The Blog of Legal Times notes that the Supreme Court granted the NRA’s contested motion for oral argument time in McDonald v. City of Chicago. The NRA had asked for argument time to make sure the Due Process arguments were fully made, in light of the fact that McDonald’s counsel Alan Gura had focused so heavily on the Privileges or Immunities argument. Gura had opposed the motion on the ground that it was his case and it would be extremely unusual to grant divided time in such circumstances. Paul Clement, former SG, will argue for the NRA.
We can’t read too much into the Court’s decision to divide argument time, but I tend to see it as somewhat supporting my theory that the grant in McDonald on both PorI and Due Process was not a sign the Court wants to overturn the Slaughterhouse cases. As I have written before, the Petitioner’s brief in McDonald is extremely unusual: It’s asking for a revolution in constitutional law, with the stakes of that particular case almost an afterthought to the brief. If the Court was on board the revolution, as most libertarian bloggers seem to think, presumably the Justices wouldn’t carve away some of the precious 30 minutes needed to make the case for the revolution for the much more humdrum and precedent-based argument featured in the NRA brief. On the other hand, if the Justices just want to decide the case before them, and see a revolution as unlikely, then it makes sense to make sure Paul Clement is there to focus on the narrower and more direct arguments for incorporation.
UPDATE: The end of the BLT post includes some interesting commentary by both Clement and Gura. First, Clement comments:
“I think the grant of the NRA’s motion may signal that the Court is interested in ensuring that all the avenues to incorporation, including the due process clause, are fully explored at the argument. Of course, I look forward to working with Alan.”
Gura responds, showing his typical civility and grace:
“The suggestion that I wouldn’t present all the arguments to the Court was uncalled for. I hope that this time Paul understands that handgun bans are unconstitutional.”
As the BLT notes, the dig against Clement reflects the brief he filed as Solicitor General in 2007 arguing on behalf of the United States that the D.C. handgun ban was not necessarily unconstitutional.
C Hoy says:
The NRA hired the guy who said in Heller, “In our view it makes a world of difference, Justice Ginsburg, because we certainly take the position, as we have since consistently since 2001, that the Federal firearm statutes can be defended as constitutional, and that would be consistent with this kind of intermediate scrutiny standard that we propose.If you apply strict scrutiny, I think that the result would be quite different, unfortunately.” Has Clement changed his position because he believes he was wrong or is it because he is reportedly being paid $50000?
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January 25, 2010, 3:14 pmFederal Farmer says:
Hopefully Clement made the argument for intermediate scrutiny because he was serving the best interests of his client (US Govt) and now he has instructions from his current client, the NRA, which isn’t the petitioner in this case, by the way.
However, were I Ginsburg or someone else who might want to blunt this ruling, I’d certainly call him out on that issue.
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January 25, 2010, 3:29 pmmikeyes says:
Just as a matter of interest, how much influence do oral arguments have in any SCOTUS case?
I am aware that some conspirators have clerked at the SCOTUS level and know the inner workings thereof. Does it make a difference if the NRA has its say or is it just a matter of perception so the court can rule based on the NRA brief (Due Process) instead of the Privileges and Immunities argument?
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January 25, 2010, 3:31 pmFederal Farmer says:
Since the question includes Due Process they don’t need the NRA brief or oral arguments to rule for it.
There have been several odd things now. Odd that NRA gets allowed to brief despite no cert grant. Now they get 1/3 the argument time.
Who makes such decisions? Does it require 4 or 5 justices to grant these requests...one justice?
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January 25, 2010, 3:39 pmMike McDougal says:
Do you understand that lawyers are advocates?
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January 25, 2010, 3:42 pmJimmy says:
I’m with you because Oral arguments really don’t seem to persuade the Justices one way or another. It is more of a question-answer session for the Justices to either support their view of the case and to clear up any inconsistencies with the pleadings. The great thing about oral arguments is it can give you a better understanding of the disposition of the judges.
For example, during Heller, it was clear the Kennedy would side the way he did because he kept asking about guns defending against bears on the frontier. Similarly Scalia took the time to defend Gura and support his argument whenever Stevens or Souter chimed in to show the fault with some of Gura’s arguments.
The most interesting aspect of all of this is how will it effect the reply briefs? Will Gura now refocus his reply purely on P or I or address some of the Due Process arguments as well? There isn’t much time seeing this brief would be due to the printer soon, but it will be interesting to see the reply brief arguments and whether they worked together or against one another.
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January 25, 2010, 3:46 pmOrin Kerr says:
C Hoy,
Are they only paying Clement $50,000? That’s quite a discount from his normal rate, if true.
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January 25, 2010, 3:53 pmOrder of the Coif says:
Is there no other competent lawyer in America prepared to present NRA’s side?
Oh, I remember Ted Olson is busy advocating for gay marriage.
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January 25, 2010, 4:06 pmFederal Farmer says:
Doesn’t it bother anyone that presumedly petitioner has chosen counsel and it wasn’t Clement?
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January 25, 2010, 4:10 pmTim says:
It makes little sense to me as to why they’d hire such a person as an advocate. Powerful argumentation skills are one thing, but a total lack of belief in one’s client’s cause seems to me to encourage shoddy work.
Only time will tell.
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January 25, 2010, 4:13 pmOrin Kerr says:
It’s interesting to me that most of the comments here seem to question whether Clement will do a good job, or whether he is a good choice as a lawyer. Clement is perhaps the best Supreme Court advocate in practice today, so I don’t see the real debate there.
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January 25, 2010, 4:19 pmDavid M. Nieporent says:
What is the basis for the claim that he has a “total lack of belief” in his position?
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January 25, 2010, 4:20 pmPhatty says:
That was not odd; it was standard procedure. The NRA case and the McDonald case were consolidated in the 7th Circuit and heard together. Thus, the NRA was a party to the decision being appealed by the McDonald case. As a party to the lower court decision, the NRA has a right to file a brief. If the NRA’s cert petition had been granted, but not McDonald’s, McDonald would have had the right to file a brief in the NRA case.
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January 25, 2010, 4:26 pmFederal Farmer says:
I was hoping for some info on how this came about, how such grants are decided, how important oral args are for the decision, for the non-lawyer, non-former-scotus-clerk crowd.
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January 25, 2010, 4:30 pmDilan Esper says:
It’s interesting to me that most of the comments here seem to question whether Clement will do a good job, or whether he is a good choice as a lawyer. Clement is perhaps the best Supreme Court advocate in practice today, so I don’t see the real debate there.
Yeah.
