News: Old McDonald wants a gun, ee-i-ee-i-o
Anytime I can combine law geekery with gun geekery, I get a case of the warm fuzzies. Well, Tuesday was one of those days - the Supreme Court heard oral arguments in the McDonald v. Chicago case challenging the constitutionality of Chicago's handgun ban.
Here's a tip from my old Appellate Advocacy professor at UF, Joe Jackson - if, during your oral argument, you sound like you're arguing for the other side, you're in trouble. For instance, here's part of the transcript from the Chicago presentation:
JUSTICE ALITO: And your position is that a -- a State or local government could completely ban all firearms?
MR. FELDMAN: If the State and local government did that, I think would it raise two questions. One question would be, there is always review under the Due Process Clause and under the Equal Protection Clause for provisions that are arbitrary. And I would want to know why a State had done that. It is certainly relevant that in the last 220 years no State has done that or even come close, and in fact as the briefs from the other side of the case from some of the States show, they are quite the opposite direction. But the second -
JUSTICE SCALIA: I -- I don't understand.
JUSTICE KENNEDY: What is the due process liberty -
JUSTICE SCALIA: What basis would there be to -- to deny that?
MR. FELDMAN: Well, there's always -
JUSTICE SCALIA: Firearms kill people is what the States say, and -- and we ban it.
MR. FELDMAN: Right and that has -
JUSTICE SCALIA: Other countries have done that.
MR. FELDMAN: It has not led to States doing it in -- in this country.
JUSTICE SCALIA: But if they did do it, I think would you have to say it's perfectly okay.
MR. FELDMAN: No, the second -- there would be two rights questions actually. One would be was arbitrary or is that actually based on a reasoned -that -- sound -
JUSTICE SCALIA: The reason is guns are dangerous.
MR. FELDMAN: The second argument would be, the Court at that point, if in the very unlikely event a that a State or local government tried to do that [*cough* NYC, Chicago *cough*], then the Court might have to wrestle at that point with the question of the relationship between self-defense and the right to keep and bear arms. In other words, this Court has never said -
JUSTICE KENNEDY: But would self-defense be part of liberty under the due -- substantive meaning of the Due Process Clause?
MR. FELDMAN: I mean, if by that is, do you have a substantive right to self-defense, the Court actually has never answered that question, but I am willing to accept that there is such a right.
To be fair, Mr. Feldman has an unenviable task - try to cede as much ground as possible (keeping in mind the Heller opinion), but stop short of elevating the 2A right to keep and bear arms to the realm of substantive due process incorporation (the "privileges or immunities" argument, incidentally, was DOA).
As an aside, Otis McDonald was all over the news yesterday. I have to admit, it'd be hard to find a better example of polished test case manufacturing - McDonald is about as sympathetic as they come. In a movie about the case, he'd be played by Morgan Freeman: