PDA

View Full Version : McDonald case update


tango-52
01-25-2010, 6:16 AM
SCOTUS denies states' request to present oral arguments for Plaintiff, but grants NRA's request. Just posted on SCOTUSblog:
http://www.scotusblog.com/

Roadrunner
01-25-2010, 6:30 AM
With the way things seem to be proceeding, it seems like people are merely going through the motions regarding the Supreme Court Justices and the pro-2A side, and incorporation is pretty much assured. On the anti-2A side however, it seems like those lawyers have got their work cut out for them, and are swimming against a very strong tide. Does anyone else feel the same way?

SIGscout
01-25-2010, 6:32 AM
Well nevermind then

BroncoBob
01-25-2010, 6:42 AM
Excellent news.

7x57
01-25-2010, 7:20 AM
+1 !! hahahahaha thats great. The court wishes to hear valid info and told the FUD to shove it.


My unreliable guess is that the NRA got special consideration because they have a case that more or less depends entirely on McDonald and are almost co-plaintiffs (I do not know the proper legal term for their situation and do not feel like looking it up), not so much that the court decided they would inherently make better arguments than the states.

I rather hope that Maloney doesn't get the same consideration. :eek:

7x57

scc1909
01-25-2010, 7:36 AM
SCOTUS denies states' request to present oral arguments for Plaintiff, but grants NRA's request. Just posted on SCOTUSblog:
http://www.scotusblog.com/

I'm not seeing anything about the McDonald case on SCOTUSBlog. You have a direct link? Thx!

scc1909
01-25-2010, 7:43 AM
Never mind...I found it as a foot note to the A Boumediene sequel bypassed (http://www.scotusblog.com/2010/01/a-boumediene-sequel-bypassed/) case...scroll down to the last paragraph.

tango-52
01-25-2010, 8:07 AM
It was during the LiveBlog, which is now posted here:
http://www.scotusblog.com/2010/01/liveblog-orders-and-opinions-1-25-10/

kf6tac
01-25-2010, 9:45 AM
+1 !! hahahahaha thats great. The court wishes to hear valid info and told the FUD to shove it.
Clasic!

Not quite. The thirty-eight states that were denied were in support of -- and their request was supported by -- the petitioner, i.e. McDonald, i.e. the side we want to win.

Maestro Pistolero
01-25-2010, 10:03 AM
If the court wants to hear more from Gura the day of argument, it is free to do so. Barring some sort of sabotage on the part of the NRA, I don't think this will tilt the case one way or another.

7x57
01-25-2010, 10:13 AM
If the court wants to hear more from Gura the day of argument, it is free to do so. Barring some sort of sabotage on the part of the NRA, I don't think this will tilt the case one way or another.

More uninformed speculation; I seem to recall that Gura's main line of argument was P&I, while the NRA's was selective incorporation. So it makes sense to make sure that both incorporation alternatives are argued orally.

7x57

bwiese
01-25-2010, 10:17 AM
The worry is Clement and his prior arguments - while Gura avoided MG/NFA issues, Clement argued against them, etc. before in his prior role as SG. Stevens can easily bring this up and get him tangled.

We're hearing background noise that some folks relatives from 'on high' in an organization we love have apologized to Alan for this drama.

wildhawker
01-25-2010, 10:29 AM
More uninformed speculation; I seem to recall that Gura's main line of argument was P&I, while the NRA's was selective incorporation. So it makes sense to make sure that both incorporation alternatives are argued orally.

7x57

While your argument might make sense at first glance, as I and others said previously in the sidebar debate with Chuck Michel in this thread (http://www.calguns.net/calgunforum/showthread.php?t=256399&page=3), it's not about effectively arguing for DP.

dantodd
01-25-2010, 10:36 AM
The worry is Clement and his prior arguments - while Gura avoided MG/NFA issues, Clement argued against them, etc. before in his prior role as SG. Stevens can easily bring this up and get him tangled.

We're hearing background noise that some folks relatives from 'on high' in an organization we love have apologized to Alan for this drama.

An apology and $6 will get you a starbucks fru-fru drink.

If the NRA is given the privilege to argue they can surely choose WHO makes the argument and coordinate with Gura in what is said and simply leave Clement on the bench.

IrishPirate
01-25-2010, 10:47 AM
Not quite. The thirty-eight states that were denied were in support of -- and their request was supported by -- the petitioner, i.e. McDonald, i.e. the side we want to win.

where'd you get that info? I've looked but can't find which states were denied and what their position was. I was hoping it was the anti-states that were denied, but if what you say is true then it looks like only a slight win for us in that at least the NRA will be allowed to talk.

wildhawker
01-25-2010, 10:50 AM
where'd you get that info? I've looked but can't find which states were denied and what their position was. I was hoping it was the anti-states that were denied, but if what you say is true then it looks like only a slight win for us in that at least the NRA will be allowed to talk.

It's not a win that NRA gets time to argue *at all*.

http://www.chicagoguncase.com/2009/12/17/holiday-housekeeping/

Maestro Pistolero
01-25-2010, 10:54 AM
More uninformed speculation; I seem to recall that Gura's main line of argument was P&I, while the NRA's was selective incorporation. So it makes sense to make sure that both incorporation alternatives are argued orally.

7x57

Speculation, perhaps, but hardly uninformed. Between the approach of NRA's and McDonald's counsel, I think the difference is merely one of emphasis. Gura handily covers DP, while emphasizing P&I in the hopes of dashing Slaughterhouse. To me, the NRA's input here is redundant. The court obviously has it's own reasons for granting the NRA's motion which I suspect are related to standing.

yellowfin
01-25-2010, 11:06 AM
The difference is that the PoI incorporation will cut down May Issue faster than selective incorporation because it requires fewer steps to do so.

hoffmang
01-25-2010, 11:09 AM
Alan Gura gets less time to answer questions (which is what really happens at SCOTUS oral argument.) Instead 10 minutes is given over to this (http://www.gurapossessky.com/news/parker/documents/07-290tsacUnitedStates.pdf) and this (http://www.oyez.org/cases/2000-2009/2007/2007_07_290/argument/). A choice quote with emphasis added:


Mr. Clement: Okay.

