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SCOTUS to Grant NRA time to argue (C&P)
COBmmcmss
Member Posts: 1,174 ✭✭✭✭✭
NRA Granted Argument Time in Second Amendment Case at Supreme Court
Tony Mauro
The National Law Journal
January 26, 2010
The Supreme Court on Monday granted a motion by the National Rifle Association for argument time March 2, when the justices will consider whether the Second Amendment individual right to bear arms applies against state and local restrictions on firearms. The NRA will take an unspecified number of minutes from the plaintiffs who are challenging Chicago's gun restrictions, and who are represented by Alan Gura of Gura & Possessky of Washington, D.C., and Virginia. The case is McDonald v. City of Chicago.
Adding the NRA to the list of those arguing may seem unremarkable, but in fact, the NRA has not been the pivotal player in the recent Supreme Court litigation over the Second Amendment. That title goes to Gura, something of an upstart, who took the landmark D.C. v. Heller case to the high court in 2007. As we reported at the time, there were old rivalries and no love lost between Gura and NRA lawyers, whom Gura felt were obstacles, not allies in the litigation.
Gura in fact opposed the NRA's request for argument time in the McConald case on Jan. 9, arguing that hearing from the NRA would "at best be redundant." Gura also wrote that the NRA "greatly overstates its role" in the litigation before the Court. Gura said, "The only factor separating NRA from the myriad other groups advocating for gun rights as amicus curiae is the payment of filing fees."
The NRA made its request for argument time in a Jan. 5 motion by its lawyer, former Solicitor General Paul Clement, now at King & Spalding. Clement indicated the request was driven in part by the fact that the brief by Gura emphasizes the "privileges or immunities clause" argument in favor of applying the Second Amendment to the states, whereas the NRA wants to advance a more traditional "due process clause" argument for incorporation. Clement noted that the due process argument occupied only 7 of 73 pages in the petitioners' brief. Gura, in his reply, said the due process argument "will be presented fully" at oral argument without the NRA intervening.
So why did the Court grant the motion? Clement is a familiar face at the Court, and his presence may also represent a "cover all bases" strategy by justices who favor incorporation but are uncertain how the privileges or immunities argument will play out. Asked about the Court's decision, Clement said, "I think the grant of the NRA's motion may signal that the Court is interested in ensuring that all the avenues to incorporation, including the due process clause, are fully explored at the argument." Clement added, "Of course, I look forward to working with Alan."
Responding to Clement's remarks, Gura said, "The suggestion that I wouldn't present all the arguments to the Court was uncalled for." Gura added, "I hope that this time Paul understands that handgun bans are unconstitutional." As solicitor general in 2007, Clement filed a brief in the Heller case arguing that the D.C. handgun ban warranted heightened scrutiny but was not necessarily unconstitutional and should be remanded to lower courts for more review.
Highlights in red added for emphasis. COB
Tony Mauro
The National Law Journal
January 26, 2010
The Supreme Court on Monday granted a motion by the National Rifle Association for argument time March 2, when the justices will consider whether the Second Amendment individual right to bear arms applies against state and local restrictions on firearms. The NRA will take an unspecified number of minutes from the plaintiffs who are challenging Chicago's gun restrictions, and who are represented by Alan Gura of Gura & Possessky of Washington, D.C., and Virginia. The case is McDonald v. City of Chicago.
Adding the NRA to the list of those arguing may seem unremarkable, but in fact, the NRA has not been the pivotal player in the recent Supreme Court litigation over the Second Amendment. That title goes to Gura, something of an upstart, who took the landmark D.C. v. Heller case to the high court in 2007. As we reported at the time, there were old rivalries and no love lost between Gura and NRA lawyers, whom Gura felt were obstacles, not allies in the litigation.
Gura in fact opposed the NRA's request for argument time in the McConald case on Jan. 9, arguing that hearing from the NRA would "at best be redundant." Gura also wrote that the NRA "greatly overstates its role" in the litigation before the Court. Gura said, "The only factor separating NRA from the myriad other groups advocating for gun rights as amicus curiae is the payment of filing fees."
