After McDonald, what's next?

[Charles L. Cotton]

I know there has been a lot of debate over the NRA being granted oral argument time in this case, but the time for debating that is past. It's important to remember now that the oral argument Gura presented is most likely not the argument he would have presented if not for Clement coming right behind him with a due process argument.

Gura was going to extensively argue privileges and immunities from the beginning which is why it was critical for the NRA to try to get oral argument time.

Chas.

[The Annoyed Man]

I'd just like to add the Gura's "privileges or immunities" argument might have been the worst argument to come with. There hasn't been a successful "privileges or immunities" clause argument since 1873.

If no one tries it, there will never be a successful attempt.

PoI isn't just there to fill some extra space they had on the page. At some point, some court is going to have to concede that it means something.

OTH, one of the definitions of insanity is doing the same thing over and over again, and expecting a different result each time. If "privileges and immunities" arguments have failed repeatedly for other cases, there is no logical reason to expect that the court would treat it favorably this time — whereas incorporation under the 14th has been successfully used for other Bill of Rights cases.

IANAL, but that just seems to make sense to me. Gura is a brave man, but just from what I've read about his preparations for and deliver in Heller, he's also a little bit of a loose cannon. At least, that's how it appears to me.

[hirundo82]

Ginsburg's oxymoronic plea for Gura to "list the unenumerated rights" that would result from the "Pandora's box" of overturning Slaughterhouse would be comical if it wasn't so frightening: she seems to really believe that no rights count unless they're enumerated, and that the Court will have to tackle everything anyone does to decide if it is a "right" or not.

Ginsberg believes in a right to have an abortion, which (according to Roe v. Wade) arises from an unenumerated right to privacy.

A lot of liberals have a bunch of unenumerated rights they would like to have SCOTUS write into the Constitution (right to healthcare being one of the major ones) which is why reviving the P&I clause should be viewed as such a double-edged sword from the viewpoint of a libertarian like Gura.

[jimlongley]

I know there has been a lot of debate over the NRA being granted oral argument time in this case, but the time for debating that is past. It's important to remember now that the oral argument Gura presented is most likely not the argument he would have presented if not for Clement coming right behind him with a due process argument.

Gura was going to extensively argue privileges and immunities from the beginning which is why it was critical for the NRA to try to get oral argument time.

Chas.

IMHO Gura was strategically wrong to start with, stumbled and lost his balance early and never achieved a tactical advantage in the "debate."

Clement's presentation was better from the start and accomplished more getting points across than Gura did.

That said, and I have always thought that Due Process was the only way we were going to get it, even if I would prefer P&I, once they decide that it is incorporated under due process, then we will have to fight to see if legislative action is due process, and then we will have to fight something else.

This is going to be a long process.

[grad_Student]

I know there has been a lot of debate over the NRA being granted oral argument time in this case, but the time for debating that is past. It's important to remember now that the oral argument Gura presented is most likely not the argument he would have presented if not for Clement coming right behind him with a due process argument.

Gura was going to extensively argue privileges and immunities from the beginning which is why it was critical for the NRA to try to get oral argument time.

Chas.

Hopefully you get a chance to read the transcript. I read in during lawyer ethics when I should have been paying attention. I think that Gura's argument was headed somewhere but the Justices ended up cutting him off and he never got to flesh it out. I encourage everyone to read it http://www.supremecourtus.gov/oral_argu ... 8-1521.pdf" onclick="window.open(this.href);return false; It's not too terribly wrong, just 72 pages but it's spaced out.

I'd just like to add the Gura's "privileges or immunities" argument might have been the worst argument to come with. There hasn't been a successful "privileges or immunities" clause argument since 1873.

If no one tries it, there will never be a successful attempt.

PoI isn't just there to fill some extra space they had on the page. At some point, some court is going to have to concede that it means something.

OTH, one of the definitions of insanity is doing the same thing over and over again, and expecting a different result each time. If "privileges and immunities" arguments have failed repeatedly for other cases, there is no logical reason to expect that the court would treat it favorably this time — whereas incorporation under the 14th has been successfully used for other Bill of Rights cases.

IANAL, but that just seems to make sense to me. Gura is a brave man, but just from what I've read about his preparations for and deliver in Heller, he's also a little bit of a loose cannon. At least, that's how it appears to me.

That was my point really. Not so much that "P or I" should or should not have been argued, rather it hasn't succeeded in 140 years so it was VERY doubtful that it would this go around. I understand that by going the "P or I" route the 2nd amendment would be applied as a whole rather if you go the Substantive Due Process route, it might be applied in part. And as Charles said, he just wasted time although after reading the transcript it didn't seem to damage the argument.

[casingpoint]

Gura's argument was headed somewhere but the Justices ended up cutting him off and he never got to flesh it out

Gura certainly fleshed out his PorI argument in depth in the Petition for Writ of Certiorari.

The Privileges or Immunities clause is the correct vector for incorporation. And that will become painfully evident as the Court moves towards a decision in MacDonald v Chicago. Methinks some of the justices are in denial. They'd better shake that off. They've already got considerable mud in their eyes after the atrocious Kelo v. New London outcome.

[chabouk]

The $200 NFA tax imposed in 1934 is no different than a poll tax, or requiring a fee to exercise free speech.

