Dellinger, former Solicitor General Gregory Garr and Richard Epstein, law professor at the New York University Law School, also debated whether the Supreme Court, and particularly the conservative block led by Chief Justice John Roberts, has taken an activist approach in their decisions.
“Ultimately the responsibility of the court is to say what the law is and that’s what judges have to do,” said Garr. “With the McDonald opinion, I think in many cases you see the justices go into these polar camps and you would expect them to recognize it a little more and I think this term the judges did recognize it a little more.”
He continued, “For example, Justice [Samuel] Alito recognized in his opinion that there was some room for debate on the history of the 2nd Amendment and he called Justice Steven’s dissent eloquent and you’d expect to see a little more of that.”
McDonald v. Chicago has set the stage for future gun-rights cases across the country, but now the privileges or immunities clause of the 14th Amendment protects essential liberties, such as the right to bear arms.
“The only place the militia clause does not apply is to Washington D.C. and that is because there are no state interests on the other side,” Epstein explained. “So this is not an incorporation question because they just got the history backwards.”
Epstein continued, “It is absurd to say you’re going to use an incorporation argument with any clause if you have a clause designed to protect the state from federal overriding and then turn around and say it protects citizens from its own state.”
Epstein also said that framing the McDonald ruling as an attempt by the court to keep to the original intent of the framers of the Constitution is “an intellectual shamble.”