The NRA Muscles into McDonald v. Chicago

“Gun nuts” battle “Constitution nuts” at the Supreme Court

McDonald v. Chicago, the Supreme Court case that will settle whether or not the Second Amendment applies to states and localities, is gearing up to radically challenge Court precedent when it comes to defending rights against state infringement.

Alan Gura, lawyer for the Chicago plaintiffs whose right to effectively defend their lives in their own homes has been abridged by the city's ban on handgun possession, previously won 2008's D.C. v. Heller, the case establishing that the Second Amendment protects an individual right to possess weapons against federal encroachment. Gura is responsible, then, for the rehabilitation and revival of one constitutional amendment already. In McDonald, rather than merely extending the Second’s reach, he is aiming to rehabilitate and revive the 14th Amendment as well.

However, the Supreme Court’s decision in late January to grant 10 of Gura’s 30 minutes of oral argument time to the National Rifle Association (NRA) seems likely to hurt chances that the Court will take the more dramatic route laid before them. The NRA isn't a plaintiff in McDonald (though they were parties in an earlier version heard by the 7th Circuit Court of Appeals, which combined separate challenges to Chicago’s gun bans), and the organization's intent is to emphasize the more limited and traditional method of incorporating the Second Amendment against the states via the Due Process Clause of the 14th Amendment.

To sum up a very complicated legal argument quickly, Gura's McDonald briefs do not rely solely on the traditional due process method. He also argued that 14th Amendment's Privileges or Immunities Clause was more clearly intended to accomplish such incorporation, in terms of both legal logic and history.

An early misstep in 14th Amendment jurisprudence back in 1873 effectively murdered that clause, however, despite the fact that its value to vindicate citizens' rights against government encroachment is vast. The significance of the clause and the Slaughterhouse Cases that killed it were explained in a December Reason column.

If the the Privileges or Immunities Clause is restored to its original meaning—and pretty much all the relevant history from the 14th Amendment’s ratification proves it was meant to do more than just protect certain rights of national citizenship, contrary to the Slaughterhouse majority—American jurisprudence would become much more respectful of both unenumerated and enumerated rights. However, that very possibility makes lots of people who are otherwise rooting for Gura uncomfortable.

As Reason’s Damon Root summed up aptly, “The 14th Amendment was specifically designed and ratified to protect a sweepingly libertarian idea of self-ownership. That idea includes the right to acquire property, run a business, and buy and sell labor without unnecessary or improper interference by the government.”

Thus, if Gura wins on privileges or immunities grounds, it will open up the full richness of the 14th Amendment’s original meaning, which makes the stakes for a victory in McDonald far higher than just preventing states and localities from stopping citizens keeping guns in their homes. It is also worth remembering, as many gun rights advocates grumbled when Heller was decided, that whether the gun right protected by that case goes much beyond the use of commonly owned firearms for self-protection in the home is a matter for future courts to decide. If McDonald is won, on whatever grounds, expect the courts to swell with challenges to the dizzying variety of ways that localities restrict gun rights.

While Gura thinks the expansive power of the Privileges or Immunities Clause is great, lots of people on the right—who otherwise support extending the right to keep and bear arms to the states—don’t. (The NRA also offered an alternative argument based on the Privileges or Immunities Clause in a brief, but its explicit purpose in horning in on the oral arguments is to stress the Due Process Clause.) A representative summation of that sort of worry comes from Ken Klukowski at the conservative web site Townhall.com:

[the] libertarian activists behind McDonald openly explain that the reason they are pushing the Court to overrule Slaughter-House has nothing to do with guns. Instead, they want to advance a libertarian economic agenda, where federal judges could sit in judgment of state and local laws involving labor, employment, business regulations and other economic issues. Although the Constitution is silent on these matters, these activists want the courts to start declaring constitutional rights against such things, and using the power of the federal judiciary to strike down laws of this sort that the judges don’t like.

