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Oral Argument in McDonald (with Updates)

By Lawrence Solum

The transcript is now available here.

The first reaction from Lyle Dennison is up on ScotusBlog:

 The dominant sentiment on the Court was to extend the Amendment beyond the federal level, based on the 14th Amendment?s guarantee of ?due process,? since doing so through another part of the 14th Amendment would raise too many questions about what other rights might emerge.

And:

Why,? Scalia asked Gura, ?are you asking us to overrule 140 years of law?.unless yhou are bucking for some place on some law school faculty.?  The Justice said the ?privileges or immunities? argument was ?the darling of the professoraet? but wondered why Gura would ?undertake that burden.?  And Scalia noted that the ?due process? clause ? an open-ended provision that he has strongly attacked on other occasions?  was available as the vehicle for incorporation, and added: ?Even I have acquisced in that.?   Gura somewhat meekly said ?we would be extremely happy:? if the Court used the ?due process? clause to extend the Second Amendment?s reach.

And finally:

Tellingly, however, the Chief Justice commented that ?we haven?t said anything about what the content of the Second Amendment is,? so that, over time, it may develop that state and local governments may well be allowed to impose restrictions, such as bans on carrying concealed weapons.  And Scalia reminded Feldman that the Court in the Heller decision had left room for some regulation of guns even though the Second Amendment now embraced a personal right to have a gun.  Kennedy also noted that ?there are provisions of the Constitution? that allow states to have ?significant latitude? in regulating what those provisions seek to protect.

And from Greg Stohr and Kristin Jensen on Bloomberg:

Hearing arguments in Washington today, several justices said a 2008 ruling suggested that the right to bear arms was so fundamental it should restrict states and cities as well as the federal government. The two-year-old ruling, District of Columbia v. Heller, said the Constitution?s Second Amendment protects individual rights.

?If it?s not fundamental, then Heller is wrong,? said Justice Anthony Kennedy, a member of the 5-4 majority in the earlier case and frequently a swing vote on the court.

More from Josh Blackmun, the AP, WSJ Law Blog, Tony Mauro, and the Los Angeles Times.

Full post as published by Legal Theory Blog on March 02, 2010 (boomark / email).