After Obergefell: Dignity for the Second Amendment

35 Mississippi College L. Rev. 1 (2016)

21 Pages Posted: 30 Aug 2015 Last revised: 25 Jun 2016

See all articles by Marc Greendorfer

Marc Greendorfer

Zachor Legal Institute; Tri Valley Law

Date Written: August 28, 2015

Abstract

On June 26, 2015, a sharply divided United States Supreme Court issued its ruling in Obergefell v. Hodges, commonly known as the “same sex marriage” cases. Justice Anthony Kennedy, writing the majority opinion, introduced the rationale for striking down state laws that did not recognize a right to same sex marriage: a theretofore unrecognized and unenumerated “dignity” right that took legal precedence over longstanding principles of federalism and the bedrock American legal tradition of allowing states to experiment with solutions to a wide range of social issues.

Justice Kennedy didn’t explicitly consign federalism to the ash heap of history, but to put the Court’s ruling into effect (that is, to force each of the 50 states to recognize a right to same sex marriage), the basic premise of federalism - that each state has the right to make its own laws, other than to the extent there is federal preemption for a limited universe of topics - has to be disemboweled. This description of the fate of federalism is particularly true in light of the fact that prior to Obergefell, there was no question that the regulation of marriage was a matter strictly consigned to state control.

What does Obergefell mean for other state and local laws that purport to regulate other matters that have been found to be protected by the Constitution? In particular, can any state laws that regulate the right to keep and bear arms, a right protected by the Second Amendment, survive in a post-Obergefell world?

This paper examines the Obergefell opinion (and the dissenting opinions) to argue that Justice Kennedy's opinion results in the effective preemption of all state and local laws that affect fundamental rights, including the individual right to keep and bear arms.

(Note: This paper is an expansion of the amicus brief the author submitted in the Obergefell v. Hodges Supreme Court case, available at http://ssrn.com/abstract=2589220. The amicus brief has been downloaded from SSRN approximately 290 times as of September 2015.)

Keywords: Heller, McDonald, Obergefell, Kennedy, Second Amendment, 14th Amendment, Due Process, Equal Protection, Same Sex Marriage, Constitution

JEL Classification: K00, K10, K19

Suggested Citation

Greendorfer, Marc, After Obergefell: Dignity for the Second Amendment (August 28, 2015). 35 Mississippi College L. Rev. 1 (2016). Available at SSRN: https://ssrn.com/abstract=2652536 or http://dx.doi.org/10.2139/ssrn.2652536

Marc Greendorfer (Contact Author)

Zachor Legal Institute ( email )

5919 US Highway 84
Red Level, AL Alabama 36474
United States

HOME PAGE: http://www.zachorlegal.org

Tri Valley Law ( email )

2410 Camino Ramon
Suite 190
San Ramon, CA 94583-4322
United States

HOME PAGE: http://www.trivalleylaw.com

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