Oral Argument in
McDonald v. Chicago

Supreme Court rips both sides a new one

Outlook seems good for protection of Second Amendment
but both attorneys leave with their tails between their legs.


Oral arguments made on March 2, 2010
See our eyewitness reports

This analysis posted April 13, 2010

by Alan Korwin, Publisher
Bloomfield Press

In reviewing the oral-argument transcript for the McDonald v. Chicago case, I can see now why some was so hard to follow in the courtroom. Aside from bad audio in the room during parts, much of the dialog depended on knowing other cases everyone referred to. If you didn't know the case, you couldn't tell what they were talking about. The Justices didn't miss a beat. I missed several. Also, a lot of the dialog was in sentence fragments, disjointed, poorly thought out, and hard or impossible to assemble meaningfully.

In order to understand the analysis below, you need to know about the Slaughterhouse case, the 14th Amendment's Due Process and its Privileges and Immunities clauses, and pre-argument strategies. You can find them in plain English here (our amicus brief described) and here (eyewitness reports from orals).

I use some shorthand below -- RKBA (right to keep and bear arms), P&I (Privileges and Immunities clause of the 14th amendment), 2A (Second Amendment), 14A (14th Amendment). I've also pulled excerpts, which means they are de facto out of context, and I've edited them for good-reading grammar, so exercise caution if you decide to use these as pull quotes.

Before I begin let me say I like Alan Gura, consider him a friend, and marvel at his accomplishments so far in the gun-rights battle. In the end I think we will be OK with this case, enough Justices seemed to lean toward protecting 2A, but it's probably not an oral argument Alan will look back upon as his finest hour. He does not shine well in my analysis that follows, because he got such a serious whupping from the Court. That's just the way it is.

They rejected his core arguments. They threw him lifelines more than once but he either didn't recognize it in the heat of the moment, or chose not to grab on for dear life. I believe he has a stellar future for himself and for us, but this black hole sucked all the oxygen out of our lungs. In the chatter afterwards, many of the assembled experts hung their heads and confided about how dismal it appeared to them. I saw little with which to disagree.

--

 

ORAL ARGUMENT  ANALYZED
ORAL ARGUMENT  ANALYZED

 

March 2, 2010, WASHINGTON, D.C., U.S. Supreme Court -- Gun-rights attorney Alan Gura wasted no time jumping right into a pitch to revive and apply the Privileges and Immunities clause for protection of the Second Amendment. Due Process, he said, was plain and faithful, but P&I was "even simpler." Boy did he get that wrong.

Barely one minute into this approach, Chief Justice Roberts told Mr. Gura that overturning the 140-year-old Slaughterhouse case was, "a heavy burden for you to carry." Gura didn't take the hint, and immediately replied that should not set precedent if it was "extremely wrong." Most people, going into this, agreed it was a terribly decided case, and presumed, as did Gura, the Court was ready to abandon it at last. Wrong again.

New Justice Sotomayor joined the fray, asking how our concept of "ordered liberty" had been badly affected by Slaughterhouse, citing a few examples of where states got along just fine without P&I, like using courts instead of an incorporated P&I approach, for "regulating the use of firearms," and not being required to use grand juries, among other examples.

Ginsburg was next, with a phrase my ears could not believe had just resounded in those walls. Asking Gura to clarify his conception of P&I, she asked if he believed our right to keep and bear arms would exist under P&I, "even if we had no Second Amendment?" No Second Amendment? Gura replied, "That is correct," implying the right was so fundamental it would exist as a basic right of citizenship.

Ginsburg pressed on, seeking a list of what other "unenumerated rights" P&I might include in Gura's conception of it. That was the 4th attack on Gura's P&I plan in about as many minutes. This theme continued from the Bench: If we the Court deign to incorporate P&I concepts and overturn Slaughterhouse, just what are we doing? What's included in such a bold step? Tell us please.

Gura didn't seem to have an answer, and rambled and hedged on this issue more than once. He hemmed and hawed. It seemed to me he was not ready to answer what in retrospect turned out to be their most basic issue. What are you asking us to create if we abandon Slaughterhouse and breathe life into the nearly dead Privileges and Immunities clause? That seemed to me the nub of Gura's problem during oral argument.

Justice Scalia tried to save him three times in a row. Is it easier to bring 2A under P&I than "under our established law of substantive Due (Process)?" Before Gura could respond, Scalia asked again. Gura stammered, perhaps.. text... history... public understanding... "No, no." Scalia insisted. Forget whether Slaughterhouse was right or wrong. Is it "easier to get 2A adopted with respect to the States," under P&I. Three tries in a row it seems he tried to get Gura to change tracks.