I would like to talk about the standard and my light is indeed on, so let me do that.

I think there are several reasons why a standard as we suggest in our brief rather than strict scrutiny is an appropriate standard to be applied in evaluating these laws.

I think first and foremost, as our colloquy earlier indicated, there is... the right to bear arms was a preexisting right.

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.

And as you pointed out, Justice Souter, to be sure when you're making the translation from the English Bill of Rights you always have to deal with parliamentary supremacy.

But it is very striking that, as Justice Stevens said, the right was conditioned on the conditions, which I think meant what class you were, and also subject expressly to the Parliament, the laws of Parliament.

Justice Scalia: The freedom of speech that was referred to in the Constitution was also "the" freedom of speech, which referred to the pre-existing freedom of speech.

And there were indeed some restrictions on that such as libel that you were not allowed to do.

And yet we've never held that simply because it was pre-existing and that there were some regulations upon it, that we would not use strict scrutiny.

We certainly apply it to freedom of speech, don't we?

Mr. Clement: Justice Scalia, let me make two related points.

One, even in the First Amendment context, this Court has recognized... and I point you to the Court's opinion in Robertson against Baldwin, which makes this point as to both the First and the Second Amendment.

This Court has recognized that there are certain pre-existing exceptions that are so well established that you don't really even view them as Second Amendment or First Amendment infringement.

Justice Scalia: Like libel.

Mr. Clement: Like libel, and I would say like laws barring felons from possessing handguns.

I don't think--

continued.

hoffmang
01-25-2010, 11:09 AM
Justice Kennedy: Or would you say like protecting yourself against intruders in the home?

Mr. Clement: --Well, that gets to the self-defense component and I don't know that I ever got a chance to fully answer your question on that, Justice Kennedy, which is we would say, notwithstanding the fact that the preamble makes it clear that the preeminent motive was related to ensuring that the militia remained a viable option vis-a-vis the standing army, the operative text is not so limited.

And I think in that regard it's worth emphasizing that the framers knew exactly how to condition a right on militia service, because they did it with respect to the grand jury clause, and they didn't do it with respect to the Second Amendment.

Justice Alito: If the amendment is intended at least, in part to protect the right to self-defense in the home, how could the District code provision survive under any standard of review where they totally ban the possession of the type of weapon that's most commonly used for self-defense, and even as to long guns and shotguns they require, at least what the code says without adding a supposed gloss that might be produced in a subsequent case, that even as to long guns and shotguns they have to be unloaded and disassembled or locked at all times, even presumably if someone is breaking into the home?

Mr. Clement: Well, Justice Alito, let me answer the question in two parts if I can, because I think the analysis of the trigger lock provision may well be different than the analysis of the other provisions.

With respect to the trigger lock provision, we think that there is a substantial argument that once this Court clarifies what the constitutional standard is, that there ought to be an opportunity for the District of Columbia to urge its construction, which would allow for a relatively robust self-defense exception to the trigger lock provision.

And this Court could very well, applying Ashwan to prevent... principles allow for that kind of--

Justice Scalia: I don't understand that.

What would that be... that you can, if you have time, when you hear somebody crawling in your... your bedroom window, you can run to your gun, unlock it, load it and then fire?

Is that going to be the exception?

Mr. Clement: --If that's going to be the exception, it could clearly be inadequate.

And I think that... I mean the District of Columbia can speak to this, but it seems to me that if, for example, the police were executing a warrant at evening and had cause for doing it at evening and saw somebody with a loaded gun on their night stand, no children present without a trigger lock, it seems to me that that would be a good test case to decide whether or not their construction would provide for an exception to the trigger lock provision in that case.

Justice Ginsburg: Can I interrupt for a minute?

Mr. Clement: If it did, I think then the statute might well be constitutional.

If it didn't, in my view, it probably wouldn't be.

Justice Ginsburg: There is a lot of talk about standards and stop words like strict scrutiny.

Does it make a practical difference whether we take your standard or the strict scrutiny that was in the D.C. Circuit's opinion?

And specifically there is a whole panoply of Federal laws restricting gun possession.

Would any of them be jeopardized under your standard?

And the same question with the District scrutiny, does it make any difference?

Mr. Clement: 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.

If you apply strict scrutiny, I think that the result would be quite different, unfortunately.

Chief Justice Roberts: Well, these various phrases under the different standards that are proposed, "compelling interest", "significant interest", "narrowly tailored", none of them appear in the Constitution; and I wonder why in this case we have to articulate an all-encompassing standard.

Isn't it enough to determine the scope of the existing right that the amendment refers to, look at the various regulations that were available at the time, including you can't take the gun to the marketplace and all that, and determine how these... how this restriction and the scope of this right looks in relation to those?

I'm not sure why we have to articulate some very intricate standard.

I mean, these standards that apply in the First Amendment just kind of developed over the years as sort of baggage that the First Amendment picked up.

But I don't know why when we are starting afresh, we would try to articulate a whole standard that would apply in every case?

Mr. Clement: Well, Mr. Chief Justice, let me say a couple of things about that, which is to say that if this Court were to decide this case and make conclusively clear that it really was focused very narrowly on this case and it was in some respects applying a sui generis test, we think that would be an improvement over the court of appeals opinion, which is subject to more than one reading, but as Justice Ginsburg's question just said, it's certainly susceptible to a reading that it embodies strict scrutiny.

In fact--

Justice Ginsburg: Well, it did.

It said it's just like the First Amendment.

First Amendment has exceptions, but strict scrutiny applies.

It says strict scrutiny applies here too.

