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View Full Version : NRA Shoots Itself in the Foot (by Ilya Shapiro)


GrizzlyGuy
02-09-2010, 3:58 PM
From Ilya Shapiro at Cato Institute yesterday (http://www.cato-at-liberty.org/2010/02/08/nra-shoots-itself-in-the-foot/):

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.)

elSquid
02-09-2010, 4:04 PM
Linky to Washington Post article:

http://www.washingtonpost.com/wp-dyn/content/article/2010/02/07/AR2010020702401.html

-- Michael

boxbro
02-09-2010, 4:08 PM
Can someone translate that into english for us slow folks ?

Vtec44
02-09-2010, 4:20 PM
Can someone translate that into english for us slow folks ?

NRA wasn't involved with the process and now they just want some credit for someone else's work. THey're unprepared for the case.

GrizzlyGuy
02-09-2010, 4:21 PM
Can someone translate that into english for us slow folks ?

It's a follow-up to what he said earlier here: NRA Cares More about NRA Than Gun Rights, Liberty, Professional Courtesy (http://www.cato-at-liberty.org/2010/01/26/nra-cares-more-about-nra-than-gun-rights-liberty-professional-courtesy/)

See also this older thread: NRA moves to divide McDonald argument time (http://www.calguns.net/calgunforum/showthread.php?t=256399)

Ilya Shapiro and Josh Blackman co-authored this article (http://www.calguns.net/calgunforum/showthread.php?t=249216).

Gray Peterson
02-09-2010, 4:22 PM
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!

That's gotta hurt!

N6ATF
02-09-2010, 4:26 PM
Like using airsoft to fight zombies. EPIC FAIL.

JeepsRcool
02-09-2010, 4:27 PM
Wow, they butt in and THIS is the best they could come up with....:nuts:

Gray Peterson
02-09-2010, 4:30 PM
Wow, they butt in and THIS is the best they could come up with....:nuts:

Gotta be able to keep adult stores from opening up, I guess.

BigDogatPlay
02-09-2010, 4:32 PM
Reading through the briefs and the commentary linked in the OP, it makes one wonder just what the heck is going on between the ears of some walking the hallowed halls at NRAHQ.

Not that we'll ever know but if this really is about someone's agenda, rather than solely about 2A and the restoration of 14A to it's rightful place of prominence, then I am going to really want to kick Chris Cox in the nutsack if I ever run into him.

Creeping Incrementalism
02-09-2010, 7:06 PM
What the NRA said in its First Freedom mag about this is that Gura is arguing one clause of the 14th amendment, and the NRA wants to argue the other clause in addition to give another avenue to the Supremes if they don't like Gura's argument all that much.

As for which cases to cite, I do not know which are the best, but I sort of doubt it is as obvious as the Cato writer thinks.

dantodd
02-09-2010, 7:10 PM
What the NRA said in its First Freedom mag about this is that Gura is arguing one clause of the 14th amendment, and the NRA wants to argue the other clause in addition to give another avenue to the Supremes if they don't like Gura's argument all that much.

As for which cases to cite, I do not know which are the best, but I sort of doubt it is as obvious as the Cato writer thinks.

Sadly it is. Nordyke, for example is a case in the 9th circuit which incorporated the 2nd amendment on the same grounds the NRA is asking for. It is a phenomenally well written and lucid opinion which is clear to any thinking person and doesn't require a law degree to understand.

wildhawker
02-09-2010, 7:19 PM
Gura more than adequately makes a case for DP; more time and attention was given PorI because of the complexity and historic nature of the possible outcome. DP needed about 3 pages, and Gura gave them more (and better) than NRA.

This is as shallow and foolish as it appears, and we can thank Chris Cox and his gone-stupid (and rogue) NRA-ILA for this bonehead move (and subsequent lacking brief).

What the NRA said in its First Freedom mag about this is that Gura is arguing one clause of the 14th amendment, and the NRA wants to argue the other clause in addition to give another avenue to the Supremes if they don't like Gura's argument all that much.

As for which cases to cite, I do not know which are the best, but I sort of doubt it is as obvious as the Cato writer thinks.

dantodd
02-09-2010, 7:26 PM
The cynic in me thinks that maybe some at the NRA thought the court was more positively disposed toward DP incorporation; and decided that trying to split time and argue specifically for that would give them the opportunity to look like they a hero. Of course, it is also possible, as has been discussed before, that the less liberty minded at NRA wanted to try and short circuit PorI because it might expand certain other unenumerated rights.

