Belated comment on McDonald vs Chicago

Having regained consciousness after my doctor got his hands on me yesterday, and with a head clear enough to operate heavy machinery again (hey, my laptop IS heavy machinery), I would like a few words on the subject that all the cool kids already commented on.

I have thoroughly enjoyed reading the transcript, and it looks very encouraging. Both Mr Gura and Mr Clement seem to have done a very good job, and even though it doesn’t look like the attempt to resuscitate the Privileges and Immunities Clause will fly, the prospect of incorporating 2nd amendment along the lines of D.C. vs Heller decision, through due process, seems very likely. I would hold my breath till June, if I could.

Mr Feldman, it seemed to me, was in a very tight spot, defending a very silly position and not making much sense doing it – not a smart thing to do in front of people like Justice Scalia:

JUSTICE SCALIA: Is that what you are asserting here, that the States have to allow firearms?
MR. FELDMAN: No.
JUSTICE SCALIA: Is that –
MR.FELDMAN: I — I didn’t think I was.
JUSTICE SCALIA: I didn’t think so, either, so why did your last argument make any sense?

JUSTICE SCALIA: Handguns in the home? Handguns in the home? That’s what Heller addressed?
MR. FELDMAN: They banned — well, not — I can’t say that they banned handguns in the home per –
JUSTICE SCALIA: No, you can’t, because they didn’t.

JUSTICE KENNEDY: Do you think there is existing authority with reference to other provisions of the Bill of Rights that would allow us to incorporate just the core of Heller with respect to the States? Just the core of the Second Amendment with respect to the States, along the lines to this question Justice Stevens was asking earlier?
MR. FELDMAN: Well, I think that there would be –
JUSTICE KENNEDY: And if so, what’s — what case do we look to for that proposition?
MR. FELDMAN: I think really this — I cannot offhand think of a case that would lead you to that.

With beverage alert in effect, here’s a great summary of the oral arguments

And here’s the full transcript

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Published in: on March 4, 2010 at 9:34 pm  Leave a Comment  

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