Scotusblog.com thinks 2nd will be incorporated

[ConstitutionCowboy]

Here's My Reply In The Other Thread:

Gura opened the door wide with his answer to Sotomayor's question:

"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. What -- in which ways has ordered liberty been badly affected?"

"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."

I'd like to point out that Sotomayor talked of laws regulating the use of arms based on the Court not incorporating the Second Amendment. It wouldn't matter! Either she is ignorant or tried to make a point disingenuously. The Second Amendment doesn't cover the use of arms at all. That's why you'll probably never see a challenge to laws that say you can't shoot your guns in the middle of town except in self defense.

I found this exchange encouraging.

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?

Justice Scalia, I suppose the answer to that would be no, because -

~
~

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?

Gura didn't get a chance to answer directly, but I think Scalia hinted he's ready to incorporate under the P&I clause. Gura certainly did get in that Slaughter-House needs to go, though, and the only hurdle mentioned was the 140 years S-H has been around. Being wrong for 140 years is a rather feeble excuse to continue to be wrong.[/indent]


The following backs up what I've been saying about Heller - that those "presumptive reasonable restrictions" were just that: Presumptive. Refer to what I highlighted in bold:

Well, why would this one be resolved on the basis of statistics? If there is a constitutional right, we find what the minimum constitutional right is and everything above that is up to the States. If you want to have, you know -- I think we mentioned in Heller concealed carry laws. I mean, those are -- those are matter 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.

Scalia went out of his way to point out that those things like concealed carry mentioned in Heller as long standing laws, that "those are matter that we didn't decide in Heller."​

"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."

This statement by Roberts really exposes the mind-set we too often see at all levels of government. I'd like to inform all in government that it isn't about the interests of the different levels of government. It's about the interests of We the People! That's the way ALL levels of government should be looking at this! What good is the protection of a right at one level of government if a different level can infringe upon the right? Infringed is infringed. Does it matter to your face if a federal agent slaps it or if your local sheriff slaps it?

Gura got the last word and it went unchallenged:

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.

My prediction: We'll get a not less than 5-4 and possibly as much as an 8-1 win, with a better than 50/50 chance of incorporation under the P & I clause coupled with a sure Due Process win as well. The RKBA being a definitive privilege and with the Second Amendment making it immune to government infringement, how can we lose?

My biggest disappointment in this whole process has been the disregard for Madison's reasoning why we need a bill of rights to begin with:

An Excerpt: Mr. Madison from the Congressional Record of 8 June, 1789, debating the proposal of a Bill of Rights:

I admit the force of this observation, but I do not look upon it to be conclusive. In the first place, it is too uncertain ground to leave this provision upon, if a provision is at all necessary to secure rights so important as many of those I have mentioned are conceived to be, by the public in general, as well as those in particular who opposed the adoption of this Constitution. Besides, some States have no bills of rights, there are others provided with very defective ones, and there are others whose bills of rights are not only defective, but absolutely improper; instead of securing some in the full extent which republican principles would require, they limit them too much to agree with the common ideas of liberty.

When you have such clarity from a Founding Father, how can there be any doubt? Maybe whomever writes the majority opinion will include it.

Woody

 

[ArmedBear]

Either she is ignorant or tried to make a point disingenuously.

...which is what her opponents were saying about her, in general, at the time of her confirmation. I believe they are vindicated.

 

[mack]

"Can you elaborate on their reasoning/motivation/strategy or whatever might explain why they did this?"

I only know from talking to a member, an atty who was in the NRA leadership a few years prior to Heller, that the leadership then was afraid to bring a second amendment challenge (as Mr. Roberts here has pointed out) because they felt the chance of losing was too great a risk to run. I can understand that, even though I disagreed with it. I assume that was their same reasoning when the Parker/Heller case came up. NRA did try to bring second amendment cases unsucessfully because they always brought cases with issues that would allow the court to decide those cases on grounds other than the second amendment - under the theory that if the court supported the second they could find on second amendment grounds but if they weren't inclined to support it or wanted to avoid it they could avoid ruling on second amendment grounds - kind of a risk adverse approach to second amendment jurisprudence. I understood that but they hadn't been sucessful in their approach and their reaction to Heller was infuriating to me and many others - as the prospect of a more favorable court in the future was/is far from likely.