Gura replied he supposes the answer is no, so Scalia interjects again. Then why ask us to overturn 140 years of prior law? Especially since you can reach your result more easily under Due Process... "Unless you are bucking for a place on some law school faculty." And that drew guffaws from the otherwise silent packed house. Gura said he isn't attempting to go back to law school. So, "Why do you want to undertake that burden?" Scalia continued. And I'm thinking, c'mon Alan, take him up on it. Scalia asks yet again, why not go straight for Due Process, which even he (Scalia) would support? to more laughter.

And still Gura didn't take the fork in the road offered him now ten times by my count. With "but" in his voice, Gura allows, "We would be extremely happy if the Court reverses the lower court based on the substantive Due Process theory that we argued in the 7th Circuit." And if only the 7th had done that, we wouldn't be here now, he continues. Ginsburg reminds him that the 7th hasn't got the prerogative to do that, and asks again, "What other enumerated rights?" She, the Court and the whole room wants to know what can of worms are they opening with this whole P&I business Gura is pressing.

Gura stalls and rambles again, and finally suggests rights in the 1866 Civil Rights Act; he said rights of American citizenship include: to make and enforce contracts, sue, give evidence, inherit, purchase, lease, sell, hold and convey real and personal property. Ginsburg asks wryly if married women had those rights. It's increasingly apparent the Court is way not happy with this idea of resurrecting undefined and unknown unenumerated rights that have been interred for so long and Gura is struggling to resurrect, or at least frame.

Ginsburg then attacks the whole concept of RKBA, saying, "A lot of free societies have rejected the right to keep and bear arms." Gura's reply is wan: England is a free society but a monarchy with hereditary lords and no First Amendment. She has pushed him into a losing comparison of international law and he took the bait, instead of standing on American exceptionalism. Ginsburg reiterates, "It's not basic to a free society." That's three direct attacks on the RKBA from her. This woman has demonstrated little taste at all for the right to keep and bear arms.

Scalia attempts another interjected save, and for the 13th time by my count, recommends reliance on Due Process, and again, Gura agrees weakly... and goes back to Slaughterhouse!

Stevens pipes up at last, and wants Ginsburg's earlier question answered. "What if there were no Second Amendment?" This is becoming actually painful to hear in chambers. Stevens must hear me thinking, so says it again, would Due Process protect a non-existent 2A, along with P&I. "It would be, your honor."

The whole 2A, Stevens asks? Or merely, "A homeowner's right to keep a gun for self-protection against intruders into the home?" And a third time, "without the Second Amendment." Before Gura can fully reply, Stevens says, "I'm assuming we don't have a Second Amendment," to assess the breadth of due process. And here again, the question Gura hasn't been able to address. "What is the scope of the right to own a gun that is protected by the Liberty Clause," of 14A? "Is it just the right to have it at home, or is it the right to parade around the street with guns?" Ouch. Our right to arms is so dependent on what these black-robed high-chaired people believe, and apparently so little dependant on what a free person's rights are or should be.

The eighth mention of no Second Amendment comes from Gura, as he attempts to establish that the right to arms would exist without enumeration in 2A, and virtually in the same form as with it. That's a real stretch in my opinion. The Ninth Amendment protects everything not enumerated, and look what it protects -- precious little and all ephemerally. We are damn lucky the Second Amendment spells out the right to arms.

Roberts and Kennedy then explore how much of an enumerated right should be incorporated -- just its core, or every decision based upon it since its adoption. All of it, Gura opines, so Breyer enters the fray and asks how that would work.

He raises an interesting point in answering his own theoretical question, a very Breyerian move. Without incorporation, state legislatures decide about gun regulation. With it, federal judges would decide. And then out of the blue he says it's all about statistics. "One side says a million people have been killed by guns." Against that he says Chicago believes their gun ban has "saved hundreds... including lots of women in domestic cases." At least he allows briefly that the other side disputes this.

He compares the problem, somehow in his mind, to "free speech versus life." "Every case will be on one side guns, on the other side life," and appeals again to statistics to balance "life versus guns." He could hardly be more misinformed or less logical, but that's his way on this subject. Still, his point on state legislatures versus federal judges is food for thought.

He challenges Gura directly on a Chicago gun ban versus saving life, how do you decide that? If only Gura -- or anyone -- would inject that the whole value behind firearms is that guns save lives, but it is not to be. Gura says don't look at stats, look to the Constitution. Fair enough. You mean the city can't ban guns even if that would save hundreds of lives, Breyer wants to know? Gura says the city is banned from creating such a ban. Nice declarative response.

