McDonald Went Far Enough for the Lower Courts
Supreme Court Breakfast Table
McDonald Went Far Enough for the Lower Courts
An email conversation about the news of the day.
June 28 2010 6:43 PM

Supreme Court Breakfast Table


What a day it has been. As Walter notes, the court's day began with a note of true sadness with the loss of Marty Ginsburg. I would refer to him as Professor Martin Ginsburg, but every time I tried to do that in person, he corrected me and told me to call him Marty. He was a legend at Georgetown Law and in tax circles, and a treasured member of the court family.

But as much as every member of the court would have liked to take the day off, there were opinions to issue, an orders list to hand down, and, as Dahlia notes, dissents to read from the bench. The first opinion to be read was the McDonald opinion involving whether the Second Amendment is fully applicable to the states. The answer of five justices was an emphatic yes. Indeed, five justices agreed that the first section of the Fourteenth Amendment made the Second Amendment fully applicable to the states, such that a state or local ban on handguns is no more constitutional than a comparable ban by the District of Columbia. There was, however, a disagreement among the justices in the majority as to which clause in that first section of the Fourteenth Amendment was the one that did the trick. That disagreement among the Justices in the majority took 111 pages to explore. Add to that 88 pages of dissents (92 if you count one of the shorter of five appendixes Justice Breyer included as bonus items to his two long dissents today) and Justice Scalia's 15-page response to Justice Stevens' dissent, and the opinions in this case weigh in at well north of 200 pages. The decision is a landmark if judged by length alone.


There is an awful lot of material here for the academics to chew on. At oral argument, Justice Scalia dismissed the privileges or immunities clause as "the darling of the professoriate," and law professors are already plotting their revenge or at least blogging on the various theories of due process interpretation on display and Justice Thomas' analysis of the privileges or immunities clause. Quite apart from the grist for the constitutional theory mills, the separate opinions also include some interesting historical analysis, especially of the Reconstruction era. One of the fascinating aspects of preparing for this argument was the opportunity to take a deep dive into this era that is so critical to the court's Fourteenth Amendment jurisprudence. I particularly appreciated that the court's opinion gave a shout-out for Charles Lane's book on the Colfax Massacre. It is a highly readable account of the unconscionable and almost unfathomable events that gave rise to United States v. Cruikshank, one of the court's critical privileges or immunity precedents.

But while the opinions are long on constitutional analysis and history, I think they are going to be less satisfying for the pragmatists who simply want to know, now that the court has found the Second Amendment fully applicable to the states, what does that mean as a practical matter? What can states ban? What can they not touch? On this score, the opinions provide relatively few clues. There are warnings in the dissents, but dissenting opinions will do that. Justice Alito writing for four justices on this point assures that "doomsday proclamations" are overstated, but in doing so, his opinion simply reiterates language from Heller to the effect that the decisions do not call into question every law affecting firearms. Thus, to the extent that court-watchers thought this decision would not only answer the incorporation question, but provide further guidance on the "standard of review" that would govern Second Amendment cases going forward, they were disappointed on the latter score.

That raises Walter's question from earlier today on whether the McDonald decision even answers the question of whether the Second Amendment is fully applicable to the states. Any time there are less than five justices joining every aspect of a decision, it raises the questions as to the scope of the court's holding, what lawyers know and fear as the Marks analysis. Here, however, it seems to me that it would be very difficult to convince a lower court judge that the question of whether the Second Amendment applies to the states was left unanswered in McDonald. Importantly, Justice Thomas begins and ends his separate opinion expressing agreement with "the Court" that "the Fourteenth Amendment makes the right to keep and bear arms set forth in the Second Amendment 'fully applicable to the States.' " Equally important, unlike some circumstances in which a justice writes a separate opinion concurring in the judgment without joining any of the plurality, here there is an opinion for the court, fully joined by Justice Thomas, on many important issues. By my count, two-thirds of Justice Alito's opinion is an opinion for the court, rather than a plurality opinion. Moreover, the conclusion that the Second Amendment is a fundamental right for Fourteenth Amendment purposes appears in the opinion of the court. To be sure, for Justice Thomas, this conclusion does not dictate the answer to the incorporation question under the Fourteenth Amendment's due process clause. But for any lower court judge, this is the relevant question, and it has been answered in an opinion for the court. 

Walter, you may have a different take on it, but while McDonald will not settle the academic debate, I read it as answering the question of the Second Amendment's application to states and localities. That alone makes it an important decision, but it was far from the day's only far-reaching precedent. I plan to spend a bit more time on Free Enterprise and Bilski and post on them tomorrow. Dahlia, what is the latest from the Kagan hearings?