"Why are you asking us to overrule 140 years of prior law….unless you are bucking for a place on some law school faculty?"

Justice Scalia amusingly squelches in the oral argument that the Supreme Court ought to use the Privileges and Immunities Clause — instead of the usual Due Process Clause to find the 2d Amendment applicable to state and local government. The case is McDonald v. City of Chicago, and SCOTUSblog describes the argument and explains why it's quite likely the Court will find the right to bear arms to extend to state and local government.

The Justice said the “privileges or immunities” argument was “the darling of the professorate” but wondered why [Alan Gura, the lawyer for gun rights advocates,] would “undertake that burden.”  And Scalia noted that the “due process” clause — an open-ended provision that he has strongly attacked on other occasions–  was available as the vehicle for incorporation, and added: “Even I have acquisced in that.”   Gura somewhat meekly said “we would be extremely happy” if the Court used the “due process” clause to extend the Second Amendment’s reach.

Justice Ruth Bader Ginsburg, one of the dissenters in Heller, then moved in to press Gura on just what “unenumerated rights” would be protected if the Court were to revive the “privileges or immunities” clause. It was a theme that would recur often thereafter, solidifying the appearance that the argument had virtually no chance of succeeding.  (In fact, when Gura near the end of the argument returned to the podium for his rebuttal, his time was used up by Justices Ginsburg and Anthony M. Kennedy exploring what other rights might come into being if the Court gave new life to the “privileges or immunities” clause.  He responded that he could not provide a full list, to which Justice Scalia retorted: “Doesn’t that trouble you?”  It was obvious that it troubled the Court.)