Mr. Clement: --I--

Justice Scalia: But that opinion also, it didn't use the militia prologue to say it's only the kind of weapons that would be useful in militia, and that are commonly... commonly held today.

Is there any Federal exclusion of weapons that applies to weapons that are commonly held today?

I don't know what you're worried about.

Machine guns, what else?

Armored bullets, what else?

Mr. Clement: --Well, Justice Scalia, I think our principal concern based on the parts of the court of appeals opinion that seemed to adopt a very categorical rule were with respect to machine guns, because I do think that it is difficult... I don't want to foreclose the possibility of the Government, Federal Government making the argument some day... but I think it is more than a little difficult to say that the one arm that's not protected by the Second Amendment is that which is the standard issue armament for the National Guard, and that's what the machine gun is.

Chief Justice Roberts: But this law didn't involve a restriction on machine guns.

It involved an absolute ban.

It involved an absolute carry prohibition.

Why would you think that the opinion striking down an absolute ban would also apply to a narrow one... narrower one directed solely to machine guns?

Mr. Clement: I think, Mr. Chief Justice, why one might worry about that is one might read the language of page 53a of the opinion as reproduced in the petition appendix that says once it is an arm, then it is not open to the District to ban it.

Now, it seems to me that the District is not strictly a complete ban because it exempts pre-1976 handguns.

The Federal ban on machine guns is not, strictly speaking, a ban, because it exempts pre... pre-law machine guns, and there is something like 160,000 of those.

Justice Scalia: But that passage doesn't mean once it's an arm in the dictionary definition of arms.

Once it's an arm in the specialized sense that the opinion referred to it, which is... which is the type of a weapon that was used in militia, and it is... it is nowadays commonly held.

Mr. Clement: Well--

Justice Scalia: If you read it that way, I don't see why you have a problem.

Mr. Clement: --Well, I... I hope that you read it that way.

But I would also say that I think that whatever the definition that the lower court opinion employed, I do think it's going to be difficult over time to sustain the notion... I mean, the Court of Appeals also talked about lineal descendants.

And it does seem to me that, you know, just as this Court would apply the Fourth Amendment to something like heat imagery, I don't see why this Court wouldn't allow the Second Amendment to have the same kind of scope, and then I do think that reasonably machine guns come within the term "arms".

Now, if this Court wants to say that they don't... I mean... I mean... we'd obviously welcome that in our... in our obligation to defend the constitutionality of acts of Congress.

The one other thing I would say is that this is an opinion that is susceptible of different readings.

It's interesting that Respondents' amici have different characterizations of it.

The Goldwater Institute calls it strict scrutiny; the State of Texas calls it reasonable... reasonableness review.

Chief Justice Roberts: Thank you, General.


Argue against gunowners' best interest and we'll hire you!

-Gene

yellowfin
01-25-2010, 11:12 AM
Is it really set in stone that Clement would be the guy?

wildhawker
01-25-2010, 11:14 AM
Interesting to me, and thanks for reposting this Gene, was some of the dialogue by Roberts that makes me uncomfortable (again).

Clement doesn't deserve to speak for the gun culture and the future of the republic, and frankly the NRA doesn't either.

Shame on them for creating what will surely be viewed as a mark on the historical record for generations to come.

dfletcher
01-25-2010, 11:32 AM
Is there a point of no return at which Chicago must present their case to SCOTUS instead of quashing the ban, dropping out and in the alternative concoting a "just this much less" than a ban? The real victory is incorporation and I wouldn't put it past the Mayor to be a vindictive SOB about the matter.

7x57
01-25-2010, 11:41 AM
While your argument might make sense at first glance, as I and others said previously in the sidebar debate with Chuck Michel in this thread (http://www.calguns.net/calgunforum/showthread.php?t=256399&page=3), it's not about effectively arguing for DP.

I wasn't following calguns during that useful thread, so I'm happy to have it brought to my attention.

Not following it at the time might have saved me telling a bunch of good people that they were mixing agendas in precisely the way they castigated others for, which may also be a good thing.

7x57

dantodd
01-25-2010, 11:44 AM
I sure hope Clement is a good whore and stays "bought" for the night. I can't imagine how or why he ever got a job representing the NRA. I guess Helmke was busy.

yellowfin
01-25-2010, 11:46 AM
Is there a point of no return at which Chicago must present their case to SCOTUS instead of quashing the ban, dropping out and in the alternative concoting a "just this much less" than a ban? The real victory is incorporation and I wouldn't put it past the Mayor to be a vindictive SOB about the matter.Perhaps an estoppel case could be made to put them on the hook for Gura's legal fees if they do that.

wildhawker
01-25-2010, 11:49 AM
I sure hope Clement is a good whore and stays "bought" for the night. I can't imagine how or why he ever got a job representing the NRA. I guess Helmke was busy.

Might it be that some in the NRA actually feel adequately and accurately represented by Clement?

dantodd
01-25-2010, 11:53 AM
Might it be that some in the NRA actually feel adequately and accurately represented by Clement?

I believe that to be the case sadly. I just hope they know what they have really bought into. If it is simply an ultra conservative move to try and stop P/I then that is their right though I vehemently disagree. If they have actually hired an anti rather than someone who was merely "following orders" we might all be stuck in a deep hole.

7x57
01-25-2010, 11:59 AM
Might it be that some in the NRA actually feel adequately and accurately represented by Clement?

Though I do not believe it to be a good reason, it might even be that someone took the advice to pursue the RKBA single-mindedly enough to somehow feel that having him on the payroll was most effective, no matter how he's sold us out.

I don't really want the NRA to be that practical, however, and in the long-term suspect it is self-defeating. But if the NRA followed discussions here, which I expect they don't, and took certain advice too seriously, which I expect they wouldn't, they could perhaps buy some sort of argument of that nature.