I suspect the answer to your musing is that a lot of this is window dressing for more substantive concerns about the case. Specifically, a lot of purists are invested in the ideas that the Second Amendment will impose strict scrutiny, that the privileges and immunities clause will be revived, that lots of gun laws (such as the domestic violence conviction prohibition and many cities’ and states’ gun registration regimes) will be struck down, etc. I suspect concerns about the quality of the advocacy are proxies for these more substantive concerns.
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January 25, 2010, 4:33 pmOrin Kerr says:
Federal Farmer,
My recollection is that motions for divided oral argument time are motions to the entire Court upon which the Justices vote. As for the importance of oral arguments, it depends on the importance and ease of the case. In a case like this, I think the oral argument is extremely important. In particular, if you were thinking that the Supreme Court was likely to overrule the Slaughterhouse cases in McDonald, I’m not sure how you explain the decision to grant divided time.
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January 25, 2010, 4:39 pmOff Kilter says:
Orin Kerr notes, in his typical passive-aggressive way, “Gura responds, showing his typical civility and grace...”
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January 25, 2010, 4:40 pmChem_geek says:
Dilan, that’s misdemeanor domestic violence conviction prohibition. Important little aspect there...
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January 25, 2010, 4:43 pmMike says:
I LOL’ed at Orin, though not you, since Orin’s wasn’t being passive aggressive. Dry and amusing...Sure.
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January 25, 2010, 4:46 pmNunzio says:
Gura’s response was tacky, especially given Clement’s nice response.
Clement is an excellent advocate and well-respected by the Court. I’m sure the NRA is pleased to have him. And I’m sure the individuals who want to legally own a hand-gun in their home will be pleased with a ruling in their favor even if it is not the pristine restoration of the P or I clause.
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January 25, 2010, 4:51 pmOrin Kerr says:
Off Kilter,
I believe you misunderstand what “passive aggressive” means. I recommend Wikipedia.
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January 25, 2010, 4:53 pmC Hoy says:
Since there was divided time in Citizens United, it is hard to read.
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January 25, 2010, 4:53 pmFederal Farmer says:
So that means 5 votes to grant divided time?
As for overruling Slaughterhouse, sure one might hope that the court only granted this divided time as either a favor to the NRA or in order to cover all the bases and leave no one questioning that this ruling wasn’t properly briefed.
I have no clue whether the court will overrule Slaughterhouse (I’d settle for Cruikshank) but merely hope that they will do so.
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January 25, 2010, 4:55 pmloki13 says:
Wow. You’re the one going to law school, right? So maybe you’re still a little unclear on what lawyers do, so allow me to give you a practical example–
You’ve just graduated law school. Your burning desire is to help society by putting “bad people” away. Therefore, you become a prosecutor. As an aside, you are also a libertarian who happens to believe on a personal level that drugs should be decriminalized. One day, you are assigned the prosecution of a person arrested for selling drugs (marijuana, coke, whatever). Slamdunk case.
What would you do?
Then, after many years as a prosecutor, you go out into private practice. You do pro bono work. You do the following:
1. Represent people arrested for drug crimes.
2. Mount challenges (constitutional, etc.) to the drug laws.
3. Work as a lobbyist in your state to repeal the drug laws.
Response?
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January 25, 2010, 4:56 pmConstantin says:
Some of Gura’s exasperation with the NRA, and its lawyer, might be because they both fought him nearly all the way as he defended Second Am rights in Heller. That’ll stick with a guy.
Clement’s prior opposition is easily explained; he was working for his client. The NRA’s, on the other hand, lends itself to two hypotheses. One is that they were afraid the case and Gura were losers. The other is that they wanted to lose because it’s better for business. Either way, Gura’s quote seems well within the bounds of civility for someone involved in that history.
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January 25, 2010, 5:00 pmCrunchy Frog says:
Wow. I believe this is the first time that a Conspirator has ever cited Wikipedia as a credible source on anything.
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January 25, 2010, 5:01 pmGene Hoffman says:
The problem with Mr. Clement is that someone is a liar. Either the NRA was played by Mukasey and Bush, or Mr. Clement used his considerable latitude in the SG’s office to attempt to significantly undermine the right to arms.
SCOTUSBlog covered that well: http://www.scotusblog.com/2008/03/novak-clement-cheney-and-the-gun-case/
Someone has egg on their face.
–Gene
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January 25, 2010, 5:01 pmMikey NTH says:
30 minutes sounds like a very short time to make your case if it has not already been made in the brief filed with the court.
I admit, I have not argued in the Federal appellate courts, just the Michigan Court of Appeals. (I will have to ask the opinions of the attorneys I know that have argued in the Federal Circuits and the US Supreme Court for their take.)
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January 25, 2010, 5:03 pmCMH says:
Tim: It makes little sense to me as to why they’d hire such a person as an advocate. Powerful argumentation skills are one thing, but a total lack of belief in one’s client’s cause seems to me to encourage shoddy work.
Why do you assume that the position he took in Heller is his true personal belief? It could just as easily be that he had a “total lack of belief” in the government’s position in Heller, and the position being taken here is his true belief.
In fact, I would suggest that if he’s truly only being paid fifty grand (as others have suggested), then maybe he’s advocating a position consistent with his own personal beliefs in this case. $50K would be well below market for that kind of service. Ted Olson was reported to have been paid four times that to argue for the state of Rhode Island in an Indian land dispute a year or two ago.
There’s a very short list of truly excellent Supreme Court advocates, and Clement is unquestionably on it.
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January 25, 2010, 5:05 pmC Hoy says:
I do not believe that Clement is doing this pro bono.
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January 25, 2010, 5:06 pmloki13 says:
Gene–
Did you actually read the article? How’s this–
1. Clement, and the Federal Government, defend the constitutionality of federal law.
2. GOP base doesn’t like any gun laws.
3. Novak (rhymes with hack) is fed an “implausible” (by the account you cited) backstory– why? Well, that way, the administration at the time can say that, well, they were really against the law and they were shocked (SHOCKED!) that they defended it, which is, um, their job.
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January 25, 2010, 5:07 pmloki13 says:
That’s so insightful. Also not the point. (Which really means it’s not insightful). When you have certain jobs as a lawyer– an advocate– you advocate for that position regardless of your actual belief on the issue. The fact that Clement made an argument as a Solicitor General tells us nothing about his actual belief about gun control, just as (for example) a case where Alito as a lower judge had to follow existing precedent tells us very little about his actual view about the precedent (absent dicta).
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January 25, 2010, 5:11 pmruuffles says:
@ Gene Hoffman
Thanks for the link (and wapo link). Interesting read that I’d missed.
