Cato Institute – NRA Cares More about NRA Than Gun Rights, Liberty, Professional Courtesy, Tuesday, January 26, 2010:
by Ilya Shiparo, Cato Institute:
Yesterday the Supreme Court granted the NRA’s motion for divided argument in McDonald v. Chicago. What this means is that Alan Gura’s 30 minutes of argument time on behalf of Chicagoland gun owners just became 20, with 10 going to former Solicitor General Paul Clement, whom the NRA hired at the last minute to pursue this motion and argument. (Full disclosure: Alan Gura is a friend of mine, and of Cato.)
The NRA’s motion was premised on the idea that Alan had not fully presented the substantive due process argument for selective incorporation of the Second Amendment — presumably out of an outsized concern for the Privileges or Immunities Clause arguments about which I’ve previously blogged and written a law review article. This is a highly unusual argument and is a facial slap at Alan’s abilities as an advocate. Sadly, it’s also typical of how the NRA has behaved throughout this case and before that during the Heller litigation — sabotaging Alan at every turn and showing again and again that, even in the face of winning arguments that fully support its legal positions, the NRA prefers to seek glory for itself rather than presenting the strongest case for its purported constituency of gun owners.
Alan rightfully opposed the NRA’s motion because the group’s participation at argument adds nothing substantive to the case. No one will ever know why the motion was granted, as the Court need not (and did not) provide any reasons. Nonetheless, it’s a safe bet that this is solely a testament to Clement’s talent and reputation (notably, the motion was not filed by any of the NRA’s other excellent attorneys, who briefed and argued their case in the lower courts and in a cert petition and brief before the Supreme Court).
I have great respect for Paul Clement, and have worked with him by filing amicus briefs in two cases he’s already argued this term, but I do take issue with his repeated suggestion that the motion’s purpose — and the reason behind its granting — was so that “all the avenues to incorporation, including the due process clause, are fully explored at the argument.” This kind of comment — again impugning Alan’s litigation strategy — is uncalled for, and renews concerns over the NRA’s conduct.
Throughout this case, Alan has consistently and forcefully advocated for the Second Amendment’s incorporation under the Due Process Clause. That didn’t change when his case was taken up by the Supreme Court. The thing is that the due process arguments are not all that complex, and simply do not merit the same care and attention in the briefs as arguments based on the Constitution’s actual text and history. A first-year law student who’s taken constitutional law – let alone a Supreme Court clerk – could write a due process incorporation argument in her sleep! In any event, the oral argument will be driven by the justices’ questions, not by any long soliloquies by counsel. Alan’s — and all attorneys’ — job is to be ready for anything.
If the NRA were concerned about the final outcome of the case, it would be unlikely to attack Alan’s strategy or question his preparation (an odd way to be “helpful” to one’s side). It is not a stretch to predict that this case will be favorably decided at least in part on due process grounds, however, so what we are seeing here is likely an attempt by the NRA to position itself as responsible for such a victory – and that Alan isn’t.
Ultimately, then, the NRA is engaging here in fundraising, not liberty-promotion or ethical lawyering.
Down and dirty in-fighting between Second Amendment advocacy groups over McDonald v. Chicago? Go figure. If the NRA can deal a dirty blow to Alan Gura’s efforts for the Second Amendment it is no wonder that the NRA will ignore a PERFECT SECOND AMENDMENT CASE such as mine, a Second Amendment case from a merchant seaman’s point of view that the Second Amendment is a vital function of the Common Defence Clause of the Preamble to the Constitution. This point of view supports my argument for National Open Carry Handgun in not only intrastate and interstate travel but also maritime travel for merchant seamen aboard U.S. container ships. This argument approaches the full scope of Second Amendment rights which the NRA/SAF and the federal courts refuse to consider.
I am exploring the Second Amendment aspect of the “Invasion Clause” and the “Guarantee of a Republican Form of Government“, in support of the Swiss and Israeli Model of private gun ownership as a form of the Common Defence. If you believe the Common Defence Clause in the Preamble to the Constitution and the Second Amendment implies the Swiss Model of self-defense then you may also believe that the 6th Circuit Court of Appeals in Hamblen v. United States, No. 09-5025 (December 30, 2009) ruling that “the Second Amendment does not confer an unrestricted individual right to keep and bear machine guns” is treason against the Second Amendment and the Common Defence.
See Glenn Beck’s “The Revolutionary Holocaust: Live Free or Die” video as evidence supporting my claim that the Second Amendment does confer an unrestricted individual right to keep and bear machine guns.
See also JPFO’s The Genocide Chart.
See American Spectator’s October 16, 2009 presentation of Glenn Beck’s commentary on Anita Dunn’s two favorite philosphers, Mao Tse Tung and Mother Teresa.
See Michael Savage’s October 27, 2009 commentary on Anita Dunn’s two favorite philosphers, Mao Tse Tung and Mother Teresa.
Must also see Glenn Beck’s June 14, 2009 show on Obama’s Progressive Agenda as a threat to overthrow our Republican Form of Government.
At what point will the American people wake up and start rebelling against the Progressive Movement’s overthrow of our Constitutional rights, freedoms, liberties, duties and our Republican Form of Government?
NRA visited this blog AGAIN yesterday, Monday, January 25, 2010. Are they checking for criticims from their opposition? The following is from the blog’s web counter by Statcounter.com:
|Referrer||No referring link|
|ISP||National Rifle Association Of America|
|Visit Length||Multiple visits spread over more than one day|
|VISITOR SYSTEM SPECS|
|14th January 2010||15:39:37||Page View||No referring link
|25th January 2010||16:07:17||Page View||No referring link