I suspect I'm going to bow out of some of these discussions before I decide to transfer some of my increasingly erratic free time over to some other issue besides gun rights. I think I'm just grumpy today. :(

7x57

bwiese
01-25-2010, 12:06 PM
Might it be that some in the NRA actually feel adequately and accurately represented by Clement?

Clement did indeed recently do a great job after leaving the Bush Admin [after his disastrous SG brief that required VP Cheney to file his own separate one] of rounding up signed "sense of Congress" brief (251 House members, 58 Senators). This is indeed an imporatant achievement:

http://www.nraila.org/News/Read/NewsReleases.aspx?ID=13139

However, this likely could have been achieved readily (and just as well) by a non-lawyer - i.e., a senior NRA political staffer. I know CA NRA guys were working on similar thing pre-Heller on CA DAs, etc. This falls into the 'rounding up support' role that political guys do very well with. In fact I'm even wondering if these numbers might well be higher if Wayne (and maybe Chris Cox) were actually doing this.

I do think some subsegments of NRA may be worried about PorI for extraneous nongun reasons. And perhaps other subsegments didn't even think of it, and "he's a former SG, he must be helpful".

A politically-useful "scortched earth policy to those who move against us" needs to be consistent. If we trash organizations that stupidly move against NRA's hard work in California here, why should we reward it at the highest level? If NRA felt it needed prior SG stature, there was always Ted Olson.

Using Clement can easily kill resuscitation of NFA matters a decade or so from now. Gura carefully skirted this, but Clement can screw this up (he did already).

bwiese
01-25-2010, 12:11 PM
I sure hope Clement is a good whore and stays "bought" for the night. I can't imagine how or why he ever got a job representing the NRA. I guess Helmke was busy.

Our hope has to be what Chuck Michel says, "Lawyers and whores are OK if you wash 'em out between uses."

wildhawker
01-25-2010, 12:14 PM
A politically-useful "scortched earth policy to those who move against us" needs to be consistent. If we trash organizations that stupidly move against NRA's hard work in California here, why should we reward it at the highest level? If NRA felt it needed prior SG stature, there was always Ted Olson.

Exactly.

Using Clement can easily kill resuscitation of NFA matters a decade or so from now. Gura carefully skirted this, but Clement can screw this up (he did already).

I don't know if this can purely be attributed to incompetence; malice underlies this bold move on the part of NRA. Their relevance and motives shall be called into question before God and everyone.

stag1500
01-25-2010, 1:02 PM
In the end, does it really matter what Clement argues? After all, haven't the justices already made up their minds on this issue?

OleCuss
01-25-2010, 1:22 PM
In the end, does it really matter what Clement argues? After all, haven't the justices already made up their minds on this issue?

It is possible that oral arguments could sway a member from their pre-determined viewpoint - but it seems unlikely. What it could do is at least subtly change some of the flavoring/verbiage which is chosen for the majority opinion. It is even possible that what happens in the oral arguments could be influential when the choice is made as to who writes the opinion.

CaliforniaCarry
01-25-2010, 1:43 PM
In the end, does it really matter what Clement argues? After all, haven't the justices already made up their minds on this issue?

Kennedy is in the middle, doesn't like machine guns, and without him we only have four votes. If we scare Kennedy in the slightest, he won't vote for us unless his concerns are addressed in the opinion. That is why this matters. The Heller opinion would likely have been much stronger if Clement hadn't opened his pie hole about MGs.

2009_gunner
01-25-2010, 2:21 PM
I found a quote from Gura about this. I hope he spoon feeds Clement every word to say.

http://legaltimes.typepad.com/blt/2010/01/nra-will-argue-in-second-amendment-case.html

Clement:
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."

Gura:
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.

Kharn
01-25-2010, 6:17 PM
A politically-useful "scortched earth policy to those who move against us" needs to be consistent. If we trash organizations that stupidly move against NRA's hard work in California here, why should we reward it at the highest level? If NRA felt it needed prior SG stature, there was always Ted Olson.Olson's a proponent of gay marriage, not considered a popular topic to many gun owners.

bwiese
01-25-2010, 6:23 PM
Olson's a proponent of gay marriage, not considered a popular topic to many gun owners.

Yes, and they're gonna have to think of "rights" not just "guns".

GoodEyeSniper
01-25-2010, 7:24 PM
Yes, and they're gonna have to think of "rights" not just "guns".

Hrm, someone's signature rings a bell :cool:


"The problem with being a gun rights supporter is that the left hates guns and the right hates rights." -Anon

Meplat
01-25-2010, 11:28 PM
F That. What the hell does that have to do with 2A?


Olson's a proponent of gay marriage, not considered a popular topic to many gun owners.

Kharn
01-26-2010, 2:04 AM
F That. What the hell does that have to do with 2A?P&I incorporation would open the floodgates for everyone to claim everything they want is a P/I of citizenship, including the liberal wet dreams like decriminalized marijuana, gay marriage, abortion without 24hr waiting period or parental notification, etc. The NRA (an organization with a high number of people not very sympathetic to gay marriage) could have a big PR problem on its hands if Olson used their argument time to convince the Justices that P&I incorporation is the way to go if they want gay marriage (getting the liberal 4) and gun rights (getting the conservative 4).

nicki
01-26-2010, 3:10 AM
If Gura wins on P&I, the gays could get marriage equality, OMFG:rolleyes:

And we might get decriminalization of marijuana, man that will be bad for the drug cartels, how will they survive if their profits are cut in half.:D

We better watch our wallets, because Obama may come to their rescue with a federal foreign aid bailout:)

Seriously, why can't we all just get along, respect each others rights to be left alone.

Hey, I'm cool with Adam and Steve getting a state approved marriage as long as they are cool with me having my guns.

BTW, marriage isn't supposed to be state approved, it is supposed to be a blessing from God. The real issue isn't gay marriage, rather it is the state stealing replacing God in marriage.

