January 07, 2010

NRA Seeks Time at McDonald Oral Argument

As those who have followed the gun rights issue know, the NRA and Alan Gura, McDonald and Heller attorney, have not always seen eye to eye. the NRA was not initially on board with Heller feeling that it was premature, only coming on board as an ally once the case reached the Supreme Court. A similar rift has arisen over Gura's emphasis on the Privileges of Immunities clause in the upcoming case of McDonald v. Chicago. As a result, the NRA has petitioned the Court to grant it ten minutes at oral argument.

From SCOTUSblog:
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 Due Process Clause, former Solicitor General Paul D. Clement said in the NRA motion, “presents the most straightforward and direct route to reversal of the decision” of the 7th Circuit Court against extending the Second Amendment to the state and local level. “Because the Due Process Clause represents a route to reversal that does not necessitate the overruling of this Court’s precedents, it would be particularly unfortunate if that argument was not adequately presented at oral argument.”

The NRA maneuver brings further out into the open the strategic differences in pursuing the two alternative arguments.