Is it good the NRA got involved in McDonald v. Chicago?

Certainly seemed to have benefited a pure RKBA case. I got the feeling that Gura was using this as a vehicle to argue his viewpoints on a much wider reaching libertarian agenda. Not that that is necessarily a bad thing... but it was nice to have a group on board that had a single target in sight: get this case through with a positive result.

So in the end, do you think it is good that the NRA stepped in?

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I personally don't think it matters. From all I've read the oral arguments are a formality to a large extent, and most Justices seemed to come into the case with their minds pretty much made up already.

Seems like it was all just politics and chest thumping at this point, from everyone.

Even the Brady lawyer admitted early in the week they had no chance of winning, yet they go in and do the dog and pony show.

Guess I'm getting pretty jaded from all of it.

If the NRA hadn't been allowed any argument time, Gura would have fielded both aspects.

Oral arguments are for show anyways. The briefs are where the contest is really won or lost.

On balance it is good that the NRA got involved in this one because they didn't muck up Gura's case like they did in the early stages of Heller.

I'm not engaged in appellate practice, but it's rare that oral argument really makes much of a difference. Sometimes you can blow it in argument, particularly if one of the judges is genuinely undecided, but that's rare.

A lot of what happens in appellate argument is a "my brain is bigger than your brain" exercise in trying to outclever one another. The main thing to bear in mind is that you don't want to humiliate the appellate judge by actually proving that you're smarter than he or she is. It's all judicial theatre.

This is an situation where it appears that the decision will likely fall down the lines of a very predictable ideological split. I'd be more than a little surprised to hear that any of the justices was swayed from the opinions they held before entering the room.

This pretty well summarizes what Scalia thinks about Gura's P&I approach:

“are you asking us to overrule 140 years of prior law….unless you are bucking for a place on some law school faculty.”

Gura's focus on Privileges or Immunities wasn't about the Second Amendment but about a broader libertarian/CATO agenda.

I for one am very thankful the NRA filed its motion asking for time at oral argument so someone would make the Due Process argument.

Gura's written brief spent only 7 of 73 pages on Due Process and focused mostly on a longshot argument (P or I) that the justices trashed within moments of Gura opening his mouth. I think it's safe to say Gura would have given similar short shrift to Due Process in his oral argument because he is so enamored with overturning Slaughterhouse.

I think Gura got thoroughly schooled by Roberts and Scalia.

From Scotusblog:

"The first argument to collapse as the hearing unfolded was the plea by the lawyer for gun rights advocates, Alan Gura of Alexandria, Virginia, that the Court should “incorporate” the Second Amendment into the 14th Amendment through the “privileges or immunities” clause. In the first comment from the bench after Gura had barely opened, Chief Justice John G. Roberts, Jr., noted that the Court had essentially scuttled that argument with its ruling in the SlaughterHouse Cases in 1873. And within a few minutes, Justice Antonin Scalia — the author of the Heller opinion and the Court’s most fervent gun enthusiast — was sarcastically dismissing the “privileges or immunities” argument.

“Why,” Scalia asked Gura, “are you asking us to overrule 140 years of prior law….unless you are bucking for a place on some law school faculty.” The Justice said the “privileges or immunities” argument was “the darling of the professorate” but wondered why Gura would “undertake that burden.” And Scalia noted that the “due process” clause — an open-ended provision that he has strongly attacked on other occasions– was available as the vehicle for incorporation, and added: “Even I have acquiesced in that.” Gura somewhat meekly said “we would be extremely happy:” if the Court used the “due process” clause to extend the Second Amendment’s reach.

Justice Ruth Bader Ginsburg, one of the dissenters in Heller, then moved in to press Gura on just what “unenumerated rights” would be protected if the Court were to revive the “privileges or immunities” clause. It was a theme that would recur often thereafter, solidifying the appearance that the argument had virtually no chance of succeeding. (In fact, when Gura near the end of the argument returned to the podium for his rebuttal, his time was used up by Justices Ginsburg and Anthony M. Kennedy exploring what other rights might come into being if the Court gave new life to the “privileges or immunities” clause. He responded that he could not provide a full list, to which Justice Scalia retorted: “Doesn’ t that trouble you?” It was obvious that it troubled the Court.)"

As it turned out, I certainly can't see that it did any harm.

Gura's written brief spent only 7 of 73 pages on Due Process and focused mostly on a longshot argument (P or I) that the justices trashed within moments of Gura opening his mouth. I think it's safe to say Gura would have given similar short shrift to Due Process in his oral argument because he is so enamored with overturning Slaughterhouse.

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Gura's written brief wisely did not waste a lot of time addressing a subject that was already going to be thoroughly covered by the other respondent (NRA). Likewise, there wasn't any need for Gura to waste his oral argument discussing an issue that had already been given to Clements.