Frankly Gura adequately (in my non-lawyer mind) covered Due Process if the SCOTUS chooses to selectively incorporate and leave slaughter houses alone I wouldn't see that as NRA pulling his bacon out of the fire. However; I might see it as a successful trashing of P/I by NRA.

pullnshoot25
02-09-2010, 7:47 PM
Gosh dammt...

bigstick61
02-09-2010, 9:33 PM
The cynic in me thinks that maybe some at the NRA thought the court was more positively disposed toward DP incorporation; and decided that trying to split time and argue specifically for that would give them the opportunity to look like they a hero. Of course, it is also possible, as has been discussed before, that the less liberty minded at NRA wanted to try and short circuit PorI because it might expand certain other unenumerated rights.

Frankly Gura adequately (in my non-lawyer mind) covered Due Process if the SCOTUS chooses to selectively incorporate and leave slaughter houses alone I wouldn't see that as NRA pulling his bacon out of the fire. However; I might see it as a successful trashing of P/I by NRA.

While the NRA looks like it made a stupid mistake and Gura seems to be covering all bases, personally, I don't think P&I makes much sense to use to incorporate rights. DP covers the rights of persons, the former covers the privileges and immunities of citizens. The two are quite different animals. Privileges are NOT the same thing as rights. With the 14th it actually looks like the authors were still using a natural law conception of rights, which would make the idea of them being covered by a clause covering privileges all the more absurd.

dantodd
02-09-2010, 10:05 PM
While the NRA looks like it made a stupid mistake and Gura seems to be covering all bases, personally, I don't think P&I makes much sense to use to incorporate rights. DP covers the rights of persons, the former covers the privileges and immunities of citizens. The two are quite different animals. Privileges are NOT the same thing as rights. With the 14th it actually looks like the authors were still using a natural law conception of rights, which would make the idea of them being covered by a clause covering privileges all the more absurd.

Are you familiar with where the term "Privileges or Immunities" comes from? It comes from Dred Scott. Surely there can be no more "natural law" than that covered in Scott.

hoffmang
02-09-2010, 11:04 PM
Claiming that they needed to focus on due process incorporation and then not, well, focusing on due process incorporation is asinine.

Just remember that NRA-ILA was the owner of this mis-step and the rest of the NRA should not be tarred with the unforced errors.

-Gene

Shotgun Man
02-09-2010, 11:11 PM
Claiming that they needed to focus on due process incorporation and then not, well, focusing on due process incorporation is asinine.

Just remember that NRA-ILA was the owner of this mis-step and the rest of the NRA should not be tarred with the unforced errors.

-Gene

Your average gunner cannot nor should be asked to differentiate between NRA and NRA-ILA.

I believe the "LA" in ILA stands for Legislative Action. That's the only reason I joined the NRA to begin with.

hoffmang
02-09-2010, 11:46 PM
Your average gunner cannot nor should be asked to differentiate between NRA and NRA-ILA.

I think it is becoming increasingly clear how important it is that the members of the membership organization that is NRA understand the structure and decision makers of their (our/my) organization.

-Gene

bulgron
02-09-2010, 11:51 PM
Claiming that they needed to focus on due process incorporation and then not, well, focusing on due process incorporation is asinine.


Do you think they've done any real damage?

N6ATF
02-09-2010, 11:51 PM
Claiming that they needed to focus on due process incorporation and then not, well, focusing on due process incorporation is asinine.
-Gene

Has SCOTUS ever given back the split time to plaintiff's counsel when incompetence is briefed?

"Thank you (for nothing), that'll be all."

Al Norris
02-10-2010, 5:54 AM
personally, I don't think P&I makes much sense to use to incorporate rights. DP covers the rights of persons, the former covers the privileges and immunities of citizens.

You should acquaint yourself with Thomas Hobbes (1588-1679), John Locke (1632-1704), Francis Hutcheson (1694-1746), David Hume (1711-1776), Immanuel Kant (1724-1804), among some few.

These were the men upon which western philosophy, and American idealism itself, were founded upon. The entire concept of Privileges (political rights afforded to free men, within the confines of a particular society) and Immunities (natural rights afforded to humans by the mere fact of being born) were thoroughly discussed by these great thinkers of the Scottish Enlightenment.

Locke, perhaps more than others; Without which our concept of republican government would be totally different. Jefferson lifted the Declaration of Independence from Lockes writings.

The phrase, "Privileges and Immunities," expressed the idea of rights, both natural and political that all free men were entitled to. The idea was expressed in the old Articles of Confederation, and within the original Constitution.

What was left out, was that national citizenship took precedence over state citizenship. After all, at the beginning, States were still semi-sovereign. It was also believed, at the founding, that the respect for individual rights would be protected more so within the States than within some central government. Sadly, the founders were wrong about that.

The aftermath of the civil war proved this. States (both North and South) ran roughshod over the rights of the freed slaves and any who tried to help those newly freedmen.

The 14th amendment was supposed to have changed this. It declared that US Citizenship had clear superiority over State Citizenship. That the P or I of US Citizens could not be abridged by the States. That the Federal Government now had the proper authority to enforce these rights. This changed the manner in which Federalism acted and was viewed.

