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View Full Version : The danger of divided argument in McDonald v Chicago


Lex Arma
01-26-2010, 3:34 PM
With all due respect to Mr. Clement...

Let me see if I can get this straight. Mr. Clement argued for the United States government in the Heller case. He argued that some of the District of Columbia's gun laws might pass intermediate scrutiny. This was a standard of review that he expressly argued for in that case because the United States government was taking the position that none of its gun laws were unconstitutional and they wanted to avoid future Second Amendment challenges to federal gun law.

Now Mr. Clement is in private practice. He will earn future fees based upon his reputation, his prior work and his knowledge of the Court.

Fast forward to March 2, 2010. Mr. Clement will argue before SCOTUS, this time as a lawyer for the National Rifle Association. Not only was he hired by the NRA based on his reputation, his prior work and his knowledge of the Court; but SCOTUS itself (or some members of that court) may have been persuaded to allow divided argument precisely because he has already staked out a prior position on the issue of scrutiny.

The following questions (from concerned NRA members) seem in to be in order:

To Mr. Clement: Do you intend to abandon your earlier position before SCOTUS that intermediate scrutiny is an appropriate standard of review for the Second Amendment, even at the risk of having your own professional integrity called into question? Or will you adopt the position of your new client (NRA) and argue for strict scrutiny, thus accepting the proposition (criticism?) that lawyers sometimes have to argue for clients with whom they sometimes disagree? (i.e., they are hired guns) BTW, what is your personal position on gun control and the Second Amendment?

To the NRA personnel who hired Mr. Clement: Were you aware of your lawyer's prior position on this issue? Or is NRA's position that the Second Amendment is to be adjudicated differently (with less protection) from the First Amendment? Did you ask Mr. Clement the questions in the prior paragraph? What were his answers?

Here is the question that Mr. Clement will get from SCOTUS:

When you were last before us on a gun control issue, you represented the United States government. Do the arguments you made then apply now in this case? [And then let him twist in the wind.]

Ladies and Gentlemen, someone has made a very big mistake, and that mistake is dangerous to the Second Amendment.

anthonyca
01-26-2010, 3:45 PM
Me Kilmer, as you were the counsel in Nordyke, one of the most important cases in US history in my humble opinion and the first to win the argument of incorporation(before going en banc), does the NRA leadership even understand the mistake they have made or even listen to your opinion?

bigcalidave
01-26-2010, 3:48 PM
Thank you for this, I really hope we hear from our NRA rep about this with some definite answer. He said he was asking the questions last week.

bwiese
01-26-2010, 3:55 PM
does the NRA leadership even understand the mistake they have made?


Certain Directors are indeed unhappy with this. But the die may have been cast - there was hop the 10 mins would not be granted and the problem would be 'solved.

I have heard from reliable sources that some private apologies to Alan were made by family members of some Bigwigs.

This also does not involve the whole 'leadership' but just the legal team. I really don't think Wayne has anything to do with this matter, it's more of a Chris Cox thing.

Lex Arma
01-26-2010, 3:55 PM
Me Kilmer, as you were the counsel in Nordyke, one of the most important cases in US history in my humble opinion and the first to win the argument of incorporation(before going en banc), does the NRA leadership even understand the mistake they have made or even listen to your opinion?

I wasn't consulted. :kest:

nat
01-26-2010, 4:00 PM
I have to that this is really irritating. I regret renewing my NRA membership.

Lex Arma
01-26-2010, 4:05 PM
I have to that this is really irritating. I regret renewing my NRA membership.

Don't regret it. Make sure you have a voting membership and make it count.

You can also make a pain in the *** out of yourself by writing to the NRA Board.

Lone_Gunman
01-26-2010, 4:06 PM
If this goes poorly it will go poorly for the NRA indeed.

anthonyca
01-26-2010, 4:06 PM
I wasn't consulted. :kest:

:mad:

I am not ready to throw the baby out with the bath water and withdraw my lifetime membership, but someone does need to be thrown off the NRA legal team for this!!!!! If someone's head does not roll for this and we are damaged then I will change my first statement.

press1280
01-26-2010, 4:19 PM
If they wanted someone with experience to argue their case, why not Halbrook? This is somewhat shady to say the least.

bwiese
01-26-2010, 4:24 PM
:mad:

I am not ready to throw the baby out with the bath water and withdraw my lifetime membership, but someone does need to be thrown off the NRA legal team for this!!!!! If someone's head does not roll for this and we are damaged then I will change my first statement.

Let's not go quite that far. The NRA is a powerhouse politically and we're doing well nationally because of that. We also have a great buncha guys fighting the fight here in CA. But I do believe appropriate displeasure is making its way thru director's ranks.

kf6tac
01-26-2010, 4:24 PM
thus accepting the proposition (criticism?) that lawyers sometimes have to argue for clients with whom they sometimes disagree? (i.e., they are hired guns)

Is there any reason why Clement (or any of the Justices) WOULDN'T accept this proposition? I've always just accepted it as Rule #0 of being a lawyer.

wildhawker
01-26-2010, 4:32 PM
Bill, "appropriate displeasure" would mean removal of Clement and the public firing of Chris Cox.

corrupt
01-26-2010, 4:32 PM
I dunno, maybe it's like how some of these countries in the middle east don't really care about getting rid of the terrorists within their borders because they get aid money from the US to fight them off.

Where would the NRA be if we actually had all of our rights under the 2nd amendment? It sounds like the NRA wants to concede any right to own any NFA tools before we even get to that fight. At least that's what the NRA hired hand seems to be saying..

anthonyca
01-26-2010, 4:34 PM
Let's not go quite that far. The NRA is a powerhouse politically and we're doing well nationally because of that. We also have a great buncha guys fighting the fight here in CA. But I do believe appropriate displeasure is making its way thru director's ranks.

My statement came out a little strong. I want the leaders who made this decision to know how we feel. They need to show us that they understand they made a mistake and why it is a mistake, or atleast hear us. In turn we need to show we are very happy with the organisation when they do the right thing, which is most of the time.

Overall the NRA is the most important national organization for gun rights. I just want them to take notice of what CGF has accomplished and how they did that. I am not going to quit and I still get people to join the NRA from time to time with out acting like a door to door salesman selling driveway cleaner.

anthonyca
01-26-2010, 4:36 PM
I dunno, maybe it's like how some of these countries in the middle east don't really care about getting rid of the terrorists within their borders because they get aid money from the US to fight them off.

Where would the NRA be if we actually had all of our rights under the 2nd amendment? It sounds like the NRA wants to concede any right to own any NFA tools before we even get to that fight. At least that's what the NRA hired hand seems to be saying..

That is a good point.

bruss01
01-26-2010, 4:42 PM
IMHO an attorney does not "believe" what he says in court any more than the mail carrier "believes" the contents of your daily mail. He is just the messenger, paid to do the job, his personal beliefs are irrelevant. The attorney is paid to represent his client's position, not to soapbox his own personal thoughts before the court. Frankly I don't think Mr. Clements gives two hoots and a holler about P&I or due process... he is just collecting a paycheck and setting up what he hopes will be a good job reference for his next paid position. That's all.

I think Alan Gura is an exception in that he seems to truly take 2A issues to heart, and for that we laud him as our hero. Oh yeah and he seems to have a knack for writing excellent briefs and winning cases.

Mitch
01-26-2010, 4:48 PM
I dunno, maybe it's like how some of these countries in the middle east don't really care about getting rid of the terrorists within their borders because they get aid money from the US to fight them off.


That's one of the theses of this book:

http://www.mlscommunication.com/images/ricochet-200.jpg (http://www.mlscommunication.com/)

dantodd
01-26-2010, 4:49 PM
Where would the NRA be if we actually had all of our rights under the 2nd amendment? It sounds like the NRA wants to concede any right to own any NFA tools before we even get to that fight. At least that's what the NRA hired hand seems to be saying..

You do know that's contradictory. If they are willing to give in completely on NFA and work toward getting SCOTUS precedence permitting the prohibition of NFA items they can no longer fight for those items as the war is over on that front. So conceding NFA would not do what you are suggesting.

If and when we have a robust 2A in all of the United States the NRA will be more than happy to remain a watchdog and spent their war chest on re-invigorating the gun culture here. There is plenty of work to be done on behalf of gun owners that doesn't have to be just judicial and legislative fights.

bwiese
01-26-2010, 4:54 PM
If and when we have a robust 2A in all of the United States the NRA will be more than happy to remain a watchdog and spent their war chest on re-invigorating the gun culture here. There is plenty of work to be done on behalf of gun owners that doesn't have to be just judicial and legislative fights.

Bingo!

Even a fully-secured RKBA will still have fights gunnies need to triumph over - lead ammo BS, range protection against encroachment, etc. And full-out political war is what the NRA excels at.

I will note that, before this drama, Clement indeed did well at getting "sense of Congress" brief with huge numbers of Senators and Congressment joining. I do think Clement was not needed, though (as no SG 'magisterialness' for such a task was warranted - a good political guy could have done this.) Hell, our own CA NRA guys (non lawyers) did very well getting tons of CA DAs, etc. on paper saying RKBA == individual right.

Mitch
01-26-2010, 4:56 PM
You do know that's contradictory. If they are willing to give in completely on NFA and work toward getting SCOTUS precedence permitting the prohibition of NFA items they can no longer fight for those items as the war is over on that front. So conceding NFA would not do what you are suggesting.

Actually, it's the opposite. Throwing NFA under the bus concedes sweeping restrictions on gun possession, which allows the fight to continue and the contributions to roll in forever.

If somehow the SCOTUS repealed the NFA and insisted no similar laws could be enacted anywhere in the USA, things would get pretty quiet in Fairfax. They'd have to redouble their ranting about the UN and international firearms treaties.

dantodd
01-26-2010, 4:59 PM
Actually, it's the opposite. Throwing NFA under the bus concedes sweeping restrictions on gun possession, which allows the fight to continue and the contributions to roll in forever.

If SCOTUS decides that NFA stands there is no wiggle room short of getting the decision overturned. The fight is over judicially there is no way to challenge the NFA. I suppose you could try to have congress overturn the law but that is very unlikely to ever happen.

I think you are looking for nefarious intentions when simple incompetence will suffice.

HowardW56
01-26-2010, 4:59 PM
If they were going to jump into this, why not Theodore B. Olson...

I think he would have been a better choice...

B Strong
01-26-2010, 5:04 PM
This is not a happy making thing.

Sometimes getting an attorney to represent you that was a former member of (whatever) is the way to go, but this deal is a little more important than a building permit or a business license.

Mitch
01-26-2010, 5:17 PM
If SCOTUS decides that NFA stands there is no wiggle room short of getting the decision overturned. The fight is over judicially there is no way to challenge the NFA.

You are focusing too much on the NFA itself.

Basically, NFA says its okay to regulate what firearms Americans can possess. As long as NFA remains Constitutional, then the battle over what Americans can or cannot legally possess will continue to rage in the states and in Congress. That's good for the NRA's mission.

I think you are looking for nefarious intentions when simple incompetence will suffice.

No, I'm just making conversation. I never attribute to malice what can be adequately explained by stupidity, as a rule.

But Feldman has a point. There are some people in Fairfax whose lucrative and enjoyable careers depend on the ongoing and noisy fight for gun rights. Sweeping victories at the highest levels (such as SCOTUS) could well give them a shiver of fear.

Then there's the angle Bill has been pursuing, that some in Fairfax are mixing their personal social conservatism with their professed professional goals. I find that more believable, considering they invite people like Dick Cheney to speak at their conventions.

bwiese
01-26-2010, 5:19 PM
Then there's the angle Bill has been pursuing, that some in Fairfax are mixing their personal social conservatism with their professed professional goals. I find that more believable, considering they invite people like Dick Cheney to speak at their conventions.

You better kneel down and thank Dick Cheney - he saved our *** from Clement.

And he's not a Thumper.

Lex Arma
01-26-2010, 5:19 PM
IMHO an attorney does not "believe" what he says in court any more than the mail carrier "believes" the contents of your daily mail. He is just the messenger, paid to do the job, his personal beliefs are irrelevant. The attorney is paid to represent his client's position, not to soapbox his own personal thoughts before the court. Frankly I don't think Mr. Clements gives two hoots and a holler about P&I or due process... he is just collecting a paycheck and setting up what he hopes will be a good job reference for his next paid position. That's all.

I think Alan Gura is an exception in that he seems to truly take 2A issues to heart, and for that we laud him as our hero. Oh yeah and he seems to have a knack for writing excellent briefs and winning cases.

Hiring a lawyer who CAN argue both sides of a case is not the same as hiring one who DID argue the other side of a case. The fact that we are talking about a fundamental right makes it worse, not better.

mblat
01-26-2010, 5:21 PM
If SCOTUS decides that NFA stands there is no wiggle room short of getting the decision overturned. The fight is over judicially there is no way to challenge the NFA. I suppose you could try to have congress overturn the law but that is very unlikely to ever happen.

I think you are looking for nefarious intentions when simple incompetence will suffice.

Congress doesn't need to overturn NFA. All they need to do is to force BATF to start accepting new registrations.
$200 is money, of cause....... But how many would be stopped from buying select fire M16 if all it would take an extra $200?

dantodd
01-26-2010, 6:49 PM
No, I'm just making conversation. I never attribute to malice what can be adequately explained by stupidity, as a rule.


But Feldman has a point. There are some people in Fairfax whose lucrative and enjoyable careers depend on the ongoing and noisy fight for gun rights. Sweeping victories at the highest levels (such as SCOTUS) could well give them a shiver of fear.

That assertion unfortunately falls much too close the the suggestion that Doctors don't really want to cure X because there's too much money in treating the disease etc. It just doesn't hold water because there are so many other issues Doctors, or the NRA, can pursue. There will always be bad legislation passed somewhere, there will always be people spreading FUD about guns, there will always be lawful gun owners improperly prosecuted etc. etc. etc.

