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.

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  1. Well, if you consider the original intention of why the people should be able to own guns, it’s pretty much useless. Ordinary folk won’t be on par with the gov’t until they have heat seeking missiles, drones, machine guns, riot gear, etc. Can’t fight a rogue gov’t with a pistol. We should be allowed tanks and uzis, not just guns.

    1. not true. Guerrilla’s perform better with simple weapons.

    2. if rebels can fight a well-armed corrupt government with cell phones (i.e. in Iran), I’m pretty sure they could make effective use of handguns too.

    3. That explains why the Iraqi insurgency was overwhelmed as quickly as it was, and why it didn’t require massive influxes and men, materiel, and outright bribes to local officials to get it to end.

  2. “The suggestion that I wouldn’t present all the arguments to the Court was uncalled for.”

    The suggestion would be uncalled for if Gura had fully presented all the arguments to the Court in his brief. Since he did not, the suggestion was called for. I respect him, and I’d love to overturn Slaughterhouse, but I’d also like not to lose this case because he refused to make every legal argument available to him.

    1. He made both arguments in his brief.

      1. He made both arguments in his brief.

        But not fully. Take a look at the brief. Sixty-five pages about Slaughterhouse and P or I, and then seven pages about the Due Process Clause tacked onto the end.

        Let’s say that he hadn’t discussed P or I. Would a seven page brief by the lead attorney have been enough for you?

        It’s also inaccurate to say that the NRA’s brief argues entirely against using P or I or P and I. It doesn’t, it presents them as sections labeled, “In the Alternative, This Court’s Precedent Requires Recognizing the Right to Keep and Bear Arms as a Privilege or Immunity of National Citizenship,” and “In the Alternative, the Court Should Revisit the Scope of the Privileges and Immunities Clause.”

        The NRA brief just presents those two arguments with fewer pages, six or seven each. If that’s evidence of the NRA not backing the P or I argument, then by that same token Gura didn’t make the Due Process Clause argument.

        1. Considering they are called “briefs” I would consider 7 pages about 5 too long.

          But, I think the 1 pager SCOTUS decisions from a century ago should be the standard for most court decisions. Not sure why the need for bloat. GET TO THE FUCKING POINT. STATE IT. THEN STOP FUCKING WRITING. But that might just be me.


            Totally agree with this. I find it insane that Supreme Court opinions these days are regularly 50-80 pages, and that’s without counting the multiple dissents and concurrences controversial cases seem to spawn.

            A line or two in Doherty’s post, indicating that the NRA was a party to this dispute and therefore entitled to petition for oral argument time, would have been helpful. (The NRA was a party in another District Court case, which was consolidated with McDonald by the 7th Circuit, for review by the Supreme Court.) Until I found that out, I had a hard time understanding why the NRA was entitled to oral argument when they weren’t a party to McDonald.

          2. Hell, one paragraph would be ideal:

            “The text of the Second Amendment states ‘… the right of the people to keep and bear Arms, shall not be infringed.’ This law so infringes upon this fundamental right, and shall be struck down in its entirety.”

            Never gonna happen, but that would be so sweet.

        2. I am concerned with the focus of either way. While I would not pretend to know better than Gura (who is dreamy in that big and little L sort of way) I don’t like the idea of moving the second amendment protection under the 14th. Now I realize that this is in relation to States, i get that, BUT It should STILL stand on its own (espescially as many States have the same language in their own consitutions). In then end more liberty the better but I am nervous.

          Self defense is not a privilege, it is an inherent Right.

        3. “But not fully. Take a look at the brief. Sixty-five pages about Slaughterhouse and P or I, and then seven pages about the Due Process Clause tacked onto the end.”

          That’s because SCOTUS limit’s Petitioner’s Briefs on the Merits to 15,000 words maximum. Gura’s brief pretty much hit that limit.

          It makes sense that he would dedicate most of his limited space to P or I. The method of securing incorporation by Due Process is well established, and almost formulaic, with a large body of precedent outlining the requirements and procedure. As one person wrote elsewhere (and I can’t remember who or where), “The Justices’ law clerks can write a Due Process Incorporation opinion in their sleep.”

          Incorporation by P or I, on the other hand, was almost immediately crippled by a SCOTUS that was hostile to the very purpose of the 14th Amendment. It requires overturning multiple precedents, and therefore requires a much more detailed argument than Due Process. He probably had to cut short his brief on P or I to fit in a basic argument on Due Process, to cover his bases.

  3. Let’s say they win the case. Will licensing requirements be no more? I mean will I be able to buy a handgun in New York the day after the decision without going through my county’s “decider” for approval as is currently the case? It seems to me, winning the case should mean all I need is proof of citizenship at the store where I purchase the gun and would have full reciprocity in all states.

