Split Decision: NRA’s Likely Concern in McDonald

While I’ve been busy with work related items, it’s gotten around that NRA is filing to get some time during the oral arguments of McDonald, effectively splitting Alan Gura’s time before the Court. I’m not meaning to take sides in this, because while I understand NRA’s concern, I’m also willing to give Gura the benefit of doubt in how to argue his case. What I would like to do is explain the issues here as best I can, and try to convey what each side is trying to achieve, and why this might cause some conflict. The Supreme Court’s grant of Certiorari (cert for short) in the McDonald case goes like this:

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.

That’s a strong indication that the Supreme Court would like to see arguments for both Due Process Clause incorporation and P or I incorporation briefed in this case, and that ground is indeed covered in the Petitioners brief, NRA’s brief and other amicus briefs. By this point, it’s pretty clear that Alan Gura has set out on a path to get the Second Amendment incorporated (properly, in my opinion) under the Privileges or Immunities Clause, and NRA favors the more conservative and less risky incorporation under the Due Process Clause of the Fourteenth Amendment.

One can probably get to a motivation for favoring each method by thinking carefully about each party. It would seem Alan Gura came to the gun issue through a generally libertarian legal philosophy, much the same way many of us did. Having already won a landmark case before the Court on one libertarian issue, his place in legal history is assured. But winning a case that overturns Slaughterhouse would make him a legend in legal history. Hell, even just overturning Cruikshank, and bringing that part of the 14th Amendment back to life would be a hell of an accomplishment. Having come to the issue myself through a strongly libertarian bent I loved the Petitioner’s Brief in McDonald. The opportunity to bring the Privileges or Immunities clause back to life is right now, if it’ll ever happen. For someone who loves our Constitution and liberty, this can’t be passed up. I can’t blame Gura for taking the chance. I probably would too in his position, and if he prevails, our Republic will be better for it.

NRA, institutionally, is a lot more conservative, because their only concern is the preservation of Second Amendment rights. Ancillary libertarian concerns aren’t on their mind institutionally. While there might be (well, are, I can tell you) individuals in NRA who are sympathetic to the idea of restoring P or I and overturning Slaughterhouse, NRA as an institution is only concerned with getting a clean and firm ruling on incorporation, and is definitely wary of sacrificing incorporation on the altar of Privileges or Immunities restoration. They are probably concerned that the justices have a chance to hear more about incorporating the Second Amendment under the due process clause like we do with other constitutional rights.

So what’s the real risk? Who the hell cares how it’s incorporated, as long as it’s incorporated, right? I suspect what NRA is looking to avoid is a judicial train wreck of a ruling, where you get something like three justices voting on incorporation through Privileges or Immunities, three justices voting on incorporation through Due Process, and three voting on no incorporation because they think Heller was wrong, and the Second Amendment isn’t any real fundamental right that need be incorporated against the states. In a hypothetical ruling like that, you have no clear majority opinion, so the Marks rule is used:

The Marks Rule has raised the following schools of thought regarding the appropriate basis for determining the holding in such fractured cases: (a) the narrowest analysis essential to the result derived from a combination of all concurring opinions; (b) the concurring opinion offering the narrowest rationale; or (c) only those parts of the concurring opinions which overlap and arrive at the same result. For example, if one follows the first interpretation, then the holding in the case should be viewed as the narrowest rationale supported by all of the concurring opinions read together as though it were a single majority opinion, and where there is a conflict, the opinion based on the narrowest ground governs.

You can see how it might complicate things in moving forward on Second Amendment rights in the future, if we were to get McDonald in a plurality opinion. This would seem especially true since Marks may not quite cleanly apply. Is P or I more “narrow” than Due Process? NRA would presumably like to avoid the potential for this, and just have a clean ruling following the same legal reasoning as other Constitutional rights. They are going to, therefore, be concerned the justices aren’t able to hear enough oral argument along those lines.

Not that I believe Alan Gura is being reckless or daredevil in the way he’s decided to argue his case. The Supreme Court asked for this, really. What reason they have is not really something we can know, but they did. I can’t believe they would have granted cert the way they did if they weren’t interested exploring both options. I also still strongly believe that we will have incorporation at the end of the day. I sincerely hope we can have incorporation by Alan Gura succeeding in overturning Slaughterhouse and/or Cruikshank, but I’ll take it any way I can get it. Still, I think NRA has a valid concern in wanting time. Presumably if they are granted time, it’ll be Stephen Halbrook before the Court. I think either way this goes, our rights are in very good hands. We are fortunate to have competent and highly talented people working this issue on our behalf before the Court.