Then there's the angle Bill has been pursuing, that some in Fairfax are mixing their personal social conservatism with their professed professional goals. I find that more believable, considering they invite people like Dick Cheney to speak at their conventions.

I think there is much more evidence to support this possibility. It would be a travesty to lose protection for certain classes of firearms because the NRA tries to limit the "damage" done on other non-gun issues.

The problem is that the NRA seems to want to put hurdles in front of P/I by hiring an attorney who is likely to get awarded split time (that part worked well for them) but the SCOTUS may well have awarded the time not with an eye toward P/I v. Selective incorporation but rather to ensure the inclusion of NFA items in the orals.

I hope there is a VERY tight leash on Clement.

For the same reasons as almost every other observer of the SCOTUS I think that incorporation is all but assured. The question WAS P/I or Selective incorporation. Now the real question for gunnies is whether NFA will get thrown under the bus or not. P/I v. due process is still an open question but I have a hard time believing SCOTUS will pass on their last chance at a clear opportunity to re-invigorate the P or I clause.

Kharn
01-26-2010, 6:55 PM
Then there's the angle Bill has been pursuing, that some in Fairfax are mixing their personal social conservatism with their professed professional goals. I find that more believable, considering they invite people like Dick Cheney to speak at their conventions.Cheney signed onto the Congressional brief in Heller that opposed Clement's Solicitor General brief, I'd consider that very beneficial for our RKBA. :rolleyes:

dustoff31
01-26-2010, 7:18 PM
Here is the question that Mr. Clement will get from SCOTUS:[/B]

When you were last before us on a gun control issue, you represented the United States government. Do the arguments you made then apply now in this case? [And then let him twist in the wind.]

Ladies and Gentlemen, someone has made a very big mistake, and that mistake is dangerous to the Second Amendment.

It appears that he was not at all a wise choice. But as he was the SG, do you really think SCOTUS would hold his previous position/arguments against him?

Surely, the court can understand that in his previous capacity his job was to represent the government. Much like a soldier's job is to fight the war, whether he agrees with it or not.

cindynles
01-26-2010, 7:58 PM
Certain Directors are indeed unhappy with this. But the die may have been cast - there was hop the 10 mins would not be granted and the problem would be 'solved.

I have heard from reliable sources that private apologies to Alan were made by wives (who are attorneys) of some of the Bigwigs.

This also does not involve the whole 'leadership' but just the legal team. I really don't think Wayne has anything to do with this matter, it's more of a Chris Cox thing.

I am not happy with the NRA on this issue either. I'm not going to drop my membership but I did send them an e-mail telling that because of this issue any money that I would have sent them this year is going to CRPA and Calguns Foundation. Let the NRA know about if you are not happy. Who knows they might listen next time.

yellowfin
01-26-2010, 8:16 PM
I wonder which directors approved this.

dantodd
01-26-2010, 8:18 PM
I also wonder if there is some hold over resentment aimed toward Gura over his decision to take Heller against the NRA's wishes.

Experimentalist
01-26-2010, 8:24 PM
I decided to send my thoughts to the NRA tonight.

You can go to the NRA - ILA web site and log in using your member number.

Here's what I sent:

I have grave concerns regarding your choice of Mr. Clement for the upcoming Supreme Court case.

You know he argued for the Government in Heller. You know he may have severely screwed up ever fixing the NFA. And yet you hired him. Someone needs to be fired.

Worse, your entire strategy seems aimed at limiting rights in general. Shame on you! Please, please, get the Hell out of Mr. Gura's way!!

Words can not describe how upset I am with the NRA at this point in time. The events at trial in March, and the decision that comes after, will strongly color my attitude towards your organization. My time, my money, and my loyalty will be diverted to other organizations (Like CalGuns and CRPA) if your organization screws this up.

Sincerely, deeply upset,

<<My name>>
Life Member



I wish I could say I feel better now, but I do not. :mad: :mad: :mad:

Grakken
01-26-2010, 8:30 PM
If gun owners got their way on everything, what good would the NRA be then? Maybe they hired clement for job security..

:grouphug:

lomalinda
01-26-2010, 8:48 PM
Long before Richard Feldman's book was released there were people who got mighty pissed at some of the stuff the NRA did with regards to gun issues. One such thing was their urging of Reagan to sign the 1986 GOPA with the terrible "Hughes Amendment" attached.

Very interesting how they could f-up this badly.

You don't put a proven negative into such a high-stakes game unless you're either stupid or want to throw the game.

Which is it?

Lex Arma
01-26-2010, 8:58 PM
It appears that he was not at all a wise choice. But as he was the SG, do you really think SCOTUS would hold his previous position/arguments against him?

Surely, the court can understand that in his previous capacity his job was to represent the government. Much like a soldier's job is to fight the war, whether he agrees with it or not.

It was not my intention to disparage Mr. Clement or any attorney who served as governement counsel. But I have clients with a stake in the outcome of McDonald. I argued Nordyke and that en banc panel is awaiting the McDonald opinion as to incorporation AND any gems the Court may include as to standard of review.

Since I am in a unique position to aver that Due Process incorporation is not that difficult of an argument to make, it would seem to me that it doesn’t take a Paul Clement (brilliant as he is) to argue the point. Getting around prior circuit precedent and trying to get a favorable scrutiny ruling was the harder argument. And prior circuit precedent is not at issue before SCOTUS.

Given Mr. Clement’s baggage, and the fact that he is arguing a case that will have an unusually large number of lay persons listening to the oral arguments, it would seem to me that the NRA is going to have some explaining to do of we end up with some squishy intermediate scrutiny test for Second Amendment rights. It was a risk the NRA didn’t need to take. They have a pretty deep bench of attorneys who could have taken the NRA’s 10 minutes to argue Due Process incorporation.

As it is, I am afraid that justices hostile to the Heller decision may use Clement’s 10 minutes to extract a disastrous concession from him; or at a minimum to embarrass the Heller majority and/or Clement. And for every minute he spends dancing around this issue, he loses time for making whatever Due Process argument he wants to make. So we end up with a potentially weak(ened) advocate on scrutiny and less effective argument on Due Process. Besides, how tough is the Due Process argument to make when a perfectly good argument exists by simply citing O’Scannlain’s excellent opinion in Nordyke and then sitting down.

For those of you who follow professional football. Replay Brett Favre’s completely unnecessary interception last Sunday, with less than a minute to go in the 4th quarter. He throws a cross-field pass on a play where a field goal was in range for a win. Not sure if it was quarterback error or a coaching error. In the final analysis it doesn’t matter. The game goes into overtime and New Orleans is going to the Super Bowl.

At this level of litigation, unforced errors are unforgiveable. I will remain loyal to the NRA, but as a voting member, I will demand answers and consequences if this turns out badly.

I want to be very clear. I am not disparaging Mr. Clement. I am assuming that his reputation is well deserved. As a legal professional myself, I know that lawyers have to be ABLE to argue both sides of a case. But it is entirely different matter to hire a lawyer who (recently) ACTUALLY argued the other side of an issue in a public interest case with this much public interest.

Imagine having the NRA conduct its own internal poll among its members with the following question: Would you (an NRA member) want the NRA to hire a lawyer to represent you and the Second Amendment before the U.S. Supreme Court, who – when he worked for the federal government – argued that local governments should have the power to ban handguns and require that guns be stored in a way that renders them less effective for self-defense? The results of the poll should seem to me to be obvious. We sometimes forget that we represent clients, not disembodied ideas. Again, if this goes badly, those NRA staff members responsible for this decision may have to answer to a different kind of poll.

I wish Mr. Clement all the best. I hope I am wrong in all my predictions and that my paranoia will be judged silly in hindsight.

dustoff31
01-26-2010, 9:16 PM
It was a risk the NRA didn’t need to take. They have a pretty deep bench of attorneys who could have taken the NRA’s 10 minutes to argue Due Process incorporation.

I couldn't agree more.

As it is, I am afraid that justices hostile to the Heller decision may use Clement’s 10 minutes to extract a disastrous concession from him; or at a minimum to embarrass the Heller majority and/or Clement. And for every minute he spends dancing around this issue, he loses time for making whatever Due Process argument he wants to make. So we end up with a potentially weak(ened) advocate on scrutiny and less effective argument on Due Process.

OK, this answers my question. IANAL, but I know that the legal system moves in mysterious ways.



I want to be very clear. I am not disparaging Mr. Clement.

Didn't take it that way at all.

MindBuilder
01-26-2010, 9:17 PM
On the issue of machine guns, one has to remember that the line has to be drawn somewhere. The people would repeal the Second Amendment before allowing the possession of suitcase nukes or chemical or biological weapons (all weapons that a person can "bear"). A lot of gun owners, probably even some on the NRA board, honestly believe that machine guns should remain banned. Few people realize that machine gun ownership is not a problem in Switzerland. Even some of those who know about Switzerland, probably still can't get over the idea of a bunch of gang bangers running around with machine guns. It is way too cynical to think the NRA leadership would let the machine gun ban be upheld just to give them an excuse to continue lobbying. If the NRA lets the machine gun ban be upheld, it is very likely just because they just don't support the right to keep and bear machine guns, or they think the tactical advantages to giving up machine guns justifies the cost. No matter how upset that might make us, we have to realize that it is going to be a while before people get used to machine guns.

rabagley
01-26-2010, 10:31 PM
On the issue of machine guns, one has to remember that the line has to be drawn somewhere. The people would repeal the Second Amendment before allowing the possession of suitcase nukes or chemical or biological weapons (all weapons that a person can "bear"). A lot of gun owners, probably even some on the NRA board, honestly believe that machine guns should remain banned.

A lot of people are wrong. And I would disagree with you on the meaning of "bear" in the context of "bearing arms". To bear an arm does not mean to carry it from place to place, but to use it as a weapon.

However, if you cannot control the area of effect of a device, I would argue that it is not an "arm" in the military use of the term. When we start talking about depopulating an area by gas or germ or radiation or threat of one of those, we're talking about a tool of state or terrorism or both. Further, I would argue that unleashing the effects of such a device does not fit within any meaning of "bearing an arm" that makes sense to me or would make sense to the founders and probably to the SCOTUS.

Fully-automatic weapons, grenades, etc., should be put back into the hands of the people. Reagan did a lot of good things, but the Gun Control Act of 1986 was the wrong thing to do and directly contradicts the 2A. It should be repealed or found unconstitutional.

FABIO GETS GOOSED!!!
01-27-2010, 2:42 AM
It would be interesting to read a transcript of oral argument where a Supreme Court justice let an attorney twist in the wind over a position taken in a prior case while representing a different client and this negatively impacted the outcome of the new case. Any historical examples of this?

Kharn
01-27-2010, 2:55 AM
Fully-automatic weapons, grenades, etc., should be put back into the hands of the people. Reagan did a lot of good things, but the Gun Control Act of 1986 was the wrong thing to do and directly contradicts the 2A. It should be repealed or found unconstitutional.1968 was the GCA, 1986 was the Firearm Owners Protection Act (http://en.wikipedia.org/wiki/FOPA), it did a lot of good things for gun owners to include reining in an out-of-control ATF with severe restrictions on how they could investigate FFLs, elimination of the ammo log, permitting mail-order ammo, etc.

Mitch
01-27-2010, 7:36 AM
You better kneel down and thank Dick Cheney - he saved our *** from Clement.

You mean he saved us from the Bush Justice Department? Isn't that a little like thanking an arsonist for helping extinguish a fire he started?


That assertion unfortunately falls much too close the the suggestion that Doctors don't really want to cure X because there's too much money in treating the disease etc. It just doesn't hold water.

You aren't nearly cynical enough.

As an example, the oral contraceptive was banned for decades in Japan because the medical lobby made so much money performing abortions (which was legalized in Japan long before it was in other industrialized countries).


Even some of those who know about Switzerland, probably still can't get over the idea of a bunch of gang bangers running around with machine guns.

Stop. Stop right there. You are buying into the gun-grabbers' rhetoric.

Make no mistake, gang bangers are free to run around with machine guns right now. They always have been.

The purpose of the NFA and the Reagan Gun Ban was to ensure law-abiding people weren't able to run around with machine guns (unless they jumped through hoops).

Crucial difference.

Bruce
01-27-2010, 7:56 AM
What, exactly, do you who are so worried about NFA want a machine gun for?

Mitch
01-27-2010, 8:05 AM
What, exactly, do you who are so worried about NFA want a machine gun for?

Personally, I have no interest in them, except as a collector of 20th century American small arms (which means I would like to someday possess an M14 and a Thompson).

But if the 2nd Amendment means anything, it means citizens have a right to possess military arms.

SanPedroShooter
01-27-2010, 8:05 AM
this is question ive been thinking about ie: the ramifications of full auto weapons being as widely distributed as say semi auto weapons. do you draw the line somewhere? and while it's nice to have a reason, i dont think it's necessary to explain why i want to able to exercise my rights. or to put it in a more juvenile context, full auto is more fun!

SanPedroShooter
01-27-2010, 8:08 AM
good point about the completeness of a collection btw

Liberty1
01-27-2010, 8:13 AM
What, exactly, do you who are so worried about NFA want a machine gun for?

...for national, state, town, home, and self defense needs. The security of a free state depends on it.

I would prefer select fire. If it is worth shooting with one bullet it is worth shooting with three.

Sgt Raven
01-27-2010, 8:27 AM
What, exactly, do you who are so worried about NFA want a machine gun for?

Personally, I have no interest in them, except as a collector of 20th century American small arms (which means I would like to someday possess an M14 and a Thompson).

But if the 2nd Amendment means anything, it means citizens have a right to possess military arms.