Gura fought for his right to argue his case his own way, explaining in a brief to the Court that the NRA’s request relied on “unjustified” speculation that he will somehow fail to argue on due process grounds as well—despite the fact that Gura did make such arguments. Yet Gura failed to convince the Court, and with no explanation the Court gave 10 minutes of Gura’s 30 minutes to the NRA and their (very respected) hired gun, Paul Clement. Clement, in his role as U.S. Solicitor General back in 2008, argued in Heller’s hearings for the Supreme Court to rein in any individual right contained in the Second Amendment at least enough to preserve laws like the federal machine gun ban. As a result, Clement's Second Amendment bonafides are widely questioned.

Gura’s reply brief to Chicago shows a lawyer fully prepared to flay the pretty shoddy arguments advanced by his opponents from Chicago, which include arguing in effect that if we can imagine a civilized society that does not respect a certain right, then states shouldn’t be required to honor it. (Chicago also seems to believe, as Gura sums up wryly, that “ordered liberty” refers to “the government’s liberty to issue orders.”)

To legal scholars such as The Volokh Conspiracy’s Orin Kerr, who never believed the Supreme Court would seriously consider overturning Slaughterhouse, the Court giving the NRA time is further proof that a McDonald victory—which seems likely given that the Heller majority is still sitting on the bench—will certainly be on the less revolutionary due process grounds. Kerr writes that Gura’s Privileges or Immunities Clause arguments “will be more of a lively intellectual exercise than a likely basis for the Court’s decision.”

Legal scholar Josh Blackman makes an interesting case that, contra Kerr’s belief that the Court will take the less disruptive of precedent route to victory, the Court is on occasion willing to vindicate a plaintiff’s rights in a radical way even when a less radical way is open to them, particularly when lawyers try to force the Court's hand, as in 1989’s Planned Parenthood v. Casey.

The history of conflict between the NRA and Gura dates back to Heller, when the gun rights organization, fearing a loss (or, in some interpretations, fearing a victory where it could not claim credit), attempted to stymie or take over the case for years before finally jumping on board as allies in the closing stretch. Gura is openly peeved that his strategy is being questioned and his time encroached on against his will. He is, he points out, willing and able to argue the due process justification for incorporation. But the reason he dedicates only 7 pages out of 73 to it is that—as he states in his opposition brief to the NRA’s move—he knew Due Process Clause arguments would be more familiar to the justices due to the very fact that they are the more traditional means to win incorporation. (When it comes to wondering who had proven themselves most competent to make a thorough due process argument, Blackman also points out the NRA failed in its brief to note the Glucksberg test, which was used in the 9th Circuit's Nordyke decision that did recognize Second Amendment incorporation on due process grounds.)

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  • HeadTater||

    Gura has it handled. The NRA is gonna risk fucking it up just in the feeble attempt of being able to say "me too!" This is one of the reasons I never liked the NRA too much. They get involved in too many things, are more concerned with publicity than gun rights and are too quick to compromise in order to obtain concessions and quick victories.

  • Old Mexican||

    Agreed. For me it always looked as if the NRA was actively seeking to have guns banned in toto just to have more people join their ranks.

  • ||

    If that's the case, you need glasses. If it weren't for the NRA we'd have had UK-style gun control here for the past 20 years at least.

    You see, the NRA has something libertarians don't understand -- electoral clout. NRA members tend to vote in a bloc and influence elections (see Bill Clinton's lament over the Dems' whipping in 1994), while libertarians discourage each other from voting at all and then complain about the results.

  • juris imprudent||

    Yes, the MEMBERSHIP makes the NRA effective. The leadership attempts to screw things up every chance they get.

    Did the NRA torpedo FOPA over the Hughes Amdt? No, but they should have. They were more concerned with getting a kick in against the ATF.

    Did the NRA embrace or attempt to kill Gura's challenge in Heller?

    Who championed Project Exile - expanding the federal police sphere?

