Thoughts on the McDonald Argument

The oral argument in today’s case about the incorporation of the Second Amendment was dull (at least based on the transcript).  It is clear that the Court will extend Heller to the States and that the Privileges or Immunities Clause will be ignored (maybe Justice Thomas will write separately).  Having said that:

1.  One amusing moment was when Justice Scalia asked whether the right to bear arms is “implicit in the concept of ordered liberty,” the test from Cardozo’s opinion in Palko v. Connecuticut, and pointed out the most nations don’t guarantee gun rights.  That was a criticism of the Palko test, but I thought were weren’t supposed to look at foreign law to interpret the Constitution.  (Maybe he meant that because Palko permits such an inquiry that standard is incorrect, but then again it doesn’t require looking at foreign law.)

2.  Justice Stevens’ suggestion that the Second Amendment should not be incorporated jot-for-jot is a bad idea.  The fact that the Sixth Amendment jury right is treated that way (on the unanimity issue) is not an example to follow; it is an exception that should be eliminated.

3.   The Court will probably not say anything new about the scope of the Second Amendment in the opinion.  More litigation to come!

You may also like...

4 Responses

  1. Chris says:

    With regard to #1, Justice Sotomayor asks on pp. 4-5 of the transcript whether “ordered liberty” has been badly affected by the Court’s refusal to incorporate through the Privileges and Immunities Clause. That likely explains Scalia’s reference.

  2. Phil Nuejahr says:

    Not sure that we could have expected much more out of Justice Stevens. Thanks for your thoughts and the update!

  3. Ben says:

    Won’t the outcome depend more on how Kennedy votes? I think we all know how the others are going to come down on this.

  4. Ken says:

    >>1. One amusing moment was when Justice Scalia asked whether the right to bear arms is “implicit in the concept of ordered liberty,” the test from Cardozo’s opinion in Palko v. Connecuticut, and pointed out the most nations don’t guarantee gun rights. That was a criticism of the Palko test, but I thought were weren’t supposed to look at foreign law to interpret the Constitution.>>

    I think Justice Scalia’s rhetorical question was not meant to introduce foreign law into interpretation of our Constitution, but rather to clarify (or limit) “implicit in the concept of ordered liberty.” It is a factual/logical argument, not a legal argument, to point out that other nations with “ordered liberty” do not guarantee gun rights, thus demonstrating that gun rights are not a necessary condition for “ordered liberty.”