Extremism In Defense of Liberty...
Previously, I discussed the fee petition filed by the plaintiffs' attorneys in the Heller Second Amendment litigation. Most of my ire was focused on Cato Institute chairman Robert Levy, the mastermind of the case. But one should not overlook Alan Gura, the attorney retained by Mr. Levy who actually prosecuted and argued the matter. In a declaration he filed with the district court in support of the petition for attorney fees, Gura claimed he risked his entire career -- and earned the hatred of individual rights "extremists" -- to win the superficial approval of a 5-4 Supreme Court for a heavily restricted individual right of self-defense:
The feedback following the Supreme Court argument, and again following the Supreme Court's decision, has been overwhelmingly positive and quite gratifying. However, I have also received a notable amount of often vulgar, hateful and irrational criticism from extremists who believe I "sold out" their Second Amendment rights in conceding that the right to keep and bear arms is not an absolute right completely free of government regulation. One alleged pro-gun"organization issued a press release announcing its "shock and horror" at my so-called concession that there will be at least some constitutional gun regulations. The head of this organization went on the air with a conspiracy theorist host and harrumphed his approval as the host alleged we were "Judas goats" who pursued the case in collusion with the Defendants to gut the Second Amendment. Conceding the theoretical constitutionality of some gun regulations led one editorialist to suggest that someone "got to" me before the argument, or perhaps I was incompetent. And I received one letter from a federal inmate incarcerated for gun violations, who has some radical connections, advising me, "you were nothing short of Benedict Arnold or Osama Bin Laden. I expect historians to burn you at the stake, deservedly." Calling me an "elite suburban lawyer," the inmate concludes that I was "the wolf in sheep's clothing that invites the other judicial hyenas in the door to ritualistically taste the raw flesh of The Bill of Rights anew." And this is all from people who are sympathetic to an individual rights interpretation of the Second Amendment (albeit a lunatic variant unlikely to persuade a single federal or state judge in the land). My sense is also that many attorneys and others who were sympathetic to the city's position, and who actually understand what occurred, are no happier with me or my co-counsel.
The "alleged 'pro-gun' organization" Gura referred to is Gun Owners of America, which filed an amicus brief in the Heller case. According to the Old Famer's Wikipedia, GOA is the second-largest gun organization in America and has been praised by Ron Paul as "The only no-compromise gun lobby in Washington." Here's the relevant passage from GOA's March 18, 2008 press release:
Justice John Paul Stevens asked Alan Gura, the attorney for Dick Heller, if it would be proper to say that the right protected in the Second Amendment shall not be "unreasonably infringed"?
To our shock and horror, Gura answered "yes." He did qualify his answer somewhat by saying "we don't know" exactly what this "unreasonable standard looks like." But he conceded a significant amount of ground with his answer, because any ban would be "reasonable" to Chuck Schumer and Sarah Brady.
Truth be told, we do have a proper standard for interpreting the Second Amendment. The language doesn't say anything about "reasonable" or "unreasonable;" it simply says the right of the people "shall not be infringed." It's a shame that even people on "our side" don't fully understand that.
I don't know who the "conspiracy theorist host" Gura referred to was -- you'd think Gura would be more specific in a federal court filing -- but I did find a GOA op-ed in that notorious bastion of extremism, USA Today:
Entrusting the nation's sovereignty to the people, the [Second] amendment breaks the government's military monopoly, guaranteeing to the people such firearms as would be necessary to defend against the sort of government abuse of their inalienable rights the British had committed.
Thus, the amendment's "well regulated Militia" encompasses all citizens who constitute the polity of the nation with the right to form their own government. The amendment's "keep and bear Arms" secures the right to possess firearms such as fully-automatic rifles, which are both the "lineal descendant(s) of ... founding-era weapon(s)" (applying a 2007 court of appeals' test), and "ordinary military equipment" (applying a 1939 Supreme Court standard).
No government deprives its citizens of rights without asserting that its actions are "reasonable" and "necessary" for high-sounding reasons such as "public safety." A right that can be regulated is no right at all, only a temporary privilege dependent upon the good will of the very government officials that such right is designed to constrain.
Of course, this is merely a "lunatic variant" of the Second Amendment "unlikely to persuade a single federal or state judge in the land." (For more extremist hijinks, see Stephan Kinsella's post today at LRC.) Which is why District of Columbia taxpayers must handsomely compensate Mr. Gura for, well, saving us from the horror of individual rights:
I am confirmed in my belief that I took this case at significant risk to my career, and even having achieved great success in the case, the impact on my career would only be net positive, not entirely so. Losing the case at the Supreme Court would have made me and our legal team really unpopular with gun rights proponents of all persuasions. And even achieving a significant victory, while it generates net positive goodwill, has also spawned a measure of hostility and bitterness from extremists on both sides of a politically charged issue. Considering the scope of victory, the inherent conceptual and legal difficulty and great complexity of the case, the long odds, and the unavoidable controversy, respectfully, our legal team is entitled to a significant enhancement multiplier for the risk of taking on such work, for performing as we did, and for achieving such an incredible result.
