John G. Roberts, Jr.: We'll hear argument first this morning in Case 08-1521, McDonald v. The City of Chicago. Mr. Gura.
Alan 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; 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--
John G. Roberts, Jr.: 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.
Alan 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.
Sonia Sotomayor: What injustice 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.
Alan Gura: State--
Sonia Sotomayor: What -- in which ways has ordered liberty been badly affected?
Alan 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.
Ruth Bader Ginsburg: 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?
Alan Gura: Justice Ginsburg, that is correct. The framers and the public understood the term--
Ruth Bader Ginsburg: 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?
Alan Gura: --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's 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--
Antonin Scalia: Mr. Gura, do you think it's 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 process?
Alan Gura: --It's--
Antonin Scalia: Is it easier to do it under privileges and immunities than it is under substantive due process?
Alan Gura: --It's easier in terms, perhaps, of -- of the text and history, the original public understanding of--
Antonin Scalia: 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?
Alan Gura: --Justice Scalia, I suppose the answer to that would be no, because--
Antonin Scalia: And 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're bucking for a -- a place on some law school faculty-- [Laughter]
Alan Gura: --No. No. I have left law school some time ago, and this is not an attempt to -- to return.
Antonin Scalia: Well, I mean, what you argue is the darling of the professoriate, for sure, but it's also contrary to 140 years of our jurisprudence. 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. [Laughter]
Alan Gura: 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.
Ruth Bader Ginsburg: But that -- that court does not have the prerogative to overturn any of this Court's decisions, and I think it said -- said as much. So it was kind of a pass-through in the court of appeals. But I really would like you to answer the question that you didn't have an opportunity to finish answering, and that is: What other enumerated rights? What does the privileges and immunities of United States citizenship embrace?
Alan Gura: Of the unenumerated rights, Justice Ginsburg?
Ruth Bader Ginsburg: Yes.
Alan Gura: Well, the framers clearly used language that to them meant rights beyond those guaranteed in the first eight amendments. And whenever they spoke about those unenumerated rights, they gave some concrete examples. So I think that there might be two categories of unenumerated rights if a claim were before the court under that provision. If a right is, for example, the sort of right that was mentioned in the Civil Rights Act of 1866, the piece of legislation enacted by a supermajority of Congress, where the Congress said, over President Johnson's veto, here are the rights of American citizenship, and they are -- they listed: To make and enforce contracts; to sue, be parties, and give evidence; to inherit, purchase, lease, sell, hold, and convey real and personal property. That's the sort of right that would be easy to find because there is a contemporaneous source for telling us--
Ruth Bader Ginsburg: Even though -- even though a large portion of the population at that time didn't have those rights?
Alan Gura: --The large -- the population at the time that did not have those rights needed their protection, primarily in the South, which is why the Civil Rights Act--
Ruth Bader Ginsburg: No, throughout -- throughout the nation at the time.
Alan Gura: --I'm sorry.
Ruth Bader Ginsburg: Did married women at that time across the nation have the right to contract, to hold property, to sue and be sued?
Alan Gura: Married women were considered citizens of the United States, just like children were considered citizens. However, the law did not always protect people fully, and we've made great strides in this country giving a greater level of protection to -- to certain rights. We understand certain rights better today than we did 140 years ago, and the fact that First Amendment rights weren't fully respected, Second Amendment rights weren't always respected, Fourth Amendment rights were not always understood well--
Ruth Bader Ginsburg: Does it work just one way? I mean, if 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.
Alan Gura: --As we mentioned -- as we mentioned in our brief, this Court in Benton v. Maryland decided that henceforth American history and tradition are important to consider what rights are protected in this country. It's true that our friends overseas who have more or less civilized, free societies don't respect rights to the same level that we do. For example, England, which is a free society, has a monarchy. They have hereditary lords in parliament. They don't have First Amendment protection.
Ruth Bader Ginsburg: But this -- then it's not one expression of this unenumerated rights, natural rights, or the rights that any free society -- basic to a free society. So you -- you have to trim your definition. It's not basic to any free society.
Alan Gura: As understood by the people who ratified the Fourteenth Amendment. It's not a free-flowing license, necessarily, for judges to announce unenumerated rights. However, to the extent that we have unenumerated rights which the framers and ratifiers didn't literally understand, they nonetheless left us guideposts that we can--
Antonin Scalia: Well, what about rights rooted in the traditions and conscience of our people? Would -- would that do the job?
Alan Gura: --Yes.
Antonin Scalia: That happens to be the test we have used under substantive due process.
Alan Gura: That's correct and, as Judge O'Scannlain--
Antonin Scalia: Yes.
Alan Gura: --in the Ninth Circuit observed in the Nordyke decision, the Slaughter-House dissenters seemed to arrive at the same point, perhaps, that this Court did in the Glucksberg case.
John Paul Stevens: Mr. Gura, can I ask you the same question Justice Ginsburg asked about: What if there were no Second Amendment? You say the right would still be protected under the Privileges and Immunities Clause. What about -- would it also be protected under substantive due process if there were no Second Amendment?
Alan Gura: It would be, Your Honor. The fact--
John Paul Stevens: Because of the -- the importance of the right to protection -- and would that apply to the entire scope of the Second Amendment or just the right to keep the gun, a homeowner's right to keep a gun for self-protection against intruders into the home, under the -- without the Second Amendment, just the Liberty Clause?
Alan Gura: --The Second Amendment is not so limited and neither is the right to arms, even outside the Second--
John Paul Stevens: I'm assuming we don't have a Second Amendment for purposes of the substantive due process analysis. I'm asking you what is the scope of the right to own a gun that is protected by the Liberty Clause of the Fourteenth Amendment? Is it just the right to have it at -- at home, or is the right to parade around the streets with guns?
Alan Gura: --An unenumerated right to arms in the absence of the Second Amendment would be, perhaps -- probably identical to that secured by the Second Amendment, because the Second Amendment codified the understanding of that right that people have historically had in the country. So there would not be a difference between the right to arms if it were a part of the Second Amendment or--
Samuel A. Alito, Jr.: Well, I thought your--
John G. Roberts, Jr.: In -- in that context, is your position that the rights that are incorporated as essential to the concept of ordered liberty, do they bring all of our decisions with them? When you say the First Amendment is covered, does that mean New York Times v. Sullivan is incorporated as well? Or is it only some lesser version of the incorporated right?
Alan Gura: --With respect to the substantive due process argument that we're making?
John G. Roberts, Jr.: Yes.
