From the transcript (PDF):
Alan Gura:
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 —
And here he’s interrupted by Chief Justice Roberts:
Of course, this argument is contrary to the Slaughter-House cases, which have been the law for 140 years. It might be simpler, but it’s a big — it’s a heavy burden for you to carry to suggest that we ought to overrule that decision.
Gura:
Your Honor, the Slaughter-House cases should not have any stare decisis effect before the Court. The Court has always found that when a case is extremely wrong, when there is a great consensus that it was simply not decided correctly, especially in a constitutional matter, it has less force.
Justice Sotomayor interjects:
What is it that has -has been caused by it that we have to remedy, meaning States have relied on having no grand juries, States have relied on not having civil trials in certain money cases, they have relied on regulating the use of firearms based on us, the Court, not incorporating the Privileges and Immunities Clause in the way that you identify it.
Gura attempts to respond:
State —
Sotomayor completes her thought:
What — in which ways has ordered liberty been badly affected?
Gura:
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.
Damned straight. But SCOTUS was having none of that. Justice Ginsburg roused herself from her nap:
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?
I’ll answer that one: HELL YES.
Gura responded:
Justice Ginsburg, that is correct. The framers and the public understood the term –
and Ginsburg overrode:
But just tell us the dimensions of what it is. I mean, we have the eight amendments, so I know you say that’s included. Keep and bear arms would be included even absent the Second Amendment. What unenumerated rights would we be declaring privileges and immunities under your conception of it?
That’s not the question, but it’s a great diversion. As North Carolina’s James Iredell noted during that state’s ratifying convention, the enumeration of some rights might be mistaken for protection of only those rights, and not others. As he said, “[I]t would not only be useless, but dangerous, to enumerate a number of rights which are not intended to be given up; because it would be implying, in the strongest manner, that every right not included in the exception might be impaired by the government without usurpation; and it would be impossible to enumerate every one. Let any one make what collection or enumeration of rights he pleases, I will immediately mention twenty or thirty more rights not contained in it.”
But the question here regards a specific enumerated right, not some lawyer’s imaginings. This is a distraction from the point, and Gura tries to (politely) call her on it:
Although it’s impossible to give a full list of all the unenumerated rights that might be protected by the Privileges and Immunities Clause, just as it is impossible to do so under the Due Process Clause, at least with respect to the Privileges and Immunities Clause we have wonderful historical guideposts. There are —
And then Scalia jumps in:
Mr. Gura, do you think it is at all easier to bring the Second Amendment under the Privileges and Immunities Clause than it is to bring it under our established law of substantive due? Is it easier to do it under privileges and immunities than it is under substantive due process?
This from a guy who really dislikes “substantive due process”? My response would have been “What does ‘easier’ have to do with it?” But I’m not the guy standing in front of the Supreme Court, either.
Gura:
It is easier in terms, perhaps, of — of the text and history of the original public understanding of —
In other words, it’s the right way to do it, but Scalia is having none of that:
No, no. I’m not talking about whether — whether the Slaughter-House Cases were right or wrong. I’m saying, assuming we give, you know, the Privileges and Immunities Clause your definition, does that make it any easier to get the Second Amendment adopted with respect to the States?
Again, what does easier have to do with it? Why should SCOTUS’ job be made easy? You’re the ones who put yourselves in this mess by not overturning Slaughter-House decades ago.
Gura:
Justice Scalia, I suppose the answer to that would be no, because —
Scalia:
Then if the answer is no, why are you asking us to overrule 150, 140 years of prior law, when — when you can reach your result under substantive due — I mean, you know, unless you are bucking for a — a place on some law school faculty —
BECAUSE IT’S THE RIGHT THING TO DO.
Scalia:
What you argue is the darling of the professoriate, for sure, but it’s also contrary to 140 years of our jurisprudence.
If it’s BAD JURISPRUDENCE, it’s THE JOB OF THE SUPREME COURT TO FIX IT. SCOTUS is the court of last resort. Slaughter-House was bad law, and it spawned a lot more bad law. The Augean stables started with one horse. Cleaning that up wasn’t easy either, but it needed doing.
This is another example of the fact that we don’t really have a “justice” system, we have a “legal” system. I’m fairly confident that, through “substantive due process,” the Second Amendment will get incorporated under the 14th, but it should be, as Chief Justice Taney described, one of the “privileges and immunities” of all citizens as it was understood and expressed in 1856’s Scott v. Sanford.
And how hard that would be shouldn’t even be a consideration of the Court.
