The Supreme Court this morning granted a motion by the National Rifle Association for argument time March 2, when the justices will consider whether the Second Amendment individual right to bear arms applies against state and local restrictions on firearms. The NRA will take an unspecified number of minutes from the plaintiffs who are challenging Chicago's gun restrictions, and who are represented by Alan Gura of Gura & Possessky of D.C. and Virginia. The case is McDonald v. City of Chicago
Adding the NRA to the list of those arguing may seem unremarkable, but in fact, the NRA has not been the pivotal player in the recent Supreme Court litigation over the Second Amendment. That title goes to Gura, something of an upstart, who took the landmark D.C. v. Heller case to the high court in 2007. As we reported at the time, there were old rivalries and no love lost between Gura and NRA lawyers, whom Gura felt were obstacles, not allies in the litigation.
Gura in fact opposed the NRA's request for argument time in the McConald case on Jan. 9, arguing that hearing from the NRA would "at best be redundant." Gura also wrote that the NRA "greatly overstates its role" in the litigation before the Court. Gura said, "The only factor separating NRA from the myriad other groups advocating for gun rights as amicus curiae is the payment of filing fees."
The NRA made its request for argument time in a Jan. 5 motion by its lawyer, former solicitor general Paul Clement, now at King & Spalding. Clement indicated the request was driven in part by the fact that the brief by Gura emphasizes the "privileges or immunities clause" argument in favor of applying the Second Amendment to the states, whereas the NRA wants to advance a more traditional "due process clause" argument for incorporation. Clement noted that the due process argument occupied only 7 of 73 pages in the petitioners' brief. Gura, in his reply, said the due process argument "will be presented fully" at oral argument without the NRA intervening.
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.