Some gun owners unhappy with the NRA

[copterdoctor]

http://www.jpfo.org/kirby/kirby-nra-elbows-way.htm

The NRA elbows its way into
the McDonald Case
By Kirby Ferris
Jews for the Preservation of Firearms Ownership.

Copyright JPFO 2010




One wonders if NRA members should be proud of their organization’s apparent newfound fiduciary conservatism. The so-called “premier” gun rights organization has now managed to finagle its way into the spotlight after someone else’s sweat and money rented the hall, built the stage, and set up the sound system.

NRA lawyers are now second guessing pro-gun lawyer Alan Gura’s expertise. And this, after Gura masterminded and navigated the vitally crucial landmark Heller case to a victorious decision in favor of the Second Amendment.

The NRA’s leadership must have looked at each other and realized that (coming so close on the coat tails of Heller) McDonald actually had a good chance at victory. I can just hear them clinking their drinks in toast and chuckling: “Gura will likely win this one too. Let’s get on board now!”

All that might not be so bad, but look who the NRA has hired as their head counsel in this wedge into McDonald: Paul Clement, the very attorney who advocated against our gun rights in Heller!

That’s right, Clement led the federal government’s charge to protect the Washington D.C. ban on handgun ownership!

Here are some of Paul Clements espousals during Heller. These are from Clement’s oral arguments to SCOTUS and from the written brief filed in the case. He penned or uttered these little nuggets of liberty loving patriotism.

“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.”

Oh yeah?

Now take a look at this one:

“The Second Amendment talks about "the right to bear arms", not just "a right to bear arms". And that preexisting always coexisted with reasonable regulations of firearms.”

Don’t you love the word “reasonable”? It sound so…so reasonable! Unfortunately what Clement is talking about here is a ban on the possession of a handgun in your own home for your own self defense!

And here’s an intriguingly slippery one for you:

“Absolutely, Justice Ginsburg, and just... I mean, to give you a clear example, we would take the position that the kind of plastic guns or guns that are specifically designed to evade metal detectors that are prohibited by Federal law are not "arms" within the meaning of the Second Amendment and are not protected at all.”

Hmmm…. Very lawyerly. I’m not going to comment on that one. Just read it a couple of times for your own smell test.

And now a couple of tidbits from Paul Clement’s written brief in Heller:

"Given the unquestionable threat to public safety that unrestricted private firearm possession would entail, various categories of firearm-related regulations are permitted by the Second Amendment."

How does “shall not be infringed” somehow sneak past this guy’s obviously impressive intellect?

Some icing on the cake:

“Nothing in the Second Amendment, properly understood -- and certainly no principle necessary to decide this case — calls for invalidation of numerous federal laws regulating firearms.”

Oh boy…

Yes, friends, this is the man the NRA has hired to defend your gun rights in the unbelievably crucial McDonald vs. The City of Chicago case.

This is the same NRA that still believes the BATFE has a warm and fuzzy place in our lives. See: "NRA Letter"

This is also the same NRA that has not called for the completed destruction of “gun control” laws. And it’s the same NRA that does not appear to have a problem with Nazi “gun control” laws used as a basis for “The Gun Control Act of 1968”. See: this handbill and see also: the film "No Guns for Negroes".

In a recent JPFO alert article I speculated on what might knock McDonald off the rails. See: "Will Your Gun Rights Live or Die?" This present turn of events should certainly not deter our fears. JPFO is not alone in our concern with this NRA/Clement issue. See: this Cato @ Liberty article, (also archive copy here on JPFO).


Paul Clement is like a shark who just tried to bite our legs off. And now the NRA has crashed the pool party and tossed him in with us! Is it “hire a crook to catch a crook” logic? How can Clement’s oral arguments in the upcoming McDonald case possibly be all that effective? Those nine Justices (four of whom are obviously anti-gun Liberals) might truly wonder to themselves: “Hey! This guy was here about a year ago and argued the exact opposite of what we’re hearing now!”

Hey NRA, do you call that good legal strategy? And more importantly: Do you really want a McDonald victory?

