Tuesday, March 2, 2010

McDonald v. Chicago Oral Arguments Today

McDonald v. Chicago Oral Arguments Today

The oral arguments were held today. You can read it here. It's pretty clear that "privileges or immunities" isn't going anywhere with the Court--but the Second Amendment is likely to be incorporated through the due process clause instead. From reading the questions, it is pretty clear to me that:

1. A number of the justices recognize that Slaughter-House Cases (1873) was wrongly decided, but are reluctant to overturn all the existing precedents that are derived from that.

2. Even those justices who don't like the Heller decision don't want to rock the boat on due process incorporation, preferring to come up with a narrower definition of the right for the states.

Why? My guess is that the conservative members of the Court recognize that declaring that Slaughter-House was wrongly decided would unleash more lawsuits trying to relitigate questions that have already been decided under due process than there are enough lawyers in America to handle--and in many cases, no net change in result. The liberal members of the Court may be reluctant to challenge incorporation for fear that if a fight turns this into a "P or I" dispute, with the generally more conservative tendency of courts now, a lot of the liberal causes decided under due process reasoning (Roe v. Wade, Lawrence v. Texas, among many) would get relitigated and perhaps not do as well.

The net effect is that Alan Gura did a nice job of defending what I think most justices know is the right argument (PorI), but they are going to incorporate the Second Amendment through the due process clause. Feldman, representing Chicago, presented his case very poorly. Admittedly, he's trying to defend an absurd position.

Justice Breyer, however, when he starts arguing that the Second Amendment should be subject to a less level of protection than freedom of speech because there are human lives involved in contest with an abstract concept of rights--where, exactly, did Justice Breyer go on the abortion cases? Oh yeah, that's right.

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