Wednesday, March 3, 2010

McDonald v. Chicago - Yesterday's Oral Argument

Judging from yesterday's oral argument in McDonald v. Chicago (the case discussed here previously involving whether either the Fourteenth Amendment Privileges or Immunities Clause or Due Process Clause applies the Second Amendment to the States), it seems a majority of the U.S. Supreme Court will use the standard Due Process route to apply the right to bear arms to the States.

Justice Antonin Scalia - who claims to be beholden to the text and history of the Constitution - belittled the arguments claiming that the text and history of the Constitution require consideration of the Privileges or Immunities clause. When Alan Gura, the attorney arguing the case, began his discussion of Privileges or Immunities, Scalia pointedly asked him whether arguing Privileges or immunities was "easier" than the due process argument. "[I]f the answer is no," he continued, "why are you asking us to overrule 150, 140 years of prior law?" Scalia also said that "What you argue is the darling of the professoriate"; and speculated that Gura is "bucking for a place on some law school faculty."

Scalia brays loudly about the importance of original intent; yet when serious original intent arguments come before him that would be contrary to his narrow, cramped view of individual liberty, he is unwilling to listen. What a hypocrite.