Suffering through the bitter cold for nearly 14 hours (and being interviewed by Adam Liptak for the New York Times) was well worth the price to pay in order to witness the oral arguments in McDonald v. Chicago. While I think incorporation through the due process clause is a slam-dunk, I find it unlikely that the Court will reach to overturn the Slaughter-House cases and reinvigorate the Privileges or Immunities Clause.

Alan Gura began, noting that the framers of the 14th amendment made a promise to the McDonald family, that no state shall abridge the privileges or immunities of citizenship. Gura noted that the rights protected by the Privileges or Immunities Clause are not trivial, and that contrary to the assertions of Slaughter-House, the war was not fought for protection of rights on the high seas.

Chief Justice Roberts interjected, and noted that Gura’s interpretation conflicts with Slaughter-House, and asked whether the “heavy burden” was satisfied in order to overturn that precedent. In many respects, the question of whether Roberts remains more loyal to stare decisis or originalism.

Justice Ginsburg was very interested in the privileges or immunities protecting unenumerated rights, and asked several times whether the right to keep and bear arms would be included in the privileges or immunities, even if the second amendment was never ratified. To this question, Gura answered affirmatively. Gura noted that the Framers considered the privileges or immunities to include many of those protections in the first eight amendments. For those unenumerated rights, he looked to bills like the Civil Rights Act of 1866, which included the right to keep and bear arms, right to contract, right to sue and be sued.

In many respects, Justice Kennedy’s questions indicated that he wanted to vote for privileges or immunities. He asked several times of Gura what the scope of unenumerated rights were, and did not seem satisfied with Gura’s answers.

Justice Scalia asked point blank whether it would be “easier” to incorporate the Second Amendment under the Privileges or Immunities Clause. To that, Gura replied negatively. Scalia retorted that if the Privilege or Immunities process was more difficult, why bother overruling 130 years of precedent. Scalia quipped “unless you are bucking for a place on a law school faculty” and aim to be the “darling of the professoriat,” why would you undertake to overtake 140 years of precedent. This seems to be an attack at the academic consensus that privileges or immunities clause should be reinvigorated, but little practical and pragmatic clamoring for this need. To this, Gura replied that he would be willing to accept incorporation through. substantive due process.

Justice Scalia proposed that the Court may look to rights deeply rooted in our nation’s history and traditions, which is the test from Washington v. Glucksberg. As Gura noted, this is also the approach that Judge O’Scannlain used in Nordyke v. King (and this also the test Ilya Shapiro and I propose in Keeping Pandora’s Box Sealed).

Justice John Paul Stevens took a very interesting line of questioning, in which he sought to create a double standard for the right to keep and bear arms; that is the federal standard would offer more protections that the state standard. To support this, he cited Justice Harlan’s dissent in Griswold v. Connecticut. But neither Gura, nor Clement, nor Feldman, who argued for Chicago, seemed to buy this argument.

Justice Sotomayor, who asked few questions, impressed upon the City of Chicago to articulate the proper standard to be used to incorporate the Second Amendment. Chicago stuck to the “implicit in the concept of ordered liberty” standard from Palk. Though Justice Scalia noted that this standard has not been relied upon since 1937!

Unsurprisingly, Justice Breyer fixated heavily upon the statistics showing the dangers of guns. If the right is incorporated, public safety decisions would be made by judges. If the right is not incorporated, public safety decisions would be made by legislators, who can consider the danger of weapons. Every case involving the second amendment, according to Justice Breyer, considers life versus guns.

To this, Gura replied that the Court should consider the case in the same fashion they considered Heller. Breyer proceeded to disagree with Heller, though he noted that “that was the dissenter’s view.” Justice Scalia retorted that Miranda rule releases dangerous people, and does not save lives. The Courts should not resolve questions on that basis.

Curiously, Justice Scalia on no less than three occasions noted that the right to concealed carry would not be protected by the Second Amendment. I wonder if he was signaling further limitations to assuage Kennedy.

More commentary to follow on Clement’s arguments.

Update 2: Clement’s Arguments

Clement began by arguing that incorporation through the due process clause was straightforward.