 

[Rob Boudrie]

A former boss of mine one explained it: "The key to success is to grab on to a comet and convince everyone that the comet is moving because you are pushing"

 

[Bill Nance]

A former boss of mine one explained it: "The key to success is to grab on to a comet and convince everyone that the comet is moving because you are pushing"

Yup

 

[MassMark]

The NRA? On the wrong side of an issue? Monkey wrench tossing? No way! Say it isn't so Joe!....

 

[RHJJ]

The NRA is not perfect,where would we be without it?

 

[gjones77]

The NRA is not perfect,where would we be without it?

In the same place we are now, especially in Mass since they've left us out here to fend for ourselves, thankfully we have GOAL (great Job Jim, keep it up).

The NRA seems to only jump on when there's a chance of winning, otherwise they even bother to help out in many legal caxses.

 

[Acujeff]

Read the facts - decide for yourself.

The Next Supreme Decision: Showdown Over Chicago

1/23/2010
http://www.nraila.org/Issues/Articles/Read.aspx?id=398&issue=010

The NRA files a brief in the U.S. Supreme Court case of McDonald v. Chicago, making a powerful argument in defense of the Second Amendment.

by Dave Kopel

Later this year, the U.S. Supreme Court will decide whether the Second Amendment applies to state and local governments. NRA members can be proud of the fine brief filed on their behalf by a team of attorneys led by Stephen D. Poss and Stephen Halbrook.

Before getting into the brief, let’s look at some background. In June 2008, the Supreme Court decided District of Columbia v. Heller, ruling the Second Amendment applies to “the people,” not just the militia; therefore, the Washington, D.C. handgun ban was ruled unconstitutional.

The D.C. Council is, in effect, an arm of the federal government, because all of the Council’s powers are mere delegations of Congress’ total power to govern the nation’s capital. Thus, the Supreme Court in D.C. v. Heller did not decide whether the Second Amendment applies to state or local governments.

In the 1833 case Barron v. Baltimore, the Supreme Court ruled the Bill of Rights only limits the federal government. After the Civil War, Congress passed and the states ratified the 14th Amendment, which was intended to make the Bill of Rights apply to the states. Congress was especially determined to make states obey the Second Amendment because Congress was outraged the Southern states had enacted “black codes,” which forbade freedmen from possessing arms.

Two provisions of the 14th Amend-ment addressed the problem. One says, “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.”

Unfortunately, the Supreme Court quickly nullified the Privileges or Immunities clause in the Slaughter-House Cases (1873) and United States v. Cruikshank (1876).

The second clause in the 14th Amend- ment mandates: “nor shall any State deprive any person of life, liberty, or property, without due process of law.” The principle of “due process of law,” as understood by the framers of the 14th Amendment and by Americans all the way back to James Madison, included some substantive limitations on government power.

For example, if a government passed a law that said, “All people with last names beginning with ‘A’ or ‘B’ must pay $500 each to the government, and the money will be redistributed to persons whose last names begin with ‘X,’ ‘Y’ or ‘Z,’” that law would be a violation of the Due Process clause.

Even if the law had been passed with proper procedures--such as a recorded vote by the legislature following a public hearing--the law would be void because it would be beyond the legitimate powers of government.

Starting in 1895, the Supreme Court began to use the 14th Amendment’s Due Process clause to make some provisions of the Bill of Rights enforceable against state governments. Because local governments derive power from the states, a constitutional restriction on state governments automatically applies to local governments also.

Under the Supreme Court’s doctrine of “selective incorporation,” the court chooses which parts of the Bill of Rights will be applied to the states.

For example, the Eighth Amendment’s prohibition on “cruel and unusual punishment” has been incorporated, but not the amendment’s ban on excessive fines.

Immediately after Heller was decided, the NRA filed a lawsuit, NRA v. City of Chicago, challenging Chicago’s handgun ban.

The winning attorney in Heller, Alan Gura, filed a separate case on the same issue, McDonald v. Chicago. The federal Seventh Circuit Court of Appeals consolidated the two cases and ruled in favor of the handgun ban last June (See “U.S. Supreme Court Revisits the Second Amendment,” Dec. 2009).