Don't get me wrong I think the NRA contributed a lot to the scholarship on the second amendment and helped set the political and public plate for Heller to be sucessful. But it did take Levy and Gura to finally push it to a sucessful conclusion (recognition of the second as protecting an individual right).

Just found it really annoying today, that after Gura wins the biggest case in the last one hundred years on the second amendment in Heller (which the NRA did try to derail) and then follows it up with McDonald which he will win and which his argument on P&I did not jepordize - people want to just praise the NRA for saving the day and bash Gura for almost losing it - when neither is true.

 

[cbrgator]

My prediction: We'll get a not less than 5-4 and possibly as much as an 8-1 win, with a better than 50/50 chance of incorporation under the P & I clause coupled with a sure Due Process win as well. The RKBA being a definitive privilege and with the Second Amendment making it immune to government infringement, how can we lose?

50/50 for P&I? More like a 2% chance. None of them want to open that gate. Although Scalia said he was unahppy with substantive due process, he did say he has acquiesced to it. Roberts shut it down the first time he opened his mouth and none really seemed warm to the idea. There is almost no chance they'll touch that.

On the other hand, it looks like due process is a shoe-in.

 

[five.five-six]

I could have kissed Gura when at the end of oral arguments in the last of his rebuttal he said: "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."

effective or not, I am quite fond of Gura's "text and history" argument

 

[jmortimer]

We need to be careful what we wish for as the same logic could be used by the liberals in ways that would be very bad - as the O/P stated the good justices need to be careful with the 14th Amendment it for sure can be a two edged sword.

 

[cbrgator]

We need to be careful what we wish for as the same logic could be used by the liberals in ways that would be very bad - as the O/P stated the good justices need to be careful with the 14th Amendment it for sure can be a two edged sword.

I think the justices today made it very clear they are not keen on opening the floodgates on unenumerated rights under the 14th Amendment.

 

[Ragnar Danneskjold]

My prediction: We'll get a not less than 5-4 and possibly as much as an 8-1 win, with a better than 50/50 chance of incorporation under the P & I clause coupled with a sure Due Process win as well. The RKBA being a definitive privilege and with the Second Amendment making it immune to government infringement, how can we lose?

Unfortunately no. Even if we win this 9-0, I highly doubt anything real will change. Tell me, how easy is it to purchase a handgun in D.C.? The Court will issue their opinion, and the poltical machines of those places that have banned guns will get to work creating a new kind of ban, and the legal dance will go on. But the people who actually want to be able to wake up with more liberty than they went to bed with, will get nothing real.

 

[RDak]

ConstitutionCowboy: Man, I sure hope you are right in your predictions.

I think the problem with the P&I "approval" stems from the fact that the Justices are worried the courts throughout the USA will be overwhelmed with suits and litigation if P&I is granted.

I read the transcript and feel you guys are making very good points.

So it's time for my prediction: Incorporation is granted with "heightened" intermediate scrutiny. Why? Like I said on another gunsite...."just a guess".

I'd be very interested in all of your opinions on the level of scrutiny you think might "carry the day".

 

[testosterone]

Just found it really annoying today, that after Gura wins the biggest case in the last one hundred years on the second amendment in Heller (which the NRA did try to derail) and then follows it up with McDonald which he will win and which his argument on P&I did not jepordize - people want to just praise the NRA for saving the day and bash Gura for almost losing it - when neither is true.

Mack,

I for one agree with you 100%.

T

 

[ArmedBear]

mack and testosterone, I ask again: did you read Gura's briefs?

Oral arguments may or may not have any impact on a decision, but Gura was arguing almost all PorI in his briefs, too, and that clearly DID jeopardize the case. He was no longer arguing a 2nd Amendment case. NRA took a much more cautious approach.

Right or wrong, there's plenty of logic in NRA's wanting to prevent the case from being derailed by a non-RKBA libertarian agenda -- and I happen to like that libertarian agenda. I also think that winning isn't everything; it's the ONLY thing. If you lose a high-stakes battle -- no, it's not a game -- you lose, plain and simple. While I value sportsmanship in organized competition, "losing well" counts for nothing in a real-life battle. Arguing a PorI case before the Supremes might get Gura lifetime employment by Cato et al., but losing won't secure our rights.

