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View Full Version : NRA makes its case on McDonald


BobB35
04-23-2010, 12:29 PM
I read this article in America's 1st freedom magazine from the NRA. Thought I would link to it for anyone interested.

http://www.nrapublications.org/a1f/NRAcase.html

Looks like the NRA is trying to explain to a POed membership about Clement and stepping on Gura's case.

Don't think this is a dupe...couldn't find it with the search function.

Barabas
04-23-2010, 12:35 PM
They really tried to drive home the idea that Gura is an amateur. That's disappointing.

BigDogatPlay
04-23-2010, 12:48 PM
Seems to be an orchestrated campaign... Wayne LaPierre's column this month (http://www.nrapublications.org/SG/index.asp) seemed to place pretty much all the accolades for winning Heller onto the NRA's shoulders.

First and foremost, he can thank the NRA for our 35 years supporting the superb scholarship and practical legal experience that led to the U.S. Supreme Court's June 2008 definitive ruling declaring the Second Amendment to protect an individual constitutional right. That case struck down the District of Columbia's ban on handguns and the ban on any armed self-defense in the home. It wouldn't have happened without the NRA. That goes for the case pending before the same court challenging Chicago's ban and demanding that the Right to Keep and Bear Arms apply to state and local governments.

Nothing at that level of the organization gets done in a vacuum. Clearly the leadership has serious wood for Gura and isn't willing to give much more than a few crumbs worth of credit for carrying a case, Heller, that the NRA walked away from in the lower courts and tried somewhat actively to kill.

This kind of back room knife fighting over credit is not going to help our side. The NRA leadership has a bully pulpit and can shout from the rooftops that "we did it"... while Gura labors on in the trenches largely in anonymity to the larger gun owning public.

Barabas
04-23-2010, 1:18 PM
I'm going to keep my fingers crossed for P&I incorporation, but even if it's decided on Due Process, I'm going to give the win to Alan. He's got brass balls bigger than anyone in the NRA.

OleCuss
04-23-2010, 1:59 PM
I didn't think the coverage was all that horribly unbalanced in some ways. Gura was given credit for the case and it really does appear that Due Process will be the method of incorporation. Overall I enjoyed the read as far as it went.

Of course, it totally ignored the written arguments and any Due Process Gura put into that. It also ignored the fact that after the NRA was given time for pleading expressly because the NRA wanted to cover Due Process - that it essentially meant that the NRA and SCOTUS had divided the arguments so that Gura was supposed to make the "P or I" argument and the NRA was to cover the "Due Process" argument. The fact that Gura then did not concentrate on Due Process should not be considered a mistake - it was programmed for him.

FWIW from a non-lawyer.

ke6guj
04-23-2010, 2:14 PM
I

Of course, it totally ignored the written arguments and any Due Process Gura put into that. It also ignored the fact that after the NRA was given time for pleading expressly because the NRA wanted to cover Due Process - that it essentially meant that the NRA and SCOTUS had divided the arguments so that Gura was supposed to make the "P or I" argument and the NRA was to cover the "Due Process" argument. The fact that Gura then did not concentrate on Due Process should not be considered a mistake - it was programmed for him.
this.

You don't make an agreement for Gura to cover PorI in his brief while you cover Due Process, and then later claim that you need time to argue Due Process because Gura overlooked Due Process in his brief.

press1280
04-23-2010, 2:15 PM
Gura's cases in McDonald and Heller brought all the many amicus briefs that got SCOTUS to take the cases in the first place. NRA v. Chicago didn't get many amicus briefs filed.

CEDaytonaRydr
04-23-2010, 2:25 PM
Forgive me if this is a stupid question, but what is it about McDonald that is going to fix things in California? Shouldn't Heller have made a difference already?

What about McDonald is so unique that it's going to change what happens in this state?

Fyathyrio
04-23-2010, 2:26 PM
Almost sounds like NRA hired some anti from the MSM to write that piece.

Joe
04-23-2010, 2:31 PM
Forgive me if this is a stupid question, but what is it about McDonald that is going to fix things in California? Shouldn't Heller have made a difference already?

What about McDonald is so unique that it's going to change what happens in this state?

McDonald means incorporation of Heller. So Heller will actually apply to us, so will the 2nd amendment.

OleCuss
04-23-2010, 2:31 PM
Forgive me if this is a stupid question, but what is it about McDonald that is going to fix things in California? Shouldn't Heller have made a difference already?

What about McDonald is so unique that it's going to change what happens in this state?

Heller had nothing to do with making the States follow the 2A - McDonald will.

