So, we won. Or did we?

As David Cohen points out, Chicago theoretically won on both arguments.  The margins can be interpreted more than one way.  In essence, this case was an 8-1 loss for Gura's Privileges or Immunities argument.  Given that Justice Thomas’ vote was for PorI, we can also see this as a 4-5 loss for Due Process incorporation.

I’m going to throw temperance to the wind for a moment and suggest that Clarence Thomas is the only Justice currently sitting with a spine.

We did achieve a very important philosophical victory, but the practical ramifications remain to be seen.

The 7th Circuit's decision in McDonald v. Chicago has been reversed by the Supreme Court and remanded for further proceedings.  That means we won.

To some extent, that is.

The ruling [pdf] was a narrow 5-4 decision, and the 2nd Amendment has been incorporated against the states through the Due Process clause of the 14th.

We get incorporation, but Slaughterhouse stands.

Monday is the last day for opinions, and the consensus seems to be that the opinion for McDonald v. Chicago will be written by Justice Alito.

From a 2nd Amendment perspective, this is a good thing.  It may also be glad tidings for the 14th.

Jim March thinks that having Justice Alito author the opinion signals the Court's willingness to revive the Privileges or Immunities clause.  I'd lost hope for that mechanism when I first parsed the oral arguments.  Justice Scalia's naked rancor for the approach seemed to have doomed it in favor of …

Justice Breyer came up with this concept during oral arguments today, and it was too fruity to pass up.

Still, I take from what you are saying that — let's make up an imaginary importance of ordered liberty chart, and we give it to James Madison and the other framers.  And he would say insofar as that right to bear arms is important for the purpose of maintaining the militia, it's high on the ordered liberty chart.  Insofar as the right to bear arms is there to shoot burglars, it's low on the ordered liberty chart.

He's …

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.

The NRA has won their motion to gain an allotment of the oral arguments in McDonald v. Chicago.  As I'd previously mentioned, Gura gets 30 minutes to argue his case, a portion of which has already been given to the Texas Attorney General.

Frankly, I'm not the least happy having Paul Clement argue on our behalf.  This is the guy who argued during Heller that the Supreme Court should stick with a broad standard of scrutiny favoring government interests.  Why the NRA retained him, of all people, is beyond me.  Stephen Halbrook would have been a much …

Paul Clement, representing the NRA, has filed a motion [pdf] requesting a portion of the time reserved for petitioners' oral arguments in McDonald v. Chicago.  Alan Gura will have thirty minutes to argue his case before the Court, some of which will be given over to Texas Attorney General Greg Abbott.  I doubt he can spare another ten.

The gist of the NRA motion is that they wish to have more time dedicated to arguments in favor of Due Process incorporation, believing that it "presents the most straightforward and direct route" to incorporating the 2nd Amendment.

The NRA had their chance to argue for selective incorporation.  They did so before the 7th Circuit last June, and it was a good case.  It was considered, alongside McDonald, to be heard by the Supreme Court.  The Court chose McDonald.

The Justices could have taken the easy way out with the NRA case, which asked only for selective incorporation.  In taking McDonald, the Court is telling us that they're interested in entering a larger and more important debate. Clement seems worried that, should the Court choose not to overturn Slaughterhouse and Cruikshank, the game is up.

This is simply not true.

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?

Counsel for the City of Chicago and Village of Oak Park have submitted their brief [pdf], and just under deadline.  It's better written (and longer) than I'd expected, but it's still not going to do much for their case.

Their primary argument is that regulation, including outright bans, of handguns "may reasonably be thought to preserve, not intrude on, ordered liberty."  Of course, the Supreme Court ruled otherwise just last year.  Never mind that—respondents are smitten with the phrase "ordered liberty," so much so that their brief uses it no less than 27 times.

Much of their work is concerned with contradicting the Heller decision, claiming that the right to keep and bear arms refers to a "right" of the states to arm militias, rather than the right of the individual to keep arms for self protection.

The scope of the Second Amendment right—weapons in common use—also reflects its purpose of protecting the militia, rather than an individual right related to self-defense, since the Second Amendment protects weapons regardless of whether they are useful for self-defense. p. 6

Yep, they're going to get real far with that.