. Clement joined the Department of Justice in February of 2001. Before his confirmation as Solicitor General, he served as Acting Solicitor General for nearly a year and as Principal Deputy Solicitor General. He has argued 49 cases before the United States Supreme Court, including McConnell v. FEC, Tennessee v. Lane, Rumsfeld v. Padilla, United States v. Booker and Gonzales v. Raich.
It was his job to argue before the Supreme Court and to represent his client (U.S. Government).
But, I know, it's far easier to scream at the NRA cause they're an evil organization whose REAL intention is to keep the restrictions on our right to keep and bear arms just so they can get more money. [tinfoil]
And OF COURSE these other organizations attack the NRA because they know about their diabolical conspiracy and aren't in any way trying to get more funds for themselves.
-
http://www.justice.gov/osg/aboutosg/paul_d_clementbio.htm
It was his job to argue before the Supreme Court and to represent his client (U.S. Government).
But, I know, it's far easier to scream at the NRA cause they're an evil organization whose REAL intention is to keep the restrictions on our right to keep and bear arms just so they can get more money. [tinfoil]
And OF COURSE these other organizations attack the NRA because they know about their diabolical conspiracy and aren't in any way trying to get more funds for themselves.
Still waiting to hear how he's a better choice for a civil rights lawsuit. Given that he has a professional history of sticking it to the populace and representing the government, and doesn't even have the personal integrity to recuse himself or pronounce his moral reservations with even attempting to defend certain behavior (such as the DC ban).
-
It was his job to argue before the Supreme Court and to represent his client (U.S. Government).
Sorry, but that sounds an awful lot like the old German excuse "I was just following orders." In simple ethical terms, it's wrong to help deprive people of our rights.
-
Sorry, but that sounds an awful lot like the old German excuse "I was just following orders." In simple ethical terms, it's wrong to help deprive people of our rights.
You mean, like a lawyer that defends a multiple murderer?
-
I think there's wider problems with this than the identity of the attorney.
-
You mean, like a lawyer that defends a multiple murderer?
Yeah. I understand the principle that everyone has a right to a fair trial; I also couldn't face the man in the mirror were I to help a murderer elude justice, or deprive a law-abiding fellow citizen of his rights, or steal, or any number of other wrongs.
-
Jeebus.
He's a frickin' attorney.
He'll represent whomever pays him, for chrissakes.
Old adage that the NRA may have remembered: Keep your friends close and your enemies closer (or even on your payroll).
-
There's an old trick employed by real estate people in my old home town whenever a big property case comes up. Hire every skilled real estate attorney in town, put 'em on retainer over something stupid and useless. That way the other side can't hire any of them to use against you, it'd be a conflict of interest. Cheaper to buy them off to be on your side than to have to pay your real attorney to face off against them in court. I'm not saying this has anything to do with this Gura/NRA mess, I'm just illustrating that there are all sorts of oddball reasons people hire attorneys, and most of the reasons make no sense when viewed fro the outside.
Anyone of y'all claiming malfeasance on the part of the NRA, do you have any way whatsoever of knowing what the NRA's strategies and motives really are? You seem to, cause you insist you know them to be bad, but I don't see how any of us could be in a position to know one way or another what's really going on behind the scenes. I'd like to know how you came to this inside info.
I'd also ask the peanut gallery whether they'd be willing to utilize a "traitor" if it meant securing more gun rights for ourselves. Would consorting with bad people be a reasonable price to pay for more rights? I certainly think so.
-
Court watchers (people who are law professors and otherwise qualified) seem to think that Gura's goal is not merely to get incorporation, but to also overturn Slaughterhouse, which - according to said court watchers - seemed likely right up until the NRA applied for, and got divided argument.
-
MB:
Elaborate on how NRA short-circuits a swipe at Slaughterhouse, if you could.
-
And OF COURSE these other organizations attack the NRA because they know about their diabolical conspiracy and aren't in any way trying to get more funds for themselves.
The NRA does almost all of the heavy lifting for RKBA on a national level. Their list of accomplishments is readily available. The SAF does good work, too, and I have a lot of respect for state organizations at a state level.
The JPFO and GOA aren't even players. Every time I hear from them they are trying to steal members from the NRA. If they want to do anything helpful, maybe they could set up tables at gunshows and help recruit more NRA members.
-
MB:
Elaborate on how NRA short-circuits a swipe at Slaughterhouse, if you could.
Essentially, they're arguing for the law to be struck down based on Due PRocess. For Slaughterhouse to die, it must die based on Privileges and Immunities.