+1000

Bruce
01-27-2010, 8:45 AM
this is question ive been thinking about ie: the ramifications of full auto weapons being as widely distributed as say semi auto weapons. do you draw the line somewhere? and while it's nice to have a reason, i dont think it's necessary to explain why i want to able to exercise my rights. or to put it in a more juvenile context, full auto is more fun!

You have a lot of experience with full auto?

SanPedroShooter
01-27-2010, 8:49 AM
uscg veteran, and 50 cal gunner... i would imagine there's a fair amount of them on this site.

Bruce
01-27-2010, 8:53 AM
uscg veteran, and 50 cal gunner... i would imagine there's a fair amount of them on this site.
Good for you!

Bruce
01-27-2010, 8:56 AM
...for national, state, town, home, and self defense needs. The security of a free state depends on it.

I would prefer select fire. If it is worth shooting with one bullet it is worth shooting with three.

Nice little speech. I assume you're so good with FA weapons that you can place every bullet exactly where you want?

SanPedroShooter
01-27-2010, 9:00 AM
btw i dont really have a position on fa weapons i just wondered what general opinion was on there widespread availability. it seems like it might be a disaster waiting to happen, but like i said where do you draw the line??

fd15k
01-27-2010, 9:02 AM
btw i dont really have a position on fa weapons i just wondered what general opinion was on there widespread availability. it seems like it might be a disaster waiting to happen, but like i said where do you draw the line??

Small arms is where you draw the line. Type of action shouldn't matter.

SanPedroShooter
01-27-2010, 9:06 AM
good point. and youre right it seems like with semi auto, if all i have to do is pull the trigger a couple more times i dont see much of a difference

Bruce
01-27-2010, 9:12 AM
I would love to own an SBS. It has a much more practical HD role than an MG/SMG IMNSHO. Incorporation now, toys afterward.

Aegis
01-27-2010, 9:14 AM
Is it possible the NRA is using a bit of misdirection here to its advantage? Is it possible the NRA is allowing everyone to think that Clement is going to argue its case in front of SCOTUS, and then at the last minute pull him for someone else?

It seems obvious that the anti-2A justices will use his prior arguments against him. If someone else were to "fill-in" for Clement at the last minute, the baggage issue about his prior arguments are out the window and would eliminate one less angle of attack for the anti-2A justices.

Liberty1
01-27-2010, 9:24 AM
Nice little speech. I assume you're so good with FA weapons that you can place every bullet exactly where you want?

I should have said 3round burst mode is what I prefer. But yes trigger control is possible. I have a FA MP5 and M16 available only at work to counter certain threats. You and I should have that capability elsewhere when needed too.

The only thing I wouldn't like about FA is the cost of ammo.:mad:

The cartels and "gang bangers" are free to acquire and use them now. The current laws only effect you and me and Hamlin (who was not a threat to anyone).

Glock22Fan
01-27-2010, 10:16 AM
good point. and youre right it seems like with semi auto, if all i have to do is pull the trigger a couple more times i dont see much of a difference

The Brady bunch have a page on their website where they say that semi-autos are more dangerous than f.a.s because you can fire nearly as fast but each shot is aimed! So, why (you might ask) don't the army ban full autos, if semis are more destructive?

socal2310
01-27-2010, 10:39 AM
Full auto weapons have limited utility for personal self defense, but are very effective at getting opponents to keep their heads down. Useful when engaging multiple bad guys at distance while you move to find cover or obtain a better position.

Forget the threat of invasion, what about during riots? Those have happened before and WILL happen again.

Ryan

sbrady@Michel&Associates
01-27-2010, 11:27 AM
For those who are interested in reading a different take on NRA's choice of Mr. Clement, check out Chuck Michel's postings on the issue in the below thread:

http://www.calguns.net/calgunforum/showthread.php?t=263671

cindynles
01-27-2010, 2:00 PM
Here is the response I got from the NRA after my e-mail telling them I was not happy and they were not getting any more money from me.....

Dear xxxxxx,


Thank you for your message about former U.S. Solicitor General Paul Clement's representation of the NRA in McDonald v. City of Chicago, which involves the question of whether the Second Amendment applies to the states.


The NRA chose Solicitor General Clement for oral argument in this case because he is one of the leading Supreme Court advocates of our time and has argued dozens of cases before the Court. In the case at hand, he represented 251 members of the U.S. House of Representatives and 58 U.S. Senators in filing an historic and very important friend of the court brief, which makes a strong and effective case in favor of incorporation. A link to this brief can be found here: http://www.nraila.org/media/PDFs/litigation/mcdonald_ac_congress..pdf


During oral argument, Solicitor General Clement will ensure that the Court hears all the arguments for applying the Second Amendment to the states under the Fourteenth Amendment. The Court could reach that result either through the Privileges or Immunities Clause (as the plaintiffs in the case have emphasized), or through the Due Process Clause (as the Supreme Court has chosen to apply nearly all of the other provisions of the Bill of Rights). The NRA’s solitary goal in this case is to ensure that the Supreme Court applies the Second Amendment to all Americans throughout the country, no matter which method the Court chooses to use.


Obviously, we realize that Solicitor General Clement represented the federal government’s position in District of Columbia v. Heller. In that case, the government took the position that the Second Amendment does protect a pre-existing individual right to keep and bear arms, but that the Court should apply an “intermediate” standard of review, less favorable to Second Amendment challenges to federal gun laws than the standard advocated by the NRA. On the standard of review issue, we disagreed with the government's position at the time and we still disagree with it.


However, it is critically important to remember that this position was the government's, not its lawyer's. At the time, Solicitor General Clement had a duty to represent the position of his client. Now that he is representing the NRA, just as when he was recently representing a bipartisan majority of Congress, he will strongly represent the interests of NRA members and all other Americans who believe the Second Amendment should apply equally throughout our nation.


Cordially,

xxxxxx xxxxx

NRA-ILA Grassroots Division

Lex Arma
01-27-2010, 2:27 PM
For those who are interested in reading a different take on NRA's choice of Mr. Clement, check out Chuck Michel's postings on the issue in the below thread:

http://www.calguns.net/calgunforum/showthread.php?t=263671

Except that the memo doesn't explain WHY Clement was chosen. It explains why NRA asked for divided argument.

If you are referring to the unsubstantiated rumors that Clement is working for NRA pro bono, that he is really pro-gun, that he has repudiated the position he took in Heller and was only doing the job assigned to him by the Bush Administration, then turning all these into verifiable facts is as simple as NRA/Clement issuing a press release.

But is also means the Bush Administration screwed us after we were instrumental (according to Bill Clinton no less) in getting G.W. elected in 2000 and reelected in 2004.

7x57
01-27-2010, 2:57 PM
But is also means the Bush Administration screwed us after we were instrumental (according to Bill Clinton no less) in getting G.W. elected in 2000 and reelected in 2004.

And that would be a surprise why? This is the guy who apparently said "there is no conservative movement--I've re-defined conservatism."

I don't see the surprise that someone who doesn't to my observation believe in limited government would be adamant about another way in which our government is denied complete supremacy.

7x57

navyinrwanda
01-27-2010, 3:08 PM
To Mr. Clement: Do you intend to abandon your earlier position before SCOTUS that intermediate scrutiny is an appropriate standard of review for the Second Amendment, even at the risk of having your own professional integrity called into question? Or will you adopt the position of your new client (NRA) and argue for strict scrutiny, thus accepting the proposition (criticism?) that lawyers sometimes have to argue for clients with whom they sometimes disagree? (i.e., they are hired guns) BTW, what is your personal position on gun control and the Second Amendment?

Why can't we get an answer to these specific questions? If not from Mr. Clement, then at least from the NRA?

And the answer needs to go farther than a simple acknowledgment from the NRA that Clement argued one position as SG and is now representing a different client... instead, how does Mr. Clement plan to deal with the anticipated questions during oral argument concerning his about-face?

And, more importantly, since McDonald will likely be one of the most important public interest civil rights cases of the century: what is Mr. Clement's personal opinion of the Second Amendment?

7x57
01-27-2010, 3:34 PM
Nice little speech. I assume you're so good with FA weapons that you can place every bullet exactly where you want?

So, the gun banner's rhetoric about spraying bullets raises its ugly head.

The fact is that the most common self-defense weapon in the country is the handgun, which is by far the hardest kind of firearm to use well. Factoring in the likely level of training and emotional state of a typical citizen at the moment of truth when they must defend themselves, there probably is no such thing as *not* "spraying bullets."

That also includes the police. Ever look at statistics on hit percentages? If we really believed the gun-grabber's rhetoric, we should not permit most of the cops in the country to have a handgun.

Of course, the reality is that by the time you're in a spot where you have no choice but to use force, you do what you can. FA would change nothing. In fact, I would not be surprised if a typical person with something like a submachine gun can group better than with a handgun. I don't know this to be the case, but given the weight of a Thompson I am pretty sure it would group better for a typical shooter than a .45.

7x57

nicki
01-27-2010, 3:47 PM
Since this is a potential screw up of EPIC FAIL proportions, I say that if our worst fears come true, that the whole leadership of the NRA be replaced.

On the bright side, perhaps Clement may say about intermediate scrutiny that he was in fact representing the government, not his own and honest views and that he is there in front of the court arguing what he believes is the correct interpretation for the 2nd amendment.

We will see in what happens, fortunately this is the court, not football. The 10 minutes will indeed be 10 minutes or close to it.

Nicki

bwiese
01-27-2010, 3:54 PM
Since this is a potential screw up of EPIC FAIL proportions, I say that if our worst fears come true, that the whole leadership of the NRA be replaced.

Why throw the good out with the bad?
This wasn't a Wayne-side issue.

This is coming out of Chris Cox' ILA.

Kharn
01-27-2010, 4:00 PM
Since this is a potential screw up of EPIC FAIL proportions, I say that if our worst fears come true, that the whole leadership of the NRA be replaced.

On the bright side, perhaps Clement may say about intermediate scrutiny that he was in fact representing the government, not his own and honest views and that he is there in front of the court arguing what he believes is the correct interpretation for the 2nd amendment.

We will see in what happens, fortunately this is the court, not football. The 10 minutes will indeed be 10 minutes or close to it.

NickiA lawyer's personal beliefs are not nearly as important to a case as the beliefs of his client.

wildhawker
01-27-2010, 4:10 PM
A lawyer's personal beliefs are not nearly as important to a case as the beliefs of his client.

In this case I'd disagree with you.

7x57
01-27-2010, 5:07 PM
Why throw the good out with the bad?
This wasn't a Wayne-side issue.

This is coming out of Chris Cox' ILA.

The other question is whether there has been a pattern of such decisions. The whole record matters. Well, unless we only tolerate perfect people in gun-rights.

Oh, sorry, that's right, I forgot. Purity Uber Alles!

I think the tempest here is reaching the counterproductive stage--what I care about is effectiveness, and so Don Kilmer's opinion matters to me more than most of the rest of the board all put together. I do, however, find it educational to listen in to the back-and-forth between him and Chuck, and that does have me coming back when I really should be doing something else besides reading Calguns. :D

Did I just speak heresy? :chris:

7x57

wildhawker
01-27-2010, 5:48 PM
7x57, the "whole record" isn't necessarily public information.

This was a terrible decision deserving of an immediate and thorough investigation and an appropriate management response.

loather
01-27-2010, 6:50 PM
Oh, sorry, that's right, I forgot. Purity Uber Alles!

Sorry to call you out, but it looks like you just invoked Godwin's Law ...

Meplat
01-27-2010, 7:03 PM
And all that good stuff is slowly dissolving while the machine gun ban is forever.:rolleyes:

Thank you NRA. That was when I stopped my automatic monthly transfers to the ILA.:mad:

1968 was the GCA, 1986 was the Firearm Owners Protection Act (http://en.wikipedia.org/wiki/FOPA), it did a lot of good things for gun owners to include reining in an out-of-control ATF with severe restrictions on how they could investigate FFLs, elimination of the ammo log, permitting mail-order ammo, etc.

yellowfin
01-27-2010, 7:09 PM
A lawyer's personal beliefs are not nearly as important to a case as the beliefs of his client.I'd rather chew my own hand off than trust a lawyer I know to be anti gun in their beliefs to an important task such as this. I personally don't trust a person with anti gun inclinations with anything at all, for that matter. That tells me a lot about who they are and it's nothing good on any count. It's just too high a risk at too great of stakes here. Trust is everything and that deep of a conflict of interest just isn't smart. We don't trust ballistic missiles or guarding the White House to someone who has in their personal or family past conflicting roots, so it's unwise to do so with this. The risk of sabotage even if small simply isn't worth it. Omission of certain details due to less than 100% internal commitment is as much or more of a concern than active miscues.

hoffmang
01-27-2010, 7:14 PM
Is it possible the NRA is using a bit of misdirection here to its advantage? Is it possible the NRA is allowing everyone to think that Clement is going to argue its case in front of SCOTUS, and then at the last minute pull him for someone else?

The NRA can be rude to Alan Gura, but the same is not true of the Supreme Court. Clement will be arguing unless he contracts a serious illness or somesuch.

-Gene

timdps
01-27-2010, 7:17 PM
In fact, I would not be surprised if a typical person with something like a submachine gun can group better than with a handgun. I don't know this to be the case, but given the weight of a Thompson I am pretty sure it would group better for a typical shooter than a .45.
7x57

My limited experience with full auto Thompsons firing three round bursts at seven yards, shows a nice group in the center of the target (first round of each burst), a second group up 6" 45 degrees right (second round of each burst) and a third group in the upper right of the target (third round). With some practice I was able to tame the thing, but for putting full-auto lead on a short range target, I would much prefer an MP5 - shoots where you point it...

Experimentalist
01-27-2010, 7:17 PM
Here is the response I got from the NRA after my e-mail telling them I was not happy and they were not getting any more money from me.....

