Washington Post on the "McDonald Feud"

[GarandFan]

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

 

NRA, onetime ally feud over next big guns case to go before Supreme Court

 

By ROBERT BARNES

Washington Post Staff Writer

Monday, February 8, 2010

 

The National Rifle Association was on the outside looking in when the Supreme Court handed gun rights activists a landmark victory in 2008.

 

After the court ruled that the Second Amendment protects an individual right to gun ownership and that the District's handgun ban was unconstitutional, it was an upstart band of libertarian lawyers that celebrated on the marble steps and received the glory for the breakthrough decision.

 

The NRA, the nation's premier and most powerful gun rights group, has worked hard not to be in that position again. And because of an unusual intervention recently by the justices, its attorney will be in the mix when the court considers the next big guns case next month.

 

The case is McDonald v. Chicago, a challenge of gun laws in Chicago and its suburbs that are strikingly similar to the Washington handgun ban. It asks the court to decide something left unsettled in its landmark ruling in Heller v. District of Columbia: whether the Second Amendment offers protection against actions by state and local governments, not just the federal government and its enclaves.

 

The attorney for those challenging the laws is Alan Gura, an Alexandria lawyer who successfully argued the Heller case. But the court, without explanation, granted the NRA's request to give its attorney time at the podium as well; the court sliced Gura's time by a third and gave it to the NRA and its recently hired attorney, Paul D. Clement, who was solicitor general in the George W. Bush administration.

 

The decision has brought howls of complaint from those who support Gura and underscores the bad blood between the erstwhile Second Amendment allies.

 

Ilya Shapiro, a Supreme Court scholar at the libertarian Cato Institute, where Gura has ties, wrote, "NRA prefers to seek glory for itself rather than presenting the strongest case for its purported constituency of gun owners." He said in an interview that the NRA's decision to seek time at oral arguments March 2 was "about fundraising, not lawyering."

 

NRA spokesman Andrew Arulanandam responded: "Our client is the Second Amendment. We wanted to make sure that all avenues were addressed and all bases covered" in convincing the court that the amendment applies to state and local governments.

 

To anyone who is not a constitutional scholar, the idea that the Bill of Rights applies only to actions of the federal government might seem illogical. But the court has decided that each amendment must be applied, or "incorporated," to the states through specific decisions. The court has done that with most of the amendments -- but not the Second -- relying on the "due-process clause" of the 14th Amendment.

 

Gura says that using that path would be fine but that the best way to make the decision is through another clause of the 14th Amendment, one that forbids states from passing laws that would dilute the "privileges or immunities" that come with U.S. citizenship.

 

In a way, Shapiro said, the differing approaches distinguish "gun nuts," whose sole interest is a protection of Second Amendment rights, from "constitution nuts," who think the case offers a chance to reassert the importance of the privileges-or-immunities argument.

 

In arguing to the court that it needed to hear from him, Clement said that only seven pages of Gura's 73-page brief dealt with the due process clause. Because that is the most "straightforward route" to deciding the case -- the other would require the court to overturn three of its precedents, he said -- Clement wrote to the court, "it would be particularly unfortunate if that argument were not adequately presented at oral argument."

 

Gura bristles at "the suggestion that I wouldn't be prepared to make that argument." He added: "They're not bringing anything substantive to the argument. The NRA is principally interested in taking credit and fundraising." The NRA and Gura's group petitioned the court to hear the review of the Chicago law, and the court picked Gura's argument.

 

The NRA's fourth-quarter decision to bring in Clement adds another interesting element to the case. He is a widely admired practitioner and seems to be a favorite of the court. "I think the only reason they granted the NRA's petition is because Paul Clement's name was on it," Shapiro said.

 

But Clement has not always been popular with gun owners. As solicitor general during the Heller arguments, he took the position that the lower court's reasoning in striking down the District's gun law was so broad that it could threaten federal restrictions, such as on the sale of machine guns. He advised the justices to send the case back. Conservatives were outraged that was the official position of the Bush administration, even though Clement also agreed that the Second Amendment conveyed an individual right.

 

Bygones, the NRA's Arulanandam says now. As solicitor general, Clement had to protect the government's interest. "We're pleased we have him on our side," he said.

 

Robert Barnes will write about the Supreme Court every other week while the court is in session.

[abolt243]

My biggest fear is that this infighting will destroy our case.

[GarandFan]

My biggest fear is that this infighting will destroy our case.

 

I don't worry about that. That there are two (or more) perspectives regarding the AVENUE to incorporation has little if any bearing on whether it will or will not be incorporated.

 

This fight is in part about glory for the victors, and in part about a huge but strict win for the second amendment versus a huge and broad win for a greatly enlarged pathway to individual rights (including second amendment rights).