The NRA made its request for argument time in a Jan. 5 motion by its lawyer, former Solicitor General Paul Clement, now at King & Spalding. Clement indicated the request was driven in part by the fact that the brief by Gura emphasizes the "privileges or immunities clause" argument in favor of applying the Second Amendment to the states, whereas the NRA wants to advance a more traditional "due process clause" argument for incorporation. Clement noted that the due process argument occupied only 7 of 73 pages in the petitioners' brief. Gura, in his reply, said the due process argument "will be presented fully" at oral argument without the NRA intervening.
So why did the Court grant the motion? Clement is a familiar face at the Court, and his presence may also represent a "cover all bases" strategy by justices who favor incorporation but are uncertain how the privileges or immunities argument will play out. Asked about the Court's decision, Clement said, "I think the grant of the NRA's motion may signal that the Court is interested in ensuring that all the avenues to incorporation, including the due process clause, are fully explored at the argument." Clement added, "Of course, I look forward to working with Alan."
Responding to Clement's remarks, Gura said, "The suggestion that I wouldn't present all the arguments to the Court was uncalled for." Gura added, "I hope that this time Paul understands that handgun bans are unconstitutional." As solicitor general in 2007, Clement filed a brief in the Heller case arguing that the D.C. handgun ban warranted heightened scrutiny but was not necessarily unconstitutional and should be remanded to lower courts for more review.
Highlights in red added for emphasis. COB
Comments
A gun-control supporting organization, using a gun-control supporting lawyer to argue what should be a solid stance on Amendment II and on incorporation.
This is akin to having a convicted child molester give seminars on babysitting, child care and child sexuality.
Looks as if the vaunted NRA wants to get it name back in the limelight and fool more ignoramuses into the belief that they are the 'last line' of staunch defense of the Second Amendment.
Sad thing is, win OR lose, they will have masses of new and existing adoring sycophants fawning over them and running all around the country selling the sanke-oil anew.
Absolutely pathetic.
If, for example, Gura can argue that the 2nd is not dependant upon 'privileges and immunities' considerations, the incorporation of the 2nd against the states is not subject to the whim of the States.
The NRA-ILA has a vested financial interest in maintaining an on-going battle with individual state legislatures. The circumvention of said legislatures by a definitive finding against Chicago will virtually eliminate the reason for being of the NRA-ILA.
Though I am not sufficiently well-versed in the Constitutional definition of privileges and immunities as compared rights of the people, it stands to reason there is a difference. If there was not a difference, Article 4, Section 2 would not be. Please (anyone) let us know if you have a different or more precise understanding.
Brad Steele
I would venture the opinion that every man that holds the Second Amemdent dear has spoken to at least one other man in the last month that stands ready to defend this country through force of arms, when necessary.
That is FAR more then you...AND your vaunted NRA...have done in your entire lives.
At least, agree with them or not, the NRA is out there doing something. Meanwhile, the usual suspects here do nothing but complain and find fault.
edited by pickenup
jp, please try to control.....I KNOW it is hard
I wish whoever is reminding you to breathe would forget to do it, just once.
Now to address to the subject matter. Red flags go up for me the instant I read the title. I am sure, as they are the right hand of the government, the NRA is only there foe 2 reasons. One to look "good" to COMPLETE IDIOTS (Ahem), and 2 to make sure they are not put out of business by ruling coming too close to true freedom.
At least, agree with them or not, the NRA is out there doing something. Meanwhile, the usual suspects here do nothing but complain and find fault.
Your idea and their idea of DOING SOMETHING is repulsive and goes against what the founders CLEARLY made. I have their very words to back it up. Their intent was clear.
You and your organization can comprimise all you like. Leave me, and people just like me alone, however. Keep stepping on our toes, and sooner or later you are going to get thrown through a wall.
At least, agree with them or not, the NRA is out there doing something.
Maybe so, but it remains to be seen,
WHICH SIDE WILL THEY BE ON???
They have PROVEN in the past, that they are
MORE THAN WILLING TO.......
HELP INFRINGE ON OUR RIGHTS!!!!!!
Will it be MORE OF THE SAMEfrom the NRA???
*****
Gura felt the NRA lawyers were
obstacles, not allies
in the litigation.
*****
If they are going to choose the SAME SIDE AGAIN.....
I for one would rather NOT have them out there..... "doing something"
[:(!][:(!][:(!][:(!]
Yet strangely this collective never seems to get around to actually doing anything themselves. At least not doing anything in the real world Instead they will loudly strut around here on GB.com and act like they know/have all/the only answers and that they belong to an elite group which, when the time is right (after years the time seems to never be "right") they are going to spring into action and take back America.
