Gura gets spanked... HARD by Scalia

[AJ Dual]

This will be a blow to those watching this from a Libertarian ideological purity standpoint who were praying for McDonald Vs. Chicago and 2A Incorporation against the states to open a whole new incorporation angle under the "Privliges and Immunities" clause of the Constitution.

Scalia essentially led Gura by the nose and forced him to concede to the NRA's Due Process argument for 2A incorporation and twisted his arm (figuratively of course...) .

The first argument to collapse as the argument 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 Scalia noted that the “due process” clause — an open-ended provision that he has strongly attacked on other occasions– was available as the vehicle for incorporation, and added: “Even I have acquisced in that.” Gura somewhat meekly said “we would be extremely happy:” if the Court used the “due process” clause to extend the Second Amendment’s reach.

Maybe it's hyperbole on my part, but it seems to me that there's a good chance if the NRA wasn't "tagging along" in their Johnny Come Lately fashion some criticize them of having with their Due Process Incorporation brief, we could have really been screwed.  

Edit. That's not to say Mr. Gura didn't get some damn fine zingers in against Sotomyer. 

[MicroBalrog]

Maybe it's hyperbole on my part, but it seems to me that there's a good chance if the NRA wasn't "tagging along" in their Johnny Come Lately fashion some criticize them of having with their Due Process Incorporation brief, we could have really been screwed.   undecided

No. We wouldn't have been screwed because Gura's brief included both DP and PI argumentation from the start.

[Balog]

Have they rendered a verdict on this yet?

[MicroBalrog]

Have they rendered a verdict on this yet?

As far as I understand, that's not how it works. It'll take them several months (at least two) to read the documents and write a verdict. Remember this is not the only case they're considering simultaneously.

[AJ Dual]

Have they rendered a verdict on this yet?

No, it's just oral arguments which to a great degree is just pro-forma legal theater. The Justices might glean some new insight they hadn't considered from arguing counsel, but it's not likely. They have their constitutional theories and will rule accordingly after hashing out a majority amongst them.

The briefs have submitted, and they'll release their ruling in June when the session ends, and in the case of Heller and other contentious issues, probably on the last possible day and minute.

Just from simple judicial constraint, I don't think they'll be inclined to accept Gura's P&I incorporation arguments, since that opens the door to many "hidden" rights that people can come hat-in-hand to the SCOTUS with. Similar to the "Right to Privacy" which was the basis of Rove V. Wade.

I think incorporation is a slam dunk. Something like 48 of the 50 states have an RKBA clause or amendment of varying strengths, so there's little danger even the anti's see in incorporation. The issue that's really at stake is the scrutiny standard. Pray it's at least "moderate scrutiny".

[wmenorr67]

The feeling I am getting is that the Supreme Court is going to rule in our favor and state that the states have to abide by the 2nd and bans are a no-no.

[RoadKingLarry]

I just finished skimming the transcript on this.
I have a question for the lawyer types here.
How can someone as stupid as Feldman makes himself out to be become a lawyer?

[roo_ster]

I just finished skimming the transcript on this.
I have a question for the lawyer types here.
How can someone as stupid as Feldman makes himself out to be become a lawyer?

IANAL, but somebody has to graduate at the bottom of the class and be the lowest quintile on the bar exam.

[Sergeant Bob]

Here's a link to a PDF of the oral arguments.

McDonald v Chicago

[GigaBuist]

I just finished skimming the transcript on this.
I have a question for the lawyer types here.
How can someone as stupid as Feldman makes himself out to be become a lawyer?

Somebody has to argue the wrong side.  Just ask Clements about that. :)

[AJ Dual]

IANAL, but somebody has to graduate at the bottom of the class and be the lowest quintile on the bar exam.

What had me LOL is that he didn't even try much of anything but re-hashing D.C.'s poor arguments. "Guns are BAAAAAD M'kay? Crime an poor 'mnorities an stuff... WAH!"

He should have at least gone with some sort of novel argument, while no more legally rigorous, it would at least be entertaining.

[RevDisk]

He should have at least gone with some sort of novel argument, while no more legally rigorous, it would at least be entertaining.

I think he did.  He argued against his own position more than once.

I swear I heard more than one justice very loudly think "WTF" at his position.

CHIEF JUSTICE ROBERTS: I'm sorry. Is it the position of the City of Chicago that we should rely on Justice Harlan's dissent in Griswold?

---------

JUSTICE SCALIA: See, the right to keep and bear arms is right there, it's right there in the Bill of Rights. Where do you find the right to self-defense?
MR. FELDMAN: Well, I -
JUSTICE SCALIA: You -- you want us to impose that one on the States but not -- not the explicit guarantee of the right to keep and bear arms. That seems very strange.

---------

MR. FELDMAN: They banned -- well, not -- I can't say that they banned handguns in the home per -
JUSTICE SCALIA: No, you can't, because they didn't.

[GigaBuist]

What had me LOL is that he didn't even try much of anything but re-hashing D.C.'s poor arguments.