I'm not saying Gura is corrupt. I'm just saying that I care about winning an RKBA case, and Alan Gura can take care of himself.

I also think that, objectively, Gura chose a losing strategy. NRA (Clement, really) chose what looks like the winning strategy. Luck? Savvy? A little of both? There's always an element of each in a fight.

 

[Michael Thomson]

Just found it really annoying today, that after Gura wins the biggest case in the last one hundred years on the second amendment in Heller (which the NRA did try to derail) and then follows it up with McDonald which he will win and which his argument on P&I did not jepordize - people want to just praise the NRA for saving the day and bash Gura for almost losing it - when neither is true.

There are a couple things you need to keep in mind about this. Prior to Parker/Heller being filed, Gura was an unknown. He certainly was not a well known or respected Second Amendment attorney like Stephen Halbrook. Why should they have been excited about the prospect of a young, inexperienced, libertarian lawyer (who'd never argued before the Supreme Court) filing a Second Amendment case upon which all of our gun rights rest?

Had the NRA not slowed down Parker/Heller, in all likelihood it would have made its way to the U.S. Supreme Court when Sandra Day O'Connor was still on the Court. Considering many of her past statements and opinions, I don't think anyone in their right minds would have wanted that to happen.

As for P or I, no one believed it had more than 1 or perhaps 2 votes on the Courts, so you should understand why NRA might not be thrilled that incorporation of the Second Amendment rested on Gura making such an argument.

NRA took a lot of heat when they filed their motion for divided argument and hired Paul Clement to argue for them. Based on yesterday's reaction from the Court, I damn glad they did.

 

[Bartholomew Roberts]

My prediction: We'll get a not less than 5-4 and possibly as much as an 8-1 win, with a better than 50/50 chance of incorporation under the P & I clause coupled with a sure Due Process win as well.

Well Woody, you read court cases like nobody else. I'll give you that.

Don't get me wrong I think the NRA contributed a lot to the scholarship on the second amendment and helped set the political and public plate for Heller to be sucessful. But it did take Levy and Gura to finally push it to a sucessful conclusion (recognition of the second as protecting an individual right).

Just found it really annoying today, that after Gura wins the biggest case in the last one hundred years on the second amendment in Heller (which the NRA did try to derail) and then follows it up with McDonald which he will win and which his argument on P&I did not jepordize - people want to just praise the NRA for saving the day and bash Gura for almost losing it - when neither is true.

I agree with both of those points.

Oral arguments may or may not have any impact on a decision, but Gura was arguing almost all PorI in his briefs, too, and that clearly DID jeopardize the case. He was no longer arguing a 2nd Amendment case. NRA took a much more cautious approach.

Gura had that luxury because he had another respondent who was handling due process. Look at the briefs between Halbrook and Gura - even though both cover due process and P&I; neither brief duplicates anything in the other brief for the most part. Clearly, there was cooperation between the two respondents on this issue. Once you understand that, it gives a different perspective to the NRA request.

NRA took a lot of heat when they filed their motion for divided argument and hired Paul Clement to argue for them. Based on yesterday's reaction from the Court, I damn glad they did.

I agree with this too. I am glad Clements was there and that was money well spent by the NRA. Having said that, I think that Gura would have capably presented the due process argument if it had been necessary and I think he would have won with it too. Still, it is nice to see one of the top Supreme Court litigators in action on a question where the facts and the law overwhelmingly supported him.

 

[ArmedBear]

Well Woody, you read court cases like nobody else. I'll give you that.

LOL

Once you understand that, it gives a different perspective to the NRA request.

Please elaborate. What are you alleging?

As I see it, NRA's request could have been motivated by one of two things:

1. A desire to steal the spotlight. That one could cut both ways, here...
2. A legitimate concern that the other part of the team had gone south -- and the closer the collaboration, the better-positioned NRA would be to make that call.