Alan Gura: We are not challenging -- we are not the party that's before the Court that is challenging anything that has gone on before in terms of substantive due process. We believe that those cases were by and large decided appropriately, and if the Court wishes to reconsider any of them for some reason, it -- that has really nothing to do--
Anthony M. Kennedy: No, I understood the Chief Justice's question -- maybe I misunderstood it, but my understanding of the question as important is this: Under incorporation by reference, the States are bound by the rights in all -- with all of the refinements and sophistication with which we interpret them for the Federal Government. It's the same. You don't just apply the core of the right. You apply all of the right as it is elaborated by the cases. Is -- is that same consequence -- does that same consequence follow if we adopt the privileges and immunities interpretation that you are urging upon us?
Alan Gura: --Yes, Your Honor, because--
Stephen G. Breyer: Okay. How does that work? I think that would be useful for either you or Mr. Clement, if you've thought this through. Is this right different from others?
Alan Gura: --Well--
Stephen G. Breyer: There are two ways. One is that -- look at -- all you have to do is look at the briefs. 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. Without incorporation, it's decided by State legislatures; with, it's decided by Federal judges. Now, think of this, too: That when you have the First Amendment, or some of the other amendments, there's always a big area where it's free speech versus a whole lot of things, but not often free speech versus life. When it's free speech versus life, we very often decide in favor of life. Here every case will be on one side guns, on the other side human life. Statistics, balancing life versus guns. How are Federal judges in your opinion, rather than legislatures in the States in a Federal system -- how are Federal judges supposed to carry this out? I want to see where we're going.
Alan Gura: --Federal judges should carry this out in the same way that was announced in this Court's decision in Heller. So--
Stephen G. Breyer: Heller, I didn't think, explained that with great -- I was dissenting, though. I didn't think it explained it with total clarity, but that's a dissenter's view. [Laughter]
Alan Gura: --Heller stood for the proposition that some activities are within the core boundaries of a right, and so long as people wish to do something that is literally understood to be a part of the boundaries of the right, it is to be protected, and--
Stephen G. Breyer: Let me be specific, suppose Chicago says, look, by banning handguns not in the hills, not hunting, nothing like that, nothing outside the city -- in the city, we save several hundred human lives every year. And the other side says, we don't think it is several hundred, and, moreover, that doesn't matter. How do you decide the case?
Alan Gura: --We decide that by looking, not to which side has the better statistics, but rather to what the framers said in the Constitution, because that policy choice was made for us in the Constitution. They--
Stephen G. Breyer: You're saying they can have -- no matter what, that the City just can't have guns even if they're saving hundreds of lives -- they can't ban them.
Alan Gura: --The City cannot ban guns that are within the common use as protected by the right to arms.
Antonin Scalia: There's a lot of statistical disagreement on whether the Miranda rule saves lives or not, whether it results in the release of dangerous people who have confessed to their crime, but the confession can't be used. We don't -- we don't resolve questions like that on the basis of statistics, do we?
Alan Gura: That's correct, Justice Scalia, and as your opinion--
Antonin Scalia: Well, why would this one be resolved on the basis of statistics? If there's a constitutional right, we find what the minimum constitutional right is, and everything above that is up to the States.
Alan Gura: --That--
Antonin Scalia: If they want to have, you know -- I think we mentioned in Heller concealed carry laws. I mean, those are -- those are matters that we didn't decide in Heller. And you may have a great deal of divergence from State to State. And on that, I suppose, you would do statistics, wouldn't you? Or the legislature would.
Alan Gura: --Well, Your Honor, we do agree that statistics are not important to determine whether or not a right--
Antonin Scalia: For the judges.
Alan Gura: --That's right.
Antonin Scalia: But they would be for the legislatures.
Alan Gura: A legislature should respect the fact that there is a constitutional right at issue, and this Court in footnote 27 in Heller explained that under the Carolene Products paradigm, footnote 4, rights enumerated in the Constitution are entitled to a greater measure of respect. And if I may reserve the remainder of my time for rebuttal.
John G. Roberts, Jr.: Thank you, counsel. Mr. Clement.
Paul D. 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--
John Paul Stevens: Mr. Clement, would you comment on Justice Kennedy's question about whether that necessarily incorporates every jot and tittle of the Federal right into the Federal, keeping in mind that with regard to trial by jury in criminal cases, there's a difference. It's nonunanimous juries. Why does this incorporation have to be every bit as broad as the Second Amendment itself?
Paul D. Clement: --Well, Justice Stevens, I think in that respect the Sixth Amendment is a bit of an outlier. For most of the provisions and as far as I know all of the substantive provisions of the Bill of Rights that have been incorporated against the States, this Court has incorporated basically all the jurisprudence that comes with that.
John Paul Stevens: Well, what is the last case in which we incorporated a substantive provision?
Paul D. Clement: Well, I guess maybe it's Mapp, is one way of thinking about it. I mean--
John Paul Stevens: Mapp was a procedural case.
Paul D. Clement: --I could quibble about that--
John Paul Stevens: Mapp was a Fourth Amendment case. I'm asking you cases involving incorporation of substantive rights, as opposed to procedural rights.
Paul D. Clement: --Well--
John Paul Stevens: The procedural cases come in under the due process language, but the substantive cases comes under the word "liberty", and "liberty" picks up the First Amendment and so forth. And I take it it's the word "liberty" that picks up the Second Amendment. And if it does, why does it have to be precisely the same scope as the Second Amendment?
Paul D. Clement: --Well, sure. We could quibble whether -- I think of the Fourth Amendment as more of a substantive guarantee. But in any event, with respect to certainly like the First Amendment guarantees that this Court has incorporated through the liberty -- the liberty subclause, if you will, of the Due Process Clause, there too I think this Court -- certainly I understand this Court's jurisprudence as incorporating all of the cases that go along with that. So New York Times v. Sullivan is the law of all 50 States, et cetera, et cetera. And I think that in a sense the virtue of that approach is probably even more apparent with the Second Amendment than it might be with some other jurisprudence--
Antonin Scalia: I guess we -- 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. We have not adopted a more rigid rule for the Federal Government than we have adopted for the States in either of those instances, have we?
Paul D. Clement: --That's also right, Your Honor, though I guess I would stress that I think that, whatever the debate's about substantive due process when it comes to unenumerated rights, I think the gist of this Court's incorporation doctrine is that the textual provisions of the Bill of Rights stand in a favored position with respect to incorporation. And so Glucksberg has its discussion about the standard for unenumerated rights, but it starts that off by saying of course the Bill of Rights are different. And, of course, the Bill of Rights, I think, as I read this Court's selective--
John Paul Stevens: They stand in a favored position, but we've never said had to be literally all the way down the line, or we couldn't have done the criminal jury -- nonunanimous criminal jury case.