 

The way I view it ... NRA wants to make second amendment history, while Gura and his team want to make constitutional history.

[abolt243]

My biggest fear is that this infighting will destroy our case.

 

I don't worry about that. That there are two (or more) perspectives regarding the AVENUE to incorporation has little if any bearing on whether it will or will not be incorporated.

 

This fight is in part about glory for the victors, and in part about a huge but strict win for the second amendment versus a huge and broad win for a greatly enlarged pathway to individual rights (including second amendment rights).

 

The way I view it ... NRA wants to make second amendment history, while Gura and his team want to make constitutional history.

 

 

Thanks for the insight, I hadn't thought of it that way.

Tim

[Tvandermyde]

Garand I agree. Gura wants to go down in history as the guy who undid Slaughter House. The fact that it is a 2a case is a side issue to him. Sure it's nice but P & I is what he is licking his chops over.

[lockman]

The P&I avenue would have a broad impact over many other areas. P&I incorporation opens up the floodgates of rights not contained within or protected by the Constitution. It would be an activist court's dream.

 

Either way, I hope for a strict level of scrutiny. 2A rights should not be considered any less important than the 1st, 4th or 5th.

[Ashrak]

Garand I agree. Gura wants to go down in history as the guy who undid Slaughter House. The fact that it is a 2a case is a side issue to him. Sure it's nice but P & I is what he is licking his chops over.

P or I is what Liberty minded folks are after. SlaughterHouse cases should be overturned. To stand in the way of that is o stand in the way of all Liberty, gun rights included.

[1957Human]

P or I is what Liberty minded folks are after. SlaughterHouse cases should be overturned. To stand in the way of that is o stand in the way of all Liberty, gun rights included.

 

I do recognize you're simply engaging in a bit of hyperbole for fun, but seriously for a second, outside of the Second Amendment context, can you give an example of those freedoms that are not allowed because of the Slaughter-house Cases?

 

(OK, and outside of operating an abattoir without a permit, of course.)

[Ashrak]

P or I is what Liberty minded folks are after. SlaughterHouse cases should be overturned. To stand in the way of that is o stand in the way of all Liberty, gun rights included.

 

I do recognize you're simply engaging in a bit of hyperbole for fun, but seriously for a second, outside of the Second Amendment context, can you give an example of those freedoms that are not allowed because of the Slaughter-house Cases?

 

(OK, and outside of operating an abattoir without a permit, of course.)

Just like Barron -

In the state of Illinois, we cannot peaceably assemble on public property without asking and gaining permission, and if we do without it, then we are punished.

 

The simple reality must come to pass. The 14th must be accepted and applied as it was meant to be, the same with the 10th. The Bill of Rights must apply to ALL government and all case law to the contrary must be relegated to the dustbin of history. The Federal government must return to their due powers and so must the state and local government.

 

Selective incorporation has to go for justice to prevail. I believe Scalia set that up perfectly in the Heller decision. Stare Decisis abuses of P or I, Due Process and Commerce all must fall.

 

If I want to do business with you, if I want to engage in a contract with you to trade property for property, can we do that or is a third party almost always involved? Of course a third party is involved. Government is always sticking it's nose in business where it has no right to be. If I want to trade a stripped lower to you for 15 fishing poles, it is no business of government that we make such a trade. It doesn't concern that entity and it has no just power to enter into that contract when one considers the Constitution itself. Yet, it can and it does. Errant case law is why.

 

We must return to the tenets of the Constitution. Admission that inalienable rights, whether they be gun rights or other private property rights, must be respected by all government is what must take place.

 

Let's say P or I is denied but Due Process is employed. States could then charge everyone 500 dollars (remember Blago's idea?) for a "permit" and there would be nothing we could do about it. Due Process, today, amounts to anything government says it is. Incorporation via Due Process ensures more of the same from government. This is to be opposed as it will only serve to allow continuing infringement. We have a chance, with P or I in McDonald, to make substantial headway in the arena of rights restoration - we would be remiss to squander this opportunity.

 

One domino falls, so too will the others. This is EXACTLY what Chicago is afraid of and it is represented quite straight forwardly in it's brief. Government loses a great deal of unjust control it now retains, regarding a great many things, with a P or I ruling in our favor in this case.

 

I view the McDonald case to be a 14th amendment case where the 2nd is simply an object with which to ask the question. On that note, Gura is approaching it properly by focusing on P or I. As he succeeded regarding the 2nd itself, I am standing with him in that that success regarding P or I itself is for more substantial and important than a Due Process incorporation. But then, I value all Liberty, not just the right to keep and bear arms.

 

The best way to protect and defend gun rights is to protect Liberty- individual inalienable rights themselves. P or I does so.