Court grants NRA motion to argue McDonald: What are implications?

Alan Gura, architect of the history-making Heller
decision, at Gun Rights Policy Conference. Photo:
wikipedia.com

New wrinkle in far-reaching gun rights case:
Oral arguments slated for March 2^nd

On Monday, the Supreme Court of the United States granted a motion by the National Rifle Association for a portion of the 60 minutes allotted to oral argument in the case of McDonald v. City of Chicago. While it might seem unremarkable for the Court to allot argument on an important gun rights case to the dominant gun rights organization, the ruling highlights longstanding antipathy between the NRA and Alan Gura, the lawyer who won the landmark gun rights case Heller v. D.C. and is now arguing McDonald.

WHAT ARE THE NRA’S MOTIVATIONS?

In Heller, Gura and many others felt the NRA tried (unsuccessfully) to torpedo the case, first attempting to “consolidate” its own inferior filing into the case, then trying to repeal the D.C. gun ban, rendering the case moot. Wrote Tony Mauro of the Legal Times:

“Even after the D.C. Circuit ruled in March, says Gura, the NRA lobbied for legislation to repeal the D.C. handgun ban as a way to keep the case out of the Supreme Court. ‘The NRA was adamant about not wanting the Supreme Court to hear the case, but we went ahead anyway,’ says Gura, a name partner in the firm of Gura & Possessky. ‘It's not their case, and they are somewhat territorial.’”

The question is whether the NRA, which butted into the present case against the wishes of Gura and his client, is doing so for sound tactical reasons, or as a means of “marching to the head of the parade” by claiming success for efforts not of its doing.

While you might think the NRA joining the pro-gun argument is a plus (“the more, the merrier”), bear in mind that while the Court may extend oral arguments, as it did in Heller, each side is normally limited to thirty minutes. Translated, the NRA is taking precious time from a lawyer who has already won the most important Second Amendment case in history.

Moreover, arguing the case for the NRA is former U.S. Solicitor General Paul Clement who, in Heller, argued for the government that D.C.’s gun ban might indeed be constitutional. Said slate.com:

“…the U.S. solicitor general—representing the president at the Supreme Court—has argued that while there is an individual right to bear arms protected by the Second Amendment, the Court of Appeals for the D.C. Circuit Court struck down the city's gun ban using the wrong level of constitutional scrutiny. He wants the case revisited with greater deference to the government's need for some gun regulations…”

WHAT IS AT STAKE IN McDONALD?

At issue in McDonald is whether the Second Amendment will be “incorporated” and therefore, under the Fourteenth Amendment, be applied to states. Remember that in Heller, the Court ruled the Second Amendment affirms an individual right to keep and bear arms, and that the District of Columbia violated that right with its near-total ban on gun ownership. But the Bill of Rights was originally intended to apply only to the federal government, and the District of Columbia is a federal entity. Therefore, Heller left open the question of whether state and local governments could enact near-total bans such as the one in D.C.

If that isn’t complex enough, consider too that under the Fourteenth Amendment, passed in the historical context of Reconstruction, two arguments can be pressed for incorporation – the more traditional “due process” clause, or the more aggressive “privileges and immunities” clause.

Further complicating the issue, in what is regarded as a flawed 1873 Supreme Court decision (“The Slaughter-House Cases”), the Court ruled that only rights that accrue from the existence of the federal government (e.g. to petition Congress) are protected under “privileges and immunities.” Pre-existing rights (including the right to bear arms) could be abridged by states.

Simply put, Gura’s petition in McDonald argues for incorporation under both “due process” and “privileges and immunities” clauses, asking the Court to overturn Slaughter-House, while the NRA claims Gura underemphasizes “due process” and seeks to make the argument itself.

For Gura’s own explanation, check his interview with David Kopel of the Independence Institute, available at: http://www.davekopel.com/PDA.htm

THE NRA FILES, AND FUR FLIES

With the NRA motion to argue part of McDonald granted, conservatives and libertarians – who generally join in supporting the Second Amendment – find themselves divided.

Says Ilya Shapiro of the libertarian-leaning Cato Institute (whose Chairman, Robert A. Levy, organized and bankrolled Heller, even recruiting Gura to argue the case):

“Sadly, it’s … typical of how the NRA has behaved throughout this case and before that during the Heller litigation - sabotaging [Gura] at every turn and showing again and again that, even in the face of winning arguments that fully support its legal positions, the NRA prefers to seek glory for itself rather than presenting the strongest case for its purported constituency of gun owners…”

Conservatives, on the other hand, fret that overturning Slaughter-House will open the door to overturning state-level restrictions on private property. Froths commentator Ken Klukowsky at Townhall.com:

“The lawyers for Otis McDonald and his co-plaintiffs are libertarian activists, who are pushing an aggressive and potentially risky constitutional theory to the Court…the National Rifle Association is working hard to keep the focus of this case where it belongs, on gun rights.”

For his own part, Alan Gura is more pragmatic, favoring the same approach that won Heller:

“We are not against substantive due process. We simply believe that it’s always preferable, when the Court decides a constitutional issue, to begin with the actual text of the Constitution and see what it meant to the people who ratified it. Two years ago … the Heller opinion [came] out, and the Court did this for the Second Amendment. The Court went word by word and asked: Who are 'the People?' What are 'arms?' What does it mean to 'bear arms?' What did this language actually mean at the time?"

That the Court should ask the framers’ intentions in drafting the Fourteenth Amendment – as it did with the Second Amendment – is not “radical” or “aggressive” or “activist.” It is what constitutional scholars should do.

What the Supreme Court will decide after the upcoming March 2 oral argument is anyone’s guess. As a betting man, however, I would rather place my money on a lawyer who already won the precedent-setting Second Amendment case rather than the lawyer who argued against him.

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