My report from line is now live at the ABA Journal:
The line doesn’t lie.
By 4 p.m. on Heller Eve two years ago, forty people stood in line along One First Street. At the same time this past Monday, the day before oral arguments in Heller’s sequel, McDonald v. City of Chicago, there were only seven of us.
As the sun set over the Supreme Court, we wondered why the line wasn’t longer; after all, this was the case that would resurrect the Privileges or Immunities Clause of the Fourteenth Amendment and introduce a new constitutional order for all fundamental rights! Nevermind where all the gun nuts were—where were all the abortion warriors, railroad robber barons, education rights revolutionaries, and health care socialists?
But the line doesn’t lie. We were just too wrapped up in McDonald’s hype to listen. This was going to be a simple incorporation case. [...]
But none of this is to say that McDonald’s twenty-four hour line was not extraordinary in its own right.
Read the rest here.
And if you haven’t yet read the NYT’s story from the McDonald line, you may do so here.
- Chief Justice Roberts, super-restrained stare decisis security guard:
- 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.
Your approach - your original approach [with the Privileges or Immunities Clause] would give judges a lot more power and flexibility in determining what rights they think a good idea than they have now with the constraints of the Due Process Clause.
- Justice Scalia, faint-hearted originalist foe of abortion and gay rights; rock-ribbed textualist:
- I’m not talking about whether — whether the Slaughter-House Cases were right or wrong….[W]hy are you asking us to overrule 150, 140 years of prior law, when — when you can reach your result under substantive due [process]? [...] Why do you want to undertake that burden instead of just arguing substantive due process, which as much as I think it’s wrong, I have — even I have acquiesced in it?
- I guess we have applied substantive due process with regard to the necessity of permitting homosexual conduct and with respect to the necessity of permitting abortion on demand.
- That may be the reason it was put there. But it was put there. And that’s the crucial fact. It is either or it is not there. And if it’s there, it doesn’t seem to me to make any difference why they chose to put that one there as opposed to other ones that they didn’t put there. It’s either there or not.
- Justice Stevens, old man minimalist:
- [W]ould you comment on Justice Kennedy’s question about whether it necessarily incorporates every jot and tittle of the Federal right into the [states], keeping in mind that with regard to trial by jury in criminal cases there is a difference, non-unanimous juries. Why does this incorporation have to be every bit as broad as the Second Amendment itself?
- Justice Ginsburg, foreign law feminist:
- Did married women at that time across the nation have the right to contract, to hold property, to sue and be sued?
- [I]f the notion is that these are principles that any free society would adopt, well, a lot of free societies have rejected the right to keep and bear arms.
- Justice Breyer, professorial pragmatist:
- Look at the statistics. You know, one side says a million people killed by guns. Chicago says that their — their gun law has saved hundreds, including – and they have statistics — including lots of women in domestic cases. And the other side disputes it. This is a highly statistical matter.
- [L]et’s make up an imaginary importance of ordered liberty chart, and we give it to James Madison and the other framers. And he would say insofar as that right to bear arms is important for the purpose of maintaining the militia, it’s high on the ordered liberty chart. Insofar as the right to bear arms is there to shoot burglars, it’s low on the ordered liberty chart.
- Justice Sotomayor, “she really can’t be that moderate, can she?”
- [O]ur selective incorporation doctrine under the Due Process Clause does suggest that there are some rights that were fundamental enough to be incorporated and some that are fundamental, but not fundamental enough to be incorporated. We have drawn a line. Is it the ordered liberty concept alone in our jurisprudence that you are relying upon, or is it any other articulation of our incorporation doctrine that supports your view?
- Justice Kennedy, Coy Finder of Fundamental Rights:
- What are these other unenumerated rights?
- Justice Alito, throwback:
- Well, doesn’t [the PI Clause] include the right to contract? Isn’t that an unenumerated right?
- Justice Thomas, silent but scrutable. He’ll be the only one voting to overturn Slaughter-House and revive the PI Clause.
My write-up of this morning’s oral argument in McDonald v. City of Chicago is now live at ABA Journal:
In McDonald v. City of Chicago, the Supreme Court made clear that the penalty for constitutional grave-digging is death by firing squad. [...]
The big question going into today’s argument was not whether the justices would incorporate the Second Amendment—the Heller Five were guaranteed to do so—but rather how they would incorporate.
This is where it got bloody for Alan Gura, petitioners’ lead counsel and Heller’s victorious advocate.
Read the rest here.
Adam Liptak of the NYT has scooped my McDonald vox populi column and I can’t thank him more for doing so.
WASHINGTON — Mike Sacks likes to be the first person in line for big Supreme Court arguments, and he was feeling pretty confident when he arrived at the court Monday morning around 8, 26 hours before the court would hear a big gun-control case.
To all the readers directed to F1@1F from Mr. Liptak’s story, please enjoy your stay and be sure to subscribe!
Just got home from nearly 24 hours out on the pavement. The company was wonderful all night and the line got mega-long come daybreak.
Despite my pout above, I am honored to claim Third One @ One First behind Rob and Larken. They flew out from Malibu, CA, to see McDonald and hit the concrete at 5:30am yesterday. Champions, both of them!
A few notes:
- Look for Adam Liptak of the NYT to scoop my vox populi column tonight or tomorrow. He came out last night and this morning to cover F1@1F and the line experience more generally.
- There were far fewer gun rights supporters in line than I expected. I deeply enjoyed getting to know those who were there, however.
- Huge thanks to ABA Journal for buying the line pizza last night!
- Thanks to Josh Blackman for teaming up with me to deliver some fun overnight coverage. Check out joshblackman.com for some more video and commentary.
- Dick Heller came out to entertain the linegoers last night and this morning. He was especially a hit among the fifteen high schoolers from Cupertino, CA, that braved the cold overnight wait.
- Predictions for McDonald are all over the place, from 5-4 to 9-0. The only thing everyone agrees upon is that the Second Amendment will be incorporated against the states.
- Finally, I think I got the makings of the first Supreme Court Side Walk episode. I hope to have it up here in some fashion by the week’s end.
Time to dethaw, get clean, suit up, and head back out.
All hell broke loose around 11pm tonight: