Five Takes on McDonald v. Chicago

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.

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

JEL Classification: K1