Justice Stevens repeatedly asked Clement why the Second Amendment needed to be incorporated, while the right to grand jury and civil trial were not incorporated. Clement tried to draw a distinction between substantive and procedural rights, which did not seem to assuage Justice Stevens.

Justice Stevens also asked Clement whether the state right could be less protective than the federal right, citing again to Justice Harlan dissent in Griswold, as well as Poe v. Ullman. Alito asked why not consider John Marshall Harlan I. All this talk of the Harlans makes this President of the Harlan Institute (www.HarlanInstitute.org) quite happy.

Justice Breyer renewed his disagreement with the Heller opinion, and noted that “all” law professors agre that Blackstone thought the right to keep and bear arms only referred to raising an army. Clement countered that Blackstone was mostly concerned the right of self-defense.

Update: Feldman for the City of Chicago

Feldman, who argued on behalf of the City of Chicago, focused on the implicit in the concept of ordered liberty standard, and argued that the right to bear arms did not meet that standard. In fact, in order to maintain liberty, the City argued that they needed to ban guns.

Scalia challenged Feldman, and noted that the implicit standard has not been used since Palko v. Connecticut in 1937. This makes me think that Scalia is more likely to adopt the Glucksberg framework, a framework which he signed onto, and also the framework I recommended the Court adopt (albeit in the privileges or immunities concept).

Chief Justice Roberts repeatedly asked Feldman why the right to criminal juries should be incorporated, but not the right to bear arms, as it is deeply tied to our nation’s history and very important in our history. The Chief continued, and asked how Feldman could read Heller, and not conclude that the right to keep and bear arms was not important to the Framers. [Roberts makes the error of originalism at the wrong time. The relevant historical inquiry is the perspectives of the framers of the 14th amendment in 1868, not the perspectives of the framers of the Constitution in 1791].

In an add flashback, much of the discussion continued onto the meaning of the prefatory militia clause. I had thought this was resolved in D.C. v. Heller, so it was kind of odd to rehash these old issues. Justice Kennedy asked again if Heller was correctly decided, hwo could this right not be fundamental. Feldman referred to the militia clause. The Chief quipped that sounds like the argument of the losing side.

Justice Alito asked if a State could ban all firearms. To this, Feldman equivocated, and tried to draw a distinction between the right to self defense, and the right to keep and bear arms.

In perhaps my favorite Breyer hypothetical of all time, SGB asked Feldman to “make up an imaginary ordered liberty chart and give to James Madison.” The militia aspect of the second amendment would be high on the chart, and should be incorporated. In contrast, the “shoot burglar” right would be low, and not be incorporated. Alito replied to this hypothetical, noting that the Court does not do this kind of ranking with other rights.

The Chief, in contrast to Justice Stevens’ and Breyer’s assertions, asked Feldman whether the right could be bifurcated. In other words, is it “all in or all out.” To this, Feldman replied that is all in and all out, and the federal standard must mean the same thing as the state standard.

One note. Justice Stevens said that he would rely on Justice Harlan’s dissent in Harlan. Justice Harlan concurred in Griswold, but concurred in Poe v. Ullman. Oddly, the Chief repeated this error, and referred to Harlan’s dissent in Griswold.

Update 3: Gura’s Rebuttal TIme

Gura’s Rebuttal Time
Right off the bat, Kennedy asked for examples of privileges or immunities being denied, and whether they would be remedied by overruling Slaughterhouse.

Gura replied that the right to jury trials for civil cases, and other unenumerated rights were being infringed.

Justice Ginsburg asked if every state would need to provide grand juries and civil jury trials. To this, Gura answered that this is what the framers sought.

Justice Kennedy asked what are the unenumerated rights. Gura replied that “We cannot give full description.” Kennedy asked if this troubled Gura. Before Gura could answer, Justice Alito jumped in and asked whether the privileges or immunities includes the right to contract. Gura replied affirmatively, as understood by the framers, based on the Civil rights act of 1866.

Chief Justice Roberts asked if this would give Judges more power. Gura replied that his approach is deeply rooted in text and history. The Chief replied that the Privileges or Immunities are more flexible than due process, as they are not limited to procedure.

Gura replied that in 1868 the right to keep and bear arms was understood to be a Privileges or Immunity of citizenship.