Constitutional Law Prof Blog

Daily Read: Diane Marie Amann on Justice Stevens as an Orginalist

The labels of constitutional interpretative practice often attached to Justices such as "legal realist" or "originalist" are both useful and problematical.  In her essay, John Paul Stevens, Originalist, 106 Northwestern University Law Review 743 (2012), available on ssrn, Professor Diane Marie Amann (pictured), makes an argument that Justice Stevens could just as well be called an originalist as his more usual label of pragmatist. 

Amann's essay argues that scholars need to recognize that Stevens "has done battle upon originalism’s own field of combat."   She highlights Stevens opinions in the "gun rights" cases of District of Columbia v. Heller (2008) and McDonald v. City of Chicago (2010), the latter of which was rendered the day before Stevens retired after almost thirty-five years as a Justice.

Importantly, she also situates Stevens career within the history of the Court, especially Justices appointed by FDR such as Justice Rutledge, for whom Stevens clerked in 1947.

For anyone teaching, writing, or studying theories of constitutional interpretation, Amman's essay is a must-read.

RR

Florida Judge Overturns "Medical Privacy Concerning Firearms" Act

Judge Marcia Cook (S.D. Fl.) last week ruled in Wollschlaeger v. Farmer that the Florida's law restricting health care providers from asking whether a patient owns a firearm violates free speech.  The ruling permanently enjoins the state from enforcing four provisions of the act and from disciplining health care providers who violate them.  We posted on the case previously--when Judge Cook granted a preliminary injunction--here.

The ruling is a blow to state efforts to restrict health care providers from talking and asking patients about gun ownership.  But the ruling makes clear that any worries about discrimination against gun owners was based on only the thinnest actual evidence.  (In other words, the law protected against something that didn't exist--at least in any widespread, systematic way.)  Thus, this case isn't a ruling on a clash between First and Second Amendment rights--because the state failed to show that there was any real interference with Second Amendment rights driving the law.  This is a pure free speech case, and the state's stated interests just don't hold up.

A group of doctors and health care providers brought the case challenging Florida's ban--which prohibits doctors and health care providers from talking or asking patients about firearms ownership.  The plaintiffs claimed that the law chilled their speech about preventive health issues.  Judge Cook agreed.  The state's biggest problem, according to Judge Cook, was that it didn't show that the law was tailored to meet any particular problem--that the state failed to show that there was any widespread infringement on the right to bear arms or any widespread discrimination against gun owners by health care providers.

Florida Statutes 790.338 provides:

(1) A health care practitioner . . . or a health care facility . . . may not intentionally enter any disclosed information concerning firearm ownership into the patient's medical record if the practitioner knows that such information is not relevant to the patient's medical care or safety, or to the safety of others.

(2) A health care practitioner . . . or a health care facility . . . shall respect a patient's right to privacy and should refrain from making a written inquiry or asking questions concerning the ownership of a firearm or ammunition by the patient or by a family member of the patient, or the presence of a firearm in a private home or other domicile of the patient or a family member of the patient.  Notwithstanding this provision, a health care practitioner or health care facility that in good faith believes that this information is relevant to the patient's medical care or safety, or the safety of others, may make such a verbal or written inquiry.

. . .

(5) A health care practitioner . . . or a health care facility . . . may not discriminate against a patient based solely upon the patient's exercise of the constitutional right to own and possess firearms or ammunition.

(6) A health care practitioner . . . or a health care facility . . . may not discriminate against a patient based solely upon the patient's exercise of the constitutional right to own and possess firearms or ammunition.

After ruling that the plaintiffs had standing to challenge these four provisions of the law, and that the challenge was ripe, Judge Cook ruled that these provisions violated the First Amendment.  She wrote that the provisions were content-based restrictions on speech, subject to strict scrutiny; that they were a ban on (especially protected) truthful, non-misleading speech; and that the state's interests didn't stand up.

The state said that it had interests in protecting patients' Second Amendment rights, protecting patients' access to health care in the face of discrimination (against those who own firearms), protecting patients' privacy rights, and regulating professionals.  