Paul D. Clement: --Again, though, it's interesting that the one place that I -- that I see where the Court has not effectively translated all the case law is one of the procedural rights, the Sixth Amendment criminal jury right. And I think with respect to the substantive rights -- and I think the alliance here or the similarity between the First and the Second Amendments are very stark in this respect -- this Court has incorporated essentially not just the amendment and not just the right, but all of the jurisprudence as well. And, you know, I would -- just to dwell for a moment if I'd could on the -- on the First and the Second Amendment, I think it's striking, very striking, that if this Court's not going to reconsider its Privileges or Immunities Clause jurisprudence, the Cruikshank case actually stands as very good precedent for incorporating the Second Amendment, just as it was the precedent this Court relied on in incorporating the assembly and petition rights of the First Amendment in the De Jonge case. And the reason is Cruikshank -- the whole reason that Cruikshank said the First and Second Amendments aren't privileges of national citizenship is because they were preexisting rights that didn't depend on the Constitution for their existence. That seems to me to be a pretty good working definition of what a fundamental right is, one that is so fundamental and basic that it preexisted our very Constitution. And so it's not surprising that De Jonge cited Cruikshank as favorable precedent for incorporation. I think the exact same logic would apply to the Second Amendment here, and, as I say, I do think the consequence of that, certainly the most logical consequence, would be to carry over the jurisprudence under the Second Amendment. Now, right now, that's not carrying over a lot, right? That's carrying over the Heller case. But I think in a way that points up to the fact that one of the virtues of incorporation is that, because the Miller decision of this Court sowed confusion, we don't have substantial Second Amendment jurisprudence. And I would think that it's going to be difficult enough to develop the Second Amendment jurisprudence that you wouldn't want to make it more difficult by having to develop a Federal Second Amendment jurisprudence and then some sort of shadow version of that jurisprudence for the States. And I think in the more recent incorporation cases, this Court was quite candid that it wasn't going to adopt sort of a shadow version of the Federal guarantee or some watered-down version of the Federal guarantee, but it really saw the virtue of incorporating not just the right but the jurisprudence that came with that right. And so I do think that's in a sense something that counts in favor of incorporating the Second Amendment and doing so through the Due Process Clause, the same way this Court has dealt with the other substantive guarantees of the Bill of Rights. And I think if you apply that jurisprudence, the case really is very straightforward. In fact, I think if you compare the First Amendment and the Fourth Amendment to the Second Amendment, they have the same textual guarantee to the people, they trace their origins to preexisting rights back to the English Bill of Rights, back to even earlier constitutional history.
John Paul Stevens: That's true of the criminal jury trial right, too, all of those things? And yet we don't -- it's not exactly the same. I just don't see why it has to be exactly the same. I can understand your argument that it should be substantially the same, but I don't see that there's anything in the text of the Fourteenth Amendment that would justify saying it must be precisely the same, or of any of our cases.
Paul D. Clement: Well -- and, again, Justice Stevens, you know, since I think that -- that the incorporation clause is -- I mean, the incorporation jurisprudence is, to put it lightly, a gloss on the text of the Due Process Clause--
John Paul Stevens: Incorporation jurisprudence is -- we haven't had an incorporation case for 30 years or more.
Paul D. Clement: --That's right. That's right, Justice Stevens. But I guess I would say is that, putting the Sixth Amendment to one side, which I think is a bit of an outlier in the jurisprudence here, I think the trend of all of this Court's incorporation jurisprudence has been more towards complete incorporation of the right and the jurisprudence. So -- I mean, Mapp is a perfect illustration.
John G. Roberts, Jr.: That still allows scope, once you determine that the right is incorporated, for recognizing that the States might have broader interests that the Federal Government doesn't have. But I would suppose that would come up in the application of the right, rather than in an effort to determine whether parts of it are incorporated or not.
Paul D. Clement: That's right, Mr. Chief Justice, and I think the same thing can be said for any other one of the other incorporated amendments. So I think the same thing might be true in the First Amendment. There are certainly going to be situations that the Federal government confronts that the State governments won't confront the exact analogue situation and vice versa. Now, you know, there may be unique issues about national parks that the States aren't going to have to confront, and the jurisprudence can take that into account. But I think that's far different from saying that we really are going to have this shadow jurisprudence for one of the provisions. And I think, again, to go back to Mapp just as an illustration, when this Court first incorporated the Fourth Amendment and said, well, we'll talk about the exclusionary rule later; maybe we won't incorporate the Fourth -- the exclusionary rule. We'll just incorporate the Fourth Amendment's basic guarantee. And the trend of later cases was to say, no, kind of in for a penny, in for a pound--
John Paul Stevens: You're -- you're dead right--
Paul D. Clement: --let's bring the jurisprudence with--
John Paul Stevens: --about the majority of the Court, but it's interesting that during this whole period, Justice Harlan staked out a separate position on whether it should be just the substance of the right or the -- every detail. And we have followed Justice Harlan, rather than the majority in a number of cases in -- in the recent years.
Paul D. Clement: --Well--
John Paul Stevens: He is very much against you, and he's a very important member of our -- of our history.
Paul D. Clement: --Justice Harlan was a terrific justice. Justice Black was a terrific justice in--
Samuel A. Alito, Jr.: Maybe we should go back--
Paul D. Clement: --in his total incorporation--
Samuel A. Alito, Jr.: --Well, Mr. Clement, why shouldn't we go back completely to Justice Harlan's view about the way in which the Bill of Rights applies to the States?
Paul D. Clement: --Well, I think if we are going to go back, maybe we should go back to the first Justice Harlan, who actually had an -- an approach, I think, that would be much more similar to the approach--
Stephen G. Breyer: But there is a difference.
Paul D. Clement: --that we take in this case and that Mr. Gura takes in this case.
Stephen G. Breyer: There is a difference here with the other amendments. There is a difference, and the other amendments -- you have the First Amendment's, the First Amendment expression. Here we have right in the amendment written a militia-related clause. And the way that -- the way -- the way that the right might be incorporated in respect to that is light years different from the way it might be interpreted if you think what it is, is the right to have a gun to shoot a burglar. They're just two separate things. And as to the first, it's pretty hard for me to see why you'd incorporate it, for reasons I won't go into. As to the second, I understand it. So we're starting with a difference in purposes at the least. And shouldn't that make a difference in how you incorporate?
Paul D. Clement: Well, I mean, I guess what I -- what I don't understand is why, given the way that this Court wrestled in the Heller decision with how to basically apply the operative clause in light of the prefatory clause, why one would want to come to a different conclusion--
Stephen G. Breyer: Because the -- one of the reasons--
Paul D. Clement: --with respect to the States.