Then in September, the Supreme Court announced it would hear the McDonald case.

 

[Acujeff]

The Supreme Court said the attorneys should present arguments on whether the handgun ban should be considered unconstitutional under the Privileges or Immunities clause or under the Due Process clause.

Because the NRA had been a party in the consolidated case in the Seventh Circuit, the NRA was included in the Supreme Court case as a party. Formally, the NRA is a “Respondent in Support of Petitioner.”

As a party challenging the handgun ban, the NRA filed its brief on Nov. 16. In early 2010, the NRA will file a reply brief that will respond to arguments raised by Chicago. The January 2010 NRA brief, will also respond to arguments in amicus curiae (non-party) briefs filed in support of Chicago.

McDonald’s attorney, Alan Gura, devoted his brief mainly to the Privileges or Immunities question.

The NRA brief, however, concentrates on Due Process and is the product of an extremely strong legal team. Lead counsel Stephen D. Poss is a senior partner at the corporate law firm Goodwin Procter LLP, and is co-chair of the firm’s national Securities Litigation Practice.

Several other Goodwin Procter lawyers volunteered to help on the brief, including partner Kevin Martin and associate Joshua Lipshutz, both of whom served as clerks for Supreme Court Justice Antonin Scalia (the author of the Heller decision).

All the Goodwin Procter lawyers contributed their services pro bono, meaning that they worked free of charge as public service volunteer work in a major civil rights case. Poss and his Goodwin Procter colleagues previously did pro bono work in writing the amicus briefs for the NRA Firearms Civil Rights Defense Fund in Heller, and in New York v. Beretta, Mayor Bloomberg’s abusive lawsuit against firearm manufacturers.

Of course, NRA lawyers also participated in the McDonald brief. Poss explained NRA General Counsel Robert Dowlut and NRA-ILA Deputy Executive Director and General Counsel David Lehman “... played key roles assisting the briefing team with edits and ideas. David Lehman’s first child was born while we were working on the brief and he e-mailed us from the hospital!” Indispensable to the brief was Stephen Halbrook, who led the NRA case in the federal district court and court of appeals, and who is the world’s leading scholar on congressional protection of the right to arms during Reconstruction.

Poss recounted, “one of the special pleasures” of working on the brief “was the opportunity to collaborate with Steve Halbrook.” Much of the brief summarizes what Poss calls Halbrook’s “extensive research and writings on the primary importance of the Second Amendment to the framers of the 14th Amendment, who were concerned about stopping the disarming and terrorizing of newly freed slaves in the Reconstruction South following the Civil War.”

Part I of the NRA brief begins, accurately: “More evidence exists that the Right to Keep and Bear Arms referenced in the Second Amendment was intended and commonly understood to be protected by the Fourteenth Amendment than exists for any other element of the Bill of Rights.”

Providing all this evidence would fill a book--and has already. Namely, Stephen Halbrook’s Freedmen, the Fourteenth Amendment, and the Right to Bear Arms, 1866╨1876 (Praeger, 1998). The brief, with a 15,000-word limit, cannot recapitulate all of this evidence, but it does present the key facts.

Shortly after the Civil War, Southern states enacted the infamous “black codes,” designed to keep the former slaves in a condition of subjugation. For example, a Mississippi law stated: “That no freedman, free negro or mulatto . . . not licensed so to do by the board of police of his or her county, shall keep or carry fire-arms of any kind.”

In response, the same Congress that passed the 14th Amendment passed the Freedmen’s Bureau Bill. That bill provided that in all states that had not been re-admitted to the Union, the “right . . . to have full and equal benefit of all laws and proceedings concerning personal liberty, personal security and the acquisition, enjoyment and disposition of estate, real and personal, including the constitutional right to bear arms, shall be secured to and enjoyed by all the citizens of such State or district without respect to race or color or previous condition of slavery.”

Congress was aware of the continuing abuses of civil rights, thanks to reports such as the one written by General Ulysses Grant, who reported to Congress the Mississippi law prohibiting blacks “from bearing arms, without a special license, is unjust, oppressive and unconstitutional.”

