by I saw something put out yesterday by NRA-ILA that brought back memories.
If you have ever read Adam Winkler’s book Gunfight: The Battle over the Right to Bear Arms in America (#commission earned), you know there were those within the NRA that tried to discourage the Heller case. The fear was that a loss in the Supreme Court would forever end the Second Amendment as an individual right. Nonetheless, Alan Gura, Bob Levy, and Clark Neily persisted and the case went to the Supreme Court where it was won.
Alan Gura has since moved on to become the VP for Litigation at the Institute for Free Speech. He is the lead counsel on an amicus brief supporting the respondents in a case before the US Supreme Court. That case, Lackey v. Stinnie et al, deals with entitlement to attorneys fees in civil rights cases and preventing the government from strategically mooting cases to avoid paying these fees.
The issue before the Court is whether plaintiffs who win a preliminary injunction granting their requested relief are “prevailing parties” under 42 U.S.C. § 1988(b)—and thus entitled to attorney fees—when that injunction is never reversed. The amici argue that if such plaintiffs are not “prevailing parties,” governments that violate constitutional rights would be able to avoid attorney fee awards by strategically mooting cases. This would embolden abusive governments and discourage public interest litigation. By contrast, requiring the government to pay attorney fees for violating constitutional rights deters such violations and ensures that civil rights plaintiffs can afford to vindicate their rights through litigation.
Joining the NRA and Institute for Free Speech as amici in this brief are Southeastern Legal Foundation, Cato Institute, New Civil Liberties Alliance, Liberty Justice Center, and Second Amendment Foundation.
I am glad to see old adversaries now cooperating. Even more important is the NRA’s win in NRA v. Vullo which dealt with free speech and governmental coercion intended to suppress it. There is no question the case was a win for the NRA but it was also remanded back to the Second Circuit for further proceedings. There is nothing to say New York State won’t adopt a law or regulation that would effective moot this case. Attorneys have told me it can cost upwards of $1 million (or more) to bring a case up through the courts and be heard by the Supreme Court. It would be nice to have New York’s Department of Financial Services have to pay this back to the NRA.
I vividly remember everyone holding their breath when it was announced that the Court would hear the Heller (originally Parker) case. There were many who thought the Court was going to adopt the “collective right” theory and set gun ownership rights back to the stone age. Thank God they were wrong! And Heller went farther than I hoped with the acknowledgement that firearms in common use couldn’t be banned. There are days I really miss Justice Scalia.