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January 25, 2010, 5:19 pmAF says:
Gura responds, showing his typical civility and grace:
Well, Clement’s comment was unmistakably disparaging to Gura, albeit in an understated way. While Gura’s response was a bit on the blunt side, calling it incivil or graceless seems a little unfair, just taking this exchange in isolation. On the other, it’s likely that Professor Kerr knows Gura personally, and his reference to Gura’s “typical” behavior suggests that he is referring to other experiences as well.
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January 25, 2010, 5:32 pmJ. Aldridge says:
Just amazing how no one on the right can get their facts straight when it comes to the 2A.
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January 25, 2010, 5:38 pmSkyler says:
Aldridge,
I’m not sure of the point of your quote from Scalia. It is certainly true. The point is that the 14th Amendment incorporated the 2d Amendment and all the bill of rights. The question becomes what does Scalia think of the incorporation, not that he understands the original scope of the 2d Amendment.
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January 25, 2010, 6:27 pmDan says:
Hopefully Clement will do a better job than he did for the DOJ in the Heller case. I don’t think it was necessary Clement’s fault however. He had a real tough side to argue. Gura and Dellinger (even though I didn’t agree with what he said) both did very good jobs IMO. I think Clement was in a no win situation. I don’t fault the NRA for using him, but I understand Gura’s comment as well as he’s a true believer.
Personally, I’d love to see Slaughter-House overturned, along with its successors Cruikshank and Presser. The late 19th century had its share of judicial activism just like the Burger Court did. Stare Decisis is big among law culture, and I understand that, but Plessy (which is from the same Slaughter-House/Cruikshank era) was overturned, so was Romer v Evans (where O’Connor’s words were thrown back in her face), and just recently, the McCain/Feingold case Citizens United.
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January 25, 2010, 7:00 pmDan says:
That’s why this case is as much if not moreso a 14th Amendment case, and why I’m glad to see the P&I points argued.
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January 25, 2010, 7:01 pmKharn says:
From what I’ve read, Clement was possibly picked because Olson’s a gay marriage proponent (perceived as not the favorite subject of many NRA members) and because Halbrook opposed Sotomayor’s nomination so she may be just a little sore at the mention of his name. 49 SC arguments is still 49 SC arguments...
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January 25, 2010, 7:44 pmAlan says:
Really, though, would they do that? (Yes, I realize that’s a naive question on my part.) It’s really unfair to treat counsel as if they were giving their own opinions. They’re not, and everyone, Ginsburg included, knows that.
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January 25, 2010, 7:51 pmFederal Farmer says:
Enh, what do I know? I’m just some guy.
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January 25, 2010, 7:54 pmloki13 says:
Romer v. Evans was overturned? Really? Was that in the landmark Gullibe v. Notinthedictionary?
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January 25, 2010, 8:31 pmAllan Walstad says:
I just hope these guys don’t trip over each other sufficiently to let the prize slip away. We are very close to getting 2A recognized as an individual-rights limitation on state and local governments as well as on the feds. The NRA is politically savvy but perhaps sometimes overly conservative (i.e. cautious). Nevertheless, without the NRA our right to bear arms would have been irretrievably moribund quite some time ago.
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January 25, 2010, 8:35 pmBC says:
Equally amazing is how noted constitutional scholar J. Aldridge imagines that a Scalia quote discussing the Second Amendment is in any way relevant to a conversation about the Fourteenth Amendment.
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January 25, 2010, 8:36 pmJames N. Gibson says:
The unmentioned point in this is that the NRA never supported GURA or the Heller case that strongly. As some would point out, they suspected it would fail and thus lost that bet. Now they are pushing there way into McDonald in the hope that they will prove themselves relevant. For if they loose this one on their argument while Gura again wins the NRA legal group will be effectively discredited.
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January 25, 2010, 8:38 pmSealawyer says:
This is rich coming from the guy who sounded like a lawyer for the Brady Campaign during the oral argument for the Heller case.
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January 25, 2010, 8:43 pmSealawyer says:
The reason they didn’t support it was because O’Connor was still on the court when the case was filed, and with her on the court it was going to lose. If the NRA did not delay the case it would have lost.
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January 25, 2010, 8:47 pmGrubbs says:
I believe Scalia was fully aware of the 14th amendment when he wrote those remarks. I think if he really wants to protect guns from local laws it won’t matter what he really thinks about incorporation or the second amendment; he will make whatever ruling based on whatever argument to get it done. The biggest victim will always be the truth but who cares any more?
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January 25, 2010, 8:52 pmRepeal 16-17 says:
Instead of Romer v. Evans, were you referring to Bowers v. Hardwick (which involved gay rights and was overruled)?
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January 25, 2010, 8:59 pmDan says:
Yes. Thanks. I got the case names mixed up. The case overruled by Lawrence v Texas.
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January 25, 2010, 10:22 pmTim says:
There is no amount of money, no job, and no possible interpretation of the 2A that would allow me to justify the arguments made by the government in Heller to myself. Thus, an advocate who accepts such a position, in my view, regardless of other qualifications, is unqualified to argue this case on behalf of a citizen, against the government, with a nearly-identical fact pattern.
I don’t think I could ever accept a job as a prosecutor. I have mad respect for Randy Barnett for doing so, but I do not think my conscience would allow me to prosecute anyone for poisoning their own body.
I also think you mischaracterize the issue. You put me in a position that I could not likely see myself, and then ask what I’d to to “give back” to society for the wrongs I’d created as a prosecutor.
While I fully understand that a skilled advocate 1. knows both sides of the argument 2. could argue either effectively and 3. must advocate for his or her client regardless of personal beliefs, I do recognize that choosing to become one’s advocate is a voluntary transaction.
Could I look at myself in the mirror after briefing Heller for the government? I guess that’s a question that I’m glad that I don’t have to answer at this point in time. Ask me in 3 years when I’m studying for the bar exam, broke, tired, and in need of a job.
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January 25, 2010, 10:40 pmEcon_Scott says:
Overruling slaughterhouse would be nice.
I’d also like the right to get a jury trial for my next speeding violation or parking ticket (if any), and a jury trial for any one of over 4,000 items a Federal Prosecutor could charge a citizen with a felony , reading this Blog Probably being one of them.
Damn Slaughterhouse and the Justices who rode in on it. Damn Cruikshank, and Damn Miller and the Justices who voted for it. And while you’re at it, Damn the National Firearms Act of 1968 and the Congressmen who voted for it.
14 million firearms sold in the U.S. last year, legally. This largely due to the person who is POTUS. And crime drops again.
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January 25, 2010, 10:45 pmEcon_Scott says:
Tim:
Someday you’ll be paying an $7,000 a month Mortgage and have a $600 a month car lease payment, that’s AFTER taxes and office expenses.