What about your statement (nothing new to me) determines which is the case? I don't see any new perspective. I still don't know. It's obvious that Cato is pissed off -- but also that Cato doesn't give two ****s about RKBA per se now that they've gone down the P or I path. Again, they're not obligated to become a primarily-RKBA organization. The NRA, OTOH, is so obligated, but the NRA also stands to gain from claiming credit, as would Cato.

If NRA allowed Gura to make his preferred argument more fully by taking on the SDP argument, then they did him a service. He could go for rock star status, while NRA worried about ensuring victory.

If I didn't generally LIKE Cato, I might not be so nice. But who can't like an organization with P.J. O'Rourke as a fellow?

 

[mack]

I read all the briefs - did you guys? If you did you know that they were coordinated and Gura's focused on P&I as did some of the amicus, while NRA and other amicus briefs focused on due process. Really, the due process question was never in doubt, it was just a matter of whether or not there was a majority for incorporation and whether or not they would incorporate under due process or P&I - with due process being the most likely from the outset.

The court asked for both (P&I and due process) in their question granting cert to McDonald which was/is Gura's case ( if they wanted just due process they could have granted cert to just the NRA's case but they didn't).

The point is that Gura obviously risked nothing by arguing for P&I - the court didn't need a long detailed argument on due process since it is the traditional method of incorporation - so long as it was raised in name as an alternative - that was sufficient.

In orals it was obvious the justices had read the briefs and had essentially decided that they would go with due process, as they are afraid to open the door on P&I even if some of them believe it to be what was originally intended under the 14th.

Essentially, the idea that Gura's divided loyalty (he supports liberty and individual rights) put the case at risk in the Supreme Court is garbage - the justices know due process incorporation and there was nothing new there to argue - so focusing on it was a waste of time - especially when the court had initially chosen not to go with the NRA's straight due process case and instead chose Gura's case, because evidently they wanted to look at or hear the P&I argument - hence the courts own question when granting cert whether incorporation should be under P&I or due process - they reviewed that argument in the briefs and amicus briefs and evidently decided that they would rather go with due process. Court watchers even pointed out, that when the court decided to grant the NRA’s motion for time, that it signaled then that they had evidently decided to go with due process - after reviewing the briefs.

The NRA and their atty did a good job of arguing due process, but I don't think any scholar of the court or of the law would consider their doing so as crucial to the outcome of this case. Obviously the court chose Gura to do the P&I argument and then allowed the NRA to do the due process argument, which was a non-issue - as evidenced by the lack of questions in orals about the basic basis of due process incorporation.

With Heller/Parker the NRA was not attempting to slow it down - they were attempting to stop it, which they continued to attempt to do well after O'Connor was gone, and only stopped when they got embarrassed by Levy and Gura publicly calling them on it, despite initially lying about trying to stop the case.

As far as the NRA taking heat for the motion for divided argument - I don't see them as taking nearly as much heat as Gura took and is taking for supporting P&I. And as I said few if any in the legal community think that the NRA arguing for due process in orals had any influence on the case regarding incorporation - which is why the NRA took any heat in the first place for their motion for divided argument because most saw it as a waste of time that would not influence the incorporation outcome of the case and was only an effort by the NRA to get face time and raise their profile in the case. Judging from the comments here it was a successful PR move on their part.

I don't blame Gura for being p*ssed at the NRA - the court grants his case, asks for both P&I and due process and given his limited time he has to focus on P&I and has no need to focus on due process. He coordinates with NRA so they do the primary due process brief, he mentions due process in his brief also, but naturally is forced to focus more on P&I since he has limited space and he therefore has to use the bulk to address P&I since that would be a sea change in incorporation and involves making a whole new basis of jurisprudence rather than a simple rehash of established due process that the court already knows well. He knows P&I is a long shot, but he also knows that due process is a slam dunk if the majority are inclined to incorporation. Then the NRA decides they want to get their moment in the sun and they therefore file to address the court - so they get the easy argument, take some of Gura's time, and get to have their atty argue the due process argument that will evidently be the winning basis of incorporation (it was always the odds on favorite) while looking good but not really having a real effect on the outcome of the case in regards to incorporation. The result is that Gura gets trashed for jeopardizing the case - when he didn't, and the NRA gets credit for the outcome when their contribution of due process was relatively meaningless and Performa. Also, given that if the NRA had their way, this whole case wouldn’t even be happening, because there would be no Heller decision affirming an individual right - I consider it garbage when people bash Gura and give undue credit to the NRA in regards to the McDonald case.

