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.

Nobody is omniscient but the potential harm you predict from a line of questioning about standard of review is overstated.

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.

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.]

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.

H Jernigan: 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.

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?”

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.

H Jernigan: 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.

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.

Dear Mr. Dawson,

Thank you for your message about former U.S. Solicitor General Paul Clement’s representation of the NRA in McDonald v. City of Chicago, which involves the question of whether the Second Amendment applies to the states.

The NRA chose Solicitor General Clement for oral argument in this case because he is one of the leading Supreme Court advocates of our time and has argued dozens of cases before the Court. In the case at hand, he represented 251 members of the U.S. House of Representatives and 58 U.S. Senators in filing an historic and very important friend of the court brief, which makes a strong and effective case in favor of incorporation. A link to this brief can be found here: http://www.nraila.org/media/PDFs/litigation/mcdonald_ac_congress..pdf

During oral argument, Solicitor General Clement will ensure that the Court hears all the arguments for applying the Second Amendment to the states under the Fourteenth Amendment. The Court could reach that result either through the Privileges or Immunities Clause (as the plaintiffs in the case have emphasized), or through the Due Process Clause (as the Supreme Court has chosen to apply nearly all of the other provisions of the Bill of Rights). The NRA’s solitary goal in this case is to ensure that the Supreme Court applies the Second Amendment to all Americans throughout the country, no matter which method the Court chooses to use.

Obviously, we realize that Solicitor General Clement represented the federal government’s position in District of Columbia v. Heller. In that case, the government took the position that the Second Amendment does protect a pre-existing individual right to keep and bear arms, but that the Court should apply an “intermediate” standard of review, less favorable to Second Amendment challenges to federal gun laws than the standard advocated by the NRA. On the standard of review issue, we disagreed with the government’s position at the time and we still disagree with it.

However, it is critically important to remember that this position was the government’s, not its lawyer’s. At the time, Solicitor General Clement had a duty to represent the position of his client. Now that he is representing the NRA, just as when he was recently representing a bipartisan majority of Congress, he will strongly represent the interests of NRA members and all other Americans who believe the Second Amendment should apply equally throughout our nation.

Cordially,

[Name of contact redacted]
NRA-ILA Grassroots Division

Donald Kilmer: 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.

Well put.

Sebastian: 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.

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.

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.

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.

Sealawyer:
This is rich coming from the guy who sounded like a lawyer for the Brady Campaign during the oral argument for the Heller case.

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.

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.

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. :-)

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.

ISRA was also awarded that title in 2009.

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. :-)

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.

Donald Kilmer: 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.

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.

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?

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.

Hans Bader: 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.

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.

Off Kilter: 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/

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.

Dave Hardy: 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).

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.

http://www.cato-at-liberty.org/2010/01/26/nra-cares-more-about-nra-than-gun-rights-liberty-professional-courtesy/

“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.”

zippypinhead: 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…

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.

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…

The justices now get to ask for NRA’s views on the constitutionality of various regulations. That could be significant.

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.

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.

People may not want to hear it, but it’s true. Don’t shoot the messenger.

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.

;->