February 9, 2010
Competing Claims for Second Amendment Incorporation
Robert Barnes reported yesterday in the Washington Post on the competing claims for Second Amendment incorporation in McDonald v. City of Chicago, the Second Amendment case now before the Court (and scheduled for argument on March 2). The article is a nice overview of the constitutional claims on incorporation and the politics of the case.
As Barnes reports, the NRA "was on the outside looking in" in D.C. v. Heller, the OT 07 case that held that the Second Amendment protects an individual right to bear arms, but left open the question whether that right extends to the states (or is "incorporated"). Barnes reports that the NRA was unhappy being left outside that case and thus filed to participate in oral argument in McDonald.
On January 25, the Court granted the NRA's motion, no doubt in large part because of who would argue on its behalf: Paul Clement. (Clement, of course, was the Bush administration's Solicitor General and, as Barnes writes, "a favorite of the court.")
In moving for time at oral argument, the NRA claimed that McDonald's attorney, Alan Gura (who also argued Heller), gave insufficient attention to the argument that the Due Process Clause incorporates the Second Amendment. (As we reported, Gura pressed harder on his claim that the Privileges or Immunities Clause incorporates the Second Amendment. He all but ignored the Due Process argument.) The NRA apparently wanted to press the Due Process claim--the path of lesser resistance (because it wouldn't require overturning The Slaughter-House Cases, among others). Gura's brief is here; the NRA's brief is here.
It's hard to know what, or how much, (if anything) to make of the Court's decision to grant time to the NRA and Clement. It could simply be a move to include an obviously interested party with a popular attorney. Or it could signal the Court's desire to consider more seriously the Due Process claim (and less seriously the Privileges or Immunities claim).
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