February 8, 2010 9:13AM # NRA Shoots Itself in the Foot By [Ilya Shapiro](https://www.cato.org/people/ilya-shapiro) --- SHARE I previously [blogged](https://www.cato.org/2010/01/26/nra-cares-more-about-nra-than-gun-rights-liberty-professional-courtesy/) about the NRA’s misbegotten motion, which the Supreme Court granted, to carve 10 minutes of oral argument time away from the petitioners in *McDonald v. Chicago*. Essentially, there was no discernable reason for the motion other than to ensure that the NRA could claim some credit for the eventual victory, and thus boost its fundraising. Well, having argued that petitioners’ counsel Alan Gura insufficiently covered the argument that the Second Amendment should be “incorporated” against the states via the Fourteenth Amendment’s Due Process Clause, the NRA has now filed [a brief](http://www.chicagoguncase.com/wp-content/uploads/2010/01/08-1521rb_nra.pdf) that fails even to reference the four biggest cases regarding incorporation and substantive due process. That is, the NRA reply brief contains no mention of *Washington v. Glucksberg* (1997), *Benton v. Maryland* (1969), *Duncan v. Louisiana* (1968), or *Palko v. Connecticut* (1937). (The NRA did cite those cases in its opening brief.) What is more, it also lacks a discussion of Judge O’Scannlain’s magisterial Ninth Circuit opinion in *Nordyke v. King* (2009), which the Supreme Court might as well cut and paste regardless of which constitutional provision it uses to extend the right to keep and bear arms to the states! I should add that the petitioners’ [reply brief](http://www.chicagoguncase.com/wp-content/uploads/2010/01/08-1521rb.pdf) does cite all of those aforementioned cases (as well as the [“Keeping Pandora’s Box Sealed”](http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1503583) law review article I co-authored with Josh Blackman). I leave it to the reader to determine whether it is [Alan Gura](http://www.chicagoguncase.com/wp-content/uploads/2010/01/08-1521rb.pdf) or the [NRA](http://www.chicagoguncase.com/wp-content/uploads/2010/01/08-1521rb_nra.pdf) who is better positioned to argue substantive due process — or any other part of the *McDonald* case. For more on the rift between the *McDonald* petitioners and the NRA, see [this story](http://www.washingtonpost.com/wp-dyn/content/article/2010/02/07/AR2010020702401.html) in today’s *Washington Post* (in which I’m quoted, full disclosure, after a lengthy interview I gave the reporter last week). (Full disclosure again: Alan Gura is a friend of mine and of Cato, and I suppose I should also say that I’ve participated in NRA-sponsored events in the past.) ##### Related Tags [Government and Politics](https://www.cato.org/government-politics), [Constitutional Law](https://www.cato.org/constitutional-law), [Robert A. Levy Center for Constitutional Studies](https://www.cato.org/robert-levy-center-constitutional-studies) [![Creative Commons License](/build/cato_2020/images/creative-commons.svg)](http://creativecommons.org/licenses/by-nc-sa/4.0/) This work is licensed under a [Creative Commons Attribution-NonCommercial-ShareAlike 4.0 International License](https://creativecommons.org/licenses/by-nc-sa/4.0/).