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MEMBER DIARY

McDonald v. Chicago (08-1521)

Does the 2nd Amendment get its ?due process??

If Tuesday’s oral arguments before the Court were any indication, the individual right to keep and bear arms is fundamental, and there is no way to read Heller that makes the 2nd Amendment anything less than a fundamental right.

JUSTICE KENNEDY: But I thought its rationale was that because of its fundamental character, the right to bear arms must be understood as separate from the qualifying phrase of the militia clause, all people, most people in the United States, the public meaning of the Second Amendment was that there was an individual right to bear arms, and that’s because it was fundamental. If it’s not fundamental, then Heller is wrong, it seems to me.

CHIEF JUSTICE ROBERTS: I don’t see how you can read — I don’t see how you can read Heller and not take away from it the notion that the Second Amendment, whether you want to label it fundamental or not, was extremely important to the framers in their view of what liberty meant.

Did I mention before?… I’m sure I must have… Justice Scalia rocks…

JUSTICE SCALIA: Mr. Gura, do you think it is at all easier to bring the Second Amendment under the Privileges and Immunities Clause than it is to bring it under our established law of substantive due ?

MR. GURA: It’s –

JUSTICE SCALIA: Is it easier to do it under privileges and immunities than it is under substantive due process?

MR. GURA: It is easier in terms, perhaps, of — of the text and history of the original public understanding of –

JUSTICE SCALIA: No, no. I’m not talking about whether — whether the Slaughter-House Cases were right or wrong. I’m saying, assuming we give, you know, the Privileges and Immunities Clause your definition, does that make it any easier to get the Second Amendment adopted with respect to the States?

MR. GURA: Justice Scalia, I suppose the answer to that would be no, because –

JUSTICE SCALIA: Then if the answer is no, why are you asking us to overrule 150, 140 years of prior law, when — when you can reach your result under substantive due — I mean, you know, unless you are bucking for a — a place on some law school faculty –

(Laughter.)

MR. GURA: No. No. I have left law school some time ago and this is not an attempt to — to return.

JUSTICE SCALIA: What you argue is the darling of the professoriate, for sure, but it’s also contrary to 140 years of our jurisprudence. Why do you want to undertake that burden instead of just arguing substantive due process, which as much as I think it’s wrong, I have — even I have acquiesced in it?

In that light, the Court appears ready to extend the 2nd Amendment beyond the federal level, based on the 14th Amendment’s guarantee of “due process.”

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