McDonald impact: slew of new legal challenges
Steve Calabresi is a law professor at Northwestern University and the founder of the Federalist Society; he signed an amicus brief supporting the petitioner in McDonald v. Chicago.
McDonald v. City of Chicago is a huge five-to-four win for proponents of Second Amendment rights. Justice Alito's opinion, together with Justice Thomas' concurrence, makes it clear that the Second Amendment applies to states and
municipalities as vigorously as it applies against the federal government. This is the first case in more than forty years to address the issue of whether the Bill of Rights is incorporated against the states. The Court says it is, at least as a matter of stare decisis, and for Second Amendment purposes. The McDonald holding will lead to a slew of additional challenges against state and municipal laws around the country regulating or restricting the firearms rights of
law-abiding citizens. Justice Alito's opinion is also of tremendous importance because it is based on the premis that substantive due process rights must be deeply rooted in American history and tradition before the Supreme Court can protect them. This test was first articulated by Justice Scalia more than twenty years ago, and it provided the basis for the Court's rejection of a claimed constitutional right to assisted suicide in 1997. The McDonald case makes it clear that five justices (Roberts, Alito, Scalia, Thomas, and Kennedy) are now committed to recognizing only rights that are deeply rooted in history and tradition. This is the first occasion on which Roberts and Alito have squarely addressed this issue, and it is also significant because Justice Kennedy, who strayed from the conservative camp when he found a
constitutional right to commit sodomy, is now back to signing on to opinions that confine constitutional rights to those that are deeply rooted in history and tradition. Finally, McDonald is important because it rejected an effort to persuade the Court to realign its substantive due process caselaw as growing out of the Privileges or Immunities Clause of the Fourteenth Amendment instead of basing it on the controversial doctrine of substantive due process. Justice Alito's governing opinion cited stare decisis as a reason not to disinter the Privileges or Immunities Clause. Justice Clarence Thomas rejected the plurality's cautious approach and proposed reinvigorating the Privileges or Immunities Clause. This concurring opinion is a major victory for originalists because it is the first Supreme Court opinion in 135 years to clearly state this view. Justice Alito's plurality opinion offers only tepid arguments in rejecting Justice Thomas' vigorous, originalist reading of the Fourteenth Amendment. This means there is hope that eventually Justice Thomas' view may eventually prevail.
In sum, McDonald v. City of Chicago is important because: 1) it incorporates the Second Amendment right of individual gun ownership into the Fourteenth Amendment so that right will apply against the states; 2) it will lead to a slew of legal challenges to other state and municipal firearms regulations; 3) it confines judicially enforceable constitutional rights to only those rights that are deeply rooted in history and tradition; and 4) it rejects for now efforts to reinvigorate the Privileges or Immunities Clause but Justice Thomas' concurrence holds open the possibility that that might yet happen in some future case.