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Good news and bad news on McDonald

Posted by Richard on March 2, 2010

The Supreme Court heard oral arguments today in McDonald v. Chicago. The good news is it looks like incorporation of the Second Amendment, extending its reach to the states, is just about a done deal. The bad news is that it's likely to be done by means of the nebulous and endlessly-interpretable-by-judges "substantive due process" concept instead of via the "privileges or immunities" clause of the 14th Amendment.

In the Wall Street Journal, Randy Barnett has an excellent column in which he explains why the latter would be far preferable to the former, points out that the 14th Amendment's "privileges and immunities" clause was clearly intended to address (among other things) specifically the right to bear arms, and argues that the 1873 Slaughter-House ruling trashing that clause (right up there with Dred Scott as one of the worst Supreme Court rulings ever) ought to be reversed. 

The "wandering discussion" Barnett cited illustrates the vast gulf that separates Scalia, Alito, and Roberts from Clarence Thomas, even though they're often lumped together as "conservative" or "originalist" justices and often vote together.

I wish this time Thomas had abandoned his habit of listening without questions or comments. I wish Janice Rogers Brown were sitting on that bench instead of Roberts or Alito (or better yet, instead of Breyer, Stevens, Ginsburg, or Sotomayor).

And I wish we had five justices with the courage, principles, and good sense to overturn Slaughter-House.

Sigh. But getting the Second Amendment incorporated is progress. And not insignificant, even though doing it through substantive due process will certainly temper the victory and leave lots of wiggle room for "sensible" regulations.

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