Corfield v. Coryell and Dred Scott were the prime examples of what the P or I clause meant.

The "old guard" in Slaughter-House, couldn't abide by the amendment and read out, the power and purpose of the P or I clause. If that wasn't bad enough, we got Cruikshank. That case relied upon the majorities opinion in Slaughter-House that eviscerated the P or I clause of the 14th. To say that these cases were correctly decided, is to sanction the Colfax Massacre and the horrors that followed.

It is because of the opinion in Cruikshank, that the Sullivan Act was enacted in NYC and held to be constitutional. Gun control laws can all be traced to those two opinions.

And you wonder why Gura has chosen this approach over Selective Due Process and Equal Protection? I won't even get into the fact that SDP has no constitutional backing. It was and is a judicial remedy made from thin air, incorporating some rights (but not others), as against the States, without ever really dealing with the P or I clause and Slaughter-House.

The fact is, that by reinvigorating the P or I clause of the 14th, it will enable future gun cases a much easier approach to being decided correctly. It strengthens the 2nd amendment and makes strict judicial scrutiny more likely than a lessor form of scrutiny. Facts are, that a Bill of Rights, incorporated via the P or I clause, are far more protected than under SDP.

Considering that 2A incorporation is almost guaranteed, I think that's a risk worth taking.

Doug L
02-10-2010, 7:15 AM
You should acquaint yourself with Thomas Hobbes (1588-1679), John Locke (1632-1704), Francis Hutcheson (1694-1746), David Hume (1711-1776), Immanuel Kant (1724-1804), among some few.

These were the men upon which western philosophy, and American idealism itself, were founded upon...

Very nice overview.

Are you a philosopher?, historian?, legal scholar?

Kharn
02-10-2010, 7:30 AM
While the NRA looks like it made a stupid mistake and Gura seems to be covering all bases, personally, I don't think P&I makes much sense to use to incorporate rights. DP covers the rights of persons, the former covers the privileges and immunities of citizens. The two are quite different animals. Privileges are NOT the same thing as rights. With the 14th it actually looks like the authors were still using a natural law conception of rights, which would make the idea of them being covered by a clause covering privileges all the more absurd.In the 1860s, privileges and immunities were commonly understood to mean what we consider rights today.

M. D. Van Norman
02-10-2010, 8:44 AM
At first, I thought that the NRA was simply playing its MSM-designated “evil” role, but this is starting to smell like bad politics from my libertarian perspective. Of course, it’s not bad politics for those in the RKBA community who want to keep the damned homos in their place, etc.

jdberger
02-10-2010, 9:20 AM
I'm beginning to lose my patience with ILA and their self-congratulatory press releases.....

wildhawker
02-10-2010, 9:22 AM
jdberger, I am equally frustrated, especially after the "NRA-ILA, We Saved the Day" email following the motion announcement.

jdberger
02-10-2010, 9:24 AM
How 'bout we go to DC and do something about it? ;)

MudCamper
02-10-2010, 9:31 AM
Just remember that NRA-ILA was the owner of this mis-step and the rest of the NRA should not be tarred with the unforced errors.

Why not? Does the NRA have no control or influence over the NRA-ILA? If not, then maybe they need get the NRA-ILA to change it's name. And if they do have some control or influence over ILA, then they are responsible. The management of any org is responsible for the actions of it's employees.

berto
02-10-2010, 9:39 AM
Just remember that NRA-ILA was the owner of this mis-step and the rest of the NRA should not be tarred with the unforced errors.

-Gene

Who bears ultimate responsibility for the ILA stumbles? Cox or his boss/es?

If NRA-ILA is playing politics over non-2A issues/concerns they've overstepped their bounds and need to be reined in. I support NRA for its 2A advocacy. Mucking up the works over non-2A issues is unacceptable.

wildhawker
02-10-2010, 10:35 AM
Josh, that sounds like a good idea - why didn't you mention something sooner? :D

CABilly
02-10-2010, 10:54 AM
You should acquaint yourself with Thomas Hobbes (1588-1679), John Locke (1632-1704), Francis Hutcheson (1694-1746), David Hume (1711-1776), Immanuel Kant (1724-1804), among some few.

These were the men upon which western philosophy, and American idealism itself, were founded upon. The entire concept of Privileges (political rights afforded to free men, within the confines of a particular society) and Immunities (natural rights afforded to humans by the mere fact of being born) were thoroughly discussed by these great thinkers of the Scottish Enlightenment.

Locke, perhaps more than others; Without which our concept of republican government would be totally different. Jefferson lifted the Declaration of Independence from Lockes writings.

The phrase, "Privileges and Immunities," expressed the idea of rights, both natural and political that all free men were entitled to. The idea was expressed in the old Articles of Confederation, and within the original Constitution.

