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2nd Amendment Case McDonald v Chicago Oral Arguments Occurred Today Before the United States Supreme Court

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:

Analysis: 2d Amendment extension likely
McDonald v. Chicago, 08-1521, Argument recap

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

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