Remember all the noise about the implications of this morning’s hearing of McDonald v. Chicago?
The court pretty much put the heat on ice by signaling they are not giving the Privileges or Immunities clause argument any serious consideration. Instead, they are favouring the second amendment (via the 14th’s Due Process clauses) as a way to extend the right to carry firearms nationally, striking down state gun rules. That said, they appeared to concede that states have the right to regular to a certain…to be determined.
According to The Blog of Legal Times, the bench was immediately and vocally sceptical of Alan Gura invoking the Privilege and Immunities clause. Justice Roberts said he had a heavy burden while Justice Scalia wanted to know if he was, “bucking for some place on a law school faculty.”
Former Solicitor General Paul Clement’s arguments on behalf of McDonald were less contentious, as Tony Mauro wrote for The BLT: “The justices seemed almost to sigh in relief when…Clement rose to reassure the justices that using the due process clause was a ‘remarkably straightforward’ way to apply the Second Amendment that would not involve upsetting precedent.”
According to the Chicago Tribune, “All signs Tuesday were that five justices saw the right to ‘bear arms’ as national in scope and not limited to laws passed in Washington.” Mike Sacks agreed, calling incorporating via the due process clause a “slam-dunk.”
As Ashby Jones at WSJ Law Blog put it, “about this Privileges or Immunities issue we’ve spilled so many pixels over? Uh, yeah, you can pretty much go back to forgetting about it.”
Consider it forgotten.
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