McDonald v. Chicago Hearings Today: Looks Good for Guns, Probably not so Good for the Privileges or Immunities Clause

I'll be writing a full account of what went on today and its likely meaning that should be up at Reason Online in a couple of days, but for those eager for a quick blow-by-blow by a very educated 2nd and 14th Amendment maven, Josh Blackman, do go read what he had to say about what happened this morning.

My very quick take: the Justices were pretty rough on lead lawyers for both sides, Alan Gura and James Feldman, for different reasons, which makes the most likely looking outcome right now a victory for plaintiff Otis McDonald and his team, but not a victory achieved through the overturning of the SlaughterHouse cases and a revival of the 14th Amendment's "privileges or immunities" clause. That is, the Second Amendment will likely apply to the states, but the full contours of what that means will play out in many, many future legal challenges to state and local gun regulations.

And for those who need to be reminded what I'm talking about, see yesterday's link summation of Reason's very thorough coverage of McDonald and the important privileges or immunities questions raised by it.

Comments

[John Thacker]

Gura was stuck between the Scylla and Charybdis not wanting to lose any Justice by arguing for a specific unenumerated right under P or I, and the Charybdis of then facing the problem of "what's the point of using P or I if it's exactly the same in effect as the Due Process Clause?"

[Old Mexican]

So can Annie get her gun yet??

[Michael Ejercito]

Maybe when the same-sex "marriage" lawsuits reach the United States Supreme Court on appeal, the plaintiffs can cite P&I.

They have to do that anyway to succeed, since Baker v. Nelson summarily rejected equal protection and due process claims on the matter, while not addressing P & I.

[adam]

You've got to love the hypocrisy of "constructionist" judges ignoring half an amendment that is blatantly clear in its intent and meaning.

Another fail by SCOTUS. They've been racking them up with Gonsalez, Kelo, and the like. A victory for gun rights? Yes. But another knife in the back of the spirit of individual rights.

[TrickyVic]

""A victory for gun rights?""

I don't think it will be. I thought Heller was a very shallow victory that wouldn't amount to much. The right belongs to the people, whoop de dooo.
Until SCOTUS takes the word "infringement" seriously, there will be little to gain.

One thing to consider about Heller and Scalia, Heller was a retired security guard.

[Bob #2]

According to SCOTUSBlog, one of the justices asked Gura what other rights would be allowed if the privileges and immunities clause were to be exercised. Gura said that he didn't know. Scalia then asked whether that fact bothered him as much as it should.

Thanks, SCOTUS. We don't want those grubby plebs to have too many rights. They might get to rowdy and uppity if that were to happen.

[Bob #2]

According to SCOTUSBlog, one of the justices asked Gura for a complete list of what other rights would be allowed if the privileges and immunities clause were to be exercised.

Oversight fixed.

[CTHORM@IBIS]

I really, truly hate Scalia. It must make Justice Thomas crazy to deal with such a paranoid statist.

[John Thacker]

Far from a complete list, he didn't even name one for fear of offending a justice.

We don't want those grubby plebs to have too many rights.

I don't want a "right to government health care," or a New York Times-endorsed "right of people, through their elected representatives, to adopt carefully drawn laws that protect them against other people's guns."

[Jeffersonian]

Word. It never ceases to amaze me how libertarians, normally so sensible, charge headlong into this trap.

[TrickyVic]

"" Gura said that he didn't know. Scalia then asked whether that fact bothered him as much as it should.""

Gura should have replied, it doesn't bother me as much as you not knowing.

[John Thacker]

He should have had some answer.

[Tulpa]

Wait -- the libertarian golden boy wasn't prepared for such an obvious question?

Yeah, right. We should have left the fate of the 2nd amendment purely up to this clown instead of letting the NRA get their 2 cents in.

[Joe]

Yeah, thank God for the NRA and Clement. I'm sure neither the SCOTUS nor Alan Gura had heard of due process incorporation before Clement stood up. Give us a break.

[John Thacker]

I'm sure neither the SCOTUS nor Alan Gura had heard of due process incorporation before Clement stood up. Give us a break.

Given Gura's non-response to such an obvious question about P or I, what are we supposed to conclude about his preparation and ability to engage the Justices in general?

[Joe]

Okay, then what would you have proposed as a good answer for Gura to such an open-ended question? The simple fact is, Scalia was grandstanding, and got caught self-censoring his own comments in order to perform said grandstanding. The whole exchange was ludicrous, and spoke much more re: Scalia's "intellectual" inconsistencies than it did Gura's skills as an advocate.

Bottom line, why did the S.C. grant cert with any mention of P or I if they were going to torpedo the whole argument within 10 seconds? The whole thing seemed like a big MTV-style prank. "Ha ha - We were just kidding about seriously discussing P or I. Screw you."

[Joe]

Logic according to Scalia:

Overturning decades of judicial understanding in Heller? No problem.

Overturning a horrendous 140-year-old ruling in McDonald? ZOMG!! THE END OF THE WORLD AS WE KNOW IT!! HEAP RIDICULE ON GURA FOR EVEN SUGGESTING IT!!

Thanks for the clarification, Nino.

[John Thacker]

Slaughterhouse is a terrible ruling, but Gura was unable to point out exactly how it affects rulings today. The Justices asked, basically, "OK, isn't everything that you say ought to be incorporated under P or I incorporated under the Due Process Clause and substantive due process? So what's the point here?"

[what]

I thought the one at stake is the privileges AND immunities clause of article 4

[John Thacker]

No, the P and I clause of Article 4 is not at stake. This is the P or I clause of the 14th Amendment.

[TrickyVic]

Justice Thomas said what?

[Tulpa]

Something about pubic hair and Coke, I don't remember.

[mikew]

you might wait for the outcome before skewering the justices.

[Marshall Gill]

A question from the ignorant.

Would the overturning of Slaughterhouse leave anything for federalism other than choosing State magnolia festivals? Wouldn't it lead to increased federal power?

I thought that the Constitution limited the power of the federal government over the States and the People. Isn't this being argued that the 16th gives the Federal government the power to regulate the States, instead of limiting their power? Sounds like quite the double edged sword.

[Marshall Gill]

16th should be 14th...

[Ryan F]

Marshall,
I am not a constitutional lawyer (thank the lord), but I'm pretty sure the 14th doesn't give additional federal power over the states, but does protect 'the people' from the states as we are protected from the federal govt.

[sathi2000]

begin let me say I like Alan Gura, consider him a friend, and marvel at his accomplishments so far in the gun-rights battle. In the end I think we will be OK with this case, enough Justices seemed to lean toward protecting 2A, but it's probably not an oral argument Alan will look back upon as his finest hour. He does not shine well in my analysis that follows, because he got such a serious whupping from the Court. That's just the way it is
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