    1. As we saw with DC, even a firm ruling that effectively rules out handgun bans will be fought tooth and nail by the localities. NYC will be one of the worst, because the city is powerful, its basic handgun rules are also enshrined in state law, and the cops and politicians there have been used to it being that way for a long time there.

      Expect many lawsuits brought against the city. Use how DC has proceeded as your guide, but bigger.

      1. I live upstate. My county license officer likes to be restrictive and tends to put restrictions on any license he may grant such as “to and from range” and “in the field (hunting)” only even though the next county over will let grant a license for being alive. I know NYC will fight this all the way, but I wonder how much the rest of the state would act. I have an expectation of the practical response of law enforcement, but legally, what would my position be? Charges dropped and my gun back, or a long legal fight?

        1. Count on a long legal fight.

          Hell, look forward to it. Relish it. Revel in the opportunity to expose these petty tyrants and make them squirm. Rub their noses in the offal of their pathetic little lives.

          1. Is he supposed to look forward to the back-breaking legal bills in that fight, too?

            1. Depends on whether or not a class action suit is filed. NYS (I’m a upstate resident too) has a number of active pro-2A organizations looking for a good legal fight. Class action suits against a State Supreme Court justice and a County Clerk (issuing agent) with a background of a win in McDonald, may force the issuing agent to remove the administrative restrictions against a general Posess and Carry permit. As per NYS law, there is NO PROVISION for issuing “restrictions” on these permits, this is a “custom” imposed by the County Clerk’s office.

              Backed with a McDonald win in SCOTUS, this approach could score a minor victory for NY handgun owners that leads to larger victories. So could incorporation that leads to reciprocity. Forcing NYS to recognize other State’s licenses would spell a major victory against the established order. Considering that most states have a scheme that paralell’s NYS licensing requirements, sans our onerous individual handgun registration requirement, that would seem likley and possible.

  4. This is all such a pointless pissing match. Even if you don’t think Gura fully laid out the due process argument in his brief, the NRA certainly did in its brief.

    The only thing that might change minds in oral argument is if the answers to some of the questions really go off the rails. I really don’t think the NRA is likely to have any effect on that, unless they spend their 10 minutes trying to undermine the P & I argument.

    1. I really don’t think the NRA is likely to have any effect on that, unless they spend their 10 minutes trying to undermine the P & I argument.

      Which they don’t do in their brief, contrary to some idiotic claims. They do stress that the Court can incorporate the Second Amendment without overturning precedent, but they stick in parts at the end saying that in the alternative, if the Due Process Clause isn’t used, then P or I (or P and I, they’re different) should be revived and used. The NRA’s brief also states that scholarly consensus is that SlaughterHouse was wrongly decided, but they’re just not laying their chips down on the riskier (but potentially more fruitful) argument.

      Gura’s response doesn’t fill me with the hope that he has the proper temperament not to “go off the rails” in response to various hostile questions. Still, he did well in Heller.

  5. Petty in-fighting among gun rights advocates is not what is needed here. Note that the NRA has kind words for Gura while Gura is throwing a temper tantrum about “his” case being split (and being a lawyer he should know better than to criticize Clement for arguing both sides of the issue at different times). It’s not Gura’s case, it’s the people’s case, as Sen Brown would say.

    1. Alan Gura is entitled to be miffed at the NRA, and the comments about Clement are spot on. We wouldn’t even be having this discussion if true believers like Gura and Robert Levy didn’t put their butts on the line, in a variety of ways, in pursuing Heller, so it’s not unreasonable for Gura to expect people (1) to stay the hell out of his way, or (2) at least be able to make a good-faith claim of being an ally, whereas Clement is simply a hired gun who had argued *against* Heller less than 2 years ago.

  6. The NRA’s motion for cert was not granted. The NRA is not a plaintiff in the case, McDonald v. Chicago. The NRA asked for divided time as did the 38 State Attorneys General who filed an amicus in the case. The NRA choose wisely when they hired former SG Clement as he has a long record with the SC. NRA petition for cert which was remanded asked the question in: “Whether the right of the people to keep and bear arms guaranteed by the Second Amendment to the United States Constitution is incorporated into the Due Process Clause or the Privileges or Immunities Clause of the Fourteenth Amendment so as to be applicable to the States, thereby invalidating ordinances prohibiting possession of handguns in the home.” SCOTUS decided to hear the simplier question presented in McDonald: “Whether the Second Amendment right to keep and bear arms is incorporated as against the States by the Fourteenth Amendment’s Privileges or Immunities or Due Process Clauses.” Since SCOTUS chose the question that placed P or I in the primary position, it would seem logical that the major portion of the argument cover that. No one here has asked how the Petitioners feel about Alan Gura’s representation. That is the only thing that matters.

