The Smallest Minority

Sadly, I'm afraid that Ginsberg, at least, was decently horrified at what the answer to her questions might be.

JUSTICE BREYER: To be specific, suppose Chicago says, look, by banning handguns not in the hills, not hunting, nothing like that, nothing outside the city, in the city, we save several hundred human lives every year. And the other side says, we don't think it is several hundred and, moreover, that doesn't matter. How do you decide the case? 

MR. GURA: We decide that by looking, not to which side has the better statistics, but rather to what the framers said in the Constitution, because that policy choice was made for us in the Constitution.

JUSTICE BREYER: You are saying they canhave -- no matter what, that the city just can't have guns even if they are saving hundreds of lives, they cannot ban them?

MR. GURA: The city cannot ban guns that are within the common use as protected by the right to arms.

But I liked the ending best of all, even slightly more than the chat with the Wise Latina.

But at least we know one thing, which is that in 1868 the right to keep and bear arms was understood to be a privilege or immunity of citizenship, and if the Court is considering watering down the Second Amendment perhaps it should look to text and history.

I think a good ending.

Kevin, do you think Scalia was looking for *advice* for how to write his majority opinion?

"I'll answer that one: HELL YES."

I'd replace "hell" with "heck."  Yes, there was a common law right to bear arms that would arguably exist as an unenumerated "constitutional" right absent the Second Amendment.  No, that's not something I'd want to hang my hat on to nearly the extent Alan did today.  The common law RKBA extended only to Protestants, and was valid only against the crown, so if all the Second Amendment did was constitutionalize the right that was already there, we're totally phucked.  An American equivalent of that RKBA would read, in essence, "Congress shall not infringe the right of Protestants to keep and bear arms unless it wants to."  I'll take what's in our Constitution over what existed before any day of the week.

Thank Allah the NRA got half of Alan's time to argue for Due Process Clause incorporation.  The chances of the Court buying Alan's alternative theory - much as I'd like to see it adopted myself - is slim to none, and Slim just left town.

The rules of holes is to stop digging them apparently the SC can't recognize Slaughter-House as a hole to stop digging.

sigh

The Supreme Court should do the constutional thing but at least five justices have to buy in and Scalia was pushing that one argument was more likely to get those votes than the other. Like it or not reality sucks.

Via Instapundit:

Michael Lotus offers praise for Alan Gura: “The P&I argument in McDonald was a stroke of genius. It made incorporating 2nd Amendment rights via Due Process — something that just a few years ago would have seemed fanciful — look like the sensible, cautious, middle-of-the-road approach.”

I don't think that was his intent, but if that's the outcome, I can live with it.

Xrlq:  I realize that you are a lawyer and I don't even play one on the internet, but I thought "common law" was nothing more than the law as derived from case law rather than (or in clarification of) specific legislation.

The concept of rights, as I understand it, transcends both legislative and common law.  Rights can, of course, be infringed by the enactment of unjust laws, but that does not diminish their status as natural rights.

Slavery was codified by legislative and common law for centuries, if not millennia, but all that meant was that it was technically legal to infringe upon the rights of slaves, not that their rights didn't exist.

I realize that, as a practical matter, a right that is being infringed by law may as well not exist at all, but as a philosophical matter, and in support of abolishing the laws that infringe upon rights, natural rights pre-exist ALL laws, whether legislative or common.

Sorry about the double post.  I had cookies turned off so it refused to post it.  When I realized the problem and accepted the cookie, it then posted it twice.  Feel free to delete the redundant one.

(That's OK, I fixed it. - Ed.)

It seems pretty obvious to me that they are trying like heck to aviod revisiting the Slaughterhouse cases. 

They know it was a bad decision as well as anyone, but they simply don't want to open that can of worms.

Because it's "easier" just to let it go and allow the states to continue to deny fundamental rights like jury trials and grand jury indictments.

We've, over time, morphed from rights that shall not be infringed, to rights that are recognized as long as it's convenient to the state...which basically means our rights are no longer protected by any branch of the government. 

What was that those really smart people said a couple of hundred years ago again?  Oh yeah:

But when a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government, and to provide new Guards for their future security.

I completely agree with you that they're just punting because they don't want to deal with Slaughterhouse.  That said, I saw the exchange with Scalia in terms of his trying to "guide" Gura down a path that would most likely result in a win for his client.  It was surprising to see him doing it, given his general disdain for Substantive Due Process incoropration.

What really pisses me off is how the Court shot down P&I because of concern that it might result in an expansion of individual rights.  Funny, I thought expansion of personal liberty was a good thing?

For the individual, yes; for the state, not so much.