    Yes, the NRA membership works as an effective voting block - except when electing it's own leadership.

  • ||

    It was by no means certain before the decision was released that Anthony Kennedy would not side with the liberals in Heller. If that had happened, Heller would have been one of the biggest disasters in gun rights history. One can understand why the NRA was cautious about it.

    As far as Project Exile goes, that was supported to show that the NRA is committed to fighting actual gun crime. I agree that it has been questionably effective and the means are not consistent with federalism, but remember the NRA is a single-issue advocacy group; you can't expect it to line up with your positions on federalism any more than it lines up with your positions on drug legalization.

  • juris imprudent||

    The point is the NRA leadership has become a creature of the beltway. I do believe that they are happier when they have a good bogeyman to goad the membership into action (voting or financial) and aren't very well equipped for dealing with success (least of all when they can't claim credit for it).

  • ||

    Doherty making the perfect the enemy of the good again. Anyone surprised? This is the same guy who argues that it's immoral to vote, even for a trustworthy libertarian candidate, because that makes one complicit in any future unjust actions of the government.

    This decision is too important to hold it hostage to the White Whale of overturning the Slaughterhouse Cases. Gura did a swell job of arguing Heller, but that doesn't mean he deserves the god-status that some libertarians seem ready to bestow upon him. His choice to base the vast majority of his argument on the a part of the text the SCOTUS has never interpreted in the way he wants them to, is a very risky maneuver.

  • Zeb||

    I agree that this is an important case that needs to be won. But it sure would be great if the horrible and incredibly wrong slaughterhouse cases were overturned. The whole incorporation through due process thing has always struck me as ridiculously convoluted. It would be nice to have the 14th actually have the effect it was intended to have.

  • robc||

    Which is why Gura argues both. Both dont let the good be the enemy of the perfect either.

    Sometimes you have to say "What the fuck - lets go for broke". If you dont ask, you aint gonna get it.

  • ||

    Sometimes when you go for broke, you wind up broke. Winding up broke in this case means a shitload of new gun control regulations in states and localities and a massive propaganda victory for gun banners.

  • robc||

    Bullshit. Means no change for me, my state constitution protects me.

  • robc||

    All men are, by nature, free and equal, and have certain inherent and inalienable rights, among which may be reckoned:

    ...

    Seventh: The right to bear arms in defense of themselves and of the State, subject to the power of the General Assembly to enact laws to prevent persons from carrying concealed weapons.

    Owensboro, KY tried to ban open carry of guns in public parks. The State Supremes told them NO FUCKING WAY, CANT YOU FUCKING READ. I think that might have been the literal decision.

  • Horde4Lyfe||

    +1. Agreed robc. I say this as a Henderson resident AND attorney.

  • ||

    By that logic, I should not be concerned about police targeting poor minority neighborhoods with drug raids, engaging in racial profiling when deciding which cars to pull over, or the whole swath of drug laws, since I live in a good neighborhood, am white, and have no desire to do drugs.

  • robc||

    Not at all the same, I benefit from a P&I victory.

    You gain nothing from ending the things you mentioned.

    We both still support the cause, I just have a reason to go for broke. You can do the same thing I did, live in a state with a good constitution. Changing skin color is harder.

  • Jimmy 'Crack' Corn||

    Tulpa

    You are white?

  • ||

    As Gura complained in The Washington Post, the NRA is “not bringing anything substantive to the argument. The NRA is principally interested in taking credit and fundraising.”

    He knows this? Really? With friends like Gura, who needs enemies?

    And I don't get Gura's logic here: he says that the fact that he devotes such a tiny fraction of his argument to the DPC doesn't make it less likely for the Court to rule in his favor on those grounds, yet he simultaneously complains that the P&I argument time being cut by a third DOES make the Court less likely to base its ruling on that clause.

