The National Rifle Association asked the Supreme Court on Tuesday to allow its lawyer to take part in the oral argument March 2 in the case testing whether the Second Amendment restricts the power of state and local governments to pass gun control laws. It sought 10 minutes of time allotted to the individuals and groups that are pursuing the Amendment’s extension, to put more stress on an alternative constitutional argument.  The request, the NRA noted in its motion, is opposed by the lead parties in McDonald, et al., v. Chicago (08-1521).  Those parties are expected to file a written opposition shortly.  The Court will consider the NRA request at its private Conference on Jan. 15.

The Court in the McDonald case will consider two main arguments for applying the individual right to possess guns to state and local laws: first, that gun rights should be protected at those levels by the 14th Amendment’s “Privileges or Immunities” clause; and, second, the protection should come under the Amendment’s Due Process clause.   Both of those arguments are at issue in the question presented by the petition.  The NRA said it wants to put stress on the due process argument.

In their merits brief in the case, the NRA noted, Otis McDonald and the others appealing “have concentrated their argument on a Privileges or Immunities Clause theory that would require overruling at least three of this Court’s precedents.”  And, the motion added, only 7 pages of the 73-page McDonald brief discuss the Due Process Clause.

The Due Process Clause, former Solicitor General Paul D. Clement said in the NRA motion, “presents the most straightforward and direct route to reversal of the decision” of the 7th Circuit Court against extending the Second Amendment to the state and local level.  “Because the Due Process Clause represents a route to reversal that does not necessitate the overruling of this Court’s precedents, it would be particularly unfortunate if that argument was not adequately presented at oral argument.”

The NRA maneuver brings further out into the open the strategic differences in pursuing the two alternative arguments.

A leading reason for pressing the Privileges and Immunities Clause approach is that it could give the Court a chance to overrule the 1873 ruling in the SlaughterHouse Cases — a ruling that made a nullify of that Clause.  It has long been a goal of some advocates to revive that Clause, as a firmer foundation for weighing government power against individual rights.  Conservative advocates, in particular, argue that the use of the Due Process Clause has given judges too much latitude to invent new rights that exist nowhere in the Constitution.

The leading reason for pressing the Due Process Clause is, as the NRA motion noted, that the Court could do extend the Second Amendment without having to overrule prior decisions — something that the Court usually does reluctantly.  Moreover, the Due Process approach has been the one that the Court has routinely taken in extending most of the other parts of the Bill of Rights to state and local levels.  The NRA motion pointed to that, saying the issue in McDonald is “whether the Second Amendment is somehow bizarrely limited to the federal government and federal enclaves or whether it is a fundamental guarantee of liberty that the Framers of the Fourteenth Amendment envisioned.”

The NRA motion is one of two requests before the Court to divide the argument time on the Otis McDonald side.  Thirty-eight states, led by Texas, have asked for ten minutes of time to argue from what they say is the states’ special perspective.  That has the support of the McDonald petitioners. While the city of Chicago and the village of Oak Park, Ill. (on the other side of the case) do not oppose giving the states some time to argue, Chicago and Oak Park have filed a response to the Texas-plus motion disputing some of the 38 states’ claims as to the interests they seek to represent.

If those states are concerned that local governments will curb gun rights, they already have the power to stop that without needing the Supreme Court’s support to do so, the response argued.  The city and village also noted that not all states share the views of those 38, saying that the state of Illinois is going to enter the case to support Chicago and Oak Park, and may be joined in that by additional states.

Normally, the Court gives each side 30 minutes in an oral argument.  And, normally, when it divides one side’s argument, it does so for only two counsel — one for 20 minutes, the other for 10.  However, the Court also has the option of expanding the hearing beyond an hour to provide additional time for a case to be heard.

The NRA is in the McDonald case as a party supporting the petitioners.  Earlier, it had sought review of its own petition (08-1497).  The Court considered that along with the McDonald petition in September, but opted to grant only the McDonald filing.  The NRA petition thus is on hold.

Posted in Merits Cases