-
http://www.cato-at-liberty.org/2010/01/26/nra-cares-more-about-nra-than-gun-rights-liberty-professional-courtesy/
http://www.examiner.com/x-2698-Charlotte-Gun-Rights-Examiner~y2010m1d28-Court-grants-NRA-motion-to-argue-McDonald-What-are-implications
New wrinkle in far-reaching gun rights case:
Oral arguments slated for March 2nd
On Monday, the Supreme Court of the United States granted a motion by the National Rifle Association for a portion of the 60 minutes allotted to oral argument in the case of McDonald v. City of Chicago. While it might seem unremarkable for the Court to allot argument on an important gun rights case to the dominant gun rights organization, the ruling highlights longstanding antipathy between the NRA and Alan Gura, the lawyer who won the landmark gun rights case Heller v. D.C. and is now arguing McDonald.
WHAT ARE THE NRA’S MOTIVATIONS?
In Heller, Gura and many others felt the NRA tried (unsuccessfully) to torpedo the case, first attempting to “consolidate” its own inferior filing into the case, then trying to repeal the D.C. gun ban, rendering the case moot. Wrote Tony Mauro of the Legal Times:
“Even after the D.C. Circuit ruled in March, says Gura, the NRA lobbied for legislation to repeal the D.C. handgun ban as a way to keep the case out of the Supreme Court. ‘The NRA was adamant about not wanting the Supreme Court to hear the case, but we went ahead anyway,’ says Gura, a name partner in the firm of Gura & Possessky. ‘It's not their case, and they are somewhat territorial.’”
The question is whether the NRA, which butted into the present case against the wishes of Gura and his client, is doing so for sound tactical reasons, or as a means of “marching to the head of the parade” by claiming success for efforts not of its doing.
While you might think the NRA joining the pro-gun argument is a plus (“the more, the merrier”), bear in mind that while the Court may extend oral arguments, as it did in Heller, each side is normally limited to thirty minutes. Translated, the NRA is taking precious time from a lawyer who has already won the most important Second Amendment case in history.
Moreover, arguing the case for the NRA is former U.S. Solicitor General Paul Clement who, in Heller, argued for the government that D.C.’s gun ban might indeed be constitutional. Said slate.com:
“…the U.S. solicitor general—representing the president at the Supreme Court—has argued that while there is an individual right to bear arms protected by the Second Amendment, the Court of Appeals for the D.C. Circuit Court struck down the city's gun ban using the wrong level of constitutional scrutiny. He wants the case revisited with greater deference to the government's need for some gun regulations…”
WHAT IS AT STAKE IN McDONALD?
At issue in McDonald is whether the Second Amendment will be “incorporated” and therefore, under the Fourteenth Amendment, be applied to states. Remember that in Heller, the Court ruled the Second Amendment affirms an individual right to keep and bear arms, and that the District of Columbia violated that right with its near-total ban on gun ownership. But the Bill of Rights was originally intended to apply only to the federal government, and the District of Columbia is a federal entity. Therefore, Heller left open the question of whether state and local governments could enact near-total bans such as the one in D.C.
If that isn’t complex enough, consider too that under the Fourteenth Amendment, passed in the historical context of Reconstruction, two arguments can be pressed for incorporation – the more traditional “due process” clause, or the more aggressive “privileges and immunities” clause.
Further complicating the issue, in what is regarded as a flawed 1873 Supreme Court decision (“The Slaughter-House Cases”), the Court ruled that only rights that accrue from the existence of the federal government (e.g. to petition Congress) are protected under “privileges and immunities.” Pre-existing rights (including the right to bear arms) could be abridged by states.
Simply put, Gura’s petition in McDonald argues for incorporation under both “due process” and “privileges and immunities” clauses, asking the Court to overturn Slaughter-House, while the NRA claims Gura underemphasizes “due process” and seeks to make the argument itself.
For Gura’s own explanation, check his interview with David Kopel of the Independence Institute, available at: http://www.davekopel.com/PDA.htm
THE NRA FILES, AND FUR FLIES
With the NRA motion to argue part of McDonald granted, conservatives and libertarians – who generally join in supporting the Second Amendment – find themselves divided.
Says Ilya Shapiro of the libertarian-leaning Cato Institute (whose Chairman, Robert A. Levy, organized and bankrolled Heller, even recruiting Gura to argue the case):
“Sadly, it’s … typical of how the NRA has behaved throughout this case and before that during the Heller litigation - sabotaging [Gura] at every turn and showing again and again that, even in the face of winning arguments that fully support its legal positions, the NRA prefers to seek glory for itself rather than presenting the strongest case for its purported constituency of gun owners…”
Conservatives, on the other hand, fret that overturning Slaughter-House will open the door to overturning state-level restrictions on private property. Froths commentator Ken Klukowsky at Townhall.com:
“The lawyers for Otis McDonald and his co-plaintiffs are libertarian activists, who are pushing an aggressive and potentially risky constitutional theory to the Court…the National Rifle Association is working hard to keep the focus of this case where it belongs, on gun rights.”
