McDonald v Chicago: Oral Arguments

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.

Scalia and Roberts did a very deft job tearing Chicago’s case to pieces.  Here are a few highlights.

JUSTICE SCALIA: Is that what you are asserting here, that the States have to allow firearms?

MR. FELDMAN: No.

JUSTICE SCALIA: Is that —

MR. FELDMAN: I — I didn’t think I was.

JUSTICE SCALIA: I didn’t think so, either, so why did your last argument make any sense?

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.

CHIEF JUSTICE ROBERTS: I’m trying to get you to take a position on whether or not you want us to not only pick and choose among which amendments are part of our abstract notion of ordered liberty, or if you want us also to take amendments that might be in and refine them and shave them off a little bit and say well, this part of the amendment is in, and this part isn’t.

MR. FELDMAN: No, that’s not the argument that we are making.

CHIEF JUSTICE ROBERTS: Okay. So your argument is all in or all out.

MR. FELDMAN: The argument we’re making – yes.

CHIEF JUSTICE ROBERTS: Okay.

JUSTICE SCALIA: Is the right to trial by jury implicit in the concept of ordered liberty?

MR. FELDMAN: I–

JUSTICE SCALIA: My goodness —

Feldman’s various counterarguments fell quickly. Regarding the idea that the 2nd Amendment should be subject to different scrutiny because guns pose a danger to life, Scalia responded that “there is a log of statistical disagreement on whether the Miranda rule saves lives or not (…) we don’t resolve questions like that on the basis of statistics, do we?”

Apparently, Chicago counsel Feldman looked “forlorn and even doomed.”  Heck, I wouldn’t have taken the job.  I can’t imagine it was an enticing proposition.  In any case, thanks for playing, James.

Scalia also noted that the concept of “ordered liberty,” which is the cornerstone of Chicago’s arguments, has not been invoked by the Court since 1937. Feldman seemed unaware of this.

Stevens asked if incorporation “[has] to be every bit as broad as the Second Amendment itself.” Sotomayor seemed more interested in the procedural questions than philosophical ones, but her line of questioning suggested she was amicable towards incorporation. Despite my initial misgivings, Paul Clement proved himself both capable and eloquent.

As far as the outcome, I’m optimistic, but I’m not betting on anything yet. A 9-0 win will be almost meaningless if it includes more “reasonable restriction” language or lowers the standard of scrutiny.

A win for us with teeth? 6-3 perhaps. It seems that Ginsburg would have been much more receptive to PorI incorporation, but the idea of a win for the 2A only doesn’t appeal to her as much. Breyer’s obviously not in our court, and his dissent should be amusing. Stevens is still an unknown quantity, as he seems to be concerned that any potential incorporation will be too broad.