McDonald is an example of what you can call a voting paradox. Why? Because despite the fact that Chicago won on both its arguments, it still lost the case. Won on both it’s arguments? Has Sebastian lost his mind? Well, yes, a long time ago, but let me explain. Chicago argued that the Second Amendment was not applicable to the states because of the Privileges or Immunities clause. It won that argument 8-1. It also argued that it was not applicable via the Due Process clause either. It won that argument 5-4. But it still lose the case because Thomas concurred in judgement. The Supreme Court, in the case of Marks v. US created a rule to attempt to deal with plurality decisions. David Cohen, over at The Faculty Lounge, gives us some analysis of McDonald and the Marks rule, and determined it can’t apply to the decision. Interesting. I’m not sure I fully understand what the implications are, but interesting.
Pay to Play
Somehow I’m not sure this is the first thing that comes to Daley’s mind when he hears that phrase. But hey, if Daley wants to make his political swan song about making civil rights attorneys rich, that’s fine my me. I would think that’s fine by Alan Gura too.
On Consequences of Elections
Two Great McDonald Articles
Dry Ice Bomb a DD?
Something doesn’t smell right:
The mother of a 14-year-old boy accused of making bombs out of dry ice appeared in court Tuesday. The woman, 39, is charged with possession of a destructive device and child abuse. She was arrested over the weekend and released on her own recognizance.
Wait a minute, since when is a dry ice bomb a destructive device? But sure enough, look at Nebraska law and it defines it as:
Any explosive, incendiary, chemical or biological poison, or poison gas (A) bomb, (B) grenade, (C) rocket having a propellant charge of more than four ounces, (D) missile having an explosive or incendiary charge of more than one-quarter ounce, (E) mine, (F) booby trap, (G) Molotov cocktail, (H) bottle bomb, (I) vessel or container intentionally caused to rupture or mechanically explode by expanding pressure from any gas, acid, dry ice, or other chemical mixture, or (J) any similar device, the primary or common purpose of which is to explode and to be used as a weapon against any person or property; or any combination of parts either designed or intended for use in converting any device into a destructive device as defined in subdivision (7)(a)(i) of this section from which a destructive device may be readily assembled.
So it would seem if you pick up some dry ice for your freezer in Nebraska, you better not have any bottles or sealable containers! But there is a section that would get most people out of trouble:
(b) The term destructive device does not include (i) any device which is neither designed nor redesigned for use as a weapon to be used against person or property, (ii) any device, although originally designed for use as a weapon, which is redesigned for use as a signaling, pyrotechnic, line-throwing, safety, or similar device, (iii) surplus ordnance sold, loaned, or given by the Secretary of the Army pursuant to 10 U.S.C. 4684(2), 4685, or 4686, as such sections existed on March 7, 2006, (iv) any other device which the Nebraska State Patrol finds is not likely to be used as a weapon or is an antique, or (v) any other device possessed under circumstances negating an intent that the device be used as a weapon against any person or property;
But it’s interesting that the Nebraska Unicameral considers a dry ice bomb, normally a prank device, to be the equivalent of heavy artillery or weapons of mass destruction legally.
NRA Announces Opposition to Kagan
You can find the letter to Leahy here, but here’s the meat:
Any individual who does not believe that the Second Amendment guarantees a fundamental right and who does not respect our God-given right of self-defense should not serve on any court, much less receive a lifetime appointment to the highest court in the land. Justice Sotomayor’s blatant reversal on this critical issue requires that we look beyond statements made during confirmation hearings and examine a nominee’s entire body of work. Unfortunately, Ms. Kagan’s record on the Second Amendment gives us no confidence that if confirmed to the Court, she will faithfully defend the fundamental, individual right to keep and bear arms of law-abiding Americans.
For these reasons, the National Rifle Association has no choice but to oppose the confirmation of Solicitor General Elena Kagan to the U.S. Supreme Court. Given the importance of this issue, this vote will be considered in NRA’s future candidate evaluations.
So they are opposed, and it’s going to be graded. No doubt the haters are going to take credit for forcing NRA’s hand — to do what they did not want to do. Their valiant efforts have clearly gotten NRA to fold on their plan to merely let Kagan slip on through. Because they hate the Second Amendment, you know.
Second Guessing the Pros
There are an awful lot of folks out there questioning NRA’s position on the Kagan nomination, believing that they need to be up front and aggressive in going after her. I agree with them that Kagan is going to be a disaster for gun rights, and for the Constitution in general. I also don’t find the position to be implausible or irrational. I won’t tell you there haven’t been moves by NRA that haven’t puzzled me, and I disagreed with, but I have very seldom second guessed their strategy in public. Why? Because I am not about to second guess professional lobbyists, any more than I would call up my insurance company, and offer them actuarial advise, or call up an orthopedic surgeon and suggest he’s been doing knee replacements wrong all these years.
I would not go so far as to say Chris Cox is a Vulcan chess master, but I understand what the author is trying to convey here, and agree with it. All of us, with the exception of my readers who are professional lobbyists (you know who you are), are operating at a very significant information deficit relative to the people who spend a large amount of time on the Hill communicating with lawmakers and congressional staff. Even though many more of us know the basic rules of this game, and have a pretty good idea how it is played, without that full time engagement we simply do not have enough information.
So how do we know the professionals can be trusted? Well, you can’t. All you can really go by is track record. But if there’s an interest group who has a better track record on their issue than NRA, especially in this Congress, I’d really like to know who they are. Do they make mistakes? Sure. This is a game such that no one has perfect information, so outcomes can never be completely deterministic. But the people who are playing the game are in a far better position to be able to call the right moves than those outside of it observing. That’s largely why you’ll hardly ever hear me say NRA should zig when it looks like they are getting ready to zag. What I typically do is try to explain plausible rational for a zag based on what I know about the game, or what information I might have on the move. And there has been a few times I’ve thought they should zig, thought they would zag, explained that rationale, and they ended up zigging. None of us are working with perfect information, especially commentators like me.