For his own part, Alan Gura is more pragmatic, favoring the same approach that won Heller:
“We are not against substantive due process. We simply believe that it’s always preferable, when the Court decides a constitutional issue, to begin with the actual text of the Constitution and see what it meant to the people who ratified it. Two years ago … the Heller opinion [came] out, and the Court did this for the Second Amendment. The Court went word by word and asked: Who are 'the People?' What are 'arms?' What does it mean to 'bear arms?' What did this language actually mean at the time?"
That the Court should ask the framers’ intentions in drafting the Fourteenth Amendment – as it did with the Second Amendment – is not “radical” or “aggressive” or “activist.” It is what constitutional scholars should do.
What the Supreme Court will decide after the upcoming March 2 oral argument is anyone’s guess. As a betting man, however, I would rather place my money on a lawyer who already won the precedent-setting Second Amendment case rather than the lawyer who argued against him.
-
Essentially, they're arguing for the law to be struck down based on Due PRocess. For Slaughterhouse to die, it must die based on Privileges and Immunities.
In other words, the NRA is going for the most likely means of achieving greater gun rights and Gura is taking a bigger risk and trying to get more than simple incorporation by arguing for overturning an older judgement?
How evil of the NRA to take the conservative approach and feel wary about someone gambling with gun rights in order to pursue a broader judgement, right?
-
As G98 alluded to, trusting lawyers (on either side) to have your best interests at heart is a losing proposition. NRA aren't zomg Nazis, although they can border on Quislings in some times and some places. However, niether are they the organizational reincarnation of Joan of Arc, filled with the pure love and goodness of freedom.
-
So why did the SC allow the motion to separate part of the argument time?
-
As G98 alluded to, trusting lawyers (on either side) to have your best interests at heart is a losing proposition. NRA aren't zomg Nazis, although they can border on Quislings in some times and some places. However, niether are they the organizational reincarnation of Joan of Arc, filled with the pure love and goodness of freedom.
Exactly. All organizations are like this, I think of them as businesses. Their product is political agenda, their currency is both money and political power.
If a magical solution to all gun control issues were to arise tomorrow, they would be out of business and they know it.
Expect them to act in their rational self interest, just like everyone else. When their interest matches yours, support them (buy the product). When it doesn't, don't.
-
In all fairness, if all gun control laws were repealed tomorrow the NRA would still exist and have a useful purpose. New shooter classes, competition etc. That's not something that can be said about most (any?) of the other orgs that are solely political.
-
In all fairness, if all gun control laws were repealed tomorrow the NRA would still exist and have a useful purpose. New shooter classes, competition etc. That's not something that can be said about most (any?) of the other orgs that are solely political.
You're right about the NRA's activities to boost the shooting sports.
Most of the other orgs are solely financial.
-
The ILA is the one that gets the most attention (when you include non-gunnies), and it would be dead.
-
The ILA is the one that gets the most attention (when you include non-gunnies), and it would be dead.
It would go int'l. India is beginning to see the light.
-
I think keeping more bad laws from being passed would be a full time job, too...
-
In other words, the NRA is going for the most likely means of achieving greater gun rights and Gura is taking a bigger risk and trying to get more than simple incorporation by arguing for overturning an older judgement?
It's not that serious a risk. There's no serious scholarship to support Slaughterhouse, AFAIK.
-
Wouldn't be the first time the SC has ruled in opposition to all sense or reason or "scholarship".
There's always a risk when we take our rights up with the SC. This isn't something to take lightly.
-
I seriously doubt you're going to get five justices to rule for incorporation using the P&I clause. It would definitely be nice, but I kind of doubt it.
More likely you're going to get 2 or 3 to vote based on P&I, with another 2 or 3 to vote based on due process. This isn't optimal, but it's still good; a split majority decision on why it's incorporated against the state still means it's incorporated. It just doesn't overturn Slaughterhouse.
One good thing about the P&I argument is that we may get one or more of the liberal justices to vote for incorporation using it, giving a 6-3 or 7-2 majority; the left has been looking for a way to overturn the Slaughterhouse case for a while, and many are willing to team up with gun rights organizations in order to do it.