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« US News and World Retort on Chicago case | Main | McDonald v. Chicago »

One debate I cannot understand

Posted by David Hardy · 1 March 2010 08:07 PM

A post in the Washington Times. Key theme is conservatives (esp. "judicial activism is my key tenet" such) getting worried.

My take: if there are ever five Justices for it, they can do ANYTHING they want under due process incorporation, since it has no leg or popular history underlying it -- it's more of good result, mind the means, rulings. At least privileges or immunities incorp has a historical background, explanations by Sen, Howard abd Rep. Bingham, as some manner of originalist limitations.

· 14th Amendment

1 Comment | Leave a comment

Doug in Colorado | March 2, 2010 1:19 PM | Reply

SCOTUSblog has a more detailed summary, somewhat dismaying in certain regards...

http://www.scotusblog.com/2010/03/analysis-2d-amendment-extension-likely/#more-17012

A quote:
"The first argument to collapse as the hearing 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 within a few minutes, Justice Antonin Scalia — the author of the Heller opinion and the Court’s most fervent gun enthusiast — was sarcastically dismissing the “privileges or immunities” argument."

Slaughterhouse was bad law...and should have been overturned long ago, IMHO...but what do I know...I'm merely a citizen, not an Imperial Justice.

Doug in Colorado

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