I filed reports on the Chicago-gun-ban case, McDonald v. Chicago, on March 1 and 2, 2010, from the U.S. Supreme Court, where I was honored to have a reserved seat for oral argument. As usual, I managed to get a view of things the lamestream media simply avoided, distorted, reported incorrectly, omitted key details, and understood so poorly they did more to misinform that enlighten the public. I'll have a more detailed analysis posted here soon.
Page Nine No. 80
Mar. 1, 2010 (Late)
[Bawky hotel computer connection -- excuses for bad format, reserve the right to correct quickly made word choices etc.]
I'm back in my hotel, having endured the weather in front of the U.S. Supreme Court, anticipating oral arguments in McDonald v. Chicago in the a.m., the case that will decide the standing of our Second Amendment rights in the 50 states.
Well, people are lining up alright. Young people who can withstand it.
It's bitter cold with a 20 MPH wind, but if you've decided to come here for the latest most seminal gun-rights case imaginable that's not going to stop you.
At 5PM when I arrived (night before the oral argument) there were eight people awaiting seats for tomorrow's McDonald v. Chicago 14th Amendment/Second Amendment case. By the time I left, with my feet too numb to feel, there were thirteen people trickled in, including a GW law-school student and her Mom who brought an air mattress and a comforter.
When I cell-phoned some of the stalwarts later, before beginning this draft, I was told there were nearly 50 people there, including 15 or so high-school students who decided to rough it and see a landmark case at the Supreme Court. Only 50 are guaranteed seats, so the window of opportunity is practically closed. The Marshall's office expected the crowd to develop in the a.m., looks like they'll be SOL. Coulda been worse -- for Heller, the line started TWO days ahead of time. This night-before stuff is child's play. But it's COOOOOLD.
As usual, the hale and hearty on line are more knowledgeable about this case
than most of the public (and the media -- Wash Post made their above-the-fold front-page story today a referendum on Justice Scalia, read like an unsavory biography (they don't like the guy!), instead of the merits and implications of the case; what facts Court reporter Robert Barnes did provide were out of whack, thin, misleading, pretty standard for that rag. Guess what they chose for an illustration -- a picture of Chris Broughton carrying his AR-15 at the Obama rally in Phoenix!! I kid you not. That makes sense, right? The Wash Compost's idea of a gun image is a months-old piece of discriminatory controversy, not something depicting basic human rights).
We had dynamic chats on the street about the premise of the case (the Post barely touched it), constitutional realities, the unknowns, the likely outcomes, the vote -- Mike-the-blogger, incredibly knowledgable and with past cases at his fingertips with such detail and a tongue too fast even for me to follow, predicts a 9 - 0 result -- the Court will not overrule its Heller jurisprudence, and even hopelessly anti-gun-rights Ginsburg will forgo her hatred of 2A to reinstate 14A, or so he believes. Robert Cumberland flew in from California and is first in line -- and he knows his stuff. This case affects him more than even Heller -- that case set the groundwork, but this is the one that might actually force reinstatement of his abrogated rights, and he wants to be here to see it.
The carnival atmosphere is definitely lacking, there isn't a single camera crew set up -- at Heller there were dozens at this point, but no doubt there will be some tomorrow. Yet this case stands to have more net effect than Heller, it just doesn't break ground in the same way. Dick Heller was out there after I left (I got phone tips from the folks I met, seven men and one woman), he was chatting up the crowd, enjoying his 15 years of fame, McDonald's nephew plans to be on line to see the proceedings, some guy named Robert is holding a place in line in the freezing cold for a party unnamed, at $20 an hour. Dan Schmutter, attorney for JPFO dropped by to see what's up, this is definitely the hot ticket in town -- all seats in Chambers are reserved, save for the precious few for the rabble (what one lawyer calls the public).
Perhaps the most telling perspective came from a British theology professor visiting here, met him in a bar (Maddy's) on the frigid way home -- he thinks the only rights you legitimately have are those the government gives you. You can have a gun if government "allows" it, with no ammo, locked in a locker, and this is freedom. If he was on the Court we'd be doomed. I'm not making this up.
Exhausted, need to pack, will observe tomorrow and provide my observations soon. Real soon.
Page Nine No. 81
Mar. 2, 2010
[Out of D.C. and now on a 550-acre ranch/firearms-training facility (Tac-Pro) in Texas to spend the night with new friends; didn't have time to get this report out before catching my flight; this is only partial, will need details and fill in many blanks, that will have to come later, better to get the basics out now, thanks for understanding.]
This case was way more complicated than Heller.
Both attorneys faced hostility from the bench. Chicago's lawyer got hit from all sides with little in the way of whatÊyou might call support. But the surprise was the way Alan Gura got blasted, even by the best friend gun-rights has up there, Justice Scalia.
Whoever or however we believed the Court might be ready to review the Privileges or Immunities clause of 14A was totally wrong. Every Justice had problems with the scope of such a decision, and poor Gura had to withstand withering assaults on his reasoning and approach.
I definitely need a transcript to go over what exactly happened, I thought audio was weak in chambers, complexity was way large, and in chatter afterwards found I wasn't the only one. How those aging Justices keep up -- and they did, note for note, cite for cite -- is a bloody miracle.
BOTTOM LINE -- it looks like the Heller majority may hold together for this case, and the Second Amendment will be incorporated against the states, under the familiar selective incorporation of Due Process. The same 2A that controls federal activity will apply to the states, no more, no less, though that issue of degree got a lot of attention. Not that the scope of 2A is all that well defined, but there was animus to the idea that incorporation would yield a "shadow" version for the states.
Gura may get the win, but not for any brilliant strategic planning -- there was open hostility to the idea, central to his arguments, of 2A being a Privilege or Immunity of citizenship (I'll discuss soon). The win, if there is one, may be more of a result of the bench being unprepared to treat 2A as some special bastard child the states do not have to follow, unlike the rest of the Bill of Rights that has been incorporated so far.
And let me tell you, thank God for the NRA. They took a lot of heat for asking for and getting some of Gura's oral argument time, using Paul Clement who had argued the government's unsavory position for a low standard of scrutiny in Heller, getting their hat in the ring. That turned out to be baloney, they were life savers. Considering the ferocity with which Gura and P&I were attacked, we were lucky to have at elegant, articulate, eloquent voice to apply 2A through Due Process. (Don't get me wrong, Chicago fared just as poorly, but for different reasons.)
Clement's arguments were so well made and so compelling, he got to speak at length without interruption, with the Justices in rapt attention. They normally interrupt constantly, this was rare, and I too sat, like everyone in chambers, in fixed attention to his illuminating words. I asked him about that afterwards and he said yeah, it was really nice getting some "air time."
There's so much more to tell, the back-and-forth over substantive and procedural due process, and the -- un-frickin-believable -- lengthy consideration by the Justices of how much RKBA we'd enjoy if there was "no Second Amendment" (protected instead as a privilege or immunity), plus Breyer's astounding hostility towards guns in general ("guns kill!"), and Stevens' 'parading around with guns' concerns... it'll have to be later (been on the go since 5:30 a.m., probably when I return to Phoenix, beginning of next week.
Coming soon. I need to study the transcript, review my notes, collect my thoughts, and dig out from under the piles that accumulated during my jaunt.
April 13, 2010:
My analysis of oral argument is too long to include on this page.
It was a roller coaster, both sides got their butts kicked.
See what happened. If you're into this sort of thing,
it's an exciting read.
At least look, cool things to see:
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