  • robc||

    I assumed he was already going to spend that time on that argument. Actually even more than that, because you dont control your arguments at the supremes level. I hope Thomas comes out of his shell, and dominates the NRAs time asking them about the P&I argument only.

  • ||

    He knows this? Really?

    You mean you don't?

  • juris imprudent||

    Gura happens to be right.

  • ||

    Note that the NRA has nothing but kind words for Gura, while he attacks the NRA in the press before the case is even decided -- a most unprofessional behavior.

    Methinks Gura is a hot-shot who resents anyone stepping in who might diminish his glory. I may agree with him on a few issues, but his ego needs to be popped but quick.

  • juris imprudent||

    Clement has certainly been polite. I wouldn't extend that to the entirety of the actual NRA leadership. Since I don't feel the need to be obsequious to the org I can hardly fault Gura for that.

  • ||

    Far be it from me to stop you from talking out your ass, but Gura doesn't owe the NRA any professional courtesy. The NRA is not his client.

  • Solo||

    Well, lessee, Gura -- one man -- got a gun-rights case heard by the Supreme Court. He won. How many have all of the directors of the NRA gotten there? No cases means no victories.

    If not for Gura we would be in the same ambiguous spot we were in during the Clinton years. To let the NRA come in and try to drive now is not going to work in our favor.

    The NRA has seen its last dollar from me, thanks to this stupid stunt.

  • ABC||

    You put too much faith in the 14th Amendment, its history and how its been used by the feds has not always been the most libertarian friendly. Would rather the citizens of Chicago pass a law, or the gun-owners who can enough can move.

  • ||

    Now the NRA is sending trolls to H&R? I wanted to stick with them, but their legal compromises are either the most sissified advocacy ever, or self-interested survival measures.

  • ||

    Would rather the citizens of Chicago pass a law, or the gun-owners who can enough can move.

    The Second Amendment arguably doesn't need any incorporation, unlike the First, to apply to the States. Because of the way its worded, you know.

  • Joel||

    The way it's worded makes me want to go back in time and bitchslap Madison.

  • Michael Ejercito||

    The United States Supreme Court does not have to revisit the privileges and immunities clause; the due process clause should be sufficient justification. (Chicago's laws violate the right to a liberty (keeping and bearing arms) without due process of law)

    If the Slaughterhouse cases were overturned, how would it affect the same-sex "marriage" cases currently in federal courts? I know that in Baker v. Nelson , the United States Supreme Court rejected an appeal ( PDF format ) of a Minnesota Supreme Court decision upholding the denial of a marriage license to a same-sex couple for want of a substantial federal question. The appeal alleged that the Minnesota Supreme Court's decision violated the 14th Amendments due process and equal protection clauses; it did not allege a violation of the privileges and immunities clause. Would an allegation that a ban on same-sex "marriage" violates the privileges and immunities clause constitute a substantial federal question?

  • LarryA||

    If the Slaughterhouse cases were overturned, how would it affect the same-sex "marriage" cases currently in federal courts?

    Bingo! This is precisely the (conservative, anti-libertarian) anti-privileges-and-immunities argument. “I want my Second Amendment rights, but don’t give all those other people a chance at the rights they find important.”

    The only way you can protect your right to live the way you want to is to protect other folks’ right to live the way they want to.

  • Comrade Zero||

    +2

  • Michael Ejercito||

    It has yet to be answered by the courts if marrying someone of the same sex constitutes a privilege or immunity of the citizens of the United States, as opposed to something the states may extend or withdraw.

    (In my opinion, same-sex "marriage" was not recognized as a privilege or immunity by society or the federal judiciary in 1868 so it would not apply; it would still raise a substantial federal question which would allow the courts to review it without contradicting Baker .)

  • ||

    Fourteenth Amendment
    Annotations p. 2
    SECTION 1. RIGHTS GUARANTEED: PRIVILEGES AND IMMUNITIES

    http://caselaw.lp.findlaw.com/.....14/02.html

    “In the Slaughter-House Cases, a bare majority of the Court frustrated the aims of the most aggressive sponsors of this clause, to whom was attributed an intention to centralize ”in the hands of the Federal Government large powers hitherto exercised by the States” with a view to enabling business to develop unimpeded by state interference. This expansive alteration of the federal system was to have been achieved by converting the rights of the citizens of each State as of the date of the adoption of the Fourteenth Amendment into privileges and immunities of United States citizenship and thereafter perpetuating this newly defined status quo through judicial condemnation of any state law challenged as ”abridging” any one of the latter privileges”…

  • ||

    The McDonald case is more about new found corporate privileges and immunities against the states brought about by the invention of the fictional corporate person than it is about upholding the Second Amendment against Chicago’s gun ban. I do remember that it was the states that ratified the Constitution, thereby agreeing to uphold the provisions found within it, including the Bill of Rights, so what extra-authority is required?
    However, the age old question of how many lawyers can dance on the head of a pin will finally be answered.

  • LibertyMark||

    When states ratified the Constitution, they were agreeing to the system of government that it set up, not "to uphold the provisions found within it" as Legal Charade claims.

    At the time of ratification, the provisions in the Constitution only applied to the Federal government, thus the idea of incorporation via the 14th Amendment came about.

    I struggle mightily with incorporation. It's one of the few areas of my personal libertarian philosophy that is not stably ensconced as an inviolate principle.

    While I kind of like the idea of the Federal government serving as a check on the power of the states, I am so adverse to centralization that I don't think it will work out right. Somehow the Feds will twist that liberty-enhancing power over the states into something that will destroy liberty.

    I would almost rather allow the states to behave badly so that that whole competition-for-liberty thing can work.

  • ||

    But that ignores the fact that the 14th Amendment, which very clearly applies Constutional protections against State actions, was ratified by the States.

    If you don't like that, advocate for its repeal.

    Kinda like what the antis need to do with the 2nd Amendment, eh?

  • LibertyMark||

    I think you are right, but it still makes me nervous.

    I just wish there was some other way for the gun-control pricks in Chicago to get their cumuppance.

  • ||

    I disagree. The Bill of Rights is in fact part of the Constitution the states ratified. What value is found in a constitution that excuses those who ratified it from adhering to the basic principles laid forth in the document? Most especially when the states themselves insisted upon it. Is it not considered to be "the law of the land"? Is it not the fundamental principals which govern the Union? Are the states not bound by it?

  • LibertyMark||

    Wow, you really have no understanding of Constitutional structure or operation, or of the history of its ratification.

    Alas, you are in the majority.

    The states, upon ratifying the Constitution, were delegating certain enumerated powers to a newly created central government. Thus, the Constitution was the vehicle for defining the powers of the general government. Since the founding generation were wary of central government power, the Bill of Rights was added later as a check on the general government, not the states.

    At the time, it made no sense to say that the states were bound by something that did not even apply to them. The design was for them to be completely separate, sovereign entities in charge of their own destinies. The only places were the Constitution is the "law of the land" were in the specific areas where power had been delegated via the Constitution.

    The value of the Constitution was to create an extremely dangerous creature, a central government, giving it a few necessary powers, while leaving it otherwise bound in chains.

    Of course, the Constitution has failed, utterly.

  • ||

    In spite of limited, enumerated powers granted the central government we find ourselves faced with boundless usurpations aimed at consolidating all power within the federal. Now we arrive at the point where individual state authority is to be decided by the federal under the dubious authority found in a reconstruction act which everyone knows was not properly ratified. All I'm saying is that if the argument is to cede federal supremacy against the states, why bother with a discredited amendment that pretends to replace state with federal citizenship when they have the supremacy clause. I personally don't believe the central government has any say in the matter at all. I was taught that if you can't vote the criminals out of State office, then you should vote with your feet and leave them to their misery.

