Some thoughts on oral argument at McD v. Chicago (as per transcript). 1. Kennedy, the usual swing vote, seems to be leaning toward incorporation under due process .. At this point it looks like a victor for McD. 2. As many noted earlier, Gura gummed up his brief with the privileges or immunities argument and that issue gummed up oral argument to an unnecessary extent. No one appears to be buying it (exc. perhaps for J. Thomas who, as usual, said nothing, during the argument). As Scalia noted (p.7) "Why do you want to undertake that burden instead of just arguing substantive due process . . 3. Counsel for Chicago seemed to be in over his head. However, trying to deal with that many different questioners at one time is certainly not easy. 4. Lots of red herrings by Stevens. Bringing up the fact (p. 23) that the 6th Amendment has been interpreted differently when applied against the states as compared to against the federal government, doesn't fly. As counsel (Clement) noted, that case is an "outlier," and is also a procedural right. It is the only right the Supreme Court ever interpreted to be different depending upon whether the defendant was a state or the federal government. 5. Stevens, at one point, had to fall back on Justice Harlan's dissent in Griswold. 6. Breyer wasted time trying to reargue Heller (e.g. pp. 27, 34). 7. Breyer's imaginary chart analogy (p. 43) is one of the dumbest things I've heard from a Supreme Court Justice in a long time. Talk about splitting hairs. One might as well argue about how many angels can dance on the head of a pin. " . . .let's make up an imaginary importance of ordered liberty chart, and we give it to James Madison and the other framers . . ." Has this technique ever been used on any other right that was incorporated? Why start now.? 8. The argument that a right should be incorporated with a test/standard of review built in is a bad idea. The issue of standard of review should be argued and briefed separately after the right is incorporated. I can't recall another incorporation decision where the Court decided both the incorporation and standard of review issue in one decision. Why start now? 9. Equally ridiculous, and Related to 8, is the argument (pp. 13 55,) that if incorporated, the Second Amendment right should be limited to just the holding in Heller, (the core of the right). How do we determined the core? First Amendment jurisprudence would be a lot simpler if the right as incorporated was limited to its "core," (whatever that is).Has any other incorporated right been so limited? Why start now? 10. Worst question and best answer (p. 15): JUSTICE BREYER: To be specific, suppose Chicago says, look by banning handguns not in the hills, not hunting, nothing like that, nothing outside the city, we save several hundred human lives every year. And the other side says, we don't think it is several hundred and, moreover, that doesn't matter. How do you decide the case?" MR. GURA: We decide that by looking, not to which side has the better statistics, but rather to what the framers said in the Constitution, because that policy choice was made for us in the Constitution." 11. Getting to the heart of the case (Clement, p. 18). " Under this court's existing jurisprudence, the case for incorporating the Second Amendment through the Due Process Clause is remarkably straightforward. The Second Amendment, like the First and Fourth, protects a fundamental preexisting right that is guaranteed to the people."
In sum, Stevens et al. seem to be arguing that the exceptional/idiosyncratic approach the Court took to incorporating the Sixth Amendment should be utilized rather than the approach used in all other modern incorporation cases. All sorts of novel charts and qualifications and built in standards should be applied when the Second Amendment is incorporated. What's your take? Ray Kessler Prof. of Criminal Justice Sul Ross State Univ. Ray Kessler Prof. of Criminal Justice Sul Ross State Univ.
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