Then there’s the cost of kids which are pretty expensive and women’s shoes and the never ending Nordstrom’s bill.
As Clement finds, taking that fee and looking yourself in the mirror will be really easy.
For further insight about this dilemma of looking at your own mug in the mirror, consult the professionals at the Bunny Ranch, Nevada.
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January 25, 2010, 11:00 pmOrin Kerr says:
Tim, it will be interesting to see how your views of the law and of lawyers change when you go to law school.
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January 25, 2010, 11:05 pmDave Hardy says:
Bunny Ranch is hiring ? Legal help, I mean. A little old for playing the gigolo.
I suppose we have to choose between (1) give everyone a pass because we are all hired guns or (2) no, we are not or (3) well, OK, there’s some truth to both sides and we can be good hired guns but we’re better when we actually believe in what we are advocating.
Once had a client, representation forced on me by the court, where I never labeled the files with his name. All were “killer, trial court pleadings” or “killer, research.” On the other hand, I never held myself out as a representative of guys who stabbed hookers 43 times and cut their throats and raped the gurgling corpse. It was just one of those moments when you are walking thru the courthouse to a civil motion, dumb and happy, and then the presiding criminal judge’s face lights up as he sees you and you realize life is about to get interesting....
At least at Bunny Ranch they get paid full rate....
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January 25, 2010, 11:24 pmDave Hardy says:
“Well, Clement’s comment was unmistakably disparaging to Gura, albeit in an understated way. While Gura’s response was a bit on the blunt side, calling it incivil or graceless seems a little unfair, just taking this exchange in isolation.”
If the Supremes were tomorrow to announce that they were taking five minutes from each of the advocates and giving it to me, it would be easy for me to say that I looked forward to working with each of them. If, on the other hand, they were lurking outside my door to beat the stuffing out of me when I picked up the morning paper, I cannot say that I would consider it entirely unreasonable.
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January 25, 2010, 11:31 pmTim says:
That’s what I was trying to get at, although you did it much better than I did.
I also think I’d rather defend a thousand scumbags who stabbed a hooker and raped her dying corpse at trial than take a case to the Supreme Court on an uncharted area of Bill of Rights law and take the government’s side, but as Professor Kerr suggests, perhaps my perception will change if I ever join the ranks of card carrying attorneys.
I concur!
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January 25, 2010, 11:59 pmDave Hardy says:
“I also think I’d rather defend a thousand scumbags who stabbed a hooker and raped her dying corpse”
We all have our little episodes, so I thought I’d omit the REALLY bad parts. Like the cohort in crime testifying that he said “It’s dead, but it’s still warm. Do you want a shot at it?”
I told the prosecutor ... isn’t it unjust that they say he is a sociopath? What sociopath ever thought of sharing?
An interesting insight into ... uh ... a different side of life. The cohort testified that after they scrubbed all the blood out of the car, they went off to breakfast with his sister. Asked why he’d just taken this murderous degenerate to have a meal with his sister and her kids, he replied that he was going to have breakfast with her, and it really didn’t seem fair to leave him out.
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January 26, 2010, 12:18 amSkyler says:
Clement was a public employee and advocate for the government. I can respect that perhaps he was just doing his job.
The problem I see is that the NRA isn’t required to hire him.
But then, the NRA is more concerned about getting paid to lobby legislatures than to actually fight to protect gun rights. If the 2d Amendment is recognized as incorporated and given strict scrutiny (a wonderful result, but it seems unlikely) then the NRA really won’t have any reason to scare us any more.
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January 26, 2010, 12:33 amJay says:
Dave Hardy–I’m guessing your opening and closing were mostly philosophical meditations on just what makes a doubt reasonable? (Or did you just represent him in his plea/sentencing?)
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January 26, 2010, 1:14 amGene Hoffman says:
I think some are intentionally trying to duck my point.
If Clement was just following orders in Heller, then doesn’t that mean that the executive that the NRA worked very hard to get elected stabbed them in the back?
If Clement wasn’t following orders, then doesn’t that mean that the lawyer they hired stabbed gun owners in the back in Heller?
I see no option 3. Option 1 and 2 only stand for different modes of failure.
–Gene
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January 26, 2010, 2:11 amJay says:
Gene, I’m pretty sure your option 1 was covered pretty well around the time of Heller itself.
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January 26, 2010, 4:00 ammarkm says:
But as SG, wasn’t his client the President? Who claimed to be for the RKBA? Can anyone explain to me why either the Justice Department or the White House would be under any obligation to defend a DC municipal law? Or any law that they deemed unconstitutional?
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January 26, 2010, 6:06 amBrett Bellmore says:
Yeah, that’s a large part of why lawyers are held in poor repute by other professions. Part of it is that you’re professional sophists, and part of it is that you don’t think being professional sophists is bad.
In all fairness, Bush put us all on notice that he’d plant a knife in our backs if he got the chance, by stating his support for increased gun control. That election, like so many, was a choice between the guy who’d plant the knife in your back, and the guy who’d plant it in your front.
I’m sure the NRA picked him because they thought he was the most competent man for the job. They have a history of hiring people who don’t really support the RKBA for advocacy positions, on the theory that they’ll do a good job as long as the check clears. Sometimes it works, sometimes it backfires. Whether it’s on the whole better or worse than picking slightly less skilled advocates who really agree with you, I don’t know, but it does make one nervous.
I suspect at least part of the reason for their doing it is that the NRA leadership’s position on the 2nd amendment is, at best, mixed. They’re not the most principled bunch around. Maybe it makes them more comfortable knowing that their advocate isn’t likely to blurt out something they’d think embarassing, in response to a question from the court. “Why, yes, of course I think all federal gun laws, without exception, are unconstitutional.”
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January 26, 2010, 7:00 amSkyler says:
Concerning being an advocate: I think there is a difference between defending some schmuck as a court appointed defense counsel, and arguing against fundamental rights.
Even a guilty man needs someone to protect what little rights he deserves and someone to guide him through the byzantine legal system.
But when it comes to fundamental rights, it’s somehow different to me. Here we have a subject that puts everyone in America in an interested position. Essentially, the man was arguing to diminish his own rights.
I can understand taking a position to defend even the schmuck who is rightfully found guilty. He deserves a sentence no greater than his crime permits and someone needs to protect him from getting punished more severely than necessary. This is an easy intellectual position to take.
I wonder how many people would take the same ho hum attitude if the subject were slavery. If someone had argued the government’s position in the 1850’s that blacks were inferior beings and existed solely for the purpose of being white men’s property, would you dismiss it as simply doing one’s job? Would you then allow that man to argue against slavery in front of the Supreme Court? I don’t think so.