  7. Since the Gura brief and the NRA brief were coordinated as laid out in Gura’s motion opposing divided argument ( until they weren’t coordinated because NRA wished to inject their guy, its a bit dubious to say that Gura gave short shift to Due Process. NRA had signed up to argue Due Process in their brief and they did…


  8. Gura did a wonderful thing in Heller: he got the Supreme Court to declare that self defense is an inalienable, individual human right protected by an enumerated Constitutional amendment.

    Having done that, he now is trying to expand the recognition of that right to all state and local governments. I cannot see him losing this argument.

    Consensual sexual activity has constitutional protections against government infringements, ranging from Griswold v Connecticut regarding birth control and prophylaxis against disease, to Roe v Wade regarding abortion, to Lawrence v Texas regarding sodomy and homosexual acts. These and many other decisions are based upon individual, unenumerated rights, and even “penumbras and emanations.”

    How on earth will a Supreme Court invalidate an individual right of self defense, using tools specified for that purpose in the Constitution, against non-consensual violence, with those other cases staring at them?

  9. I have personally argued elements of the Heller case with Bob Levy & Gura and they’re both clueless and probably more dangerous than Sarah Brady.

    I verbally posed the following question to Levy after the decision:

    “Black’s Law Dictionary, 6th Ed., defines the word “License” as “Permission to do that which would otherwise be llegal.” It necessarily follows that anything requiring a license must be declared to be illegal prior to that requirement. Since in oral argument your side stated that you had no problem with licensing schemes, the net result of your “win” was an incongruous situation where a citizen is declared to have a Constitutional right to ask for government permission to do something illegal. Further, if licensing schemes are legitimate to apply to a 2nd Amendment right, why shouldn’t they apply to 1st Amendment rights? I understand that you were probably attempting an incremental approach; at what point do you intend to go after gun licensing schemes?”

    His response was that he didn’t have a problem with licensing schemes and had no intent to go after them because after all, “you can’t yell fire in a crowded theater.” Quote, unquote.

    Following this law-school-retarded argument out to its logical conclusion, it would only be a matter of time before he argued to me that there was a “compelling state interest” in preventing skull crushing by Martha Stewart dinnerware and therefore he would have no problem making dinnerware illegal and requiring a license prior to its acquisition and use. Because your website MIGHT incite a riot, it may be made illegal and require government permission prior to publishing. Because you MIGHT yell fire in a crowded theater, possession and use of your vocal cords can be declared illegal, prior to any criminal activity, and require a government license.

    Both of these guys need to be kidnapped out of the legal profession and deprogrammed like they do with cult followers. With friends like Levy and Gura, who needs Sarah Brady? They’re making her arguments for her.

    The net result of Heller was that citizens have a Constitutional right to ask for government permission to do something illegal (!), flawed public perceptions notwithstanding. When the rubber meets the road, all of the associated dicta isn’t worth the paper it’s printed on and you can bet that present and future USSC Justices know what the definition of “license” is. You can be sure that the alleged conservative Scalia, who had to prompt this team of acclaimed litigators for the right answer, knows what the concept of licensing involves and was perfectly happy to accommodate their ignorance.

    Whatever post-Heller successes may be claimed, they can only be claimed through a wink and a nod, contortions of reasoning, error, or cheerleading. While any incremental decrease in government abuse of gun owners may be welcome, wherever licensing schemes persist, gun ownership remains illegal and that includes the District of Columbia and anywhere licensing schemes persist. Whether I have a right to ask for government permission is not the point. Government permission is always conditional on the shifting sands of whatever government thinks it can get away with at the time. “Bring me a shrubbery!”

    From a strictly legal standpoint, as opposed to popular though flawed public perception, Heller was only one step above useless. If Levy and Gura understood why this is, and were preparing future challenges to licensing schemes so that they are buried forever, it might be two steps above useless. Clearly that isn’t the case. The fact that I, a nobody, seem to be the only person on the pro-gun side pointing this out reflects a pretty sad state of affairs in this country. If the correct position is privately circulating among gun rights activists and I just didn’t get the memo, the memo apparently didn’t get to Levy and Gura either. The 2nd Amendment is not the place to engage in OJT. If gun owners want to win, they and their representatives need to know where they are on the field and how many yards away the opposition’s goal posts are.

    With Levy and Gura on the Chicago case, all I expect is further enshrinement of the concept that my unalienable rights amount to a right to ask for government permission to do what they have declared illegal. We need to get rid of those guys and get somebody who can read a legal dictionary.

  10. To Agitator – I agree with your point about licensing…if government can put you in jail because you did not get their permission to exercise your “right”, then its not a right…its a privilege.

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