Supreme Court 2A Case tomorrow, NRA friend or foe...

[jedi]

The article does give some good food for thought. Is the NRA realy looking out for it's members or just trying to score "victory points". The arguement can be made for both ways. The NRA will be presenting a legal path for the court to approve that 2A applies to the states and that legal path is different than the path that the other atty is taking so in essence a 2 front war is being done. At the same time the NRA goes an hires the ATTY that was AGAINST Heller. Hu!
But an ATTY is an ATTY and if you pay them enough they will say an innocent man is guilty or a guilty man is innocent since in the end $$$ is all that matters to them as that is what they do. Not saying it's bad/good. You do pay for the best represenation you can get. But an ATTY and MORALs should not be used in the same sentence.
SOURCE:
NRA, onetime ally feud over next big guns case to go before Supreme Court - washingtonpost.com

By Robert Barnes
Washington Post Staff Writer
Monday, February 8, 2010
The National Rifle Association was on the outside looking in when the Supreme Court handed gun rights activists a landmark victory in 2008.
After the court ruled that the Second Amendment protects an individual right to gun ownership and that the District's handgun ban was unconstitutional, it was an upstart band of libertarian lawyers that celebrated on the marble steps and received the glory for the breakthrough decision.
The NRA, the nation's premier and most powerful gun rights group, has worked hard not to be in that position again. And because of an unusual intervention recently by the justices, its attorney will be in the mix when the court considers the next big guns case next month.
The case is McDonald v. Chicago, a challenge of gun laws in Chicago and its suburbs that are strikingly similar to the Washington handgun ban. It asks the court to decide something left unsettled in its landmark ruling in Heller v. District of Columbia: whether the Second Amendment offers protection against actions by state and local governments, not just the federal government and its enclaves.
The attorney for those challenging the laws is Alan Gura, an Alexandria lawyer who successfully argued the Heller case. But the court, without explanation, granted the NRA's request to give its attorney time at the podium as well; the court sliced Gura's time by a third and gave it to the NRA and its recently hired attorney, Paul D. Clement, who was solicitor general in the George W. Bush administration.
The decision has brought howls of complaint from those who support Gura and underscores the bad blood between the erstwhile Second Amendment allies.
Ilya Shapiro, a Supreme Court scholar at the libertarian Cato Institute, where Gura has ties, wrote, "NRA prefers to seek glory for itself rather than presenting the strongest case for its purported constituency of gun owners." He said in an interview that the NRA's decision to seek time at oral arguments March 2 was "about fundraising, not lawyering."
NRA spokesman Andrew Arulanandam responded: "Our client is the Second Amendment. We wanted to make sure that all avenues were addressed and all bases covered" in convincing the court that the amendment applies to state and local governments.
To anyone who is not a constitutional scholar, the idea that the Bill of Rights applies only to actions of the federal government might seem illogical. But the court has decided that each amendment must be applied, or "incorporated," to the states through specific decisions. The court has done that with most of the amendments -- but not the Second -- relying on the "due-process clause" of the 14th Amendment.
Gura says that using that path would be fine but that the best way to make the decision is through another clause of the 14th Amendment, one that forbids states from passing laws that would dilute the "privileges or immunities" that come with U.S. citizenship.
In a way, Shapiro said, the differing approaches distinguish "gun nuts," whose sole interest is a protection of Second Amendment rights, from "constitution nuts," who think the case offers a chance to reassert the importance of the privileges-or-immunities argument.
In arguing to the court that it needed to hear from him, Clement said that only seven pages of Gura's 73-page brief dealt with the due process clause. Because that is the most "straightforward route" to deciding the case -- the other would require the court to overturn three of its precedents, he said -- Clement wrote to the court, "it would be particularly unfortunate if that argument were not adequately presented at oral argument."
Gura bristles at "the suggestion that I wouldn't be prepared to make that argument." He added: "They're not bringing anything substantive to the argument. The NRA is principally interested in taking credit and fundraising." The NRA and Gura's group petitioned the court to hear the review of the Chicago law, and the court picked Gura's argument.
The NRA's fourth-quarter decision to bring in Clement adds another interesting element to the case. He is a widely admired practitioner and seems to be a favorite of the court. "I think the only reason they granted the NRA's petition is because Paul Clement's name was on it," Shapiro said.
But Clement has not always been popular with gun owners. As solicitor general during the Heller arguments, he took the position that the lower court's reasoning in striking down the District's gun law was so broad that it could threaten federal restrictions, such as on the sale of machine guns. He advised the justices to send the case back. Conservatives were outraged that was the official position of the Bush administration, even though Clement also agreed that the Second Amendment conveyed an individual right.
Bygones, the NRA's Arulanandam says now. As solicitor general, Clement had to protect the government's interest. "We're pleased we have him on our side," he said.
Robert Barnes will write about the Supreme Court every other week while the court is in session.

