McNuggets
Some McDonald case blurbs:
Kevin looks over the transcript.
Xrlqy Wrqly will welcome Chicago back into the union.
Kopel looks at “reasonable regulation”
Orin Kerr has a few thoughts.
As to what I think? I think it went for the good guys and we’ll get five justices to say that states/locales cannot ban guns. The P&I argument seemed to to lose steam really quickly but the due process argument will hold. Gura did an excellent job. He went for the gold. And NRA’s lawyer brought up the rear, ensuring a silver.
Gura to the “wise latina”:
Justice Sotomayor, States may have grown accustomed to violating the rights of American citizens, but that does not bootstrap those violations into something that is constitutional.
Word.
March 3rd, 2010 at 10:17 am
You’d said a while back that the NRA is trying to save gun rights, while Gura is trying to save the Republic.
Reading that quote to Sotomayor in that context makes it even more meaningful.
March 3rd, 2010 at 10:30 am
Balls. Of. Steel.
March 3rd, 2010 at 10:31 am
Yes, Wizard, but the court will have none of that.
March 3rd, 2010 at 10:38 am
Gura’s statement to Sotomayor should be printed on a T-shirt. I’d buy one!
March 4th, 2010 at 5:05 pm
Gura did an excellent job. He went for the gold. And NRA’s lawyer brought up the rear, ensuring a silver.
I’m not buying that, at least not uncritically. After having 10 minutes carved out and being called a liar on being prepared to argue due process, Gura had no choice but to focus on P&I only. And he’ll be the one to be accused of sour grapes if he makes too much of that now. Which is a neat trick by the NRA really, they get to claim the credit, and can’t get called out for dirty pool.
March 4th, 2010 at 9:44 pm
Focusing entirely on P or I was understandable given how the time was divided. However, given the way he argued P or I, I’m actually kind of glad he wasn’t the one responsible for arguing DP. He made a lot of strong argument but there were some boners, too. Suggesting that the RKBA would be the same without a Second Amendment as with, for example. Please! Without a Second Amendment, the most we could plausibly argue is the wimpy common law RKBA, which extends only to Protestants and is good only against the crown. Ask the Brits how much that right gets them nowadays.
March 4th, 2010 at 11:42 pm
Incoporating by the “P & I” clause means the words “shall not be infringed” come along with it. Incorporating by “due process” means the states or cities can use due process to kill any practical effect incorporation may have.
It’s really simple and the court is going for another Heller.
I am opposed to the use of the 14th amendment, Hell, I’m opposed to the amendment. The rest of the constitution is crystal clear, and every state had to agree to abide by it to become a state. The 14th says “you gotta do watchya said ya wud do, but if ya don’t, hey, we got nothin’. anyway we may not like some parts of liberty under the rest of the constitution so, we’ll use the 14th like a chinese restuarant menu.”
It’s a pretty sorry state of affairs when reliance on a subsequent amendment is required to honor the original plain as day “shall not be infringed” amendmnent. Yeah I know we should feel fortunate that we are getting a second bite of the apple. And I would, if I didn’t recognize the fact that like the Heller decision, this one too is subject to be only correct enough to forestall armed insurrection without really dismantling any of those prohibited infringements.
Infringements from which we had already been indemnified by the second amendment that was part and parcel of the original document. The original document which every state was compelled to honor as regards the rights of citizens anywhere and everywhere in the United States. Look it up.
Sorry, I can’t get too excited that much will change. I remember the road map provided to abusers in Heller. I also remember Kelo. I am not inclined to place much trust in people who can arrive at either decision.
The justices asked one question repeatedly of Gura and Clement and both missed their opportunity to clarify the issue.
The question in various forms regarded whether a right incorporated against the states had to be incorporated in its entirety or would piecemeal and/or altered versions of those rights (meaning restricted) be justified.
Both attorneys missed the answer. Of course, every time Gura tried to answer some black-robed nancy boy interrupted him. However, the response should have been simple. Incorporation had to be complete and identical to the federal right as laid out in the constitution because to incorporate the 2nd amendment means the words “shall not be infringed” must also be incorporated. Anything else is a defacto amendment to the constitution requiring a constitutional convention and very high requirements for ratification.
Secondly the court is determined to maintain the myth of infallibility even if they must endorse bad law (Slaughterhouse) using the stupid excuse that “It has been wrong for 140 years and has become sacred”.