Now that I finally went over the transcript, I'm inclined to agree with Antipitas. I don't think the Court is as hostile to PoI as some people think it is. My suspicion is that too many people are influenced by Denniston's report. I actually think that oral argument for PoI was not particularly bad for Gura. One should not be surprised that the justices are reluctant about overturning a 140-year-old precedent.
Now, a few additional thoughts:
1. It seems to me that Gura and Clement have the most coherent responses. Feldman soon collapsed into incoherence and I had trouble trying to understand exactly what argument he was trying to present.
2. Justice Scalia's by now famous "darling of the professoriate" dig at Gura may be harsh, but I can't help but remember that Scalia himself was once a professor at the University of Chicago....
That aside, when Scalia brought up the Slaughterhouse cases' antiquity, Gura should've quoted a concurrence in Payne v. Tennessee: "[W]hat would enshrine power as the governing principle of this Court is the notion that an important constitutional decision with plainly inadequate rational support must be left in place for the sole reason that it once attracted five votes."
Author of the concurrence? A certain Justice Antonin Scalia.
3. The problems with Gura's argument are:
a) Gura can't distinguish between DP and PoI incorporation.
There is no way to square the circle. If Gura suggested that the 2 are substantially different, then there is no chance for the Court to declare that DP incorporation is wrong and threaten the incorporation of everything else. But if the 2 are substantially the same, then why bother with PoI since DP has already been done? This is the point that Justice Sotomayor (bottom of page 4) brought up and Justices Stevens, Scalia, Kennedy, and CJ Roberts followed up. Gura's response was that PoI is the more logical path in terms of text and history. Prof. Randy Barnett rightly noted that no one on the Court actually challenged that point. But the fact remains that being the more logical answer cannot be the only rationale the Court relies upon to overturn precedents of such antiquity. To do so, the Court usually needs to conclude that the result is wrong as well. Whatever one might think about DP incorporation, few would argue that incorporation itself is wrong. For Gura to argue that would be to destroy his own case.
b) The Pandora's box problem.
Gura tried to answer Justice Ginsburg's question about unenumerated rights (bottom of page 8). In doing so, he made the following (perhaps unavoidable) faux pas:
i. By admitting that he can't list all unenumerated rights, he only reinforced conservative concern that it may be abused.
ii. By naming the right to contract, he only reinforced liberal suspicion that this is a libertarian effort to bring back Lochner.
So with one response, Gura successfully antagonized everyone on the Court. Then there is:
c) It also becomes impossible to avoid the point #3 that Prof. Orin Kerr made: "To my mind, that’s one of the oddities of Gura’s originalist argument: It is 100% originalist but only 50% of the time."
To put it another way: Gura's argument is 100% originalist but his application is only 50% originalist. Not only does this reinforce the impression that Gura is on a libertarian crusade, it also creates a very bad impression, the impression that Gura is being disingenuous with his claim to originalism.
I'm sorry if this comes across as being very critical of Gura. I remain of the opinion that PoI incorporation is more logical and I doubt that any other PoI supporter could do better than he did. Gura's problem was that DP incorporation got there first. Gura tried to lessen the shock to the system by suggesting that the 2 can co-exist. But he also can't help but make the argument that PoI is superior. Otherwise, there would be no reason for the Court to even consider PoI. That in turn requires him to undermine DP and creates the possibility that DP incorporation may be undermined by his arguments.
4. I have to say that I'm very disappointed by Justice Breyer. Not only does he appear to be bitter about his defeat in Heller and is unwilling to accept the result, but he brought up the age-old tripe of crime statistics again. Contrast that with Justice Stevens. He was also on the side that lost in Heller but unlike Breyer, he moved on by attempting to limit the 2nd Amendment's reach with new arguments. It's curious that the older of the 2 justices seems to have the more active mind. I was glad to see Scalia intervene with the point about Miranda rights.
5. I think that the liberal attempt to weaken McDonald with the idea of partial incorporation to co-opt someone from the Heller majority probably failed. It also goes to show their disingenuousness. Can anyone imagine a liberal accepting partial incorporation of the 1st Amendment?
6. As for scrutiny, I doubt the Court will ever directly answer the question. I suspect that the Court will want to bifurcate the 2nd Amendment so that both strict and intermediate scrutiny apply. Some 2nd Amendment rights such as self-defense and arms like handguns will be protected by strict scrutiny. Others such as carry and silencers may be intermediate scrutiny. The problem about this approach is that I can't think of any constitutional justification for bifurcating an enumerated right like this and I doubt the Court can, either. Furthermore, enumerated rights enjoy strict scrutiny. That may explain why the Court during oral argument was searching for a justification to weaken the 2nd Amendment.