 

[kludge]

I'm not a huge fan of Gura... he threw machine guns under the bus in Heller. He should have responed, "your honors, that is not the issue at hand today." and left it alone.

But, it would be a landmark breakthrough if the court decides McDonald under the privileges or immunities clause.

I think the only reason the Feds had their own lawyer at the Heller case, was to make sure the justices didn't declare the 1986 ban unconstitutional, and becuase of the narrowness of the question posed, I don't think it would have been addressed in their decision; however the Feds were/are scared because they know that because of the language of Miller that the 1986 ban is unconstitutional.

Why the NRA didn't approach Gura first is beyond me - but I'm also I'm assuming Gura woudn't have taken their money anyway.

I'm certain that Gura would have argued both issues, and either one will work here, but having the full effect of the 14th Amendment back on the table would make for some very interesting jurisprudence.


Edit: FWIW, I think there are too many judges/justices thinking like economists. When you can't afford beef, you substitute chicken, when you can't afford chicken you substitute hot dogs, so the people eating hot dogs on a bun are just as well off as those eating beef wellington.

The Bill of Rights is not about substituting our natural rights to the lowest common denominator.

And economists are dumb.

 

[indykid]

Didn't Gura also agree to "reasonable restrictions" in his attempt to allow DC people to keep and bear arms? That too opened a can of worms, and the justice who wrote the motion for Heller even mentioned that he wished it wasn't brought up, but since it was brought up by Heller's lawyers, there was nothing the justices could do but agree to it. Some point of law.

 

[mrjarrell]

One thing makes this case stand out. It's about people, not gun rights organisations, like the NRA or SAF. It's about David and Colleen Lawson, Otis McDonald and Adam Orlov, and all the unnamed people hoping it goes in their direction.

The four plaintiffs are not stereotypical gun rights advocates. They don't represent the agenda of any national group or organize rallies. Instead they represent average Chicagoans - the kind of people that opponents of the city's ban say should be allowed to protect themselves from gun violence.
"Some people want to stereotype advocates in any case, to make them look like a bunch of crazies," said Alan Gura, a Virginia attorney who will argue the case. "But these are plaintiffs who reflect the city in which they live."
Chicago's ban on the sale and possession of handguns has been weathering legal challenges for years. But it gained newfound attention after the Supreme Court in 2008 struck down a similar handgun ban in the District of Columbia. The court now plans to decide whether the ruling on D.C., a city with unique federal status, should apply to local and state laws, too.
The lead plaintiffs in the Chicago suit decided to fight the city's gun ban for different reasons.
For the Lawsons, it stemmed from a scare in 2006, when Colleen Lawson was home alone with the flu and three men tried to jimmy open her back door. They ran off when they saw her through a window.
"That's how close they were to getting in," said Lawson, 51.
The Lawsons believe a handgun would allow them to protect their family and give them the kind of peace of mind Colleen Lawson had as a child, when she knew her grandmother kept a pistol in her apron.
"I knew without any doubt my grandmother would be able protect us," she said. "I can't say that to my children."

In the end, those folks are going to put a face to the ban and, hopefully sway the court in the right direction.

 

[kludge]

This from Analysis on SCOTUSblog:

(In fact, when Gura near the end of the argument returned to the podium for his rebuttal, his time was used up by Justices Ginsburg and Anthony M. Kennedy exploring what other rights might come into being if the Court gave new life to the “privileges or immunities” clause. He responded that he could not provide a full list, to which Justice Scalia retorted: “Doesn’ t that trouble you?” It was obvious that it troubled the Court.)

Why pray tell would the court be worried about what "additional" rights the citizens of this country would/could have by vacating Slaughter House?

Don't humans deserve all the rights they are born with by the mere fact that they were, uh.... born?