This message is exactly, word for word what I received from the NRA this morning.

I sent a follow-up email just now, asking them to amplify on the NFA, and Due Process vs P & I. If anything interesting comes back I'll share.

I'm not prepared to abandon the NRA just yet. As Bill W. and others point out you can't blame the entire org for the actions of a few.

But I am watching.

loather
01-27-2010, 7:26 PM
The NRA can be rude to Alan Gura, but the same is not true of the Supreme Court. Clement will be arguing unless he contracts a serious illness or somesuch

Does anyone we know have the Swine Flu?

Meplat
01-27-2010, 7:46 PM
What do you want a computer for? Surly the founders did not ave the internet in mind when they wrote the first ammendment! Why, a person can sit on his couch in is underware and reach millions of peole with his opinion. One does not even need a printing press. Surly such power was never ment to be wealded by individuals!

Machine guns are 19th century techknowladgy. For the 2nd ammendment to be true to its malitia clause, at the very least everything that can be used buy a single individual must be included. shoulder fired missels come to mind. And I doubt the line should be drawn there.

To answer the question directly. I want a machine gun to defend myself, my family, my community, and my country. There are in my opinion (and I have military training), limited cercomstances in which full auto fire is superior to simi auto fire, but they do exsist.

The point of machine gun bans is to freze the 2nd ammendment at a point in time so it will eventually become irrelivant. Remember the enimies of freedom are Patient.:43:




What, exactly, do you who are so worried about NFA want a machine gun for?

Meplat
01-27-2010, 7:53 PM
I would love to own an SBS. It has a much more practical HD role than an MG/SMG IMNSHO. Incorporation now, toys afterward.

That is wat this is about. Not locking any doors.

7x57
01-27-2010, 8:49 PM
This was a terrible decision deserving of an immediate and thorough investigation and an appropriate management response.

I don't believe you'll be able to find where I disagreed with you. The pitchforks and torches being readied, however, seem rather premature.

7x57

7x57
01-27-2010, 9:19 PM
Sorry to call you out, but it looks like you just invoked Godwin's Law ...

You think 'uber alles' counts as an invocation? What do you have against oblique references to Hanzel und Gretyl (http://www.hanzelundgretyl.com/discography.php)'s album? :D

In any case, and supposing that 'uber alles' is specific enough to invoke Godwin's Law, I might have done it on purpose, which would trigger the Quirk exception.

7x57

Surf&Skeet
01-27-2010, 10:27 PM
Frankly I don't think Mr. Clements gives two hoots and a holler about P&I or due process... he is just collecting a paycheck and setting up what he hopes will be a good job reference for his next paid position. That's all.

I think Alan Gura is an exception in that he seems to truly take 2A issues to heart, and for that we laud him as our hero. Oh yeah and he seems to have a knack for writing excellent briefs and winning cases.

This is an interesting analysis. But how do you explain the fact that Clement is working pro bono? Doesn't that kinda ruin your theory, if he is not collecting any paycheck? And doesn't calling him a "hired gun" as many have referred to him make no sense when again, he is working pro bono?

You condemn Clement while praising Gura, but have you ever asked yourself what size paycheck Mr. Gura is collecting for litigating this case? I am certain Gura is not working pro bono. Not that there is anything wrong with that. He should be paid, and paid extremely well, and we should all give him a bonus if he is victorious.

But the fact that Clement had a sworn duty as SG to make the arguments he made in Heller, and now is on the right side of RKBA by his own volition and without pecuniary compensation does tend to suggest that he is aligned with our side. Why else would he do the case pro bono? I mean, from what I understand he has argued before the Supreme Court a million times as SG, so it's definitely not for the experience. He has been getting a government paycheck for the last several years, so he probably isn't rich. And with his talents, he probably could have made a lot more money in some big firm, so to impugn his motives now, after he has been a public servant for many years seems somewhat disgraceful. You should give him the benefit of the doubt.

Also, there is no inconsistency in his arguing for incorporation and even strict scrutiny now that RKBA has been deemed a fundamental right. He was arguing (on behalf of the government) that there is no fundamental right. His (the government's) arguments were rejected by SCOTUS and now there is an undeniable individual right under the law. This means his previous arguments are obsolete. It is like a man who is told by a woman that he is the father of her child and he denies it and argues that it couldn't be, but when the results come back that it is his child, his argument changes to giving that child all the benefits of its newly acquired status.

I just wish everyone would calm down, and stop turning the guns on each other at this historical moment in our history. I have no idea whether Clement was a good move or not by the NRA, and I don't think anyone else here does. Let's please reserve judgment until after the case and try to work together. It seems like many of you are acting exactly like those who cried the sky was falling when Gura took Heller to SCOTUS. Do you want to be eating your words like them if Clement does well and gets us good language in the opinion? NRA is on our side, and you should voice your concern about Clement, but treating them like the enemy is not productive. Stop the madness please!

Those are my two cents for what they are worth.

wildhawker
01-27-2010, 10:42 PM
It's late and I'm tired, but I must ask if you are serious in your below comments.

Have you ever been involved in commerce and sales in any way outside of as a consumer?

For what it's worth, your two cents aren't worth two cents.


This is an interesting analysis. But how do you explain the fact that Clement is working pro bono? Doesn't that kinda ruin your theory, if he is not collecting any paycheck? And doesn't calling him a "hired gun" as many have referred to him make no sense when again, he is working pro bono?

You condemn Clement while praising Gura, but have you ever asked yourself what size paycheck Mr. Gura is collecting for litigating this case? I am certain Gura is not working pro bono. Not that there is anything wrong with that. He should be paid, and paid extremely well, and we should all give him a bonus if he is victorious.

But the fact that Clement had a sworn duty as SG to make the arguments he made in Heller, and now is on the right side of RKBA by his own volition and without pecuniary compensation does tend to suggest that he is aligned with our side. Why else would he do the case pro bono? I mean, from what I understand he has argued before the Supreme Court a million times as SG, so it's definitely not for the experience. He has been getting a government paycheck for the last several years, so he probably isn't rich. And with his talents, he probably could have made a lot more money in some big firm, so to impugn his motives now, after he has been a public servant for many years seems somewhat disgraceful. You should give him the benefit of the doubt.

Also, there is no inconsistency in his arguing for incorporation and even strict scrutiny now that RKBA has been deemed a fundamental right. He was arguing (on behalf of the government) that there is no fundamental right. His (the government's) arguments were rejected by SCOTUS and now there is an undeniable individual right under the law. This means his previous arguments are obsolete. It is like a man who is told by a woman that he is the father of her child and he denies it and argues that it couldn't be, but when the results come back that it is his child, his argument changes to giving that child all the benefits of its newly acquired status.

I just wish everyone would calm down, and stop turning the guns on each other at this historical moment in our history. I have no idea whether Clement was a good move or not by the NRA, and I don't think anyone else here does. Let's please reserve judgment until after the case and try to work together. It seems like many of you are acting exactly like those who cried the sky was falling when Gura took Heller to SCOTUS. Do you want to be eating your words like them if Clement does well and gets us good language in the opinion? NRA is on our side, and you should voice your concern about Clement, but treating them like the enemy is not productive. Stop the madness please!

Those are my two cents for what they are worth.

hoffmang
01-27-2010, 10:52 PM
You condemn Clement while praising Gura, but have you ever asked yourself what size paycheck Mr. Gura is collecting for litigating this case?
I happen to actually have relatively direct knowledge of the financial situation. On Heller, Mr. Gura is still waiting to be paid by DC. On this case he has been paid a wildly discounted rate that is higher than the less than subsistence rate he was paid in Heller expecting to win and make Chicago pay. Have you deferred your paycheck for a few years because you believe in something?

But the fact that Clement had a sworn duty as SG to make the arguments he made in Heller, and now is on the right side of RKBA by his own volition and without pecuniary compensation does tend to suggest that he is aligned with our side.
Mr. Clement represented to Mr. Levy and Mr. Gura that he had quite a bit of latitude in deciding what position to take on behalf of the US Government. I've heard that from multiple sources. Now that his ex boss (Scalia) told him he was wrong in Heller, maybe he's trying to make amends by offering his services for free or maybe he's just got an ego the size of Texas and likes taking advantage of rube gun owners.

It's just sad that people who supposedly represent the best interests of gun owners are willing to look the other way after he hurt us all badly...

-Gene

Surf&Skeet
01-27-2010, 11:04 PM
Hoffmang, with all due respect (and I do not mean that in the rude way that someone around here suggests in his signature block) I find it disingenuous of you to leave off the rest of my quote about Gura's pay. Your editing seems to suggest that I have an issue with Mr. Gura making money on this case. I think I said that he should get paid "extremely well" and we should give him a bonus if he is victorious. My point was that everyone is piling on Clement, calling him a hired gun and questioning his allegiances, but nobody questions Gura's motive, despite him collecting a paycheck. I just think we should use some logic and calm down. And if it turns out to be a mistake, bring the consequences.

As for Wildhawker, I love how you think my two cents aren't worth anything, but that we should value your opinion over Chuck Michel's that SCOTUS is not likely to ask Clement about his previous position. How much experience do you have in court?

hoffmang
01-27-2010, 11:09 PM
Hoffmang, with all due respect (and I do not mean that in the rude way that someone around here suggests in his signature block) I find it disingenuous of you to leave off the rest of my quote about Gura's pay. Your editing seems to suggest that I have an issue with Mr. Gura making money on this case. I think I said that he should get paid "extremely well" and we should give him a bonus if he is victorious. My point was that everyone is piling on Clement, calling him a hired gun and questioning his allegiances, but nobody questions Gura's motive, despite him collecting a paycheck. I just think we should use some logic and calm down. And if it turns out to be a mistake, bring the consequences.


Your quote exists above - its not mine to try to speak for you. You didn't answer my question - have you deferred 90+% of your paycheck for something you believed in? What do you think the 2 year discounted cash flow value of those earnings are?

I'll point out to you that I quoted your sentences in full.

Now, seeing that Alan isn't even getting a paycheck that would be equal to simply paying going rate for his services where he is counting on winning to get the oppressive governments to pay for his teaching them a lesson - don't you think you're wildly off base to even suggest he's a hired gun?

I mean, someone might question your motives by making such a statement.

-Gene

Surf&Skeet
01-27-2010, 11:24 PM
Again, with all due respect, you have me lost. I don't understand why you think I am attacking Mr. Gura. I never said Gura was a hired gun. Again, I said he should get paid "extremely well" for what he is doing. I hope he kicks you know what, and he has 110% of my support. My issue is why people here aren't giving Clement the same support until he proves he is not worthy.

To answer your question, no I have never foregone my salary for something I believed in. But I also never questioned Mr. Gura's motives. I was just asking why people would question the motives of a man who is working pro bono and not those of a man who is getting paid (not that there is anything wrong with getting paid). Personally, I think we should all pay them both a large sum of money if they win.

As far as my motives, you don't have to question, I will tell you. I want all of us pro-RKBA people to stick together. Stop the infighting and pettiness. You think the gun grabbers are divided like this? They have one mission: to take our guns and other freedoms. I just want everyone to remember who the enemy is, because it's not NRA, it's not Gura, it's not Clement, it's not CGF, it's not CRPA, it is LCAV and Brady Bunch.

hoffmang
01-27-2010, 11:31 PM
Again, I said he should get paid "extremely well" for what he is doing.
Paid by whom? The only people who can "pay him well" are the other side when they lose the fee motions.

I hope he kicks you know what, and he has 110% of my support. My issue is why people here aren't giving Clement the same support until he proves he is not worthy.
Clement represented to Mr. Gura and Mr. Levy that he had wide latitude in what argument the US Government made in Heller. He then proceeded to bring up machine guns to scare the court, insist on an intermediate scrutiny standard, and ask the court to remand the case to the district court for fact finding to blunt the case. What does a guy have to do to be considered anti 2A exactly?

As far as my motives, you don't have to question, I will tell you. I want all of us pro-RKBA people to stick together.
Then why aren't you as mad at ILA for duping Mr. Gura as I am? NRA and Gura agreed on how they would divide the two merits briefs - NRA taking mostly Due Process and Alan taking mostly P or I. Then they filed a motion saying Alan didn't spend enough time on Due Process. I'm quite confident you've read his motion.

Would you like me to call you in the office in the morning to explain the rules of the forum about sock puppetry to you as well?

-Gene

Sgt Raven
01-27-2010, 11:59 PM
Paid by whom? The only people who can "pay him well" are the other side when they lose the fee motions.


Clement represented to Mr. Gura and Mr. Levy that he had wide latitude in what argument the US Government made in Heller. He then proceeded to bring up machine guns to scare the court, insist on an intermediate scrutiny standard, and ask the court to remand the case to the district court for fact finding to blunt the case. What does a guy have to do to be considered anti 2A exactly?


Then why aren't you as mad at ILA for duping Mr. Gura as I am? NRA and Gura agreed on how they would divide the two merits briefs - NRA taking mostly Due Process and Alan taking mostly P or I. Then they filed a motion saying Alan didn't spend enough time on Due Process. I'm quite confident you've read his motion.

Would you like me to call you in the office in the morning to explain the rules of the forum about sock puppetry to you as well?

-Gene

Ouch, that's gonna leave a mark. :eek: :rolleyes:

wildhawker
01-28-2010, 12:08 AM
As for Wildhawker, I love how you think my two cents aren't worth anything, but that we should value your opinion over Chuck Michel's that SCOTUS is not likely to ask Clement about his previous position. How much experience do you have in court?

Thanks for the strawman. I think I could ask you the same question, but mine would have some bearing in reality, now, wouldn't it?

Further, your comments were asinine and unfounded in any public fact. If you have anything to substantiate your position then I'd love to see it; until then, Clement deserves our scrutiny as does the decisionmaker(s) who selected him to represent the future of our great nation.