Once McDonald incorporates the second against the States we will have standing in federal and state courts to make the States follow the 2A. It will take a while for our rights to be recognized but McDonald looks to be hugely important in making it possible.

Nodda Duma
04-23-2010, 2:36 PM
You should read the write-up in American Rifleman on McDonald. Absolutely no mention of Alan Gura there, either.

-Jason

Havoc70
04-23-2010, 2:40 PM
And then once Sykes is hopefully ruled in our favor then that kicks in the fair and equal aspect, yes? So in other words, the beginning of the end of our asinine CCW policy?

anthonyca
04-23-2010, 2:41 PM
Forgive me if this is a stupid question, but what is it about McDonald that is going to fix things in California? Shouldn't Heller have made a difference already?

What about McDonald is so unique that it's going to change what happens in this state?

Heller was binding on DC, which is not a state, it is a federal enclave. McDonald is trying to incorporate the 2nd amendment against the states. Heller was arguing that the second amendment meant I individuals, not the
"militia", but it was only binding against the federal laws. Each amendment has to be "incorporated" to he states under due process as the federal constitution was not originally binding to the states. Many of the other amendments have been incorporated through SCOTUS.

The 14th amendment had the P or I clause that the bill of rights applied to all, and binded state law to the BOR. Then a racist supreme court made bad case law and we went to due process where each amendment has to be "incorporated" against the states.

That is a laymen's way of putting it. Am I correct?

CEDaytonaRydr
04-23-2010, 2:51 PM
Heller was binding on DC, which is not a state, it is a federal enclave.

Ah!

Got it...

Thanks. ;)

ScottB
04-23-2010, 3:08 PM
I think Gura is getting shafted on publicity. He deserves more credit than he is given.

That's because the NRA has control issues and is something of a Diva. They just can't stand the idea that anyone but they can possibly represent gun owners or defend the 2nd Amendment. Given some of the political deals they have made in the past, I think they should get off their high horse and embrace anyone who has something to offer to the cause. Someone needs to remind them there is no "I" in "team"

Gura is getting the job done and deserves our thanks and appreciation. He just isn't the media hound the NRA is.

And before I get flamed, yes I am an NRA member and have been for as long as I can remember - which is a pretty long time.

6172crew
04-23-2010, 6:09 PM
I bet there is more to the story than we know.

The NRA seemed to know P&I was a loser and they did what they thought was right for it's members.

ke6guj
04-23-2010, 6:20 PM
and if they knew that PorI was a loser before they made the agreement with Gura to have him do the PorI brief while they did the Due Process brief, knowing that that would give them an in to orals, then that is dirty pool.

Otherwise, Gura would probably tailored his brief to cover both PorI and Due Process, and it wouldn't have given NRA that in.

BigDogatPlay
04-23-2010, 6:31 PM
His briefing did include both, IIRC. Gura gave far more weight to P or I because that was the core of his argument.... that we have the rights because we are United States citizens and are born with them. That we have them simply because we are alive. That is both the letter and the spirit of the P or I clause in Amendment 14.

Which letter and spirit were struck down in Slaughter House Cases by a racially driven court in a very bad piece of jurisprudence.

wildhawker
04-23-2010, 6:40 PM
Chris did what they he thought enabled him to capitalize on any success of the due process argument (which they poorly briefed) was right for it's members.

Fixed it for you.

It was a gamble by Chris Cox that may allow him to solidify his place as heir-apparent.

Clinton
04-23-2010, 7:00 PM
Can someone tell me why Mr. Gura didn't tell the NRA to sit down and have a cup of STFU? It was his case to argue wasn't it?

wildhawker
04-23-2010, 7:10 PM
Can someone tell me why Mr. Gura didn't tell the NRA to sit down and have a cup of STFU? It was his case to argue wasn't it?

SCOTUS granted NRA's motion for divided argument (http://www.scotusblog.com/wp-content/uploads/2010/01/NRA_motion_to_divide_argument.pdf), which you'll note was filed by ex-SG Paul Clement (NRA's replacement/swapout lawyer for Halbrook) and opposed by Gura (http://www.scotusblog.com/wp-content/uploads/2010/01/McDonald-opp-to-NRA-arg-motion.pdf).

