Home Forums Hunting & Shooting Hunter's Campfire Chicago Gun Case Orals 10:00 Eastern Today: JUSTICES INDICATE INCORPORATION LIKELY

The Court would have to develop some really bizarre oppositional theories to now rule against stare decisis precedent as to incorporation.

Analysis

The Supreme Court on Tuesday seemed poised to require state and local governments to obey the Second Amendment guarantee of a personal right to a gun, but with perhaps considerable authority to regulate that right. The dominant sentiment on the Court was to extend the Amendment beyond the federal level, based on the 14th Amendment�s guarantee of �due process,� since doing so through another part of the 14th Amendment would raise too many questions about what other rights might emerge.

When the Justices cast their first vote after starting later this week to discuss where to go from here, it appeared that the focus of debate will be how extensive a �right to keep and bear arms� should be spelled out: would it be only some �core right� to have a gun for personal safety, or would it include every variation of that right that could emerge in the future as courts decide specific cases? The liberal wing of the Court appeared to be making a determined effort to hold the expanded Amendment in check, but even the conservatives open to applying the Second Amendment to states, counties and cities seemed ready to concede some limitations.

[O]ne thing appears clear: the justices are not yet ready to open what seems to them to be a can of worms by invoking the �privileges or immunities� clause of the Fourteenth Amendment as the way to apply the right to bear arms to states and localities. The more traditional route of the �due process� clause seems almost certain to be Court�s chosen path.
Alan Gura, who was arguing for the �privileges or immunities� route, ran into skepticism almost from the moment he began, when Chief Justice John Roberts Jr. said Gura had a �heavy burden� because his approach entailed striking down the Slaughterhouse cases of 1873.

Justice Antonin Scalia piled on by asking Gura why he�d take this more difficult path �unless you�re bucking for some place on a law school faculty.� The privileges or immunities clause, Scalia added sarcastically, has become the �darling of the professoriate.� Justice Stephen Breyer also seemed to opt for caution, asking Gura questions about the implications of using a new part of the Constitution to apply the Second Amendment to states.

The justices seemed almost to sigh in relief when former solicitor general Paul Clement, representing the National Rifle Association on the same side as Gura, rose to reassure the justices that using the due process clause was a �remarkably straightforward� way to apply the Second Amendment that would not involve upsetting precedent.

An attempt by an attorney for the cities of Chicago and Oak Park, Ill., defending local bans on handguns in those communities, to prevent any application of the constitutional gun right to states, counties and cities looked forlorn and even doomed. The nub of that argument by James A. Feldman of Washington was that, unlike other constitutional rights that the Court has extended to the state and local level, the right to a gun recognized by the Court two years ago in District of Columbia v. Heller pitted the threat that guns pose to human lives against a constitutional right, so the balance should be struck differently. So far as the hearing Tuesday showed, Justice Stephen G. Breyer was the only member of the Court attracted to that approach.

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I'm glad the NRA picked up on that potential concern. It's what your dues paid for folks!!

The justices seemed almost to sigh in relief when former solicitor general Paul Clement, representing the National Rifle Association on the same side as Gura, rose to reassure the justices that using the due process clause was a �remarkably straightforward� way to apply the Second Amendment that would not involve upsetting precedent.
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I'm glad the NRA picked up on that potential concern. It's what your dues paid for folks!!

Just got back from oral argument. Short form: I think we have five votes. MIGHT do better than five, but five seem secure. Roberts, Scalia and Kennedy seemed VERY strongly against Chicago's position, Alito seemed against it, Thomas asked no questions but is thorough pro-2a and 14thA, so it looks like the Heller majority holds. Conversely, Breyer attacked Heller and kept arguing against incorporation. Majority did not like privileges or immunities, but due process seemed solid.

Humor: the room was packed, hundreds of people, every seat taken. After McDonald, the Court remained in place to hear the next case. As I left I heard the chief justice say "Well, counsel, WE're still here." I looked back and saw what he meant -- there were perhaps 20 people staying for the next case, as hundreds left.

If we win, I bet those bizarre theories will be authored in the Dissent by Stevens and Ginsburg.

"The Court would have to develop some really bizarre oppositional theories ............"

Now you really got me on 'pins and needles!

I figured that by now Ginsburg would be in the state of doing a capt Pike routine from Star trek, you know, green light for yes, red light for no?

Full transcript of today's arguments is here.

That sounds an awful lot to me like the argument we heard in Heller on the losing side.