The only reason the Gays are even messing with marriage is because our government has grown so big that our socialist democratic high tax big government has put benefits to the "STATE MARRIAGE" license and they feel they have a right to be treated equally under the law.

As far as legalization of pot, the way I see it, it will open the doors for full industrial hemp development which I could see adding 200 to 500 billion dollars annually to the US economy.

Gee, maybe Alan's case will jump start a "Green Economy".

In closing I would just like everyone to consider it is easy to defend the rights we personally like, the hard part is defending things we may find personally offensive.

Nicki

SIGscout
01-26-2010, 5:54 AM
It's not a win that NRA gets time to argue *at all*.

http://www.chicagoguncase.com/2009/12/17/holiday-housekeeping/

Interesting, the first time I've seen this anywhere. I apologise then for my premature hurrah.

dantodd
01-26-2010, 5:54 AM
Olson's a proponent of gay marriage, not considered a popular topic to many gun owners.

I reckon they ought not have one if they aren't for 'em.

Window_Seat
01-26-2010, 6:34 AM
Hey, I'm cool with Adam and Steve getting a state approved marriage as long as they are cool with me having my guns.

BTW, marriage isn't supposed to be state approved, it is supposed to be a blessing from God. The real issue isn't gay marriage, rather it is the state stealing replacing God in marriage.

The only reason the Gays are even messing with marriage is because our government has grown so big that our socialist democratic high tax big government has put benefits to the "STATE MARRIAGE" license and they feel they have a right to be treated equally under the law.

Nicki

This is why some of us are in support of The Pink Pistols (http://www.pinkpistols.org/index2.html).:D

Erik.

GrizzlyGuy
01-26-2010, 7:13 AM
From Ilya Shapiro over at Cato Institute: NRA Cares More about NRA Than Gun Rights, Liberty, Professional Courtesy (http://www.cato-at-liberty.org/2010/01/26/nra-cares-more-about-nra-than-gun-rights-liberty-professional-courtesy/)

Yesterday the Supreme Court granted the NRA’s motion for divided argument in McDonald v. Chicago. What this means is that Alan Gura’s 30 minutes of argument time on behalf of Chicagoland gun owners just became 20, with 10 going to former Solicitor General Paul Clement, whom the NRA hired at the last minute to pursue this motion and argument. (Full disclosure: Alan Gura is a friend of mine, and of Cato.)

The NRA’s motion was premised on the idea that Alan had not fully presented the substantive due process argument for selective incorporation of the Second Amendment — presumably out of an outsized concern for the Privileges or Immunities Clause arguments about which I’ve previously blogged and written a law review article. This is a highly unusual argument and is a facial slap at Alan’s abilities as an advocate. Sadly, it’s also typical of how the NRA has behaved throughout this case and before that during the Heller litigation — sabotaging Alan 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.

Alan rightfully opposed the NRA’s motion because the group’s participation at argument adds nothing substantive to the case. No one will ever know why the motion was granted, as the Court need not (and did not) provide any reasons. Nonetheless, it’s a safe bet that this is solely a testament to Clement’s talent and reputation (notably, the motion was not filed by any of the NRA’s other excellent attorneys, who briefed and argued their case in the lower courts and in a cert petition and brief before the Supreme Court).

I have great respect for Paul Clement, and have worked with him by filing amicus briefs in two cases he’s already argued this term, but I do take issue with his repeated suggestion that the motion’s purpose — and the reason behind its granting — was so that “all the avenues to incorporation, including the due process clause, are fully explored at the argument.” This kind of comment — again impugning Alan’s litigation strategy — is uncalled for, and renews concerns over the NRA’s conduct.

Throughout this case, Alan has consistently and forcefully advocated for the Second Amendment’s incorporation under the Due Process Clause. That didn’t change when his case was taken up by the Supreme Court. The thing is that the due process arguments are not all that complex, and simply do not merit the same care and attention in the briefs as arguments based on the Constitution’s actual text and history. A first-year law student who’s taken constitutional law – let alone a Supreme Court clerk – could write a due process incorporation argument in her sleep! In any event, the oral argument will be driven by the justices’ questions, not by any long soliloquies by counsel. Alan’s — and all attorneys’ — job is to be ready for anything.

If the NRA were concerned about the final outcome of the case, it would be unlikely to attack Alan’s strategy or question his preparation (an odd way to be “helpful” to one’s side). It is not a stretch to predict that this case will be favorably decided at least in part on due process grounds, however, so what we are seeing here is likely an attempt by the NRA to position itself as responsible for such a victory – and that Alan isn’t.

Ultimately, then, the NRA is engaging here in fundraising, not liberty-promotion or ethical lawyering.


Like I said here (http://www.calguns.net/calgunforum/showpost.php?p=3598905&postcount=43):

Gura and the libertarians are on the RIGHT TRACK
NRA and the neocons are on the WRONG TRACK

Bugei
01-26-2010, 7:31 AM
Just my two cents, but I've been really, really trying to like the NRA and the choice of Clement isn't helping. Gura has a proven track record -- the only proven track record in the last 80 years or so -- of getting the Supreme Court to instruct local jurisdictions that the Founding Fathers weren't just kidding with the "keep and bear" clause.

The NRA attempted to joggle Gura's elbow during Heller; Gura was still successful. Clement argued against Heller and was unsuccessful.

This shows me two things:
1) Clement's core values aren't the same as ours. If they were, he could have resigned rather than forward the arguments he tried in Heller. With other qualified lawyers available who do actually believe in what they're arguing, the choice of Clement by the NRA is questionable. Frankly, he looks less like a vigorous advocate and more like a hooker who will make any noise he's paid for.
2) Clement's arguments were not persuasive to the Supreme Court in Heller. This, too, makes his choice as the NRA lead questionable.

Yeah, I get that a lawyer doesn't have to believe in what he espouses in court....but I'm a lot more comfortable with a lawyer who does. A lawyer does, however, need to present arguments that are persuasive to the court. And on this topic, Clement ain't the guy.