But Judge Cook ruled that the state couldn't show any widespread infringement on patients' Second Amendment rights, access, or equal treatment.  The law was based entirely on a handful of anecdotes.  Moreover, the law itself contains protections for patients--for example, allowing them not to answer questions about firearms ownership.  The state's interests, Judge Cook ruled, were therefore insufficient to withstand strict scrutiny analysis.

They were also insufficient to withstand a less rigorous balancing under Gentile v. State Bar of Nevada, a case setting the free speech bar lower when a state seeks to regulate a lawyer's speech.

Judge Cook also ruled that two clauses were unconstitutionally vague: "relevant to the patient's medical care or safety, or the safety of others"; and "unnecessarily harassing."  Those phrases, she said, do not give sufficient guidance to health care providers as to what speech is covered and what speech is not.

SDS

County Pulls Rug Out From Under Second Amendment Claim

In the latest installment in the long-running saga Nordyke v. King, the en banc Ninth Circuit ruled today that Alameda County's ban on gun shows at the county fairgrounds didn't violate the Second Amendment, because, well, Alameda County changed its policy to allow gun shows.

The county's late-in-the-day move pulled the rug out from under the plaintiffs' original Second Amendment claim and gave the court an out (which it took) in articulating a Second Amendment standard.  The move also allowed the court to preempt any repleading by the plaintiffs.  Between the county's move and the court's ruling, the case now has virtually no chance of going to the Supreme Court.

Recall that the case involved Alameda County's ban on gun shows at the county fairgrounds.  The county ordinance banned firearms on the fairgrounds, but provided exceptions for, among other things, a "dance or theatrical production or event, when the participant lawfully uses the firearm as part of that production or event."  The county originally interpreted the ordinance to ban gun shows, and the plaintiffs sued.

That was a long time ago, and the case has been up and down several times since.  But most recently, the county re-interpreted its ordinance to allow gun shows (as an "event"), provided that the weapons are secured or tethered (like cell phones are in a cell phone store).

The en banc Ninth Circuit ruled that the county's change in interpretation meant that the plaintiffs no longer had a Second Amendment claim against a ban on gun shows.  The court said nothing about the Second Amendment itself.

As to the requirement that the guns remain secured or tethered, the court said that that "[n]o matter how broad the scope of the Second Amendment . . . it is clear that . . . this regulation is permissible."

Judge O'Scannlain, joined by Judges Tallman, Callahan, and Ikuta, concurred, arguing that the court should have adopted a standard of scrutiny for the Second Amendment--the "measured, calibrated approach developed in the original three-judge panel majority opinion, which considers carefully the extent of the regulation's burden on Second Amendment rights."  But even applying this standard, Judge O'Scannlain argued that the county's new interpretation of the ordinance would survive.

Judge Ikuta, joined by Judge Callahan, also wrote a concurrence, arguing that the court should adopt a standard and determine whether the plaintiffs could re-plead their case.

While we still don't have guidance from the Supreme Court as to the standard for Second Amendment claims, this case now makes a poor candidate for the Court to determine that standard.  Look for this case to (finally) end.

SDS

Fordham Urban Law Journal Symposium on Second Amendment

The Fordham Urban Law Journal will host its Volume XXXIX Symposium next Friday, March 9, titled Gun Control and the Second Amendment: Developments and Controversies in the Wake of District of Columbia v. Heller and McDonald v. Chicago.

The Journal put together a terrific line-up, available here.  The program runs from 10 am to 5 pm on Friday, March 9, 2012, at the Fordham University School of Law, James B.M. McNally Amphitheater.  CLE credit is available.

SDS

Bill of Rights Day 2011

Today is Bill of Rights Day, marking the 220th anniversary of the adoption of the United States Constitution's Bill of Rights.

In his Presidential Proclamation last week, Obama stated:

On December 15, 1791, the United States adopted the Bill of Rights, enshrining in our Constitution the protection of our inalienable freedoms, from the right to speak our minds and worship as we please to the guarantee of equal justice under the law. For 220 years, these fundamental liberties have shaped our national character and stirred the souls of all who dream of a freer, more just world. As we mark this milestone, we renew our commitment to preserving our universal rights and perfecting our Union.

