Monday, January 25, 2010

Latest on McDonald case (NRA vs Gura)

I found this interesting. Orin Kerr of the Volokh blog, posted this. He's not a fan of Alan Gura's argument on the privileges and immunities clause regarding the 2nd Amendment, so keep that in mind.

The Blog of Legal Times notes that the Supreme Court granted the NRA’s contested motion for oral argument time in McDonald v. City of Chicago. The NRA had asked for argument time to make sure the Due Process arguments were fully made, in light of the fact that McDonald’s counsel Alan Gura had focused so heavily on the Privileges or Immunities argument. Gura had opposed the motion on the ground that it was his case and it would be extremely unusual to grant divided time in such circumstances. Paul Clement, former SG, will argue for the NRA.

We can’t read too much into the Court’s decision to divide argument time, but I tend to see it as somewhat supporting my theory that the grant in McDonald on both PorI and Due Process was not a sign the Court wants to overturn the Slaughterhouse cases. As I have written before, the Petitioner’s brief in McDonald is extremely unusual: It’s asking for a revolution in constitutional law, with the stakes of that particular case almost an afterthought to the brief. If the Court was on board the revolution, as most libertarian bloggers seem to think, presumably the Justices wouldn’t carve away some of the precious 30 minutes needed to make the case for the revolution for the much more humdrum and precedent-based argument featured in the NRA brief. On the other hand, if the Justices just want to decide the case before them, and see a revolution as unlikely, then it makes sense to make sure Paul Clement is there to focus on the narrower and more direct arguments for incorporation.

The Legal Times  has the original story. Chicago Gun has all the filed briefs.

I recently posted updates on the Chicago Case on January 8th and December 9th. Those should be read as background, along with the briefs. I addressed the Slaughterhouse case in the December 9th writing.

There's a little more this. Alan Gura is obviously a major supporter of the 2nd Amendment, but he is not a big fan of the NRA. He took offense at the NRA's charge that he wouldn't argue due process effectively. That's not the first battle he's had with the NRA, which is why I think he took the shot at Clement's (now the NRA attorney) argument in Dc v Heller.

Back in the DC v Heller case, the NRA was afraid they would lose and there were major arguments about that case. Gura did win, and apparently after the case went to SCOTUS, some things were patched up. Did old wounds open up here with the NRA taking 10 minutes of Gura's time?

From Legal Times:

On the pro-gun-rights side those worries, along with long-simmering rivalries, have relegated the National Rifle Association to the sidelines in a case that could fulfill its most fervent dream: a declaration by the Court that the convoluted wording of the Second Amendment ensures an individual's right to bear arms, rather than a collective right of state militias. If the right-leaning Roberts Court embraces that view, regulating firearm possession and use would become harder, though not impossible.
Alan Gura, the Alexandria, Va., lawyer who masterminded the challenge to the D.C. handgun ban, says the NRA has joined him "ever so grudgingly" only in recent weeks, after years of trying to wreck the litigation and avoid a Second Amendment showdown. At earlier stages, the NRA sought to consolidate its own case, which challenged the D.C. law on a "kitchen sink" array of rationales, with Gura's. In a 2003 filing, Gura called the NRA case "sham litigation" aimed at muddying his Second Amendment claim.
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."
Gura insists that if the high court grants review, he will argue the case himself and won't defer to NRA lawyers, such as Stephen Halbrook, who have Supreme Court experience. "My decisions in the case have been the correct decisions. That's why I am arguing and he's not."
NRA spokesman Andrew Arulanandam denies his group sought to sabotage Gura's case: "Our intent to file an amicus brief if the case progresses speaks for itself." He also noted that the NRA filed a brief supporting Gura with the circuit court.
Yet Charles Cooper of D.C.'s Cooper & Kirk acknowledges that when he reviewed the Heller case at an earlier stage for the NRA, "my concern was then, as it is now, whether our [individual rights] theory of the Second Amendment would command a majority of the Supreme Court." Even with recent changes in the composition of the Court, says Cooper, "that is still not as clear as I would like it to be, though I am much more calm." Nonetheless, Cooper says, if the high court declines to take up the D.C. case and lets the D.C. Circuit ruling stand, "that's not going to disappoint me."
Cooper's reluctance is based on legal strategy, but others say the NRA has less lofty reasons for not wanting the Supreme Court to decide what the Second Amendment really means. "The NRA would lose its loudest fund-raising drum if this question is answered," says Carl Bogus, a leading scholar who favors the militia rights view of the amendment.

The NRA is cautious, sometimes way to a fault. I think their caution pushed them in DC, and it also in this case pushed them to put all their eggs in the due process basket instead of going for the 120+year old root cause of the problems. Presser, Cruikshank, and Slaughter-house.

I understand what the NRA did, but it's not their case that's being heard. It's McDonald's case, and I don't like seeing the argument get watered down. I hope this doesn't cost us.

No comments: