A lot of VC readers who have followed McDonald v. City of Chicago were quite disappointed last week by what they saw as the Supreme Court’s likely unwillingness to revisit the Privileges or Immunities Clause. At oral argument, the Justices seemed focused on the practical problems of reviving PorI, not on whether such a revival […]
Archive | McDonald v. City of Chicago
More on the McDonald Argument: A Reply to Randy
Given Randy’s earlier response to my initial prediction on how the Court might respond to Alan Gura’s Privileges or Immunities argument, I was hoping Randy might weigh in with his thoughts on the McDonald oral argument. I am pleased to see that he has. In this morning’s post, Randy writes: Hey Orin. Given that you […]
“Reasonable regulation” and McDonald
The following exchange took place during James Feldman’s oral argument today, on behalf of the Chicago government, in McDonald v. Chicago: JUSTICE SOTOMAYOR: Would you be happy if we incorporated it and said, reasonable regulation is part of the incorporation? And how do we do that? MR. FELDMAN: Well, there is the reasonable regulation standard, […]
The Incorporation Doctrine
Since the incorporation doctrine is in the news today, I thought I’d share a relevant excerpt from Rehabilitating Lochner (forthcoming, U. Chicago Press, Spring 2011): The Supreme Court … gradually applied most, but not all, of the Bill of Rights to the states, on a case-by-case basis. To blunt criticism that they were emulating their […]
A Few Thoughts on the McDonald Argument
Based on a quick read of the oral argument transcript, a few things stood out: 1. The Privileges or Immunities arguments never really got off the ground. None of the Justices seemed in favor of that approach, at least based on the questions. (Justice Thomas, as is his custom, asked no questions.) Only about […]
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 Line for Oral Arguments in McDonald v. City of Chicago
Here it was at 11pm: I thought of trying to get one of the first-come, first-served seats provided to members of the Supreme Court bar, but I figure it’s a lot of lost sleep for 20 minutes of sparks given that we’ll get the transcript anyway. (For some reason, the Justices refused to release the […]
Philip Hamburger Responds on the Original Meaning of the Privileges or Immunities Clause
I asked Philip Hamburger if he wished to respond to Friday’s blog posts here at the VC about his new draft article, Privileges or Immunities. He graciously agreed to respond. I have reposted his response below: *************** I am grateful to Jim for linking my paper, to Orin for starting the conversation, and to Randy […]
Hamburger’s “Rough Draft” on Privileges or Immunities
By Randy Barnett on February 27, 2010 1:52 am in Constitutional History, Fourteenth Amendment, McDonald v. City of Chicago, Supreme Court, Uncategorized
As Jim Lindgren has noted, on the eve of the argument in McDonald v. Chicago, Philip Hamburger has posted on SSRN what is labeled a “rough draft” of a new paper entitled, Privileges or Immunities. This timing is unfortunate. Given that this is a serious work of scholarship by a serious scholar, it demands serious […]
Hamburger and McDonald[s]?
Thanks to Jim for posting Philip Hamburger’s very interesting new paper on the original meaning of the privileges or immunities clause. With the oral argument in McDonald just a few days away, I’m curious what readers who follow these issues closely think of Hamburger’s paper. I’m not enough of a historian to have a firm […]
The story of the armed community organizers
A few weeks ago, I linked to a picture of civil rights activist John Salter being attacked by a mob during a lunch counter sit-in during the 1960s. I also linked to a newspaper op-ed in which Salter explained how he and other civil rights workers used firearms for protection from Klansmen and other terrorists—when […]
NRA Gets Oral Argument Time in McDonald v. City of Chicago
The Blog of Legal Times notes that the Supreme Court granted the NRA’s contested motion for oral argument time in McDonald v. City of Chicago. The NRA had asked for argument time to make sure the Due Process arguments were fully made, in light of the fact that McDonald’s counsel Alan Gura had focused so […]
Respondent’s Brief in McDonald v. City of Chicago
The brief is available here. (H/t) An excerpt: Overruling Slaughter-House and its progeny, and overturning the settled law governing the application of the first eight amendments to the States, should require an overwhelming justification. Petitioners’ position was rejected by the post-Civil War Justices, who were in the best position to understand the meaning of the […]