Having left Breyer's inane statistics test intact, Scalia is in again with a save. "We don't resolve questions like that on the basis of statistics, do we?" That's correct, Gura replies. Scalia continues to in effect discredit Breyer's approach, and refocuses on the constitutional right we're trying to identify here and protect. He points out that this was settled in Heller. Scalia continues to protect Gura from Breyer's inventions, Gura points out that enumerated rights are "entitled to a greater measure of respect," and he asks to reserve the balance of his time for rebuttal. I made it five minutes remaining. Thank God this inquisition has paused.

--

And thank God for Paul Clement, the NRA's attorney who requested and received part of the oral argument time from Gura, to make the case for incorporation under Due Process instead of the -- now we can see incredibly bad approach -- of a revived P&I clause. He opened with a simple straightforward statement that basically saved the day, and moved the Court to where it apparently wanted to be.

"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 the Fourth, protects a fundamental preexisting right that is guaranteed to the people."

He proceeds to answer Stevens that yes, all of the jurisprudence associated with the Amendment would be incorporated as well. What was the last case where we did that, Stevens inquires, and Clement says probably Mapp, a case I was totally unfamiliar with, and which played into some of what follows (it's a search and seizure and admissible evidence case from 1961). They also continued to split hairs about the difference between procedural Due Process and substantive Due Process that I'll skip here.

Clement commanded the floor and ended up with great latitude to make his points without interruption, and yes, for example, First Amendment incorporation meant that Times v. Sullivan was now the law in all 50 states. Scalia supports Clement's thinking, so Clement can agree with him, and point out that, "textual provisions of the Bill of Rights stand in a favored position with respect to incorporation." Stevens concurs, and raises subtle differences in favored positions for one right over another. This allows Clement to exposit on the subject for nearly three pages without interruption.

He makes a marvelous case for what a truly fundamental right is. Cruikshank, he notes, dismissed the First and Second Amendments as not privileges of national citizenship, because these preexisted the Constitution and so didn't depend on it for their existence. In other words, privileges or immunities of citizenship are related to the existence of the nation, established by the Constitution. More fundamental rights exist, and existed beforehand, without any constitution to make it so.

Clearly then, 2A sits in that tremendously more fundamental category, which is what the Due Process clause is used to protect. And perhaps fortunately, incorporating 2A would not bring along a lot of jurisprudence at this point in time. In fact, only Heller, he suggests (though perhaps there's a bit more than that). You certainly wouldn't want a federal version and a "shadow version" for the states. It would appear to be wise to incorporate 2A in the same manner as you have incorporated other rights under Due Process.

"I think if you compare the First Amendment and the Fourth Amendment to the Second Amendment, they have the same textual guarantee to the people, they trace their origins to preexisting rights back to the English Bill of Rights, back to even earlier constitutional history." In this sense, "the case really is very straightforward."

Stevens suggests incorporation could be substantially the same, but doesn't have to be exactly the same. The Court hasn't even had an incorporation case for more than three decades. I think he's got something in mind, but he doesn't reveal what it is. Clement reiterates that complete incorporation is the right way to go.

Chief Justice Roberts wants to know how far this all goes, and I think they agree that the states will confront situations that the federal government would not and vice versa. National Parks is provided as an example. There is room to incorporate the basic guarantee, and thrash out the rest later.

They go back and forth over precedents, in some half sentences, references to Justices Harlan, Black, the first Justice Harlan, which approach to take... Breyer jumps in to bang on the militia clause of 2A, and why or how you would incorporate that against the states, how scholars read Blackstone, it's a right to raise an army, a point with some merit. It's a little hard to follow these few minutes. Then time runs out. Roberts allows Clement to respond and wrap up.

"I think the majority read Blackstone actually as being primarily concerned with the self-defense right, which goes a long way to understand why the Heller decision came out the way that it came out.

"And I would simply finish by noting that the one thing that I think we can come to a conclusion about Blackstone is the very fact that Blackstone dwelled on the right is good evidence that it's a fundamental right that should apply to the States."

Nice summation. Clean, simple, direct -- and Clement asked for the result he wants.

--

Without pause, the Chief Justice calls attorney James Feldman up to argue for Chicago, which seeks to maintain its denial of gun rights to its citizens. He begins.