Stephen G. Breyer: --at least, is that -- you've read, I'm sure, that all the law professors at Harvard, Yale, Princeton, London, et cetera, that say even Blackstone in the 17th century thought that this is primarily a right to raise an army through Parliament to -- well, I can't go on here. I'm just saying think of that brief, and you'll see the differences, even accepting Heller.
John G. Roberts, Jr.: You can respond if you want, briefly.
Paul D. Clement: Thank you, Mr. Chief Justice. I mean, obviously this Court was focused very much on Blackstone's writings in the Heller decision, and I think the majority read Blackstone actually as being primarily concerned with the self-defense right, which goes a long way to understand why the Heller decision came out the way that it came out. And I would simply finish by noting that the one thing that I think we can come to a conclusion about Blackstone is the very fact that Blackstone dwelled on the right is good evidence that it's a fundamental right that should apply to the States.
John G. Roberts, Jr.: Thank you, Mr. Clement. Mr. Feldman.
James A. Feldman: Mr. Chief Justice, and may it please the Court: The Second Amendment should not be incorporated and applied to the States because the right it protects is not implicit in the concept of ordered liberty. States and local governments have been the primary locus of firearms regulation in this country for the last 220 years. Firearms, unlike anything else that is the subject of a provision of the Bill of Rights, are designed to injure and kill. And the very same features that make firearms valuable for self-defense as the Court noted in Heller also--
Antonin Scalia: When is the last time an opinion of ours made that the test, implicit in the concept of ordered liberty? It sounds very nice. But when is the last time we used it? I think it was 1937.
James A. Feldman: --I don't believe it was, Your Honor. The--
Antonin Scalia: Has it been the basis of our decision in any case since Palko?
James A. Feldman: --I think the -- the Court has -- the Court has used the term in a number of cases. Since then, it has used it in -- not in corporation cases as recently as the Glucksberg case. It used it in Mapp. It has used it in other cases, but I think--
Anthony M. Kennedy: And it was also the Harlan view, although a separate opinion in the Griswold case and in Poe v. Ullman. Do you think that it best describes the approach that the Court has used over the years?
James A. Feldman: --Yes, I do.
Anthony M. Kennedy: I was going to ask Mr. Clement what test he thought the Court used. If you looked at all the cases, you think implicit in the concept of ordered liberty?
James A. Feldman: Yes, I do, and here's the reason why. In 1833, this Court has held in Barron v. Baltimore, in a -- in a ruling that Chief Justice Marshall said was not a difficult one, although important, that the Bill of Rights did not apply to the States. As far as I know, no justice has ever disagreed with that -- with that ruling or suggested he was wrong in so ruling. From -- it was -- the only reason -- and when the Fourteenth Amendment was passed and ratified in the late 1860s, again, the -- the framers did not directly apply the Bill of Rights to the States. They gave us some generalities. And the Court has always understood that when it's applying the Due Process Clause, what it asks is not just is something in the Constitution, but is this something that's so fundamental it's a necessary condition--
Antonin Scalia: Is the right to trial by jury implicit in the concept of ordered liberty?
James A. Feldman: --I--
Antonin Scalia: My goodness--
James A. Feldman: --I think that it--
Antonin Scalia: --there are a lot of countries that don't give the right to trial by jury, even England does not give it in all criminal cases.
James A. Feldman: --I think it is in the following sense: When you're talking about a procedural right that's embedded in a particular procedural system, you have to look at how that system operates and how the -- the right works within that particular system.
John G. Roberts, Jr.: Well, I think that's exactly -- that's exactly right. And that is what the Court elaborated on in Duncan. I do think the focus is our system of ordered liberty, not any abstract system of ordered liberty. You can say Japan is a free country, but it doesn't have the right to trial by -- by jury. The -- the concept only makes sense, I think, if you limit it to our system. Under our system, as you said, the -- the right to a jury is essential.
James A. Feldman: I -- I agree -- I -- I think that's right. I was just distinguishing between--
John G. Roberts, Jr.: Well, if you think that's right, why wouldn't you think, for all the reasons given in Heller, that the Second Amendment right is essential to our system, whatever it may be with respect to France or England or anywhere else?
James A. Feldman: --The question that the Court was addressing in Heller was not -- again, was not how important the Second Amendment right was, or how implicit it is in our system; it was what did it say and what did the -- what restrictions did the framers of the Second Amendment impose on the Federal Government.
Anthony M. Kennedy: But I thought its rationale was that because of its fundamental character, the right to bear arms must be understood as separate from the qualifying phrase of the militia clause, 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.
James A. Feldman: No, I -- I -- I don't think that that's right. The question is what right -- what did they impose upon the -- as restrictions upon the government when the Second Amendment was ratified. And as to that, it's not a question of whether it's fundamental any more than with the Grand Jury Clause or with the civil jury trial right--
John G. Roberts, Jr.: I don't see how you can read--
James A. Feldman: --under the Seventh Amendment.
John G. Roberts, Jr.: --I don't see how you can read Heller and not take away from it the notion that the Second Amendment, whether you'd want to label it fundamental or not, was extremely important to the framers in their view of what liberty meant.
James A. Feldman: I -- it was important, but actually what Heller says is this: The Second Amendment preexisted the -- its inclusion -- or the right that's in the Second Amendment preexisted its inclusion in the Bill of Rights. But the reason it was codified, the reason it -- the reason it was put into the Bill of Rights was because the framers were concerned about the Federal Government disarming the militia. The right of self-defense, which had been previously recognized and highly valued, I would agree, was -- had -- according to Heller, quote, "had little to do with its codification-- "
Antonin Scalia: That may be--
James A. Feldman: --with its inclusion in the Constitution.
Antonin Scalia: --That may be the reason it was put there. But it was put there.
James A. Feldman: That's--
Antonin Scalia: And that's the crucial fact. It is either there 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.
James A. Feldman: --That -- I agree as far as the Federal Government goes. But now there's a different question being asked, and the Second Amendment in this respect is unlike any of the other amendments that have been incorporated. The same -- very same reason why the First -- the various rights in the First Amendment were put there in 1791 is exactly the reason why it was held -- why it was incorporated and applied to the States under the Fourteenth amendment.
Stephen G. Breyer: So do we read the -- the clause at the beginning -- the militia clause -- we're supposed to read the words of the Constitution, aren't we? I guess--
James A. Feldman: Yes.
Stephen G. Breyer: --the answer to that's yes. [Laughter]
Antonin Scalia: Yes.
James A. Feldman: Yes.
Stephen G. Breyer: Thank you. Very well, and doesn't that suggest what the purpose of putting the right there is even under Heller or at least one purpose--
James A. Feldman: Well, that -- that--
Stephen G. Breyer: --And does that not give us a clue as to what they thought that--
James A. Feldman: --That's what--
Stephen G. Breyer: --the ordered liberty was? That's your point?
