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What McDonald Means for Unenumerated Rights

23 Pages Posted: 5 Sep 2010  

A. Christopher Bryant

University of Cincinnati - College of Law

Date Written: September 1, 2010


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.

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

JEL Classification: K10

Suggested Citation

Bryant, A. Christopher, What McDonald Means for Unenumerated Rights (September 1, 2010). U of Cincinnati Public Law Research Paper No. 10-27. Available at SSRN: or

A. Christopher Bryant (Contact Author)

University of Cincinnati - College of Law ( email )

P.O. Box 210040
Cincinnati, OH 45221-0040
United States
513-556-6805 (Phone)
513-556-1236 (Fax)

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