McDonald impact: slew of new legal challenges
on Jun 28, 2010 at 3:23 pm
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.Â Â Justice Alitoâ€™s opinion, together with Justice Thomasâ€™ concurrence,Â makes it clear that the Second Amendment applies to states and
municipalitiesÂ as vigorously as it applies against the federal government.Â This isÂ the first case in more than forty years to address the issue ofÂ whether the Bill of Rights is incorporated against the states.Â TheÂ Court says it is, at least as a matter of stare decisis,Â and for Second Amendment purposes.Â The McDonald holding will lead toÂ a slew of additional challenges against state and municipal lawsÂ around the country regulating or restricting the firearms rights of
law-abiding citizens.Â Justice Alitoâ€™s opinionÂ is also of tremendous importance because it is based on the premisÂ that substantive due process rights must be deeply rooted in AmericanÂ history and tradition before the Supreme Court can protect them.Â ThisÂ test was first articulated by Justice Scalia moreÂ than twenty years ago, and it provided the basis for the Courtâ€™sÂ rejection of a claimed constitutional right to assisted suicide inÂ 1997.Â TheÂ McDonald case makes it clear that five justices (Roberts, Alito,Â Scalia, Thomas, and Kennedy) are now committed to recognizing onlyÂ rights that are deeply rooted in history and tradition.Â This is theÂ first occasion on which Roberts and Alito have squarelyÂ addressed this issue, and it is also significant because JusticeÂ Kennedy, who strayed from the conservative camp when he found a
constitutional right to commit sodomy, is now back to signing on toÂ opinions that confine constitutional rights to those that areÂ deeply rooted in history and tradition. Â Finally, McDonald isÂ important because it rejected an effort to persuade the Court toÂ realign its substantive due process caselaw as growing out of theÂ Privileges or Immunities Clause of the Fourteenth AmendmentÂ Â instead of basing it on the controversial doctrine of substantive dueÂ process.Â Justice Alitoâ€™s governing opinion cited stare decisis as aÂ reason not to disinter the Privileges or Immunities Clause.Â JusticeÂ Clarence Thomas rejected the pluralityâ€™s cautiousÂ Â approach and proposed reinvigorating the Privileges or ImmunitiesÂ Clause.Â This concurring opinion is a major victory for originalistsÂ because it is the first Supreme Court opinion in 135 years to clearlyÂ state this view.Â Justice Alitoâ€™s plurality opinionÂ Â offers only tepid arguments in rejecting Justice Thomasâ€™ vigorous,Â originalist reading of the Fourteenth Amendment.Â This means there isÂ hope that eventually Justice Thomasâ€™ view may eventually prevail.
In sum, McDonald v. City of Chicago is important because:Â 1) itÂ incorporates the Second Amendment right of individual gun ownershipÂ into the Fourteenth Amendment so that right will applyÂ against the states; 2) it will lead to a slew of legal challenges toÂ other state and municipal firearms regulations; 3) it confinesÂ judicially enforceable constitutional rights to only those rights thatÂ are deeply rooted in history and tradition; and 4) itÂ Â rejects for now efforts to reinvigorate the Privileges or ImmunitiesÂ Clause but Justice Thomasâ€™ concurrence holds open the possibility thatÂ that might yet happen in some future case.