Introduced in the First Congress in 1789, the Bill of Rights was born out of compromise. The promise of enumerated rights enabled the ratification of the Constitution without fear that a more centralized government would encroach on American freedoms. In adopting the first ten Amendments, our Founders put forth an ideal that continues to define our Nation -- that we can have both liberty and security, that we need not sacrifice the rights of man for the rule of law.

Throughout our country's history, generations have risen to uphold the principles outlined in our Bill of Rights and advance equality for all Americans. The liberties we enjoy today are possible only because of these brave patriots, from the service members who have defended our freedom to the citizens who have braved billy clubs and fire hoses in the hope of extending America's promise across lines of color and creed. On Bill of Rights Day, we celebrate this proud legacy and resolve to pass to our children an America worthy of our Founders' vision.

Some would argue, however, that the Bill of Rights does not enshrine "the guarantee of equal justice under the law" in the Constitution, given that the concept of individual equality does not appear in the Constitution until the Fourteenth Amendment passed after the Civil War. The Fourteenth Amendment also introduced the word "male" into the Constitution, in section 2 regarding voting, although section 1 uses the word "persons."

The "Bill of Rights" as ratified does primarily focus on "rights," but the original Resolution of Congress consisting of twelve amendments did not concern rights.  Instead, they concerned Congress itself:

Article the first . . . After the first enumeration required by the first Article of the Constitution, there shall be one Representative for every thirty thousand, until the number shall amount to one hundred, after which, the proportion shall be so regulated by Congress, that there shall be not less than one hundred Representatives, nor less than one Representative for every forty thousand persons, until the number of Representatives shall amount to two hundred, after which the proportion shall be so regulated by Congress, that there shall not be less than two hundred Representatives, nor more than one Representative for every fifty thousand persons.

Article the second . . . No law, varying the compensation for the services of the Senators and Representatives, shall take effect, until an election of Representatives shall have intervened.

The latter became the 27th Amendment, ratified more than two centuries later in 1992.

Still, it's a good day to reflect on the "Bll of Rights":

• Amendment 1. Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
• Amendment 2. A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.
• Amendment 3. No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law.
• Amendment 4.  The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
• Amendment 5.  No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.
• Amendment 6. In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.
• Amendment 7. In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law.
• Amendment 8. Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.
• Amendment 9. The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.
• Amendment 10. The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

 

RR
[image from National Archives via] 

Ban on Receiving Guns Withstands Second Amendment Challenge

Judge Jack Weinstein (E.D.N.Y.) yesterday rejected a claim that the federal law criminalizing the receipt of a firearm in interstate commerce violates the Second Amendment.  The case, U.S. v. Laurent, arises out of an indictment under 18 U.S.C. Section 922(n), which says:

It shall be unlawful for any person who is under indictment for a crime punishable by imprisonment for a term exceeding one year to ship or transport in interstate or foreign commerce any firearm or ammunition or receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce.

Laurent's indictment was for receiving a firearm in violation of Section 922(n).  He challenged that provision on its face under the Second Amendment, among others.

Judge Weinstein wrote that intermediate scrutiny is appropriate:

The Supreme Court has indicated that some form of heightened scrutiny is necessary when the conduct at issue falls within the core of the Second Amendment right to bear arms for the purpose of self defense in the home.  [Heller]  As already noted, most courts of appeals have found that regulations which substantially burden the right to keep and to bear arms for the purpose of self-defense should receive intermediate scrutiny.  By contrast, laws that do not substantially burden the right to keep and to bear arms for this purpose are not entitled to any level of heightened scrutiny.

Judge Weinstein ruled that Section 922(n) imposes a substantial burden, but satisfies intermediate scrutiny:

The prohibition at issue in this case is less restrictive than other subsections of 18 U.S.C. Section 922, which totally ban possession by particular categories of people, such as felons or misdemeanants convicted of domestic violence.  They have survived intermediate scrutiny.

Concededly, given the presumption of innocence, the government's categorical presumption that all individuals under indictment for a felony are more likely to misuse firearms is somewhat suspect.  Congress appears to have determined,  however, that a narrower ban would not serve its interest in public safety.  Initially, Congress only limited receipt of firearms by violent indictees.  After three decades of experience, it saw the need to expand the prohibition to all indictees.

