The NRA Wins Its Argument Time on McDonald


All those nervous about the radical and expansive arguments to incorporate the Second Amendment on states and localities through the long-moribund Privileges or Immunities Clause of the 14th Amendment that Alan Gura will be making before the Supreme Court in the upcoming McDonald v. Chicago case can relax a little.

The NRA, who wants to argue a more traditional "incorporation through the due process clause of the 14th Amendment" argument will get a chunk of the oral argument time, although it is not their case.

For those confused by the above, you won't be, after you read this Reason Online article from early December in which I lay out the fascinating implications of Gura's arguments to expand the Court's power to vindicate all sorts of citizens rights, and the reasons why some in the gun rights community don't like them.

This comment thread at the conservative and libertarian legal commentary blog Volokh Conspiracy does a good job of presenting the range of opinion (and invective) built into this intra-gun-rights community conflict of due process v. privileges or immunities, or more personally, of Gura v. the NRA.

Especially interesting is the musing over whether the NRA's advocate in this case, Paul Clement, really believes in the gun rights argument since, when working for the government, he made contrary arguments–and whether it matters anyway, since he's selling his skills as a paid advocate, not a true-blue ideologue.

Also telling are these couple of paragraphs from the Legal Times web site:

So why did the Court grant the motion? Clement is a familiar face at the Court, and his presence may also represent a "cover all bases" strategy by justices who favor incorporation but are uncertain how the privileges or immunities argument will play out. Asked about the Court's decision Clement said, "I think the grant of the NRA's motion may signal that the Court is interested in ensuring that all the avenues to incorporation, including the due process clause, are fully explored at the argument." Clement added, "Of course, I look forward to working with Alan." 

UPDATE: Responding to Clement's remarks, Gura said, "The suggestion that I wouldn't present all the arguments to the Court was uncalled for." Gura added, "I hope that this time Paul understands that handgun bans are unconstitutional." As solicitor general in 2007, Clement filed a brief in the Heller case arguing that the D.C. handgun ban warranted heightened scrutiny but was not necessarily unconstitutional and should be remanded to lower courts for more review.

Here is Gura's motion in opposition to the NRA's gambit, which tried, but failed, to convince the Court not to let the NRA take some of his time. Much of the background bad blood between Gura and the NRA is explained in my book about the Heller case, Gura's first huge Second Amendment victory, Gun Control on Trial.