David S. Cohen (Drexel University - Earle Mack School of Law) has posted The Paradox of McDonald v. City of Chicago (George Washington Law Review, Forthcoming) on SSRN. Here is the abstract:
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On the last day of its 2010 term, the Supreme Court issued its landmark decision of McDonald v. City of Chicago, holding that the Second Amendment was incorporated against state and local governments. On its face, the 5-4 decision is simple enough, as a majority of the Court concluded that its 2008 decision in District of Columbia v. Heller, which held that the Second Amendment protects an individual’s right to own a handgun, applied to state and local governments, such as the city of Chicago, just as it applied to the federal government and its territories, such as the District of Columbia. However, this simple statement of McDonald’s holding masks a much more complicated reality – that its outcome, an instance of a rare phenomenon called a voting paradox, turned not on grand theories of constitutional law, history, or doctrine but rather on the minutiae of Supreme Court vote counting. In fact, only because the Court reaches a conclusion based on each Justice’s vote on the case’s outcome, as opposed to voting on the case’s individual issues, were the headlines following McDonald that gun rights prevailed and gun regulation lost rather than the other way around.
In this essay, to be published in the George Washington Law Review's Arguendo, I explain why McDonald is an important example of a voting paradox. I first walk through the opinions in McDonald and then place McDonald in the context of relevant social choice theory that models voting paradoxes on multi-member judicial bodies. Having described how McDonald fits into this literature, I then use the remainder of the essay to discuss three significant lessons that come from viewing McDonald as a paradox. First, McDonald illustrates the importance of the Supreme Court’s voting rules that decide cases based on outcome voting. Second, McDonald is a lesson to litigators of the value of including additional arguments. Finally, McDonald shows the considerable role of precedent-in-flux in creating voting paradoxes.
