Posted by
Defend America on Tuesday, March 02, 2010 7:10:45 PM
Volokh Conspiracy breaks down the oral arguments today:
Based on a quick read of the
oral argument transcript, a few things stood out:
1. The Privileges or Immunities arguments never really got off the
ground. None of the Justices seemed in favor of that approach, at
least based on the questions. (Justice Thomas, as is his custom, asked
no questions.) Only about 10–12 minutes of the questioning even
concerned the P or I route, and the questioning seemed mostly focused
on trying to understand the nature of the claim. For my VC co-bloggers
and many VC commenters who hoped today would signal the beginning of
the libertarian constitutional revolution, there doesn’t seem to be
much room for optimism.
2. Justice Stevens, often the liberal Justices’ primary strategist,
seemed to have a plan to join on the theory of incorporation by Due
Process but then to water it down as applied to the states. This
revisits an old debate on the incorporation doctrine about whether
incorporation applies the Bill of Rights to the states “jot for jot” or
only applies the core protections of the right to the states. Given
Stevens’ questioning, my guess is that the liberal Justices may try to
band together and offer Kennedy a less protective version to apply to
the states. I read Justice Kennedy’s questions at the bottom of page
13 and on pages 53–54 to suggest he is pretty skeptical of that
approach.
http://volokh.com/2010/03/02/a-few-thoughts-on-the-mcdonald-argument/
SCOTUSblog also breaks down the oral arguments:
Lyle Denniston | Tuesday, March 2nd, 2010 11:26 am
Analysis
The Supreme Court on Tuesday seemed poised to require state and
local governments to obey the Second Amendment guarantee of a personal
right to a gun, but with perhaps considerable authority to regulate
that right. The dominant sentiment on the Court was to extend the
Amendment beyond the federal level, based on the 14th Amendment’s
guarantee of “due process,” since doing so through another part of the
14th Amendment would raise too many questions about what other rights
might emerge.
When the Justices cast their first vote after starting later this
week to discuss where to go from here, it appeared that the focus of
debate will be how extensive a “right to keep and bear arms” should be
spelled out: would it be only some “core right” to have a gun for
personal safety, or would it include every variation of that right that
could emerge in the future as courts decide specific cases? The liberal
wing of the Court appeared to be making a determined effort to hold the
expanded Amendment in check, but even the conservatives open to
applying the Second Amendment to states, counties and cities seemed
ready to concede some — but perhaps fewer — limitations.
http://www.scotusblog.com/2010/03/analysis-2d-amendment-extension-likely/
Here is the transcript of the oral arguments:
http://supremecourtus.gov/oral_arguments/argument_transcripts/08-1521.pdf