By Ashby Jones
February 8, 2010, 12:31 PM ET
We’ve made no bones of the fact that McDonald v. Chicago is our favorite case of the current Supreme Court term. The case has it all: a hot-button political issue (gun control), a set of fascinating constitutional questions, and plenty of pre-game controversy.
For those who aren’t familiar with the case, we suggest you get up to speed by reading Jess Bravin’s story on the case, from last March, as well as our blog post on Bravin’s article.
That backdrop sets up nicely a story in Monday’s Washington Post on some early wrangling going on among lawyers working on the case.
Specifically, the story involves groups of lawyers working on the gun-rights side of the ledger, those arguing the Supreme Court should shoot down a Chicago gun-control ordinance. In the 2008 Heller v. District of Columbia case, in which the Supreme Court shot down Washington D.C.’s gun-control law, it was, according to the WaPo, an “upstart band of libertarian lawyers” that handled the lifting for the gun-rights side, with the powerful National Rifle Association on the sidelines.
But leading into McDonald, the NRA has vowed not to be relegated to the sidelines again. And a recent decision by the justices has ensured that the organization will, yes, have its say this time around. The court’s move might also signal the way they’re feeling on one of the more high-profile constitutional issues as well.
The news reported by the WaPo is this: The court, without explanation, granted the NRA’s request to give its attorney time at oral argument. The court sliced the lead attorney’s time by a third and gave it to the NRA and its recently hired attorney, Paul Clement, the former Solicitor General now at King & Spalding.
Why might Clement need time when the attorney for those challenging the ordinances, Alan Gura (pictured), seemed to do just fine on his own in the Heller case?
The answer lies in the fact that Gura and Clement will push different constitutional solutions to a court that might be looking to apply the Second Amendment to the states, and therefore shoot down the gun-control laws at play. The WaPo explains that the court has done that with most of the amendments — but not the Second — by relying on the “due-process clause” of the 14th Amendment.
Gura says that using that path would be fine but that the best way to make the decision is through another clause of the 14th Amendment, one that forbids states from passing laws that would dilute the “privileges or immunities” that come with U.S. citizenship.
Clement, however, argues that the most “straightforward route” to incorporating the Second Amendment on the states is through the Due Process Clause of the 14th Amendment. He implictly states in a recent filing that Gura hasn’t adequately addressed that argument.
Gura bristles at “the suggestion that I wouldn’t be prepared to make that argument.” He added: “They’re not bringing anything substantive to the argument. The NRA is principally interested in taking credit and fundraising.” The NRA and Gura’s group petitioned the court to hear the review of the Chicago law, and the court picked Gura’s argument.
But the NRA has made a good play through the back door, it seems. NRA spokesman Andrew Arulanandam responded: “Our client is the Second Amendment. We wanted to make sure that all avenues were addressed and all bases covered” in convincing the court that the amendment applies to state and local governments.