"The Second Amendment should not be incorporated and applied to the States because the right it protects is not implicit in the concept of ordered liberty. States and local governments have been the primary locus of firearms regulation in this country for the last 220 years.  Firearms unlike anything else that is the subject of a provision of the Bill of Rights are designed to injure and kill. And the very same features that make firearms valuable for self-defense as the court noted in Heller..."

He doesn't get to finish the thought, when Scalia jumps in. But Feldman has put out his core belief, which he will repeat repeatedly. Firearms are "not implicit in the concept of ordered liberty." If that's the best he's got, it seems to me, he's in trouble from the get go. He is.

Scalia seems annoyed, "When is the last time an opinion of ours made that the test, 'implicit in the concept of ordered liberty'"? Six different cases are named and tossed about in less than one page of transcript. The back-and-forth is quick and less than clear. Feldman stutters. He's under a barrage worse than Gura endured. He argues with Chief Justice Roberts, asking, "What restrictions did the framers of the Second Amendment impose..."

Kennedy says if 2A is not fundamental -- an individual right which was the public meaning at adoption -- then Heller was wrongly decided. Feldman's reply is unintelligible to me. Roberts says you can't read Heller and not come away seeing that 2A, "was extremely important to the framers in their view of what liberty meant."

Maybe it's just me, but Feldman's portion of the argument goes on, sometimes at length, in unintelligible, or hard-to-find reasoning. It seems at times like he and the Justices are speaking at cross purposes, they don't understand each other either. I could waste space and quote some. See pp. 34 and 35 of the transcript for examples.

Roberts comes out and tells Feldman that some of his points will become grist for regulation of 2A if it is incorporated, dangerous ground as far as I'm concerned. We may get incorporation, but where the bounds of 2A lie, and what constitutes reasonable regulation, a recurring them in the latter half of orals, is a civil-rights minefield. Roberts suggests a ban on concealed carry might fall into that morass. Feldman states that the related self-defense right has always been subject to the political process.

Scalia tries to pin Feldman down on whether a complete state ban on firearms would be permissible, but Feldman shucks and jives at length without a definitive answer. No state has ever attempted that, he asserts. He grants that there is a substantive right to self defense and a complete ban might infringe that right. I got the feeling his clients would not be happy with some of the positions he took. There's more than a few "what-do-you-mean-by-that" remarks from the Bench. They grill him on a state's ability to completely abrogate your right to arms.

Breyer jumps in with some fantasy, "let's make up an imaginary importance of ordered liberty chart." If "the right to bear arms is there to shoot burglars," he would put it low on the chart, and maintaining a militia would be high on the chart. That guy is a piece of work. Which of these would Madison think is suitable to incorporation. Sheesh. Feldman, to his credit, blurts out that resolving this would be impossible. Alito asks if we could make such a chart for any other incorporated Amendments.

Some of this just gets almost silly. Roberts presses Feldman real hard for a yes or no answer on whether an incorporated amendment is all in or all out in a concept of ordered liberty, or if there's a partial position. Feldman doesn't want to answer and Roberts won't relent, so they joust. I'm not even sure what Feldman's position finally is.

Scalia points out that 11 colonies had an RKBA guarantee when the Constitution was adopted, and 44 states have one in their Constitutions, and asks Feldman if that says anything about how fundamental this right is. Feldman dodges, disagreeing with the Justice's facts, and pointing out reasons to think otherwise, like the conditions placed on those guarantees. Not a wholly unreasonable stand. He quickly interjects that the same features that make guns useful for self defense means they can be used for crime, suicide and accidental death, so regulating them is part of our tradition.

Scalia fights back: "What's the purpose of a State constitutional guarantee which has at the end of it 'subject to such regulation as the legislature may proscribe,' if that regulation includes banning it entirely? That -- that would make a nullity of the constitutional requirement." Feldman has been tacitly and explicitly trying to justify an absolute handgun ban under the right conditions, and he fights back here with "reasonable regulation" arguments.

Do the states have to allow firearms, Scalia asks? No, Feldman responds. After some stammering, "you can't ban all kinds of firearms, but you can ban some kinds of firearms." To which Scalia says, "Fine... We said as much in Heller." And if you review that case, you see they did. Feldman points out that Bowie knives and other arms have been barred by some states, but he admits that Heller made clear "a ban on handguns is invalid," and then suggests lower bans, like on sales, carrying anywhere, manner of carry, have been used to get at a total ban.

"It's a right that gets controlled in accordance with local conditions, with local cultures, and with local views about the necessarily difficult questions about how best to protect public safety." That is at the heart of Feldman's appeal. And it carries good weight in an appeal to principles of federalism and states' rights. And Kennedy agrees, as most of the Court seems to, that, "The States have substantial latitude and ample authority to impose reasonable regulations," so why can't that be used instead of a full ban.