 

[kludge]

Clement noted that there were “not a lot” of variations of the gun right yet, since Heller was the only precedent so far, and that was limited to gun rights for self-defense in the home. But he said that the Court should allow a “carryover” into the 14th Amendment of all of the jurisprudence that develops on the Second Amendment’s scope.

Why the NRA wanted this guy is beyond me.

 

[hoosiertriangle]

The primary reason many fear using the privileges and immunities (P&I) clause is that it could be used to bring all sorts of new rights which don't exist and never have. A primary example would be using P&I to find a constitutional right to healthcare or some other non-sense made up right.

This from Analysis on SCOTUSblog:
Why pray tell would the court be worried about what "additional" rights the citizens of this country would/could have by vacating Slaughter House?

Don't humans deserve all the rights they are born with by the mere fact that they were, uh.... born?

 

[jedi]

kludge you have a link to the blog?
Thanks

 

[CarmelHP]

It doesn't sound like the Court wants to open the P&I can of worms. I think P&I is a cleaner and more Constitutionally honest path but it would buck more than a century of favored precedent.

 

[jedi]

Can't recall who said it (member on the board) but they said something to the effect that they think the court will side with 2A becuase Roberts (Chief Justice) sees that as his "lasting legacy" for his court and many decades to come.

 

[Bunnykid68]

This from Analysis on SCOTUSblog:



Why pray tell would the court be worried about what "additional" rights the citizens of this country would/could have by vacating Slaughter House?

Don't humans deserve all the rights they are born with by the mere fact that they were, uh.... born?

I agree 100%. God gave us rights and we let the government take them away.

 

[kludge]

The primary reason many fear using the privileges and immunities (P&I) clause is that it could be used to bring all sorts of new rights which don't exist and never have. A primary example would be using P&I to find a constitutional right to healthcare or some other non-sense made up right.

You were born with the right to healthcare. And you have the right to pay for it. The problem is when people claim to have rights and demand that another person pay for it. That's not a right, that's an entitlement.

The sooner we (re)discover that the better, and it would put an end to all kinds of crap.

 

[Kirk Freeman]

It doesn't sound like the Court wants to open the P&I can of worms. I think P&I is a cleaner and more Constitutionally honest path but it would buck more than a century of favored precedent.

Cleaner and more honest?

And you claim to have studied Constitutional Law, Carmel?

 

[CarmelHP]

Cleaner and more honest?

And you claim to have studied Constitutional Law, Carmel?

Well, there is legislative history in the 14th Amendment debate supporting incorporation through the P&I clause, nothing about due process, SCOTUS made that crap up in the 20th century so they wouldn't have to overrule themselves after scuttling P&I in the Slaughter-House Cases. SCOTUS, prior to the 14th Amendment had pretty much said that the P&I of citizenship protected the BoR against the state's police power. 14th Amendment Due Process is judicial gymnastics.

For if they were so received, and entitled to the privileges and immunities of citizens, it would exempt them [blacks] from the operation of the special laws and from the police regulations which they considered to be necessary for their own safety. It would give to persons of the negro race, who were recognized as citizens in any one State of the Union, the right to enter every other State whenever they pleased, singly or in companies, without pass or passport, and without obstruction, to sojourn there as long as they pleased, to go where they pleased at every hour of the day or night without molestation, unless they committed some violation of law for which a white man would be punished; and it would give them the full liberty of speech in public and in private upon all subjects upon which its own citizens might speak; to hold public meetings upon political affairs, and to keep and carry arms wherever they went. Dred Scott vs. Sanford, 60 U.S. 393 (1856)

