Justice Ruth Bader Ginsburg and later Justice Kennedy asked Mr. Gura to identify what unenumerated rights he thought would be protected by the privileges or immunities clause as he interpreted it.
Mr. Gura responded that those rights - including the rights to government protection, to obtain and hold property and to sue - have been reiterated throughout American history and that he couldn’t give a full description of all of them.
“That doesn’t trouble you?” Justice Antonin Scalia said.
The sharpest comments on Mr. Gura’s legal strategy also came from Justice Scalia, who referred to overturning Slaughterhouse as the “darling of the professoriate” but also “contrary to 140 years of our jurisprudence.”
He asked whether incorporating the Second Amendment would be made easier through the privileges or immunities clause.
“Justice Scalia, I suppose the answer to that would be no,” Mr. Gura said, “because …”
“Then if the answer is no, why are you asking us to overrule 150, 140 years of prior law, when you can reach your result under substantive due [process],” Justice Scalia interrupted. “I mean, you know, unless you are bucking for a place on some law school faculty.”
The high court is expected to issue a ruling in the case by the end of June.