Posted by: captainfalcon | January 26, 2010

Inclementcy among the Libertarian belle monde

The Supreme Court today granted the NRA’s motion to allow its lawyer (former SG Paul Clement) floor time during oral argument in McDonald v. Chicago. This means that, instead of having thirty minutes, McDonald et. al.’s Lawyer (Alan Gura) has twenty minutes to argue for the unconstitutionality of Chicago’s handgun ban; Clement gets the remaining ten.

The NRA moved for divided argument because it was concerned that, under Gura’s strategy, the line most likely to persuade the Court to declare Chicago’s ban unconstitutional would get short shrift.

In his brief, Gura focuses mostly on an argument holding that, notwithstanding the (erroneous) precedent in the Slaughterhouse case, Chicago’s handgun ban violates the Privileges and Immunities clause of the Fourteenth Amendment. He only secondarily argues the line that ever since Slaughterhouse has been used to incorporate Constitutional Amendments onto the states, viz. that state laws in contravention of the Bill of Rights violate the Fourteenth Amendment’s Due Process clause.

Because, unlike privileges and immunities, the due process approach does not call for the Court to overturn a longstanding precedent, and because it has been used with repeated success to incorporate Bill of Rights Amendments onto the States, the NRA reasons it is the argument against the ban most likely to prevail in court. They want it to get as much airtime as possible: hence their motion.

The NRA’s motion has rifled some right wing feathers. Witness this contratemps:

Paul Clement – “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. Of course, I look forward to working with Alan.”

Alan Gura – “The suggestion that I wouldn’t present all the arguments to the Court was uncalled for. I hope that this time Paul understands that handgun bans are unconstitutional.”

Ilya Shapiro also scolds:

[Clement’s] comment — again impugning Alan’s litigation strategy — is uncalled for, and renews concerns over the NRA’s conduct…Throughout this case, Alan has consistently and forcefully advocated for the Second Amendment’s incorporation under the Due Process Clause.  That didn’t change when his case was taken up by the Supreme Court.  The thing is that the due process arguments are not all that complex, and simply do not merit the same care and attention in the briefs as arguments based on the Constitution’s actual text and history.  A first-year law student who’s taken constitutional law – let alone a Supreme Court clerk – could write a due process incorporation argument in her sleep!

Gura and Shapiro’s complaint is that the NRA’s motion (and SCOTUS’s grant?) implicitly calls into question Gura’s competence; both his record and politesse recommend that this is “uncalled for.”

That’s their beef, and I agree with both that Gura is extremely accomplished. I’m also willing to defer to the white shoes on appellatetiquette. But, even granting that impugning Gura’s ability would be outrageous, “the thing is” that’s not what Clement’s doing.

Chief among Gura’s clients is the Second Amendment Foundation, many of whose key players – David Kopel, Randy Barnett, Eugene Volokh, Gura himself – have originalist sympathies. It stands to reason, then, that Gura, in arguing McDonald, has two aims: (a) incorporate the Second Amendment (b) in a way that promotes originalism. Unhappily, these two goals are potentially in tension: focus more on originalism you lessen the odds of incorporation; focus more on incorporation and you lessen the odds its done the originalist way. The originalist goal is also in tension with the NRA’s objective, which – as you might expect from an organization whose mission is to preserve “the right of all law-abiding individuals to purchase, possess and use firearms” – doesn’t much care how incorporation is achieved.

In light of this, it is perfectly sensible for Gura to chart a middle course; increase his odds of overturning Slaughterhouse (from zero, just by raising the issue at all), while slightly lowering his (still good) chances of invalidating the Chicago law.

The NRA, then, acknowledges that Gura is a capable advocate when it moves for divided argument. That is: it acknowledges that he will pursue a strategy narrowly tailored to his ends, but submits its motion because his and its ends are opposed.

In short, this fracas is political, not professional, which, I suppose, is why politicos are blogging about it.

Finally, Shapiro’s apologia – that Gura’s not spending the bulk of his time on the Due Process Clause because “due process arguments… simply do not merit the same care and attention in the briefs as arguments based on the Constitution’s actual text and history” – doesn’t hold water. Not only does it mischaracterize Gura’s thinking on the matter (I just checked my crystal ball), but it also, ironically, impugns (as in: actually impugns) his competence. That’s because it would be downright foolish for a lawyer whose sole aim was to get the Supreme Court to recognize as fundamental a hitherto unincorporated right, not to hammer (what he regards as) his most persuasive argument. (Because you can be sure the other side will be logic-chopping with a scalpel to try to distinguish the right in question from those that have passed the test.)



  1. Great find Miles. I really like the little cracks that emerge between reasonably aligned fronts over the seemingly small differences in their trajectories. Has anyone else discussed this angle?

    Also, Ilya Shapiro loses points for using her as a generic pronoun (doubly so, if he has been keeping track and alternating with his between posts).

  2. […] 26, 2010: The Lure notices the same […]

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