I'll go into detail tomorrow if you like. Office line work?

Surf&Skeet
01-28-2010, 12:23 AM
Thanks for the strawman. I think I could ask you the same question, but mine would have some bearing in reality, now, wouldn't it?

Further, your comments were asinine and unfounded in any public fact. If you have anything to substantiate your position then I'd love to see it; until then, Clement deserves our scrutiny as does the decisionmaker(s) who selected him to represent the future of our great nation.

I'll go into detail tomorrow if you like. Office line work?

I am confused as to why there is so much hostility? Can't anyone present any opinions here without being attacked? I never said Clement does not deserve scrutiny, in fact, I said we should scrutinize him. I am not like some big Clement fan. As I said, I don't know if he was the right decision or wrong. I simply wanted everyone to mellow out and remember we are all in this together and should not be throwing anyone on our side under the bus. But apparently not everyone shares my sentiments.

wildhawker
01-28-2010, 12:39 AM
You didn't simply present an opinion; you made positive assertions and attempted to attack me, personally, to defend the position (which, at present, I'm unconvinced isn't motivated by something other than an interest in gun rights). Further, you'll note my name at the bottom of and singular username for each and every post. It's unfair to say that we're being honest in our arguments when we employ less-than-forthright tactics in our debate.

I'm not trying to throw "our side" under the bus. I'm saying that, very possibly, this decision wasn't in the best interest of "our side". I'd think that such a decision (in light of the significance of the case) would be of some interest to a gun rights advocate. You would consider yourself to be an advocate, wouldn't you?

hoffmang
01-28-2010, 12:40 AM
I am confused as to why there is so much hostility? Can't anyone present any opinions here without being attacked? I never said Clement does not deserve scrutiny, in fact, I said we should scrutinize him. I am not like some big Clement fan. As I said, I don't know if he was the right decision or wrong. I simply wanted everyone to mellow out and remember we are all in this together and should not be throwing anyone on our side under the bus. But apparently not everyone shares my sentiments.

I'd suggest you check your email. I use my real name on the forum. What's yours?

-Gene

Gray Peterson
01-28-2010, 12:53 AM
I'd suggest you check your email. I use my real name on the forum. What's yours?

-Gene

I think someone's about to get Ezekiel 25:17'd.

lavgrunt
01-28-2010, 1:04 AM
I am confused as to why there is so much hostility? Can't anyone present any opinions here without being attacked? I never said Clement does not deserve scrutiny, in fact, I said we should scrutinize him. I am not like some big Clement fan. As I said, I don't know if he was the right decision or wrong. I simply wanted everyone to mellow out and remember we are all in this together and should not be throwing anyone on our side under the bus. But apparently not everyone shares my sentiments.


......Welcome to 'CalGuns', Bro..........Seal pups in a school of great whites have fared better.........Don't let 'em smell blood.........

freonr22
01-28-2010, 1:18 AM
It IS such an important case. Every aspect and team member should pass the litmus test. Based on past performance, not all have. What's that movie,,, "you have been measured and weighed and been found wanting".

wildhawker
01-28-2010, 1:19 AM
......Welcome to 'CalGuns', Bro..........Seal pups in a school of great whites have fared better.........Don't let 'em smell blood.........

I'd like to think that Calguns is a great place to support your arguments; those that can't (or do so disingenuously) will probably not find it terribly accepting.

lavgrunt
01-28-2010, 1:26 AM
I'd like to think that Calguns is a great place to support your arguments; those that can't (or do so disingenuously) will probably not find it terribly accepting.


I was just trying to lighten the mood.......Things were getting very intense and I just wanted to give the lad a moment of levity.........!!!!

kcbrown
01-28-2010, 7:27 AM
Paid by whom? The only people who can "pay him well" are the other side when they lose the fee motions.


Clement represented to Mr. Gura and Mr. Levy that he had wide latitude in what argument the US Government made in Heller. He then proceeded to bring up machine guns to scare the court, insist on an intermediate scrutiny standard, and ask the court to remand the case to the district court for fact finding to blunt the case. What does a guy have to do to be considered anti 2A exactly?


When it comes to figuring out the true motives of the opposition's counsel, I suspect that's an exceedingly difficult question to answer.

Clement may have said that he had wide latitude in what argument the U.S. Government made in Heller, but do we know anything about what other arguments he had at his disposal aside from the arguments he actually made?

That is: is it possible that the arguments he brought forth were, of the arguments he had available to him, the least damaging ones?

He was representing the opposition in that case. It almost seems as if we're expecting that Clement should have "thrown" the case as opposed to arguing the U.S. Government's side to the best of his ability. If he had used an even more benign argument than the machine gun argument, might the U.S. Government have standing to sue Clement after the fact for failure to perform his representative duty in front of the Court?

Do we have any reason to believe that the U.S. Government was anything other than fully anti-2A in Heller (at the very least -- I would expect the U.S. Government to be fully anti-2A in the general case, but that may be paranoia on my part)? I don't know, which is why I'm asking.


I'm not at all happy about Clement being given time in the orals here, but that's because I very much want P or I to win and I feel that giving Clement time during the orals at Gura's expense has a significant chance of negatively affecting the chances for getting P or I incorporation. But since I have no experience with (and just as little knowledge about) any of this, all that is just my layman's interpretation of things, and thus probably not even worth 2 cents. :o



Then why aren't you as mad at ILA for duping Mr. Gura as I am? NRA and Gura agreed on how they would divide the two merits briefs - NRA taking mostly Due Process and Alan taking mostly P or I. Then they filed a motion saying Alan didn't spend enough time on Due Process. I'm quite confident you've read his motion.
Yes, this has me most annoyed.


I'm not an NRA member yet. I've often thought of joining. Now that they've done this, I'm holding off until I see the results. If we do not get incorporation via P or I with strict scrutiny and there's anything in Clement's oral arguments that might have caused that, the NRA will never see a cent from me. I will not give money to an organization that I cannot completely trust to fight for maximum liberty.

7x57
01-28-2010, 7:35 AM
I will not give money to an organization that I cannot completely trust to fight for maximum liberty.

Assuming by 'maximum liberty' you mean liberty in other areas besides gun rights, this translates as follows: I will not give money to an organization that does not push all my agendas. IOW, precisely what others criticize the NRA for doing.

The usual hypocrisy. Quelle surprise. I remain unconvinced that 'the NRA should be single-issue' means more than 'I want them to have my agenda and not someone else's.'

7x57

kcbrown
01-28-2010, 7:46 AM
Assuming by 'maximum liberty' you mean liberty in other areas besides gun rights, this translates as follows: I will not give money to an organization that does not push all my agendas. IOW, precisely what others criticize the NRA for doing.


No.

Whether we get incorporation via due process or via P or I, the result is that we get incorporation -- exactly what the NRA wants. But one of those yields a much greater positive impact on overall liberty than the other.

So the question becomes: why does the NRA appear to be explicitly pushing for due process incorporation?

It's one thing to make sure all the bases are covered. It's another entirely to push for one base at the expense of the others. The question is: which is happening here?

If the evidence shows that all the NRA is doing is making sure that all the bases are covered, then I have no issue -- that does not reduce the chance of achieving maximum liberty (or, at least, does not intentionally do so). But if it appears that they are intentionally pushing for one type of incorporation at the expense of the other, then I have a problem with them, because it means they are pushing for the exact same 2A ends that they'd get via P or I, but at the expense of other liberties.


The usual hypocrisy. Quelle surprise. I remain unconvinced that 'the NRA should be single-issue' means more than 'I want them to have my agenda and not someone else's.'
If the NRA is single-issue at the expense of other liberties then I cannot support them. It's as simple as that.


ETA: Would you support the NRA if they were explicitly arguing for 2A rights and, simultaneously, intentionally arguing against 1A rights when they didn't have to?

Lex Arma
01-28-2010, 8:05 AM
......Welcome to 'CalGuns', Bro..........Seal pups in a school of great whites have fared better.........Don't let 'em smell blood.........

Except the great whites are lone hunters. This group is more similar to a pod of Orca. Coordinated hunting is the first sign of an evolving intelligent species.

bulgron
01-28-2010, 8:24 AM
Except the great whites are lone hunters. This group is more similar to a pod of Orca. Coordinated hunting is the first sign of an evolving intelligent species.

Now if only humanity would evolve and become intelligent. ;)

Mulay El Raisuli
01-28-2010, 9:11 AM
The NRA can be rude to Alan Gura, but the same is not true of the Supreme Court. Clement will be arguing unless he contracts a serious illness or somesuch.

-Gene


Then it's time to break out the cauldron & potions.


The Raisuli

7x57
01-28-2010, 9:32 AM
Coordinated hunting is the first sign of an evolving intelligent species.

:rofl2:

7x57

IGOTDIRT4U
01-28-2010, 9:46 AM
:rofl2:

7x57

So, in other words, the "Lone Wolf" is really the stupidest one out of the entire wolf pack??? (J/K)

7x57
01-28-2010, 9:48 AM
But one of those yields a much greater positive impact on overall liberty than the other.

So the question becomes: why does the NRA appear to be explicitly pushing for due process incorporation?


I think this lack of self-analysis has shown up on other threads where we've argued. You assume that because *you* have a particular view of what constitutes liberty and what would be the most effective strategy for promoting it, "all right thinking people" must agree and therefore you needn't acknowledge that this is itself an agenda. By no means a dishonorable one, but an agenda never the less.

This is precisely how the left manages to simultaneously believe itself the guardian of liberty and yet work tirelessly against it--things "outside the pale" don't count. And they are by no means unique in that regard....

My point remains that either the NRA should be single-issue or it should not. if it is, that includes even the best other issues. It's logically consistent to argue the NRA should not be single issue--but then we should just state it honestly and discuss what it's scope of advocacy is.


If the evidence shows that all the NRA is doing is making sure that all the bases are covered, then I have no issue -- that does not reduce the chance of achieving maximum liberty (or, at least, does not intentionally do so). But if it appears that they are intentionally pushing for one type of incorporation at the expense of the other, then I have a problem with them, because it means they are pushing for the exact same 2A ends that they'd get via P or I, but at the expense of other liberties.


The problem here is that you arbitrarily assign motives for which we have essentially zero evidence (but a vast body of speculation). We do not know if Fairfax, rightly or wrongly, believes P&I incorporation risky, or something else.


If the NRA is single-issue at the expense of other liberties then I cannot support them. It's as simple as that.


Certainly you have carte blanche to choose who you support. My point is that the great lie in these threads is not that people are mad that the NRA allegedly has a broader agenda (said so I have clearly taken no position on whether this is the case), but rather that it does not push their agenda.


ETA: Would you support the NRA if they were explicitly arguing for 2A rights and, simultaneously, intentionally arguing against 1A rights when they didn't have to?

Depends on the circumstances, and whether I think they'll do more harm than good (because I choose to disbelieve in purity in politics, I instead evaluate overall effect compared to some more pure standard) in that case. If I believe that they're essentially ineffectual against the 1A but quite effective for the 2A, then my rational choice is to support the NRA and, perhaps, also some other organization that is effective for the 1A. OTOH if they're a net minus, I drop support for them. If I really think I grasp the internal political dynamics, I would also factor in higher-order effects such as my estimate of their future behavior, whether they'll respond to member concerns (such as, I am happy to hear, are being signaled through back channels in this case), and what sort of effect I can have on them by dropping, or threatening to drop, support.

You are not obliged to do likewise, but that road is the road down which many independents and Libertarians charge to political irrelevance. I should probably repeat "the perfect is the enemy of the good" to myself each morning while brushing my teeth, because it describes so much of politics.

7x57

kcbrown
01-28-2010, 11:05 AM
I think this lack of self-analysis has shown up on other threads where we've argued. You assume that because *you* have a particular view of what constitutes liberty and what would be the most effective strategy for promoting it, "all right thinking people" must agree and therefore you needn't acknowledge that this is itself an agenda. By no means a dishonorable one, but an agenda never the less.


Um, no.

I did not say that others should not support the NRA if they defend a right at what I perceive to be the expense of other rights/liberties.

I said that I would not support the NRA in such a case.

Either you're reading too much into what I'm saying, or I'm saying it very poorly.



My point remains that either the NRA should be single-issue or it should not. if it is, that includes even the best other issues. It's logically consistent to argue the NRA should not be single issue--but then we should just state it honestly and discuss what it's scope of advocacy is.
I'm not arguing that the NRA should not be single issue. I'm arguing that when there are multiple ways to achieve the same single-issue outcome, the one which either causes the least amount of collateral damage or yields the greatest other gains is the preferred/proper approach. It then becomes a question of whether or not the preferred/proper approach is being taken.

It is questionable here whether the preferred/proper approach is being taken.

And of course, these are all just my opinions. Make of them what you will.



The problem here is that you arbitrarily assign motives for which we have essentially zero evidence (but a vast body of speculation). We do not know if Fairfax, rightly or wrongly, believes P&I incorporation risky, or something else.
I have assigned no motives as yet, because I don't believe the evidence I've seen is sufficient for that. But I consider the push for due process incorporation at the expense of P & I to be a possible indicator of ulterior motives (because it raises the very real question of why a single-issue organization such as the NRA should have a preference as to which way the 2nd is incorporated in the absence of arguments that 2A under P or I will be weaker than 2A under due process).



Certainly you have carte blanche to choose who you support. My point is that the great lie in these threads is not that people are mad that the NRA allegedly has a broader agenda (said so I have clearly taken no position on whether this is the case), but rather that it does not push their agenda.
And this is why I haven't passed any real judgment yet. P or I doesn't push the NRA's agenda any more or less than due process, so it would naturally follow that the NRA shouldn't have a preference at all as long as they remain purely a single-issue entity. If the NRA indicates a preference then they must have a rational and articulable justification for how that preference translates into stronger 2A rights. I've seen no such justification put forth yet. Maybe you have. If so, please share.