Incidentally, Mr. Gura's pre-Heller career was hardly that of a struggling civil rights attorney. Indeed, he has little trouble defending the government when it's willing to pay him and give him a title:
Prior to founding Gura & Possessky, PLLC, Mr. Gura began his career by serving as a law clerk to the Honorable Terrence W. Boyle, United States District Judge for the Eastern District of North Carolina. Subsequently, as a Deputy Attorney General for the State of California, Mr. Gura defended the State of California and its employees from all manner of lawsuits, in state and federal courts, at trial and on appeal. Thereafter, Mr. Gura entered the private practice of law with the Washington, D.C. offices of Sidley & Austin. In February 2000, he left the firm to serve for a year as Counsel to the United States Senate Judiciary Committee, Subcommittee on Criminal Justice Oversight.
Comments (14)
Charles Hueter
Count me among the "extremists." An action isn't a right if the state sets the conditions for your use of it.
Other than mere precedent, I see no reason why people should be taxed in order to pay these lawyers. Why isn't Heller doing it? Why not through a voluntary fund set up by supporters?
Published: October 21, 2008 12:27 PM
Milena Thomas
I'm a bit baffled by all of this.
Published: October 21, 2008 12:30 PM
Inquisitor
I forget, to Cato liberty is an extreme.
Published: October 21, 2008 1:03 PM
Nick
It's simple.
The people have to pay because they allowed a law to be passed that violated someone's rights.
When the plaintiff went to court and won, his attorneys became eligible to recoup legal fees from the defendant - In this case the defendant is the people.
It's even worse because DC is a federal district making all of us responsible.
We can dicker all day long about the amount; but in the end they have to, and should be, paid by the defendant.
Published: October 21, 2008 1:10 PM
Doug
If Mr Gura took the case realizing a 'significant risk to his career', why exactly is he complaining? He should be content.
Published: October 21, 2008 1:10 PM
Brent
Heller is a joke. It doesn't protect any rights. It merely sets the parameters of the framework that politicians are now required to use when they make their arguments to take away our rights. Of course, taking away our rights is, per Heller, still very much lawful.
Published: October 21, 2008 1:27 PM
Charles Hueter
Nick, I understand that argument, but I don't accept it.
Your premise is to be individual responsibility for one's voting actions, correct? Those who voted for the ordinance ought to be put on the hook for the legal fees. Yet the Firearms Control Regulations Act of 1975 was passed by the D.C. City Council, so they ought to foot the bills by your logic. (not that I'm opposed to tyrants reimbursing their victims!)
But we're talking about taxpayers, many/most of whom had absolutely no say in the lawmaking processes in the 1970's. How does responsibility trickle down to them via the broad brush of taxation?
Published: October 21, 2008 3:14 PM
Alex Peak
Mr. Guru thinks because he's voluntarily taken on some sort of "risk," that entitles him to steal from innocent people?
Even if Mr. Gura had not made his absurd, irrational, extremist claim that the second amendment is not absolute, he would still have no right to rape the people of D.C. through accepting the tax-dollars stolen from them by the district.
Nick writes, "The people have to pay because they allowed a law to be passed that violated someone's rights."
Not everyone in D.C. supported the ban.
Nick continues, "When the plaintiff went to court and won, his attorneys became eligible to recoup legal fees from the defendant - In this case the defendant is the people."
No, the "people" are innocent. Only those specific persons who voted for it and who enforced it are guilty.
Sincerely,
Alex Peak
Published: October 21, 2008 11:21 PM
Stanley Pinchak
Charles Hueter,
this as, I think you are alluding to, is a fundamental problem with democracy. When property rights are ill-defined, there is inevitably a tragedy of the commons. In this case, the innocent are forced to pay legal fees. Were this a private corporation which violated Mr. Heller's property and natural rights, the reparations could rightly be demanded from the principles of the violating corporation. Since under democracy, one can not opt out, those who were disenfranchised with regards to this particular state action can not avoid punishment. Furthermore, with a secret ballot, they can not prove their discontent with and disapproval of the actions of the representatives who perpetrated the violence against Mr. Heller. Until the state is voluntary, and thus no longer a state, these situations are unavoidable.
Published: October 21, 2008 11:32 PM
Nick
Charles -
My premise is that everyone over the age of eighteen is responsible. We're all "franchised" into the political system and with that comes the responsibility of maintianing it - and sometimes that means more than just simply showing up on election day and casting a vote.
We can't absolve ourselves of responsibility by simply saying that we had no say in laws that were passed - even if they were passed before we lived there or were even alive. It is our responsibility to not only vote for our representation, but to know and understand the laws of the land and when we should "urge" our representatives to correct the bad ones.
If you stand accused before a judge, your argument that you didn't know about the law because you weren't born or didn't live there when it was passed will mean nothing - He's going to tell you that little cliche that everyone has heard: "Ignorance of the law is no excuse."