The situation is still reasonably favorable for gun owners since rational basis was ruled out in Heller. Intellectual honesty may push the Heller majority toward strict scrutiny while a desire to compromise with the minority and minimize disruptions to the status quo may point to intermediate scrutiny. So the Court may be conflicted about what the standard should be. The danger in pushing the Court too much is that they might end up with intermediate scrutiny instead. That will be unfortunate because in light of liberal recalcitrance, for conservatives to adopt intermediate scrutiny means that it is highly unlikely for a future Court to change its mind and adopt strict scrutiny instead. So, if the Court is not ready to declare strict scrutiny, letting it go with a de facto intermediate scrutiny without openly announcing the standard may be, for the moment, the best outcome. In the mean time, I think many restrictive gun laws can still be defeated by intermediate scrutiny. Gun rights supporters can preoccupy themselves by fighting those until there is a more favorable balance on the Court. At the danger of straying into a political discussion, I will just note that since Obama is likely to replace Justices Stevens and Ginsburg with liberals, those seats are beyond our reach for the next 20-30 years. Justices Scalia and Kennedy are almost 74 now. After those 2 liberals are replaced, they are the ones most likely to retire.
In conclusion, I'm not as pessimistic about the PoI argument as Ilya Shapiro, Clark Neily, and Roger Pilon. Gura's concluding response, by anchoring PoI in its text and historical background, may lessen conservative concerns about its abuse, as did Gura's failure to distinguish DP and PoI in their application. I don't know whether liberals will join PoI incorporation. (Judging from the NAACP brief, I'm inclined to doubt it.) However, I can think up of a way for Justice Thomas to force it on the majority. If liberals reject incorporation, (They can do so by continuing to tether the 2nd Amendment to the Militia Clause, which Breyer tried to bring back.) then incorporation will only win by 5-4. If Justice Thomas insists that he will not sign onto any opinion that does not include PoI incorporation, then the majority will be splintered. In this scenario, the Chief Justice may decide to include PoI along with DP for the sake of a unified majority. Jan Crawford Greenburg's book on the Court revealed that Thomas can be very forceful during the justices' private conference and that he sometimes succeeded in pulling other conservatives to his side so I think my hypothetical scenario still has a chance of coming true.
Now, a few additional thoughts:
1. It seems to me that Gura and Clement have the most coherent responses. Feldman soon collapsed into incoherence and I had trouble trying to understand exactly what argument he was trying to present.
2. Justice Scalia's by now famous "darling of the professoriate" dig at Gura may be harsh, but I can't help but remember that Scalia himself was once a professor at the University of Chicago....
That aside, when Scalia brought up the Slaughterhouse cases' antiquity, Gura should've quoted a concurrence in Payne v. Tennessee: "[W]hat would enshrine power as the governing principle of this Court is the notion that an important constitutional decision with plainly inadequate rational support must be left in place for the sole reason that it once attracted five votes."
Author of the concurrence? A certain Justice Antonin Scalia.
3. The problems with Gura's argument are:
a) Gura can't distinguish between DP and PoI incorporation.
There is no way to square the circle. If Gura suggested that the 2 are substantially different, then there is no chance for the Court to declare that DP incorporation is wrong and threaten the incorporation of everything else. But if the 2 are substantially the same, then why bother with PoI since DP has already been done? This is the point that Justice Sotomayor (bottom of page 4) brought up and Justices Stevens, Scalia, Kennedy, and CJ Roberts followed up. Gura's response was that PoI is the more logical path in terms of text and history. Prof. Randy Barnett rightly noted that no one on the Court actually challenged that point. But the fact remains that being the more logical answer cannot be the only rationale the Court relies upon to overturn precedents of such antiquity. To do so, the Court usually needs to conclude that the result is wrong as well. Whatever one might think about DP incorporation, few would argue that incorporation itself is wrong. For Gura to argue that would be to destroy his own case.
b) The Pandora's box problem.
Gura tried to answer Justice Ginsburg's question about unenumerated rights (bottom of page 8). In doing so, he made the following (perhaps unavoidable) faux pas:
i. By admitting that he can't list all unenumerated rights, he only reinforced conservative concern that it may be abused.
ii. By naming the right to contract, he only reinforced liberal suspicion that this is a libertarian effort to bring back Lochner.