They are actually more entertaining than a Star Trek movie. And their entertainment is free.
Yes, what you will observe with the usual suspects is that all they ever do (and they always do it as a collective, kinda like the Borg on Star Trek) is that they attack, gripe, moan, complain, and criticize. They will be the quickest to attack and criticize people and organizations (like the NRA) who at the least are out there trying to do some good.
Yet strangely this collective never seems to get around to actually doing anything themselves. At least not doing anything in the real world Instead they will loudly strut around here on GB.com and act like they know/have all/the only answers and that they belong to an elite group which, when the time is right (after years the time seems to never be "right") they are going to spring into action and take back America.
They are actually more entertaining than a Star Trek movie. And their entertainment is free.
Hells bells you are stupid. Doing SOMETHING BAD, is not conduciive to our purpose, nor SHOULD it be yours, idiot.
Yet strangely this collective never seems to get around to actually doing anything themselves.
How is it that you KNOW this???
I have seen you repeatedly make this accusation.
Same drivel, different thread.
How do you KNOW what members here are doing outside of these forums???
Some may be writing letters.
Some may be making phone calls.
Some may be talking to representatives in person.
Some may be sending in EXTRA funds to fight the gun controllers.
Some may be volunteering hours at gun shows, to spread the word.
Some may be speaking at gun club meetings.
Some may be getting ready to RUN FOR OFFICE themselves.
(I know for a fact, that at least one, IS)
HOW DO YOU KNOW??? --- NOTHING is being done?
Are ANY of these actions good enough FOR YOU???
Just exactly what is YOUR criteria for "doing something" else???
Or do you just UN-KNOWINGLY -- MOUTH OFF, because your precious NRA has been PROVEN to be SUPPORTIVE of gun control, and have REPEATEDLY stabbed us in the back? And YOU are upset because someone has the unmitigated gall to bring these facts to light. Proving that all those dollars YOU sent to the NRA, were actually HURTING our rights, rather than helping.
Rather than admit that your dollars were used against us, you would rather ATTACK the people that point out what the NRA has REALLY been up to.
Ya sure, just the kind of person I want on my side..........NOT
At least, agree with them or not, the NRA is out there doing something. Meanwhile, the usual suspects here do nothing but complain and find fault.
'Find' is a bit of a stretch.
You ain't gotta do too much digging to discover the truth about the NRA.
Simple damage control, LT.
If, for example, Gura can argue that the 2nd is not dependant upon 'privileges and immunities' considerations, the incorporation of the 2nd against the states is not subject to the whim of the States.
The NRA-ILA has a vested financial interest in maintaining an on-going battle with individual state legislatures. The circumvention of said legislatures by a definitive finding against Chicago will virtually eliminate the reason for being of the NRA-ILA.
Though I am not sufficiently well-versed in the Constitutional definition of privileges and immunities as compared rights of the people, it stands to reason there is a difference. If there was not a difference, Article 4, Section 2 would not be. Please (anyone) let us know if you have a different or more precise understanding.
Don,
Under the privileges and immunities clause, if you get married in one state, you must be considered married in another state - despite the differing laws on age of consent. Also, if you are licensed to drive in one state, you can travel in another state as a licensed citizen.
This is where Gura is hanging his hat on as opposed to getting SCOTUS to acknowledge the 2nd Amendment being applicable to all states. Remember, until 1966 the states didn't even apply the 5th and 6th Amendment rules to the state government police - just the Feds.
More traditionally the courts view it that, if you want to a) conduct business, b) own land or c) enjoy the freedoms to freely pass through that state, although you're a member of another state - you can, subject to the same laws as a member of that state.
The important part is rights and immunities you have in one state are transferable to another. The drawback to this is the past rulings that states have a vested interest in their own population and thus may restrict some privileges (e.g. tuition to a state college) to only those members of that state.
This becomes a balance between the 10th Amendment regarding State Sovereignty versus Federalism by mandate.
Hope this helps.
COB
Yes, what you will observe with the usual suspects is that all they ever do (and they always do it as a collective, kinda like the Borg on Star Trek) is that they attack, gripe, moan, complain, and criticize. They will be the quickest to attack and criticize people and organizations (like the NRA) who at the least are out there trying to do some good.
