I’m a bit surprised, because I thought it was a long shot. But it looks like the Court granted NRA’s motion in today’s orders. But they also denied the State Attorneys General’s motion:
McDONALD, OTIS, ET AL. V. CHICAGO, IL, ET AL. The motion of Texas, et al. for leave to participate in oral argument as amici curiae and for divided argument is denied. The motion of respondents National Rifle Association, Inc., et al. for divided argument is granted. The motion of Law Professor and Students for leave to file a brief as amici curiae is granted.
Does it mean anything that the Court denied the AG’s motion and accepted NRA? I have no idea. But I welcome other people who are familiar with the Supreme Court to comment.
I predict a messy split between due process and P&I. We’ll get our incorporaton but it will be on both terms. Hopefully this doesn’t screw up the result too much.
Here is my read of this order:
The Court (or anyway, the Heller majority) includes some Justices who are seriously interested in the Due Process argument for incorporation of the right to arms, but are leery of Gura’s Privileges or Immunities argument, which is more strictly correct from an originalist standpoint, but also more radical in its implications. The Justices want to make sure the Due Process argument is fully presented at oral argument, and the briefs have convinced them that NRA (Halbrook) will do this effectively, while Gura may not. (Gura’s brief did present the DP argument, but gave it somewhat short shrift.)
In light of this move, I tend to think that there aren’t five Justices willing to accept Gura’s position.
We will still probably get incorporation, but not under a P or I theory. The likeliest outcome is five votes for incorporation, but with no majority rationale for why. Here’s why I say that: Justice Thomas’s concurrence in Printz and his dissent in Saenz pretty clearly show that he does support P or I incorporation of 2A, but won’t go along with Due Process incorporation, which he regards (not unjustifiably) as b.s. On the other hand, at least one of the other four members of the Heller five (and probably more than one) will go along with DP incorporation but not P or I incorporation.
I have no beef with Gura, he’s a champion of liberty, but the NRA did the right thing by filing this motion.
My understanding is that it will be Clement up there, not Halbrook.
I’d feel better about Halbrook, frankly, given Clement’s argument in Heller for intermediate scrutiny. At least Halbrook is an expert on 14A.
Sorry, I said “Halbrook” in the last comment, but in fact I believe former SG Paul Clement is representing NRA in the Chicago litigation.
As for the denial of the state AGs’ motion for argument time, that’s not too surprising. The Court probably viewed that as a mere “me too” request. Since NRA’s motion for argument time was granted, the Justices could have confidence that the substance of the arguments for incorporation — under both P or I and DP — was now going to be fully presented by Gura and Clement.
At that point, it wouldn’t really add anything substantive to let someone then stand up on behalf of the state AGs and basically tell the Justices, “Yeah, what they said.”
Don’t get me wrong, the state AGs’ amicus brief filing was extremely important — the fact that, what, 38 states are expressly on board with 2A incorporation is a big deal.
But argument time is extremely scarce. I can see why the Court didn’t think it would add much to let the state AGs chime in at oral argument.
Finally: I agree with Melancton Smith — I would feel happier with Halbrook up there for NRA, given Clement’s willingness to water down the standard of review in Heller. Of course, in Heller, Clement was acting as DOJ’s lawyer.
If Clement stands up strongly for a *meaningful* incorporated 2A in this argument, and incorporation prevails under a combination DP / P or I theory as predicated above, then NRA will look sensible. But if Clement sells out the standard of scrutiny by making overbroad concessions at oral argument, then NRA will (rightly) face very serious recriminations and loss of confidence from the gun rights community. Clement needs to tread carefully.
It is possible that Clement made that argument as his duty to the Government rather than from his personal belief. I hope so.
I’m not entirely sure that the oral arguments are all that determinative, frankly. I attended Heller and it seemed to me from the questions that the justices had their minds made up. There was certainly a moment early when Kennedy asked his first question that it seemed apparent Heller was going to prevail. You could sense the air of defeat coming from Dellinger and the excitement of Gura.
I would hope so too – otherwise Clement would have a serious malpractice not to mention ethical issue on his hands.
When you serve as someone’s attorney, your personal opinions are meaningless, you are simply making their case the best you can.
Eff the NRA for this. I’m tempted to let my membership lapse, except I’m close to being able to vote and I’d like to see the board membership turned over.
Dave:
Keep your membership and vote. Quitting accomplishes nothing, and really, NRA is the only gun rights group with serious muscle in DC and most state capitols.
I am not happy with all they do either, and I think there are a number of problems with the board. There are good directors on the board, who are engaged and doing things. There are also passive members on the board who are not, and a few who I would say shouldn’t be there.
Elections are coming up soon, where I’ll be discussing how the board works, and making a few recommendations.
It’s not improbable that the Solicitor General presents case arguments that he himself does not hold in private. Look at the former SG now pressing the CA Prop 8 case…