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The Court today struck down Chicago’s ban on handguns as a violation of the Second Amendment, as incorporated against the states through the Fourteenth Amendment. Once the Court had decided in the Heller case two years ago that the federal government could not absolutely ban guns in the District of Columbia, McDonald’s outcome was virtually inevitable. There were still a few surprising things:
First, the four liberal justices (Stevens, Breyer, Ginsburg, and Sotomayor) dissented from incorporating a key aspect of the bill of rights, even though I presume they would never question that other rights, such as the right against search and seizure or against self-incrimination in court, apply. It remains stunning that the liberals would engage in this choosing and picking of rights that they favor for incorporation or not against the states (this is something the conservative justices haven’t done).
Second, Justice Thomas (for whom I clerked), agreed with the majority but wrote a lengthy, brilliant concurrence criticizing the Court’s use of the Due Process Clause as the means to incorporate the bill of rights against the states. I think he is utterly right — the notion that a clause that speaks about fair process has become the vehicle for applying substantive rights, like the right to free speech or free exercise of religion, makes little sense. The Framers of the Fourteenth Amendment did want all citizens, white and black, to enjoy the rights of the Bill of Rights against the states, but they expressed that through the Amendment’s declaration: ” No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.”
Third, the future fight will be not over the right to bear arms, but what reasonable restrictions that states and the federal government can place on gun ownership. The Court, properly, does not answer this question in great detail, and this will be where the states and cities will try their best to undermine McDonald.