Grant, of course, would be elected president of the United States in 1868, and re-elected in 1872. In his two terms, he used federal power to enforce civil rights more vigorously than any president before, or any president for nearly a century afterward. After serving as U.S. president, Grant then served as president of the National Rifle Association, our nation’s leading civil rights organization.

As Poss and Halbrook show, the 14th Amendment was understood by the Congress that passed it, and the states that ratified it, as protecting the Bill of Rights, especially the Second Amendment.

After the 14th Amendment became the law of the land, Congress used its enforcement powers, granted by section 5 of the amendment, to further protect the right to arms.

The Enforcement Act of 1870 made it a federal felony for persons to conspire to injure someone in order to prevent him from exercising “any right or privilege granted or secured to him by the Constitution or laws of the United States.”

When the Enforcement Act was being passed, Sen. John Pool, R-N.C., pointed out how the Ku Klux Klan would “order the colored men to give up their arms; saying that everybody would be Kukluxed [murdered] in whose house fire-arms were found.” Likewise, Sen. John Thayer, R-Neb., stated: “The rights of citizenship, of self-defense, of life itself were denied to the colored race. . . .”


Soon after, Congress enacted the Civil Rights Act of 1871, which provided civil liability for anyone who, acting under color of law (that is, with government authority), deprived anyone of “any rights, privileges or immunities secured by the Constitution of the United States.”

Again, congressional intent to protect Second Amendment rights was clear. Rep. Henry Dawes, R-Mass., said every citizen “has secured to him the Right to Keep and Bear Arms in his defense,” and the purpose of the Civil Rights Act was to “secure to him in these rights, privileges and immunities.”

Part II of the NRA brief addresses the Supreme Court’s precedents for selective incorporation of the Bill of Rights via the Due Process clause. As Poss and Halbrook summarize, the Supreme Court’s incorporation cases have used terms such as “liberty,” “a free society,” “free government,” the “liberty . . . at the base of all our civil and political institutions” and “ordered liberty.” Repeatedly the Supreme Court has asked whether a particular right is an essential part of “our” American system of liberty.

The Second Amendment easily passes those tests. To begin with, the very text of the Second Amendment declares that it protects something that is requisite to a free society. That is, “necessary to the security of a free State.” In addition, the Heller decision itself quoted sources that affirmed the right to arms and to self-defense are “fundamental.” Among them was St. George Tucker, the leading legal scholar of the early republic, who wrote the Second Amendment is “the true palladium of liberty” and “the right to self-defense is the first law of nature.”

The Supreme Court has often looked to state practices to decide which rights are embedded in our American bedrock of liberty. Again, the evidence for incorporation is overpowering--44 state constitutions protect the right to arms.

The right to arms is the very reason why the government of the United States exists. As the NRA brief explains, “This case is before the Supreme Court of the United States of America precisely because Redcoats marched on Concord in April of 1775 to seize weapons and gunpowder, and were met by colonists jealous of their right to keep and bear arms who fired the first shots of the War of Independence.”

British General Thomas Gage’s subsequent confiscation of arms from the people of Boston “would be among the grievances detailed in the Declaration of Causes of Taking Up Arms of July 6, 1775.”

From that April morning in 1775, to the frontier of the growing nation, to the present, the right to arms has always been at the center of our liberty. Thus, “In comparison to the right to keep and bear arms, no right has deeper roots in our history, no right is more essential to the preservation of all rights and no right has a stronger claim to fundamental status.”

Part III of the brief is shorter and shifts the argument from the Due Process clause to the Privileges or Immunities clause. The brief suggests the Supreme Court’s three 19th century decisions in which it rejected Second Amendment arguments are all distinguishable: United States v. Cruikshank (which was brought under the Enforcement Act of 1870) involved misconduct by private citizens, not by a government; Presser v. Illinois (1886) simply held that holding a mass armed parade without a permit is not part of the Second Amendment right; and Miller v. Texas (1895) rejected the defendant’s Second Amendment claim on appeal because he had not raised the issue in the trial court.