I've had the NRA contributions in California pointed out to me here in this forum, and I give them proper respect for those. But at the national level, they don't seem to be operating the way I'd like.

GrizzlyGuy
01-26-2010, 7:41 AM
If Gura wins on P&I, the gays could get marriage equality, OMFG:rolleyes:

And we might get decriminalization of marijuana, man that will be bad for the drug cartels, how will they survive if their profits are cut in half.:D

We better watch our wallets, because Obama may come to their rescue with a federal foreign aid bailout:)

Seriously, why can't we all just get along, respect each others rights to be left alone.

Hey, I'm cool with Adam and Steve getting a state approved marriage as long as they are cool with me having my guns.

BTW, marriage isn't supposed to be state approved, it is supposed to be a blessing from God. The real issue isn't gay marriage, rather it is the state stealing replacing God in marriage.

The only reason the Gays are even messing with marriage is because our government has grown so big that our socialist democratic high tax big government has put benefits to the "STATE MARRIAGE" license and they feel they have a right to be treated equally under the law.

As far as legalization of pot, the way I see it, it will open the doors for full industrial hemp development which I could see adding 200 to 500 billion dollars annually to the US economy.

Gee, maybe Alan's case will jump start a "Green Economy".

In closing I would just like everyone to consider it is easy to defend the rights we personally like, the hard part is defending things we may find personally offensive.


Amen bruddah, amen. The anti-gun argument is largely the same as the anti-pot argument. You can see this if you simply swap out the nouns (http://www.calguns.net/calgunforum/showpost.php?p=3697829&postcount=87), thereby transforming one into the other.

Meanwhile, the pro-gun and pro-pot arguments are built on foundations of granite (http://www.calguns.net/calgunforum/showpost.php?p=3698076&postcount=94). If the Declaration of Independence and the Constitution aren't enough to convince folks, how about the Pledge of Allegiance (http://www.socialstudiesforkids.com/articles/ushistory/pledgeofallegiancetext.htm): "with liberty and justice for all".

Gay marriage? Bring it on. Rights for me but not for thee? No way, bruddah. Liberty is liberty (http://www.calguns.net/calgunforum/showpost.php?p=3699402&postcount=143).

gvbsat
01-26-2010, 7:50 AM
If Gura wins on P&I, the gays could get marriage equality, OMFG:rolleyes:

And we might get decriminalization of marijuana, man that will be bad for the drug cartels, how will they survive if their profits are cut in half.:D

We better watch our wallets, because Obama may come to their rescue with a federal foreign aid bailout:)

Seriously, why can't we all just get along, respect each others rights to be left alone.

Hey, I'm cool with Adam and Steve getting a state approved marriage as long as they are cool with me having my guns.

BTW, marriage isn't supposed to be state approved, it is supposed to be a blessing from God. The real issue isn't gay marriage, rather it is the state stealing replacing God in marriage.

The only reason the Gays are even messing with marriage is because our government has grown so big that our socialist democratic high tax big government has put benefits to the "STATE MARRIAGE" license and they feel they have a right to be treated equally under the law.

As far as legalization of pot, the way I see it, it will open the doors for full industrial hemp development which I could see adding 200 to 500 billion dollars annually to the US economy.

Gee, maybe Alan's case will jump start a "Green Economy".

In closing I would just like everyone to consider it is easy to defend the rights we personally like, the hard part is defending things we may find personally offensive.

Nicki

Best post I have read all morning. Absolutely correct, we cant pick and choose what we want and do not want, all or nothing. I would also like to add that if pot is legalized, or at least hemp production, it would help with our fuel consumption as well.

Cr6IC
01-26-2010, 8:04 AM
+1. How we can expect to get any support for our rights if we won't respect anyone else's is beyond me. I'm tired of people using the power of government to hamstring folks they don't like be it guns, gay marriage, weed or whatever. Liberty first and always.

kcbrown
01-26-2010, 8:05 AM
2) Clement's arguments were not persuasive to the Supreme Court in Heller. This, too, makes his choice as the NRA lead questionable.

Yeah, I get that a lawyer doesn't have to believe in what he espouses in court....but I'm a lot more comfortable with a lawyer who does. A lawyer does, however, need to present arguments that are persuasive to the court. And on this topic, Clement ain't the guy.


Question for the legal experts here: if the above is true, might this work for us?

If Clement has a history of unpersuasive arguments to the Supreme Court and is going to be arguing for due process incorporation, might that actually swing the Court more in the direction of incorporation via P or I? Might it make Gura's arguments that much more persuasive?

Will Clement be up first or last? In the Supreme Court, which of those is preferred? (I would think last, but I don't know the first thing about any of this)


ETA: And +10000 to Nicki's comment. It's just like support of the right to free speech: it's not a right unless people can say what you don't want to hear. Actually supporting rights takes someone with some backbone -- in this case, someone with the ability to tolerate what they don't personally like.

Maestro Pistolero
01-26-2010, 8:06 AM
Bravo Nicki.

madmike
01-26-2010, 10:36 AM
If Gura wins on P&I, the gays could get marriage equality, OMFG:rolleyes:

And we might get decriminalization of marijuana, man that will be bad for the drug cartels, how will they survive if their profits are cut in half.:D

We better watch our wallets, because Obama may come to their rescue with a federal foreign aid bailout:)

Seriously, why can't we all just get along, respect each others rights to be left alone.

Hey, I'm cool with Adam and Steve getting a state approved marriage as long as they are cool with me having my guns.

BTW, marriage isn't supposed to be state approved, it is supposed to be a blessing from God. The real issue isn't gay marriage, rather it is the state stealing replacing God in marriage.

The only reason the Gays are even messing with marriage is because our government has grown so big that our socialist democratic high tax big government has put benefits to the "STATE MARRIAGE" license and they feel they have a right to be treated equally under the law.

