Posting light this morning. Bitter is busy getting ready for DC, and I have some issues to clean up at work. We’re headed there for the McDonald case, and to meet up and say thank you to some of the people involved in the case. Win or lose, the attorneys and plaintiffs involved in this venture deserve our respect and admiration. I feel the least I can do is be there, if it means being outside, quietly cheering them on. Let’s hope for a great victory.
Category: 2nd Amendment
The Timid Second Amendment Ruling
Looks like the fourth circuit did a pretty thorough analysis of why the federal laws barring domestic violence misdemeanants from arms aren’t “presumptively constitutional” under the Heller language, unfortunately they made it an unpublished opinion, so it has no precedential value.
Right to Bear Arms by Minors
The ruling from Washington State Supreme Court yesterday which recognized the Second Amendment as incorporated, shows some promise when it comes to the Right to Keep and Bear Arms as applied to minors. It would seem to me that it’s correct to say minors can’t be outright prohibited from possessing arms, but that states may require adult supervision of the possession.
Chicago Picks Its Lawyer
Looks like Alan Gura and Paul Clement will be going up against James Feldman:
A Washington, D.C. solo practitioner with extensive experience before the Supreme Court will argue in defense of the city of Chicago’s strict handgun ordinance in a closely watched Second Amendment case next month.
James Feldman, who argued 45 times before the high court as an assistant to the U.S. solicitor general, got the nod to argue in what is widely viewed as an uphill battle for gun control advocates. The case is McDonald v. City of Chicago.
He’s going to have a lot of work cut out of him to try to argue such a legally untenable position.
Summary of the McDonald Reply Briefs
Dave Hardy has an excellent summary of the reply briefs in the McDonald case. Â These are the briefs filed by the Petitioners (McDonald et al. represented by Alan Gura) and the Respondents in Support of the Petitioners (NRA represented by Stephen Poss and Stephen Halbrook), an excerpt:
The Steves (Halbrook and Poss), briefing for NRA, put their main weight on this clause. Chicago’s claims are paradoxical — that infringing a right can contribute to “ordered liberty.” Its idea of ordered liberty is that of a police state, order always triumphs over liberty. It claims falsely that the 14th Amendment is all about equality, not only equality of rights but equality of their infringement. Presumably, Chicago thinks the Black Codes would have been no problem if their oppressions applied to everyone. The framers of the 14th Amendment would beg to disagree.
Go read the whole thing. I haven not yet had time to read any of the briefs yet, and I don’t know when I will given my work schedule, but I am going to try to be present in DC for the McDonald case. Still deciding whether I want to camp outside.
Another Trip in the Time Machine
Dave Hardy points to his original 1974 law review on the Second Amendment. He scanned the whole paper if you want to read it. Pretty interesting.
Do You Feel Safer?
Thirdpower wants to know if you feel safer knowing that if the Brady Campaign & Michael Bloomberg had their way, this boy would never be able to own a firearm in his life.
Light Reading: Analysis of The Stevens Dissent
Dave Hardy has a law review article out examining the Stevens Dissent in DC v. Heller, here’s the intro:
DISTRICT OF COLUMBIA V. HELLER ESTABLISHED THAT THE Second Amendment’s right to arms existed as an individual right, with no requirement that the rights-holder be functioning as part of a well-regulated militia. While the majority opinion has been subjected to extensive review and commentary, the Steven dissent, joined by four members of the Court, has not. The dissent came within one vote of becoming the majority; it clearly merits close examination.
Had the dissent become law, the Court would have informed the American people, seventy percent of whom believed they had an individual right to arms, that their rights-consciousness was sadly mistaken. If done on the basis of sound research and reasoning, this would involve no more than the Court performing its duty. An examination of the dissent suggests, however, that the Court would have been taking this position based upon surprisingly thin reasoning and evidence.
Footnotes removed for purposes of quoting. I joke when I say light reading. It’s very in depth. I won’t have time to read it all until later, but it looks good.
More on the NRA Motion
Today Alan Gura filed an Opposition to NRA’s Motion for Divided Argument, as is reported by SCOTUSBlog. A few things to clarify from the previous post. NRA is asking for 10 minutes out of the 30 allotted to the Petitioners, not for half the time. But also keep in mind that the State Attorneys General have also filed a Motion for Divided Argument, asking for ten minutes themselves. It is exceedingly unlikely that the Court will grant two motions of this type, and also unlikely they will expand oral arguments.
I don’t think NRA filed this motion out of any foul intention, or with the idea in mind to throw a monkey wrench in anything. That said, while I understand and recognize the legitimacy of NRA’s likely concerns, I do not agree that filing this Motion for Divided Time was an appropriate outlet. Let me briefly explaining my reasoning.
- The Motion itself is very unlikely to succeed. The Court typically only grants these types of motions under pretty limited circumstances, and after reading NRA’s Motion and the Petitioners opposition to the motion, I think that NRA is on shaky legal ground. The long odds on the success of the motion make its use as any kind of vehicle suspect.
- Even if the Hail Mary tactic works, what does it really get you in relation to your core concern? So the National Rifle Association gets Clement 10 minutes of time before the Court. It’s not like Clement gets to make a ten minute speech on the merits of due process. He’ll pretty much be answering questions posed by the justices just like anyone else who would occupy that hot seat.
- At this point in the case, Alan Gura really needs to be spending his time and energy responding to Chicago and all the briefs filed in support of the respondents. I don’t think spending time and energy writing oppositions to motions that he did not invite into his case is really the best use of his time.