If NRA remains silent on that question then what is one to conclude but that they are likely to have motives for their approach that are unrelated to 2A?



You are not obliged to do likewise, but that road is the road down which many independents and Libertarians charge to political irrelevance. I should probably repeat "the perfect is the enemy of the good" to myself each morning while brushing my teeth, because it describes so much of politics.
No doubt. But given that we have other effective organizations, such as CGF, which do not appear to be making the same apparent compromises, I fail to see how I need to worry about the difference between "good" and "perfect" in this particular case.

FABIO GETS GOOSED!!!
01-28-2010, 11:40 AM
Now that his ex boss (Scalia) told him he was wrong in Heller, maybe he's trying to make amends by offering his services for free...

Now you're a psychologist, lol. As if this brilliant Supreme Court veteran with sterling credentials and reputation is doing this because he lost the last time around and wants the approval of his ex boss. You can do better than that!:D

bwiese
01-29-2010, 11:58 AM
Over the last few days it's become more clear that the choice of former SG Paul Clement was due solely and independently to ILA faction (really, Chris Cox). I think this even went over the head of NRA-ILA counsel Dave Lehman, but we're not sure yet.

The rest of NRA was against this, wasn't well-informed about this, or this was sprung on them as a fait accompli. Quite a few Board members are starting to see commentary on law forums and are puzzled.

We do hear that both NRA General Counsel Robert Dowlut and another external NRA attorney, Steven Poss, weren't happy, though I don't think they'd make public statements as such.

Manic Moran
01-29-2010, 11:02 PM
Clement represented to Mr. Gura and Mr. Levy that he had wide latitude in what argument the US Government made in Heller

You're making a bit of a non-sequitor, implying that 'wide latitude' implies the government didn't care how effective an argument Mr Clement made on their behalf.

This is obviously invalid. If I may take a counter-example from my current job, I could be given a task by my boss: "Capture that bridge"

I could be given wide latitude on how to do it:
"I don't care how it gets done, but choose what you think is most likely to result in the bridge capture"

Or I could be given narrow latitude on how to do it"
"You will capture that bridge by placing a platoon on that hill there to support, using a three-minute smokescreen from artillery and doing a two-platoon assault"

If bringing up the machinegun argument was thought likely to help Mr Clement achieve the desired end-state of his client, being given wide latitude implies he -should- have brought it up. Failing to do so because he was instructed to use his initiative and the government didn't give specific instructions would have been failure for him to do his job.

NTM

Gray Peterson
01-30-2010, 12:58 AM
Wait wait wait, what, ILA "faction" did this?

Why is the Institute for LEGISLATIVE Action involved in a case that's supposed to be within the JUDICIARY of this country? Why isn't the NRA General Counsel's Office the ones doing this? Why isn't Wayne putting a screeching halt to this? Wayne needs to grow a pair and deal with these unethical individuals. If Cox or whoever else did this, then he/she needs to be walked out the door, and another person put in his place who doesn't engage in this kind of unethical behavior. Lot of "wives apologizing on behalf of their husbands" are occurring, but that doesn't mean a damned thing unless the actual husbands start apologizing and pulling back on this crap.

I'll say it again: Wayne needs to fix this problem. It may mean him having to do work to find a suitable replacement, or having to do a bit of grunt work himself in DC, but this is Seegars all over again. This will either cause me to resign from the NRA, or cause me to go life member and actively work to get these people booted out via voting.

It's one thing to make sure all the bases are covered. It's another entirely to push for one base at the expense of the others. The question is: which is happening here?

It's about being scared ****less that "Gays and Lesbians will be able get married and the country will be burned to the ground by the anger of G-d". They're water carrying for the National Organization for Marriage and I have a sick feeling that Clement, instead of using machine guns, will use gay marriage as a method of attacking the P&I case for Gura.

See A Gun Case or Pandora's Box (http://gunowners.org/op12112009kb.htm) to see what the real problem for some people. I've always known GOA to be water carriers for the Christian Reconstructionist movement, but NRA of the modern era I would have never figured that. Apparently I was wrong.

This is worse than what happened in 1998 when the National PVF endorsed the anti-gunner Dan Lungren over a democratic candidate who didn't give a damn about guns. They seriously misjudged the situation and they didn't realize that Gray Davis was a very vengeful son of a ***** who did everything possible to screw over gun owners and the NRA in California. This is the same guy who screamed and threw things at his staffers while Governor.

SB23 with the 10 round mag ban, and every POS gun control bill the Legislature passed to make things more difficult for gun owners to buy guns, can all be traced back to Davis wanting to screw over anything related to the NRA and gun owners.

Why they endorsed Lungren: "He's the pro-life candidate". Um...wat?

It appears to me that the housecleaning that occurred with PVF needs to occur in ILA. Anyone responsible within the NRA who stabbed Gura in the back by telling him to focus on P&I while they focused on due process, and then told the court that he didn't focus on due process enough, needs to be walked out of the door in Fairfax for politically cross contaminating the gun issue with other issues unrelated to guns, as well as engaging in absolutely unethical behavior that is unbecoming of a civil rights organization against another civil rights lawyer or organization.

If maximum gun rights freedom is what you want, then P&I is the way to go because it is the correct method of fully protecting gun rights from ABRIDGEMENT by the states, rather than just denial of liberty.

hoffmang
01-30-2010, 2:15 AM
You're making a bit of a non-sequitor, implying that 'wide latitude' implies the government didn't care how effective an argument Mr Clement made on their behalf.


Mr. Clement broke with the officially issued and then currently binding opinion of Attorney General John Ashcroft to make his machine gun argument.

-Gene

dantodd
01-30-2010, 2:52 AM
Over the last few days it's become more clear that the choice of former SG Paul Clement was due solely and independently to ILA faction (really, Chris Cox). I think this even went over the head of NRA-ILA counsel Dave Lehman, but we're not sure yet.

The rest of NRA was against this, wasn't well-informed about this, or this was sprung on them as a fait accompli. Quite a few Board members are starting to see commentary on law forums and are puzzled.

We do hear that both NRA General Counsel Robert Dowlut and another external NRA attorney, Steven Poss, weren't happy, though I don't think they'd make public statements as such.

Is Mr. Cox likely to face some repercussions for this?

Mulay El Raisuli
01-30-2010, 5:28 AM
See A Gun Case or Pandora's Box (http://gunowners.org/op12112009kb.htm) to see what the real problem for some people. I've always known GOA to be water carriers for the Christian Reconstructionist movement, but NRA of the modern era I would have never figured that. Apparently I was wrong.


I think those people are getting carried away. From Mr. Klukowski and Blackwell's opinion:


The Privileges or Immunities Clause says states cannot enforce any law that abridges the rights of U.S. citizenship. In 1873, just five years after the Fourteenth Amendment was adopted, the Supreme Court held in a landmark case called the Slaughterhouse Cases that this clause only extends to the states the rights of federal citizenship and strongly suggested that such rights must be found in the Constitution's text. The high court thus rejected a claim brought by some Louisiana butchers asking it to strike down a state law regulating the slaughtering of animals around New Orleans.


The RKBA is a Right of federal citizenship & is found in the Constitution's text. The primary problem with Slaughterhouse (for us, anyway) is that the court decided what is & what is not a federal Right far too narrowly. That still calls for it to be tossed, but that in no way means that marriage (gay or any other flavor) rates as a Constitutional Right.

Or, maybe it doesn't need to be tossed, but merely modified just a bit. Expanding the list of Federal Rights to include the 2A (and everything else actually enumerated in the Constitution) would give all the protections to the 2A we need/deserve & still keep Pandora's Box closed. Given the desire of the court to rule 'narrowly,' I see this as a much more likely outcome.


The Raisuli


P.S. Recently, there was case of people dancing in the Jefferson Memorial. When ordered to stop, one woman didn't & was arrested. Her defense is that dance was 1A Freedom of expression. The court (trial or appellate?) didn't think much of this & she was convicted (or her conviction was upheld). Which was why this was in the news recently.

The reason I mention this is because her lawyer was our own Alan Gura.

I don't know what this means as far as anything at all, really, but I thought it worth mentioning.

eje
01-30-2010, 7:28 AM
Mr. Clement broke with the officially issued and then currently binding opinion of Attorney General John Ashcroft to make his machine gun argument.

-Gene

Can you expand on this a little? Did the break have to do with the validity of the federal ban on machine gun possession, or something else? And is the Ashcroft opinion available somewhere online? Thanks.

GrizzlyGuy
01-30-2010, 7:44 AM
See A Gun Case or Pandora's Box (http://gunowners.org/op12112009kb.htm) to see what the real problem for some people. I've always known GOA to be water carriers for the Christian Reconstructionist movement, but NRA of the modern era I would have never figured that. Apparently I was wrong.

To be fair to GOA, note that the 'Pandora's Box' argument was originally made by Josh Blackman and Ilya Shapiro from Cato Institute in the article I posted in this thread (http://www.calguns.net/calgunforum/showthread.php?p=3487061). The GOA info is similar to the scary article introduction that I quoted there. That scary introduction was only intended to show what could happen with the wrong case and the wrong court (e.g., one loaded with progressives).

Where GOA seems to have gone wrong is not reading that entire article through to it's conclusion, where Blackman and Shapiro predicted a happy ending, given this case and this court. The article is fascinating and worthy of a full read, but I summarized its conclusion here (http://www.calguns.net/calgunforum/showpost.php?p=3489445&postcount=10).

hoffmang
01-30-2010, 11:58 AM
Can you expand on this a little? Did the break have to do with the validity of the federal ban on machine gun possession, or something else? And is the Ashcroft opinion available somewhere online? Thanks.

The DOJ opinion is here (www.justice.gov/olc/secondamendment2.pdf). Then SG Clement brought up the topic of machine guns in his brief here (http://www.gurapossessky.com/news/parker/documents/07-290tsacUnitedStates.pdf). Clement was worried about 922(o) which was not presented in Heller but Clement brought it up anyway.

-Gene

pullnshoot25
01-30-2010, 12:08 PM
On the issue of machine guns, one has to remember that the line has to be drawn somewhere. The people would repeal the Second Amendment before allowing the possession of suitcase nukes or chemical or biological weapons (all weapons that a person can "bear"). A lot of gun owners, probably even some on the NRA board, honestly believe that machine guns should remain banned. Few people realize that machine gun ownership is not a problem in Switzerland. Even some of those who know about Switzerland, probably still can't get over the idea of a bunch of gang bangers running around with machine guns. It is way too cynical to think the NRA leadership would let the machine gun ban be upheld just to give them an excuse to continue lobbying. If the NRA lets the machine gun ban be upheld, it is very likely just because they just don't support the right to keep and bear machine guns, or they think the tactical advantages to giving up machine guns justifies the cost. No matter how upset that might make us, we have to realize that it is going to be a while before people get used to machine guns.

Actually, Switzerland converts a serviceman's rifle to semi-auto when he leaves active duty.


What, exactly, do you who are so worried about NFA want a machine gun for?

Why not? Isn't that what the 2nd amendment is about? Having equal firepower to the police and military?

Put down the Brady-Os...

Maestro Pistolero
01-30-2010, 2:03 PM
Quote:
Originally Posted by Bruce
What, exactly, do you who are so worried about NFA want a machine gun for?
I don't want a machine gun. That type of shooting isn't really fun to me. But the second amendment isn't about fun. What exactly should a weapon that's designed to resist future tyranny look like? A Ruger 10/22?

Manic Moran
01-30-2010, 11:41 PM
The DOJ opinion is here (www.justice.gov/olc/secondamendment2.pdf). Then SG Clement brought up the topic of machine guns in his brief here (http://www.gurapossessky.com/news/parker/documents/07-290tsacUnitedStates.pdf). Clement was worried about 922(o) which was not presented in Heller but Clement brought it up anyway.-Gene

I don't see the contradiction or split. Even in the introduction, the DOJ document makes clear that it is only addressing the issue of individual/collective/quasi-collective application

Our analysis is limited to determining whether the Amendment secures an individual, collective, or quasi-collective right. We do not consider the substance of that right, including its contours or the nature or type of governmental interests that would justify restrictions on its exercise, and nothing in this memorandum is intended to address or call into question the constitutionality, under the Second Amendment, of any particular limitations on owning, carrying, or using firearms.

NTM

N6ATF
01-31-2010, 12:18 AM
P.S. Recently, there was case of people dancing in the Jefferson Memorial. When ordered to stop, one woman didn't & was arrested. Her defense is that dance was 1A Freedom of expression. The court (trial or appellate?) didn't think much of this & she was convicted (or her conviction was upheld). Which was why this was in the news recently.

The reason I mention this is because her lawyer was our own Alan Gura.

I don't know what this means as far as anything at all, really, but I thought it worth mentioning.

http://voices.washingtonpost.com/crime-scene/del-quentin-wilber/no-dancing-at-jefferson-memori.html?hpid=dynamiclead

doscazadores
01-31-2010, 12:45 AM
With all due respect to Mr. Clement...

. . .

The following questions (from concerned NRA members) seem in to be in order:

To Mr. Clement: Do you intend to abandon your earlier position before SCOTUS that intermediate scrutiny is an appropriate standard of review for the Second Amendment, even at the risk of having your own professional integrity called into question? Or will you adopt the position of your new client (NRA) and argue for strict scrutiny, thus accepting the proposition (criticism?) that lawyers sometimes have to argue for clients with whom they sometimes disagree? (i.e., they are hired guns) BTW, what is your personal position on gun control and the Second Amendment?

. . .

Here is the question that Mr. Clement will get from SCOTUS:

When you were last before us on a gun control issue, you represented the United States government. Do the arguments you made then apply now in this case? [And then let him twist in the wind.]