As far as legalization of pot, the way I see it, it will open the doors for full industrial hemp development which I could see adding 200 to 500 billion dollars annually to the US economy.

Gee, maybe Alan's case will jump start a "Green Economy".

In closing I would just like everyone to consider it is easy to defend the rights we personally like, the hard part is defending things we may find personally offensive.

Nicki



I just gave you a round of applause in my office. I'm getting some weird looks. Very well said.


-madmike.

wildhawker
01-26-2010, 11:16 AM
It depends on how you view "working" and define "us".

Clement is a very highly regarded attorney specializing in appellate level litigation. He is close to Scalia (and Silberman, previously), having clerked with him:

Following graduation, Clement clerked for Judge Laurence H. Silberman of the United States Court of Appeals for the District of Columbia 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. Clement went on to serve as Chief Counsel of Subcommittee on the Constitution, Federalism and Property Rights of the U.S. Senate Judiciary Committee. Afterwards, he was a partner in the Washington, D.C., office of King & Spalding, where he headed the firm's appellate practice. He 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.

Clement joined the United States Department of Justice in February 2001. Before his confirmation as Solicitor General, he served as Principal Deputy Solicitor General, and he became the acting Solicitor General on July 11, 2004 when Ted Olson resigned. He has argued over 49 cases before the United States Supreme Court, including McConnell v. FEC, Tennessee v. Lane, Rumsfeld v. Padilla, United States v. Booker, Hamdi v. Rumsfeld, Rumsfeld v. FAIR, Hamdan v. Rumsfeld, Gonzales v. Raich, Gonzales v. Oregon, Gonzales v. Carhart, and Hein v. Freedom From Religion Foundation. He also argued many of the key cases in the lower courts involving challenges to the President's conduct of the war on terrorism.

His presence indicates NRA's intent to make Due Processes incorporation attractive to members of the Heller 5 by their use of Clement, a "friendly face" and voice of "reason" as SG in many cases, such as Heller. In essence, NRA has made it easier for the Court to take the easier avenue of selective due process incorporation and fracture those justices otherwise favorable to P or I.

There is no way to argue that Clement, a recent advocate for anti-gun policy, can or should advocate for the gun culture or the future of the republic.


Question for the legal experts here: if the above is true, might this work for us?

If Clement has a history of unpersuasive arguments to the Supreme Court and is going to be arguing for due process incorporation, might that actually swing the Court more in the direction of incorporation via P or I? Might it make Gura's arguments that much more persuasive?

Will Clement be up first or last? In the Supreme Court, which of those is preferred? (I would think last, but I don't know the first thing about any of this)


ETA: And +10000 to Nicki's comment. It's just like support of the right to free speech: it's not a right unless people can say what you don't want to hear. Actually supporting rights takes someone with some backbone -- in this case, someone with the ability to tolerate what they don't personally like.

yellowfin
01-26-2010, 11:28 AM
Is there any indication that this problem might be rectified and Clement not being used for this? Or is this going to be a case of "Old Guard" stupidity speaking the loudest...

http://site.despair.com/images/dpage/tradition03.jpg

corrupt
01-26-2010, 11:28 AM
Interesring reading and discussion!

bwiese
01-26-2010, 11:39 AM
Is there any indication that this problem
might be rectified and Clement not being used for this?

Large, directed traffic jams on trial day might prevent his attendance.

dantodd
01-26-2010, 11:40 AM
Large, directed traffic jams on trial day might prevent his attendance.

I take it that means there is no possibility that the NRA will see the light and use a different spokesman?

jdberger
01-26-2010, 11:41 AM
Large, directed traffic jams on trial day might prevent his attendance.

Will CGF bail me out if I'm arrested for lying in front of his car?

dantodd
01-26-2010, 11:45 AM
Will CGF bail me out if I'm arrested for lying in front of his car?

Nah. Just paint your shirt red and lie down pretending to be shot and calim to be with LCAV protesting the big bad NRA. In D.C. you probably won't even get arrested.

nat
01-26-2010, 11:46 AM
+1. How we can expect to get any support for our rights if we won't respect anyone else's is beyond me. I'm tired of people using the power of government to hamstring folks they don't like be it guns, gay marriage, weed or whatever. Liberty first and always.

That is the problem with ultra-conservatives. They are only too happy to legislate their take on morality.

wildhawker
01-26-2010, 11:53 AM
I take it that means there is no possibility that the NRA will see the light and use a different spokesman?

Virtually zero. They are going to live with and stand by this decision, though not everyone in Fairfax is happy about it.

wildhawker
01-26-2010, 11:53 AM
Will CGF bail me out if I'm arrested for lying in front of his car?

They might not but I would. Then again, Dan's suggestion seems plausible and would save me the bond fee, so...

loather
01-26-2010, 12:01 PM
That is the problem with ultra-conservatives. They are only too happy to legislate their take on morality.

Yes, rather than allow each person to have their own idea about morality and simply choose not to participate.

If I thought guns were evil, I'd simply not own any. Really, it's OK for people to have rights, even those you don't personally agree with. Nobody is forcing you to buy a gun, have an abortion, go to a gay wedding, or whatever else you may find reprehensible. Choose *not* to exercise your right. That's always an option.

That doesn't mean that I won't fight for everyone's rights. I won't vote for and do not agree with any piece of legislation that limits anyone's rights, even those rights I do not intend to exercise. To do anything else simply isn't the American way.

Lex Arma
01-26-2010, 12:44 PM
Our hope has to be what Chuck Michel says, "Lawyers and whores are OK if you wash 'em out between uses."

Just as I have a problem with lawyers who argue both sides of an issue before a court of law, even in different cases; I have a problem with any lawyer who doesn't defend their own professionalism. Unless he has a list of exceptions, count me out of Chuck's cute, but ultimately insulting statement.

