Oral Arguments in McDonald

The Supreme Court heard oral arguments today in McDonald v. City of Chicago, the case challenging Chicago's handgun ban.  As expected, the arguments focused on application of the Second Amendment to the states ("incorporation") and avoided the meaning of the Second Amendment (or any related unenumerated right), except insofar as the meaning drives the incorporation analysis. 

Here are some of the highlights with additional thoughts:

The Second Amendment (or some portion of it) is Almost Certainly Incorporated.

James Feldman (for the respondent City of Chicago) faced skeptical questioning on his distinction between a right to self-defense (preexisting the Second Amendment) and the Second Amendment right to bear arms in order to protect against the federal government disarming the militia.  Feldman argued that the right to self-defense--which, he argued, states traditionally have regulated--"had little to do with" the Second Amendment (quoting Heller).  And the Second Amendment, with its militia clause, stands in a different relationship to the states than to the federal government.  Heller addressed its relationship to the federal government; Feldman argued that nobody was, or is, concerned about the states disarming the militia--and that the right to bear arms for this purpose is not fundamental as against the states.  He argued that this position is consistent with, even supported by, Heller itself.  Without incorporation of the Second Amendment, Feldman argued, all that is left is the preexisting right to self-defense.  But this has been traditionally regulated by the states and ought to be subject to the political process (and not fundamental rights claims). 

Chief Justice Roberts, Justice Scalia, and Justice Alito all attacked Feldman's arguments from different angles.  Chief Justice Roberts said it sounded awfully close to the losing argument in Heller.  Justice Scalia took issue with Feldman's focus on the reason the Second Amendment was codified (to protect against the federal government interference with the militia), while ignoring the function of the Second Amendment (to protect an individual right to bear arms, as in Heller) and with Feldman's argument that nobody cares about states disarming militias.  And Justice Alito, pressing Feldman on whether states could ban all firearms, seemed frustrated by a moving target--Feldman's seemingly inconsistent claims that states could not ban all firearms and that the right to keep and bear arms is not fundamental.  (Feldman's point here was that such a complete ban would violate even the default rational basis review under Due Process.)

In short, at least three justices were hostile to Feldman's attempt to navigate between Heller and incorporation and seemed inclined to incorporate.

A fourth, Justice Kennedy, also seemed inclined to incorporate, but offered Feldman a way out, at least on the merits.  Justice Kennedy suggested that the Court might incorporate the right to bear arms in Heller, but give states wide latitude in regulating the right--something like rational basis review.  Others on the Court may be inclined to this position, as well (even Scalia, as suggested by the Heller decision itself).  (Chief Justice Roberts also suggested this approach in a question to Clement.)  This would mean a loss for Feldman on incorporation, but on the substance it would result in exactly what he advocated by way of a different route: deference to the political process.

The Court may Incorporate Only a Portion of the Second Amendment.

The justices spent a good part of the argument asking whether the Court might incorporate only a component of the Second Amendment (or a related unenumerated right), and not the whole thing.  Justices Kennedy and Stevens pressed this issue the hardest, first asking Alan Gura (for petitioner McDonald) and then asking Paul Clement (for the NRA, which received permission to intervene to argue incorporation via the Due Process Clause) whether the Fourteenth Amendment "necessarily incorporates every jot and tittle of the Federal right."  Justice Stevens offered the Sixth Amendment right to trial by jury in criminal cases as an example: That right, as incorporated against the states, requires only non-unanimous juries.  Clement cast the Sixth Amendment right to a jury trial as an "outlier"--the only incorporated right in the Bill of Rights that applies to the states differently than it applies to the federal government--and maintained his position that the Due Process Clause incorporates the whole Second Amendment, and the Supreme Court caselaw that goes with it (now just Heller). 

Next, Justice Alito asked Clement whether the Court shouldn't return to Justice Harlan's approach in Duncan v. Louisiana--an approach that would consider incorporating rights without necessarily considering each amendment as entirely "in" or "out."

Justice Breyer raised the issue by way of a "chart" of rights--that the right to bear arms may be more important for some reasons than for others.  And those more important reasons may be incorporated, while the less important ones may not be.

Finally, Justice Kennedy returned to the issue with Feldman, asking him for "existing authority with reference to other provisions of the Bill of Rights that would allow us to incorporate . . . just the core of the Second Amendment . . . ."

These exchanges suggest that at least Justices Kennedy and Stevens (and possibly Alito, and more likely Breyer) may be open to applying the Second Amendment to the states in a different way than it applies to the federal government.

The Court is Almost Certain to Incorporate Via Due Process (and not P or I).

Several justices jumped on Gura's aggressive argument for incorporation via the Privileges or Immunities Clause, expressing concerns ranging from overturning the Slaughter-House Cases to uncertainty in incorporation doctrine to the unknown boundaries of the Privileges or Immunities Clause.  Based on the questions, Gura's argument is almost surely a non-starter.

Gura's argument for incorporation via the relatively obscure Privileges or Immunities Clause was indeed--and perhaps necessarily--grand.  At one point, Justice Scalia even joked that Gura must be angling for a law faculty position, given Gura's concession that he could just as easily get to incorporation via the much better developed Due Process route. 

What seemed to trouble the justices most, however, was Gura's inability to define the outer boundaries of the Privileges or Immunities Clause.  As a Court, they seemed unwilling to open this can of worms, even if it would allow them to undo an approach under the Slaughter-House Cases that is nearly universally considered incorrect.

Incorporation Looks to the Duncan Standard, American Style.

There was some back-and-forth beginning in Feldman's argument about the right standard for incorporation.  Feldman argued that the Court should look to those rights that are "implicit in the concept of ordered liberty."  Justice Scalia was quick to suggest that that standard was dated and defunct; and Chief Justice Robert qualified it by clarifying that whatever standard the Court applied, it was as to American values (and not some abstract notion of values).  (This is not an innovation; it's clear from the Duncan formulation, below.) 

Chief Justice Roberts specifically mentioned Duncan, and it seems likely that the Court will apply that standard: Is the right "among those 'fundamental principles of liberty and justice which lie at the base of all our civil and political institutions,' . . . 'basic in our system of jurisprudence,' and . . . a 'fundamental right, essential to a fair trial.'"

In all, the Court seems inclined to incorporate at least a core of a right to bear arms by way of the Due Process Clause of the Fourteenth Amendment.  This is really the path of least resistance, it preserves the incorporation approach the Court has used, and it doesn't open up entirely new areas of unexplored territory.  If the Court says anything about what the underlying right means, it seems to be leaning toward a deferential standard of review that would likely allow the states to do their work in issuing reasonable regulations of firearms. 

SDS