Yet strangely this collective never seems to get around to actually doing anything themselves. At least not doing anything in the real world Instead they will loudly strut around here on GB.com and act like they know/have all/the only answers and that they belong to an elite group which, when the time is right (after years the time seems to never be "right") they are going to spring into action and take back America.
They are actually more entertaining than a Star Trek movie. And their entertainment is free.
No, what is ENTERTAINING, is your screwed up thought process.
Handgun control, the marxists, the communists, ect, are doing SOMETHING too. THEY have alot of MONEY backing them, the BEST lawyers, ect. Should we ceed to THEM? Or RATHER, should we STICK to the people's CONTRACT, also known as the constitution?
YOUR idea is NOT to hold dear the contract, but rather ROLL OVER and lick the hand that feeds you. WE that stand FOR the constitution do NOT have to roll over and take it. We have a contract, and written history of the AUTHORS of the contract to BACK our side.
The longer this game goes on, the more pissed people are going to get. This keeps up much longer, like it or not, blood will be running in the streets.
Don,
Under the privileges and immunities clause, if you get married in one state, you must be considered married in another state - despite the differing laws on age of consent. Also, if you are licensed to drive in one state, you can travel in another state as a licensed citizen.
This is where Gura is hanging his hat on as opposed to getting SCOTUS to acknowledge the 2nd Amendment being applicable to all states. Remember, until 1966 the states didn't even apply the 5th and 6th Amendment rules to the state government police - just the Feds.
More traditionally the courts view it that, if you want to a) conduct business, b) own land or c) enjoy the freedoms to freely pass through that state, although you're a member of another state - you can, subject to the same laws as a member of that state.
The important part is rights and immunities you have in one state are transferable to another. The drawback to this is the past rulings that states have a vested interest in their own population and thus may restrict some privileges (e.g. tuition to a state college) to only those members of that state.
This becomes a balance between the 10th Amendment regarding State Sovereignty versus Federalism by mandate.
Hope this helps.
COB
Thanks, COB.
That is how I understand the privileges and immunities clause, though in reference to your example, I had thought the Defense of Marriage Act has passed Constitutional muster via the courts. A side issue, anyway.
Regarding the two positions, Gura and the NRA (It looks like I misread the OP. Oops.):
I guess I do not see any advantage to inserting the privileges and immunities clause into this argument. Please correct me if I am wrong, but arguing this point seems to suggest that there is power of State Legislatures that is to be considered. One could surmise this is a back-door attempt to force the national reciprocity wrt to concealed carry that was attempted last year, but is that a responsible goal? I think it is not.
Is it your thinking that recognizing privileges and immunities frames the Second Amendment as conditioned through the power of the States? I would think a straight forward incorporation against the states would be a much more pro-active and worthy goal.
I cannot help but think that an approach through privileges and immunities, even if successful, will be pyrrhic victory at best, as it will codify the right of the individual States to legislate virtually anything within their borders as you point out.
Lastly, I would question your assertion that blanket incorporation is contrary to any 10th Amendment protections. Although legislative and judicial history suggests differently, I find it hard to justify the notion that the 2nd Amendment does not prohibit the power of infringing upon firearms ownership from the States.
Brad Steele
I guess I should actually called them the "obstructive gloom and doom suspects."
In fact, the usual suspects will ALWAYS tell everybody what is wrong and what not to do. Yet strangely, the usual suspects never get around to acting in a constructive manner. A constructive manner such as telling everybody what is going right and what people should do, such as getting out from behind their keyboard and actually trying to improve America instead of just talking about tearing America down.
I guess I should actually called them the "obstructive gloom and doom suspects."
No Larry, what you keep saying, if one is to read between the lines is " I am a wanna be mall ninja. If you don't fully support the NRA, then you are doing NOTHING. If you don't fully agree with "comprimise" then you are a wacko (even though the "comprimise" is directly opposed to the CONSTITUTION). I also being a wanna be mall ninja, don't think my rights are set in stone, rather they are privilages. If you think otherwise, then you are a keyboard commando. Even though my name may be Larry, my buddies call me Tory. I have no clue why."
That is pretty close to how I see what you are saying. I have documented history to BACK my view. I also have a contract, that sure seems pretty clear to people like me. I don't need to pay someone to fight for my rights, as I am not nearly that lazy.
So, what is YOUR excuse, Larry Blart?
