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