More Gun Rights Coming, but Slaughter-House Will Remain
I really should start posting my predictions publicly. Not only would it vindicate me when I'm right, it would keep me honest when I'm wrong.
Last week, I predicted that Justices Scalia and Roberts would be very negative towards the idea of resurrecting the "Privileges or Immunities" clause of Section 1 of the 14th Amendment. From reading his past opinions, I know that Justice Scalia isn't a big fan of overturning precedent, especially when said precedents have been around for 140 years. (The Privileges or Immunities Clause was strangeled by the Supreme Court just moments after birth, in the Slaughter-House Cases.) Everything I've read about Chief Justice Roberts says that he's a cautious incrementalist who prefers to make changes to the law in the smallest way that's likely to be effective. I was pretty sure that both Justices would be in favor of expanding gun rights but would be hostile to doing so through the Privileges or Immunities clause.
It turns out, I was right. Here's what happened during oral arguments this morning, in McDonald, et al., v. Chicago, et al..
The first argument to collapse as the hearing unfolded was the plea by the lawyer for gun rights advocates, Alan Gura of Alexandria, Virginia, 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.
“Why,” Scalia asked Gura, “are you asking us to overrule 140 years of prior law….unless you are bucking for a place on some law school faculty.” The Justice said the “privileges or immunities” argument was “the darling of the professorate” but wondered why Gura would “undertake that burden.” And 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 acquiesced in that.”