Ultimately my concern is that this jeopardizes relationships that are going to be important for NRA going forward after McDonald, and without much to show for it when all is said and done. I might reconsider my opinion if the Court, against all odds, grants the motion (because of what that might hint at), but I don’t think that’s likely at this point. There’s been a lot of speculation about what the court was hinting at when it granted cert for McDonald and kept NRA on hold. You can see some of that here. On what strategy would be best for McDonald, I think reasonable people can disagree on, but the Supreme Court granted cert on this case. Our rights are now in Alan Gura’s hands, which I think are quite capable. I think NRA has already brought much to this case in terms of laying a strong political basis for gun rights, getting the right people elected who put the right people on the Court, and in terms of bringing resources to bear to aid Heller and McDonald. These are commendable and worthwhile contributions. I don’t think this Motion for Divided Time fits within that, and seems to me to be not be very well thought out.
Split Decision: NRA’s Likely Concern in McDonald
While I’ve been busy with work related items, it’s gotten around that NRA is filing to get some time during the oral arguments of McDonald, effectively splitting Alan Gura’s time before the Court. I’m not meaning to take sides in this, because while I understand NRA’s concern, I’m also willing to give Gura the benefit of doubt in how to argue his case. What I would like to do is explain the issues here as best I can, and try to convey what each side is trying to achieve, and why this might cause some conflict. The Supreme Court’s grant of Certiorari (cert for short) in the McDonald case goes like this:
Whether the Second Amendment right to keep and bear arms is incorporated as against the States by the Fourteenth Amendment’s Privileges or Immunities or Due Process Clauses.
That’s a strong indication that the Supreme Court would like to see arguments for both Due Process Clause incorporation and P or I incorporation briefed in this case, and that ground is indeed covered in the Petitioners brief, NRA’s brief and other amicus briefs. By this point, it’s pretty clear that Alan Gura has set out on a path to get the Second Amendment incorporated (properly, in my opinion) under the Privileges or Immunities Clause, and NRA favors the more conservative and less risky incorporation under the Due Process Clause of the Fourteenth Amendment.
One can probably get to a motivation for favoring each method by thinking carefully about each party. It would seem Alan Gura came to the gun issue through a generally libertarian legal philosophy, much the same way many of us did. Having already won a landmark case before the Court on one libertarian issue, his place in legal history is assured. But winning a case that overturns Slaughterhouse would make him a legend in legal history. Hell, even just overturning Cruikshank, and bringing that part of the 14th Amendment back to life would be a hell of an accomplishment. Having come to the issue myself through a strongly libertarian bent I loved the Petitioner’s Brief in McDonald. The opportunity to bring the Privileges or Immunities clause back to life is right now, if it’ll ever happen. For someone who loves our Constitution and liberty, this can’t be passed up. I can’t blame Gura for taking the chance. I probably would too in his position, and if he prevails, our Republic will be better for it.
NRA, institutionally, is a lot more conservative, because their only concern is the preservation of Second Amendment rights. Ancillary libertarian concerns aren’t on their mind institutionally. While there might be (well, are, I can tell you) individuals in NRA who are sympathetic to the idea of restoring P or I and overturning Slaughterhouse, NRA as an institution is only concerned with getting a clean and firm ruling on incorporation, and is definitely wary of sacrificing incorporation on the altar of Privileges or Immunities restoration. They are probably concerned that the justices have a chance to hear more about incorporating the Second Amendment under the due process clause like we do with other constitutional rights.
So what’s the real risk? Who the hell cares how it’s incorporated, as long as it’s incorporated, right? I suspect what NRA is looking to avoid is a judicial train wreck of a ruling, where you get something like three justices voting on incorporation through Privileges or Immunities, three justices voting on incorporation through Due Process, and three voting on no incorporation because they think Heller was wrong, and the Second Amendment isn’t any real fundamental right that need be incorporated against the states. In a hypothetical ruling like that, you have no clear majority opinion, so the Marks rule is used:
The Marks Rule has raised the following schools of thought regarding the appropriate basis for determining the holding in such fractured cases: (a) the narrowest analysis essential to the result derived from a combination of all concurring opinions; (b) the concurring opinion offering the narrowest rationale; or (c) only those parts of the concurring opinions which overlap and arrive at the same result. For example, if one follows the first interpretation, then the holding in the case should be viewed as the narrowest rationale supported by all of the concurring opinions read together as though it were a single majority opinion, and where there is a conflict, the opinion based on the narrowest ground governs.
You can see how it might complicate things in moving forward on Second Amendment rights in the future, if we were to get McDonald in a plurality opinion. This would seem especially true since Marks may not quite cleanly apply. Is P or I more “narrow” than Due Process? NRA would presumably like to avoid the potential for this, and just have a clean ruling following the same legal reasoning as other Constitutional rights. They are going to, therefore, be concerned the justices aren’t able to hear enough oral argument along those lines.
Not that I believe Alan Gura is being reckless or daredevil in the way he’s decided to argue his case. The Supreme Court asked for this, really. What reason they have is not really something we can know, but they did. I can’t believe they would have granted cert the way they did if they weren’t interested exploring both options. I also still strongly believe that we will have incorporation at the end of the day. I sincerely hope we can have incorporation by Alan Gura succeeding in overturning Slaughterhouse and/or Cruikshank, but I’ll take it any way I can get it. Still, I think NRA has a valid concern in wanting time. Presumably if they are granted time, it’ll be Stephen Halbrook before the Court. I think either way this goes, our rights are in very good hands. We are fortunate to have competent and highly talented people working this issue on our behalf before the Court.