Again I am not trying to bash the NRA here - I understand their opposition to Heller at the time and I think they were just basically doing their job and were not unreasonable to ask for time in McDonald - and they did a good job on due process. I am glad we have both Gura and the NRA and neither they nor we would be as far as we are in defending the RKBA without both of them.

 

[Bartholomew Roberts]

Please elaborate. What are you alleging

I am not alleging anything - other than that NRA and Gura collaborated on the respondents briefs. Now let's look at that. We agree that I will brief P&I and you will brief Due Process. Now after we have made that agreement, you go to the Court and say "He didn't spend much time arguing for due process. I would like some of his oral argument time to make that argument."

Does that strike you as a something that is going to go over well with your colleague? Can you see why he might be justifiably irate at that, regardless of how well intentioned your request might have been?

It's obvious that Cato is pissed off -- but also that Cato doesn't give two ****s about RKBA per se now that they've gone down the P or I path.

CATO wrote an amicus brief for this case; but beyond that, they are not involved. The Second Amendment Foundation (SAF) is the organization that hired Gura for this case, not CATO.

Heller was not funded by CATO either; but was funded by Robert Levy individually (who is a Chairman at CATO). There is a lot of overlap there; but CATO's contribution has been ideas.

If NRA allowed Gura to make his preferred argument more fully by taking on the SDP argument, then they did him a service. He could go for rock star status, while NRA worried about ensuring victory.

Yes. Overall I think the arrangement actually worked well for everybody. The NRA hired one of the best in the league to be at the plate for the slow & easy pitch and get the guaranteed glory moment. Meanwhile Gura gets to swing for the fences and go after P&I without having to give much thought to the due process argument.

Really everybody benefitted from it ultimately, so I am not so sure why there is all the "NRA saved us from Gura's crazy, wild-eyed libertarianism!" or the "Meddling NRA is trying to sink gun rights again!"

With Heller/Parker the NRA was not attempting to slow it down - they were attempting to stop it, which they continued to attempt to do well after O'Connor was gone, and only stopped when they got embarrassed by Levy and Gura publicly calling them on it, despite initially lying about trying to stop the case.

Just to be clear, I am not trying to say that the NRA was only trying to slow the case. They were trying to kill it dead as dead can be because the NRA was very rightly concerned about creating bad precedent in the ONLY circuit left that had not yet ruled on the Second (D.C.) and one of the more critical circuits from a strategic standpoint. Later they were worried about the Supreme Court limiting the Second - and frankly, if they hadn't tried to kill it, we might all be sitting around talking about how the NRA was right all along because the case would have hit the Court before Alito and Roberts got there. I'm a life NRA member and while I disagreed with them on this issue at the time, I also realize that the NRA was closer to being right than even I thought possible.

So I hate to see them criticized in hindsight, for what was a pretty even-handed assessment of the odds at that time.

 

[ArmedBear]

CATO wrote an amicus brief for this case; but beyond that, they are not involved. The Second Amendment Foundation (SAF) is the organization that hired Gura for this case, not CATO.

They are the source of the loudest rants against Clement and NRA, and their influence here is quite clear.

 

[mack]

NRA probably wanted both time in the spotlight and to make the due process argument.

If people understood or characterized the situation with the NRA and Gura as - NRA argues due process and Gura argues P&I and left it at that then that would be one thing - but many here aren't doing that - they are stating or implying that Gura was wrong of foolish to argue P&I and that it jeopordized the incorporation of the RKBA and that it was lucky that the NRA was there or else the case might have been lost.

I just don't understand why people here have to bash Gura to praise the NRA. The reality is that it isn't one or the other - both did a good job - the NRA supported McDonald and did a good job on due process and Gura got McDonald to the Supreme Court - did a good job on arguing P&I - a new concept before the court in the face of more than a century of jurisprudence - and it looks fairly certain that the second amendment will be incorporated. Its a win people - let's give kudos to all involved.

