What McDonald Means for Unenumerated Rights

Abstract:     
In June a splintered Supreme Court held in McDonald v. City of Chicago that the Second Amendment applied to state and local governments. But the case was about much more than handguns. It presented the Court with an unprecedented opportunity to correct its own erroneous precedent and revive the Fourteenth Amendment’s Privileges or Immunities Clause. The plurality declined the offer not, as Justice Alito’s opinion suggested, out of a profound respect for stare decisis, but rather because at least four Justices like the consequences of that ancient error, especially insofar as unenumerated rights are concerned. This observation in turn raises questions about interpretative method and the Court’s fidelity to the written Constitution.

Number of Pages in PDF File: 23

Keywords: McDonald, Second Amendment, Privileges or Immunities, Fourteenth Amendment

JEL Classification: K10

working papers series