As demonstrated by the facts of this case, it cannot be said that Congress' determination to criminalize the act of receiving a firearm while under indictment was unreasonable, and that "no set of circumstances . . . under which [the statute] would be valid."  Laurent was initially indicted in state court for crimes arising out of gun play in a residential building.  He was subsequently arrested after allegedly robbing another individual at gun point.  The fact that Laurent was charged with the instant crime because he apparently committed a crime of violence while under indictment undermines any claim that he might have that Section 922(n) is not substantially related to preventing him from engaging in further violence.  He is hardly the law-abiding householder with a gun at home to protect his family.  The statute is thus also not unconstitutional as applied to this defendant.

The fact that Laurent may eventually plead to a misdemeanor is not of statutory or constitutional significance.  The crime is committed when the firearm is obtained while the defendant is under a felony indictment; dismissal, acquittal, or conviction does not affect that fact.  So long as the government can show that he was under indictment for a felony at the time he received a firearm, he may be convicted under Section 922(n).

Because the statute is substantially and directly related to the important government interest in public safety, it survives intermediate scrutiny under the Second Amendment.

SDS

 

Ninth Circuit to Rehear Case on Gun Show Bans

The Ninth Circuit announced yesterday that it would rehear Nordyke v. King en banc.  The case involves a Second Amendment challenge to a municipal gun show ban.  The three-judge panel upheld the ban in May; the case will now go to the full Ninth Circuit.

The ruling gives the full Ninth Circuit a chance to determine the standard for Second Amendment challenges.  Two of the judges on the panel applied a "substantial burden" test and upheld the ban:

Because the Supreme Court has yet to articulate a standard of review in Second Amendment cases, that task falls to the courts of appeals and the district courts. . . . .

The Supreme Court's reasoning in Heller and McDonald suggests that heightened scrutiny does not apply unless a regulation substantially burdens the right to keep and to bear arms in self-defense. . . .

We are satisfied that a substantial burden framework will prove to be far more judicially manageable than an approach that would reflexively apply strict scrutiny to all gun-control laws.

Judge Gould would have upheld the ban under a rational basis test:

Drawing from First Amendment doctrine, I would subject to heightened scrutiny only arms regulations falling within the core purposes of the Second Amendment, that is, regulations aimed at restricting defense of the home, resistance of tyrannous government, and protection of country; I would subject incidental burdens on the Second Amendment right (analogous to time, place, and manner speech restrictions) to reasonableness review.

SDS

Federal Judge Enjoins Florida Prohibition Against Physicians Asking Patients About Firearms

The name of the Florida Law is "An act relating to the privacy of firearm owners": it prohibits medical care providers from asking their patients about gun ownership and recording such information.  The Act, passed in 2011 and signed by controversial Florida Governor Rick Scott, was touted as preventing doctors from asking questions about a constitutional right and therefore protecting that right. 

Judge Marcia Cooke of the Southern District of Florida entered an Order Granting a Preliminary Injunction in Wollschlaeger v. Farmer, enjoining enforcement of the Florida statute.

Judge Cooke rejected the relevancy of the Second Amendment argument of the State of Florida: "The State has attempted to inveigle this Court to cast this matter as a Second Amendment case. Despite the State's insistence that the right to "keep arms" is the primary constitutional right at issue in this litigation, a plain reading of the statute reveals that this law in no way affects such rights."

Instead, Judge Cooke analyzed the law under the First Amendment.  The statute, Judge Cooke observed, curtails medical practitioners' ability to inquire about whether patients own firearms and burdens their ability to deliver a firearm safety message to patients, under certain circumstances, and thus implicates practitioners' First Amendment rights of free speech.  She also observed that the statute also implicates patients' freedom to receive information about firearm safety, which the First Amendment protects."

Judge Cooke analyzed the standing issues, quickly and accurately determining the plaintiffs had standing, rejecting the State's argument that the statute was merely horatory.  She then discussed the First Amendment arguments, situated within the discussion of the likelihood of success on the merits in the preliminary injunction standard.

