1/ Oral Arrguments in Timbs felt like McDonald v. Chicago redux.
In 2010, J. Stevens asked about Apodaca, and whether some rights could apply differently to federal and state governments. In 2018, RBG asked about Apodaca and non-unanimous jury trials. #SCOTUS
In 2010, J. Stevens asked about Apodaca, and whether some rights could apply differently to federal and state governments. In 2018, RBG asked about Apodaca and non-unanimous jury trials. #SCOTUS
2/ In 2010, Paul Clement said Apodaca was an "outlier." In 2018, Wesley Hottot said Apodaca was "anomalous."
3/ In 2010, J. Ginsburg asked if the Court would have to incorporate the Grand Jury and Jury Trial Clauses. In 2018, J. Alito asks about other rights not incorproated, including the right to a grand jury proceeding.
4/ And, like in McDonald, the only Justice in Timbs with an interest in the Privileges or Immunities Clause (J. Thomas) did not ask any questions. J. Gorsuch did mention it, as an alternative
5/ Timbs will be the first substantive due process decided by Post-Kennedy Court. Hottot, as well as Gorusch and Kavanaugh, cited the "deeply rooted" test from Glucksberg--a case that Obergefell stopped short of overruling. Look for conservatives to reanimate Glucksberg #SCOTUS
6/ J. Gorsuch asked Indiana SG Are we "still litigating incorporation of the Bill of Rights. Really? Come on, General?" Three of his colleagues (RBG, Breyer, and Sotomayor) refused to incorporate the 2nd Amendment. #ButGorsuch surely knows this fact. #SCOTUS
7/ J. Alito addressed it. Indiana was urging the #SCOTUS to adopt the same argument that the McDonald dissenters advanced "We don't like Heller, but at least let's just keep it applicable to the District of Columbia and the federal government and not apply it to the states."
8/ There were also brief discussions from Justices Kavanaugh and Alito about how far McDonald went--no further than Heller, and nothing since. #SCOTUS
9/ There are almost certainly 8 Justices to incorporate the Excessive Fines Clause through the Due Process Clause. Does J. Thomas find that prohibition against Excessive Fines is a privilege or immunity of citizens? Do McDonald dissenters concur to explain why guns are different?
