In his merits brief, Gura does spend a lot of effort in addressing the P or I incorporation question.
The reason(s) for that is fairly simple. In
Slaughter-House, the Court literally read meaning of the clause out of the amendment and therefore, out of the Constitution. In the cases that followed, certain precedents were set, using the
Slaughter-House reasoning's.
The Court has known all along that the
Slaughter-House opinion was wrong. But no one on the Court since that time, has had the intestinal fortitude to right this wrong decision (this is my personal interpretation/opinion and may not be entirely correct). Instead, a work-around has been made (out of the whole cloth, I might add), and the Court has been using 2 other facets of the 14th amendment to get around overturning a bad decision. These are incorporation via the Due Process and the Equal Protection clauses.
We now call this the Doctrine of Selective Incorporation. In arguing for this mode, it is well established how that would work (and even what arguments would work), and the Court certainly knows this.
However, the Court itself asked to be briefed on the P or I clause (the
McDonald question) and that is what Alan Gura has done. The Court did not ask for nor select the NRA question.
Because Gura took an active role in seeking to avoid duplication of effort, we see that the majority of the amici briefs do make the Due Process arguments. There was no reason for an extended Due Process argument by Gura in his merits brief, as this was well made by many of the amici.
The cert brief by Gura, and the amicus brief by the Institute of Justice/CATO Institute; the merits brief by Gura, and amicus brief by CATO/Pacific Legal Foundation, were the briefs that stood upon reinvigorating the P or I clause and overturning
Slaughter-House and its progeny (Robert Levy wrote both of those amici briefs - It was Robert Levy who funded
Heller).
Contrary to what the NRA is now saying, Selective Incorporation has been adequately represented and briefed.
In the motion of opposition, Alan Gura (starting on pg 7) says:
Assuming
arguendo this is even relevant, Petitioner's page allocation
was based upon a variety of factors, including:
- a belief that this Court is relatively more familiar with substantive
due process theories than with the original public meaning and intent
of the Fourteenth Amendment;
- the fact that this Court's decision in District of Columbia v.
Heller, 128 S. Ct. 2783 (2008), recently examined in detail the
factors inherent in the selective incorporation argument;
- the fact that in Heller, all nine members of this Court approached
the issue primarily by examining the original public meaning and intent
of those who framed and ratified the relevant constitutional text; and
- advance knowledge of the NRA and amicus briefs, and the
desire to avoid extensive duplication of arguments already
familiar to the Court.
This last point warrants some discussion. Petitioners worked
closely with the amici in seeking to avoid duplication of effort, hosting a
coordination conference attended by several NRA attorneys and
attorneys for NRA-funded amici. NRA counsel expressed their intent to
reduce duplication in the briefing, and discussed the briefing efforts with
Petitioners, with whom they eventually exchanged drafts. Petitioners
also received advance copies of many amicus briefs.
Petitioners correctly anticipated that the familiar due process
issues would be overwhelmingly covered in other briefs, and therefore
perceived no value in belaboring the same points in briefing beyond their
own merely comprehensive treatment of the issue. Were the NRA
motion granted, parties in future cases would be well-advised not to
coordinate briefing with amici, as efforts to reduce duplication could
produce motions to divide argument time based on claims that the
parties did not devote "enough" pages to an issue.
A copy of Gura's motion in opposition of the NRA taking argument time can be found on the SCOTUSBlog website,
here. Read it for yourself.
You can find the NRA-ILA's statement about this motion for time,
here.
What the NRA doesn't explain, is why they selected Paul Clement as their spokesperson for their motion for time. Remember, that Clement was the Solicitor General for the US in
Heller and argued against strict scrutiny. It was Clement that first brought up machine guns (in orals) in order to undermine
Heller!
I have serious reservations about the motivation of the NRA in
McDonald. Not the least of which is "cross-contamination."