Fox, have you taken a guess as to how many years it will take to have your gun rights completely erased by supporting NRA? If they speak for you and give up a little with each compromise then eventually you will have no rights. You actually understand this progression, right?
Thanks, COB.
That is how I understand the privileges and immunities clause, though in reference to your example, I had thought the Defense of Marriage Act has passed Constitutional muster via the courts. A side issue, anyway.
Regarding the two positions, Gura and the NRA (It looks like I misread the OP. Oops.):
I guess I do not see any advantage to inserting the privileges and immunities clause into this argument. Please correct me if I am wrong, but arguing this point seems to suggest that there is power of State Legislatures that is to be considered. One could surmise this is a back-door attempt to force the national reciprocity wrt to concealed carry that was attempted last year, but is that a responsible goal? I think it is not.
Is it your thinking that recognizing privileges and immunities frames the Second Amendment as conditioned through the power of the States? I would think a straight forward incorporation against the states would be a much more pro-active and worthy goal.
I cannot help but think that an approach through privileges and immunities, even if successful, will be pyrrhic victory at best, as it will codify the right of the individual States to legislate virtually anything within their borders as you point out.
Lastly, I would question your assertion that blanket incorporation is contrary to any 10th Amendment protections. Although legislative and judicial history suggests differently, I find it hard to justify the notion that the 2nd Amendment does not prohibit the power of infringing upon firearms ownership from the States.
Don,
IMHO, Gura is trying to use the power of the 10th Amendment to take a "bite" out of creeping federalism. By reestablishing the rights of the states, thus the right of be people (the second part of the 10th Amendment) Gura is creating the official recognition that can then bridge to the 14th Amendment.
The approach that the 2nd Amendment applies to the individual states has been tried several times and shot down in as many times. This approach which Gura is trying is one that is not able to be shut down by the mere stating that states (like the Illinois Charter and unlike the California Constitution) says nothing of the 2nd Amendment rights to its citizenry, thus allowing local bans (e.g. Morton Grove). This has been the bane of the approach by others so far.
It took over 100 years to get the ability to have the 5, 6, and 8th Amendments to be recognized by State governments and courts. Why would I be shocked that it has taken this long to get them to recognize a 2nd Amendment right?
I don't know rightly if this is a good approach other than by guessing what is in his brief. I will certainly be looking for the transcript of the hearing when published. But you and I both know that's like armchair quarterbacking Brett Farve in the NFC championship.. Oh well, too late and too short.
Only time and patience will tell.
COB
P.S. You're right about the Marriage Act, but before it was enacted, there was a case of two kids from New Jersey driving to Indiana to get married and then returning to New Jersey where they were arrested for violating the New Jersey "Age of Consent" laws which were not as low as Indiana's. That set the precedent for that Marriage Act.
Don,
IMHO, Gura is trying to use the power of the 10th Amendment to take a "bite" out of creeping federalism. By reestablishing the rights of the states, thus the right of be people (the second part of the 10th Amendment) Gura is creating the official recognition that can then bridge to the 14th Amendment.
The approach that the 2nd Amendment applies to the individual states has been tried several times and shot down in as many times. This approach which Gura is trying is one that is not able to be shut down by the mere stating that states (like the Illinois Charter and unlike the California Constitution) says nothing of the 2nd Amendment rights to its citizenry, thus allowing local bans (e.g. Morton Grove). This has been the bane of the approach by others so far.
It took over 100 years to get the ability to have the 5, 6, and 8th Amendments to be recognized by State governments and courts. Why would I be shocked that it has taken this long to get them to recognize a 2nd Amendment right?
I don't know rightly if this is a good approach other than by guessing what is in his brief. I will certainly be looking for the transcript of the hearing when published. But you and I both know that's like armchair quarterbacking Brett Farve in the NFC championship.. Oh well, too late and too short.
Only time and patience will tell.
COB
P.S. You're right about the Marriage Act, but before it was enacted, there was a case of two kids from New Jersey driving to Indiana to get married and then returning to New Jersey where they were arrested for violating the New Jersey "Age of Consent" laws which were not as low as Indiana's. That set the precedent for that Marriage Act.
Thank you COB, for the informative and thoughtful post.
I am consistantly amazed and always appreciative of the knowledge that folks like yourself bring to these discussions.
Don
Brad Steele