I don't need to tell you that "reasonable" is all too frequently not reasonable to an avid gun-rights supporter. Stop the criminals? Fine. Stop thee or me? Not so fine.

Feldman repeats that a handgun ban has been and would be considered acceptable "to achieve public safety" and to "increase the zone of ordered liberty." None of the players, in the entire hearing, pointed out that the main valid day-to-day purpose of handgun possession is to enhance public safety. It all leans to guns are bad, and omits the guns are good portion of the argument. Ugh.

Like all places with bans on the civil right to arms, Chicago's crime is inversely affected by its ban -- the tighter the ban the better for criminals, the worse for residents, and the more crime can rise. The statistics and anecdotes are overwhelming. Chicago's ban has not disarmed the criminals. None of this makes it into the orals.

Scholar John Lott reports a 25% drop in the murder rate after D.C.'s ban ended. "In the five years before the ban, Chicago’s murder rate fell by 28 percent relative to those counties. (County level crime data only goes back to 1977.) In the five years after the ban, Chicago’s murder rate doubled relative to those other counties. The patterns are also similar when Chicago's or Washington's murder rates are compared to other large cities or the U.S. as a whole, where gun laws are much less strict." We're running a sale on his book More Guns Less Crime.

Kennedy wants to know if they can incorporate just the core of 2A as put forth in Heller. Feldman waffles, so Stevens says, sure, it applies only within the home. "The Court has ample precedent for that." Roberts steps in to clarify and fend off Stevens' sly attack. He asks Feldman if Chicago intends then to base its position on the dissent in the Griswold case (which would be untenable and silly), and Feldman wisely says no. And then he waffles some more.

Scalia pounces again, noticing that Feldman has argued to allow for self defense, which is not explicit in the Bill of Rights, but to deny the right to keep and bear, which is explicit. He has caught him in a striking contradiction.

Sotomayor makes this astonishing remark: "Would you be happy if we incorporated it and said, reasonable regulation is part of the incorporation? And how do we do that?" Her voice in the final decision is going to be very interesting indeed.

Feldman thinks the reasonable-regulation standard is a fine model. Ginsburg notes that Heller already allows for this, with some examples in that decision. Feldman repeats a handgun ban is reasonable if long guns are allowed, to "balance the need" for self defense, and reduce the risk of violence, suicide and accidental death. Scalia concludes Feldman is arguing for a stricter federal 2A and a weaker state 2A. He says gun-control advocates are going to find this a "mixed blessing," almost chastising him for his clients, from the Bench.

Feldman concludes that, "the restriction that the Second Amendment imposes on the Federal Government should be and is controlled by what the meaning of the Second Amendment was in 1791. It shouldn't vary one way or the other with whether there is incorporation against the States." And now his time is up.

Roberts turns to Gura and tells him he has three minutes left. He doesn't get to use it to his advantage, as the Justices pound him with questions, eating up the time.

They want to know what privileges and immunities Americans have, so they know what they're dealing with if they open that Pandora's box. The answer is less than robust. He points to jury trials and grand juries, but they're less than enthused. They press and press. Alito throws in the right to contract, and Gura agrees after having said a full list cannot be assembled. They argue over how wide-ranging P&I would be compared with Due Process. They seem to think it's an open ended pit, he seems to think it's got neat constraints. Gura concludes, "In 1868 the right to keep and bear arms was understood to be a privilege or immunity of citizenship, and if the Court is considering watering down the Second Amendment perhaps it should look to text and history."

That's it. "The case is submitted."

Now we wait.

We're hustled out of chambers, so the next case can begin,
and it starts while we're still exiting.

A decision is expected in June.

We'll be looking for the word "reversed," meaning the lower court ruling which supported Chicago's ban is overturned, and Chicagoans will be free once again to exercise their rights under the Second Amendment. What those rights are exactly is in flux. And without doubt, the "officials" who run Chicago will do everything they can to resist and contravene the decision, if it is designed to restore the rights of Americans living in the windy city.

"We have the right for health and safety to pass reasonable laws dealing with the protection and health of the people of the city of Chicago," mayor Daley said. Of course, Daley doesn't have the right to do anything in this regard, he has delegated power only, and that power has not been and cannot be constitutionally delegated to him. Politicians, police and officials frequently speak of the rights they have to command you. They only have powers to act that have been lawfully delegated to them. We live in interesting times.

 

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