. . .



The NRA's merits brief refers to the 2nd Amendment as '"fundamental" to "liberty."' Mr. Clement is wed to strict scrutiny whether he wants to be or not. The more interesting question the Court will ask everyone is what kind of test would be applied were the Court to revitalize the privileges or immunities clause (and, thank God, overrule the Slaughterhouse Cases in the process) by relying on it to apply the 2nd Amendment to the states.

I can't imagine why the court would embarrass Paul Clement by asking him about his argument in D.C. v. Heller. He is too well known and one of the most respected Supreme Court advocates of our generation, as you recognize. But if the question were asked, I think the answer would be something like, "The Court ruled the 2nd Amendment was a personal right, a ruling we of course respect. The questions the Court asked us to answer here are quite different, and, we believe, must be answered in favor of the Petitioner, and squarely against the City of Chicago."

Mulay El Raisuli
01-31-2010, 5:49 AM
http://voices.washingtonpost.com/crime-scene/del-quentin-wilber/no-dancing-at-jefferson-memori.html?hpid=dynamiclead


Thank you. That's so much better than the mindless babbling that I posted.


The Raisuli

artherd
01-31-2010, 6:34 AM
I don't know about any of you - but I don't hire counsel when I know their personal views are in conflict with the point I am trying to sell the court.

socal2310
01-31-2010, 7:49 AM
I don't know about any of you - but I don't hire counsel when I know their personal views are in conflict with the point I am trying to sell the court.

I would, if I thought they were the most qualified and knowledgeable attorney for the case (assuming I thought I could count on their professional integrity of course).

Ryan

artherd
01-31-2010, 8:36 AM
I would, if I thought they were the most qualified and knowledgeable attorney for the case (assuming I thought I could count on their professional integrity of course).

Ryan

And my point is that views grossly in conflict impeach the qualification.

bulgron
01-31-2010, 10:59 AM
This thread is giving me ulcers. I think I'm going to stop paying attention to McDonald. Wake me up in June when the decision is finally in.

Maestro Pistolero
01-31-2010, 11:14 AM
“The Park Service prohibits all demonstrations in the interior of the memorial, in order to maintain ‘an atmosphere of calm, tranquillity, and reverence.'”

Excuse me, The Park Service legislates the rules AND enforces the laws? What would Jefferson have been more concerned about, an atmosphere of calm, tranquillity, and reverence, or the freedom of speech?

eje
01-31-2010, 4:00 PM
The DOJ opinion is here (www.justice.gov/olc/secondamendment2.pdf). Then SG Clement brought up the topic of machine guns in his brief here (http://www.gurapossessky.com/news/parker/documents/07-290tsacUnitedStates.pdf). Clement was worried about 922(o) which was not presented in Heller but Clement brought it up anyway.

-Gene

Had the US ever taken a position on machine gun possession before the Supreme Court prior to Heller?

hoffmang
01-31-2010, 4:54 PM
Had the US ever taken a position on machine gun possession before the Supreme Court prior to Heller?

The US government had never before that questioned whether 922(o) could meet a strict scrutiny test. Why they felt the need to raise it is much the issue. They could have let sleeping dogs lie.

-Gene

chunger
01-31-2010, 5:44 PM
It seems from reading through this post that Chris Cox of ILA is largely responsible for this debacle. What are the steps necessary for "normal" folks to make noise and initiate some repercussions to this action?

Where should letters be directed? Are there votes coming up internally that I need a certain membership status to participate in? Don't want to throw out my support for the NRA, but this makes me mad and I want to help make an effective stink about it.

wildhawker
01-31-2010, 6:01 PM
Life members and above have voting rights, and you can write/call/fax/email NRA HQ. Also, make sure to educate yourself and others as to the position of the various candidates for election to the Board.

eje
01-31-2010, 6:13 PM
It seems if the US had taken a position on machine gun possession before the Supreme court prior to Heller, it would make sense that Clement would raise the issue in the "Interest of the United States" section of Heller amicus brief. It he left it out it would have been a glaring omission I think.

Even if the US hadn't taken a position on machine gun possession before the Supreme court prior to Heller, it does not seem out of place there along with the various other federal firearms regulations (e.g., possession by felons). Wouldn't the specific DC handgun ban be only part of the US's interest in the outcome of Heller? The US amicus brief mentions an AG memo (another Ashcroft memo?) with a mandate "to vigorously defend the constitutionality, under the Second Amendment, of all existing federal firearms laws" and it seems reasonable to anticipate that the Heller might be implicated in future cases concerning those laws.

Is your complaint more about how the issue was raised than whether it was raised at all?

hoffmang
01-31-2010, 10:23 PM
Is your complaint more about how the issue was raised than whether it was raised at all?

A bit of both. Machine guns remain banned totally in DC seperate from 922(o). Even if the SG was compelled to "defend federal firearms laws" (and I'll ignore that none were directly at stake in Heller) he could have simply said that he urged the court to consider 922 should it articulate a standard of review. Whining about machine guns was intentionally and unnecessarily inflammatory. Further, asking for SCOTUS to reverse and remand because handgun bans weren't clearly unconstitutional was downright insulting to the RKBA.

-Gene

dantodd
01-31-2010, 10:37 PM
Is your complaint more about how the issue was raised than whether it was raised at all?

Raising Machine Guns in Heller is equivalent to trying to raise Incitement in Citizens United.

Manic Moran
02-01-2010, 12:17 AM
The whole MG thing seemed to be a sort of pre-emptive strike. Heller turned out in hindsight to be an extremely narrow ruling in which the court said little about standards of reivew, incorporation, or indeed anything not directly on point to the right of an individual to have a functional handgun in the home.

However, there was no way of knowing ahead of time just how widely the Justices might decide to opine on issues either on point or as a side-note of interest to provide guidance for future suits. (Much as the Nordyke amicus brief in McDonald now wants them to do). It seems to me that the Government wanted specifically to justify certain provisions of legislation just in case some judge decided to address them, even in passing.

NTM

hoffmang
02-01-2010, 12:50 AM
However, there was no way of knowing ahead of time just how widely the Justices might decide to opine on issues either on point or as a side-note of interest to provide guidance for future suits. (Much as the Nordyke amicus brief in McDonald now wants them to do). It seems to me that the Government wanted specifically to justify certain provisions of legislation just in case some judge decided to address them, even in passing.

That's fine and dandy I guess, but then why did Mr. Clement have to say this in the brief (http://www.gurapossessky.com/news/parker/documents/07-290tsacUnitedStates.pdf)?


To the extent necessary, further consideration of those questions should occur in the lower courts, which would be in the best position to determine, in light of this Court’s exposition of the proper standard of review, whether any fact-finding is necessary, and to place any appropriate limits on any evidentiary proceedings. Moreover, even if the existing record proved to be adequate, initial examination of those issues is typically better reserved for the lower courts. Cf., e.g., Merck KGaA v. IntegraLifescis. I, Ltd., 545 U.S. 193, 208 (2005).[FN10]

The Court should affirm that the Second Amendment, no less than other provisions of the Bill of Rights, secures an individual right, and should clarify that the right is subject to the more flexible standard of review described above. If the Court takes those foundational steps, the better course would be to remand.

10. If the court of appeals ultimately holds that some or all of the challenged D.C.-law provisions are unconstitutional under the correct standard of review, a remand will also give that court the opportunity to state more precisely the scope of its remedial holding. With respect to D.C. Code § 22-4504(a), which prohibits the carrying of a pistol without a license, the court of appeals stated that it was declaring the law invalid only as applied to carriage within the home and was not addressing the question “whether the District can ban the carrying of handguns in public, or in automobiles.” Pet. App. 54a. With respect to the other challenged provisions, however, the court did not make clear whether it was declaring the laws invalid on their face or only as applied to some particular set of circumstances.

Translation: Handgun bans may very well be constitutional! Either way you respondents should go spend another 3 years in the lower courts before the RKBA is respected nationwide. If Paul Clement had gotten his ask, we'd still be waiting to win Heller.

Thanks Paul.

-Gene

Mulay El Raisuli
02-01-2010, 4:57 AM
“The Park Service prohibits all demonstrations in the interior of the memorial, in order to maintain ‘an atmosphere of calm, tranquillity, and reverence.'”

Excuse me, The Park Service legislates the rules AND enforces the laws? What would Jefferson have been more concerned about, an atmosphere of calm, tranquillity, and reverence, or the freedom of speech?


I think the latter, which is why I think Gura took the case.


The Raisuli

D-Man
02-01-2010, 7:15 AM
As a minor point, it is my hope that SCOTUS will also make a statement in the majority opinion about the restrictive ammo laws as well. Part of being it being our 2A rights. Otherwise, the antis will keep going down that path like they have done here in CA.

timdps
02-01-2010, 9:04 AM
What, exactly, do you who are so worried about NFA want a machine gun for?

From Nordyke:

GOULD, Circuit Judge, concurring:
"We recently saw in the case of the ter-
rorist attack on Mumbai that terrorists may enter a country
covertly by ocean routes, landing in small craft and then
assembling to wreak havoc. That we have a lawfully armed
populace adds a measure of security for all of us and makes
it less likely that a band of terrorists could make headway in
an attack on any community before more professional forces
arrived.

Second, the right to bear arms is a protection against
the possibility that even our own government could degener-
ate into tyranny, and though this may seem unlikely, this pos-
sibility should be guarded against with individual diligence."


In either of these examples I can't imagine Gould suggesting that we take on either of these opponents with semi auto weapons against the "bad guys'" with full auto weapons.


Quote:
"All weapons are not “arms” within the meaning of
the Second Amendment, so, for example, no individual could
sensibly argue that the Second Amendment gives them a right
to have nuclear weapons or chemical weapons in their home
for self-defense."


I think its very interesting that he does NOT mention NFA weapons here (full auto and destructive devices). Sounds like he possibly thinks that an "individual could sensibly argue that the Second Amendment gives them a right to have" NFA "weapons in their home for self-defense."

tim

Manic Moran
02-01-2010, 9:45 AM
If Paul Clement had gotten his ask, we'd still be waiting to win Heller.

Doesn't strike me as being his problem, really. He was tasked to ensure that the Federal legislation remains in place. He was not tasked to take a position for or against Heller, though his position was not inconsistent with Heller.

NTM

wildhawker
02-01-2010, 10:32 AM
As a minor point, it is my hope that SCOTUS will also make a statement in the majority opinion about the restrictive ammo laws as well. Part of being it being our 2A rights. Otherwise, the antis will keep going down that path like they have done here in CA.

I'm exceedingly confident that SCOTUS will not veer outside of answering the questions presented in this case.

D-Man
02-01-2010, 11:07 AM
I'm exceedingly confident that SCOTUS will not veer outside of answering the questions presented in this case.

Justice Scalia has a way of adding an opinion to things. In fact I rather enjoy reading his findings. Just my suspicion that something *might* be added. Just a gut feeling is all. Maybe, ammo is part of self-defense or something to that effect in the role of answering the narrower question.

wildhawker
02-01-2010, 11:15 AM
Justice Scalia has a way of adding an opinion to things. In fact I rather enjoy reading his findings. Just my suspicion that something *might* be added. Just a gut feeling is all. Maybe, ammo is part of self-defense or something to that effect in the role of answering the narrower question.

Anything outside the core holding is necessarily dicta, and I'm not sure I'd prefer SCOTUS adding much color ("we like ammo, but no machine guns ever", etc. etc.). I'd like to see a strong, narrow ruling reversing the 7th circuit and incorporating 2A through P or I.

Maestro Pistolero
02-01-2010, 11:22 AM
Anything outside the core holding is necessarily dicta, true but there is plenty of dicta being quoted in the context of the present case.

wildhawker
02-01-2010, 11:46 AM
Which is great, when it goes your way...

Bugei
02-01-2010, 12:32 PM
What, exactly, do you who are so worried about NFA want a machine gun for?

It's the other side that asks that question, Bruce. What do I want a machine gun for? What do I want free speech for, given that some will use it in ways I don't like? What do I want the freedom of association for, given that some will use it to group themselves into criminal gangs? And so on and so on, forever and ever, amen.

I don't need to specify a reason why I want a right. I HAVEthe right. It existed before the Constitution. It needs no justification. And to be drawn into arguments about justifying our rights only gives floor time to people who'd be happy restricting any or all of the Bill of Rights, not just the Second Amendment.

dantodd
02-01-2010, 12:40 PM
Level of scrutiny is not an issue in this case and really shouldn't be addressed in the ruling (the law has already been ruled unconstitutional by federal standards.) The case is really only about incorporation. I suspect that we really DON'T want level of scrutiny defined here because of the makeup of the court. It is possible that we will get a vote of 4-5 with one side voting for P/I incorporation and the other voting for selective incorporation. If the majority votes for P/I and that includes the "liberal" side of the court what level of scrutiny do you think we would be saddled with?

It is better to keep this a narrow ruling on the right to keep and bear arms and worry more about a most inclusive definition of incorporation.

We can later get the court to set the level of scrutiny in cases such as Peña or possibly Sykes. It will take a little longer but it is the proper vehicle for such rulings.

Bugei
02-01-2010, 12:54 PM
I don't know about any of you - but I don't hire counsel when I know their personal views are in conflict with the point I am trying to sell the court.

Yes, sir! Especially when, in the only BIG Second Amendment case since the 1930's, the guy made his arguments and then lost.

This guy has two strikes.
1) He is not a Second Amendment believer (not the way most of us are).
2) He swung the bat in the big leagues a lot in the past, but on Second Amendment issues, he's batting zero.

I question NRA's intervention in this at all, frankly; they're joggling Gura's elbow. But the choice of Clement was just frankly a mistake.

dantodd
02-01-2010, 12:58 PM
I question NRA's intervention in this at all, frankly; they're joggling Gura's elbow. But the choice of Clement was just frankly a mistake.