I was thinking about that $200 tax. I saw on an inflation calculator that $200 in 1934 is almost $3300 in today's dollar.

It amounted to a 100% tax on the Thompson submachinegun, which cost roughly $200 at the time.

Of course, it amounted to a thousand percent tax on sawed-off shotguns.

[casingpoint]

The Petition for a Writ of Certiorari in MacDonald in which Gura makes his case for incorporation under the PorI clause can be found here :
http://www.chicagoguncase.com/wp-conten ... ition1.pdf" onclick="window.open(this.href);return false;

If the Supremes fail to do just that, this court will forever be portrayed in legal history as the Band Of Idiots.

[chabouk]

The Petition for a Writ of Certiorari in MacDonald in which Gura makes his case for incorporation under the PorI clause can be found here :
http://www.chicagoguncase.com/wp-conten ... ition1.pdf" onclick="window.open(this.href);return false;

If the Supremes fail to do just that, this court will forever be portrayed in legal history as the Band Of Idiots.

When it comes to P&I, they've been exactly that since 1873.

[grad_Student]

"P or I" is dead guys, no way will SCOTUS even THINK about bringing it in under "P or I", it's coming in it's coming in under Substantive Due Process. I appreciate Gura's argument but it's not going to work.

[casingpoint]

I reckon it doesn't matter how the Second gets incorporated, except that grad_student mentioned earlier that under the due process method, the whole right might not make it to the table. Pray tell, how does that work?

[jimlongley]

I reckon it doesn't matter how the Second gets incorporated, except that grad_student mentioned earlier that under the due process method, the whole right might not make it to the table. Pray tell, how does that work?

First we have to define what "Due Process" is. Due Process could be the legislature passing a law, so the legislature passing a law that says possession of ANY firearm between Midnight Saturday night and Noon Sunday, might be "Due Process".

Get my drift?

This is why I am disappointed that Gura went for P & I, which almost forced the NRA to jump in with Due Process, totally ignoring direct incorporation, which would have been the best. Not saying SCOTUS would have gone for direct, but the history of P & I and the decisions since 1873 made the likelyhood that SCOTUS would go that way something between slim and none.

[grad_Student]

I reckon it doesn't matter how the Second gets incorporated, except that grad_student mentioned earlier that under the due process method, the whole right might not make it to the table. Pray tell, how does that work?

I would try to explain better but even the substantive DP stuff is even over my head. The best way I can explain it is when SCOTUS affirms a right onto the people through the 14th amend, they make it a fundamental right. Some of these include right to parentage, right to upbringing of children, right to education of children, right to die. Now sometimes the courts give rights through the 14th amend but they aren't fundamental, i.e. quasi-fundamental rights. These include right to abortion and right to homosexuality.

If a right is fundamental, the court applies a strict scrutiny test. Generally, if the states try to burden the right in anyway, it will probably fail strict scrutiny. Rights that aren't fundamental, the court applies a rational basis test. Generally if the states try to burden the right they only have to prove that the burden is rationally related to some governmental goal. Rights that are quasi-fundamental, the court applies whatever test is makes up. In abortion it was the "undue burden" test, in others it was an intermediatary scrutiny and the court could wiggle around whether or not they agreed with the State burden or not.

I know that was confusing and it even confuses me but the goal of incorporating the 2nd is to make it a FUNDAMENTAL right so the courts have to apply a strict scrutiny test and limit (almost) ALL State burdens.

Hooray Conlaw lesson of day!

[casingpoint]

the goal of incorporating the 2nd is to make it a FUNDAMENTAL right so the courts have to apply a strict scrutiny test and limit (almost) ALL State burdens.

Well, grad_student, I'm not sure about all the other stuff, but I do like the sound of that.

However, fundamental rights may also be subject to other types of scrutiny:http://www.accessmylibrary.com/article- ... ights.html

SCOTUS ruled out the reasonable standard in Heller, but there may exists a gray area between that and strict scrutiny the courts could recognize. Such as the heightened scrutiny mentioned in Heller. Curiously, the Seventh Circuit that originated MacDonald and the Ninth Circuit both recently indicated strict scrutiny should be applied in Second Amendment cases.

Scrutiny will probably not be an issue in this case. I reckon that's around the next bend in the long road ahead.

[grad_Student]

the goal of incorporating the 2nd is to make it a FUNDAMENTAL right so the courts have to apply a strict scrutiny test and limit (almost) ALL State burdens.

Well, grad_student, I'm not sure about all the other stuff, but I do like the sound of that.

However, fundamental rights may also be subject to other types of scrutiny:http://www.accessmylibrary.com/article- ... ights.html

SCOTUS ruled out the reasonable standard in Heller, but there may exists a gray area between that and strict scrutiny the courts could recognize. Such as the heightened scrutiny mentioned in Heller. Curiously, the Seventh Circuit that originated MacDonald and the Ninth Circuit both recently indicated strict scrutiny should be applied in Second Amendment cases.

Scrutiny will probably not be an issue in this case. I reckon that's around the next bend in the long road ahead.

Exactly on point with the other types of scrutiny. I just fear with a less than strict scrutiny it gives courts too much wiggle room to make decisions that could limit a full right, whatever that right might be. I know that the Justices were arguing what the right exactly was, whether it was a right to own a firearm or a right to defend oneself in their home.