The same cliche applies here.
Does it matter that the laws number such that it would impossible for anyone to know them all? Not really because in the end, that's our fault as well.
This is called "getting the government we deserve."
Published: October 22, 2008 8:34 AM
phillip
You people are insane. If Gura had lost 5-4 nobody would be calling the decision "superficial". It'd be called a catastrophe. Gura's job here was very narrow: allow his client to defend his home. Going for extreme positions or "absolute rights" is a sure way to lose this case (especially when going after those liberal swong votes).
The lack of gratitude for this guy taking five years out of his life to work on this case is amazing. I don't know what's behind what appears to be a cranky personal attack here but it should be said that Gura did a great job and should be compensated for his work.
Published: October 22, 2008 9:56 AM
Stanley Pinchak
phillip,
I think there is something to be learned from Mises's analysis of middle of the road approach when it comes to government intervention which can be applied here. It is the small encroachments and the defensive posture of the defenders of freedom which allows tyranny to be instituted. By advocating a balanced approach as you appear to be doing, there is no principle upon which the defender of liberty and RKBA can stand. By allowing any reasonable restriction of rights, you have ceased to have any right. If Heller lost, the defenders of liberty would have a rallying cry. As it stands now, they are stripped of their right and of the indignation of the majority of gun owners. Those who are left to care about the issue are the principled defenders of liberty and RKBA. Everyone else is placated. Those who would strip the right, because they got their loophole, and the casual gun owner, because he mistakenly believes that his individual right will be protected. This finding is absolutely the worst ruling that could have happened and will be the foundation of reasonable restrictions which disarm the population.
Published: October 22, 2008 10:48 AM
Charles Hueter
My premise is that everyone over the age of eighteen is responsible.
Even those few people who have openly opposed and spoken out against the bad law? Even those who run against incumbents with an explicit message to overturn bad laws? Then there's the issue of exactly how much each "responsible party" ought to pay. You won't be able to convince me the taxpayers in this situation will be treated equally for their alleged irresponsible behavior.
We're all "franchised" into the political system and with that comes the responsibility of maintianing it - and sometimes that means more than just simply showing up on election day and casting a vote.
I stopped voting in 2003 and I reject any notion that I have a responsibility to maintain a system that is thoroughly immoral, corrupt, wasteful, and threatening.
It is our responsibility to not only vote for our representation, but to know and understand the laws of the land and when we should "urge" our representatives to correct the bad ones.
Why do I need someone to represent me? No candidate could do so accurately and still retain their individuality and "duty" to represent his or her other constituents arbitrarily allocated to that political district. Who's going to get elected on a platform calling for the end of all aggressive economic and social intervention, a platform that has no trouble calling itself "market fundamentalism" or "anarcho-capitalism"?
I am not representable nor do I want to be. The only "voice" I need in whatever mundane hearing determines the quarterly aggregate production quotas on Floridian vs. California citrus is simple: Stop Everything And Leave People Alone. I can do that from the comfort of my own home, without the need to support a congressperson's or bureaucrat's salary or legislative/regulatory functions.
This is called "getting the government we deserve."
How cause and effect lead you to think I personally deserve this horrific leviathan at the federal, state, and local level escapes me.
Published: October 22, 2008 12:26 PM
Nick
I'm an anarchist myself. I've never registered to vote - EVER. I'm against it on principle. I believe voting to be an act of force and aggression and government is but an agent of that force. I refuse to participate because I believe that the only time I should use force is to defend myself.
However, I will not deny that I'm a member of this state - as messed up as I believe it to be - I'm still a member and as such I'm responsible for it's actions.
If the state passes a law that violates someone's rights, their recourse is not only to have their rights restored, but to seek restitution and legal fees from the state. It is the case in any violation of rights because we are all "the state". When someone gets the beatdown from the cops and they sue and win who pays? The taxpayers of the jurisdiction. Judicial beatdown through passing a law is no different. It matters little when the law was passed.
Everyone gets the government they deserve. If you're not willing to step up and stop it, you're getting what you deserve. China for instance - The average citizen outnumbers the army by a three-to-one ratio easily. If they really wanted to throw off their chains, there's nothing the army could do but let them take over. However, many average citizens would die on the road to freedom and therein lies the rub: They don't want it enough. So they're getting what they deserve.
Just like us.
People all over the US want all the benefits of being franchised, but none of the responsibility. The majority want things like free healthcare and housing, jobs for everyone, food for everyone,...etc. And they imagine they can just vote for it and make it so. They have no clue where money comes from or what it means. To them it just seems "fair" that healthcare, housing, food, and a retirement plan with no risk be rights as important as the right to free speech.
"How do we pay for it?" I ask them. "Tax the rich," they reply. "We'll vote on it."
They don't have the responsibility required to sit and examine the facts and understand that taking from one to give to another is theft and wrong EVEN if you vote on it.
And we will get the government we deserve until we decide to stop it.
Published: October 22, 2008 2:28 PM