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January 26, 2010, 8:50 amFederal Farmer says:
IANAL, but isn’t our legal system, both criminal and civil, dependent upon two advocates in adversarial roles?
Someone has to argue the other side. This is how the truth comes out. The verdict is a scarce resource, two adversaries competing for one verdict.
I use the same approach in software design. If my designers are arguing, then I don’t feel a good design is being hammer into shape.
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January 26, 2010, 10:07 amFederal Farmer says:
I meant to say, “If my designers aren’t arguing, then I don’t feel a good design is being hammer into shape.”
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January 26, 2010, 11:01 amSkyler says:
Farmer, there is already someone arguing for the other side. This arrangement reduces the argument time for McDonald by a third and grants that time to a peripheral party.
It’s a bit like you suing someone that owes you money and your time to argue against your debtor is reduced so that your neighbor can argue that the debtor should pay him instead of you.
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January 26, 2010, 11:30 amFederal Farmer says:
Yep, I know that. I was responding to the pre-lawyer up thread that was appalled that someone would represent the government in a civil rights case (i.e. Heller). My point is that someone has to or are system of justice fails.
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January 26, 2010, 11:40 amTweets that mention The Volokh Conspiracy » Blog Archive » NRA Gets Oral Argument Time in McDonald v. City of Chicago -- Topsy.com says:
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Simon Jester says:
Re: Being a zealous advocate for government
Does the government have interests independent of the people? Is the vigorous enforcement and defense of unconstitutional law necessary to the interests of the people?
Is it better for the people to have a policy of aggravating charges against criminal defendants to gain bargaining power in plea negotiations?
Prosecutors and solicitors should not hide behind professional advocacy to excuse their evils. If they are public servants, they must first recognize that the interests of the public are not the same as (and in fact, often antithetical to) the interests of government.
The answer(s): drop the charges, concede the argument, do what is right — damn it! — or don’t held the office.
Sometimes “losing” the case is the best way to serve the public.
;->
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January 26, 2010, 12:13 pmHans Bader says:
Orin Kerr is right that it was a mistake to put too many eggs in the overrule-Slaughterhouse basket.
People may not want to hear it, but it’s true. Don’t shoot the messenger.
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January 26, 2010, 12:33 pmDave Hardy says:
Quite so. We can get to incorporation via several different paths, and there may be Justices who favor one or the other, so a multi-pronged approach is best.
1) Due Process incorporation. The most direct route, requires overruling nothing (the Court has incorporated via due process without overruling its refusals to incorporate via privileges or immunities, indicating it sees those as separate questions).
2) Privileges or Immunities incorporation, overrule Cruikshank but not Slaughter-House.
3) same, overrule both Cruikshank and Slaughter-House.
(2) and (3) accord with original intent and meaning, but conflict with 130+ years of case law. I’d read the questions presented, as chosen by the Court, to mean that there are Justices interested in (2) or (3), and the grant of divided argument as there being Justices interested in (1). Even to a person uninterested in right to arms issues, this will be the most interesting case of the Term, and perhaps of the last ten years.
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January 26, 2010, 12:48 pmA. Dawson says:
I REALLY hope the NRA knows what its doing. I am concerned that they have argued for a division in the case so that THEY can claim to be the the knight that slayed the dragon. (And hence gain an increase in donations.) I remember reading an article in a recent edition of the American Rifleman. The article was about McDonald v. Heller. The article failed to make ANY mention of the Second Amendment Foundation (SAF), Alan Gottlieb, or Alan Gura. This is fairly contemptable, in my opinion, because it was SAF/Gura who managed to get McDonald to the Court. SCOTUS made the NRA case second chair and I wonder if they would have agreed to hear the NRA case in the absence of the SAF case.
I REALLY hope that they are not putting their salaries in front of the 2nd Amendment and our liberties.
Full Disclosure: I am an endowment member of the NRA and an NRA certified instructor.
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January 26, 2010, 1:19 pmanonymous says:
Nobody is discussing one of the more facially obvious reasons for letting the NRA argue.
The justices now get to ask for NRA’s views on the constitutionality of various regulations. That could be significant.
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January 26, 2010, 1:37 pmzippypinhead says:
It’s OK to take off the tinfoil helmets, guys — No Evil NRA Conspiracy To Destroy The RKBA exists here. The only sneakyness you might credit is if you think the NRA realizes a secondary benefit of hiring Clement is that it likely creates a future conflict of interest that will keep the best SCOTUS practitioner of our time from someday showing up on the opposite side in a future 2A/14A case.
Seriously, folks, Paul Clement will do a fine job arguing for due process incorporation, as he’s as skilled and respected an advocate as anyone alive today, and the due process selective incorporation position is relatively straightforward (at least compared with P/I incorporation). I read the divided argument order as suggesting the most likely way to get to 5 votes for incorporation will be to ride (or perhaps beat) the DP horse. But I also expect a couple of Justices to write a really interesting concurrence or two on P/I...
For the record, there’s nothing at all inconsistent between the United States’ position in Heller and arguing for incorporation in McDonald. Gura’s snarks notwithstanding, folks might actually want to re-read the S.G.‘s Heller amicus brief before accusing Clement of being a mole from Handgun Control, Inc. The S.G.‘s brief did NOT argue that D.C.‘s handgun ban ordinance was Constitutional. Rather, it was aimed at the question of what standard of review should be applied to Second Amendment infringements. It argued for “intermediate scrutiny” and suggested a remand to apply that standard of review, while hinting fairly broadly that D.C.‘s ban would likely fall even under that standard. Why did the United States take this position? Because at the time most SCOTUS observers thought the Court would reach the standard of review question in Heller. If the Court accepted Gura’s invitation to adopt strict scrutiny to firearms regulations, many if not most Federal firearms statutes would be in serious jeopardy, including 922(g) and the NFA. Clement’s job was to advocate for an outcome that would preserve extant Federal law, and he did so in a way that also permitted the courts to throw out the challenged D.C. ordinance. Sounds like competent lawyering to me...
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January 26, 2010, 2:03 pmA. Dawson says:
News flash... what part of “...shall not be infringed” do people have a hard time understanding? That sounds like strict scrutiny to me. The NFA is unconstitutional even inf SCOTUS fails to recognize it. You may not like the NFA... but it does violate the 2nd Amendment. Scalia’s reasoning that M16’s (fully automatic machine guns) should be banned is flawed and circular. (The only reason people don’t commonly own them is because Congress made them illegal.)
