Wednesday, March 3, 2010


The Big Day was yesterday and I am cautiously optimistic. I've been busy at work and am still getting over a cold, so I didn't post about it yesterday. In fact, I haven't had the time to do much more than skim over the transcript, so you're not going to get much in this post either.

Here are my initial thoughts.

1. Gura's P&I argument was shot down immediately. The Court simply didn't want to hear it. I don't think this was that big of a misstep, and I think Gura handled himself quite well afterwards.

2. Clement did a better job than I'd expected

3. I think Breyer & Ginsberg are still solidly against us. Breyer quibbled about statistics and complained about the Heller decision. I wouldn't be surprised to see another 5-4 decision, with Sotomayor and Stevens being the other two dissenters.

4. Feldman spent a lot of time fumbling around aimlessly and Scalia took him to the woodshed on several occasions.

5. Kennedy seemed to come out strongly against Chicago's argument. He's the swing vote, and I'm more confident that he's on board with us than I was after oral argument in Heller.

Since this isn't a very substantive post, I suggest heading over to read what a few others had to say, including Dave Hardy.

Also, Alan Gura had this to say to Justice Sotomayor during oral arguments. Had this been a schoolyard argument a resounding "Ohhh SNAP" would have been heard from the crowd of onlookers. Thank god we've got Gura on our side!

"Justice Sotomayor, States may have grown accustomed to violating the rights of American citizens, but that does not bootstrap those violations into something that is constitutional."

- Alan Gura - Arguing before the Supreme Court in McDonald


R. Stanton Scott said...

Do you think the Founders intended to apply the Second Amendment to the States?

Or simply to limit the power of Congress?

Mike W. said...

Mr. Scott - Do you think the Founders intended to apply the 1st Amendment to the states or only to limit the power of Congress?

After all, the plain language of the 1st Amendment says "CONGRESS shall make no law," yet the 1st has been incorporated against the States.

The 2nd Amendment on the other hand simply says "Shall not be infringed"

If you're making the argument that the 2A not apply to the states, do you support doing away with the 14th amendment and ALL Due Process Incorporation.

Can a state or locality decide women don't have the right to vote? Is it permissible for a state/locality to bring back slavery or segregation?

The 2nd Amendment is a fundamental right. In modern Constitutional jurisprudence (I.E. the last 100 years or so) the protections guaranteed by such rights protect against intrustion by state & local governments as well as the Federal government.

Mike W. said...

Heh, I'm not the least bit surprised to see Mr. Scott's not actually interested in discussion.