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Transcript of McDonald v. Chicago argument
Available here. I think five votes for incorporation, there might be one (Thomas) who would go for privileges or immunities. (P or I has all the history and logic behind it, and due process has all the case law, and it certainly looks as if the Court favors the case law).
We thought Justice Thomas would ask a question, since toward the end of Chicago's presentation he passed a note to a clerk who departed and returned to give him a copy of the US reports (the official print of Supreme Court decisions). But no question was forthcoming, perhaps because Chicago's time ran out soon thereafter.
UPDATE: Bottom line is that Alan's argument for privileges or immunities incorporation drew serious fire from Scalia, and some from CJ Roberts, and none of the other friendly Justices rallied to assist. OK, read those tea leaves. The Court granted cert. on questions presented which included both P or I and due process incorporation, but there isn't much support for the former (or perhaps the supporters are remaining silent). Whichever it is, this is not a line of attack that at 10 AM on March 2, 2010 is going to give much promise to winning more votes if you persist.
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In my dreams, Thomas' question is: "Counsel, if we were to affirm the case below, what would be the... unintended consequences of that?
Only five for incorporation? Are the liberal justices that unreasonable, that virulently anti-gun? Mcdonald v. Chicago seems like such a slam dunk case. Are the liberal minority that arbitrary?
I suppose at this point nothing should surprise me. I had actually predicted one or more liberal justices would join the majority opinion in D.C. v. Heller.
Should the final tally in McDonald v. Chicago actually be another 5 to 4 split, I hope Republican Senators will make Obama pay the next time Obama tries to appoint another anti-gunner to the Supreme Court.
Brad, unfortunately the answer is yes they are that anti-gun. In the Heller case, technically all 9 agreed that there was an individual right to own a handgun. However, 4 believed that legislation that would make that right virtually impossible to exercise was permitted.
"Only five for incorporation? Are the liberal justices that unreasonable, that virulently anti-gun?"
Yes, they really are. In some quarters there is a deep fear and loathing at the idea of ordinary private persons having firearms, or of such persons using violence in self-defense. They'd like to strike down the 2nd Amendment as unconstitutional if they thought they could get away with it.
Look at the piling on of TSA regs after the underpants bomber incident. I get the impression that the authorities are desperate to do anything – anything – that will let them avoid admitting that the the best response to a hijacking attempt is for ordinary people to spontaneously rise up and apply violence to the hijackers. And what they really wish for is to be able to go back to the pre-9/11 line of "in the event of a hijacking, stay in your seats, with your hands folded in your laps, and wait for the Official Authorized Experts to deal with the situation."
Or Judge Posner, who considers the RKBA to be "dangerously anachronistic" and that a judge's duty is to find an interpretation around it rather than simply upholding it. (Which pretty well describes what he tried to do in the McDonald v Chicago case.) He's far from the only judge to think that way.
In the end, it's still about power, and the natural human aversion to surrendering even a speck of it, even to persons thousands of miles away.
In pages 6 to 7 Justice Scalia successfully ridiculed Alan Gura (argumentum ad hominem attack) to knock him off his privileges and immunities position for incorporation of the Second Amendment through the Fourteenth Amendment. Did Scalia make Alan Gura a laughing stock with his insulting comedic attack?
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FROM THE TRANSCRIPT:
JUSTICE SCALIA: ... I'm saying, assuming we give, you know, the Privileges and Immunities Clause your definition, does that make it any easier to get the Second Amendment adopted with respect to the States?
MR. GURA: Justice Scalia, I suppose the answer to that would be no, because -
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[MY QUESTION: If privileges and immunities has all the history and logic behind it, as David Hardy says above, and if Roscoe Pound, the dean of Harvard Law School in the 1920s, [the Progressive Movement] changed the course of study from constitutional law to "case law", which is known as Legal Realism, a legal philosphy that takes "what the Constitution says which isn’t what a lot of these judges think it needs to say and through case law, through decisions, they apply it, they, shall we say, read it flexibly, liberally, and make it say what they it needs to say." [Glenn Beck, Fox News interview with Ronald J. Pestritto, Jan. 29, 2010]) then shouldn't Alan Gura have answered, "Yes?" ]
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BACK TO THE TRANSCRIPT:
JUSTICE SCALIA: Then if the answer is no, why are you asking us to overrule 150, 140 years of
prior law, when -- when you can reach your result under substantive due -- I mean, you know, unless you are bucking for a -- a place on some law school faculty -
(Laughter.)
MR. GURA: No. No. I have left law school some time ago and this is not an attempt to -- to return.
JUSTICE SCALIA: What you argue is the darling of the professoriate, for sure, but it's also contrary to 140 years of our jurisprudence. Why do you want to undertake that burden instead of just arguing substantive due process, which as much as I think it's wrong, I have -- even I have acquiesced in it?
(Laughter.)
MR. GURA: Justice Scalia, we would be extremely happy if the Court reverses the lower court based on the substantive due process theory that we argued in the Seventh Circuit.
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[MY COMMENT: If Alan Gura began his oral argument on the Privileges and Immunities Clause he should has stuck to that position. But because Scalia "bullied" him with ridicule Alan Gura caved in, he lost his spine and backbone to Scalia's initimidation tactics.
No I'm just a lowly nobody in this world. But it seems to me that "priviliges and immunities" in regard to the Second Amendment means that you have the human right to keep and bear arms in intrastate, interstate, nautical, and maritime travel without fear of arrest and prosecution for possession and carrying, whether concealed or openly [but in the 1800's concealed carry was viewed as a criminal act while open carry was the social norm and the legal norm as it has always been the constitutional norm].
It is my opinion that a true incorporation of the Second Amendment through privileges and immunities of the 14th Amendment would constitutionally return us to the 1800s when open carry was the social norm and the legal norm. Yes, you would probably be hearing a lot of sidearms bumping and clanging in our open society as people become accustomed to open carry. But so what? Wouldn't it mean that violent crime rates would drop with the corresponding rate of property crimes going up? You can't have your cake and eat too!
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My two cents worth.
Yes. P or I incorporation benefits every INDIVIDUAL and only those who seek to aggrandize government lose.
But the S. Ct. is composed of 9 justices who want to aggrandize government just for different POLITICAL ends. No justice really supports freedom for the individual. They are all intellectual elitists. They will all put you behind barbed wire -- the Conservatives because you are morally deficient and the Liberals for your own good. Same barbed wire.
Only the Libertarians promise to take down the wire. But there are no elitist Libertarians.
Regarding "In some quarters there is a deep fear and loathing at the idea of ordinary private persons having firearms, or of such persons using violence in self-defense."
I see opposite ends of a spectrum playing against one another here. At one end, ordinary citizens who have long-standing law saying they can use force to defend themselves, and who are seeking legal protection for the instruments of that force. Without the instruments the legal right is useless.
On the other end, members of a law giving class who see the use of force in self defense as rendering their powers less relevant.
No one should be surprised that the law-giving class would feel threatened by the right of self-defense, and would seek to limit that right out of existence, one paper cut at a time.
The problem as I see it is that the law giving class does not see themselves using that right.
We are lucky we have gotten as far as we have.
Incoporating by the "P & I" clause means the words "shall not be infringed" come along with it. Incorporating by "due process" means the states or cities can use due process to kill any practical effect incorporation may have.
It's really simple and the court is going for another Heller.
I am opposed to the use of the 14th amendment, Hell, I'm opposed to the amendment. The rest of the constitution is crystal clear, and every state had to agree to abide by it to become a state. The 14th says "you gotta do watchya said ya wud do, but if ya don't, hey, we got nothin'. anyway we may not like some parts of liberty under the rest of the constitution so, we'll use the 14th like a chinese restuarant menu."
It's a pretty sorry state of affairs when reliance on a subsequent amendment is required to honor the original plain as day "shall not be infringed" amendmnent. Yeah I know we should feel fortunate that we are getting a second bite of the apple. And I would, if I didn't recognize the fact that like the Heller decision, this one too is subject to be only correct enough to forestall armed insurrection without really dismantling any of those prohibited infringements.
Infringements from which we had already been indemnified by the second amendment that was part and parcel of the original document. The original document which every state was compelled to honor as regards the rights of citizens anywhere and everywhere in the United States. Look it up.
Sorry, I can't get too excited that much will change. I remember the road map provided to abusers in Heller. I also remember Kelo. I am not inclined to place much trust in people who can arrive at either decision.
The justices asked one question repeatedly of Gura and Clement and both missed their opportunity to clarify the issue.
The question in various forms regarded whether a right incorporated against the states had to be incorporated in its entirety or would piecemeal and/or altered versions of those rights (meaning restricted) be justified.
Both attorneys missed the answer. Of course, every time Gura tried to answer some black-robed nancy boy interrupted him. However, the response should have been simple. Incorporation had to be complete and identical to the federal right as laid out in the constitution because to incorporate the 2nd amendment means the words "shall not be infringed" must also be incorporated. Anything else is a defacto amendment to the constitution requiring a constitutional convention and very high requirements for ratification.
Secondly the court is determined to maintain the myth of infallibility even if they must endorse bad law (Slaughterhouse) using the stupid excuse that "It has been wrong for 140 years and has become sacred".
If Thomas had asked a question, the world would have exploded.
That's no dig on Thomas, just pointing out that he asks questions about as often as the Earth explodes.