At the center of Cooke's analysis was the Court's decision last term in Sorrell v. IMS, in which the Court held unconstitutional a state statute seeking to regulate datamining of prescription information.  However, Cooke clearly viewed the Florida statute as meriting strict scrutiny, holding that it directly targets speech based on its content.  Judge Cooke also analogized to the "hate speech" case of R.A.V. v. City of St. Paul (1992), noting that Florida has prohibited "harassment and discrimination" by doctors only on the subject of firearm ownership.

As for satisfying the compelling interest prong of the strict scrutiny test, Judge Cooke wrote that the State "provides no case law indicating that preventing practitioners from harassing or discriminating against a patient based on firearm ownership constitutes a compelling government interest. Further, the State "fails to provide any specific evidence, beyond anecdotal information, that such "harassment" and "discrimination" is widespread or pervasive. It is unlikely that a concern for some patients who may be offended or uncomfortable by questions regarding firearm ownership could justify this law."

As for the "least restrictive means" prong, the Judge held that the State does not explain why the extant state and federal laws protecting patient privacy are insufficient to protect the privacy interests, and discussed various other suggestions by the health practitioners.

Judge Cooke explicitly refused to "speak to the wisdom of the legislation now before me," given her judicial role.  And indeed, her opinion is a fine exemplar of judicial craft.   At 22 pages, it is succinct yet sufficient, well-written and well-organized.  Sure to be appealed, it is likely to be upheld, if the Eleventh Circuit Judges exercise good judgment.

RR
[image: The Doctor's Visit by Jane Steen, circa 1714, via, with antique gun overlay].

Is The Roberts Court Really a Court? Eric Segall's Answer

In an article with the provocative title Is The Roberts Court Really a Court?, 40 Stetson Law Review 1 (2011), available on ssrn, Professor Eric Segall defines the judicial function as the resolution of "legal disputes by examining prior positive law, such as text and precedent, and then providing transparent explanations" for the decisions.  On this definotion, Segall concludes that the Roberts Court is not "really" a judicial body based upon an examination of three controversial cases:  Gonzales v. Carhart (Carhart II), 550 U.S. 124 (2007); District of Columbia v. Heller, 554 U.S. 570 (2008); and Citizens United v. Federal Election Commission, __ U.S. ___, 130 S. Ct. 876 (2010). 

Here's Segall's conclusion:

In Carhart II, the Roberts Court implicitly overturned an important decision without any discussion of stare decisis. In Heller, the Court created a brand new constitutional right, displacing centuries of caselaw, based on a controversial (at best) historical account that raised serious questions about how the Court actually reached its decision. And, in Citizens United, the Court reached out to decide an important and settled issue of constitutional law not raised by the parties, and it did so without any meaningful discussion of history or stare decisis concerns. In all three cases, the only persuasive descriptive account of why the Court veered from prior positive law is that the people on the Court changed (Justice Alito for Justice O’Connor). This is not judging according to the Rule of Law but judging according to the Rule of Five Justices, and it seriously calls into question whether the Roberts “Court” is, in fact, a court at all.

Segall's brief article provides execellent support for this conclusion, which is widely - - - although certainly not universally - - - shared. 

However, Segall also contends that the question of whether the Roberts Court is really a court "could just as easily be asked of the Rehnquist, Burger, and Warren Courts, as well as all of the other previous Supreme Courts."  Indeed, the conclusion that the Supreme Court is merely the "Rule of Five" is one that might even be more widely - - - although again not universally - - - shared than conclusions about any particular Court.  It is what can make Constitutional Law courses so challenging. 

Segall quickly retreats from the more comprehensive argument: "A comparative analysis of the various Supreme Courts’ reliance on prior law is well beyond the scope of this Article."   Yet he contends that regardless "of whether prior Courts can be accused of similar attitudes, the general indifference of the Roberts Court to these rule-of-law values is troubling."   With three controversial cases, Segall mounts an argument that many will find persuasive.

RR

Gun Show Bans Don't Violate Second Amendment, Ninth Circuit Rules

A three-judge panel of the Ninth Circuit ruled today that a ban on gun shows on municipal property does not violate the Second Amendment.

