McDonald Final Thoughts

Although there will likely be no formal ruling from the Supreme Court on the McDonald case for several months, the case is effectively finished for the petitioning and responding parties. It is in the hands of the nine Justices, and is theirs to decide. This makes a good time to reflect on the case, and look over the transcript in more detail, try to read the tea leaves a little, and share impressions.

The most surprising thing to me was how fast the Court, and in particular Justice Scalia and Chief Justice Roberts, put the kibosh on the Privileges or Immunities argument. Not so much because I expected we’d win the day with P or I, but because it seemed in taking McDonald over the NRA case, the court likely wanted P or I argued to some degree. That would appear to not be the case. Perhaps some light will be shed on their reasoning in the opinion, with Thomas being the Justice to watch there, but we may never know why the court took the case it did. I don’t think Alan Gura was wrong in bringing up P or I. It was reasonable to believe the Court wanted to hear that, and this was really the prime opportunity to get the court to rethink its redaction of Privileges or Immunities from the Fourteenth Amendment. Gura had to deal with some pretty rough questioning, but he held it together, and make an excellent case.

Clement’s argument adequately and adeptly covered the easier due process argument. Clement did not seem to face as much questioning from the Justices, I suspect because due process arguments just aren’t as controversial, and are better understood by the justices. The main thread that seemed to be brought here was the liberal justices inquiring about partial incorporation, or as the math geek in me wants to call it, Incorporation By Parts. The idea would seem to be you incorporate part of the right, but leave the rest for another day, or perhaps decline to do it at all. The justification for this is that we’ve incorporated, partially, the Fifth Amendment, with a different standard applying to the states and feds. This could be a potential danger for us when the opinion comes down. We could still have a victory, but on weak terms. That’s not what we want. Fortunately, I think the respondents helped us out there.

James Feldman represented the City of Chicago, who seemed to so thoroughly tie his hands, that they will likely see their worst nightmares realized. The Heller dissenting justices seemed to desperately want Feldman to grab one of their life buoys, and come on board the USS Incorporation by Parts, which Feldman was having none of. It’s very difficult to argue an untenable position, but Feldman tried, I think largely unsuccessfully.

One final matter, I had disagreed with NRA-ILA’s Motion for Divided Argument in this case, and my disagreements were expressed more strongly in private correspondence than was indicated here publicly. Without meaning to detract any from Alan Gura’s performance and arguments, and also retaining hope that in the future there will be a stronger spirit of cooperation, respect and communication in any future cases we’re arguing, I was glad Paul Clement was up there, and I will freely admit here, and to the people I corresponded with, that I was wrong about many of my concerns. Overall, the strong performance on our side by both Alan Gura and Mr. Clement made a strong case for victory. I’m still going to keep my fingers crossed, and I suspect everyone reading this will as well, but I don’t think anyone has anything to feel glum about. I want to again thank everyone who was involved in this case, and who put it together, briefed, moot courted, and ultimately argued it. As I said before, we’re very fortunate to have such competent and talented advocates.

6 thoughts on “McDonald Final Thoughts”

  1. After all, “The Question” that the Court was called upon to answer DID mention PorI and DP, so it was logical that the Court wanted to see briefs on both PorI and DP, and hear oral arguments on both. And the DP argument is much easier to make than PorI, and has fewer repercussions. So it just stands to reason that most of Gura’s written brief was on PorI, and that he would begin there in his oral argument.

    So it was odd to see two Justices let Gura get only two or three sentences into his PorI argument and then cut him off and re-direct him to Due Process.

    Feldman, for Chicago, wanted to re-argue Heller. I suppose that’s what his client told him to do. Sadly, there seemed to have been two or three justices who were willing to go along with him on that! I thought Scalia’s remark about ruling by statistics was wonderful.

    Most of the unpleasant consequences of the Slaughterhouse Cases have been slowly nibbled away over the years, lawyers say. I sometimes wonder what would happen if the 14th Amendment was re-passed and re-ratified today, making it fresh and without any case law?

