Amateur’s take on McDonald Second Amendment arguments

I enjoyed listening to the audio of the Heller arguments but unfortunately, they did not release any audio for today’s arguments. This afternoon I posted the full text of the oral arguments within a few minutes of being released and I’ve taken the time to read through the 77 pages during some free time tonight.

The full text is posted here.

Just a few comments from a legal amateur…

For those libertarians out there hoping their would be consensus on the privileges or immunities clause from the 14th Amendment, that idea did not go very far. Alan Gura started off with the 14th…

In 1868, our nation made a promise to the McDonald family that they and their descendants would henceforth be American citizens, and with American citizenship came the guarantee enshrined in our Constitution that no State could make or enforce any law which shall abridge the privileges or immunities of American citizenship.

Chief Justice Roberts responded…

Of course, this argument is contrary to the Slaughter-House cases, which have been the law for 140 years. It might be simpler, but it’s a big — it’s a heavy burden for you to carry to suggest that we ought to overrule that decision.

I’m not sure if that is what Gura was asking, but Roberts did not seem to go for it. The NRA brought in Paul Clement because they wanted to go the due process clause argument for incorporation of the 2nd Amendment instead. Gura did not want to give Clement part of his time, but the Supreme Court gave time to Clement and maybe this turned out to be a good thing.

I read Justice Breyer’s take near page 15 of the transcript, and the discussion originates around the privileges or immunities clause and if it should be incorporated in whole or in part when associated with the 2nd Amendment. Breyer goes on to discuss interpreting law based on statistics.

Look at the statistics. You know, one side says a million people killed by guns. Chicago says that their — their gun law has saved hundreds, including -and they have statistics — including lots of women in domestic cases. And the other side disputes it. This is a highly statistical matter. Without incorporation, it’s decided by State legislatures; with, it’s decided by Federal judges.

Now, think of this, too: That when you have the First Amendment, or some of the other amendments, there is always a big area where it’s free speech versus a whole lot of things, but not often free speech versus life. When it’s free speech versus life, we very often decide in favor of life. Here every case will be on one side guns, on the other side human life. Statistics, balancing life versus guns. How are Federal judges in your opinion, rather than legislatures in the States in a Federal system, how are Federal judges supposed to carry this out? I want to see where we are going.

A bit more back-and-forth happens and Breyer continues…

To be specific, suppose Chicago says, look, by banning handguns not in the hills, not hunting, nothing like that, nothing outside the city, in the city, we save several hundred human lives every year. And the other side says, we don’t think it is several hundred and, moreover, that doesn’t matter. How do you decide the case?

Gura suggests they should not look at the statistics, rather what the framer’s intent was. Breyer continues…

You are saying they can have — no matter what, that the city just can’t have guns even if they are saving hundreds of lives, they cannot ban them?

Justice Scalia retorts, with my emphasis in bold.

There is a lot of statistical disagreement on whether the Miranda rule saves lives or not, whether it results in the release of dangerous people who have confessed to their crime but the confession can’t be used. We don’t — we don’t resolve questions like that on the basis of statistics, do we?

Slap down? I thought so.

When it comes to incorporation of the 2nd Amendment – which would force state laws support the Constitution – there was quite a bit of discussion concerning the 6th Amendment since it is not (yet) incorporated but mandates a jury trial for criminal cases.

Justice Sotomayor noted, when discussing incorporation with James Feldman for the City of Chicago, stated the following and it kind of made me cringe. My emphasis in bold.

Mr. Feldman, our selective incorporation doctrine under the Due Process Clause does suggest that there are some rights that were fundamental enough to be incorporated and some that are fundamental, but not fundamental enough to be incorporated. We have drawn a line.

How can we have fundamental rights that may be restricted by the states?

So, what was Feldman’s argument?

The Second Amendment should not be incorporated and applied to the States because the right it protects is not implicit in the concept of ordered liberty.

In short, Feldman and the City of Chicago does not think fundamental constitutional rights are absolute. Their argument is … if it’s best for the local area and public welfare, they can suspend or severely restrict fundamental constitutional rights.

That argument backfired in New Orleans when law enforcement went house-to-house taking away the resident’s personal protection. How will it hold up here?

Note: The above was written by me, I’m not a lawyer and a novice at reading this stuff so take it for what it’s worth OK? If you’d like to chime in, please do so in the comments section.

For a real lawyers view, check out a brief overview by Orin Kerr at Volokh Conspiracy, and here’s another.

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Steve McGough

Steve's a part-time conservative blogger. Steve grew up in Connecticut and has lived in Washington, D.C. and the Bahamas. He resides in Connecticut, where he’s comfortable six months of the year.


  1. Bags on March 5, 2010 at 6:16 am

    The S.C. should correct 140 years of them usurping Congresses original intent of the 14 Ammd. Mainly, giving Freedmen, (Blacks), the P&I's that whites had. That meant they have the same rights under the Bill of Rights that whites had and the states can't take that away. The Slaughterhouses cases were judged wrongly.

  2. prnocksr on March 5, 2010 at 7:04 am

    OK, lets give the pro-gun people their way.  Anyone who wishes to "keep and bear arms" may do so, as long as the arms are those which were available in 1781 when the 2nd amendment was signed. Also, anyone keeping & bearing arms should register such & be available to serve in a government militia when called by the government.

    • Steve McGough on March 5, 2010 at 7:17 am

      Fair enough prnocksr, let's do the same with the First Amendment. /sarcoff

      The people of the USA have "injected" a huge number of firearms into the hands of its citizens during the last decade, and great numbers of residents have also received permits to carry pistols both openly and concealed.

      Take a look to see what has happened to violent crime in the FBI statistics. Down, down and down…

    • Pvt.Cowboy on March 6, 2010 at 12:54 pm

      Overruled, prnocksr.

      D.C. vs. Heller, Opinion Of The Court:

      "… Some have made the argument, bordering on the frivolous, that only those arms in existence in the 18th century are protected by the Second Amendment. We do not interpret constitutional rights that way. Just as the First Amendment protects modern forms of communications, e.g., Reno v. American Civil Liberties Union, 521 U. S. 844, 849 (1997), and the Fourth Amendment applies to modern forms of search, e.g., Kyllo v. United States, 533 U. S. 27, 35–36 (2001), the Second Amendment extends, prima facie, to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding."

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