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The US Supreme Court heard oral arguments on McDonald vs Chicago, and while the transcript is 77 pages longs, it makes for an interesting read.  It seems all but certain that that court that SCOTUS will rule that the Second Amendment is incorporated via the due process clause of the Fourteenth Amendment.

In the initial pages of the transcript it appeared as if the Petitioners lawyer Alan Gura, was woefully unprepared, as he was arguing for incorporation via the Privileges and  Immunities clause of the Fourteenth Amendment, which nobody on the court seemed even remotely interested in considering.  Not just because it essentially runs contrary to about 140 years of law, but also because justices were concerned about just how many other rights would come along with that sort of incorporation.  In retrospect though, I think Gura\’s argument was more skillful framing than anything else, as it essentially made incorporation via due process seem like the measured and reasonable option.

Most of the debate seemed to center just how much jurisprudence comes with the Second Amendment in it\’s incorporation, to which both Clement (NRA) and Gura argued, that\’s of minimal concern because short of Heller, there really is no jurisprudence regarding the Second Amendment at the moment.  It\’s difficult to gauge how much traction that argument got, because the argument generally seemed to focus on several other points.

On one hand Heller essentially related strictly to the use of a handgun in self-defense in ones home, so does incorporation just relate to that narrowly defined definition of the Second Amendment or a broader understanding of what it means to keep and bear arms.  To that end, it seemed pretty firmly established by even the liberal bloc of the court that the rights to keep and bear arms and of self defense preceded the Bill of Rights and would exist even absent a Second Amendment. Despite several Justices demonstrating some discomfort with incorporating a broad view of the Second Amendment, the point was made several times that it would be unwise, and contrary to court history, to establish a Federal understanding of the Second Amendment, and then a watered down version that applies to the States.

The lawyer, Feldman, representing the city of Chicago was worse than ineffective in the argument, with even the liberal bloc of the court, stopping just short of openly mocking his arguments.  It was clear that Feldman was never really able to argue his point because he was continuously interrupted by Justices pointing out flaws in the basis for his arguments.  In fact at several points, Feldman seemed to try to revist Heller and argue against it\’s findings…a position that did not find any support amongst the Justices.  Even Justice Kennedy, whose support is critical to any pro-gun-control victory, seemed a little irritated by the suggestion that Heller might not say that the right to self-defense was not a fundamental right.

Eventually, Feldman\’s arguments seemed to eventually boil down to \”Sure I\’m wrong, but guns are icky\”.  A viewpoint which was roundly dismissed by Scalia who pointed out that this case shouldn\’t be decided on the basis of statistics, but rather determining what the minimum constitutional right was and everything above that is up to the States.

To be quite honest, it was sort of hard to gauge the thoughts of the liberal bloc of the court, since the argument of Feldman was such a disaster that none of the more liberal Justices really had a chance to argue for their likely view of the issues.  Trying to navigate Feldman\’s ramblings was futile and counter-productive to trying to make a statement for a gun-control approach to the issue.

In summary, it seems that incorporation is a slam dunk via the due process clause.  How much of the Second Amendment is codified by this ruling is probably the point of dispute at this point.  While it seems likely that SCOTUS will find a Second Amendment broader than that defined in Heller is incorporated, it remains to be seen how broad that is.  In fact, Chief Justice Roberts seemed to revel in the mystery  of that, pointing out several times that they\’ve never said anything of the content of the Second Amendment beyond what is in Heller.

The issue of \”reasonable regulation\” was barely touched, and seems destined to not be addressed by this case.  It seems likely that the eventually finding will cite a very loose definition of the Second Amendment as it\’s incorporated against the States, and leave it to lower courts to define what constitutes reasonable, as there is existing case law defining \”reasonable regulation\” for other rights.

I would expect this to be one of the last cases decided by SCOTUS, because while there was broad agreement on the overriding issue, the details seemed to be a source of a lot of speculation by the Justices.  Of course, I could be wrong on that last point, because like I pointed out, getting a read on the liberal bloc of the court was exceedingly difficult.

[Crossposted at True North]