It seemed like a good idea at the time.

Across a broad spectrum of scholars and advocacy groups, it was agreed that the case of McDonald v. City of Chicago presented the best — and possibly the last — chance to revive the argument that the “privileges or immunities” clause of the 14th Amendment was the soundest way to apply individual rights like the Second Amendment right to bear arms to states and localities.

So when Alan Gura rose at the U.S. Supreme Court on March 2 to assert that the clause was a “simpler, more essential” path than the traditional due process clause, he had the wind at his back in the form of liberals and conservatives alike cheering him on from the packed audience.

Then reality struck. First, Chief Justice John Roberts Jr., and then Justice Antonin Scalia, brusquely swept the argument aside in favor of the tried and true path of due process. Scalia was derisive in his criticism of Gura, noting that the privileges or immunities argument was the “darling of the professoriate” and hinting that Gura was “bucking for a place on some law school faculty” by advancing it. Even Justice Ruth Bader Ginsburg seemed worried about unforeseen consequences of Gura’s approach, asking him what unenumerated rights might be swept in by invoking the privileges or immunities clause.

Soon, Gura beat a retreat to safe ground, telling the Court that “we would be extremely happy” if the Court used the due process approach. Former Solicitor General Paul Clement followed Gura to the lectern to reassure the justices that the due process approach was “remarkably straightforward.”

In the space of a dramatic few minutes, an entire movement in the law seemingly crashed and burned, a casualty of the sudden fear of the unknown that key justices felt over trying an untested way to achieve constitutional goals.

“It’s very sad, but I don’t regret it,” said Gura of Gura & Possessky in Alexandria, Va., a day after the argument. “I’m not a kitchen sink litigator. I don’t bring in an argument unless I think it’s truly correct. It’s not something we just made up. It’s what the framers had in mind.”

Clark Neily of the Institute for Justice, which also advocated Gura’s approach, said, “If you’re a textualist and an originalist, this is the most principled approach, but there Alan was, using text and history, and they were beating him up. It was a little surreal.”

But in the aftermath of the dramatic oral argument, there has been remarkably little regret or recrimination, a minimum of the kind of second-guessing that can occur when a strategy runs aground so visibly. The fact that gun rights advocates are still likely to win, via the due process route, helps reduce the finger-pointing.

“We’ll keep at it,” said Doug Kendall of the liberal Constitutional Accountability Center. “The fact that the Court is talking about privileges or immunities for the first time in 70 years — we’re delighted to be part of that.” Even if the Court does not base its ultimate ruling on the clause, he said, “the ruling may create other opportunities to continue the conversation.”

Kendall’s group showcased the privileges or immunities clause as if it were a spiffy new product, putting on conferences and issuing a major report celebrating the clause as “the gem of the Constitution.” He played a key role in building the consensus behind Gura’s argument. Gura, with conservative and libertarian roots, worked closely with Kendall — the two jointly lobbied the solicitor general’s office for support — and encouraged the academic coalition.

But in the process, did that broad support convey the image to the Court of a professoriate joining the latest fad? A scholarly consensus that might impress some justices sends Scalia running in the other direction — as he demonstrated in the gay rights case Lawrence v. Texas in 2003, when he railed against law schools signing onto the “so-called homosexual agenda.” (In the same dissent Scalia also attacked the due process approach to protecting rights.)

Kendall, who filed a brief on behalf of professors ranging from Yale Law School’s Jack Balkin on the left to Northwestern University School of Law’s Steve Calabresi on the right, has no regrets. “These scholars are doing precisely the type of ‘original meaning’ scholarship that Scalia relies on in other areas,” said Kendall. “Belittling the argument and impugning its motives is not what I expected from the Court’s most outspoken proponent of originalism.”

Clement, the King & Spalding partner who presented the due process argument after the Court had shot down Gura’s alternative, also defended the strategy of presenting a scholarly consensus. “If you’re going to make an argument, make it with the broadest coalition you can.” Asked about Scalia’s remark about the professoriate, Clement, who once clerked for Scalia, said, “He can really turn a phrase.”

Before the arguments, Gura opposed Clement’s motion to share Gura’s argument time on behalf of the National Rifle Association. After the argument, Gura said Clement “did a great job,” but he still thinks Clement should not have argued. “It subtracted from the time I could devote” to the privileges or immunities gambit.

For his part, Clement said, “I do think we were able to be helpful to the Court” in presenting the due process argument. “But I’m biased.”

Meanwhile, Georgetown University Law Center professor Randy Barnett — one of the professors who joined Kendall’s brief — thinks that the Gura/Clement one-two punch “was, as a tactical matter, brilliant.” The privileges or immunities argument scared the justices to such a degree, Barnett said, that Clement’s due process argument seemed tame and agreeable — even though a few years ago, the due process argument might have turned off Scalia and others.

“Given how afraid they were” of Gura’s argument, said Barnett, “Clement looked good because he told them what they wanted to hear.”

THE SOUND OF SILENCE

If all the accounts of the McDonald argument make you want to hear the audiotape, well, you’ll have to wait until next summer.

A request by news media organizations asking the Court for same-day release of argument audiotapes in the McDonald case — along with Skilling v. U.S., argued the day before — was turned down without explanation. As a result, the audiotape will be handled in the routine way — transferred to the National Archives at the end of the term for processing and release, usually months after the term is over.

As it has many times before, a coalition led by C-SPAN and joined by the bureau chiefs of ABC, CBS, Fox and NBC made the request, asserting that “these are both important cases and have generated enough public interest to warrant their expedited release.”

The Court has turned down six other requests this term — approving none — and last term only two of nine requests for same-day release were approved. Those were for the audio in Citizens United v. Federal Election Commission andNorthwest Austin Municipal Utility District No. One v. Holder. The Court has sporadically allowed same-day release since Bush v. Gore in 2000, but only when the media request it.

What makes the rejection of the request for audiotapes in McDonald especially mystifying is that its predecessor, D.C. v. Heller, was approved for same-day release — a case that was comparable in public interest as well as subject matter.

The Court has never articulated the factors it considered in accepting or rejecting requests for same-day audio release, and Roberts declined to comment for this story.

“The chief justice has yet to offer a rationalizing principle to explain why some are in and some are out,” said Northwestern University political scientist Jerry Goldman, founder of the Oyez Project, which makes audiotapes of Supreme Court arguments available online. Goldman said he has stopped requesting early release because the process is so opaque and unexplained.

Whenever the Court has allowed the release, Goldman said, “No harm whatever has come to the Court. The world had remained the same.”

He added, “It’s really a shame because there is a segment of the public that is really interested in these issues and doesn’t have the luxury of being able to wait on line at the Court at 4 a.m. to get inside.”

Courtside is an occasional column on developments, large and small, at the U.S. Supreme Court. Tony Mauro can be contacted at tmauro@alm.com.

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