It is unfortunate that parts of the Heller majority opinion were so poorly written. Wording like “... or laws imposing conditions and qualifications on the commercial sale of arms...” creates a giant loophole for California style anti-gun legislation.
I suspect this is why the 9th circuit was very willing to side with incorporation and the 7th was more reluctant. The best thing we can get out of McDonald is a reversal of the Slaughterhouse cases. Its unfortunate, but Americans these days don’t seem to care about the insurrectionist purpose of the 2nd Amendment. The 2nd Amendment will continue to be misunderstood.
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January 26, 2010, 2:18 pmA. Dawson says:
I think its very telling when Scalia wrote...
“That is perhaps debatable, but what is not debatable is that it is not the role of this Court to pronounce the Second Amendment extinct.”
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January 26, 2010, 2:23 pmOff Kilter says:
Ilya Shapiro of Cato offers insight into a possibly very ugly reason for the NRA’s move:
http://www.cato-at-liberty.org/2010/01/26/nra-cares-more-about-nra-than-gun-rights-liberty-professional-courtesy/
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January 26, 2010, 2:59 pmDave R. says:
Okay, granting all that. If a Due Process argument requires overruling nothing, a differential page count between the firm argument and the more novel (by modern standards) argument is not surprising. Further, Gura and his team deliberately and openly tried to coordinate amici curae briefs voluntarily to minimize repetition. NRA knows this; they were in on it. NRA’s stated argument for division of time is, “Ooooh, Gura didn’t devote as many pages to the easy argument as the less precedented one, we don’t believe him when he says he’s prepared to argue Due Process, and we want part of his time.” It’s disingenous at best, and the idea that they’re playing politics for a greater share of the credit is entirely plausible.
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January 26, 2010, 4:12 pmA. Dawson says:
It wouldn’t surprise me. They tried to derail Heller because they didn’t think it could it could win. (They were almost right.) Now they are trying to take some of the spotlight so they can appear as heros to their membership. They don’t even give credit to SAF/Gottlieb/ Gura in the articles they write about McDonald v. Chicago. If a reader didn’t bother to do a little research, they might think that the NRA is soley responsible for this.
If they were just publicly honest with their motives instead of trying to skirt the dirt under the rug, I’d have more respect for them. Right now, the NRA is losing my respect.
Wayne La Pierre makes a whopping $950k/yr. He is the perennial executive VP who has yet to be ousted. As an endowment member of the NRA, I find it extremely offensive that he make so much, acts to derail the efforts of Robert Levy / Alan Gura (who did it on their own dime), and then make monthly cries to the membership that the coffers are depleted and they need more money.
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January 26, 2010, 4:15 pmTim says:
But all the eggs are not in that basket if you read Gura’s brief. He dedicates many pages to the overrule-Slaughterhouse cases argument because it requires more development. The substantive due process argument is made in the alternative and just doesn’t require the wordiness because it is much better understood.
I think Professor Kerr is right, and that the SDP argument is much more likely to be used. But I can also see at least a glimmer of hope for 5 votes on the P&I argument.
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January 26, 2010, 6:02 pmDonald Kilmer says:
With all due respect to Mr. Clement...
Let me see if I can get this straight. Mr. Clement argued for the United States government in the Heller case. He argued that some of the District of Columbia’s gun laws might pass intermediate scrutiny. This was a standard of review that he expressly argued for in that case because the United States government was taking the position that none of its gun laws were unconstitutional and they wanted to avoid future Second Amendment challenges to federal gun law.
Now Mr. Clement is in private practice. He will earns fees based upon his reputation, his prior work and his knowledge of the Court.
Fast forward to March 2, 2010. Mr. Clement will argue before SCOTUS, this time as a lawyer for the National Rifle Association. Not only was he hired by the NRA based on his reputation, his prior work and his knowledge of the Court; but SCOTUS itself (or some members of that court) may have been persuaded to allow divided argument precisely because he has already staked out a prior position on the issue of scrutiny.
The following questions (from concerned NRA members) seem in to be in order:
To Mr. Clement: Do you intend to abandon your earlier position before SCOTUS that intermediate scrutiny is an appropriate standard of review for the Second Amendment, even at the risk of having your own professional integrity called into question? Or will you adopt the position of your new client (NRA) and argue for strict scrutiny, thus accepting the proposition (criticism?) that lawyers sometimes have to argue for clients with whom they sometimes disagree? (i.e., they are hired guns) BTW, what is your personal position on gun control and the Second Amendment?
To the NRA personnel who hired Mr. Clement: Were you aware of your lawyer’s prior position on this issue? Or is NRA’s position that the Second Amendment is to be adjudicated differently (with less protection) from the First Amendment? Did you ask Mr. Clement the questions in the prior paragraph? What were his answers?
Here is the question that Mr. Clement will get from SCOTUS:
When you were last before us on a gun control issue, you represented the United States government. Do the arguments you made then apply now in this case? [And then let him twist in the wind.]
Ladies and Gentlemen, someone has made a very big mistake, and that mistake is dangerous to the Second Amendment.
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January 26, 2010, 7:25 pmMikey NTH says:
As an aside, the Michigan Constitution provides that the Michigan Attorney General represents all state departments and agencies. The Michigan Constitution also provides that the Michigan Attorney General can intervene in any state case.
There are cases where an assistant attorney general is one one side of a case and another assistant attorney general is on another side. I have argued in the Michigan COA as appellee attorney for a state agency, and the appellant is the Attorney General.
And yes, we do argue our cases as well as we can. It is theoretically possible that such a case, if it touches on a federal statute or regulation, can go to the US Supreme Court with assistant attorneys general on either side.
Interesting, eh?
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January 26, 2010, 7:42 pmA. Dawson says:
I’m sure the NRA knows about his prior involvement. Perhaps the NRA is comfortable with someone they would consider relatively anti-gun simply because the issue before the court is of incorporation... not the full scope of the 2nd Amendment. I predict some of the more “liberal” justices will twist in the wind with regards to incorporation since Heller left the door open as to the scope / scrutiny that applies the 2nd Amendment. They don’t know exactly what is getting incorporated. However, I expect incorporation under P&I grounds to be attractive to them. It’s really hard to say how this will go down and its sort of shameful that only 30 minutes are being alloted in oral arguments to the petitioner’s in this case. I’m guessing that the issue will probably be largely decided before arguments and the justices may use the oral argument time out of their sheer amusement. Who knows...
It seems to me that the NRA is more interested in making itself look good and creating an atmosphere that will result in greater donations than actually doing the right thing to defnd the 2nd Amendment. They attempted to kill the Heller case and they are taking sole credit in their publications for the McDonald case. As an NRA member it makes me sick.
