Long story short, with the exception of Breyer, there appears to be no significant opposition to incorporation through Due Process.  With the exception of Ginsburg, the Court showed no interest in revisiting the Privileges or Immunities clause.

So, it's a win, but only for the 2nd Amendment. Although Slaughterhouse and Cruikshank stand for the time being, incorporation here will whittle away at them, as it did in Gitlow and Benton.

The transcript [pdf] is up here. Josh Blackman was there, and has his commentary here.

I was saddened to see how quickly Scalia and Roberts dismissed the idea of overturning Slaughterhouse. I'd worried that Scalia would be opposed to revisiting Privileges or Immunities, and I was sadly proven right.

Regarding selective incorporation, a doctrine he's been wary of in the past, Scalia said, "As much as I think it's wrong, even I have acquiesced in it."

Breyer's "imaginary importance of ordered liberty chart" is truly a surreal idea. He tried to get a few digs in at the Heller majority but failed. He did his best to waste some of Gura's time with irrelevancies.

Oral arguments are tomorrow morning at 10:00 EST.  Check for transcripts after lunch.

Though they did so in Heller, the Court has chosen not to allow a recording of the proceedings.  I'd have hoped that, with Souter gone, the Court would consider broadcasting, but that appears not to be the case.

Though the Justices' minds are likely made up at this point, the tenor and nature of their questions may give us an idea where they lean.  It should be fun to see Chicago counsel dissemble while trying to pretend Heller didn't mean what it said.

They're …

News comes from Eugene Volokh that the 7th Circuit wants the Skoien case reheard en banc.  There are two possibilities here.

The first is that there was widespread disagreement with Judge Sykes' decision, and that the others on the panel hope to reverse it should we lose the McDonald case.  This would be similar to the Nordyke situation, in which the initial decision was similarly remanded pending the Supreme Court's decision.

The second possibility is that they want to try for a more lenient standard of scrutiny, which seems unlikely.  Heller took rational basis off the table, and Sykes' opinion was as close to "intermediate" scrutiny as could be workable.  All that remains is strict scrutiny for the 2nd Amendment.

Maybe, just maybe, there's actually support for that.  We'll have to wait and see.

In the meantime, the 4th Circuit has quietly agreed with the 7th, vacating William Chester's conviction on similar grounds in an unpublished opinion.  Though an "unpublished" opinion is not binding precedent, its very existence shows a certain amount of support for Skykes' interpretation.

Well, it looks like I agree with Sarah Brady on one thing, at least.

The Brady Campaign gave President Obama an "F" rating on gun-control issues in a report issued this week [pdf].

In just one year, Barack Obama has signed into law more repeals of federal gun policies than in President George W. Bush’s eight years in office. From the repeal of Reagan Era rules keeping loaded guns out of national parks to the repeal of post-9/11 policies to safeguard Amtrak from armed terrorist attacks, President Obama’s stance on guns has endangered our communities and threatened our national security.

That first sentence is particularly telling.  Obama knows the new truth when it comes to gun control:  paying lip service to it is a great rhetorical ploy, but attempting to follow through is political suicide.  Now he's in a rather unenviable position: he was expected to support gun control, but he lacks the wherewithal to do so.  As such, he's being branded a turncoat by the very people who put him into office.

Wait until the health-care bill tanks, and we'll really see sparks.  The last half of his term isn't going to be very chipper.

Two other amicus briefs on behalf of the respondents in McDonald v. Chicago warrant mention.  The first [pdf] is filed on behalf of the Villages of Winnetka & Skokie, Illinois.  The other is written by Carolyn McCarthy.

You may remember Skokie from its brief cameo in the Blues Brothers.  In their brief, they maintain that incorporation of the 2nd Amendment would violate Home Rule powers.  They also worry that constituents will grow weary of seeing their government spend tax dollars defending unconstitutional regulations.

Another aspect of amici's experiences should concern the Court. When Evanston and Winnetka repealed their more restrictive laws in 2008, it was not because their citizens or legislators had been persuaded by policy arguments like the ones advanced by petitioners, respondent NRA, and their amici–but rather because they determined that the costs of defending the laws in federal court were too high to have local taxpayers bear. The prospect of resolution through litigation–and the threat of it–against local governments, for legislative actions taken in good faith to advance important public aims, is a further reasonfor rejecting the unprecedented constitutional interpretation petitioners seek the Court to impose. p. 3

"Resolution through litigation?" If that sounds familiar, it's because that is is exactly what Cook County attempted in the late 1990's, when they started suing firearms manufacturers.

Final amicus curiae briefs in support of the respondents in McDonald v. Chicago were due today.  Among the parties filing are the Educational Fund to Stop Gun Violence, a Joyce Foundation beneficiary, and a coalition of "public health" organizations, including the American Academy of Pediatrics.  Both briefs take the argument that the 2nd Amendment should not be incorporated, as it would endanger gun control as a public health policy.

