NRA Will Argue in Second Amendment Case

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.

Comments

[Joe]

theaton -- You sound like one of those people who believe Alan Gura should have fought to make it legal to carry machine guns in the schoolyard when he argued Heller. Give us a break.

In case you hadn't noticed, the 2nd Amendment had been all but declared null and void in huge parts of the U.S., which Alan Gura and Robert Levy began to reverse in Heller and are trying to continue to reverse in McDonald.

If you want to sit around in your little fantasyland and pretend that one day you'll wake up and all gun restrictions will have magically disappeared overnight, and in one fell swoop, you'll be waiting a long time.

Alan Gura is a 2nd Amendment hero; to even suggest otherwise is so silly I can hardly believe I spent 2 minutes typing up this reply.

[Roger Keller]

Alan Gura's brilliant Heller v. D.C. case! You have to be kidding. If I am not mistaken, he argued that government has the right to make reasonable restrictions on the right to bear arms. If that is his case, he should be drummed out of the country. How did he ever get to argue before the Supreme Court?
Now these courts have it right.
"The right of a citizen to bear arms, in lawful defense of himself or the State, is absolute. He does not derive it from the State government. It is one of the "high powers" delegated directly to the citizen, and 'is excepted out of the general powers of government.' A law cannot be passed to infringe upon or impair it, because it is above the law, and independent of the lawmaking power." [Cockrum v. State, 24 Tex. 394, at 401-402 (1859)] and,

"The provision in the Constitution granting the right to all persons to bear arms is a limitation upon the power of the Legislature to enact any law to the contrary. The exercise of a right guaranteed by the Constitution cannot be made subject to the will of the sheriff." [People vs. Zerillo, 219 Mich. 635, 189 N.W. 927, at 928 (1922)]

[Lazarus]

The NRA makes money by getting people to donate under the threat that the government will restrict gun ownership or take away privately owned guns. If the SCOTUS guarantees this right, then the NRA will likely lose donations as people become less concerned. If one were cynical, one might think that this internal conflict causes the NRA to try to thwart Guru, not enough for him to lose, but to get to a middle ground that would necessitate continued donations.

[James Reisinger]

I fail to understand why the NRA would want to do anything that might undermine the 'right to bear arms' under the 2nd Amendment? Perhaps I am missing the point???

[theaton]

Hey Joe, would that be Alan Gura's wonderful job at assisting the SCOTUS in helping the anti's further turn a right into a privilege? When you have to ask for permission from a government to do something, it is no longer a right but a privilege.

[Etaoin Shrdlu]

That should properly be "enemas", not "enemies".

I just hope the NRA doesn't screw things up too badly.

[Joe]

The NRA has turned into a parody of a parody. First they tried to chop off Alan Gura's brilliant Heller v. D.C. case at the knees. Now they've gone and hired a GUN-GRABBER as their attorney so they can horn into Gura's equally brilliant McDonald case. The NRA has redefined "shameless." With friends like them, who needs enemies?