Blog

This weekend, as I was strolling down Lincoln Road in Miami Beach, who do I run into, but Michael Moore? Check out my previous blog post here. As promised, here is the picture of this fortuitous meeting.

For those of you who don’t know me, I multi-task very well. I am usually typing up a document, chatting on IM, sending e-mails, surfing the web, and tweeting, simultaneously For years, I have been using 2 monitors. And that just is not enough anymore. So I upgraded to the very cool Matrox Triple Head2Go, which allows me to hook up 3 external monitors to my MacBook Pro. In addition to my 13″ LCD screen, I have three 22″ Flat Panel LCD Screens. I’m not very good at math, but that is a lot of pixels. Sweet.

The NRA Respondents-Supporting-Petitioners, in McDonald v. Chicago, have filed a Motion for Divided Argument to request time at oral arguments. Petitioner opposed this motion.

In short, the NRA, represented by Paul Clement at King & Spalding, is asking to divide Gura’s time, and to get 10 minutes to argue. The NRA argues that Gura’s brief spent primarily focused on arguing in favor of extending the right to keep and bear arms through the Privileges or Immunities Clause, rather than the Due Process Clause. The NRA argues that the Court needs to hear an argument in favor of the Due Process Clause.

Indeed, because the Due Process Clause represents a route to reversal that does not necessitate the overruling of this Court’s precedents, it would be particularly unfortunate if that argument were not adequately presented at oral argument . . . Because participation of the Respondents-Supporting-Petitioners in the oral argument will ensure that the Due Process Clause alternative is adequately presented, the proposed division of argument will materially assist the Court in its consideration of the case.

The NRA wants to incorporate through the Due Process Clause, and leave Slaughter-House intact. Gura, wants the Court to overrule Slaughter-House, and reinvigorate the Privileges or Immunities Clause. Even though both parties want the Court to strike down Chicago’s gun ban, their preferred approaches are in tension.

While Gura’s brief mainly focuses on Privileges or Immunities Clause, he does address the Due Process argument. It is pretty much open and shut. Recognizing this likely failure, the City of Chicago spends most of its ammo on policy arguments.

To be frank, it really doesn’t take much effort to find for incorporation through the Due Process Clause. Ilya Shapiro just pinged me a note, and remarked that any first-year law student who’s taken constitutional law—let alone a Supreme Court clerk—could write an opinion incorporating the Second Amendment via the Due Process Clause in her sleep.

Further, the Due Process argument was briefed extensively by over 30 Amici. And, I am certain that Gura will be able to handle any questions at oral arguments dealing with Due Process.

For those of you new to the fray, there is a lot of history here. First, if you recall, the NRA tried to spike Heller by joining plaintiffs who would be dismissed. For a full background, see Clark Neily, District of Columbia v. Heller: The Second Amendment Is Back Baby, 2007–2008 CATO SUP. CT. REV. 127, 134 (2008) and Pandora’s Box, pp. 19-23.  Second, in all likelihood, Paul Clement will argue the case. As Solicitor General, Paul Clement filed a brief on behalf of the United States in Heller urging the Court to adopt an intermediate level of scrutiny. Both positions were antagonistic to Gura’s efforts to champion the right to keep and bear arms.

This is Supreme Court politics at its greatest. Stay tuned.

I just launched a new forum at FantasySCOTUS.net. I have created a thread for every case currently pending before the Supreme Court for October Term 2009. Think you know everything? Prove it, and post your comments on how you think the Supremes will write the opinions. Enjoy.

Back in November, Justice Scalia ripped an advocate for using the word “choate.”

“There is no such adjective,” Scalia said. “I know we have used it, but there is no such adjective as ‘choate.’ There is ‘inchoate,’ but the opposite of ‘inchoate’ is not ‘choate.’ “

As Barnhouse tried to move on, Scalia offered an example. “It’s like ‘gruntled,’ ” he said.

“But I think I am right on the law, Your Honor,” Barnhouse offered, but Scalia wasn’t done.

“Exactly. ‘Disgruntled,’ ” Scalia said. Some people mistakenly assume the opposite of “disgruntled” is “gruntled,” he explained.

Is gruntled a word? Questionable.

But what about choate? Bryan Garner, Justice Scalia’s co-author of the fantastic book, Making Your Case, says choate is a word.

Bryan Garner, editor-in-chief of Black’s Law Dictionary and the author of the Dictionary of Modern Legal Usage, told the Times that Scalia takes issue with choate’s faulty etymological basis.

The in- in inchoate is not a negative prefix, Garner explains in his Dictionary of Modern Legal Usage. It comes from the Latin verb incohare, meaning “to begin, start out.” Taking away the in- from inchoate to form choate is back-formation and is part of a long tradition of removing prefixes and suffixes to find “roots” that were never there, the Times says.

Garner says choate is accepted and used “even by those who deprecate its origins.”

I think we need a Zoolander walk-off to settle this. Straight down the Great Hall at SCOTUS. Chief Justice Roberts can serve as David Bowie. And Paul Clement can be Billy Zane, because he’s pretty cool.