 

[mack]

BratholomewRoberts wrote:

"Just to be clear, I am not trying to say that the NRA was only trying to slow the case. They were trying to kill it dead as dead can be because the NRA was very rightly concerned about creating bad precedent in the ONLY circuit left that had not yet ruled on the Second (D.C.) and one of the more critical circuits from a strategic standpoint. Later they were worried about the Supreme Court limiting the Second - and frankly, if they hadn't tried to kill it, we might all be sitting around talking about how the NRA was right all along because the case would have hit the Court before Alito and Roberts got there. I'm a life NRA member and while I disagreed with them on this issue at the time, I also realize that the NRA was closer to being right than even I thought possible."

I agree with you on this.

 

[ArmedBear]

So I hate to see them criticized in hindsight, for what was a pretty even-handed assessment of the odds at that time.

The NRA is a VERY conservative organization -- I mean strategically, not politically. Political labels are incidental. They're the Chamber of Commerce of gun rights. One would expect them to be very cautious about, even afraid of, something big like Heller (Parker).

I don't think that the NRA "saved the day", and I support Gura's libertarian philosophy.

Strategically, though, Gura was willing to be the intrepid cavalry scout who got filled with arrows so that, in the end, the regular Army and the Indian tribe could shake hands. I'm glad he was willing to ride on ahead, where NRA, ACLU and others have not been willing.

As a libertarian, I'm truly disappointed with the Court's unwillingness to entertain P or I arguments. See http://online.wsj.com/article/SB10001424052748704548604575097811657663250.html?mod=googlenews_wsj

But as someone who cares about RKBA, if that's all I can get today, I'll sure take that over nothing. Furthermore, a win here will allow the world to see that blood DOESN'T run in the streets when individuals have freedom and power over their own lives. This might even do a little bit to advance a libertarian agenda, and it will certainly help RKBA efforts in the future in ways that losing the case would not.

 

[mack]

BratholomewRoberts wrote:

"So I hate to see them criticized in hindsight, for what was a pretty even-handed assessment of the odds at that time."

Almost agree with this - I only brought it up in this thread because the people bashing Gura and heaping praise on the NRA seem to forget that we wouldn't even be here without Gura and Levy. I agree that any thinking person, whether they agreed with the NRA's take on Heller at the time - which I didn't, should be able to understand the NRA' s realistic fear of losing and having the crushing Supreme Court precedent of the RKBA not protecting an individual right. I do still have an issue with their public dishonesty at the time when they denied that they were trying to kill the Heller case while they were trying to kill it. But of course they didn't want to publicly admit they were trying to kill the case not just because they would get heat from members, but also because to publicly acknowledge such could be construed to imply rightly or wrongly that maybe the RKBA wasn't an individual right, which would give ammunition to the enemies of the NRA and the RKBA. They did get on board before Heller came to the trial in the USSC though.

Of course the NRA and Gura butted heads in the current case of McDonald because Gura cares about both P&I and the second amendment whereas the NRA could care less about P&I. However Gura's support of P&I did not jeopardize the outcome of this case in regards to incorporation of the second amendment.

One reason I agreed with Gura on arguing P&I in this case - is that if the court had decided on incorporation under P&I then I believe that it would have as Gura claimed even more solidly entrenched the RKBA as an individual right and made it much more difficult for a subsequent liberal Supreme Court to overturn that right - as both Heller and McDonald would have to be overturned and overturning McDonald at a later date if it included P&I incorporation would involve possibly overturning a lot of subsequent jusriprudence based on P&I incorporation.

 

[ArmedBear]

One reason I agreed with Gura on arguing P&I in this case - is that if the court had decided on incorporation under P&I then I believe that it would have as Gura claimed even more solidly entrenched the RKBA as an individual right and made it much more difficult for a subsequent liberal Supreme Court to overturn that right

That's true of a whole list of rights, and one reason the Supremes don't want to EVER affirm what P or I was supposed to mean. It means they would, at the stroke of a pen, give up a great deal of the power they have over all of us.

Few people in history have ever done that with the stroke of a pen, unless they were in immediate fear of the stroke of a sword.