Substantive Due Process after McDonald v. Chicago

Abstract:     
Few were terribly surprised when the Supreme Court announced at the end of June that the Fourteenth Amendment requires states and municipalities to respect the same individual right to keep and bear arms independent of militia service that the Court had enforced against the federal government two years before in Heller v. District of Columbia. The case was nonetheless hotly anticipated, less out of uncertainty over whether one of the Heller majority might actually vote against incorporation, but for details of the decision’s scope and rationale. This short essay canvasses what the various opinions in McDonald have to say about the scope of Fourteenth Amendment gun rights, the nature of Fourteenth Amendment fundamentality, constitutional theory, and constitutional meta-theory.

Number of Pages in PDF File: 38

Keywords: McDonald v. Chicago, Substantive Due Process, Fourteenth Amendment Fundamentality, Constitutional Theory, Constitutional Meta-Theory, Washington v. Glucksberg, Lawrence v. Texas, Duncan v. Louisiana, Tradition, Consensus, Implicit in the Concept of Ordered Liberty

Accepted Paper Series