and

Excerpted from here:
Howard introduced the proposed amendment in the Senate on behalf of the Joint Committee, explaining "the views and motives which influenced that Committee."[114] After acknowledging the important role of the testimony before the Joint Committee, Howard referred to "the personal rights guaranteed and secured by the first eight amendments of the Constitution; such as freedom of speech and of the press;. .. the right to keep and bear arms"[115] (emphasis added). Howard averred: "The great object of the first section of this amendment is, therefore, to restrain the power of the States and compel them at all times to respect these great fundamental guarantees"[116] (emphasis added).
In the ensuing debate, no one questioned Howard's premise that the Amendment made the first eight amendments applicable to the states.[117] Howard explained that Congress could enforce the Bill of Rights through the Enforcement Clause, "a direct affirmative delegation of power to Congress to carry out all the principles of all these guarantees."[118] Howard added: "It [the amendment] will, if adopted by the States, forever disable every one of them from passing laws trenching upon those fundamental rights and privileges which pertain to citizens of the United States, and to all persons who happen to be within their jurisdiction."[119]
Howard's explanation that the Fourteenth Amendment would protect "the personal rights guaranteed by the first eight amendments of the United States Constitution such as ... the right to keep and bear arms" appeared on the front page of the New York Times[120] and New York Herald[121] and were printed in the National Intelligencer[122] and Philadelphia Inquirer.[123] The New York Times found his speech "clear and cogent,"[124] while the Chicago Tribune found that it was "very forcible and well put, and commanded the close attention of the Senate."[125] "It will be observed," summarized the Baltimore Gazette, "that the first section is a general prohibition upon all of the States of abridging the privileges and immunities of the citizens of the United States, and secures for all the equal advantages and protection of the laws."[126] Other newspapers were impressed with the length or detail of Howard's explanation.[127]
While Howard was explaining in the Senate that the Fourteenth Amendment would protect the right to keep and bear arms from state infringement, the House was debating the second Freedmen's Bureau Bill,[128] § 8 of which protected "the constitutional right to bear arms."[129]

Is that what you wanted me to say?

 

[CarmelHP]

Cleaner and more honest?

And you claim to have studied Constitutional Law, Carmel?

At least you didn't zing me like this:

“Why,” Scalia asked Gura, “are you asking us to overrule 140 years of prior law….unless you are bucking for a place on some law school faculty.” The Justice said the “privileges or immunities” argument was “the darling of the professorate” but wondered why Gura would “undertake that burden.”

Ouch!

 

[jedi]

So for anyone that has read the transcripts (not sure if they are up), or heard the audio (don't think those are up) or read the blogs what is the verdict based on the comments the judges gave? Do you think it will pass (ie. 2A is incorporated?)

June time frame for a decision is a l-o-n-g time away....

 

[Bill of Rights]

So for anyone that has read the transcripts (not sure if they are up), or heard the audio (don't think those are up) or read the blogs what is the verdict based on the comments the judges gave? Do you think it will pass (ie. 2A is incorporated?)

June time frame for a decision is a l-o-n-g time away....

Read the transcript and yes, I do think it will pass. Not sure with what level of restriction, but Chicago's attorney seemed to lose his way a couple of times. By my read, Roberts, Alito, and Scalia each put him in a rough spot. Sotomayor and Ginsburg tried to cross up Gura... to no avail. I think it will pass, but the door is wide open for restrictions. Stevens made his position clear, not that it wasn't already, but shocker of shockers... Ginsburg actually, finally asked Gura the question as to whether the RKBA would exist absent the 2A and he replied that it absolutely would... I was very impressed... It had to stick in her craw to ask that... but he handled it very well, I thought. I'd like to see what someone with an actual law degree thinks about it, though.

Blessings,
Bill

 

[CarmelHP]

So for anyone that has read the transcripts (not sure if they are up), or heard the audio (don't think those are up) or read the blogs what is the verdict based on the comments the judges gave? Do you think it will pass (ie. 2A is incorporated?)

June time frame for a decision is a l-o-n-g time away....

Most who heard the oral arguments and the Justices comments, especially the all important Kennedy comments, thinks that there will be a decision incorporating the 2nd. What that means, what the scope will be, and what guidance is given, awaits to be seen. I just want the door opened, after that, we keep pushing, just like civil rights decisions regarding race were pushed in the '50's through '70's. It's not an end, it's a beginning.

 

[Kirk Freeman]

there is legislative history in the 14th Amendment debate supporting incorporation through the P&I clause, nothing about due process

Hey, hey, hey, counselor, you can't cite the uncontroverted legislative history around here! You'll have the Lost Causers claiming that it does not exist and that the Fourteenth Amendment is eeevil.

just want the door opened, after that, we keep pushing, just like civil rights decisions regarding race were pushed in the '50's through '70's. It's not an end, it's a beginning.

The confusion comes from the Wookie suiters who think that a favorable Supreme Court decision means that they can buy a machine gun through the mail after Heller or the case at bar. (At least the calls I get).

I think the proper analogy is the First Amendment after Gitlin. That took decades.

 

[dburkhead]

I think the proper analogy is the First Amendment after Gitlin. That took decades.

Gitlin? My Google-fu appears to be weak.