Oral argument in the crucial Second Amendment case of McDonald v. Chicago has just ended at the Supreme Court, and one thing appears clear: the justices are not yet ready to open what seems to them to be a can of worms by invoking the "privileges or immunities" clause of the Fourteenth Amendment as the way to apply the right to bear arms to states and localities. The more traditional route of the "due process" clause seems almost certain to be Court's chosen path.
Alan Gura, who was arguing for the "privileges or immunities" route, ran into skepticism almost from the moment he began, when ChiefJustice John Roberts Jr. said Gura had a "heavy burden" because his approach entailed striking down the Slaughterhouse cases of 1873.
Justice Antonin Scalia piled on by asking Gura why he'd take this more difficult path "unless you're bucking for some place on a law school faculty." The privileges or immunities clause, Scalia added sarcastically, has become the "darling of the professoriate." Justice Stephen Breyer also seemed to opt for caution, asking Gura questions about the implications of using a new part of the Constitution to apply the Second Amendment to states.
The justices seemed almost to sigh in relief when former solicitor general Paul Clement, representing the National Rifle Association on the same side as Gura, rose to reassure the justices that using the due process clause was a "remarkably straightforward" way to apply the Second Amendment that would not involve upsetting precedent.
More on the argument and other Supreme Court action here and at nlj.com later today.