Alan Gura is hopelessly fixated on presenting the case based on the "rights and immunities" clause of the 14th Amendment. This didn't sit well with many of the Justices including Scalia who is usually deemed as being pro-Second Amendment. Thankfully, Paul Clement ,of the NRA (which was granted "Cert"), was clearly presenting arguments based primarily on the settled "due process" clause of the 14th Amendment. This was obviously what most Justices wanted to hear but Gura seemed relatively oblivious to the clear signals that he was given by Scalia and others that a "rights and immunities" argument had too many traps and pitfalls to be likely to succeed. In any event, Clement probably saved the day as far as oral arguments are concerned. In the final analysis, the multitude of written briefs will undoubtedly carry more weight than the oral arguments. I think that we will probably win but like many others...I foresee many "strings" being attached to the decision.
I think Clement & Gura were pretty much making the same argument...
Although, stating it in a different way...
I like Alan Gura's "privileges and immunities clause" approach and I like Paul Clement's "Liberties Clause" approach...
As I mentioned previously, I am furious that Alan Gura, qualified weapons in "Common Use" protected by the Second Amendment, that will be a pivotal piece if SCOTUS includes it in their Opinion, as it will leave the future flood gates open, when today's handguns are no longer in "common use"...
There is no attrition clause/common use clause in the Constitution...
Cannons were never in common use by farmers (WE THE PEOPLE) but we started the Revolution War over its ban by the British...
Cannons were never in common use by farmers (WE THE PEOPLE) but we fought & died at the Alamo over its ban by General Santa Anna...
Isn't it interesting that we can still own a functioning cannon but not a rocket launcher?
Isn't it interesting that we can still own a gatling gun, but not a machine gun...
Isn't it interesting that we can still own a baseball bat or a night stick, or a brick/2x4/broken bottle but not Nunchaku's in many states?
E.G.: Consider the following snippets of the two attorneys favoring 14th Amendment incorporation that were allowed to speak...
ORAL ARGUMENT OF ALAN GURA ON BEHALF OF THE PETITIONERS MR. GURA: Mr. Chief Justice, and may it please the Court:
Although Chicago's ordinances cannot survive the faithful application of due process doctrines, there is an even simpler, more essential reason for reversing the lower court's judgment. The Constitution's plain text, as understood by the people that ratified it, mandates this result.
In 1868, our nation made a promise to the McDonald family that they and their descendants would henceforth be American citizens, and with American citizenship came the guarantee enshrined in our Constitution that no State could make or enforce any law which shall abridge the privileges or immunities of American citizenship.
The rights so guaranteed were not trivial. The Civil War was not fought because States were attacking people on the high seas or blocking access to the Bureau of Engraving and Printing. The rights secured by the Fourteenth Amendment were understood to include the fundamental rights honored by any free government and the personal guarantees of the... (Government/Constitution/Second Amendment? subject in question). Cut off by Chief Justice Roberts...
...
Alan Gura to... 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... (by using due process)
...
JUSTICE GINSBURG: (to Alan Gura) Are you saying that the rights -- if you could clarify your conception of privileges and immunities. Am I right in thinking that to keep and bear arms would be included even if we had no Second Amendment, as you envision privileges and immunities?
MR. GURA: Justice Ginsburg, that is correct. The framers and the public understood the term... Cut off by Justice Ginsburg...
...
MR. GURA: (to) Justice Scalia, we would be extremely happy if the Court reverses the lower court based on the substantive due process theory that we argued in the Seventh Circuit. And indeed, had the Seventh Circuit accepted our substantive due process theory, which was our primary theory in the court below, we might not be here, or perhaps we would be here in a different posture...
JUSTICE KENNEDY: (to James Feldman) ... all people, most people in the United States, the public meaning of the Second Amendment was that there was an individual right to bear arms, and that's because it was fundamental. If it's not fundamental, then Heller is wrong, it seems to me...
ORAL ARGUMENT OF PAUL D. CLEMENT
ON BEHALF OF RESPONDENTS NATIONAL RIFLE
ASSOCIATION, INC., ET AL.,
IN SUPPORT OF PETITIONERS
MR. CLEMENT: Mr. Chief Justice and may it
please the Court:
Under this court's existing jurisprudence, the case for incorporating the Second Amendment through the Due Process Clause is remarkably straightforward. The Second Amendment, like the First and the Fourth, protects a fundamental preexisting right that is guaranteed to the people... (By the Second Amendment/Government/Constitution? subject in question). Cut off by Justice Stevens...
I like the 2nd sentence "The Second Amendment, like the First and the Fourth, protects a fundamental preexisting right that is guaranteed to the people" but Clement makes it ambiguous with his 1st sentence referencing a "due process" exception...
There is other applicable examples in the oral arguments by all attorneys and the justices, but I think the majority consensuses of those present is that the Second Amendment is a Fundamental, Preexisting right guaranteed to at least the people of the United States, regardless of citizenship...
AND IF they incorporate it into the 14th Amendment they should set precedent by incorporating it under "privileges or immunities" which I feel would have the effect of saying No State can ban any weapon period; D.C. v. Heller already gives them the ability to regulate; whereas, I think IF they go the due process route which Clement appeared to infer he supported then the states can do what they are doing now and bans will be allowed, at the discretion of the States and other municipalities, and it will have a net effect of making D.C. v. Heller moot...
Another likely scenario is they really muddy the waters and incorporate in part using both clauses...
Effectively saying yes you have a fundamental right, that the State or Fed can arbitrate how you exercise that right...
Let me try to be more clear...
The 14th Amendments "DUE PROCESS OF LAW" is Attorney Speak for supporting the concept of the Constitution being a living document...
Meaning it can change whenever the political powers that be change majorities or positions, which in my view was clearly not the intent of the founding fathers...
14th Amendment Section one is the only section before the court...
Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws...
5th Amendment...
No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.
See the intentional redundancy & ambiguity of the 14th Amendment when you look at the first 10 Bill of Rights?
Attorney Abe Lincoln infringed the constitution more than anybody else in U.S. History to-date, Attorney Barack Obama is catching up fast...
What do these to gentlemen have in common?
Besides being Attorneys from Illinois; They were both great orators loved by the people and history (at least with Lincoln), for nothing more then their ability to speak well and mislead and misrepresent things...
Abe Lincoln & Andrew Johnson after him were onto to the limits and the chains the constitution put on the Fed, which were eliminated almost entirely with the ambiguity of the 14th Amendment...
In one stroke, the power of the people being 1st, the State being 2nd, and the Fed being 3rd was turned upside down, and now WE THE PEOPLE are at the bottom, State is 2nd and Fed is 1st...
The Oral Arguments...
Link Removed
My sincere hope as I previously stated is that the court does not incorporate the 2nd Amendment under the 14th in any way shape or form; but simply reaffirms that it is a fundamental, preexisting right, and that any ban of any type/class of weapon (machine-guns, nunchaku's, etc); additionally, any regulation that makes said ownership cost-prohibitive is unconstitutional...
Effectively acknowledge that the 2nd Amendment can stand on its own, and that you cannot read anymore into "SHALL NOT BE INFRINGED" ...
WTFU SHEEPLE!
Take back the Republic!
FYI: Read this related, ongoing thread here at USACARRY for further detail...
New Supreme Court cases could affect State 2a laws