  • weeds season 6 episode 2||

    All I'm saying is that if the argument is to cede federal supremacy against the states, why bother with a discredited amendment that pretends to replace state with federal citizenship when they have the supremacy clause. I personally don't believe the central government has any say in the matter at all. I was taught that if you can't vote the criminals out of State office, then you should vote with your feet and leave them to their misery.

  • weeds season 6 episode 3||

    At the time, it made no sense to say that the states were bound by something that did not even apply to them. The design was for them to be completely separate, sovereign entities in charge of their own destinies. The only places were the Constitution is the "law of the land" were in the specific areas where power had been delegated via the Constitution.

    The value of the Constitution was to create an extremely dangerous creature, a central government, giving it a few necessary powers, while leaving it otherwise bound in chains.

  • weeds season 6 episode 4||

    The Bill of Rights is in fact part of the Constitution the states ratified. What value is found in a constitution that excuses those who ratified it from adhering to the basic principles laid forth in the document?

  • ||

    This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding.

  • LibertyMark||

    The Supremacy Clause, which you quote, has been the source of much mischief, similar to the Necessary and Proper and Interstate Commerce Clauses.

    The Supremacy Clause only applies to enumerated powers.

  • weeds season 6 episode 1||

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  • ||

    It's all about NRA's need to be able to say "WE won" no matter how the case is decided. They missed the train in Heller (actually they tried to derail it) and they simply cannot AFFORD to miss it again.

    A progun victory will weaken NRA's most potent basis for fearmongering among its donors. Thus, NRA must be able to substitute a claim that THEY produced the victory or their cash flow will dwindle. If Gura wins, NRA will try to steal his credit as they have stolen his argument time.

    With the highest priced counsel, the former Solicitor General, one has to wonder why NRA's reply brief is so poorly done. Hummmmm?

  • Freddie B||

    Washington DC had the highest murder rate in the Nation...guns were not allowed. This was challenged and changed....guess what, next time the felon will think twice about robbing someone since they may be packin'

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  • Xrlq||

    Gun nuts vs. Constitution nuts sums it up nicely. Libertarians have a reason to care whether the Second Amendment is incorporated under the DP vs. P/I clause. Single-issue organizations like the NRA do not. No state or local gun law will ever be upheld because the Second Amendment was "only" incorporated under the DP clause rather than the P/I clause. Incorporation is binary. If it happens under either clause (or even by a fractured majority), the Second Amendment will have exactly the same impact on state and local laws as it does on the federal government. If it doesn't happen, it will have no impact on state and local laws at all. So it makes sense that libertarians worry about incorporating it the right way, while the NRA's focus is on getting it incorporated one way or the other. That difference alone is good reason to split their time, in my view. Their interests are different!

  • ||

    It's the P or I Clause that's at issue in Henderson. The P & I Clause is found in Article IV, sec. 2. Keep it straight.

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  • ||

    You referred to the ecumenical David Hardy as one of the movement's "oldest warriors and scholars" -- would it not be kinder to say "earliest" than "oldest."

  • ||

    Are there actually any cases where the case went from loss to win based on the oral arguments in front of the Court? It strikes me that 99% of the argument is done through the written briefs and the oral arguments are a relatively small piece of the puzzle.

    Considering that the Supreme Court can extend the time if they wish to, I don't really see where the ten minutes in this case is quite the big deal it is being made out to be.

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  • ||

    Hardy says "there is no bad way to win a case." Wonder if James Madison would agree? Marbury v. Madison was the first and largest piece of judicial extortion in American history: the justices' ruling gave Madison the win only if he condoned their new theory of "judicial review"... and the rest is history.

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    The history of conflict between the NRA and Gura dates back to Heller, when the gun rights organization, fearing a loss (or, in some interpretations, fearing a victory where it could not claim credit), attempted to stymie or take over the case for years before finally jumping on board as allies in the closing stretch. Gura is openly peeved that his strategy is being questioned and his time encroached on against his will.

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