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!