James A. Feldman: --That's what -- and that's what Heller said. And here's the difference -- is, it is it is now urged that this right is fundamental because of its importance, the importance of firearms in self-defense. That was true also in 1791, but it wouldn't have been in the Constitution for that. That had little to do with putting it in the Constitution. This is a right that has always been subject to the political process and--
John G. Roberts, Jr.: Well, sure, and it's still going to be subject to the political process if the Court determines that it's incorporated in the Due Process Clause. All the arguments you make against incorporation, it seems to me, are arguments you should make in favor of regulation under the Second Amendment. We haven't said anything about what the content of the Second Amendment is beyond what was said in Heller.
James A. Feldman: --That's -- that's--
John G. Roberts, Jr.: And so the argument you make is, well, given this context, you should not be able to have concealed carry. Well, maybe that's right, but that doesn't mean you don't incorporate the Second Amendment to allow you to enforce that type of regulation.
James A. Feldman: --No, I don't think so. I think -- the argument that I'm making is that States and local governments under the political process, which as far as we know, if the only issue had been self-defense, the framers would have been satisfied to leave this to the States and to leave this to the political process, and not to put it in the Constitution -- that -- that -- that as far as the right to self-defense goes, that's something that has always been effectively regulated through the political process and especially at the State and local level. And through our history, as technology has changed, State and local regulation has altered to draw the balance that has to be drawn.
Samuel A. Alito, Jr.: And your position is that a -- a State or local government could completely ban all firearms?
James A. Feldman: If the State and local government did that, I think would it raise two questions. One question would be, there is always review under the Due Process Clause and under the Equal Protection Clause for provisions that are arbitrary. And I'd want to know why a State had done that. It's certainly relevant that in the last 220 years, no State has done that or even come close, and, in fact, as the briefs on the other side of the case from some of the States show, they are quite in the opposite direction. But the second point would be--
Antonin Scalia: I -- I don't understand.
Anthony M. Kennedy: What is the due process liberty--
Antonin Scalia: What basis would there be to -- to deny that?
James A. Feldman: --Well, there's always--
Antonin Scalia: Firearms kill people is what the States say, and -- and we ban it.
James A. Feldman: --Right, and that has--
Antonin Scalia: Other countries have done that.
James A. Feldman: --It has not led to States doing it in -- in this country. The second question--
Antonin Scalia: But if they did do it, I think you'd have to say it's perfectly okay.
James A. Feldman: --No, the second -- there would be two questions actually. One would be was this arbitrary, or is that actually based on a reason that's -- a sound reason?
Antonin Scalia: Yes. The reason is guns are dangerous.
James A. Feldman: The second argument would be, the Court at that point, if in the very unlikely event a that a State or local government tried to do that, then the Court might have to wrestle at that point with the question of the relationship between self-defense and the right to keep and bear arms. In other words, this Court has never said--
Anthony M. Kennedy: --But would self-defense be part of liberty under the Due -- substantive meaning of the Due Process Clause?
James A. Feldman: --I mean, if by that is, do you have a substantive right to self-defense, the Court actually has never answered that question, but I'm willing to accept that there is such a right for--
Anthony M. Kennedy: And you've given -- you said there were two reasons. So you have given us both in your answer to Justice Alito's question?
James A. Feldman: --Yes, and -- and what I'd say about the right to self-defense is, if -- if the challenge -- if a State or local government banned all firearms it might raise the question of, given that there -- if there is a constitutional right to self-defense, has the State prohibited you from reasonable means of exercising that right? But that--
Anthony M. Kennedy: Without repeating that and just so I understand your position, how could some member of the Court write the -- this opinion to say that this right is not fundamental, but that Heller was correct?
James A. Feldman: --I -- the Court would just say that what Heller held was if you look at the meanings that the words in the Second Amendment had, the common meaning -- as the Court said in the Heller opinion -- the common meanings that the word had in 1791, it imposed limitation on the state. It took a preexisting right that had not been -- it was not codified in the Constitution, and it said, this self-defense right we need in the Constitution in order -- in order to protect the militia against being disarmed by the Federal Government.
John G. Roberts, Jr.: That sounds an awful lot to me like the argument we heard in Heller on the losing side.
James A. Feldman: Well, it's actually what the Court said in its opinion. What the Court said in its opinion is the reason it was codified was the concern that the framers had with the -- that the Federal Government might disarm the militia. Not self-defense. Self-defense according to the Court in Heller, quote, "had little to do with the codification of the right. "
Antonin Scalia: They said that is the reason it was codified. They did not say that that is the function of what was codified. The function of what was codified was to enforce the traditional right of the people to bear arms.
James A. Feldman: And that -- that--
Antonin Scalia: And to say that that wasn't the reason it was codified doesn't say anything about what it consists of.
James A. Feldman: --That -- that's correct, and I'm not arguing today about what it consists of, but the point being that this was a right that had been -- that the framers as far as we know would have been satisfied to leave to the political process if it was just a question of the feature of it. But today--
Samuel A. Alito, Jr.: Let me see if I understand your argument. I thought you said a minute ago that if a State or local government were to ban firearms completely, this Court might hold that that violates substantive due process because the right to use a firearm for self-defense is -- might be held to be implicit in the concept of ordered liberty; is that right?
James A. Feldman: --That's correct.
Samuel A. Alito, Jr.: And -- but I thought you began by saying that the right to keep and bear arms is not implicit in the concept of ordered liberty.
James A. Feldman: The right to keep and bear arms that was recognized -- I don't think actually the right to keep and bear arms itself is. Perhaps the right to self-defense is, and then like other rights, similar rights, if the Court were to hold that that is constitutionally protected, the question would be is the State now giving you sufficient means to exercise that right? Not whatever means you want, but sufficient means so that you reasonably can exercise that right. I would think that would be the only way that that kind of analysis could go, if you start off from self-defense.
Stephen G. Breyer: But--
Antonin Scalia: Mr. Feldman, let me take your argument at -- at its face value. Let's assume that the only reason it is there and the only purpose it serves is the militia purpose. Isn't that militia purpose just as much defeated by allowing the States to take away the militia's arms as it would be by allowing the Federal Government to take away the militia's arms?
James A. Feldman: Yes, but I -- that--
Antonin Scalia: Then so--
James A. Feldman: --But that--
Antonin Scalia: --even if you assume that the whole thing turns around the militia prologue, that prologue is just as -- just as important with respect to the State's depriving the people of arms.
James A. Feldman: --Yes, but I don't think the argument -- the primary argument that's being made today, that this is implicit in the concept of ordered liberty or sufficiently fundamental or whichever other formulas--
Antonin Scalia: You're switching horses now.