In the long-running and procedurally dizzying case Nordyke v. King, the panel rejected a categorical application of strict scrutiny to all Second Amendment claims and instead applied a "substantial burden" test to the municipal ban:

Because the Supreme Court has yet to articulate a standard of review in Second Amendment cases, that task falls to the courts of appeals and the district courts. . . .

The Supreme Court's reasoning in Heller and McDonald suggests that heightened scrutiny does not apply unless a regulation substantially burdens the right to keep and to bear arms in self-defense. . . .

We are satisfied that a substantial burden framework will prove to be far more judicially manageable than an approach that would reflexively apply strict scrutiny to all gun-control laws.

The panel ruled that the ban on gun shows on municipal property did not substantially burden the Second Amendment right to keep and to bear arms.  (It also ruled that the ban did not violate the First Amendment or the Equal Protection Clause.)

Judge Gould, concurring, would have upheld the ban under a rational basis test.  Here's Judge Gould's formulation:

Drawing from First Amendment doctrine, I would subject to heightened scrutiny only arms regulations falling within the core purposes of the Second Amendment, that is, regulations aimed at restricting defense of the home, resistance of tyrannous government, and protection of country; I would subject incidental burdens on the Second Amendment right (analogous to time, place, and manner speech restrictions) to reasonableness review.

SDS

Standing to Challenge Residency Requirement for Guns

The D.C. Circuit ruled on Friday that a U.S. citizen residing in Canada has standing to challenge the federal law prohibiting a non-resident from buying a gun.

18 U.S.C. Sec. 922(a)(9) makes it unlawful for "any person . . . who does not reside in any State to receive any firearms unless such receipt is for lawful sporting purposes."  The ATF form Firearms Transaction Record Part I--Over the Counter, requires gun purchasers to give their state of residence.  (See Question 13 on the form.)

The plaintiff in the case, Stephen Dearth, alleged that he lives in Canada and no longer maintains a residence in the U.S.  He says that he tried twice to purchase a gun, but was foiled when he could not provide an answer to Question 13.  He sued for declaratory and injunctive relief.

The government argued that Dearth couldn't show a continuing harm: It never denied his application; Dearth didn't claim a right to a "permit" or "license" by the government; and Dearth stated no firm plans to visit the U.S.

The court rejected these arguments.  It held that Dearth's inability to complete the application was harm enough (even if the government didn't ever deny the application), and that Dearth's claim of a right to possess a gun was sufficient (and that there's no requirement that Dearth claim a right to a permit or license).  It also held that Dearth's claims that he intends to visit his friends in the U.S. and to store his guns at his relatives' home in the U.S. satisfied the requirement in Lujan v. Defenders of Wildlife, 504 U.S. at 564, that a prospective injury be sufficiently "actual or imminent" (and not a "some day" intention).

SDS

Footnote of the Day: Bill of Rights Provisions Incorporated Against the States

In need of a handy list (with citations) of the provisions of the Bill of Rights incorporated against the states through the Fourteenth Amendment's Due Process Clause? 

The Court's opinion in McDonald v. City of Chicago, decided June 2010, is an obvious place to look and its footnotes do not disappoint.  

As support for the proposition "The Court eventually incorporated almost all of the provisions of the Bill of Rights," the opinion includes footnote 12: 

With respect to the First Amendment, see Everson v. Board of Ed. of Ewing, 330 U. S. 1 (1947) (Establishment Clause); Cantwell v. Connecticut, 310 U. S. 296 (1940) (Free Exercise Clause); De Jonge v. Oregon, 299 U. S. 353 (1937) (freedom of assembly); Gitlow v. New York, 268 U. S. 652 (1925) (free speech); Near v. Minnesota ex rel. Olson, 283 U. S. 697 (1931) (freedom of the press).

With respect to the Fourth Amendment, see Aguilar v. Texas, 378 U. S. 108 (1964) (warrant requirement); Mapp v. Ohio, 367 U. S. 643 (1961) (exclusionary rule); Wolf v. Colorado, 338 U. S. 25 (1949) (freedom from unreasonable searches and seizures).