So with one response, Gura successfully antagonized everyone on the Court. Then there is:
c) It also becomes impossible to avoid the point #3 that Prof. Orin Kerr made: "To my mind, that’s one of the oddities of Gura’s originalist argument: It is 100% originalist but only 50% of the time."
To put it another way: Gura's argument is 100% originalist but his application is only 50% originalist. Not only does this reinforce the impression that Gura is on a libertarian crusade, it also creates a very bad impression, the impression that Gura is being disingenuous with his claim to originalism.
I'm sorry if this comes across as being very critical of Gura. I remain of the opinion that PoI incorporation is more logical and I doubt that any other PoI supporter could do better than he did. Gura's problem was that DP incorporation got there first. Gura tried to lessen the shock to the system by suggesting that the 2 can co-exist. But he also can't help but make the argument that PoI is superior. Otherwise, there would be no reason for the Court to even consider PoI. That in turn requires him to undermine DP and creates the possibility that DP incorporation may be undermined by his arguments.
4. I have to say that I'm very disappointed by Justice Breyer. Not only does he appear to be bitter about his defeat in Heller and is unwilling to accept the result, but he brought up the age-old tripe of crime statistics again. Contrast that with Justice Stevens. He was also on the side that lost in Heller but unlike Breyer, he moved on by attempting to limit the 2nd Amendment's reach with new arguments. It's curious that the older of the 2 justices seems to have the more active mind. I was glad to see Scalia intervene with the point about Miranda rights.
5. I think that the liberal attempt to weaken McDonald with the idea of partial incorporation to co-opt someone from the Heller majority probably failed. It also goes to show their disingenuousness. Can anyone imagine a liberal accepting partial incorporation of the 1st Amendment?
6. As for scrutiny, I doubt the Court will ever directly answer the question. I suspect that the Court will want to bifurcate the 2nd Amendment so that both strict and intermediate scrutiny apply. Some 2nd Amendment rights such as self-defense and arms like handguns will be protected by strict scrutiny. Others such as carry and silencers may be intermediate scrutiny. The problem about this approach is that I can't think of any constitutional justification for bifurcating an enumerated right like this and I doubt the Court can, either. Furthermore, enumerated rights enjoy strict scrutiny. That may explain why the Court during oral argument was searching for a justification to weaken the 2nd Amendment.
The situation is still reasonably favorable for gun owners since rational basis was ruled out in Heller. Intellectual honesty may push the Heller majority toward strict scrutiny while a desire to compromise with the minority and minimize disruptions to the status quo may point to intermediate scrutiny. So the Court may be conflicted about what the standard should be. The danger in pushing the Court too much is that they might end up with intermediate scrutiny instead. That will be unfortunate because in light of liberal recalcitrance, for conservatives to adopt intermediate scrutiny means that it is highly unlikely for a future Court to change its mind and adopt strict scrutiny instead. So, if the Court is not ready to declare strict scrutiny, letting it go with a de facto intermediate scrutiny without openly announcing the standard may be, for the moment, the best outcome. In the mean time, I think many restrictive gun laws can still be defeated by intermediate scrutiny. Gun rights supporters can preoccupy themselves by fighting those until there is a more favorable balance on the Court. At the danger of straying into a political discussion, I will just note that since Obama is likely to replace Justices Stevens and Ginsburg with liberals, those seats are beyond our reach for the next 20-30 years. Justices Scalia and Kennedy are almost 74 now. After those 2 liberals are replaced, they are the ones most likely to retire.
In conclusion, I'm not as pessimistic about the PoI argument as Ilya Shapiro, Clark Neily, and Roger Pilon. Gura's concluding response, by anchoring PoI in its text and historical background, may lessen conservative concerns about its abuse, as did Gura's failure to distinguish DP and PoI in their application. I don't know whether liberals will join PoI incorporation. (Judging from the NAACP brief, I'm inclined to doubt it.) However, I can think up of a way for Justice Thomas to force it on the majority. If liberals reject incorporation, (They can do so by continuing to tether the 2nd Amendment to the Militia Clause, which Breyer tried to bring back.) then incorporation will only win by 5-4. If Justice Thomas insists that he will not sign onto any opinion that does not include PoI incorporation, then the majority will be splintered. In this scenario, the Chief Justice may decide to include PoI along with DP for the sake of a unified majority. Jan Crawford Greenburg's book on the Court revealed that Thomas can be very forceful during the justices' private conference and that he sometimes succeeded in pulling other conservatives to his side so I think my hypothetical scenario still has a chance of coming true.
