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krazz
02-08-2010, 4:21 PM
Why wouldn't the NRA mention Nordyke?



NRA Shoots Itself in the Foot

Posted by Ilya Shapiro

I previously blogged about the NRA’s misbegotten motion, which the Supreme Court granted, to carve 10 minutes of oral argument time away from the petitioners in McDonald v. Chicago. Essentially, there was no discernable reason for the motion other than to ensure that the NRA could claim some credit for the eventual victory, and thus boost its fundraising.

Well, having argued that petitioners’ counsel Alan Gura insufficiently covered the argument that the Second Amendment should be “incorporated” against the states via the Fourteenth Amendment’s Due Process Clause, the NRA has now filed a brief that fails even to reference the four biggest cases regarding incorporation and substantive due process. That is, the NRA reply brief contains no mention of Washington v. Glucksberg (1997), Benton v. Maryland (1969), Duncan v. Louisiana (1968), or Palko v. Connecticut (1937). (The NRA did cite those cases in its opening brief.) What is more, it also lacks a discussion of Judge O’Scannlain’s magisterial Ninth Circuit opinion in Nordyke v. King (2009), which the Supreme Court might as well cut and paste regardless of which constitutional provision it uses to extend the right to keep and bear arms to the states!

I should add that the petitioners’ reply brief does cite all of those aforementioned cases (as well as the “Keeping Pandora’s Box Sealed” law review article I co-authored with Josh Blackman). I leave it to the reader to determine whether it is Alan Gura or the NRA who is better positioned to argue substantive due process — or any other part of the McDonald case.

For more on the rift between the McDonald petitioners and the NRA, see this story in today’s Washington Post (in which I’m quoted, full disclosure, after a lengthy interview I gave the reporter last week).

(Full disclosure again: Alan Gura is a friend of mine and of Cato, and I suppose I should also say that I’ve participated in NRA-sponsored events in the past.)

Here's the link:

http://www.cato-at-liberty.org/2010/02/08/nra-shoots-itself-in-the-foot/

Here's the brief:

http://www.chicagoguncase.com/wp-content/uploads/2010/01/08-1521rb_nra.pdf

kf6tac
02-08-2010, 4:26 PM
Possibly because that opinion was de-published by the Ninth Circuit when it agreed to hear Nordyke en banc?

ke6guj
02-08-2010, 4:36 PM
Possibly because that opinion was de-published by the Ninth Circuit when it agreed to hear Nordyke en banc?I'd assume this would be the reason.

krazz
02-08-2010, 5:43 PM
Possibly because that opinion was de-published by the Ninth Circuit when it agreed to hear Nordyke en banc?

What does this mean?

wildhawker
02-08-2010, 5:45 PM
What does this mean?

The panel opinion in Nordyke was pulled pending en banc rehearing and is pending until McDonald is published. It will re-start shortly thereafter.

kf6tac
02-08-2010, 5:45 PM
What does this mean?

It means that the opinion more or less is deemed not to exist. It is no longer precedential, and its value as a persuasive citation probably drops considerably as well. There may well even be Supreme Court rules (or Ninth Circuit rules) that prohibit it from being cited all together.

Kharn
02-08-2010, 6:56 PM
Why waste time rehashing an argument they used in their opening brief? SC briefs are word-limited.

eric2063
02-08-2010, 8:11 PM
If the opinion has been pulled pending an en banc and not able to be used in another case brief, wouldn’t Shapiro know this? Is she stirring the pot for the anti gun lobby? Or is she just a bad attorney?

hoffmang
02-08-2010, 10:05 PM
Possibly because that opinion was de-published by the Ninth Circuit when it agreed to hear Nordyke en banc?

Nope. Just because it isn't cite-able as binding here doesn't mean it can't be cited as persuasive precedent.

Basically after squawking about Gura not defending "Due Process" incorporation enough, NRA left out the modern "Due Process" cases in their reply...

-Gene

eric2063
02-08-2010, 10:12 PM
So what is the down side? Or is this just the normal posturing before the case is heard by Supreme Court? I am a little tweaked at the NRA for poking their nose in, but if they tube this case I am gonna become a member of the he-man NRA haters club forthwith!!

hoffmang
02-08-2010, 10:23 PM
So what is the down side? Or is this just the normal posturing before the case is heard by Supreme Court? I am a little tweaked at the NRA for poking their nose in, but if they tube this case I am gonna become a member of the he-man NRA haters club forthwith!!

Other than bordering on unethical behavior, NRA-ILA (not all of NRA made this call) it's just ill advised and kind of inept.

-Gene

N6ATF
02-09-2010, 12:44 PM
Basically after squawking about Gura not defending "Due Process" incorporation enough, NRA left out the modern "Due Process" cases in their reply...

http://pix.motivatedphotos.com/2009/5/22/633786217685330025-epicfail.jpg

7x57
02-09-2010, 1:25 PM
http://pix.motivatedphotos.com/2009/5/22/633786217685330025-epicfail.jpg

Good to know. But do they have an effect?

<ducks and runs>

7x57

wildhawker
02-09-2010, 1:35 PM
Good to know. But do they have an effect?

<ducks and runs>

7x57

:rofl2: :rofl2:

I'm 2 seconds away from Godwin-ing this thread. :D

N6ATF
02-09-2010, 5:28 PM
/cranks the spelling raid siren, prepares for 5 pages of female dog-ing