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January 26, 2010, 8:28 pmA. Dawson says:
Anyone notice that Ron Paul has been unusually silent on the issue of 2A/14A incorporation?
Does anyone know whether or not the ACLU is paying attention and/or has issued an opinion or brief? You would think that the petitioner’s bold suggestion to reverse slaughterhouse would get their attention.
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January 26, 2010, 8:30 pmC Hoy says:
The ACLU did not file an amicus in either Heller or McDonald. It’s about guns and “The Embarassing Second Amendment.”
The NRA’s motion for cert was not granted.
The NRA is not a plaintiff in the case, McDonald v. Chicago.
The NRA asked for divided time as did the 38 State Attorneys General who filed an amicus in the case. The NRA choose wisely when they hired former SG Clement as he has a long record with the SC.
NRA petition for cert asked the question: “Whether the right of the people to keep and bear arms guaranteed by the Second Amendment to the United States Constitution is incorporated into the Due Process Clause or the Privileges or Immunities Clause of the Fourteenth Amendment so as to be applicable to the States, thereby invalidating ordinances prohibiting possession of handguns in the home.”
SCOTUS decided to hear the simpler question presented in McDonald: “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.” Since SCOTUS chose the question that placed P or I in the primary position, it would seem logical that the major portion of the argument cover that.
No one here has asked how the Petitioners feel about Alan Gura’s representation. That is the only thing that matters.
Feel free to pile on. :-)
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January 26, 2010, 8:57 pmFederal Farmer says:
It is also interesting to note that, according to Gura’s opposition filing, 2 of McDonald’s individual plaintiffs are NRA life members and one of the organizational plaintiffs is an NRA Affiliate of the Year in 2006.
ISRA was also awarded that title in 2009.
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January 26, 2010, 9:13 pmA. Dawson says:
I hope SCOTUS agrees with his main argument and invalidates Slaughterhouse. It will be a big boon for all our P&I’s (enumerated or unenumerated).
So the real thing that matters (to me) is that SCOTUS has the gonads to do reverse Slaughterhouse. I’m guessing whether or not they do so will not likely be a function of Alan Gura but their own assesments in the matter.
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January 26, 2010, 11:46 pmDonald Kilmer says:
It was not my intention to disparage Mr. Clement. I have clients with a stake in the outcome of McDonald. I argued Nordyke and that en banc panel is awaiting the McDonald opinion as to incorporation AND any gems the Court may include as to standard of review.
Since I am in a unique position to aver that Due Process incorporation is not that difficult of an argument to make, it would seem to me that it doesn’t take a Paul Clement to argue the point. Getting around prior circuit precedent and trying to get a favorable scrutiny ruling was the harder argument. And prior circuit precedent is not at issue before SCOTUS.
Given Mr. Clement’s baggage, and the fact that he is arguing a case that will have an unusually large number of lay persons listening to the oral arguments, it would seem to me that the NRA is going to have some explaining to do of we end up with some squishy intermediate scrutiny test for Second Amendment rights. It was a risk the NRA didn’t need to take. They have a pretty deep bench of attorneys who could have taken the NRA’s 10 minutes to argue Due Process incorporation.
As it is, I am afraid that justices hostile to the Heller decision may use Clement’s 10 minutes to extract a disastrous concession from him; or at a minimum to embarrass the Heller majority and/or Clement. And for every minute he spends dancing around this issue, he loses time for making whatever Due Process argument he wants to make. So we end up with a potentially weak(ened) advocate on scrutiny and less effective argument on Due Process. Besides, how tough is the Due Process argument to make when a perfectly good argument exists by simply citing O’Scannlain’s excellent opinion in Nordyke and then sitting down.
For those of you who follow professional football. Replay Brett Favre’s completely unnecessary interception last Sunday, with less than a minute to go in the 4th quarter. He throws a cross-field pass on a play where a field goal was in range for a win. Not sure if it was quarterback error or a coaching error. In the final analysis it doesn’t matter. The game goes into overtime and New Orleans is going to the Super Bowl.
At this level of litigation, unforced errors are unforgiveable. I will remain loyal to the NRA, but as a voting member, I will demand answers and consequences if this turns out badly.
I want to be very clear. I am not disparaging Mr. Clement. I am assuming that his reputation is well deserved. As a legal professional myself, I know that lawyers have to be ABLE to argue both sides of a case. But it is entirely different matter to hire a lawyer who (recently) ACTUALLY argued the other side of an issue in a public interest case with this much public interest.
Imagine having the NRA conduct its own internal poll among its members with the following question: Would you (an NRA member) want the NRA to hire a lawyer to represent you and the Second Amendment before the U.S. Supreme Court, who – when he worked for the federal government – argued that local governments should have the power to ban handguns and require that guns be stored in a way that renders them less effective for self-defense? The results of the poll should seem to me to be obvious. We sometimes forget that we represent clients, not disembodied ideas. Again, if this goes badly, those NRA staff members responsible for this decision may have to answer to a different kind of poll.
I wish Mr. Clement all the best. I hope I am wrong in all my predictions and that my paranoia will turn out to be silly in hindsight.
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January 27, 2010, 12:15 amJoe says:
I know, that Gura is such an idiot. He should have stood up in Heller and argued that it was perfectly legal to tote machine guns in the schoolyard. That would have been a winner for sure.
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January 27, 2010, 4:24 amJoe K. says:
I agree 100% with Donald Kilmer’s comments above. Very well said.
As for Alan Gura’s allegedly uncivil reply to Clement, I’m very surprised people here — with the exception of “Dave R.” above — have totally missed (or dismissed) Gura’s comments in his brief opposing the divided time. As “Dave R.” recaps, the NRA wasn’t surprised in the least by Gura’s filing, because Gura and the NRA had coordinated their briefs in order to avoid duplication. Thus, it was wholly disingenuous, if not deceitful, for the NRA to come rolling in and request time based on the trumped-up claim of an (alleged) oversight by Gura (i.e., the number of pages devoted to Due Process vs. P or I).
Clement’s comments on Monday might have appeared nicer than Gura’s, but let’s not be idiots here. It’s easy to be “gracious” when you’ve punched someone in the face and not only gotten away with it but been rewarded for it. If I was Gura and had worked on Heller and McDonald for a combined 7 years and had been fought by the NRA for almost the entire time, I’d be furious by this latest development.
Lastly, everyone here knows Orin Kerr is no big fan of Gura’s McDonald brief, but for him to try to make hay out of a couple of quotes from a guy who just had 33% of his argument time yanked from him in a major, major case was a low-rent move on Orin’s part. Clement might very well be “the best SCOTUS practitioner” in the country, but for Orin to try to portray Clement as the good guy in this particular instance is so ludicrous it doesn’t pass the laugh test.