James A. Feldman: --No, I'm not. No--
Antonin Scalia: Let's just focus on your argument that -- that -- that deals with the prologue. You say this is different because of that prologue. But that prologue has just as much force if the States take away the militia's arms as if the Federal Government does.
James A. Feldman: --I -- I think that few people today would say -- and in fact few people in 1868 would say that the concern to protect the State militias is something that's so fundamental or essential to a concept of ordered liberty or central to our system that it has to be--
Stephen G. Breyer: --Well, suppose it is.
James A. Feldman: --protected--
Stephen G. Breyer: --Suppose it is. Assume for argument's sake that it is. Still, I take from what you are saying that -- let'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. And if that's what they'd say, it's conceivable that part of this amendment would go through and be incorporated; namely, that part which would prevent a law that would disarm people to the extent they couldn't form militias. But that part which would disarm people to the extent that they couldn't shoot burglars, that would not be incorporated.
James A. Feldman: --It -- that would be -- that would be possible, but another -- another way to look at it is that the question that the Court had -- the Court has never answered the question, is this implicit in the concept of ordered liberty or should this be incorporated under any other test?
Samuel A. Alito, Jr.: But if we took the approach that--
James A. Feldman: By just--
Samuel A. Alito, Jr.: --If we took the approach that Justice Breyer outlined, would -- why would we not do the same thing with respect to all the applications of all of the amendments that up to this point have been regarded as being completely incorporated, along with all of our decisions? So why would we not look at all of our decisions under the First Amendment and the Fourth Amendment and the Fifth Amendment and the Sixth Amendment, and rank all of those interpretations on some scale of ordered liberty?
James A. Feldman: --I -- I don't think -- I don't think the Court would. And what I was really responding to Justice Breyer was, we understand that the Second Amendment is in the Constitution and binds the Federal Government, but it has always been understood, from 1868 on, that before an amendment applies to the States, you need something more than just finding that it's in the Constitution, and--
John G. Roberts, Jr.: Well, to get back to Justice Breyer's point, which I'm not sure you answered, is your theory that you simply -- it's not a question of is it in or is it out? But you're saying, well, what is in and what is out, are you?
James A. Feldman: --No, I -- actually my -- excuse me. My answer to the question would be it's -- I think it's out, because all that shows is the framers certainly had--
John G. Roberts, Jr.: So you think it's in or out, right?
James A. Feldman: --I think that -- I think the best argument is that it's out, for this reason: When the framers--
John G. Roberts, Jr.: No, I -- I know your reasons.
James A. Feldman: --Okay.
John G. Roberts, Jr.: I'm trying to get you to take a position on whether or not you want us to not only pick and choose among which amendments are part of our abstract notion of ordered liberty, or if you want us also to take amendments that might be in and refine them and shave them off a little bit and say, well, this part of the amendment is in, and this part isn't.
James A. Feldman: No, that's not the argument that we're making.
John G. Roberts, Jr.: Okay. So your argument is all in or all out.
James A. Feldman: The argument that we're making -- yes.
John G. Roberts, Jr.: Okay.
James A. Feldman: The argument that we're--
Stephen G. Breyer: Step one -- step one is make my chart. Step two is look at what's high. Step three is, even though that high part, even that high part, nobody could think was incorporated.
James A. Feldman: --I -- in our view, the things that the framers -- the framers had their reasons for putting--
John G. Roberts, Jr.: That's how you think Madison went about his job? [Laughter]
James A. Feldman: --No. No, I think that--
Stephen G. Breyer: He did, actually. He did. That's how he went about it.
John G. Roberts, Jr.: I'm asking counsel. Do you think that's how Madison went about his job?
James A. Feldman: --I think the framers had reasons to put everything in the Constitution that they put in it. But the question about whether it should be incorporated against the States is a different question than whether they put it in the Constitution. And what you have in the Second Amendment -- and it's right clear on the face of it from the prologue; it's clear -- it's clear from the opinion in Heller -- is the reason they put it in the Constitution is not the primary reason why people today are arguing that this is a right that -- that is so fundamental that it has to be applied against the States.
Sonia Sotomayor: Mr. Feldman, our 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've 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?
James A. Feldman: I think that's the underlying standard, but the Court has certainly looked at our history and our traditions in answering this question, and I think they are relevant in this area, as they were--
Sonia Sotomayor: The Chief says: Yes, if we look at it, we have to look at it in the context of our history, our structure. So address his question as to why--
James A. Feldman: --I would say that--
Sonia Sotomayor: --in our structure or our history, it's not fundamental enough--
James A. Feldman: --Yes.
Sonia Sotomayor: --to incorporate.
James A. Feldman: Yes, and I think it's -- I think it's not. We have discussed already 1791, and the reasons why -- the reasons even that the framers thought that -- well, I've already discussed that. I don't want to go into it again. The--
Antonin Scalia: Eleven of the colonies had a guarantee at the time the Constitution was adopted, and I believe something like 44 States currently have in their constitutions protection of the right to bear arms.
James A. Feldman: --I -- I--
Antonin Scalia: Does that suggest anything about -- about how fundamental it is generally?
James A. Feldman: --I -- what the Court actually said in Heller was that there were two States at the time, in 1791, that had a firearms right, and with -- there were possibly two more where the evidence was a little bit more ambiguous. As far as today, it is true that 44 States have some kind of recognition of a right to keep and bear arms. Now, some of those States -- a couple of them, at least, two to four -- recognize that only in connection with the militia, and it's really quite different from the right that this Court recognized in Heller. Many other of the rights that are recognized in State constitutions include provisions that really would be unheard of, and that actually point to the reasons why this is not fundamental, like, say, freedom of speech or freedom of religion. They have provisions that say: Subject to such regulation as the legislature may prescribe, or the like. And that points out the other difference. Because firearms are -- the same features that make them useful for self-defense make them also useful as instruments of violent crime, suicide, and accidental death. Their -- regulation of these items has -- is a part of our tradition and--
Antonin Scalia: "Subject to such regulation" certainly excludes banning them entirely, which is what you assert can be done.
James A. Feldman: --No, I think that--
Antonin Scalia: What's the purpose of a State constitutional guarantee which has at the end of it "subject to such regulation as the legislature may proscribe. " if that regulation includes banning it entirely? That--
James A. Feldman: --With that--
Antonin Scalia: --would make a nullity of the constitutional requirement.
James A. Feldman: --The overwhelming consensus among the State courts in interpreting the wide variety of different types of provisions that they have is that it imposes a reasonable regulation standard that is not violated by banning a particular weapon or a particular class of weapons, as long as you are allowing some kind of firearm, and that is not the right that this Court--
Antonin Scalia: And is that what you're asserting here--
James A. Feldman: --recognized in Heller.
