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).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?