Accordingly, argues the NRA brief, the Supreme Court does not need to overrule any precedent in order to make the Second Amendment applicable to the states via the Privileges or Immunities clause.

Finally, Part IV briefly addresses and supports the main argument in the Gura brief: the Slaughter-House Cases should be overruled and the Supreme Court should make a fresh start on Privileges or Immunities jurisprudence. That would be a perfectly good result, but whether five justices of the Supreme Court are willing to go that far remains to be seen.

Poss explained the strategic choices: “The NRA brief is aimed purely at the singular goal of incorporating the Second Amendment so as to provide nationwide protection of Second Amendment rights,” he said. “Thus we provided the Supreme Court with a menu of arguments demonstrating that the court does not need to overrule or reverse any precedent in order to incorporate the Second Amendment under the Due Process Clause and also showing an alternative route to incorporation via the Privileges and Immunities Clause of the Fourteenth Amendment.

“I am immensely proud of the combined work of our team on this brief.”

As an NRA member, you should be, too. Your association began fighting for civil rights in 1871 and it is continuing that fight in the 21st century with superb legal work worthy of the immense issues that are at stake.

Dave Kopel is a constitutional scholar and frequent America’s 1st Freedom contributor. His newest book is Aiming for Liberty: The Past, Present and Future of Freedom and Self-Defense. Visit www.davekopel.com.

 

[drgrant]

The NRA hired an attorney that worked against us? What kind of messed up s**t is that? It was bad enough that they tried to derail heller...

I used to think they actually played a role, but now they seem to be more interested in perpetuating thier own existence than they are about protecting (and restoring) our rights.

-Mike

 

[garandman]

If they'd just stop sending me junk mail, I'd happier. I swear they spend half my dues on solicitations.

 

[jhrosier]

The NRA is not perfect,where would we be without it?

In Massachusetts.

 

[Scrivener]

If they'd just stop sending me junk mail, I'd happier. I swear they spend half my dues on solicitations.

Hardly a crisis - go to the website or call and get removed from the list.

We've discussed this before.

 

[bubbaj]

I don't get the constant bashing of the NRA. If you don't like don't be a part of it. Just like anything else, if you don't like what they are doing then leave. I have my issues with them as do most members. The NRA leadership is questionable these days but they have been around a very long time and still do some good work. I'd like to see them clean up their act. The waste of money on these mailings is a prime example of the fundamental problems they have. If the NRA goes away who will be there in Washington for us?

 

[Rob Boudrie]

The waste of money on these mailings is a prime example of the fundamental problems they have.

I expect each mailing is carefully analyzed for revenue potential and that they are in general revenue positive - otherwise they would have stopped long ago.

 

[Billsail]

This is some really scary sh!t!!! What or who? drives the NRA today? Can we trust these chameleons with what is perhaps the only "right" that may be necessary for our survival as a free society?

Bill



edit: My club requires membership...

 

[sig2009]

Unhappy! You mean I should be happy that the NRA hasn't done S#$T for us in New Jersey. The NRA sucks!!!!!

 

[gene]

Until Goal becomes national, I will keep sending atleast my annual dues. Someone let me know when there is a better game in town though!

 

[Scrivener]

Unhappy! You mean I should be happy that the NRA hasn't done S#$T for us in New Jersey. The NRA sucks!!!!!

And what miracle do you expect it to do in the Garden State? Or do you, like so many others, not grasp the fact that NRA stands for NATIONAL Rifle Association?

STATE improvements must start at the STATE level. Expecting the NRA to ride in like the Lone Ranger and save you from officials YOU elected is a tad unrealistic, if not disingenuous.

 

[Tim L]

I dropped the NRA a couple years ago and went with GOA and NH firearms coalition. The NRA got a little too full of themselves and when they called me for more money (again) telling me that they "rolled up their sleeves and went to work" in the Heller case that ripped it.

 

[PaulD]

The NRA is not perfect,where would we be without it?

We'd all be members of some other organization that grew to fill the void.

