SCOTUS Blog on McDonald
Analysis: 2d Amendment extension likely
Update: Not good for privileges or immunities:
The first argument to collapse as the hearing unfolded was the plea by the lawyer for gun rights advocates, Alan Gura of Alexandria, VA, that the Court should “incorporate” the Second Amendment into the 14th Amendment through the “privileges or immunities” clause. In the first comment from the bench after Gura had barely opened, Chief Justice John G. Roberts, Jr., noted that the Court had essentially scuttled that argument with its ruling in the SlaughterHouse Cases in 1873. And within a few minutes, Justice Antonin Scalia — the author of the Heller opinion and the Court’s most fervent gun enthusiast — was sarcastically dismissing the “privileges or immunities” argument.
March 2nd, 2010 at 2:07 pm
Gura went for the gold ring.
Now I suppose it’s a good thing the NRA focused on DP since the brass ring was easier to obtain.
In any event, looks like we got a ring.
March 2nd, 2010 at 2:23 pm
Gura still argued for Due Process, that just wasn’t his main focus. Even if the NRA hadn’t gotten some of his time Due Process would have got plenty of coverage.
March 2nd, 2010 at 2:27 pm
We may end up with the silver as well as the brass. Clement is using the 14th in reverse of Gura. I think we are going to end up with full incorporation of 2nd specifically in order to keep from having to revisit the 14th. Scotus cannot give a halfway ruling because it would leave the door open for review of the slaughterhouse ruling as well as extending the 2nd later on. They must hammer both doors shut.
March 2nd, 2010 at 2:28 pm
So basically the liberals want to incorporate it but with the lowest level of scrutiny.
So why have the right?
March 2nd, 2010 at 3:08 pm
Feldman is honestly trying to get the court to sweat the fact that this might lead to an established right of self-defense.
I say again: this is a “warning” coming from the gun control side. Back up, fellas, lest we trip up and leave room to decide something someday.
March 2nd, 2010 at 3:41 pm
“A natiolal right of self defense” I would have thought that is something that should be established. Our entire legal system is founded on English common law, which recognized a “man’s home is his castle.” The right of self defense is clearly (I think) a part of this.
March 2nd, 2010 at 5:48 pm
Funny how the court can call an amendment, in whole or in part, invalid, or unconstitutional really. Regardless of how you feel about the ratification of the Reconstruction Amendments (and there was plenty of dirty pool there), that’s got to be troubling. Maybe more troubling is that none of the subsequent courts have done a thing about it…
March 2nd, 2010 at 5:52 pm
Incoporating by “P & I” clause means the words “shall not be infringed” come along with it. Incorporating by “due process” means the states or cities can use due process to kill any practical effect incorporation may have.
It’s really simple and the court is going for another Heller.
March 2nd, 2010 at 6:23 pm
But going for due process, and NOT deciding the case primarily on P&I still leaves P&I intact.
The other way around would have resulted in a loss (take off the wookie suits and COUNT the justices on the bench — it would go 6-3 against freedom if based on P&I and the wide-open ground that included), and would have forestalled the due process argument. . .
We may not teh gold ring — but it’s back on the wall, incase we want to try again.
March 2nd, 2010 at 7:37 pm
I assume you mean it leaves the status quo on P&I intact – P&I itself is currently neutered.
While I would like to see the P&I clause restored, I would not be surprised if the final opinion reads something like “because the 2nd Amendment is incorporated under the existing Due Process framework, we do not reach the question of whether it is incorporated by the Privileges and Immunities clause of the 14th Amendment,” and leaves P&I in limbo.
March 3rd, 2010 at 1:53 pm
Jake — EXACTLY.
Which is better than a 5-4 loss on a P&I basis.
March 5th, 2010 at 12:29 am
But nearly so satisfying as 30 caliber injunction against phony law