First News Report on the McDonald Argument

It’s brief, but here’s what Lyle Denniston has posted at SCOTUSblog:

The Supreme Court on Tuesday seemed poised to require state and local governments to obey the Second Amendment guarantee of a personal right to a gun, but with perhaps considerable authority to regulate that right. The dominant sentiment on the Court was to extend the Amendment beyond the federal level, based on the 14th Amendment’s guarantee of “due process,” since doing so through another part of the 14th Amendment would raise too many questions about what other rights might emerge.

As more detailed reports emerge, please feel free to add links to the stories in the comment thread. (It’s probably best to add only one link per comment, however, as more than that tends to trigger the spam filter..)

UPDATE: Josh Blackman adds: “The Court was not at all receptive to arguments on Privileges or Immunities but incorporation on Due Process is a slam dunk. More commentary soon.”

ANOTHER UPDATE: Tony Mauro chimes in with the first extended discussion over at the BLT:

[O]ne thing appears clear: the justices are not yet ready to open what seems to them to be a can of worms by invoking the “privileges or immunities” clause of the Fourteenth Amendment as the way to apply the right to bear arms to states and localities. The more traditional route of the “due process” clause seems almost certain to be Court’s chosen path.

Alan Gura, who was arguing for the “privileges or immunities” route, ran into skepticism almost from the moment he began, when Chief Justice John Roberts Jr. said Gura had a “heavy burden” because his approach entailed striking down the Slaughterhouse cases of 1873.

Justice Antonin Scalia piled on by asking Gura why he’d take this more difficult path “unless you’re bucking for some place on a law school faculty.” The privileges or immunities clause, Scalia added sarcastically, has become the “darling of the professoriate.” Justice Stephen Breyer also seemed to opt for caution, asking Gura questions about the implications of using a new part of the Constitution to apply the Second Amendment to states.

The justices seemed almost to sigh in relief when former solicitor general Paul Clement, representing the National Rifle Association on the same side as Gura, 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.

ANOTHER UPDATE: Lyle Denniston has expanded his post over at SCOTUSblog, and it now concludes as follows:

The first argument to collapse as the argument unfolded was the plea by the lawyer for gun rights advocates, Alan Gura of Alexandria, VA, that the Court should “incorporate” the Second Amendment into the 14th Amendment through the “privileges or immunities” clause. In the first comment from the bench after Gura had barely opened, Chief Justice John G. Roberts, Jr., noted that the Court had essentially scuttled that argument with its ruling in the SlaughterHouse Cases in 1873. And within a few minutes, Justice Antonin Scalia — the author of the Heller opinion and the Court’s most fervent gun enthusiast — was sarcastically dismissing the “privileges or immunities” argument. . . . Scalia noted that the “due process” clause — an open-ended provision that he has strongly attacked on other occasions– was available as the vehicle for incorporation, and added: “Even I have acquisced in that.” Gura somewhat meekly said “we would be extremely happy:” if the Court used the “due process” clause to extend the Second Amendment’s reach.

Justice Ruth Bader Ginsburg, one of the dissenters in Heller, then moved in to press Gura on just what “unenumerated rights” would be protected if the Court were to revive the “privileges or immunities” clause. It was a theme that would recur often thereafter, solidifying the appearance that the argument had virtually no chance of succeeding. (In fact, when Gura near the end of the argument returned to the podium for his rebuttal, his time was used up by Justices Ginsburg and Anthony M. Kennedy exploring what other rights might come into being if the Court gave new life to the “privileges or immunities” clause. He responded that he could not provide a full list, to which Justice Scalia retorted: “Doesn’ t that trouble you?” It was obvious that it troubled the Court.)

The transcript will be up this afternoon, and I’ll probably blog some thoughts about it when I get a chance to read it.