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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.

Update:

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 😉

Yawn. On Tuesday, in the wake of Scott Brown’s victory, I predicted that the Left, and specifically some blogger at Balkinzation would call for the elimination of the filibuster rule in the Senate.

I am expecting a post on Balkinzation about this any moment now.

Tonight, Andrew Koppelman at Balkinzation did just that.

But none of that matters if the Republicans, who are determined to let him accomplish nothing, have a veto over any legislation via the filibuster. He can fight all he likes, but he will lose, and he’ll keep losing for the rest of his Presidency.

It’s time for him to demand of Democratic Senators that they abolish the Senate filibuster. If he can get 50 of them to agree, then the game will change fundamentally. In a world in which the Senate can act with a simple majority of votes – and remember, that’s the way America was governed for most of its history – the Democrats will have firm control over both houses of Congress, and will be able to pass health care, and address global warming and financial reform as well. Obama will be one of the transformative presidents.

This debate is not going anywhere anytime soon. Stay tuned.

Professor Solumn just posted to SSRN an article titled Incorporation and Originalist Theory. This article makes several of the same points Ilya and I make in Pandora’s Box about the Privileges or Immunities Clause as a term of art, and considering what exactly “incorporation” is from an originalist perspective. Here is the abstract:

Does the Fourteenth Amendment of the United States Constitution incorporate the Bill of Rights contained in the first eight amendments? And how should an originalist answer that question? This paper focuses on the latter question-the issues of originalist theory that are raised by judicial and scholarly debates over what is called “incorporation.”

The inquiry proceeds in six parts. Part I answers the questions: “What is incorporation?” and “What is originalism?” Part II examines the theoretical framework for an investigation of incorporation that operates within the narrow confines of interpretation of the linguistic meaning text based on the assumption that the original meaning of the text is solely determined by the public meaning for ordinary citizens at the time of framing and ratification. Part III relaxes the assumption that “original meaning” is determined solely by the linguistic practices of the whole community and considers the possibility that the phrase “privileges or immunities” was a term of art with a technical meaning for those learned in the law. Part IV relaxes the assumption that the incorporation debate must be resolved solely by interpretation of linguistic meaning and considers the possibility that incorporation doctrine might be viewed as a construction of an under determinate constitutional text. Part V considers the implications of the possibility that the “privileges or immunities clause” instantiates what might be called a failure of constitutional communication, considering the possibility of a saving or mending construction of the clause. Part VI concludes.

One point that Solum makes is spot-on.

Articulating the implications of originalist theory for incorporation requires an understanding of “incorporation.” There is a widely shared “rough and ready” understanding of incorporation—a provision of the Bill of Rights is “incorporated” if that provision is applied to the states; mutatis mutandus, such provisions are “not incorporated” if they are not applied to the states. But this rough and ready  understanding is imprecise for at least two reasons. First, incorporation does not necessarily involve
the application of the semantic content of the first eight amendments to the Constitution to the states. For example, the First Amendment begins “Congress shall make no law . . . ,” but the incorporation debates are not about the powers of Congress—they are about the application to the states of the substance of “establishment,” “free exercise,” “freedom of speech,” and so forth.27

We made a slight variation of this point, with the slight twist of considering the meaning of the core of the right in 1868, as applied to the states. The meaning is not limited to the textual, or as Professor Solum puts it, the semantic meaning of the clause.

In many respects, locating the right in the Privileges or Immunities Clause is a more compelling approach than incorporation through the Due Process Clause. By thinking of the right in 1868, rather than its 1791 codification, the interpreter is being faithful to the original meaning of the Privileges or Immunities Clause.  An originalist jurisprudence on the federal defense of rights against state usurpations would therefore not mechanically “incorporate” a right simply because it was listed in the Bill of Rights. Instead, what it must incorporate is the understanding of the right in 1868, not the 1791 amendment itself.

In other words, the Bill of Rights as drafted was a mere enumeration of someof the pre-existing liberties “We the People” possessed.  In the context of applying a right through the Privileges or Immunities Clause in 1868, the Second Amendment thus serves as little more than a short-hand reference for the natural right of bearing arms for defense of person and property. To paraphrase Justice Harlan’s dissent in Poe v. Ullman, “For it is the purposes of those guarantees [in the Bill of Rights] and not their text, the reasons for their statement by the Framers and not the statement itself which have led to their present status in the compendious notion of [privileges or immunities] embraced in the Fourteenth Amendment.”

I highly recommend this article.

Welcome to the seventh installment of Predictions of the 10th Justice, brought to you by FantasySCOTUS.net. The league has over 3,500 members, who have made predictions on all cases currently pending before the Supreme Court.

Today, the Supreme Court handed down Citizens United v. FEC, one of the most anticipated cases of the year. The Hillary Movie case was a showdown between free speech and campaign finance laws. In 2008, the D.C. Circuit ruled in favor of the FEC that Hillary: The Movie could not be shown on television right before the 2008 Democratic primaries under the McCain-Feingold Act.

In a 5-4 decision, Justice Kennedy reversed the lower court. The Court found that sections of the McCain-Feingold Act limiting contributions by corporations for advocacy advertisements violated the First Amendment, and were unconstitutional.

This is the first blockbuster case of the term, and the first real yardstick for the accuracy of the wisdom of the crowds. Were our 3,500 members able to accurately predict this outcome? How wise is the wisdom of our crowds?

On November 20, 2010, based on 286 prediction, 67% of our members predicted that the Supreme Court would reverse the lower court. Of these 286 predictions, 136 members predicted that the outcome would be a 5-4 reversal. This constituted 70% of all reversal predictions.

But since November, our league acquired over 2,000 new members, who made 600 additional predictions for this case. How did they do?

More, after the jump.

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This evening during class, while I was discussing diversity citizenship, and how citizens are considered citizens of the states where they are incorporated, and the place of their principal places of business, Judge Gibson asked me to talk to the class about Citizens United v. FEC.

Mind you, I had briefly read the 190 pages quickly this morning, and I had no notes. I think I did pretty well. And yes, I think I let out a yelp when the opinion was finally released. Hey, it was well worth the wait.

[podcast format=”video”]https://joshblackman.com/podcasts/citizens.m4a[/podcast]