McDonald v. Chicago – SCOTUS Grants NRA’s Motion for Divided Time, Denies Motion of States

January 25th, 2010

This is a real blow to the Petitioner. SCOTUSBlog reports that the  Supreme Court granted the NRA’s Motion for Divided Argument, and denied the motion of the states. I previously blogged about this conflict here.

Here is the SCOTUS order.

The Petitioner supported the motions of the states for divided time, and opposed the motion of the NRA for divided time.

This is a setback to Petitioner.

I was hoping the Court would split the difference. Grant the NRA’s opposed the motion, and grant the States unopposed motion.

I hope this doesn’t portend hostility to Privileges or Immunities argument Gura focused on in his briefs.

I’ll blog more about this later.


One interesting aspect of this case is the procedural posture of this motion.

Rather than seeking the Petitioner’s permission, the NRA decided to file this motion opposed.

Originally, the counsel of record for the NRA’s merits brief was Stephen Poss of Goodwin Proctor. However, the signatory of the NRA’s motion for divided time was former Solicitor General Paul Clement. Unquestionably, Clement is one of the most prominent and respected Supreme Court advocates of our generation.

I think the granting of the NRA’s motion, beyond any substantive aspects of the NRA’s case, or what Clement argued, may have been largely impacted by the gravitas of the signatory of the motion.

Why not stick with Poss to file this motion? Perhaps worried about the Court rejecting their motion (rightfully so), the NRA put their eggs in the Clement basket. And it paid off.

Update 2: The NRA just issued this press release on the granting of divided time.

“We are pleased with the Court’s decision to grant our motion,” said Chris W. Cox, NRA’s chief lobbyist. “NRA’s solitary goal in McDonald is to ensure that our fundamental, individual right to keep and bear arms applies to all law-abiding Americans, regardless of the state in which they live. We are hopeful that the Court will share our view that the Framers of the Fourteenth Amendment clearly intended to apply the Second Amendment to the states.”

Former U.S. Solicitor General Paul Clement will be representing the NRA at oral argument, which will occur on March 2.

No surprises here. Clement will be arguing at the sequel to Heller. Quite ironic. Let’s see if Walter Dellinger argues for Chicago 😉