Damon Root blogged below about a curious amici brief on behalf of Chicago; elsewhere in McDonald v. Heller news, the NRA, reputed greatest organized champion of gun rights, are angling to get some minutes in oral arguments on the case, even though it isn't theirs, to make arguments different from that of the lawyers fighting for McDonald. (The NRA had its own Chicago gun challenge it tried to get the Supreme Court to accept, which the Court has so far not done.)
In short, the NRA is unhappy that so much of McDonald lawyer Alan Gura's arguments in his brief rely on an attempt to revive the "privileges or immunities" clause of the 14th Amendment, as opposed to relying on what has generally been used in the past century to extend the Bill of Rights to the states, the "due process" clause of the 14th.
The National Rifle Association asked the Supreme Court on Tuesday to allow its lawyer to take part in the oral argument March 2 in the case testing whether the Second Amendment restricts the power of state and local governments to pass gun control laws. It sought 10 minutes of time allotted to the individuals and groups that are pursuing the Amendment’s extension, to put more stress on an alternative constitutional argument. The request, the NRA noted in its motion, is opposed by the lead parties in McDonald, et al., v. Chicago (08-1521). Those parties are expected to file a written opposition shortly. The Court will consider the NRA request at its private Conference on Jan. 15.
The Court in the McDonald case will consider two main arguments for applying the individual right to possess guns to state and local laws: first, that gun rights should be protected at those levels by the 14th Amendment’s “Privileges or Immunities” clause; and, second, the protection should come under the Amendment’s Due Process clause. Both of those arguments are at issue in the question presented by the petition. The NRA said it wants to put stress on the due process argument.
In their merits brief in the case, the NRA noted, Otis McDonald and the others appealing “have concentrated their argument on a Privileges or Immunities Clause theory that would require overruling at least three of this Court’s precedents.” And, the motion added, only 7 pages of the 73-page McDonald brief discuss the Due Process Clause.....
The NRA maneuver brings further out into the open the strategic differences in pursuing the two alternative arguments.
A leading reason for pressing the Privileges and Immunities Clause approach is that it could give the Court a chance to overrule the 1873 ruling in the SlaughterHouse Cases — a ruling that made a nullify of that Clause. It has long been a goal of some advocates to revive that Clause, as a firmer foundation for weighing government power against individual rights. Conservative advocates, in particular, argue that the use of the Due Process Clause has given judges too much latitude to invent new rights that exist nowhere in the Constitution.
I was one of the first reporters to cover the divisions within the pro-Second Amendment community on McDonald lawyer Alan Gura's "overturn Slaughterhouse" strategy in this December Reason Online piece.
While it is little known, except to readers of my book on the case, Gun Control on Trial, the NRA had a similar difference of strategy with Gura on his first grand Second Amendment case, Heller v. D.C., pretty much fighting against it every step of the way in the belief it was premature and risky, until it reached the Supreme Court, when they came on board as staunch allies. The reasons for the NRA's discomfort with Heller are detailed in my book and in this Reason magazine excerpt from our December 2008 issue.