That’s not to say there’s anything wrong with armchair lobbying. Many of us watch this because, like some people love football, we enjoy the game. Even if, like football, we don’t always enjoy the results. But it is difficult for me to understand how folks can believe, often with what seems like a burning passion, that NRA is certainly wrong, and is making a move that is sure to destroy our gun rights. I don’t think there’s one single reason that explains it. But I do notice that some have a tendency to believe that NRA’s role is to affirm their core beliefs. They would be up shouting before Congress if they had the opportunity, so they expect NRA to do the same on their behalf, since NRA does have the opportunity. They are not people who enjoy the game, and may even resent the game. They probably don’t even want to accept that it is a game. But that’s what politics is — because it’s the art of people getting along with each other and running a society without resorting to another, more serious variant of the game, which I think we all can agree is least desirable (though we certainly have an element who fantasize about it, in my opinion without a serious consideration of its horrors or consequences). I can understand completely why people hate politics, and don’t like having their lives screwed with. But that’s, for better or worse, the system we have, and it’s better than the alternatives. If you get frustrated, throw your hands up, and stop playing, you lose — the other team won’t give up.
I can see the point of those who say NRA needs to be more aggressive. But I’m going to trust the people who are regularly on the Hill and have a lot more information than we do about the best way to proceed. If they advise patience, I’m going to be patient. Truth is, I don’t think there’s any way we’re derailing Kagan, regardless of how NRA moves. Nominees are very seldom rejected, and nominees getting derailed by the President’s own party when that party had an overwhelming majority in Congress is absolutely unheard of. Elections have consequences folks, and for the people who said John McCain wasn’t good enough, and sat out 2008, I really don’t want to hear any complaints.
Statement from Chris Cox on “Gag” Rumor
Just in from NRA:
The NRA has received a number of questions about blog posts that claim I issued a “gag order†to NRA board members on the nomination of Elena Kagan to the U.S. Supreme Court. This is absurd and wrong.
This claim shows complete ignorance of how the NRA operates. NRA staff, including everyone (myself included) at the NRA Institute for Legislative Action, work for the NRA Executive Vice President, who in turn works for the NRA board, which in turn is elected by NRA’s voting members.
Under the NRA by-laws, NRA-ILA has “sole responsibility to administer the legislative, legal, informational and fund raising activities of the Association relating to the defense or furtherance of the right to keep and bear arms, in accordance with the objectives and policies established by the Board of Directors.†To carry out that mission, NRA-ILA strives to ensure that the NRA’s positions are clear and based on the most accurate information possible.
The confirmation of a Supreme Court justice is not to be taken lightly. That’s why, when Justice John Paul Stevens announced his retirement in April, I sent an e-mail to NRA board members and staff stating that with the critical case of McDonald v. Chicago still pending before the Court, “it is very important that NRA not comment on Justice Stevens nor engage in speculation on potential successors.â€
Similarly, when the President nominated Solicitor General Kagan to the Court in May, I sent a message to the NRA Board pointing out her lack of a judicial record; noting that NRA-ILA was reviewing all available information; and stating that “it is important that we all refrain from commenting until we know more about Kagan’s views regarding the Second Amendment.†Again, I referenced the fact that NRA has a case pending before the Court.
When Ms. Kagan was nominated, little information on her record was available. More recently, the William J. Clinton Presidential Library has released an enormous volume of documents from her time in the White House. NRA-ILA staff has reviewed these carefully and they raise serious concerns. As we said last week: What we’ve seen to date shows a hostility towards our Right to Keep and Bear Arms, such as her role in developing the Clinton Administration’s 1998 ban on importation of many models of semi-automatic rifles; her note mentioning the NRA and the Ku Klux Klan as “bad guy†organizations; and her comment to Justice Marshall that she was “not sympathetic†to a challenge to Washington, D.C.’s handgun ban.
Respect for the Senate confirmation process requires that a nominee be given the opportunity to explain his or her position on critical issues affecting gun owners. That’s why the NRA has been working with members of the Senate Judiciary Committee to make sure she is thoroughly questioned on these issues. Once the hearings are complete, the NRA will announce its position on her confirmation.
This is exactly the approach the NRA took last year when we opposed the nomination of Sonia Sotomayor. Early in the process, we expressed our serious concerns about her record. We announced our opposition after her confirmation hearings ended without evidence that she would properly respect our fundamental, individual right to keep and bear arms and apply it to the states. Her dissenting vote in McDonald v. Chicago confirmed that our position was correct.
Unfortunately, false Internet rumors are far too often repeated as fact. Rest assured, however, that the NRA is fully committed to representing the interests of our members and all gun owners in this process and defending the Second Amendment to the United States Constitution, as we do in all legislative, legal and political arenas.
I would also note the Hill is reporting NRA is likely to score the vote. This comes from an anonymous source, supposedly within NRA, so who knows… but time will tell whether it’s true, or another Internet rumor.
New Jersey Reactions to McDonald
Nunchakus For Everyone!
As part of the orders that were handed down at the same time as McDonald:
MALONEY, JAMES M. V. RICE, KATHLEEN A. The petition for a writ of certiorari is granted. The judgment is vacated, and the case is remanded to the United States Court of Appeals for the Second Circuit for further consideration in light of McDonald v. Chicago, 561 U.S. _(2010). Justice Sotomayor took no part in the consideration”
Well, OK, not quite yet, but the Court will presumably have to do more serious analysis, or at least different analysis, on whether New York’s nunchaku ban violates the Second Amendment.