This column originally appeared on Townhall.com on January 25, 2010.
There is growing tension between the pro-gun parties to the upcoming Supreme Court gun-rights case. Perhaps concerned about the direction this case was going, the Court has taken the unusual step of granting the NRA’s motion to be given separate time to speak during oral arguments. Round One in this historic fight for the right to bear arms goes to the NRA.
The U.S. Supreme Court is set to hear arguments on March 2 in McDonald v. City of Chicago, presenting the question of whether the Second Amendment right to keep and bear arms is only enforceable against the federal government, or whether it is also a right against city and state governments. This lawsuit challenges Chicago’s gun ban, which is essentially identical to the federal ban in D.C. that the Supreme Court struck down in 2008.
The lawyers for Otis McDonald and his co-plaintiffs are libertarian activists, who are pushing an aggressive and potentially risky constitutional theory to the Court. Without getting too much in the legal weeds, McDonald is arguing that the Court should extend gun rights to the states through the little-known Fourteenth Amendment Privileges or Immunities Clause, and overrule a venerable precedent from 1873 called the Slaughter-House Cases, which protects state sovereignty by limiting the reach of Congress and the courts. The Slaughter-House Cases is only one step removed from Marbury v. Madison as one of the most important cases in American history.
The libertarian activists behind McDonald openly explain that the reason they are pushing the Court to overrule Slaughter-House has nothing to do with guns. Instead, they want to advance a libertarian economic agenda, where federal judges could sit in judgment of state and local laws involving labor, employment, business regulations and other economic issues. Although the Constitution is silent on these matters, these activists want the courts to start declaring constitutional rights against such things, and using the power of the federal judiciary to strike down laws of this sort that the judges don’t like.
The problem is that this approach could endanger gun rights. The narrower your focus when arguing a case, the easier it is to get a court to go along with you. The broader your argument, the steeper the hill you must climb.
In a case like McDonald v. Chicago, where the stakes are sky-high and the impact could be huge, the Court will be inclined to move very carefully. It’s quite a horse pill to swallow under the best of circumstances. In a situation such as this, where the narrowest argument you can make is still a broad one with serious ramifications, pushing a much larger agenda than necessary starts to run the risk that the Court will choke on the whole thing.
For that reason, the National Rifle Association is working hard to keep the focus of this case where it belongs, on gun rights. Whether the Second Amendment gives 300 million Americans a right against state or local laws that ban guns is a monumentally-important issue for personal liberty, and so the NRA’s argument presents only that issue before the justices.
The NRA’s argument therefore stresses that the Court should apply (or “incorporate”) the Second Amendment to the states through the Fourteenth Amendment Due Process Clause. Although this approach is beset with problems from a conservative legal perspective, it’s nonetheless how the Court has always tackled these issues and so it becomes the safest route for extending gun rights to the states.
Accordingly, the NRA has committed the resources to retain one of the best Supreme Court lawyers in the country, former U.S. Solicitor General Paul Clement, to represent them in the McDonald case. Clement filed a motion requesting for the NRA to be granted some of the argument time on March 2 to make their case.
While it’s not surprising that McDonald’s lawyers opposed this motion, they took the surprising step of also offering that they would not object to the Court instead giving some of McDonald’s time to James Ho, the well-respected and very capable Texas Solicitor General who had also filed a motion requesting divided argument on behalf of 38 states that filed a separate brief in this lawsuit.
On January 25, the Court surprised everyone by granting the NRA’s motion but denying Texas’ motion. In other words, when McDonald encouraged the Court to allow Texas to argue but to shut out the NRA, the Court said no on both counts, allowing Clement to present the NRA’s argument. In doing so, the Court sends a signal that both routes for applying the Second Amendment to the states (one being Privileges or Immunities and the other being Due Process) would not be fully studied without allowing the NRA to the microphone. (It’s also likely that the Court’s decision reflects its deep respect for Paul Clement, as it’s less likely the motion would’ve been granted to a less-accomplished lawyer.)
It must be noted that these activists do not speak for all libertarians, many of whom join conservatives in opposing the idea that the Court should overrule the Slaughter-House Cases. That’s why the brief I wrote in this case for the American Civil Rights Union, arguing how the Court could incorporate the Second Amendment through the Privileges or Immunities Clause without overruling the Slaughter-House Cases, was joined both by the Committee for Justice (led by libertarian lawyer Curt Levey) and conservative organizations such as the Family Research Council.
But today’s court order, taking some of McDonald’s argument time and giving it to the NRA, shows the deep divisions between gun-rights advocates in this case. The Court did the right thing by bringing the National Rifle Association to the table, increasing the odds that this case will be about the right of Americans to keep and bear arms, which is exactly as it should be.