Here's a good summary blog on the issue:

NRA Will Argue in Second Amendment Case

The Supreme Court this morning granted a motion by the National Rifle Association for argument time March 2, when the justices will consider whether the Second Amendment individual right to bear arms applies against state and local restrictions on firearms. The NRA will take an unspecified number of minutes from the plaintiffs who are challenging Chicago's gun restrictions, and who are represented by Alan Gura of Gura & Possessky of D.C. and Virginia. The case is McDonald v. City of Chicago

Adding the NRA to the list of those arguing may seem unremarkable, but in fact, the NRA has not been the pivotal player in the recent Supreme Court litigation over the Second Amendment. That title goes to Gura, something of an upstart, who took the landmark D.C. v. Heller case to the high court in 2007. As we reported at the time, there were old rivalries and no love lost between Gura and NRA lawyers, whom Gura felt were obstacles, not allies in the litigation.

Gura in fact opposed the NRA's request for argument time in the McConald case on Jan. 9, arguing that hearing from the NRA would "at best be redundant." Gura also wrote that the NRA "greatly overstates its role" in the litigation before the Court. Gura said, "The only factor separating NRA from the myriad other groups advocating for gun rights as amicus curiae is the payment of filing fees."

The NRA made its request for argument time in a Jan. 5 motion by its lawyer, former solicitor general Paul Clement, now at King & Spalding. Clement indicated the request was driven in part by the fact that the brief by Gura emphasizes the "privileges or immunities clause" argument in favor of applying the Second Amendment to the states, whereas the NRA wants to advance a more traditional "due process clause" argument for incorporation. Clement noted that the due process argument occupied only 7 of 73 pages in the petitioners' brief. Gura, in his reply, said the due process argument "will be presented fully" at oral argument without the NRA intervening.

So why did the Court grant the motion? Clement is a familiar face at the Court, and his presence may also represent a "cover all bases" strategy by justices who favor incorporation but are uncertain how the privileges or immunities argument will play out. Asked about the Court's decision Clement said, "I think the grant of the NRA's motion may signal that the Court is interested in ensuring that all the avenues to incorporation, including the due process clause, are fully explored at the argument." Clement added, "Of course, I look forward to working with Alan."

UPDATE: Responding to Clement's remarks, Gura said, "The suggestion that I wouldn't present all the arguments to the Court was uncalled for." Gura added, "I hope that this time Paul understands that handgun bans are unconstitutional." As solicitor general in 2007, Clement filed a brief in the Heller case arguing that the D.C. handgun ban warranted heightened scrutiny but was not necessarily unconstitutional and should be remanded to lower courts for more review.

corrupt
04-24-2010, 12:55 PM
I like how they end the article saying that most firearm laws will be up to state legislatures to decide and how the NRA will continue to be around to fight the good fight. That's what we like to call job security.

Legasat
04-24-2010, 2:22 PM
It's really too bad we can't get the NRA and someone like Mr. Gura headed the same direction. We could more done.

G17GUY
04-24-2010, 2:46 PM
NRA just wants $$.

GuyW
04-24-2010, 5:53 PM
Each amendment has to be "incorporated" to he states under due process as the federal constitution was not originally binding to the states.

You have correctly related "the story". Unfortunately, "the story" is just BS.

As Heller said, and it quoted previous SCOTUS cases, the 2nd Amendment was NOT granted by the Constitution and does not rely upon it, but preceded it.

The RKBA preceded the landing of Englishmen on the North American continent.

So did the Founders have RKBA against the feds but not the states?

Such BS....

.

OleCuss
04-24-2010, 6:32 PM
.
.
.
The RKBA preceded the landing of Englishmen on the North American continent.

So did the Founders have RKBA against the feds but not the states?

Such BS....

.

As I understand it, the Constitution was largely about restricting the Federal government. The individual states were to be pretty sovereign. Very different than it is today with Federal interference at every level.

The framers of the Constitution had no doubt that we all had a RKBA but it is not at all clear that they intended to have the Federal government enforce it against the states. So we have the current sorry state of affairs.

The 14th Amendment was at least a bit of an attempt to make the states recognize basic human rights - and it has taken up until now (or late June?) to get the RKBA restored in states such as California.

hoffmang
04-24-2010, 7:42 PM
It's really too bad we can't get the NRA and someone like Mr. Gura headed the same direction. We could more done.

That would be because the NRA has so far declined to work with Mr. Gura.

Instead they hired the guy who gratuitously argued that handgun bans were constitutional.

McDonald will make for very interesting reading. All of us NRA members need to keep asking why McDonald was granted and NRA v Chicago was not.

