McDonald v. Chicago: Fourteenth Amendment Incorporation and Judicial Role Reversals
David T. Hardy
affiliation not provided to SSRN
May 17, 2012
McDonald v. Chicago, which incorporated the Second Amendment right to arms, was the first Supreme Court ruling to address incorporation in many decades. It was an unusual ruling, in that the Court’s “conservative wing” took what had been traditionally the liberal approach, while its “liberal wing” suddenly became very conservative. Indeed, Justice Thomas staked out the most liberal position, while Justice Stevens staked out the most conservative one, and for good measure Justice Scalia found that precedent can trump originalism. It was, in short, "the world turned upside down."
This article outlines the virtues, and problems, of the three major opinions in McDonald, and suggests solutions to some of the problems uncovered. The plurality opinion by Justice Alito is certainly faithful to precedent, although it highlights some illogical aspects of substantive due process incorporation. The concurrence by Justice Thomas is faithful to legislative history and original public meaning, but would have required overruling more than a century of case law. The dissent by Justice Breyer opens by proposing a very complicated, and perhaps ultimately meaningless, legal test with no basis in precedent, and alternately sets forth a very narrow application of the existing test – an application so narrow as to call into question almost all the Court’s past rulings on the issue.
Number of Pages in PDF File: 41
Keywords: fourteenth amendment, incorporation, due process clause, privileges, immunities clause
JEL Classification: K19working papers series
Date posted: May 18, 2012 ; Last revised: May 28, 2012
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