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Old 01-31-2013, 4:32 AM
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Gray Peterson Gray Peterson is offline
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Originally Posted by Tincon View Post
Same thing he did during Heller oral arguments. Have a listen for yourself, he is about the least confident person I have ever heard at SCOTUS oral arguments. This guy is no "rock star", he just got lucky, and had a great deal of amicus support. If you ever meet him you might ask him what would have happened had Sandra Day O'Connor not retired before Heller was heard. It was certainly not foreseeable when he filed his case.

I think most people that have actually studied the court realize what a disaster Heller would have been if that hadn't happened. Which of course is the reason the NRA hadn't filed a similar suit. The little known truth here is that thanks to Gura we nearly lost the RKBA forever. But, of course that isn't how history played out...
I don't even know where to begin with the amount of incorrect statements. Some of it is merely opinion, and some of it is dressed up as fact.

It was well known in DC legal circles that Justice Sandra Day O'Connor was looking to retire, and Chief Justice Rehnquist was in failing health. During the 2000 election debacle, she reacted in horror at Florida being called for Gore. Justices tend to want to leave when a President can appoint someone of somewhat similar mentality. She was not a fan of Gore, and her husband's on again off again health problems pushed her to stay on for an extra few years. As soon as 2005 rolled around, she retired off the bunch, was originally replaced by John Roberts, but then Rehnquist died so she was replaced by Samuel Alito.

Here's a little more early history:

Ashcroft’s letter renounced the militia theory of the Second Amendment and endorsed the individual-rights view. The Justice Department now “unequivocally” supported the view that the amendment guaranteed “the private ownership of firearms,” the letter said. Soon afterward, Ashcroft sent around a memorandum to all federal prosecutors officially informing them of the administration’s new position.3 James Jay Baker, the chief lobbyist for the NRA, stood before a raucous crowd at the NRA’s convention in Kansas City to tell them about Ashcroft’s letter. “One year ago, at our last gathering, I warned that we stood at a crossroads,” he began. “I was not exaggerating when I said the 2000 election would determine whether we marched into the 21st century with new hope for our Second Amendment rights—or whether lawful gun ownership in America would slowly be fading to just a faint memory.” With “anti-gun” Al Gore defeated, “we now have a President, and a Vice President, in the White House who respect our rights as gun owners, and who honor the Constitution that guarantees those rights.”

After Baker read an excerpt of the letter, the audience erupted in thunderous applause. “Ladies and gentlemen, fellow gun owners, fellow officers and members of the National Rifle Association, it is indeed a new and better day.”4 In November of that year, a federal appeals court in Texas took Ashcroft’s cue and held that the earlier decisions interpreting the Second Amendment to apply only to state militias had been wrong. The case, United States v. Emerson, involved a man who had been brought up on charges of illegally possessing a firearm. Timothy Joe Emerson’s wife had previously accused him of threatening her, which led her to obtain a temporary restraining order against him. Under federal law, a person under such an order is prohibited from possessing firearms. Emerson, however, refused to give up his Beretta pistol and was indicted. Emerson argued that under the Second Amendment, he should be able to keep his gun because the Constitution guaranteed him the right to have one for personal self-defense. The federal appeals court agreed with the broad outlines of Emerson’s interpretation of the Second Amendment. The original meaning of the Second Amendment, the court said, was to guarantee individuals, not just militias, the right to bear arms. Nevertheless, because people with a history of violence could be legally barred from possessing guns, the court explained that Emerson had to stand trial anyway. Emerson appealed to the U.S. Supreme Court, but the justices decided not to hear the case. As they had for decades, they avoided weighing in on the Second Amendment controversy. Still, the lower court decision in the Emerson case marked a profound shift in the law. For the first time in decades, a federal court had agreed that the Second Amendment guaranteed individuals, at least law-abiding ones, a right to have a gun.5 Sipping his drink at happy hour, Clark Neily wondered what Ashcroft’s letter to the NRA and the Emerson case meant for the future of the Second Amendment. With his square jaw and short cropped black hair, Neily would have looked at home in military garb, but his round, wire-rimmed glasses suggested an occupation in the more traditional professions. His uncanny ability to speak in paragraphs without a stutter or pause gave him away as a well-trained lawyer. And he was notorious around his office for being a fierce and intense litigator. “If there were a black belt in litigation, Clark Neily would own one,” said one of his colleagues. “This is one hard-charging, take-no-prisoner, lay-it-on-the-line kind of guy."...

The libertarian lawyers also thought that the Bush administration’s adoption of the individual-rights theory and the Emerson decision all but guaranteed that a Second Amendment case would eventually be brought to the Supreme Court. Across the country, lawyers for criminal defendants charged with gun crimes were beginning to argue that such laws were unconstitutional infringements of the individual right to bear arms under the Second Amendment—and they were all pointing to Ashcroft’s letter to the NRA for support. Bob Levy realized that there was a good chance the next Second Amendment case would be brought by a violent criminal. “You don’t want a bank robber or a crackhead up there as a poster boy for the Second Amendment,” Levy observed. If a “good case doesn’t reach the nine justices, a bad one will.” A “good case” was one with sympathetic, law-abiding plaintiffs who had understandable reasons to be armed. Levy wanted the Supreme Court to hear a challenge brought by ordinary people who fear violent criminals.

Winkler, Adam (2011-09-12). Gunfight: The Battle over the Right to Bear Arms in America. Norton. Kindle Edition.

Heller, which was previously known as Parker in the DC Circuit, was Mr. Gura's first argument in front of the Supreme Court. The amicus wasn't up there making the argument, he was facing both a previous US Solicitor General (Walter Dellinger), he was facing the current Solicitor General at the time (Paul Clement). Solicitor General's are considered the top of their field, statutorily required to be "learned in law", and he defeated both of them to get the win.

It was either Neilly/Levy/Gura's effort, or a criminal effort, that would have made it up. There was a split among the circuits on the application of 2A as an individual or collective right. 5th Circuit said individual, 8 other circuits said collective, and DC Circuit had never made an on point ruling in the matter, as previous litigation's went through the Court of Appeals for DC (the "State" courts in DC) called McIntosh in the late 1970's.

Neilly & Levy were the two who determined the reasoning for getting a good case up to SCOTUS, got the plaintiffs together (with assistance from Kenn Blanchard), and then hired Mr. Gura.

Gura also knows how to correctly write effective briefings. He's formerly a Deputy Attorney General who represented the state of California, so he saw first hand a keen eye as to how most complaints filed against the state.

Which of course is the reason the NRA hadn't filed a similar suit.
Actually, they did. It was called Seegars and it was sham litigation designed to derail the libertarian lawyer case which became Parker.

It was skilled work that overturned the Court of Appeals decisions of 8 different circuit courts, not merely chance. O'Connor was not as much of a threat as you say she was, and it took over 4.5 years to get a case to SCOTUS anyway.

What you're stating is revisionist history which downplays Gura's skill in constitutional litigation. What he states in terms of time/place/manner (the AR-15 carry in Manhattan thing) is also shared by Professor Donald Kates, the dean of 2A scholarship, as well as Professor David Kopel, the same Mr. Kopel which skewered Senator Feinstein's ban on standard capacity magazines as violative of Heller just yesterday at the Senate Judiciary Committee.

Last edited by Gray Peterson; 01-31-2013 at 4:40 AM..
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