 

[PaulD]

And what miracle do you expect it to do in the Garden State? Or do you, like so many others, not grasp the fact that NRA stands for NATIONAL Rifle Association?

STATE improvements must start at the STATE level. Expecting the NRA to ride in like the Lone Ranger and save you from officials YOU elected is a tad unrealistic, if not disingenuous.

By that logic, why is the NRA involved in the MacDonald case?

They do get involved at the state level on occasion: http://www.nraila.org/News/Read/NewsReleases.aspx?id=76

 

[AppleSeeds]

I guess it's not entirely clear to me what the NRA's role in the McDonald case is. It sounds to me that they are offering the court an alternative to Gura's that is not as effective. Do we look at this as risk mitigation, aka "better to win something" or is it more like shooting the cause of ultimately having the 2nd amendment incorporated in the foot so to say?

 

[Rob Boudrie]

I guess it's not entirely clear to me what the NRA's role in the McDonald case is.

Stepping in to take credit.

--------------------

I tried to get the NRA involved in fighting the mail order ammo ban. After a few email exchanges with an NRA attorney to get past the point where they tried to respond by explaining the basics of MGL to me (unnecessary, but at least their info was accurate) they finally understood that I was asking for them to assist the damaged parties (NRA members who were forced to pay higher prices for product due to questionable legal interpretations by the AG). Their response was a statement that absolutely no assistance would be forthcoming form the NRA, but that I was free to bring a legal action at my own expense.

 

[terraformer]

Some gun owners unhappy with the NRA

Best. Understatement. Ever...

 

[Scrivener]

By that logic, why is the NRA involved in the MacDonald case?

Because that case has NATIONAL repercussions. It would be a means of incorporating Heller, thus providing a tool for striking down gun bans nationwide.

 

[garandman]

Hardly a crisis - go to the website or call and get removed from the list.

We've discussed this before.

Aside from your flunking out of charm school, then I need some help. Because I spent 45 minutes on the phone with them and still get the same amount of junk mail and don't find any unsubscribe options on the website.

 

[Scrivener]

Then I need some help. Because I spent 45 minutes on the phone with them and still get the same amount of junk mail.

From the FAQs page of the Member Services section of the website:

Q: How can I reduce the amount of mail I receive from the NRA?

A: Simply email us at [email protected] or dial 800-NRA-3888 and request to be placed on the "Do Not Promote" list. This will significantly reduce the amount of mail you receive without affecting important mailings, magazine service, or your membership renewal.

 

[Rob Boudrie]

Because that case has NATIONAL repercussions. It would be a means of incorporating Heller, thus providing a tool for striking down gun bans nationwide.

While true, I think it avoids the essence of the question.

The real question is "Why is the NRA getting involved in a case it did not bring, brought by an attorney whose previous successful action was brought over the objections of the NRA?". There are a couple of possible reasons. One is sincere belief by the powers that be at the NRA that their contribution will increase the possibility of success, and the other is that they see that victory is likely and they want a piece of the action (and credit) after having missed out in the Heller case. My guess is that the truth is a combination of both.

The MacDonald case is a question of law, however, SCOTUS cases take on a political aspect and it is obvious that some justices consider things such as "desired public policy" rather than "what the constitution requires" when considering cases. I am not convinced that the NRA's addition to the case brings any benefit as Gura seems capable of effectively arguing the points of law, and the NRAs presence may serve only to add political baggage.

 

[garandman]

From the FAQs page of the Member Services section of the website:

Q: How can I reduce the amount of mail I receive from the NRA?

A: Simply email us at [email protected] or dial 800-NRA-3888 and request to be placed on the "Do Not Promote" list. This will significantly reduce the amount of mail you receive without affecting important mailings, magazine service, or your membership renewal.

Thanks, I just found that.

 

[jkdyoyo]

In the same place we are now, especially in Mass since they've left us out here to fend for ourselves, thankfully we have GOAL (great Job Jim, keep it up).

The NRA seems to only jump on when there's a chance of winning, otherwise they even bother to help out in many legal caxses.

+1 precisely why I dropped my membership.