I disagree with your assumption that it is "safe to say" what Gura might have done given the perfectly rational use of time choices he made in this situation. I haven't seen any sloppiness in his past work or any indication that he wasn't capable of handling due process had the NRA not been on that angle and I don't think that there is a fair basis to reach the conclusion that Gura would have made the same choices if he had to cover both arguments himself.

I don't think that there is a fair basis to reach the conclusion that Gura would have made the same choices if he had to cover both arguments himself.

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Have you read Cato's rants?

To what extent are their priorities, Gura's priorities? I don't know, myself.

I don't think Gura is stupid, nor sloppy. That does not mean that he wants exactly what I want from this case.

(And to an extent, his volunteering a bit much in Heller was sloppy, but I was and remain happy to explain that away as Monday morning quarterbacking. Going in, nobody knew what the outcome would be.)

Gura wouldn't be spending his career arguing 2A cases if he didn't want the outcome to be incorporation and restoration of our 2A rights. Some people have the belief that Gura tried p&i because he has some hidden (libertarian) agenda. I don't buy that - I think he thinks that is the best argument for incorporation as to how our constitution is written, and he didn't want to short change it.

It was the same with Heller - a lot of people thought he was going to blow it by pushing the case and having the scotus decide it wasn't an individual right. At least he had the guts to try it and the brains to pull it off. We might look back and realize the same thing for his p&i arguments.

BTW, I think it was good to have the NRA in on this - it shows what we can do if we work together. It's better than having the NRA try to scuttle the cases.

Gura didn't have a hidden agenda with P&I. Did you read his briefs?

For that matter, I think that P or I should be used to enforce 2A against the states -- AND the right to trial by jury. However, as many have observed, as far as 2A is concerned, it's hard to discern the difference in outcomes if P or I, or SDP are used, even if SDP is the BS that I think it is (a power grab by the judiciary, which wanted arbitrary discretion where none is warranted). Bottom line: this case won't scuttle SDP, nor overrule Slaugherhouse -- but it was a poor choice if those were the objectives anyway.

Still, until we see the decision and the opinion(s) and dissent(s), it's hard to say what or who did what to the case.

Some people have the belief that Gura tried p&i because he has some hidden (libertarian) agenda. I don't buy that...

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I wouldn't call it a hidden agenda at all. Before McDonald I had never heard of Slaughterhouse and knew nothing of the issues surrounding the P&I clause. Gura is the one that brought it all out his in briefs and started the discussion. He was pretty clear that this was going to be about more than just the 2A.

But, as we saw today, the SCOTUS isn't having any of that. They like their rulings to be as narrow as possible and that's what they're likely to do here and just use SDP to knock down the Chicago handgun ban and finally incorporate the 2nd.

They like their rulings to be as narrow as possible

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Exactly. That's why it is hardly an ideal P&I case. From what I can tell, the court would only revisit Slaugherhouse if a case FORCED it to do so, i.e. it could not be decided by any other means.

From the little I've been able to read it appears that Gura's method of Privileges or Immunities was shot down while the NRA's method of Due Process was more plausible to win.

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In my humble opinion it’s not Gura’s method Privileges and Immunities vs. NRA’s method Due Process. Due Process was going to get at least three votes, P and I on its best day would get two. Since Scalia has made his position clear, it is now probably 4+ & maybe 1. Gura is happy for Incorporation through either method:

MR. GURA: Justice Scalia, we would be extremely happy if the Court reverses the lower court based on the substantive due process theory that we argued in the Seventh Circuit.

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Gura argued for P & I to potentially bring in the last one or two votes to make sure we got five. Due Process is the straightforward easy argument, as the Justices made clear, so Gura did not spend a lot of time on it. Commentators have tried to split them into Gura's and the NRA's arguments, but I don’t believe this is accurate. Both Gura and the NRA have made both arguments, both would be happy with incorporation through either method. The only difference is how much emphasis has to be put into the less likely argument. Gura spent more time on it since it was more complicated, and the NRA and the amici were not going to spend much time on it.

So in the end, do you think it is good that the NRA stepped in?

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It is good that they supported the case. However I disagree in the way that they went about it. It would have been better for everyone involved if they had collaborated, instead of forcing their way in. Otis McDonald was in very capable hands. Gura won Heller after all and certainly knows what he is doing. RTKBA litigation is riddled with radical crackpots that try and loose RTKBA cases setting horrible precedent for the rest of us, however there is no reason to treat Gura like one of these wing-nuts.

Does anyone think the NRA is attempting to swoop in and "save the day" and take the credit or do they think Due Process was the best way to win the case and that is why they intervened?

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The latter -- or more like, they thought that without SDP, the case would be lost. Right or wrong, I think they saw the Cato agenda of using the case to overrule Slaughterhouse as a very risky overreach, and wanted to rein it in. Personally, I'd love to see Cato get its wish -- but if this case is lost, nobody wins anything.

