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Dave Hardy on Unity

I’m not generally one to make calls for unity, probably because I think some degree of debate and disagreement within the community is healthy and understandable. But I have to agree with Dave Hardy on this one:

There are three ways to reach Second Amendment incorporation, at least two of which have present and powerful advocates. I can only say that I’m in correspondence with both, and they really wish there could be an end to to conflict. Bottom line: if the three routes to incorporation each got two votes, it’s still a 6-3 and a win, the other side is left to ponder that “almost” only counts with horseshoes and hand grenades, and the winner who favors one route or another has some votes (for the first time in my lifetime) on which to build. They’re going into the fight of their lives, no OUR lives, and don’t need the distractions. We can all engage in internecine battles after oral argument, or better yet, the decision. For now they need to concentrate.

Hardy is, of course, speaking about the conflict brought about by this, which is one of the reasons I felt it was a poor course of action; that it would promote a conflict at a time when we did not need one. That’s spilled into the blogosphere a bit with statements said here, here, here, and here. However, I agree with Dave, there’s no bad way to win this, the important thing is that we win.

24 Responses to “Dave Hardy on Unity”

  1. Mike From Philly says:

    If the NRA’s track record wasn’t filled with compromises and failed opportunities and if they didn’t have a significant financial interest in keeping gun control alive, I’d agree.

    The fact is that if gun control disappeared today, the NRA will become irrelevant, Mr. LaPierre’s signficant pay would be cut, they’d lose the corporate jets and invites to the fancy parties.

    They have conflicted motives and I for one expect them to stab gun owners in the back agian.

  2. Mike From Philly says:

    Plus, of all people available why did the NRA pick Clement? That stinks to high heaven. Clement is not friend of gun rights and it didn’t start with Heller where he argued “shall not be infringed” means the government can ban guns.

  3. Xrlq says:

    Mike, show me an organization that has accomplished anything of substance and I’ll show you one whose history is riddled with compromises. Even the NAACP didn’t get their Brown v. Board of Education without first winning a series of cases on much narrower and less satisfying theories (typically arguing, in nutshell, that the separate but equal doctrine was fine and dandy, it’s just that this one particular school district has failed to live up to the “but equal” part). GOA loves to brag about of 30+ years of no compromise, but let’s face it, that’s also all they have in the way of results. I’d much rather put my money on the organization that seeks 95% of what I want and gets 60%, rather than the organization that insists on 110% and gets 0%, but that’s just me.

    Clement’s brief was indeed a disappointment in Heller, but it is more than a stretch to say he argued that “shall not be infringed” means that government can ban handguns. He never argued that DC’s handgun ban was constitutional, only that the lower court should re-hear the case under the “heightened scrutiny” standard before the Supremes took it up. Heightened scrutiny is the same standard used to determine the constitutionality of a law alleged to discriminate by sex, so to accuse Clement of having argued that “shall not be infringed” means “may ban handguns” is every bit as dishonest as it would be to claim that “equal protection” means VMI and the Citadel may exclude women (when in fact the SC ruled under that same “heightened scrutiny” standard that they may not).

    As to the present case, there’s no indication that Clement and the NRA are compromising anything, at least not anything having to do with guns. In fact, I’m not even sure how compromise is supposed to work in this context. We’re not arguing over whether or not a handgun ban constitutes an infringement; that was established in Heller. Now the only question is whether the same Second Amendment that invalidated DC’s handgun ban also applies to the states. That’s binary: either the Second Amendment is incorporated or it is not. No court will ever uphold a gun law on the theory that it was only “sort of” incorporated under the Due Process Clause rather than “really” incorporated under the Privileges or Immunities Clause. Alan’s theory may be more satisfying on an intellectual level, and may set a better precedent for future incorporation cases involving issues other than guns, but from a gun rights perspective (the only one the NRA is supposed to care about as an organization) it makes no difference which path the Court takes to incorporation, only that they get there. Fully developing the traditional path to incorporation is not “compromise,” it’s covering all the bases.

  4. Sebastian says:

    Mike:

    I know more than a few people at Fairfax, and trust me, not one of them worries about someone coming and taking this issue away from them. Most don’t think we’ll see gun control go away in their lifetimes. I tend to agree.

  5. Sebastian says:

    The worst of the problem with that motion to divide was that it caused divisiveness at absolutely the worst possible time.

    That was my chief objection to this. It would be one thing of Alan Gura hated the idea, was going to be oppose the motion, but expected it, nonetheless. But this came out of the blue at a critical time.

    My other objection was that given all that, it was going to be for naught anyway, because the Court would likely reject the motion anyway, so this would all be for nothing. But the court granted the motion in a situation where it normally would not. It would be pure speculation to try to divine why, but I think it means something, and that something would tend to play in NRA’s favor.