What was left out, was that national citizenship took precedence over state citizenship. After all, at the beginning, States were still semi-sovereign. It was also believed, at the founding, that the respect for individual rights would be protected more so within the States than within some central government. Sadly, the founders were wrong about that.

The aftermath of the civil war proved this. States (both North and South) ran roughshod over the rights of the freed slaves and any who tried to help those newly freedmen.

The 14th amendment was supposed to have changed this. It declared that US Citizenship had clear superiority over State Citizenship. That the P or I of US Citizens could not be abridged by the States. That the Federal Government now had the proper authority to enforce these rights. This changed the manner in which Federalism acted and was viewed.

Corfield v. Coryell and Dred Scott were the prime examples of what the P or I clause meant.

The "old guard" in Slaughter-House, couldn't abide by the amendment and read out, the power and purpose of the P or I clause. If that wasn't bad enough, we got Cruikshank. That case relied upon the majorities opinion in Slaughter-House that eviscerated the P or I clause of the 14th. To say that these cases were correctly decided, is to sanction the Colfax Massacre and the horrors that followed.

It is because of the opinion in Cruikshank, that the Sullivan Act was enacted in NYC and held to be constitutional. Gun control laws can all be traced to those two opinions.

And you wonder why Gura has chosen this approach over Selective Due Process and Equal Protection? I won't even get into the fact that SDP has no constitutional backing. It was and is a judicial remedy made from thin air, incorporating some rights (but not others), as against the States, without ever really dealing with the P or I clause and Slaughter-House.

The fact is, that by reinvigorating the P or I clause of the 14th, it will enable future gun cases a much easier approach to being decided correctly. It strengthens the 2nd amendment and makes strict judicial scrutiny more likely than a lessor form of scrutiny. Facts are, that a Bill of Rights, incorporated via the P or I clause, are far more protected than under SDP.

Considering that 2A incorporation is almost guaranteed, I think that's a risk worth taking.

What an excellent post.

BigDogatPlay
02-10-2010, 1:03 PM
I think it is becoming increasingly clear how important it is that the members of the membership organization that is NRA understand the structure and decision makers of their (our/my) organization.

-Gene

Agree 100%. But as one voting member just how is it that I get it across to Wayne LaPierre that he needs to either get Chris Cox back on the reservation and to come in with the team for the big win or show him the door?

Wayne, after all, ran ILA before he was EVP. He appointed, Chris Cox to head ILA and Cox serves solely at Wayne's pleasure. Surely the boneheaded plays we're seeing can't have been called without Wayne knowing about then, could they?

Do we need to stage another revolt at an annual meeting to get their attention or what?

6172crew
02-10-2010, 2:39 PM
Agree 100%. But as one voting member just how is it that I get it across to Wayne LaPierre that he needs to either get Chris Cox back on the reservation and to come in with the team for the big win or show him the door?

Wayne, after all, ran ILA before he was EVP. He appointed, Chris Cox to head ILA and Cox serves solely at Wayne's pleasure. Surely the boneheaded plays we're seeing can't have been called without Wayne knowing about then, could they?

Do we need to stage another revolt at an annual meeting to get their attention or what?
:D ...Just sayin';)

dantodd
02-10-2010, 2:46 PM
Agree 100%. But as one voting member just how is it that I get it across to Wayne LaPierre that he needs to either get Chris Cox back on the reservation and to come in with the team for the big win or show him the door?

If the events occurred is has been stated on this board it would seem that what Chris Cox did is beyond a "get back on the reservation" conversation. If the NRA board is really opposed to split argument, having a one time opponent arguing their case, tossing P/I out the window then this action was beyond repair.

We will know by their actions what their real beliefs are.

lairdb
02-10-2010, 3:50 PM
Your average gunner cannot nor should be asked to differentiate between NRA and NRA-ILA.
I think it is becoming increasingly clear how important it is that the members of the membership organization that is NRA understand the structure and decision makers of their (our/my) organization.

-Gene

I refused for a long time to join NRA because of some of the policies of NRA; including the years since I became an NRA Instructor. Every year I sent NRA-ILA a donation of at least the dues I would have paid NRA.

Pretty disappointed in NRA-ILA at this point as well....

Al Norris
02-10-2010, 5:57 PM
Very nice overview.
Thank you, Doug (you also, CABilly). It's hard to be brief on such a subject, and still get the point across.
Are you a philosopher?, historian?, legal scholar?
Nope. None of the above. I've just never stopped reading and thinking. :D

hoffmang
02-10-2010, 8:13 PM
Thank you, Doug (you also, CABilly). It's hard to be brief on such a subject, and still get the point across.

Seriously. That was one of the single best posts I've seen on this forum in months and maybe years.

-Gene