-Gene

NiteQwill
04-24-2010, 7:55 PM
This makes me throw up. One reason I stop giving the NRA my money.

orangeusa
04-24-2010, 8:10 PM
I've only been on Calguns for less than a year, and seems like this most recent NRA move is fit for the politicians we are trying to get RID of. I have read the McDonald AND Heller transcripts several times, and this is WEAK. To take credit for Heller AND McDonald is unbelievable.

For NRA to disregard Mr. Gura just makes me wonder WHO they take money to support?

So, I shall be giving my money to Calguns. As one of the most anti-gun states in the USA, CA needs all the help WE CAN GET.

I DO NOT TRUST the NRA. We deserve better. They need to re-earn our trust.

.

stag1500
04-24-2010, 9:07 PM
McDonald will make for very interesting reading. All of us NRA members need to keep asking why McDonald was granted and NRA v Chicago was not.
-Gene

You think there's a chance SCOTUS will incorporate the 2nd Amendment via PorI?

hoffmang
04-24-2010, 10:20 PM
You think there's a chance SCOTUS will incorporate the 2nd Amendment via PorI?

5 votes for P or I, no. More than 1 vote for P or I, probably. Could those other P or I votes lead to 6 for real Incorporation instead of 5? That's the tantalizing possibility.

-Gene

Glock-matic
04-24-2010, 11:20 PM
My hope is that the decision will declare the 2nd amendment is a fundamental right and that intermediate scrutiny is inappropriate.

Once McDonald is decided, and hopefully a large amount of cash leaves Chicago's pockets, some of the LCAV impetus with city governments will wane.

Lawyers are like everybody else, there are good ones and bad ones. But it is interesting to note that most have bigger egos than most, and this article is an extension of this trait.

Gura has done something the NRA has failed to do, garner a major victory and turning gun control backwards. Hopefully they don't fail to take advantage of the momentum. Tough economic times are the best times to hit cities and states and hit them hard. Soon, many will capitulate rather than risk going to court and losing more cash.

Is the NRA superfluous? No, they have still been working with legislators for pro-gun rights. The eddy eagle safety program is good press. They have worked to protect ranges and even done some clean up efforts. Now they have to change gears to take advantage of the current SCOTUS environment.

CDFingers
04-25-2010, 5:31 AM
I am curious as to why no one is arguing from the Equal Protection clause. It seems the strongest strategy to me.

CDFingers

OleCuss
04-25-2010, 7:01 AM
I am curious as to why no one is arguing from the Equal Protection clause. It seems the strongest strategy to me.

CDFingers

I'm not entirely sure what you believe the Equal Protection clause is the strongest strategy for.

But it is my understanding that the Equal Protection clause is interpreted as applying equal protection within a given state. So if one applies it to the RKBA within California I'd think it would mean that they have to violate our RKBA equally? Not as productive as using a Due Process or "P or I" to incorporate the 2A against the states and make them respect our RKBA everywhere.

That said, you might be able to use Equal Protection to argue that CCW administration needs to be the same throughout the state?

But I'm no lawyer, so I could be all wrong.

CEDaytonaRydr
04-27-2010, 6:14 PM
Instead they hired the guy who gratuitously argued that handgun bans were constitutional.

WHAT? :eek:

I cannot even fathom that. Maybe the current leadership needs a little perspective... :mad:

RRangel
04-27-2010, 7:31 PM
Forgive me if this is a stupid question, but what is it about McDonald that is going to fix things in California? Shouldn't Heller have made a difference already?

What about McDonald is so unique that it's going to change what happens in this state?

Actually you can say that Heller already does matter to California. The Ninth Circuit incorporated Heller in California already. See Nordyke v. King. The case went en banc.

That means the case was reheard by request of an anonymous judge in the Ninth Circuit. When the court agrees to go en banc the whole of the Ninth Circuit, and not just a panel, must rehear the case.

On September 24, 2009 the case was reheard. The court decided to delay a ruling until after McDonald v. Chicago. So after June it might be like getting a double whammy.

If we have incorporation after that time it means we'll have a Second Amendment right to argue in our state courts. As it is now we don't, and there's no mention of one in our state constitution. Many of our gun laws will be mooted for the better too.

Blackhawk556
04-27-2010, 8:43 PM
McDonald means incorporation of Heller. So Heller will actually apply to us, so will the 2nd amendment.


will gun rights have to be included in the california constitution:confused:

Blackhawk556
04-27-2010, 8:52 PM
is it possible the decision can come late next month??

or do we have to wait til late june?

RRangel
04-27-2010, 9:03 PM
will gun rights have to be included in the california constitution:confused:

We don't have a Second Amendment in California. Our state constitution doesn't have one. Therefore it does not exist in court to be used as a defense either.