    That hasn’t changed my overall position on the motion, but I would say it’s water under the bridge now. I was clear with NRA on my objections. They have their point of view, and I have mine.

  6. Sebastian says:

    Actually, I should clarify a bit. It wasn’t just that it would cause divisiveness at the worst possible time, but would cause divisiveness moving forward as well. While I know there was no love between Gura and NRA, I think it’s still better for the movement as a whole, moving forward after McDonald, if NRA’s folks and Gura can at least stand to be cordial to each other. I think they both can bring much to the table. I don’t know if that’s going to be possible after this slap in the face.

  7. Sebastian says:

    I have a tremendous amount of respect for Gura’s abilities as an attorney, and he rightly deserves credit for moving forward with a case when others were reluctant. The prize goes to the risk takers with formidable skill and good timing.

    But Gura is also standing on a lot of shoulders to win McDonald, and also with Heller, including NRA’s. Don’t forget that. That doesn’t mean I agree NRA gets to be discourteous to him, and I do think they have been with this motion. But lets not lose our sense of perspective.

  8. Sebastian says:

    I should clarify I’m not suggesting that Alan just needs to take abuse. If he wants to be angry at Chris Cox, because Chris was the likely decision maker on the motion, I totally understand. But the institution as a whole didn’t make that decision, and a lot of the legal minds within and close to NRA probably didn’t make it either. If Alan Gura gave the cold shoulder to Chris over this I wouldn’t blame him.

  9. Xrlq says:

    With all due respect, saying “if there’s a win in McDonald, Chris Cox had nothing to do with it” is about as persuasive as religionists arguing that God answers prayers, then conveniently redefining “answer” to include every possible outcome that would have obtained if he didn’t answer them. The truth is that Alan has made a strong case for an aggressive theory of incorporation, and barely any case at all for the one they are more likely to accept under existing precedent. If Alan wins on his theory, it will be fair to say that NRA-ILA had nothing to do with the result. But if we win under due process incorporation, one could just as easily argue that Alan Gura had nothing to do with the win. And if we win under a split ruling, each brief was essential to our win, whether you care to put aside your personal animosity toward the NRA and admit that or not.

  10. Sebastian says:

    I don’t think Gura was ever unwilling to make due process arguments in front of the court, which is part of the reason I think he’s pissed at this. The suggestion that he isn’t up to answering those kinds of questions put forth by the justices is insulting to him.

  11. Carl from Chicago says:

    Mike From Philly Said (January 31st, 2010 at 7:24 am):
    The fact is that if gun control disappeared today, the NRA will become irrelevant, …

    With all due respect, Mike, that statement is patently untrue. I suspect you see the NRA in much too narrow a view. The NRA was founded to promote marksmanship skills. Today, the NRA promotes marksmanship skills in addition to legislative action. If the desire or need of NRAs membership to oppose future gun control ceased to exist (which is certainly not likely), the need for marksmanship promotion would remain.

    You need to understand that the NRA-ILA is only a part of the NRA.

  12. Mike From Philly says:

    NRA-ILA and NRA are the same beast because they exist for the same reason. One can’t exist without the other.

    If gun-control ended today, what would thier mission be? ILA would likely close down; Chris Cox will need to file unemployment. The NRA will go back to being training, competition, and magazine publisher organization. I don’t believe 3M to 4M people would value an organization like that. The USPSA only has 30K members.

    The NRA needs gun control and they will use subtle and below the radar ways to make sure it continues. I don’t believe choosing Clement was an accident. There are better qualified people to argue P&I or DP than him. I expect him to land flat on his face and potentially cost us a significant victory.

    Xlrq. Please review the US Justice Department’s Amicus starting on page 20. The title is of the section is LIKE RIGHTS CONFERRED BY SURROUNDING PROVISIONS
    OF THE BILL OF RIGHTS, THE INDIVIDUAL RIGHT GUARANTEED BY THE SECOND AMENDMENT IS SUBJECT TO REASONABLE RESTRICTIONS AND
    IMPORTANT EXCEPTIONS

    Tell me after your read it, if you think “shall not be infringed” fits in with Clement’s position in the amicus.

  13. Sebastian says:

    That’s odd, Mike, considering NRA existed from 1871 to 1975 without the Institute for Legislative Action. Chris Cox could easily get another job on K-Street that pays more than NRA pays.

    Quite frankly, you have no idea what you’re talking about.

  14. Fiftycal says:

    NRA didn’t want to have Heller come up because they didn’t want to take a chance at losing. I believe Gura is amazing and back him 100%. And Clement is, from everything I’ve read, the 900 lb. gorilla of Supreme Court arguments. Gura wants the “Privilege and immunity” argument to win because that would substantially change Constitutional law and right a wrong from more than 100 years ago. NOW, NRA wants to win. I’ll take either way as a win. Reading Gura’s response to the Chicago brief, I have high hopes for the P&I approach. But if the court upholds slaughterhouse, Cruikshank and Presser and STILL incorporates the 2nd Amendment via “due process”, I’ll take it.

