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EYEWITNESS REPORT
Mar. 2, 2010
[Out of D.C. and now on a ranch in Texas; didn't have time to get this report out before catching my flight; this is only partial, will need details and fill in many blanks, that will have to come later, better to get the basics out now, thanks for understanding.]
This case was way more complicated than Heller.
Both attorneys faced hostility from the bench. Chicago's lawyer got hit from all sides with little in the way of what you might call support. But the surprise was the way Alan Gura got blasted, even by the best friend gun-rights has up there, Justice Scalia.
Whoever or however we believed the Court might be ready to review the Privileges or Immunities clause of 14A was totally wrong. Every Justice had problems with the scope of such a decision, and poor Gura had to withstand withering assaults on his reasoning and approach.
I definitely need a transcript to go over what exactly happened, I thought audio was weak in chambers, complexity was way large, and in chatter afterwards found I wasn't the only one. How those aging Justices keep up -- and they did, note for note, cite for cite -- is a bloody miracle.
BOTTOM LINE -- it looks like the Heller majority may hold together for this case, and the Second Amendment will be incorporated against the states, under the familiar selective incorporation of Due Process. The same 2A that controls federal activity will apply to the states, no more, no less, though that issue of degree got a lot of attention. Not that the scope of 2A is all the well defined, but there was animus to the idea that incorporation would yield a "shadow" version for the states.
Gura may get the win, but not for any brilliant strategic planning -- there was open hostility to the idea, central to his arguments, of 2A being a Privilege or Immunity of citizenship (I'll discuss soon). The win, if there is one, may be more of a result of the bench being unprepared to treat 2A as some special bastard child the states do not have to follow, unlike the rest of the Bill of Rights that has been incorporated so far.
And let me tell you, thank God for the NRA. They took a lot of heat for asking for and getting some of Gura's oral argument time, using Paul Clement who had argued the government's unsavory position for a low standard of scrutiny in Heller, getting their hat in the ring. That turned out to be baloney, they were life savers. Considering the ferocity with which Gura and P&I were attacked, we were lucky to have at elegant, articulate, eloquent voice to apply 2A through Due Process. (Don't get me wrong, Chicago fared just as poorly, but for different reasons.)
Clement's arguments were so well made and so compelling, he got to speak at length without interruption, with the Justices in rapt attention. I asked him about that afterwards and he said yeah, it was really nice getting some "air time."
There's so much more to tell, the back-and-forth over substantive and procedural due process, and the -- un-frickin-believable -- lengthy consideration by the Justices of how much RKBA we'd enjoy if there was "no Second Amendment" (protected instead as a privilege or immunity), plus Breyer's astounding hostility towards guns in general ("guns kill!"), and Stevens' 'parading around with guns' concerns... it'll have to be later (been on the go since 5:30 a.m., probably when I return to Phoenix, beginning of next week.
It was an honor and a thrill witnessing it all.
Alan.
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