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January 27, 2010, 5:16 amSebastian says:
One must avoid the temptation to think of NRA as a monolithic entity with a single mind. There’s quite often the case where the left hand doesn’t know what the right hand is up to. I’d take that under consideration when considering this motion.
That’s not to say I support it. I think it’s a bad idea for many of the reasons floated above. But when considering NRA, one has to consider the possibility that the folks who were working with Gura might not have been the ones who were behind this motion.
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January 27, 2010, 9:17 amC Hoy says:
Chris Cox of NRA-ILA has run this case from Day One. The NRA filed their motion on the LAST day that they could. The Attorneys General filed their request immediately after their brief. When the NRA filed their motion at the last possible moment with the inflammatory and professionally insulting language in it, they did it right in the middle of the time when the Petitioner’s Response brief was due. A nice stab in the back and precious time spent dealing with the request. If they wanted to be “supportive” and play together they picked the most strategically inappropriate time to do so. For some reason the right to keep and bear movement spends most of its time “eating its young.” Maybe that’s why it has taken so long for anyone to actually deal with Second Amendment rights. BTW, RKBA supporters are still dealing with the fallout from the brilliant strategy of Navegar.
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January 27, 2010, 11:37 amA. Dawson says:
Well put.
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January 27, 2010, 1:02 pmH Jernigan says:
The comments above about Clement’s intermediate scrutiny “baggage” are interesting. Especially since McDonald can be decided without having to address the second amendment standard of review; indeed none of the merits briefs even mention that phrase, let alone advocate for any level of scrutiny. One amicus brief, however, practically begs the Court for “a word or two about judicial scrutiny,” filed by a group of plaintiffs who lost a 9th circuit second amendment case (Nordyke) before a panel whose scrutiny analysis resulted in some truly awful language (from the gun advocates’ perspective). The Nordyke plaintiffs are asking the Supreme Court for some help with their 9th Circuit problem, and their attorney, who seems to be the only one asking the court to address scrutiny, thinks that having Clement argue for the NRA is going to mess things up because of his intermediate scrutiny “baggage.” Sounds like Chicken Little to me.
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January 27, 2010, 1:43 pmA. Dawson says:
I recently wrote to the NRA-ILA and asked them explain themselves on this issue. I actually got a response from them for once. Here is what they wrote:
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January 27, 2010, 3:41 pmDonald Kilmer says:
At least one other amici requested that SCOTUS take up scrutiny.
I for one would be happy to be labeled chicken little in retrospect, but we must now wait for March 2, 2010 to see who is right.
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January 27, 2010, 5:54 pmH Jernigan says:
Nordykes and Brady Center, LOL. Standard of review is not an issue in McDonald and I’m not buying the dire prediction that Clement’s “baggage” will be used against him to extract some damaging scrutiny concession. I do hope the Nordykes can undo the terrible panel opinion when this is all said and done, I don’t blame you for trying to do that.
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January 27, 2010, 6:36 pmA. Dawson says:
I think the real risk to pro-gunners is that the 2nd Amendment is actually incorporated but future standard of review cases whittle the 2nd Amendment down to practically nothing.
People don’t realize there Scalia’s penmanship under liberal spectacles actually means California style gun regulation.
I think that’s why the anti’s aren’t more vocal about this. They are going to attack gun rights not through prohibition but rather making firearms impractical or too expensive.
I was an avid shooter until the price of ammo quadrupled. Now I can’t afford it.
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January 27, 2010, 8:33 pmDonald Kilmer says:
It is not part of the question presented for reveiw, you are correct. It was however addressed in the 7th Circuit opinion.
You don’t think some Justice is going to say something like: “Mr. Clement, doesn’t the United States government, and the present administration, hold a position that is contrary to your client’s?”
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January 28, 2010, 12:30 pmH Jernigan says:
To get to that question, that justice would first have to ask what Clement’s client’s position is about standard of review, which may be intellectually interesting but is unnecessary for resolution of the case. Assuming that happens, and assuming Clement concedes that the Obama administration holds a position contrary to that of the NRA, where is the doomsday scenario you envision? It’s no secret that the standard of review is unsettled. Besides, this is a far cry from the following which you say “is the question that Clement will get from SCOTUS” (italics added):
That only place that amateur cheap shot scenario is going to play out is in your imagination I’m afraid. Gun advocates are lucky to have someone arguing the case with the breadth and depth of Supreme Court experience that Clement has.
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January 28, 2010, 3:18 pmDonald Kilmer says:
I have never taken issue with Mr. Clement’s breadth and depth of experience. I have always assumed that his reputation is well deserved.
I am not going to repeat the points I have made already. I will concede that if you are going to hold up my arguments to a standard of omniscience, (i.e., what will be the exact question) then they will probably be found lacking. I think it is possible that Mr. Clement will get some variation of a question like this during oral argument. Either the more subtle query like “What is the current posstion of the United States Government, if you know?” or “That wasn’t your position when you were last before us on this topic.” Either way, Mr. Clement will get a chance to show just how good a lawyer he is, again — if the question is asked.
I repeat, I hope I am wrong. But I have litigated enough gun cases in trial courts and appellate courts to know that this issue brings out some pretty interesting comments from the bench during the heat of argument.
I think I also made the point that even if the Court doesn’t ask the question, NRA members will.
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January 28, 2010, 10:30 pmH Jernigan says:
Clement shouldn’t even show up to court if the position he took in a prior case, wearing a different hat, representing a different client, is going to be so damaging to his current client. If a justice even whispers “standard of review” of “scrutiny,” that would be the death knell for the second amendment if Clement is in the courtroom. With the justices’ customary tactic of “leaving the old SG twisting in the wind while screwing over his private client by reminding their attorney what he did at his old job,” it’s a done deal!
Nobody is omniscient but the potential harm you predict from a line of questioning about standard of review is overstated.
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January 29, 2010, 10:10 amDonald Kilmer says:
Again, it is my sincere hope that you are correct and that I am wrong. But preparation for oral argument before SCOTUS, in a landmark case, with these singular facts, practically begs someone to consider the possibility of the questions I presented.
Consider this: If SCOTUS had wanted divided argument in the first place, why not grant NRA’s and Gura’s petition. They didn’t. They granted Gura’s. Then, divided argument was granted, over petitioner’s objection. And the Attorney General of Texas+34 other states was denied divided argument in spite of petitioner’s support. Might that not have something to do with WHO asked for divided argument? So Clement became an object of interest to the Court in this case. Why?
In about a month, we will find out.
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January 29, 2010, 11:56 am