Without question, there are bad lawyers and bad judges, just as there are lousy plumbers and stupid teachers. Comparing all lawyers to all whores is another way of saying lawyers as a class, have no principles and only work for money; just as all whores will copulate for cash.

There are clients and cases I won't take for any fee, just as I imagine there are whores who turn down some tricks.

Lex Arma
01-26-2010, 12:47 PM
In the end, does it really matter what Clement argues? After all, haven't the justices already made up their minds on this issue?

It is generally conceded that you can't win a case during oral argument, but you can lose one.

corrupt
01-26-2010, 1:28 PM
Just as I have a problem with lawyers who argue both sides of an issue before a court of law, even in different cases; I have a problem with any lawyer who doesn't defend their own professionalism. Unless he has a list of exceptions, count me out of Chuck's cute, but ultimately insulting statement.

Without question, there are bad lawyers and bad judges, just as there are lousy plumbers and stupid teachers. Comparing all lawyers to all whores is another way of saying lawyers as a class, have no principles and only work for money; just as all whores will copulate for cash.

There are clients and cases I won't take for any fee, just as I imagine there are whores who turn down some tricks.

Now that we got that out of the way... :rolleyes:

jdberger
01-26-2010, 1:36 PM
Just as I have a problem with lawyers who argue both sides of an issue before a court of law, even in different cases; I have a problem with any lawyer who doesn't defend their own professionalism. Unless he has a list of exceptions, count me out of Chuck's cute, but ultimately insulting statement.

Without question, there are bad lawyers and bad judges, just as there are lousy plumbers and stupid teachers. Comparing all lawyers to all whores is another way of saying lawyers as a class, have no principles and only work for money; just as all whores will copulate for cash.

There are clients and cases I won't take for any fee, just as I imagine there are whores who turn down some tricks.


Which illustrates why CGF/CGN encourages it's members to dress appropriately when attending court and legislative hearings. One guy in camo can taint the public perception of all gun owners - just like Milberg Weiss tainted the public perception of lawyers....

BillCA
01-26-2010, 1:40 PM
Just as I have a problem with lawyers who argue both sides of an issue before a court of law, even in different cases; I have a problem with any lawyer who doesn't defend their own professionalism. Unless he has a list of exceptions, count me out of Chuck's cute, but ultimately insulting statement.
I would expect a lawyer to argue both sides of an issue for different clients in different cases, provided the argument is invoked appropriately and not frivolously. If I found my legal counsel didn't argue a constitutional point in my behalf because he'd argued against it the previous day in a different case, I'd find another lawyer.

Comparing all lawyers to all whores is another way of saying lawyers as a class, have no principles and only work for money; just as all whores will copulate for cash.

There are clients and cases I won't take for any fee, just as I imagine there are whores who turn down some tricks.

It's not just a matter of what one will or won't do.

A whore should be judged by the same criteria as other, professionals offering services for pay--such as dentists, lawyers, hairdressers, physicians, plumbers, etc. Is she professionally competent? Does she give good measure? Is she honest with her clients? It is possible that the percentage of honest and competent whores is higher than that of plumbers and much higher than that of lawyers. And enormously higher than that of professors.¹

To come full circle here, I expect a lawyer to fully represent my interests and use any arguments favorable to my case that he can. A lawyer could personally believe no right to own a handgun exists, but if recent court decisions say the right exists, I expect him to make that argument if it favors my case. Just as I would expect him to argue the opposite line if it best suited his client's case.

¹ Paragraph source is Robert Heinlein's Time Enough For Love. Emphasis added.

wildhawker
01-26-2010, 1:43 PM
Now that we got that out of the way... :rolleyes:

Are you disputing Mr. Kilmer's comments or simply ignorant of their nature?

yellowfin
01-26-2010, 2:05 PM
. A lawyer could personally believe no right to own a handgun exists, but if recent court decisions say the right exists, I expect him to make that argument if it favors my case. Just as I would expect him to argue the opposite line if it best suited his client's case. The two are irreconcilable ideas and principles. One cannot have credibility as a professional to assert one as reality and see the other then another day do the opposite. It isn't merely different sides of the ball, where one is on offense the other on defense and can switch. Reality isn't a multiple choice question with A & B as equally acceptable answers.

Lex Arma
01-26-2010, 2:51 PM
I would expect a lawyer to argue both sides of an issue for different clients in different cases, provided the argument is invoked appropriately and not frivolously. If I found my legal counsel didn't argue a constitutional point in my behalf because he'd argued against it the previous day in a different case, I'd find another lawyer.

It's not just a matter of what one will or won't do.

A whore should be judged by the same criteria as other, professionals offering services for pay--such as dentists, lawyers, hairdressers, physicians, plumbers, etc. Is she professionally competent? Does she give good measure? Is she honest with her clients? It is possible that the percentage of honest and competent whores is higher than that of plumbers and much higher than that of lawyers. And enormously higher than that of professors.¹

To come full circle here, I expect a lawyer to fully represent my interests and use any arguments favorable to my case that he can. A lawyer could personally believe no right to own a handgun exists, but if recent court decisions say the right exists, I expect him to make that argument if it favors my case. Just as I would expect him to argue the opposite line if it best suited his client's case.

¹ Paragraph source is Robert Heinlein's Time Enough For Love. Emphasis added.

I'm not disputing that some whores give good measure and are as potentially honest as any other professional. [I am also a fan of Heinlein.] Nor am I arguing that lawyers "ought" not to be able to argue both sides. If they can't they are incompetent fools. Nor am I talking about technical questions of law that can go either way, like an exclusionary rule, or excessive use of force argument.

Rather I am speaking about core constitutional rights, which necessarily involve making value judgments. Dred Scott would be a fool to hire a slave-owning lawyer to argue his case, regardless of the man's competence. The Court itself would view the representation as odd, thus potentially flawed.

The problem with hiring hired guns is that they can always be hired away by any of your enemies with deeper pockets.