Division in the Ranks

Paul Clement, representing the NRA, has filed a motion [pdf] requesting a portion of the time reserved for petitioners’ oral arguments in McDonald v. Chicago.  Alan Gura will have thirty minutes to argue his case before the Court, some of which will be given over to Texas Attorney General Greg Abbott.  I doubt he can spare another ten.

The gist of the NRA motion is that they wish to have more time dedicated to arguments in favor of Due Process incorporation, believing that it “presents the most straightforward and direct route” to incorporating the 2nd Amendment.

The NRA had their chance to argue for selective incorporation.  They did so before the 7th Circuit last June, and it was a good case.  It was considered, alongside McDonald, to be heard by the Supreme Court.  The Court chose McDonald.

The Justices could have taken the easy way out with the NRA case, which asked only for selective incorporation.  In taking McDonald, the Court is telling us that they’re interested in entering a larger and more important debate. Clement seems worried that, should the Court choose not to overturn Slaughterhouse and Cruikshank, the game is up.

This is simply not true.

The question presented in this case reads,

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.

Should the Court decide that the Privileges or Immunities clause does not incorporate rights against the states, they are free to incorporate through the Due Process clause.  In fact, Due Process incorporation seems to be a foregone conclusion, being accepted even by supporters of the opposition in several of their briefs.

So, why worry?  Why ask to split Gura’s time even further?

Certainly, Mr. Clement and his associates don’t think Gura’s not up to the task.  He successfully argued and won Heller.  So, what gives?

This is a case with huge potential implications. Gura’s going to need all the time he can get to address the concerns of the Justices.  Twenty minutes is hardly enough time to cover the vast amount of historical and textual ground that this case seeks to survey.

I’m certain the question will be asked, “Mr. Gura, you have a perfectly straightforward approach with strong precedent in selective incorporation. Why did you not choose this route for the sake of simplicity?”  The answer to that question will be very important, and it frames the part of this case that transcends the 2nd Amendment.

I’m not sure what Clement hopes to gain by trying to split things down the middle.

One thought on “Division in the Ranks”

Comments are closed.