It's the case, not the lawyer.  Those crappy DC arguments were brought forth by Clements in the DC case.  Today Clements argued for the NRA alongside Gura.  It's not the lawyer's fault that the defendant's reasoning sounds stupid.  It's because the defendant doesn't have a leg to stand on.

[Mabs2]

One of the guys I know mentioned this case to me earlier.
I told him I wasn't worried, and he said "Most of the supreme court dudes are democrats, you could wake up tomorrow and find out that guns are completely banned."
I lol'd.

[Silver Bullet]

One of the guys I know mentioned this case to me earlier.
I told him I wasn't worried, and he said "Most of the supreme court dudes are democrats, you could wake up tomorrow and find out that guns are completely banned."
I lol'd.

Democrats crack me up.

[Matthew Carberry]

People who opine about things they don't understand, at all, crack me up too.

It's just happenstance that often those people are progressives. 

[De Selby]

Oral arguments are basically meaningless.  It's what's on paper that counts.

Arguing privileges & immunities strikes me off hand as silly, but I haven't read the briefs.

[AJ Dual]

Oral arguments are basically meaningless.  It's what's on paper that counts.

Arguing privileges & immunities strikes me off hand as silly, but I haven't read the briefs.

Even the weakest notion of judicial restraint would make five of them not touch a P&I argument with a ten foot pole.

[De Selby]

Even the weakest notion of judicial restraint would make five of them not touch a P&I argument with a ten foot pole.

Yeah, I'm not sure if the first major gun rights case in the states was the best venue for trying to revive the P&I clause.  That would be like getting to the Supreme Court on a commerce clause issue and using the opportunity to try and revive "freedom of contract" a la Lochner.

[Matthew Carberry]

On the gripping hand. 

Slaughterhouse is plainly bad law and bad law, from a logical, historical and moral sense, does not deserve the respect of stare decicis.  Overturning it wouldn't necessarily create any problems going forward.  Despite the bare fears that raised their heads, it's pretty clear P&I is not a blank check (or at least need not be) for "any right one can imagine", which Gura made clear in his brief.

The Court had a chance to make history and clean up one of their most shameful messes.  They chose expediency and timidity in simply ignoring it.

Either way, incorporation was, from most accounts, a slam dunk via due process regardless, why not ask for the moon?

[Nitrogen]

My favorite line from Scalia was this:

JUSTICE SCALIA:         Mr. Feldman, let me take your argument at -- at its face value.         
Let's assume that the only reason it is there and the only purpose it serves is the militia purpose. Isn't that militia purpose just as much defeated by allowing the States to take away the militia's arms as it would be by allowing the Federal Government to take away the militia's arms?

[sanglant]

People who opine about things they don't understand, at all, crack me up too.

It's just happenstance that often those people are progressives. 

i had a Dr. tell me he liked Medicaid and hated managed care. then he said the healthcare bill would fix the whole system.

[De Selby]

On the gripping hand. 

Slaughterhouse is plainly bad law and bad law, from a logical, historical and moral sense, does not deserve the respect of stare decicis.  Overturning it wouldn't necessarily create any problems going forward.  Despite the bare fears that raised their heads, it's pretty clear P&I is not a blank check (or at least need not be) for "any right one can imagine", which Gura made clear in his brief.

The Court had a chance to make history and clean up one of their most shameful messes.  They chose expediency and timidity in simply ignoring it.

Either way, incorporation was, from most accounts, a slam dunk via due process regardless, why not ask for the moon?

Given the lack of history on the second amendment in the Supreme Court, and its overwhelmingly negative history in lower courts, incorporation is far from a slam dunk.  Recognition of the right in the first place was narrowly written, and did not resolve what the Supreme Court undoubtedly knew to be a range of obvious questions about the extent of the right.

There's really no dispute about the slaughterhouse cases, I'm with you there.  But when you're asking for something that has never been explicitly recognized before, it's best to prioritize old reliable, and to characterize the change you want as recognition of the obvious, or at minimum, incremental change based on a solid foundation.

Asking the court to overrule what it has accepted for a century does not tend to give the picture that expansive gun rights are settled law.

[PTK]

Related: http://www.wasupremecourtblog.com/2010/02/articles/opinions/opinion-second-amendment-applies-to-states-but-minors-dont-have-constitutional-right-to-possess-guns/

Perhaps the SCOTUS will take that into consideration? I can dream...

[AJ Dual]

Related: http://www.wasupremecourtblog.com/2010/02/articles/opinions/opinion-second-amendment-applies-to-states-but-minors-dont-have-constitutional-right-to-possess-guns/

Perhaps the SCOTUS will take that into consideration? I can dream...

The minor gun possession issue is kind of a red-herring, even under strict scrutiny and if you treat incorporation as a given. There's tons of case law dealing with minors and first and fourth amendment rights, the voting franchise, any number of things. My minor children don't have the "right" to go make a speech in a public park whenever they want, just under the dictates of normal parental responsibility. I can't see the 2A being all that different.