The oral arguments of McDonald v. Chicago are done.  It is up to the Supreme Court to render a ruling on whether the Chicago gun ban is unconstitutional thereby requiring state and local governments to incorporate the Second Amendment as a constitutional and fundamental right of all Americans.

Not having heard the actual arguments with all the inflections of voice, which adds clarity to questions and answers, there were nonetheless directions in which the justices headed.

Justice Stevens and Justice Breyer both tended to focus on obstructing incorporation of the Second Amendment by suggesting that such an undertaking would put the federal courts in a position of trying to sort out as to what is or is not a violation of Second Amendment rights.  Well, unfortunately for Justices Stevens and Breyer, that is ultimately why the federal court system exists, and in particular, the Supreme Court.  Their argument suggested that maybe it isn’t the same right as let’s say the First Amendment.

Justice Ginsburg spent some time trying to understand Alan Gura’s take on the Immunities and Privileges Clause.  Otherwise, I wasn’t really sure where she was going beyond that.  One thing is for certain, it’s not in support of incorporation.

Mr. Clements, representing the NRA, did a masterful job of explaining that incorporation of the Second Amendment must include the jurisprudence, or in other words, all the court stuff that goes with it.  Such as determining the guidelines of what constitutes a violation of Second Amendment rights.

Mr. Clements referred more than once to the First Amendment, and without saying as such, suggested that it’s the court’s job to rule when First Amendment rights are violated therefore it only makes sense that the courts would do the same for the Second Amendment.  He was given an opportunity to speak freely for lengthy periods without interruption.  Very unusual considering what Mr. Feldman, Chicago’s attorney, and Alan Gura, the man who brought the case to the court went through during their oral arguments.

Alan Gura, who was the darling of the gun rights groups in the Heller case, laid a big fat egg in this one.  As I wrote a few weeks before the oral arguments, Gura’s direction in this case using the ‘Privileges and Immunities’ clause of the 14th Amendment as the primary vehicle to incorporate the Second Amendment had an alternate agenda.  It was to get the court to recognize other rights not necessarily enumerated in our Constitution incorporated to the states.  The right to make and enforce contracts and purchase, sell, and hold real and personal properties were cited by Gura.  Justice Scalia, among others on the court, wasn’t buying any of Gura’s argument as evidenced by this exchange.

JUSTICE SCALIA: … I'm saying, assuming we give, you know, the Privileges and Immunities

Clause your definition, does that make it any easier to get the Second Amendment adopted with

respect to the States?


MR. GURA: Justice Scalia, I suppose the answer to that would be no, because –


JUSTICE SCALIA: Then if the answer is no, why are you asking us to overrule 150, 140 years of

prior law, when -- when you can reach your result under substantive due -- I mean, you know,

unless you are bucking for a -- a place on some law school faculty - (Laughter.)


MR. GURA: No. No. I have left law school some time ago and this is not an attempt to -- to return.


JUSTICE SCALIA: What you argue is the darling of the professoriate, for sure, but it's also

contrary to 140 years of our jurisprudence. Why do you want to undertake that burden instead of

just arguing substantive due process, which as much as I think it's wrong, I have -- even I have

acquiesced in it? (Laughter.)


This was Mr. Gura’s second case in front of the Supreme Court.  Far more care should have been given to focusing his argument using the Due Process clause and save extending unenumerated rights for another day using the Privileges and Immunities clause.  His approach left me perplexed, and frankly a little angry as to why he would pull such a stunt in a groundbreaking case like this.

This was his case to win or lose, and in the end, the court said he needed help in making his argument, hence, approval to NRA to stake their position on Second Amendment incorporation.  Gura spent a significant amount of his time back-pedaling trying to explain why a bunch of unenumerated rights should be considered by the court, instead of arguing incorporation of the Second using Due Process clause and framing what level of scrutiny should be applied.  He squandered his precious 20 minutes on libertarian ideology.  His argument time became utterly irrelevant.  Thank God for the NRA.