Equally ludicrous, but less insolent than the Chicago brief, is the one filed [pdf] by the United States Conference of Mayors.  These folks were an endorser of the controversial and impotent group Mayors Against Illegal Guns, and they claim that "the Second Amendment protects a largely obsolete Eighteenth-Century right."  They point to New York City's "stop-and-frisk" program of detaining people suspected of carrying concealed weapons as one practice that may be endangered by incorporation.

Accordingly, if applicable to state and local governments and confined to framing-era understandings, the eighteenth-century conception of the right to bear arms would imperil the use of stop-and-frisk tactics against drug dealers and gang members, at least as long as they carry firearms openly and have not been previously convicted of a felony or otherwise fall within the scope of the regulatory authority acknowledged in Heller. p. 20

So, incorporation of the 2nd Amendment would threaten a practice that endangers the 4th Amendment?

The preliminary Uniform Crime Reports are in for 2009, and the results are promising.  Murder is down 10%, robberies are down 6.5%, and motor vehicle thefts are oddly down 18.7%.  As many in our camp have pointed out, this takes place during an unprecedented year-long surge in firearms ownership.  According to NICS, there are at least 25 million more guns in circulation than there were before the election.

The obvious conclusion is that more guns do not equal more crime.

However, this does not mean there is a direct relationship between increased firearms ownership and this drastic decline in crime.  Without more data, causality would be difficult to prove, so that's probably a point best avoided in debate for now.

These are the 2006 mortality statistics, straight from the CDC National Vital Statistics System (NVSS).  The actual report you want is R00.1-Y89.9 [pdf].  The relevant statistics begin on page 4515 (727 in the browser).

And yes, they do a great job of burying this stuff.

Want to know how many children under the age of 15 died of negligent discharges from handguns in 2006?  9.  Homicides?  29.

I'll start with interpretations and follow with the original data.  The data is broken up into three categories:

Handgun discharge
Rifle, shotgun, and larger firearm discharge
Discharge from other and unspecified firearms

In each case, the first number is an aggregate of all types of firearm, while the second includes only handguns.

We'll begin with unintentional and accidental shootings (W32-34).

Total: 642/107
All Children under 10: 31/6
All Children under 15: 57/9
Age 15-19: 100/26
Age 19-24: 93/21
Age 15-24: 193/47
Age 30-50: 161/15

All said, there were 642 deaths from negligent discharges.  There were 157 deaths before age 19, 35 of which were from handguns.  While certainly tragic, this hardly constitutes the epidemic some claim it to be.

All of the current amicus curiae briefs in McDonald v. Chicago are now posted on Alan Gura's site.

The NAACP has submitted theirs, and it's one that really bothers me.

They argue against revisiting the Privileges or Immunities clause at all, claiming,

The Court should turn to the largely unexplored Privileges or Immunities Clause of the Fourteenth Amendment only if it first determines that the Second Amendment right to keep and bear arms is not incorporated as against the states through the Due Process Clause. p. 2

They repeatedly claim that there's nothing wrong with selective incorporation, and that it should …

So, they got theirs up just under the wire.  The Brady Campaign brief is pretty much exactly what I expected.

The whole thing is about "reasonable regulation" and "public interest." Without weighing in on incorporation, they simply beg for a standard of review that's as close to rational basis as they can get without calling it such.

They dig pretty deep (Heffron v. International Society for Krishna Consciousness, Inc.?) to prove that strict scrutiny doesn't usually apply across the board for civil liberties, and they seem to encourage such a situation.

If anything, the Left needs to tread very carefully when …

As the day winds down and my body starts rejecting the caffeine, we have two final briefs coming across the wires.

The first is filed by a group including 34 California District Attorneys, 8 Nevada District Attorneys, the California Rifle & Pistol Association Foundation, the Long Beach Police Officers Association, the San Francisco Veterans Police Officers Association, the Arizona Citizens Defense League, the Texas Concealed Handgun Association, the Virginia Citizens Defense League, and the Bloomfield Press.

They argue that incorporation through Due Process is a given, through any reading of the 14th Amendment.  Since the right to keep arms is fundamental, it …

Dave Kopel has posted a brief in conjunction with the International Law Enforcement Educators and Trainers Association (ILEETA). The argument is summed up in the first sentence: Guns save lives.

This one isn't about the 14th Amendment at all.  Rather, it's an ancillary brief written to underscore the point that firearms in the hands of citizens fulfill a useful purpose, and that bans such as the one in Chicago are not only ineffective but dangerous.

It occupies an important strategic position, since the counterargument will likely involve a plea for "interest balancing."  Kopel's research will serve as an effective bulwark …