After incorporation of the Second Amendment in California that changes. The state can no longer squeeze us with their new legislation so easily anymore because the burden will be on them to pass scrutiny under the US Constitution. That shouldn't require a change in our state constitution.

Many of the gun laws in this state will go bye bye.

blkhat1069
04-27-2010, 9:17 PM
If i remember correctly, (I have been known not to), California At the time of statehood, Didn't add the Right to Keep and Bear in the state Constitution because it was thought the US Constitution already covered that right. and that RTKBA was a Fundamental Right.

Shotgun Man
04-27-2010, 9:20 PM
If i remember correctly, (I have been known not to), California At the time of statehood, Didn't add the Right to Keep and Bear in the state Constitution because it was thought the US Constitution already covered that right. and that RTKBA was a Fundamental Right.

I know that CA's constitution does not mention RKBA.

We were idiots if we thought mentioning it was unnecessary.

dark_ninja
04-27-2010, 9:34 PM
When I was a kid I thought the NRA meant I could buy machine guns and all the goodies I saw Arnie use in all his movies...

Instead of renewing my NRA membership,I'm going to contribute $ to CGF and CGN...

Mulay El Raisuli
04-28-2010, 6:48 AM
is it possible the decision can come late next month??

or do we have to wait til late june?


In theory, they could have issued a Ruling the next day. As a practical matter, precedent-shattering Rulings take a lot of time to write. They know they're going to be looked at VERY closely, both now & for the next several decades. That calls for very careful, precise writing & that takes a while. The session ends the last Monday in June & they're likely to take all the time they can.

Kind of like how I handled history essays. If not due until Tuesday, I'd be working on it until Monday night!


The Raisuli

Apocalypsenerd
04-28-2010, 11:09 AM
Lots of comments on the NRA:

1) They have for many years done what no other politically active group could do, stem the tide of anti-gun legislation. They also had a HUGE hand in stopping the Democrat controlled congress in 1994.

2) During the Bush years they lost revenue due to people letting their memberships drop, because Bush was doing the work.

3) Now they see a huge victory in sight for gun owners and are probably focusing on the future fight as a means to maintain revenue.

Getting angry at the NRA for not being perfect is understandable. Pretending that they have done nothing and that Gura is our only hope, is not.

I will remain an NRA member for the Obama years. I am considering remaining a member after that, as it appears that our 2A rights are being attacked from foreign soil. I would like to see RTKBA go global, and I think the NRA is gearing up for such a fight.

NiteQwill
04-28-2010, 11:18 AM
2) During the Bush years they lost revenue due to people letting their memberships drop, because Bush was doing the work.

:confused: I think not. Bush was no better than the antis and supported any AWB legislation.

Apocalypsenerd
04-28-2010, 11:22 AM
Really? I thought he had the opportunity to enshrine the AWB and let it sunset instead. I was under the impression he was very pro-2A. If I am wrong on this, someone let me know.

weblink references please. If so I will make a large donation to some pro-2A organization in the near future.

GuyW
04-28-2010, 11:22 AM
NRA has some points in their favor.

I do believe its true (as I understand it) as NRA says, that NRA has encouraged, partially funded, and orchestrated the many Nomographs, peer-reviewed historical and legal publications, etc, and research that set the factual historical basis for defending RKBA and the Heller case and Amicus briefs.

Undeniably, others, such as the Citizens Committee for the RKBA, etc also engaged in these activities.

This is all off the top of my head, so if I have my facts wrong, correct me.

I think its important to acknowledge all the patriots who labored in obscurity, but whose work was vital to Heller et seq.

.

BigDogatPlay
04-28-2010, 12:30 PM
:confused: I think not. Bush was no better than the antis and supported any AWB legislation.

Bush did not actively support a renewal of the AWB. He said he'd sign it if the Congress sent one to him, which he (and we) knew was a political impossibility. It's pretty easy for a politician working with a narrow majority in the electorate in an election year (2004) to say he'll do something... it's just up to the other guy to bring it to him, when you know for certain that there is no way on earth that they'll ever be able to bring it.

That's called "looking bipartisain"... but it doesn't necessarily mean you actually support it.

jdberger
04-28-2010, 1:57 PM
Please note that it's not the NRA who's being necessarily criticized here. It's certain factions within the NRA, specifically NRA-ILA who've drawn the ire of the libertarians amongst us.

It was our view, that ILA's objection to P or I was more about bedrooms than bullets, marriage over machineguns and gays over guns....