Legal Commentary

NRA Gets Oral Argument Time in McDonald v. City of Chicago

By Orin Kerr

The Blog of Legal Times notes that the Supreme Court granted the NRA?s contested motion for oral argument time in McDonald v. City of Chicago. The NRA had asked for argument time to make sure the Due Process arguments were fully made, in light of the fact that McDonald?s counsel Alan Gura had focused so heavily on the Privileges or Immunities argument. Gura had opposed the motion on the ground that it was his case and it would be extremely unusual to grant divided time in such circumstances. Paul Clement, former SG, will argue for the NRA.

We can?t read too much into the Court?s decision to divide argument time, but I tend to see it as somewhat supporting my theory that the grant in McDonald on both PorI and Due Process was not a sign the Court wants to overturn the Slaughterhouse cases. As I have written before, the Petitioner?s brief in McDonald is extremely unusual: It?s asking for a revolution in constitutional law, with the stakes of that particular case almost an afterthought to the brief. If the Court was on board the revolution, as most libertarian bloggers seem to think, presumably the Justices wouldn?t carve away some of the precious 30 minutes needed to make the case for the revolution for the much more humdrum and precedent-based argument featured in the NRA brief. On the other hand, if the Justices just want to decide the case before them, and see a revolution as unlikely, then it makes sense to make sure Paul Clement is there to focus on the narrower and more direct arguments for incorporation.

UPDATE: The end of the BLT post includes some interesting commentary by both Clement and Gura. First, Clement comments:

?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.?

Gura responds, showing his typical civility and grace:

?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.?

As the BLT notes, the dig against Clement reflects the brief he filed as Solicitor General in 2007 arguing on behalf of the United States that the D.C. handgun ban was not necessarily unconstitutional.

Full post as published by The Volokh Conspiracy on January 25, 2010 (boomark / email).