With respect to the Fifth Amendment, see Benton v. Maryland, 395U. S. 784 (1969) (Double Jeopardy Clause); Malloy v. Hogan, 378 U. S. 1 (1964) (privilege against self-incrimination); Chicago, B. & Q. R. Co.v.Chicago, 166 U. S. 226 (1897) (Just Compensation Clause).

With respect to the Sixth Amendment, see Duncan v. Louisiana, 391U.S. 145 (1968) (trial by jury in criminal cases); Washington v. Texas, 388 U. S. 14 (1967) (compulsory process); Klopfer v. North Carolina, 386 U. S. 213 (1967) (speedy trial); Pointer v. Texas, 380 U. S. 400 (1965) (right to confront adverse witness); Gideon v. Wainwright, 372U.S. 335 (1963) (assistance of counsel); In re Oliver, 333 U. S. 257 (1948) (right to a public trial).

With respect to the Eighth Amendment, see Robinson v. California, 370 U. S. 660 (1962) (cruel and unusual punishment); Schilb v. Kuebel, 404 U. S. 357 (1971) (prohibition against excessive bail).

 In the next footnote, footnote 13, the Court discusses the provisions that have not been incorporated:

                the Sixth Amendment right to a unanimous jury verdict;
                the Third Amendment’s protection against quartering of soldiers;
                the Fifth Amendment’s grand jury indictment requirement;
                the Seventh Amendment right to a jury trial in civil cases;
                the Eighth Amendment’s prohibition on excessive fines

 At issue in McDonald, of course, was the Second Amendment's right to "keep and bear arms."  

In a 5-4 decision, the Court in McDonald held that this right belongs with the category of incorporated rights in footnote 12 and not with the unincorporated rights discussed in footnote 13.

RR

McDonald v. Chicago Opinion Analysis: Second Amendment Incorporated Against States

By a vote of 5-4, the Court in McDonald v. Chicago today incorporated the Second Amendment right to  individual gun ownership it recently recognized in District of Columbia v. Heller against the states through the Fourteenth Amendment.  Our analysis of the March oral arguments is here.

The 214 pages of opinions (including a 4 page appendix) will provide much fodder for scholars and litigators.  There are not only dissenting opinions by Justice Stevens and by Breyer (joined by Ginsburg and Sotomayor), but the majority opinion provides the fractured decision-making that can frustrate law students and other readers of Supreme Court opinions.  Here are the alignments:

JUSTICE ALITO announced the judgment of the Court and delivered the opinion of the Court with respect to Parts I, II–A, II–B, II–D, III–A, and III–B, in which THE CHIEF JUSTICE, JUSTICE SCALIA, JUSTICE KENNEDY, and JUSTICE THOMAS join, and an opinion with respect to Parts II–C, IV, and V, in which THE CHIEF JUSTICE, JUSTICE SCALIA, and JUSTICE KENNEDY join.

SCALIA, J., filed a concurring opinion. THOMAS, J., filed an opinion concurring in part and concurring in the judgment. STEVENS, J., filed a dissenting opinion.
BREYER, J., filed a dissenting opinion, in which GINSBURG and SOTOMAYOR, JJ., join.

The plurality - - - Alito, Roberts, Scalia, and Kennedy - - - conclude the due process clause of the Fourteenth Amendment incorporates the Second Amendment.  Scalia writes separately, noting "I join the Court’s opinion. Despite my misgivings about  Substantive Due Process as an original matter, I have acquiesced in the Court’s incorporation of certain guaran­tees in the Bill of Rights 'because it is both long estab­lished and narrowly limited.' [citation omitted].   This case does not require me to reconsider that view, since straightfor­ward application of settled doctrine suffices to decide it."

Only Justice Thomas, concurring (and vital to the Court's majority under the Fourteenth Amendment incorporation conclusion), rejected substantive due process:

Applying what is now a well-settled test, the plurality opinion concludes that the right to keep and bear arms applies to the States through the Fourteenth Amendment’s Due Process Clause because it is “fundamental” to the American “scheme of ordered liberty,” [citation omitted] and “‘deeply rooted in this Nation’s history and tradition,’” [citation omitted].  I agree with that description of the right.  But I cannot agree that it is enforceable against the States through a clause that speaks only to “process.”  Instead, the right to keep and bear arms is a privilege of American citizenship that applies to the States through the Fourteenth Amendment’s Privileges or Immunities
Clause.

