Having read most of the blogs, then comparing those statements with the actual text of the oral arguments, I find that people are reading into the orals what they fear. Consider the following remark by Lyle Denniston (scotusblog):
In the first comment from the bench after Gura had barely opened, Chief Justice John G. Roberts, Jr., noted that the Court had essentially scuttled that argument with its ruling in the SlaughterHouse Cases in 1873.
That was published shortly after the orals. The media and bloggers took that statement up, and ran with it. Even after the transcript was published, no one actually referred to the actual text, without looking through the Denniston filter:
C. J. Roberts said:
Of course, this argument is contrary to the Slaughter-House cases, which have been the law for 140 years. It might be simpler, but it's a big -- it's a heavy burden for you to carry to suggest that we ought to overrule that decision.
Now the above does not exactly say what Denniston has implied - That the P or I incorporation is a dead issue. If we are to believe that the P or I clause is a dead end, as regards incorporation, then we have to call C.J. Roberts a liar and a fraud:
C.J. Roberts said:
Likewise, if adherence to a precedent actually impedes the stable and orderly adjudication of future cases, its stare decisis effect is also diminished. This can happen in a number of circumstances, such as when the precedent’s validity is so hotly contested that it cannot reliably function as a basis for decision in future cases, when its rationale threatens to upend our settled jurisprudence in related areas of law, and when the precedent’s underlying reasoning has become so discredited that the Court cannot keep the precedent alive without jury-rigging new and different justifications to shore up the original mistake.
The quote above is from Roberts separate concurrence in
Citizens United. In fact, his entire concurrence, in that case, was to fully justify when and where
stare decisis should not hold.
I suggest that the Court does not operate in a vacuum. The Justices do not say one thing in one case and contradict themselves in the next case (yes, these two cases are not back-to-back. Yet the timing of the release of the
Citizens United decision, and this cases orals is, I believe, no coincidence). Either the Chief Justice is a fraud, or he has very clearly laid the groundwork for a decision in McDonald.
Many have commented upon Justice Scalias opening remarks to Gura. I suggest that this was well prepared snark. Those of us that watch/read the Court, are well acquainted with his (dry) sense of humor. This too has been passed over by most in the media and blogsphere.
What I'm suggesting is that we all stop and re-read the orals, without the Fear, Uncertainty and Doubt that seems to be all consuming with even the most ardent supporters of
McDonald. This doesn't mean those others are wrong. But perhaps you may reach a slightly different opinion, without going through the filters of those others.