Mr. Clements on the other hand was the master of his argument, while Alan Gura allowed the Justices to take control of his argument because he mixed apples and oranges and tried to convince the court it was lemonade.  Despite accusations that this is an “activist” court, it was far more than even Justice Scalia could stand, let alone the others sitting on the court.

Lest I be called a traitor to the cause by pinging on Gura, let me be very clear on this.  Alan Gura is one of my personal heroes.  His tenacity to take Heller to the Supreme Court in light of severe criticism from all sides will be remembered by many Second Amendment advocates including this one, for as long as we are alive.  He did something that no other attorney in history has done, and that is to get the Supreme Court to recognize the Second Amendment as a fundamental right, which is what he did in Heller.  The Second Amendment community owes him an enormous debt that cannot be repaid just in words.

He changed the entire debate on gun control single handedly within the last two years.  The gun rights community has moved from a defensive position to an offensive position as a direct result of his actions.  Now even more Americans feel the Second Amendment is an individual right, not the right of the government to arm a militia.  It is a shame that his thunder was taken away in this case.  But, he has no one to blame but himself.  However, he will be back.  The court has not heard the last of this man on the Privileges and Immunities clause, nor the Second Amendment.

As for Chicago’s attorney, Mr. Feldman, let’s say it isn’t fun to be on the losing side of an issue.  I don’t know where he stands personally on the issue, but it is neither here nor there.  It wasn’t an easy argument to make no matter what your personal beliefs may be.  He was challenged numerous times as he tried to make an argument that some of the Amendment might be incorporated, while some part of it wouldn’t be.  Confusing to you?  Confusing to me as well.  And confusing to the court.  Chief Justice Roberts attempted to define his position by saying that the court should shave pieces of various incorporated rights here and there to fit some kind of “ordered liberty” concept that Feldman kept referring to in his argument.  Here’s a typical example of what Feldman was up against in an exchange with Justice Scalia:

MR. FELDMAN: No, what I'd would say is that --what I would say is if the Court -- what I was

saying is that if the Court approaches it from the standpoint of perhaps if there is -- if the Court

chooses in an appropriate case to recognize a fundamental right to self-defense, it would then

raise those kinds of questions. And someone could make the case that they are being denied any

rights of self-defense or any reasonable right to exercise self-defense because of a jurisdiction's

firearms regulations; the Court could address that. That's not a claim that has been made in this

case, that's not a claim that could be made in this case.


JUSTICE SCALIA: See, the right to keep and bear arms is right there, it's right there in the Bill of

Rights. Where do you find the right to self-defense?


MR. FELDMAN: Well, I –


JUSTICE SCALIA: You -- you want us to impose that one on the States but not -- not the explicit

guarantee of the right to keep and bear arms. That seems very strange.


MR. FELDMAN: No, actually I -- I don't want to impose that on the States. I think it's very unlikely

that the Court would ever be called upon to, because our history for the last 200 years -- 220

years had been of reasonable State and local regulation of firearms that responds to local

conditions, to local threats of violence and so on that occur. And I don't see any reason to think

that there will be a jurisdiction that would try to sufficiently ban firearms that people wouldn't have a

reasonable means of self-defense.


JUSTICE SCALIA: The District of Columbia did.


It is believed by most this will come down to a 5-4 decision in favor of McDonald and against Chicago’s gun ban, which means incorporation of the Second Amendment to the states.  Some believe Justice Sotomayor sounded sympathetic to the plaintiff, which would turn it into a 6-3 decision.  But, sounding sympathetic doesn’t mean a thing.  Justices sometimes argue on behalf on one side or the other, only to rule in opposition to their own line of questioning.  They are after all, attorneys by trade.  Articulating an argument is what they do for a living.  We don’t know where she stands on the Second Amendment at this time, but we will certainly know by the end of June when the court publishes its ruling.

And June is when the fireworks begin.  There are at least a dozen cases lined up in anti-gun states, including California, to take the next step, including some in the court system now waiting for a McDonald ruling.  It would not surprise anyone to see a number of the new cases filed within 24 hours after the Supremes publish their ruling.  And, you can certainly expect to see Mr. Gura leading the pack with some new ones as well.