Unlike Jack Balkin, I did not find Dahlia Lithwick's piece on the gun oral argument good. I found it depressingly lame and predictable (shocker: she doesn't really think too much about an individual right to own a gun). In a follow-up on the new Slate legal blog, she referenced Jack Balkin's appeal to the Framers as to it being a personal right that should be incorporated ala the Fourteenth. This is part of his "hey, I can be liberal and originalist" too kick. It only convinces the convinced -- the Framers probably had a more restrictive view of equal protection (e.g., no social rights) too.
She wasn't sure how that went -- after all, being listed in the Bill of Rights apparently (under current doctrine) isn't enough to make the right fundamental enough to require that. This too is pretty lame, if a claim made repeatedly by people who simply are wrong. What rights aren't incorporated? The Third Amendment never really comes up, though my own appellate circuit logically said it was incorporated (as dicta in Griswold, listing it among privacy rights) when it got a chance. The Excessive Fines Clause might not have been directly dealt with either, but the punitive damage cases alone suggest due process requires that protection.
Civil juries aren't required, but what state doesn't have them, even the few with civil law traditions like Louisiana? That leaves grand juries. And, even there, many states require them for "infamous" crimes, a flexible term anyway (though it grew basically to mean felonies). Of course, though Dahlia's column apparently cluelessly missed the irony by referencing the gun control side as wanting to make gun ownership an "unemerated" second class citizen sort of right without mentioning Griswold, many unemerated rights are incorporated too.*
Given civil juries already are secured, that leaves one right -- which many states secure anyway -- not covered. Oh, and criminal juries are given somewhat more leeway too (no unanimous or twelve person requirement). BFD. And, though the professionalization of the law developed enough by the Fourteenth Amendment to temper it (e.g., judicial nullification was looked at with disfavor by many), the original Framers loved juries (note, however, even then, civil juries were flexible -- the Federalist Papers, for instance, defended Article III's only covering criminal juries by noting the diversity in the states at the time).
Arguably, not incorporating juries is wrong on a simple historical level. Anyway, nothing is perfect. "Selective" incorporation, however, is a misnomer given the reality of the situation. That leaves the Second Amendment. First, dicta in various cases -- including Planned Parenthood v. Casey -- lists it among "personal" rights. Second, if you see it as securing some collective right (power) of states, it really cannot be incorporated -- it is solely a federalist concern. Finally, since nearly every other right was incorporated (citing 19th Century cases in which the Second is not incorporated is cheating -- the First was not incorporated either; the test now is to determine if a fundamental right** is at stake ... can states quarter militia troops in homes since hey the Supremes never dealt with that directly?), you have to explain why gun ownership is unique.
This is a hard sell, especially from a historical p.o.v. (free blacks needed weapons for self-defense). Dahlia is upset that the Supremes are primed to "create" a new right, blatantly politically at that. She apparently thinks because "liberals" and "conservatives" selectively speak of local discretion and such that they are hypocrites. As with her ignoring recent gun rights cases such as Lopez and Printz, this is misleading at best. They just have different views of proper spheres. Overblown judicial restraint rhetoric deserves sarcasm, but putting that aside, what is going on is not too outrageous. It does require a bit more discernment than some have.
As to the "create" new rights deal, how exactly is recognizing something honored as a right for centuries that? Such rights btw aren't "created" by the Constitution. Let me quote Justice Brennan, voicing (for the Court) a too rarely emphasized core American principle that we should honor each 7/4 along with those fireworks:
the liberty interest in family privacy has its source, and its contours are ordinarily to be sought, not in state law, but in intrinsic human rights, as they have been understood in "this Nation's history and tradition."
The right of self-protection, in a personal and communal (militia) sense, are among such time honored rights. It seems to me ill-advised, honestly, to put all your eggs in the 2A basket. The "militia" has a special quality that simple self-defense doesn't have. They overlap, but not totally. Surely, however, it is among those rights honored by our tradition. This includes self-defense by guns, something many debate the contours of, but largely agree in some fashion is a right we should have.
As I said elsewhere, this is one reason why there are so few gun cases -- the core right was not as threatened completely as free speech, equality and privacy has and continues to be in various ways. Anyway, a large majority -- including the far from radical gun rights editorial board of the NY Daily News (counseling caution, but arguing the D.C. law was too extreme) -- thinks there ALREADY is a right to have a weapon for self-defense. It is not being "created."
There is some interesting discussions going on, including by Jack Balkin, concerning this case. But, there also is a lot of tedious blather.
---
* "The Constitution does not create some kind of sacred, fundamental right to guns. If there's a right here at all, [the advocate for the District] says, it's at the 'penumbra of the periphery' of the Constitution: in a shack behind the river where the other unenumerated rights huddle."
** One comment argues gun ownership is "fundamental" enough to be incorporated but not "fundamental" enough to warrant strict scrutiny ala free speech. The solicitor general also supported intermediate scrutiny. Not all "fundamental" rights are really treated the same, even if they technically are given "strict scrutiny." Thus, even back in the day, abortion and travel was allowed to be more regulated than speech.
The Second Amendment does say "no" as well though. Time, place and manner rules (trigger locks, concealed weapon bans, etc.) can go pretty far -- heck, you might even apply it too urban areas as a whole. And, there are categories of speech that are not protected (libel, obscenity, etc.), so why not certain types of guns?
Finally, to the degree the Second Amendment is militia based, that too would allow some reasonable regulation that is not applicable in the free speech field (which has some of that too -- consider bans on invasive speech and arguably campaign finance laws). And, if personal defense is somewhat separate, it falls among those general liberties that aren't specifically underlined with such forceful "no" language, so might be open to somewhat more regulation.