"The NRA is engaging here in fundraising, not liberty-promotion or ethical lawyering"

As Brian Doherty reported earlier, the Supreme Court has granted the National Rifle Association's motion to divide the plaintiffs' oral argument time in the upcoming Chicago gun case, which means that plaintiffs' attorney Alan Gura will now have 20 minutes, not the full 30, and the NRA will get 10 minutes. The NRA claims it just wants to make sure that the substantive due process argument for Second Amendment incorporation against the states receives as much attention as the Privileges or Immunities Clause argument. Cato Institute legal scholar Ilya Shapiro, however, says the NRA actually has a very ugly ulterior motive:

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.

Read the whole post here. Reason's coverage of the Chicago gun case is here.

Comments

[heller]

The answer is simple: If we lose, we blame it on the NRA. If we win, it's all due to Alan. Those NRA fuckers better not fuck this up...

[John Thacker]

If we lose, we blame it on the NRA. If we win, it's all due to Alan.

If we get more than Justice Thomas willing to overturn on the basis of P or I, it's all due to Alan. There is zero chance of getting five Justices for that argument.

[Johnny Longtorso]

Ah the NRA - the world's largest gun control organization (always ready to compromise, always saying we need to enforce the unconstitutional laws we already have when complaining about proposed laws).

[Kyle Jordan]

Exactly. The NRA always has the NRA's best interests at the forefront and it pisses me off to no end that many gun owners and 2A advocates either can not or will not see this.

[John Thacker]

And Gura has Gura's best interests at the forefront. He clearly cares more about getting other rights guaranteed under P or I than about the right to arms alone.

That's a noble belief, but it's also not one that revolves around winning this case no matter what.

[Contemplationist]

Well
NRA just lost my yearly donation.
Well done cocksuckers

[Kyle Jordan]

This may blow up in their faces with either a positive or negative outcome.

[P Brooks]

The NRA seems to be in many ways similar to the American Red Cross.

[John Thacker]

Ultimately, then, the NRA is engaging here in fundraising, not liberty-promotion or ethical lawyering.

"Ethical lawyering" is attempting to win the case by presenting all legal theories. Liberty promotion involves trying to win the case. I get the impression that Gura would rather convince an extra justice or two to overturn Slaughterhouse, but lose the case, than win the case on narrow grounds but get no one other than Justice Thomas for P or I.

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!

Yes, well, the Due Process Incorporation argument in the NRA's brief is better-argued and better-researched than the one in Gura's brief. Perhaps it's too in-depth discussing the history of incorporation, but if it's so easy to write that portion of the argument, why didn't Gura do a better job?

[T]

You and the NRA obviously think the Due Process argument needs to be highlighted more.

Refresh my memory. How many gun rights cases has the NRA won before SCOTUS? How many has Alan Gura won?

Yeah, I think I'll go with the guy who has a proven track record than the guys who spent my entire life afraid to take a case to SCOTUS because they might lose.

[Ryan M]

I agree with John Thacker's first paragraph. I've been very afraid since I first heard of the McDonald case that Gura would try to argue it on P or I grounds and lose, which would be like a green light to states to trample on our 2A rights. I very much believe in overturning Slaughterhouse, but not at the expense of 2A incorporation.

That said, I'm really not a fan of how the NRA has positioned itself here, and I'm not sure they're the right group for the job, but they're what we've got. And if they F this up, they're doomed, so I think they have an incentive to do it right.

[A. Freeman]

And just what did anyone expect after the Citizen's United ruling?

The NRA for years has railed against campaign finance reform that restricted their ability to run ads against individual candidates before an election. Television, radio and print ads cost big $ and the NRA would like all of us to cough up more to fund the effort.

What all should consider is that the Progressives are railing against is not really "corporate contributions" but the direct to the voter lobbying efforts of organizations; the National Rifle Association (and like minded State organizations) are one of their primary targets. Consider we 2-A supporters have a well organized grassroots effort, with effective campaigning; oh, my, it could exceed the success of the 2008 Democrat presidential campaign effort.

[Tim]

What is this "ethical lawyering" of which you speak?

[Marc]

I think that both Gura and Clement had better be spot on and make no mistakes whatsoever. Once again, I think the linchpin will be Kennedy and the gate will swing one way or the other on his opinion of 2A incorporation. I think NRA's brief on the due process avenue is more complete than Mr. Gura's. In addition, Mr. Clement clerked for Scalia and has argued over four dozen (49 I believe) SCOTUS cases. The due process avenue of thought needs to be polished as well as privileges & immunities. I trust both Clement and Gura to get the job done correctly. The case will obviously go either 5-4 or 4-5 and Kennedy's inquiries MUST be fully answered and not rebuffed.

My hope is that Mr. Gura's 20 minutes will come before Mr. Clement's, as in the Heller case. Heck, under a McCain Presidency, Clement was on the short-list for Scotus appointment, so don't count him out. By the way, I'm one of the top ten NRA Membership Recruiters in the world and I trust my NRA.