Antonin Scalia: --that the States have to allow firearms?
James A. Feldman: No.
Antonin Scalia: Is that--
James A. Feldman: I -- I didn't think I was.
Antonin Scalia: --I didn't think so, either, so--
James A. Feldman: No. What I'm--
Antonin Scalia: --why does your last argument make any sense?
James A. Feldman: --No, what I'm saying -- I'm sorry. What I'm saying is that the right that is embodied in the wide variety of different State constitutions -- the overwhelming consensus is that what the States have determined as a result of their own processes and in light of their own conditions is that you can't ban all kinds of firearms, but you can ban some kinds of firearms.
Antonin Scalia: That's fine.
James A. Feldman: And that is -- and the kinds of firearms that have traditionally been banned--
Antonin Scalia: We said as much in Heller.
James A. Feldman: --Right. Well -- and the kinds of firearms that have traditionally been banned by the States and that actually the period around the time of the Fourteenth Amendment is a good period to look. At or around that time, there are numerous States that had regulations barring the carrying and even that go up to the point of possession of pistols and Bowie knives, which are not firearms, but are also arms under the Second Amendment, and so on.
John G. Roberts, Jr.: Well, all those may be perfectly valid today, or -- if the Court incorporates the Second Amendment. Incorporation doesn't say anything by itself about whether those types of regulations, which you think are reasonable and your friends think may not be reasonable, are valid or not.
James A. Feldman: I think the Court in Heller did hold that a ban on -- a ban on handguns is invalid. That was the holding of the case. And these are -- these were laws that were passed that are very close to that. In the 1860s and the 1870s, in Texas, in Wyoming, places that -- not necessarily for the whole State--
Antonin Scalia: Handguns in the home?
James A. Feldman: --They--
Antonin Scalia: Handguns in the home? That's what Heller addressed.
James A. Feldman: --They banned -- I -- well, not -- I can't say that they banned handguns in the home per--
Antonin Scalia: No, you can't, because they didn't.
James A. Feldman: --But if you look at the decision -- no, if you look at -- actually, if you look at the decisions, some of them banned the sale; they banned carrying them anywhere in the jurisdiction, and in such a way that -- and some of the judicial decisions even say: This was intended to eliminate these weapons from our jurisdiction. And they were generally upheld at that time. Now, those were responding to local conditions at the time, and generally, the history of firearms regulation, because of the risk that firearms pose, has been that in this country, it has been widely recognized that in many places it's appropriate to carry firearms. And many jurisdictions have found, and reasonably found, that allowing broad use, carriage, and whatever of firearms is appropriate, but there are some jurisdictions that have found that's not to be the case, throughout our history. And that has been a State and local decision that has worked through the political process in those jurisdictions. And that political process here is another distinction between the Second Amendment and some of the other amendments that have been incorporated -- is that one basis, I think, for incorporating the other amendments and for applying them against the States has been that there is a concern about a discrete minority or a highly unpopular view that's not going to get a fair shake in the political process. I don't think that has ever been the case here. And as far as I know, the framers didn't think that was the case with respect to the right to keep and bear arms. It's a right that gets controlled in accordance with local conditions, with local cultures, and with local views about the necessarily difficult questions about how best to protect public safety. That is -- that has been a part of our -- of our history since 1860, since--
Anthony M. Kennedy: But there -- but there are provisions of the Constitution, of the Bill of Rights, that have been incorporated against the States, where the States have substantial latitude and ample authority to impose reasonable regulations, rights respecting -- rights respecting property, the Cruel and Unusual Punishment Clause. We look to see what the political process does. We look to see -- why can't we do the same thing with firearms?
James A. Feldman: --Well, it's just that the end -- I have really two points I'd like to make about that. One is the analysis the Court used in Heller. In Heller, what the Court said is: This is not the time to balance things; you cannot ban handguns. Now, there may be local -- there have been local jurisdictions before and there are now ones where they feel allowing some firearms, but banning handguns, is the best way to achieve public safety and to increase the zone of ordered liberty for their people. And those things would be apparently impermissible under Heller. But even more than that, Heller construed the Second Amendment's "bear" -- the word "bear", "to keep and bear arms" -- to mean the same thing as "carry" in this Court's case in Muscarello, much later. And to carry -- generally to carry. Many -- there's a long history of regulation of not just concealed carry, as the Court did recognize in Heller, but of banning open carry in a variety of jurisdictions. Again, generally, it's someplace that is -- it has a particular problem; it's a city or something like that.
Anthony M. Kennedy: Do you think there is existing authority with reference to other provisions of the Bill of Rights that would allow us to incorporate just the core of Heller with respect to the States? Just the core of the Second Amendment with respect to the States, along the lines to this question Justice Stevens was asking earlier?
James A. Feldman: Well, I think that there would be--
Anthony M. Kennedy: And if so, what's -- what case do we look to for that proposition?
James A. Feldman: --I think really this -- I cannot offhand think of a case that would lead you to that -- would lead to that.
John Paul Stevens: If you look to Justice Harlan's dissent in Griswold, where he says the Fourteenth Amendment stands on its own bottom and it can be either more or less than the provisions of the Bill of Rights, and there's no reason in the world why this Court could not adopt the same position here and say: Insofar it's incorporated, it applies only within the home. The Court had ample precedent for that.
James A. Feldman: And actually the other point I make is if you approach it from the other point of view, the case has not been made here -- it hasn't even been brought -- that the City of Chicago is denying people the -- the right to have any kind of firearm or the right to have any kind of reasonable means of self-defense.
John G. Roberts, Jr.: I'm sorry. Is it the position of the City of Chicago that we should rely on Justice Harlan's dissent in Griswold?
James A. Feldman: No.
John G. Roberts, Jr.: Well, then your answer to Justice Stevens is no, you're not going to follow that approach, right?
James A. Feldman: No, what I would say is that -- what I would say is that if the Court -- what I was saying is that if the Court approaches it from the standpoint of perhaps if there is -- if the Court chooses in an appropriate case to recognize a fundamental right to self-defense, it would then raise those kinds of questions. And someone could make the case that they are being denied any right to self-defense or any reasonable right to exercise self-defense because of a jurisdiction's firearms regulations; the Court could address that. That's not a claim that has been made in this case; that's not a claim that could be made in this case because--
Antonin Scalia: See, the right to keep and bear arms is right there. It's right there in the Bill of Rights. Where do you find the right to self-defense?
James A. Feldman: --Well, I--
Antonin Scalia: You -- you want us to impose that one on the States but not -- not the explicit guarantee of the right to keep and bear arms. That seems very strange.