  2. P or I was argued in the briefs. The justices read the briefs and decided not to go that way, so when it came time for oral arguments, there was no point spending time on it. I can’t believe that oral arguments are really for anything but minor clarifications.

  3. What I find most interesting – and worrisome – is that most of the arguments against P&I seem to have been along the lines of “how do we minimize the effects” rather than “what does it mean.” In other words, they’re effectively arguing for the idea of only following the Constitution when it’s convenient.

    I truly hope that, if SCOTUS goes with Due Process rather than P&I, that the opinion follows the formula of “we incorporate with DP, so we don’t need to address the P&I argument.” If they acknowledge that P&I was meant to apply the Bill of Rights to the states but still shoot it down on the basis of not overturning bad precedent because “the states have relied on it for 140 years,” it will be the shot that destroys the Constitution.

    Like Mr. Gura said in the oral argument “States may have grown accustomed to violating the rights of American citizens, but that does not bootstrap those violations into something that is constitutional.” If the court rules otherwise, we are well and truly FUBAR’d.

  4. Incorporation by Parts…funny!

    (Of course, like Integration by Parts, it requires careful construction to get a correct result. Starting at the wrong place will require lots of back-tracking and re-working to get a correct result.)

    On the law side, at least one other blogger has said that the Justices may be afraid of unleashing a storm of re-litigation of 140 years of case-law if they use P&I incorporation.

    Worse, the litigation will result in approximately-the-same legal status for most litigated issues as exists now, under Due-Process incorporation.

    That doesn’t excuse the Court (in my opinion) from doing the right thing.

    Although the Supreme Court may want to mention P&I as carefully as possible. Perhaps they could publish an opinion that any freedom already protected by Due-Process that may also be protected by the rediscovered Privileges&Immunities clause is doubly protected…

    But I’m not sure what else “wrong” came out of the Slaughterhouse case’s mis-read of the Privileges&Immunities clause.

  5. While the NRA certainly called this one correctly (based on what we’ve heard so far), Gura’s briefs covered Due Process as well, and I have no doubt he would have been able to fall back on that and make the same arguments Clement did. Mr. Gura wanted to win this case the ‘right’ (P or I) way for the future, but there is no doubt in my mind he was prepared to win it in either way – so in that sense the NRA was still needling their way into the case needlessly.

    No matter what, Mr Gura has cemented his place in court history, and I congratulate him for it.

  6. I kind of took a different view of things. I felt like the questions being asked by Justice Roberts of Alan Gura were almost for the purpose of setting the stage for him to give cause as to why the P&I should be considered, and what advantages it held.

    I thought Alan Gura did a great job. Came across with the idea to never make a wager in a chess game with Roberts. And thoroughly enjoyed Scalia’s trouncing of Feldman. Seemed like Scalia was giving him a shovel on more than one occasion.

    ie: Okay, so if it is just about a militia. Doesn’t the complete banning of firearms also compromise the militia premise.

    (A point I myself have expressed.)


    Roberts also seemed to come across as thoroughly enjoying this. I think he lives for something like this. And I felt that he was nearly having a philosophical discussion with Alan. I think that was the most enjoyable part to read. And I felt Alan handled himself nicely.

    Clement did well too, not as strong. And a few times kind of repeated to a fall back statement.

    Feldman, on the other hand got caught up in his own words on several occasions. And put into a number of occasions where his statements were contradictory.

    Sotomayer seemed to be on an entirely different page than any of the justices. Her comments always came out seeming like she knows what she’s decided.

    Honestly, I think she’s really not “wise enough” to be on SCOTUS. And although I am sure she’ll be against nearly all my views. I think she will remain a weak peg for the left. Strongly supporting their causes but weakly arguing them. In a sense, a guaranteed vote but little sway power.

    Which I am learning is the real power in SCOTUS.

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