The federalism issue is the setting of boundaries and limits that the state-local and federal government share. If the federal right here, extremely protected (“shall not be infringed”) is found to be part of something more general (why I am curious about it), there are all kinds of other rights (anything that is a legal right, meant to be enjoyed by citizens) that the states and localities could not interfere with. We can envision a “cascade” down from gun rights to others that have “softer” protections, but about which the matter of degree actually is irrelevent. There are gun rights. Then there are things like Social Security benefit rights that the states and localities could interfere with, for some bizarre reason, even reviving McCullough vs. Maryland's situation, to try to tax something federal again, out of greed or to make people suffer less benefits than they would otherwise get (“the power to destroy”) because they don't like the federal thing, in this case (imagine a far-right state government opposed to Social Security). Then you get to the hot issue of abortion — any new federal abortion health-care or other entitlement (even a change to the US Code explicitly providing for abortion laws and entitlements), with which state-local interference would be illegal, if the federal “right” involved also were protected. Clear demarcation of federal versus state-local overlap and conflict in all cases like this, of all kinds, would be refreshing and welcome, I believe.

Regarding Scalia “on the skewer,” it's a theory he make, and even be “compelled” due to statements he has made, a ruling that is, despite his reputation as a “conservative,” in favor of (state and local) gun control.

http://reason.com/blog/2010/02/19/does-justice-…

http://www.cbsnews.com/stories/2010/03/01/polit…

etc.

What's remarkable to me is the lack of interest in this case, more than any typical political noise about it were there more interest.

I have an interest in this subject and resolution of the possible overlap problem this case permits.

Your point about the reaction to Citizens United is worhty of consideration. It has even rekindled the idea of court-stacking as you probably know.

While alluded to but not elucidated in my piece, Scalia has for years tried to carve out a middle ground between substantive due process and broad based privileges and immunites that would allow him to advance certain causes that are dear to him without embracing substantive due process or privileges and immunities. The real bombshell was that he openly embraced substantive due process after decades of condemning it while ceding grudgingly that it was the current law of the land.

This is a really weak explanation of his “middle ground”, but basically it calls for overturning state laws that directly contradict, in toto, constitutional rights where there is no cure by process. Thus, he could keep the community standards basis for pornograpghy because it involves a (community standards) process, while overruling the Chicago gun ban because it is a total ban on a constitutional right without a process cure. Of course, the nuanced fly in the ointment is that the Chicago law does not ban all arms, only handguns….thus, perhaps, his Hobson's choice between substantive due process and privileges and immunities.

I stand by my opinion that Scalia is the most activist justice in a generation.

And it would be heartless of me to point out that the five are a bare majority, not the super majority or near unanimous majority Roberts said he would require for any major shift from long standing Supreme Court precedent.

Just look at the loops they went through in Heller v. District of Columbia. They had to rule that the first half of the Second Amendment is in affect, just a verbal flourish, That the word militia was meant all along to mean an individual. An early adaptation of the slogan “An Army of One” I suppose.

Then they had to overthrow the centuries old definition of collective rights, those assigned to the people as a group, and define them all as being individual rights. Oh joy, this means that the right of assembly now includes the right of me to assemble with myself. Whatever that would mean.

Not to mention that the Heller argument was not that the D.C. laws infringed on his right to defend himself and his home but that it prevented him from doing so with his weapon of choice, a pistol. I prefer a fully automatic Uzi dear Supreme Court, can I have one please?

And last but not least they had to duck out of Roberts' commitment for a near unanimous court when long standing precedent is being tossed out. What they came up with was that they could use a slim majority to overthrow long standing precedent when the most recent ruling upholding the precedent had vigorous dissenting opinions. An exception strangely absent from Roberts' confirmation testimony. Almost as if it was dreamed up just to justify this abandonment of principle .

Coupled with Roberts' ability to stare down his own hypocrisy without blinking, I am sure that with this level of disregard for precedent and ability to ignore the conservative meme these five will be able to advance these this highly political goal all the way to becoming a fundamental right.

And I am not sure but what we will be better off when they do. I am a supporter of expanding personal rights.And as they noted in Heller this lays the way clear to require the registration of all firearms as the best method to prevent felons from buying weapons.

But tell me defenders of the conservative meme, the way they are doing it, doesn't it make you feel just a little dirty?

Yes, this is what we're awaiting. That gun rights are individual rights hasn't been open to (serious) question; but this case isn't limited to an “extreme federal-individual” case where the right even is explicitly stated in the Constitution as not to be infringed (at least, by the federal government, but if it is the right of every US citizen, no “Jim Crow” state or local law may taken it away, either — that is the main point here). The explictly-defended gun rights are only one of many kinds of rights that may be claimed as US citizens; there is broad extensilbility, and I hope the Justices touch on this at length in their opinions so as to better clarify and demarcate the line (boundary) between state and federal-local sovereignty (federal supremacy is assumed in prohibiting Jim Crow infringements of federal citizenship rights of all kinds).

I wrote in there that examples of extensibility go all the way possibly to federal entitlements, as the best example. Presumably these are intended to be realized and enjoyed by all citizens, everywhere. This is the objective resolution of politically-hot examples like abortion, for example, for if then the federal government were to create abortion entitlements or other legal rights (in the US code, explicitly, to name a more glaring example), then arguably no state or local government may reduce these (by restricting or prohibiting abortion). Given federal supremacy, the federal government in theory creates a “floor” of minimal citizens' rights of all kinds, including entitlements (a correct federal government establishes both a uniform application of something, and the very minimum possible); if there's overlap, the rule probably must be “no infringement” — states and localities can add to these things but can never “take away” or “deduct” from the federal standard.

The foregoing is example of all kinds of stuff that actually comes with this case, waiting to be addressed by it. The key: Drawing the line between federal and state-local sovereignty, indicating possibly to what length at most the states and localities may encroach into the federal realm. (Practice in the US is in the other direction, as a rule, with routine federal encroachment into state and local affairs.) It's a shame that this case has been neglected and interest is as low as it is (possibly because individual gun rights are no serious question and the gun controllers have been largely lost as well as wrongful from the beginning).

“Where to draw the line” — a general ruling, not specific to gun control and the Second Amendment — that's the big thing we're waiting for, in this case.