James A. Feldman: --No, actually I -- I don't want to impose that on the States. I think it's very unlikely that the Court would ever be called upon to, because our history for the last 200 years -- 220 years had been of reasonable State and local regulation of firearms that responds to local conditions, to local threats of violence, and so on that occur. And I don't see any reason to think that there will be a jurisdiction that would try to sufficiently ban firearms that people wouldn't have a reasonable means of self-defense.
Antonin Scalia: The District of Columbia did. That's what Heller said.
James A. Feldman: Well, the District of Columbia in any event is controlled by Second Amendment as it -- as it's written. That's not the question in this case.
Sonia Sotomayor: Would you be happy if we incorporated it and said reasonable regulation is part of the incorporation? And how do we do that?
James A. Feldman: Well, there is the reasonable regulation standard. There's an article by Professor Winkler that we cite in our brief, that goes very extensively through the ways that State courts have dealt with their own rights to keep and bear arms and have adopted, really by overwhelming consensus, that kind of a reasonable regulation standard, which generally recognizes--
Ruth Bader Ginsburg: I thought that Heller -- Heller allowed for reasonable regulation.
James A. Feldman: --Excuse me.
Ruth Bader Ginsburg: I thought that the Heller decision allowed for reasonable regulation, and it gave a few examples, as Justice Scalia mentioned.
James A. Feldman: Right. Well, it's just our view would be that what Chicago has done here, which is permit you to have a -- permit you to have long guns but ban handguns, is the kind of regulation that throughout our history jurisdictions in their own -- that are most familiar with their own particular needs, their own particular problems, and in a position to balance the -- the need for self-defense with the risks to the use of firearms -- for violence, for accidental death, and for suicide -- that the City of Chicago has come up with something that is well within our tradition. And--
Antonin Scalia: What you're urging is really a mixed blessing for gun control advocates. To the extent we sever the Federal guarantee from what the States are obliged to comport with, we encourage a stricter Federal Second Amendment, one that forbids all sorts of regulations that the Federal Government might otherwise be allowed to do, because it doesn't matter -- the States can take care of it. I mean, you know, if -- if you sever the two, you're encouraging a broader prohibition at the Federal level, and that's what -- Heller was very careful not to impose such a broad prohibition precisely because it realized that -- that this is a national problem.
James A. Feldman: --I -- I think that, if I may -- that the restriction that the Second Amendment imposes on the Federal Government should be and is controlled by what the meaning of that Second Amendment was in 1791. It shouldn't vary one way or the other with whether there's incorporation against the States. Thank you.
John G. Roberts, Jr.: Thank you, counsel. Mr. Gura, you have 3 minutes remaining.
Alan Gura: Sure.
Anthony M. Kennedy: Counsel, at the -- at the very outset of your argument, Justice Sotomayor asked the question which, as I understood it, essentially said what are examples of privileges and immunities that are being denied by the States that -- which denial would be remedied by following your proposal to overrule the Slaughter-House case? And let's leave the Second Amendment out. Let's assume the Second Amendment is a wash; it's either going to be incorporated or not going to be incorporated the same -- to the same extent under either the Privileges or Immunities Clause or the Due Process Clause. Leaving the Due Process -- the Second Amendment out of it, what privileges and immunities are now being denied citizens of -- of the United States?
Alan Gura: Well, apart from the Second Amendment right, which is being denied to people in the United States by Chicago at least, there are other rights -- other rights enumerated in the first eight amendments that were thought to be the personal guarantees as well as certain unenumerated rights which were understood to be part of--
Anthony M. Kennedy: What are examples of those? The jury trial in civil cases?
Alan Gura: --The jury trial--
Anthony M. Kennedy: And grand jury. What else?
Alan Gura: --There's not much left, Your Honor. Those are the only two provisions of the Bill of Rights that have not been held incorporated under due process, which informs us that perhaps we should have the Second Amendment incorporated. There's no reason to treat it any differently. With respect to the unenumerated rights that perhaps are not being--
Ruth Bader Ginsburg: So you are saying that under -- under your view, every State would have to use a grand jury to bring criminal charges; no more information. And that every State would have to have a civil jury, if any party in the case requested it. Is that--
Alan Gura: --Yes -- well, it's not just what we're saying; it's what the framers of the Constitution said. And as Justice Scalia noted in Apprendi, the right to a jury trial, for example, may not be efficient, but it is free.
Ruth Bader Ginsburg: --That's a criminal case; that's quite different.
Alan Gura: That's right. We're talking about the Grand Jury Clause; we have 28 States right now out of the 50 that allow prosecutors to pursue felony charges without indictment by a grand jury, but the other 22 States do require it.
Anthony M. Kennedy: Well, I'm -- we're using up your time. But--
Alan Gura: Sure.
Anthony M. Kennedy: --do you want me to leave the bench thinking grand jury indictment and civil trial and jury case -- that's it. There's no other -- what are these other unenumerated rights?
Alan Gura: We can't give a full description of all unenumerated rights that are going to be protected by the Fourteenth Amendment. Either--
Antonin Scalia: It doesn't trouble you.
Alan Gura: --No, it does not, and it shouldn't trouble the Court because the Court addresses due process cases all the time without saying we're--
Samuel A. Alito, Jr.: Well, does it include the right to contract?
Alan Gura: --The right to contract--
Samuel A. Alito, Jr.: Isn't that an unenumerated right?
Alan Gura: --That is literally understood by the framers to be an unenumerated right under the privileged immunities. We know that because in the Civil Rights Act of 1866, that's the very first right that they mentioned as something that people in the South should be enjoying, because they were not allowed to pursue a livelihood.
John G. Roberts, Jr.: Your approach -- your original approach would give judges a lot more power and flexibility in determining what rights they think are a good idea than they have now with the constraints of the Due Process Clause.
Alan Gura: No, Your Honor; our approach might actually provide judges with perhaps no more than what they have now, perhaps even less, because our approach is rooted in text and history. It's not a license for judges to make up unenumerated rights that they believe--
John G. Roberts, Jr.: Privileges and immunities give you a lot more flexibility than due process, because it's not limited to procedural -- where you don't have to deal with the hurdle that it's limited to procedural by the text.
Alan Gura: --Sure. If I may?
John G. Roberts, Jr.: Yes, you may.
Alan Gura: Thanks. We believe that it's more limited because that -- that text had a specific understanding and that there are guideposts left behind in texts and history that tell us how to apply it, unlike the due process. But at least we know one thing, which is that, in 1868, the right to keep and bear arms was understood to be a privilege or immunity of citizenship, and if the Court is considering watering down the Second Amendment, perhaps it should look to text and history.
John G. Roberts, Jr.: Thank you, counsel. The case is submitted.