I wrote these comments for the University of Illinois's press service. They are intended for a broader audience that the readers of Legal Theory Blog:
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The bottom line of today's decision in McDonald v. City of Chicago came as no surprise to court watchers. The Supreme Court's 5-4 vote has the effect of applying the individual right to bear arms, recognized by the Court in District of Columbia v. Heller to the states. The direct implication of the decision is that very restrictive gun regulations, almost surely including the City of Chicago's ordinance, will be struck down.
Although the bottom line in McDonald is no surprise, there are some interesting and even surprising wrinkles and twists, produced by the five separate opinions written by the Justices. The first of these is that there was no majority opinion by the Court. Justice Alito, joined by Chief Justice Roberts, Justice Kennedy, and Justice Scalia, authored a plurality opinion which based the application of the Second Amendment to the states on the Due Process Clause of the 14th Amendment. Justice Thomas, the crucial fifth vote, rejected that theory, but concluded that the right to bear arms nonetheless applies to the states on the basis of the Privileges or Immunities Clause, which is found in Section One of the 14th Amendment alongside the Due Process Clause. Justice Thomas's argument was based on his understanding of the original meaning of the 14th Amendment; Justice Thomas's understanding of the history appears to be heavily influence by the work Professor Kurt Lash, who joins the faculty of the University of Illinois College of Law this summer.
The second surprise in McDonald is that the Supreme Court provided absolutely no guidance to lower courts in the many legal challenges (some of which are already in progress) to gun control ordinances and statutes that are less restrictive than the "handgun bans" invalidated in McDonald and Heller. It seems almost certain that the lower federal courts will apply a variety of inconsistent standards. This means that the Second Amendment will surely return to the Supreme Court in the next two or three years, as these cases work there way through the system.
The third surprise in McDonald is the debate between Justice Stevens and Justice Scalia on the method by which the Court decides what rights are included in "substantive due process." Their exchange replays one of the most fundamental debates in contemporary jurisprudence. Justice Stevens argued for a flexible approach to substantive due process; his opinion can be read as a defense of the Warren Court's selective incorporation of the Bill of Rights, on the one hand, and that Court's reliance on the Due Process Clause as the basis for an unenumerated right to privacy, on the other hand. Justice Scalia wrote a separate opinion for the sole purpose of replying to Justice Stevens. Scalia argued that Steven's approach requires judges to rely on their own subjective views of morality and justice. Reading these opinions, one is struck by poignancy of Justice Stevens final opinion, offering an eloquent defense of the liberal Warren Court legacy that he ultimately embraced. And at the same time, one is struck by Justice Scalia's aggressive rebuttal. Typically, Justice Scalia gives no quarter, and his stinging critique serves as a reminder that Justice Stevens gradual movement from moderate conservative to staunch liberal has had a profound influence on the shape of contemporary constitutional jurisprudence.
