MR. CLEMENT: But I think in a way that points up to the fact that one of the virtues of incorporation is that, because the Miller decision of this Court sowed confusion, we do not have substantial Second Amendment jurisprudence. And I would think that it's going to be difficult enough to develop the Second Amendment jurisprudence that you wouldn't want to make it more difficult by having to develop a Federal Second Amendment jurisprudence and then some sort of shadow version of that jurisprudence for the States.

JUSTICE SCALIA: Is the right to trial by jury implicit in the concept of ordered liberty?

MR. FELDMAN: I -

JUSTICE SCALIA: My goodness -

MR. FELDMAN: I think that it -

JUSTICE SCALIA: –– there are a lot of countries that don't give the right to trial by jury, even England does not give it in all criminal cases.

MR. FELDMAN: I think it is in the following sense, when you are talking about a procedural right that is embedded in a particular procedural system, you have to look at how that system operates and how the -the right works within that particular system.

CHIEF JUSTICE ROBERTS: I think that's exactly –– that's exactly right. And that is what the Court elaborated on in Duncan. I do think the focus is our system of ordered liberty, not any abstract system of ordered liberty. You can say Japan is a free country, but it doesn't have the right to trial by –– by jury. The –– the –– the concept only makes sense, I think, if you limit it to our system. Under our system, as you said, the –– the right to a jury is essential.
MR. FELDMAN: I –– I agree –– I –– I –– I think that's right. I was just distinguishing between -

CHIEF JUSTICE ROBERTS: Well, if you think that's right, why wouldn't you think, for all the reasons given in Heller, that the Second Amendment right is essential to our system, whatever it may be with respect to France or England or anywhere else?

CHIEF JUSTICE ROBERTS(Addressing Feldman): I don't see how you can read –– I don't see how you can read Heller and not take away from it the notion that the Second Amendment, whether you want to label it fundamental or not, was extremely important to the framers in their view of what liberty meant.

JUSTICE KENNEDY: Without repeating that and just so I understand your position, how could some member of the Court write the –– this opinion to say that this right is not fundamental, but that Heller was correct?

MR. FELDMAN: I –– the Court would just say that what Heller held was if you look at the meanings that the words in the Second Amendment had, the common meaning –– as the Court said in the Heller opinion -the common meanings that the word had in 1791, it imposed limitation on the State. It took a preexisting right that had not been –– was not codified in the Constitution, and it said, this self-defense right we need in the Constitution in order –– in order to protect the militia against being disarmed by the Federal Government.

CHIEF JUSTICE ROBERTS: That sounds an awful lot to me like the argument we heard in Heller on the losing side.

JUSTICE ALITO: Let me see if I understand your argument. I thought you said a minute ago that if a State or local government were to ban firearms completely, this Court might hold that that violates substantive due process because the right to use a firearm for self-defense is –– might be held to be implicit in the concept of ordered liberty; is that right?
MR. FELDMAN: That is correct.

JUSTICE ALITO: And –– but I thought you began by saying that the right to keep and bear arms is not implicit in the concept of ordered liberty.

MR. FELDMAN: The right to keep and bear arms that was recognized–– I don't actually think the right to keep and bear arms itself is. Perhaps the right to self-defense is, and then like other rights, similar rights, if the Court were to hold that that is constitutionally protected, the question would be is the State now giving you sufficient means to exercise that right? Not whatever means you want but sufficient means so that you reasonably can exercise for that right. I would think that would be the only way that that kind of analysis could go if you start off from self-defense.

JUSTICE SCALIA: Mr. Feldman, let me take your argument at –– at its face value. Let's assume that the only reason it is there and the only purpose it serves is the militia purpose. Isn't that militia purpose just as much defeated by allowing the States to take away the militia's arms as it would be by allowing the Federal Government to take away the militia's arms?

MR. FELDMAN: Yes, but I –– that -

JUSTICE SCALIA: Then so -

MR. FELDMAN: But that -

JUSTICE SCALIA: –– even if you assume that the whole thing turns around the militia prologue, that prologue is just as –– just as important with respect to the State's depriving the people of arms.

MR. FELDMAN: But I don't think the argument –– the primary argument that is being made today, that this is implicit in the concept of ordered liberty or sufficiently fundamental or whichever other formulas -

JUSTICE SCALIA: You are switching horses now.

MR. FELDMAN: No, I'm not.

Quoted:
I'm not a lawyer...  what just happened there?  I think I know, but I'm not sure...