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It seems like incorporation of the 2nd amendment is pretty much a done deal. Hopefully they decide to incorporate it verbatim.

One thing I don't inderstand, why is Gura arguing the privileges and immunities angle? Apparently he argued the due process angle to the lower court.

What is it about the privileges and immunities argument that justifies the risk, when the due process argument should be a slam dunk? Why argue to overturn the slaughterhouse cases and 140 years of existing law?

Are there any lawyers here that can shed some light on this?
 

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jalso said:
It seems like incorporation of the 2nd amendment is pretty much a done deal. Hopefully they decide to incorporate it verbatim.

One thing I don't inderstand, why is Gura arguing the privileges and immunities angle? Apparently he argued the due process angle to the lower court.

What is it about the privileges and immunities argument that justifies the risk, when the due process argument should be a slam dunk? Why argue to overturn the slaughterhouse cases and 140 years of existing law?

Are there any lawyers here that can shed some light on this?
On a strictly theoretical basis, the Privileges and Immunities Clause is a "cleaner" legal theory. Using the Due Process Clause, although the preferred route of the Supreme Court (which alone is the reason to go that route) is a clunky process.. That's why law professors love the P & I Clause, but practicioners know it isn't likely to get any where despite it being the superior theory. If one could win the P & I argument, the incorporation of the 2d Amendment would certainly be on very solid ground-probably better than winning a Due Process argument because of the nature of the DP Clause and the Supreme Court's jurisprudence that has grown up around that clause. (Still, a win is a win and the P & I argument is not likely to be a winner).

From a tactical perspective, the attorney was probably arguing P & I because the Due Process argument is so well established that he felt the additional focus in oral argument is not needed (you only get so much time and the purpose of oral argument is not to merely rehash your brief). Moreover, the NRA bullied its way into the case and took some of McDonald's oral argument time. They did so with the stated purpose of arguing the Due Process Clause. Finally, he did argue the DP Clause in his brief. Thus between his brief and the NRA, he maybe figured it was covered well enough. Just my thoughts-I've not read the briefs closely or followed the news on this from day to day.
 

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A pleasure to read. :) I swore an oath to the constitution, if its just a paper with some quant nice ideas, and not actually the law, then why did I not just swear allegiance to the US government, who can do what they want, when they want.

I am a citizen of a Republic, not a drone of a democracy. I hope they respect my rights and incorperate the whole dammm thing.
 
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