The NRA could have collaborated and claimed credit. How many people really follow this stuff? Did anyone see the writing in AR post-Heller? The NRA does a fine job of claiming credit, one way or another.

I'm a Life Member, not an NRA basher, but I also think that political/legal content in AR is written for people who don't have much of a clue and aren't going to grab one any time soon, either. I'm not sure that NRA would get any more or less credit for 10 minutes of oral arguments.

And all of that said, another way to look at this is that Gura was burnishing his libertarian credentials, and the NRA didn't want to risk the case on that. I support the Institute for Justice and, in general, the Cato Institute. However, these entities are not about RKBA. Gura became their hero du jour. Suddenly, the case was no longer about incorporating the 2nd Amendment.

NRA, after obviously being overcautious pre-Heller is still cautious. It wants slam-dunk 2nd Amendment wins, and sees PorI as potentially sabotaging the simple case.

Alan Korwin's take on the issue:

Oral argument in McDonald v. Chicago

by Alan Korwin, Author
Gun Laws of America

EYEWITNESS REPORT
Mar. 2, 2010

[Out of D.C. and now on a ranch in Texas; didn't have time to get this report out before catching my flight; this is only partial, will need details and fill in many blanks, that will have to come later, better to get the basics out now, thanks for understanding.]

This case was way more complicated than Heller.

Both attorneys faced hostility from the bench. Chicago's lawyer got hit from all sides with little in the way of what you might call support. But the surprise was the way Alan Gura got blasted, even by the best friend gun-rights has up there, Justice Scalia.

Whoever or however we believed the Court might be ready to review the Privileges or Immunities clause of 14A was totally wrong. Every Justice had problems with the scope of such a decision, and poor Gura had to withstand withering assaults on his reasoning and approach.

I definitely need a transcript to go over what exactly happened, I thought audio was weak in chambers, complexity was way large, and in chatter afterwards found I wasn't the only one. How those aging Justices keep up -- and they did, note for note, cite for cite -- is a bloody miracle.

BOTTOM LINE -- it looks like the Heller majority may hold together for this case, and the Second Amendment will be incorporated against the states, under the familiar selective incorporation of Due Process. The same 2A that controls federal activity will apply to the states, no more, no less, though that issue of degree got a lot of attention. Not that the scope of 2A is all the well defined, but there was animus to the idea that incorporation would yield a "shadow" version for the states.

Gura may get the win, but not for any brilliant strategic planning -- there was open hostility to the idea, central to his arguments, of 2A being a Privilege or Immunity of citizenship (I'll discuss soon). The win, if there is one, may be more of a result of the bench being unprepared to treat 2A as some special bastard child the states do not have to follow, unlike the rest of the Bill of Rights that has been incorporated so far.

And let me tell you, thank God for the NRA. They took a lot of heat for asking for and getting some of Gura's oral argument time, using Paul Clement who had argued the government's unsavory position for a low standard of scrutiny in Heller, getting their hat in the ring. That turned out to be baloney, they were life savers. Considering the ferocity with which Gura and P&I were attacked, we were lucky to have at elegant, articulate, eloquent voice to apply 2A through Due Process. (Don't get me wrong, Chicago fared just as poorly, but for different reasons.)

Clement's arguments were so well made and so compelling, he got to speak at length without interruption, with the Justices in rapt attention. I asked him about that afterwards and he said yeah, it was really nice getting some "air time."

There's so much more to tell, the back-and-forth over substantive and procedural due process, and the -- un-frickin-believable -- lengthy consideration by the Justices of how much RKBA we'd enjoy if there was "no Second Amendment" (protected instead as a privilege or immunity), plus Breyer's astounding hostility towards guns in general ("guns kill!"), and Stevens' 'parading around with guns' concerns... it'll have to be later (been on the go since 5:30 a.m., probably when I return to Phoenix, beginning of next week.

It was an honor and a thrill witnessing it all.

Alan.

Yes.

Michael Thompson: where did you get that?

PorI as potentially sabotaging the simple case.

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I don't think arguing for P or I sabotages the case. The natural fallback is Due Process, which gets you to the same place. Also, as argued I don't think it interfered in the slightest. I think Gura dumped P or I in his rebuttal. When Kennedy and wanted him to provide a list of other rights which would be incorporated through P or I, he could have pointed to J. Taney's list in Dredd Scott. However he didn't. I think he knew P or I was not getting any support, so stopped trying to distinguishing it.

I don't think arguing for P or I sabotages the case.

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It just wasn't the best argument to make and just about everyone but Gura knew it. He pushed ahead with P or I because of a broader Libertarian agenda, not because it was the best and most likely way to incorporate the Second Amendment.

Let him test his libertarian ideals on some other case with less ramifications for gun owners.