Abstract

http://ssrn.com/abstract=1799480
 


 



Five Takes on McDonald v. Chicago


Brannon P. Denning


Samford University - Cumberland School of Law

Glenn Harlan Reynolds


University of Tennessee College of Law

March 30, 2011

University of Tennessee Legal Studies Research Paper No. 146

Abstract:     
McDonald v. Chicago made clear that the Second Amendment’s right to arms recognized in the 2008 Heller decision extends to individuals regardless of whether the infringement takes place at the hands of federal, state, or local officials. This brings to an end the first era of Second Amendment scholarship, in which discussion on the part of scholars was largely untempered by actual judicial authority. Now, though scholars may (and no doubt will) charge the Supreme Court with error, they are no longer writing on a blank slate. Instead, as with other areas of constitutional law, the discussion will focus on whether the judiciary is doing what it should do, as opposed to focusing on whether the judiciary will do anything at all.

In this paper, we offer five takes on what the McDonald case means. While these do not, of course, exhaust the potential ramifications of the McDonald decision, we hope that they will at least serve as a springboard for numerous lines of discussion. First, we argue that the Second Amendment, post-McDonald, is now normal constitutional law, constraining governments after the fashion of other, familiar provisions of the Bill of Rights. This change in and of itself represents a substantial departure from prior history. Second, we look at the argument that the McDonald result was, in current parlance, "overdetermined." Third, we note the surprisingly large role played by the racial history of gun control, and Reconstruction views of the right to arms, in the McDonald decision, and what that might portend for future case law. Fourth, we look at the second death (or is it the rebirth?) of the Privileges or Immunities Clause following the plurality’s (and dissenters’) rejection of the McDonald petitioners’ invitation to incorporate the Second Amendment via that Clause. And finally, Fifth, we look at McDonald’s likely reception in the lower courts. A brief conclusion follows.

Number of Pages in PDF File: 32

Keywords: McDonald, Second Amendment, guns, right to keep and bear arms, Heller, gun control

JEL Classification: K1

working papers series





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Date posted: March 31, 2011 ; Last revised: April 15, 2011

Suggested Citation

Denning, Brannon P. and Reynolds, Glenn Harlan, Five Takes on McDonald v. Chicago (March 30, 2011). University of Tennessee Legal Studies Research Paper No. 146. Available at SSRN: http://ssrn.com/abstract=1799480 or http://dx.doi.org/10.2139/ssrn.1799480

Contact Information

Brannon P. Denning (Contact Author)
Samford University - Cumberland School of Law ( email )
800 Lakeshore Dr.
Birmingham, AL 35229
United States
205-726-2413 (Phone)
205-726-4060 (Fax)
Glenn Harlan Reynolds
University of Tennessee College of Law ( email )
1505 West Cumberland Avenue
Knoxville, TN 37996-1810
United States
865-974-6744 (Phone)
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