Thursday, September 30, 2010

McDonald v. Chicago decision

Quite a hiatus for the summer - biggest blog-related news while I've been playing hooky was the McDonald v. Chicago decision in late June, where the Supreme Court held 5-4 that the Second Amendment applies to the States.

Four of the majority justices reasoned that the clause is incorporated through the 14th amendment due process clause (the conventional argument); one, Justice Clarence Thomas reasoned it is incorporated through the 14th amendment privileges or immunities clause. Thomas's reasoning was the reasoning for which I argued in the amicus briefs and law review articles related to this issue. So, we wish we would have gotten a majority on the privileges or immunities argument, but at least Thomas agreed.

One of the most disappointing parts of the case was that the four dissenters - Breyer, Stevens, Sotomayor and Ginsburg, people with whom I usually have more in common than not - did not go along with the persuasive history that the fourteenth amendment privileges or immunities clause was intended to apply the ENTIRE Bill of Rights to the States.

I published an OpEd at the time of the decision, which ran in a good number of papers nationwide. I'll post that here.