Our discussions of the Privileges or Immunities Clause arguments are here, here, here, here, and here.  Although initially an attractive option, most scholars and court-watchers came to believe that the Court would ultimately not reverse The Slaughterhouse Cases and "resurrect" the Privileges or Immunities Clause.

Dissenting, Breyer considers the criticisms by scholars of Heller and asks:

At the least, where Heller’s historical foundations are so uncertain, why extend its applicability? My aim in referring to this history is to illustrate the reefs and shoals that lie in wait for those nonexpert judges who place virtually determinative weight upon historical considerations. In my own view, the Court should not look to history alone but to other factors as well—above all, in cases where the history is so unclear that the experts themselves strongly disagree.  It should, for example, consider the basic values that underlie a constitutional provision and their contemporary significance.  And it should examine as well the relevant consequences and practical justifications that might, or might not, warrant removing an important question from the democratic decisionmaking process.

Justice Stevens' 60 page dissenting opinion argues for judicial restraint, and while he does not explicitly chastise the majority for judicial activism, that is certainly the implication.

We will have additional discussion of the decision in the near future.

RR

Right to Bear Arms is a Privilege or Immunity, McDonald Argues

Petitioners in McDonald v. City of Chicago, the Second Amendment case now before the Supreme Court, filed their merits brief today and argued full force that the individual right to bear arms is protected against state interference by the Fourteenth Amendment Privileges or Immunities Clause.

The petitioners' aggressive argument on the Privileges or Immunities Clause--and the after-thought treatment of the Due Process Clause--opens the door for a reevaluation of how the Court treats claims that fundamental rights, including those in the Bill of Rights, apply against the states.

Petitioners' Privileges or Immunities claim was rejected by the Seventh Circuit.  That court ruled that The Slaughter-House Cases (holding that the P or I Clause does not incorporate the Bill of Rights, en bloc, to the states), and U.S. v. Cruikshank, Presser v. Illinois, and Miller v. Texas (all rejecting arguments that the P or I Clause incorporates the Second Amendment to the states) were still good law, even if they are universally criticized and even defunct.  The Seventh Circuit also rejected the petitioners' Due Process argument.  (The Second Circuit, in a panel including then-Judge Sotomayor, similarly rejected a claim that the Second Amendment applied against the states, but the Ninth Circuit ruled that it did.  The full Ninth Circuit voted to rehear the case en banc.)

Petitioners argue, as they must, that The Slaughter-House Cases, U.S. v. Cruikshank, and Presser v. Illinois should be overruled.

Here's a taste:

And yet this Court's various approaches to [applying fundamental rights, including those in the Bill of Rights, to the states under] the Fourteenth Amendment fall short of upholding this provision's essential promise.  State violations of rights understood and intended by the ratifying public to receive significant Fourteenth Amendment protection are not meaningfully secured by the federal courts.  Moreover, the failure to honor the Fourteenth Amendment's original public meaning foments confusion and controversy as courts pursue other approaches to protecting core individual rights.

This case presents a rare opportunity to correct a serious error, honor the Fourteenth Amendment's true meaning, and bring a needed measure of clarity to this Court's civil-rights jurisprudence.

The Fourteenth Amendment's Privileges or Immunities Clause forbids the States from abridging civil rights, including those codified in the Bill of Rights. . . .

SlaughterHouse's illegitimacy has long been all-but-universally understood.  It deserves to be acknowledged by this Court.  Because SlaughterHouse rests on language not actually in the Constitution, contradicts the Fourteenth Amendment's original textual meaning, defies the Framers' intent, and supplies a nonsensical definition for Section One's key protection of civil rights, overruling this error and its progeny remains imperative.

Others, most notably the Constitutional Accountability Center, have made similar arguments.  I've posted on them here, here, here, and here.  Ruthann just posted yesterday on teaching P or I here.

SDS