    And I’ll look forward to Gura’s NEXT Constitutional challenge, NOW working it’s way thru the courts that could FORCE DC and the states to recognize concealed carry licenses all across the country.

  15. Mike From Philly says:

    I hope I’m proven not to know what the F’ I’m talking about, because then we all win.

    Honestly, I wish I didn’t know and haven’t seen as much of the NRA in action as I have. I’m not confident that their true motives are aligned with the dreams of most folks that read this blog.

  16. Xrlq says:

    Mike, I have read the Clements brief in its entirety. I don’t like it, but it’s hardly the same as as endorsing handgun bans as you suggest. As to “shall not be infringed,” well it all depends on what the definition of “infringe” means. Here’s a hint: not all unauthorized copying from a copyrighted work, and not all unflattering uses of another person’s trademark, constitute an infringement.

  17. Sebastian says:

    So how much have you seen? How many of them do you know or have talked to? Describe for me briefly what you think the organizations major problems are?

  18. Carl from Chicago says:

    His name is Clement … Paul Clement.

    I’ve read both the SAF/ISRA and NRA reply brief, as well as all the other briefs. For the present reply briefs, I felt that both were superb … bot rebut Chicago’s arguments against incorporation in a very thorough manner.

    Look, if those of us who support the second amendment are going to get our panties bunched over various (and sometimes personal) details of the personalities and parties involved, we are seriously losing sight of the forest for the trees. This issue is huge and profound. There will be differences of opinion, there will be battles for territory, and there will be egos and personal fame on the line. That’s a given, and we have to realize it, and accept it to some degree.

    It’s my strong opinion that those jumping on the NRA-bashing and Gura-bashing bandwagon are playing the fool.

    Why? For the most part, because Gura and NRA have very little to do with the outcome at this point. What matters are the decisions of 9 Justices of the Supreme Court.

  19. Mike says:

    Assuming the Second Amendment is incorporated (either under Due Process or P or I), the threats to our gun rights will continue. Anyone who thinks that a victory for McDonald is the end of the gun control or that there will no longer be a need for NRA is kidding themselves. They’re either ignorant or blinded by their hatred of NRA.

    The reality is that gun banners will continue to introduce anti-gun legislation in Congress and in the state legislatures. Some will pass, some will not and some will more than likely be upheld even under after McDonald. To suggest that NRA filed their motion to somehow undermine the case and prolong gun control is honestly ridiculous.

  20. Dave R. says:

    With all due respect, saying “if there’s a win in McDonald, Chris Cox had nothing to do with it” is about as persuasive as religionists arguing that God answers prayers, then conveniently redefining “answer” to include every possible outcome that would have obtained if he didn’t answer them. The truth is that Alan has made a strong case for an aggressive theory of incorporation, and barely any case at all for the one they are more likely to accept under existing precedent. If Alan wins on his theory, it will be fair to say that NRA-ILA had nothing to do with the result. But if we win under due process incorporation, one could just as easily argue that Alan Gura had nothing to do with the win. And if we win under a split ruling, each brief was essential to our win, whether you care to put aside your personal animosity toward the NRA and admit that or not.

    Two problems with that, Xrlq. One, a due process incorporation could be reached without overturning any precedent. Privileges and immunities is on stronger historical ground, but does require overturning case law precedent. There is no reason to expect the same number of lines or pages for each argument in Gura’s brief in the first place. Two, NRA coordinated their amici brief with Gura to minimize overlap. This is known, its a matter of public record, NRA admits it. For them to roll in right before the deadline and ask for time because they aren’t impressed with the space Gura spent on Due Process is disingenuous at best. And for you to repeat their propaganda line to people who know better amounts to pissing on my leg and telling me its raining.

    Which brings up the challenge of unity. I can just about handle not posting on this first until the decision, but when the stock NRA position is provably false and insulting to boot, it’s going to be hard not to rebut that line.

  21. Sebastian says:

    I wouldn’t assume the left hand always know what the right hand is doing at NRA. It’s quite possible the people who were coordinating on the case were not the ones who decided to file the motion.

  22. Dave R. says:

    They have so many 2A litigators nobody sent a memo or heard about it over the watercooler? Or… someone made a partly personal decision on the NRA’s time and letterhead. I’m not sure I buy that, but if true it undermines the argument for NRA’s special insight and expertise, does it not?

  23. Sebastian says:

    Depends on where it originated, Dave R. General Counsel isn’t technically part of ILA, and that’s where most of their lawyers are. AFAIK ILA only has a small handful of staff lawyers. If this decision was made at the top, and I believe it was, it’s quite possible the folks working with Gura weren’t much involved in it. Not saying that’s the case for sure, but it’s entirely possible.

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