13 thoughts on “Split Decision: NRA’s Likely Concern in McDonald”

  1. It would be Paul Clement arguing if granted. You know, the former SG that tried to get the court to adopt intermediate scrutiny in Heller?

    Also, you should read Josh Blackman’s blog if you haven’t yet he wrote about the difference between DP incorporation and P+I which isn’t really incorporation.

  2. A split decision in this case is better than a simple 5-4. Due process incorporation is an assured rubber stamp. All one need do is copy/paste Nordyke. If there are 2 or more votes for P or I this case is elevated from ( in many lawyers and judges eyes) a stinking lame gun case to an important part of constitutional history.

    There is no honest and good excuse for this decision by NRA with Paul “Machine Guns Are Bad” Clement on this. If SCOTUS wanted just due process the could have granted NRA’s cert petition.


  3. I am of the opinion that oral arguments are largely a formality. The court has been fully briefed on the questions by both sides, and they know the score. I truly suspect that for the NRA, this is as much about publicity than about ensuring the court hears fully both avenues to incorporation. The court already and fully understands Due Process incorporation.

    And, I don’t think the justices are so robotic as to end up with “no clear majority opinion” at the end of the day. I strongly predict they will end up with a clear majority opinion to incorporate, and it will likely be via due process. I favor P or I … but after all these years, it’s almost too much to ask of one court that favors small steps than giant leaps (whether it is to liberty or tyranny).

  4. I have to agree with Carl. I don’t know what Mr. Clement is going to say in oral argument that’s going to make much difference–let’s face it, the briefs make the issue very clear. My guess is that this is the closest thing to a clear-cut case that the SCOTUS will accept any time soon–they’re more accustomed to dealing with obscure rules and ambiguities. This case will seem relatively straightforward, and I doubt many votes will be changing as they debate it.

    My guess is that the Justices all know already who’s going to be voting for what, including who will vote for P&I incorporation and who will want to stick with selective incorporation.

    In fact, call me crazy, but I’ve been surprised that no one else has brought up the possibility that making the case involve P&I–thus turning it into an opportunity to revisit Slaughterhouse–may actually have been a way to ensure more votes, not fewer. Think about it for a moment: who’s the swing vote? Kennedy? That’s the conventional wisdom. Would you expect Justice Kennedy to be more enthusiastic about a case to let people keep guns in Chicago and New York, or a chance to undo Slaughterhouse and go down in history as the crucial swing vote that got it done?

    In fact, although I’m not exactly ready to predict it, I would not be shocked to find that there are more than five votes for P&I incorporation that undoes Slaughterhouse. There are Justices who voted against Heller who might conceivably figure that with Heller decided, they might as well seize the chance to revive the Privileges and Immunities clause while the “conservative” Justices are on board.

    Now, I’m no Supreme Court expert, and if Gura’s thinking anything like that, I don’t think he’s mentioned it in public. But am I really the only one thinking it?

  5. The attempt to bring more than the Heller 5 to the majority in this case is one of the primary motivating factors to argue for P or I Incorporation.


  6. Does that mean you share my opinion, or that Gura and company have already said as much and my thought isn’t very original?
    Tell me, I can take it.

  7. I don’t know if its been widely publicized, but I know that on e.g. the Amicus calls, that the hope of a broader majority has been part of the explanation for why P or I incorporation of the 2A is superior.


  8. I don’t really mind the NRA presenting it’s own argument, what I object to is asking Mr. Gura to share his time. My perusal of the various Amici briefs against is a repetition of “ZOMG, we’re all gonna die if you rule for Gura”, so why not take the time from them?

    1. Let me see if I understand you, Peter. You want to know why NRA isn’t asking to join arguments with the other side, right? You are aware that the other side in this case is arguing against any form of incorporation and in favor of the ban, right?

  9. Let me see if I understand you, Bitter. Rather than take time away from Gura, I facetiously suggested that the NRA’s potential time be taken from the Dark Side’s portion, since they will likely be repeating things that the Court has already heard.

    At what point did I suggest that they join the other side?

    I’ve already experienced more of your failure to comprehend simple English than I ever wanted to, OK?

    1. There’s not a comment in your quote that indicates you were being “facetious” about NRA trying to join the other side’s arguments. Considering that in the other post on this issue, some are legitimately arguing that NRA is trying to deliberately hurt McDonald, I have little reason to believe a comment like this wouldn’t be serious.

  10. What Bitter is getting at is that NRA can’t divide the other side’s time unless they are arguing against the petitioners, and in favor of Chicago.

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