I will agree with Chuck on this point; the NRA isn't "butting in." They filed a case at the same time which was determined to be "related" to McDonald and as such are considered a "party" to McDonald. That being said they are clearly riding on the coattails of Gura and Heller. I do believe the man who plowed the field should be given more deference than NRA is affording him.

bwiese
02-01-2010, 1:08 PM
I will agree with Chuck on this point; the NRA isn't "butting in." They filed a case at the same time which was determined to be "related" to McDonald and as such are considered a "party" to McDonald.

Absolutely.


The biggest issue not just court and organziational: we fight like hell here to stop people that move against us (i.e., trumpet gunrights stances but do backroom tradeoffs that create problems).

Just sayin'.... do we, for example, want Kathy Lynch to be on NRA exec team? Or do we want Paul Helmke representing ILA?

Our consistency here in CA in these stances should have been thought about.

dantodd
02-01-2010, 1:11 PM
Absolutely.


The biggest issue not just court and organziational: we fight like hell here to stop people that move against us (i.e., trumpet gunrights stances but do backroom tradeoffs that create problems).

Just sayin'.... do we, for example, want Kathy Lynch to be on NRA exec team? Or do we want Paul Helmke representing ILA?

Our consistency here in CA in these stances should have been thought about.

In no way did I mean to imply they were doing us or McDonald any favors in their brief, only that filing of said brief is not out of the ordinary or a affront in and of itself. Now the contents area different matter.

I truly hope that Clement never sees the inside of another NRA office nor a penny of our money. I also hope that whoever made the decision to hire him is looking for a new job next year. Cough...*Cox*...Cough

Maestro Pistolero
02-01-2010, 2:15 PM
Quote:
Originally Posted by Bruce
What, exactly, do you who are so worried about NFA want a machine gun for?
Why are you so worried about NFA that you would take it away? Am I to understand that those millions of us who can be trusted with a semi-auto AR15 are somehow not to be trusted with one that's select-fire?

Kharn
02-01-2010, 2:25 PM
The NFA may be ruled unconstitutional in time, but today is not the right day to fight for it. Build bridges crossing creeks before you try to build one from Cali to Hawaii.

Maestro Pistolero
02-01-2010, 2:58 PM
The NFA may be ruled unconstitutional in time, but today is not the right day to fight for it. Build bridges crossing creeks before you try to build one from Cali to Hawaii.

Of course. All in due time. But I like to try to shine the light of reason when I encounter attitudes like the one I quoted above.

yellowfin
02-01-2010, 3:19 PM
The way to get rid of the NFA will be to take it apart piece by piece. It's not going to be downed by a single big swing of the club.

7x57
02-01-2010, 3:35 PM
The way to get rid of the NFA will be to take it apart piece by piece. It's not going to be downed by a single big swing of the club.

And to remember we might only get one shot. And that we'll have to send Guido and Luigi around to "pacify" an entire country's worth of Gary Gorskis in order to not foreclose the option. :chris:

7x57

hoffmang
02-01-2010, 4:05 PM
Doesn't strike me as being his problem, really. He was tasked to ensure that the Federal legislation remains in place. He was not tasked to take a position for or against Heller, though his position was not inconsistent with Heller.

NTM

You mean the Federal laws not in question in the case? I don't know what your definition of enemy is, but this certainly isn't a friend's position.

-Gene

yellowfin
02-01-2010, 4:08 PM
We've got to beat them to it rather than (or at very least in addition to) beating them away from it.

7x57
02-01-2010, 4:41 PM
We've got to beat them to it rather than (or at very least in addition to) beating them away from it.

And what if doing it too soon means foreclosing the option forever, no matter who does it?

I believe there was a novel which gave this situation a name....

ETA: actually, I believe a better term would be Zugzwang (http://en.wikipedia.org/wiki/Zugzwang). I say we steal it from the chess-players, as we seem to be in Zugzwang an awful lot.

7x57

eje
02-01-2010, 5:07 PM
A bit of both. Machine guns remain banned totally in DC seperate from 922(o). Even if the SG was compelled to "defend federal firearms laws" (and I'll ignore that none were directly at stake in Heller) he could have simply said that he urged the court to consider 922 should it articulate a standard of review. Whining about machine guns was intentionally and unnecessarily inflammatory.

What if he had taken the position, without getting into standard of review, that machine guns are not "arms" protected by the second amendment (i.e., because they are not in common use)?

Gray Peterson
02-01-2010, 5:26 PM
What if he had taken the position, without getting into standard of review, that machine guns are not "arms" protected by the second amendment (i.e., because they are not in common use)?

This is what we call a "Post-Hoc" justification.

eje
02-01-2010, 7:05 PM
This is what we call a "Post-Hoc" justification.

How do you mean? (I understand what a post-hoc justification is, just want to be clear on the point you're making.)

hoffmang
02-01-2010, 7:37 PM
What if he had taken the position, without getting into standard of review, that machine guns are not "arms" protected by the second amendment (i.e., because they are not in common use)?

That would have been superior to the arguments he did make. Please don't confuse my point. My sincere hope was that our side would get through Heller without ever touching on machine guns. However, Paul Clement decided to bring them up and once they're brought up, the only way to win is to put them outside the scope and leave them for a much later day.

Clement did 4 things I don't like.

1. Interjected the US Government - I think it was vanity, but that's purely my speculation. I'm only bemused by this one.
2. Brought up machine guns. This helps create a strong right to arms not at all.
3. Argued against strict scrutiny. Unforgivable.
4. Argued for a reverse and remand. Unforgivable.

-Gene

loather
02-01-2010, 7:41 PM
post hoc, ergo propter hoc. -- loosely translated from Latin, "after this, therefore because of this." It's a common logical fallacy. Basically, the government would be arguing the point that they're not protected under the second amendment because they're not in common use. However, that's a specious argument at best, as many firearms with fully-automatic capabilities have an analogue with semi-automatic capabilities. The guns themselves, yet with slightly different capabilities, *are* in widespread use. Besides -- the real argument -- they're not in common use because they've been banned for so long. Show me a world where they're legal again, and I assure you I'll show you one where they'll be in common use the next day. :)

OleCuss
02-01-2010, 7:58 PM
I think I may be way off base here because I've heard something about using the usage patterns of 1868. . .

But might I point out that the Constitution and the Bill of Rights were written in the context of the American Revolution? At the time the rebels were armed with weaponry equivalent to what was available to the British soldiers. What's more, the militia was/were in possession of cannon and were accumulating gunpowder and the like (which is why the British came to Concord IIRC).

IMHO, the Constitution and the Bill of Rights (including the 2nd Amendment) were written in a context in which the citizenry was armed with state of the art weaponry every bit as lethal as the best of the rest of the world. Also, remember that at least some of the founders didn't want a standing army at all but wanted the militiae to handle defensive duties against all foes.

I'd contend that in the context of an active militia (in the sense in which it existed at the time the Constitution was adopted), all weaponry should be available to the citizenry - or at least all weaponry which would serve to defend the U.S. territory.

As it is, we don't have that militia so the minimalist approach is likely necessary and we may have to live with non-crew-served weaponry for quite some time. . .

Now I'm hoping some of you Constitutional scholars will correct me on the above. . .

(BTW, I don't actually want anything beyond semi-auto. I think full auto is usually a waste of ammo - didn't particularly like firing full auto).

loather
02-01-2010, 8:09 PM
(BTW, I don't actually want anything beyond semi-auto. I think full auto is usually a waste of ammo - didn't particularly like firing full auto).

It's been said before that fully-automatic fire is a great way to do little more than convert money to noise :)

That being said, while I'm of the same opinion -- it's generally a waste of ammunition -- if and when this becomes legal again, I'll convert (or build) an AR-15 to select-fire on sheer principle alone. Because the government doesn't want me to have it is good enough reason for me.

Make no mistake though, I have absolutely no desire to build a fully-automatic firearm prior to the time it becomes legal again. I'm content to stay within the law (OK -- So I'm resentful, but for reasons removed from machineguns foremost).

7x57
02-01-2010, 9:11 PM
if and when this becomes legal again, I'll convert (or build) an AR-15 to select-fire on sheer principle alone. Because the government doesn't want me to have it is good enough reason for me.


You and several million other guys. One thing that doesn't usually get remarked on is that FA doesn't seem to have been particularly popular back when it was more available, for all the practical reasons mentioned. But precisely on the same pattern as alcohol and prohibition, it would be soaringly popular now *BECAUSE OF THE BAN*.

One thing to savor is that some of them must know that by going for the ban but failing to kill the culture, they now have a tiger by the tail. If they lose their hold (by the registry re-opening, most likely), they will be responsible for selling more FA weapons than anyone else. I don't mean to sound triumphalist about it, because on that particular subject they still have a firm grasp. But I do smile with the thought that some of them must know the kind of demand they've caused to seethe just under the surface.

I do hope it's a rich source of nightmares. :43:

7x57

eje
02-01-2010, 9:37 PM
post hoc, ergo propter hoc. -- loosely translated from Latin, "after this, therefore because of this." It's a common logical fallacy. Basically, the government would be arguing the point that they're not protected under the second amendment because they're not in common use. However, that's a specious argument at best, as many firearms with fully-automatic capabilities have an analogue with semi-automatic capabilities. The guns themselves, yet with slightly different capabilities, *are* in widespread use. Besides -- the real argument -- they're not in common use because they've been banned for so long. Show me a world where they're legal again, and I assure you I'll show you one where they'll be in common use the next day. :)

I mention it because Gura made the "not in common use" argument in Heller, and it's not clear to me that his hand was forced by Clement bringing up machine guns. The central argument against the DC handgun ban was that handguns are arms in common use and therefore protected. Once you argue that, can you avoid the corollary argument that arms not in common use are not protected?

Gura also emphatically argued that the government can ban arms that are "not appropriate for common civilian use" - citing machine guns as the primary example and also rocket launchers - which to me undercuts the "post hoc justification" critique of the hypothetical I was asking about. If machine guns are not in common use because they have been banned for so long, does it really make any difference when there is "no question" that the government can ban arms that are not appropriate for common civilian use, such as machine guns and rocket launchers?

eje
02-01-2010, 10:15 PM
My sincere hope was that our side would get through Heller without ever touching on machine guns.

Would that have been possible given the inevitable inquiry into the significance of the prefatory clause?

loather
02-01-2010, 10:34 PM
I mention it because Gura made the "not in common use" argument in Heller, and it's not clear to me that his hand was forced by Clement bringing up machine guns. The central argument against the DC handgun ban was that handguns are arms in common use and therefore protected. Once you argue that, can you avoid the corollary argument that arms not in common use are not protected?

Gura also emphatically argued that the government can ban arms that are "not appropriate for common civilian use" - citing machine guns as the primary example and also rocket launchers - which to me undercuts the "post hoc justification" critique of the hypothetical I was asking about. If machine guns are not in common use because they have been banned for so long, does it really make any difference when there is "no question" that the government can ban arms that are not appropriate for common civilian use, such as machine guns and rocket launchers?

This I think falls under the theory of law regarding this specific case. This, in that a particular lawyer is a conduit for arguing his/her client's case. Thus, what the lawyer argues in this case may not be what he argues in the next case. The plaintiffs, the situations, and the laws involved go a very long way to allowing latitude in arguments.

Thus, even though Gura made those statements in the previous case as secondary/supporting arguments, it's certainly conceiveable that he could be arguing a case at a later date with a primary argument which is in direct contradiction to his previous statements as long as he's doing so in the best interests of his clients.

The legal system is a strange beast. It's difficult to wrap your head around. I'm fairly certain my statements above are correct, but please someone correct me if i'm wrong!

hoffmang
02-01-2010, 10:37 PM
I mention it because Gura made the "not in common use" argument in Heller, and it's not clear to me that his hand was forced by Clement bringing up machine guns.

Which part wasn't clear to you. The parts in Clement's brief or the parts in Clement's oral arguments?

Clement brought it up - twice. Why do you feel the need to defend Paul Clement exactly?

-Gene

Manic Moran
02-01-2010, 11:44 PM
You mean the Federal laws not in question in the case? I don't know what your definition of enemy is, but this certainly isn't a friend's position.

-Gene

I'm Irish. The nation has a long history of not being anyone's enemy, but that doesn't mean to say that they have to take the position of friendship to anyone. That's neutrality: Look after your own position, let other people fight their own battles. The government's position was not in line with DC either, you'll note, disagreeing on the fundamental question of individual/collective.

NTM

hoffmang
02-02-2010, 12:00 AM
The government's position was not in line with DC either, you'll note, disagreeing on the fundamental question of individual/collective.

Actually it was deferential to DC's position. "The handgun ban might be legal" said Paul Clement at the end of his brief.

-Gene

eje
02-02-2010, 9:52 AM
Why do you feel the need to defend Paul Clement exactly?

Maybe because of our shared anti-gun leanings? Actually I'm just trying to evaluate the criticisms against him. The US staked a controversial and well-publicized "individual right" position following the 5th Circuit Emerson opinion (including its briefs opposing cert in Emerson and Haney, a machine gun case), and in a pivotal second amendment case the Supreme Court was going to settle once and for all the individual vs. collective right debate. Do you really think that, but for Clement's vanity, the US would just sit that one out?

hoffmang
02-03-2010, 12:52 AM
Do you really think that, but for Clement's vanity, the US would just sit that one out?

Yes. No federal law was in question. DC's handgun ban could pass no level of scrutiny under any right, yet Paul Clement said it might be constitutional...

-Gene

Lex Arma
02-04-2010, 8:55 AM
So, in other words, the "Lone Wolf" is really the stupidest one out of the entire wolf pack??? (J/K)

Not stupid, just inefficient.