More Thoughts on McDonald
posted by Gerard Magliocca
This goes to the substance of the opinions rather than to their style.
1. The Court does not give a satisfactory account for why stare decisis does not counsel against incorporation here. I guess its answer is that the incorporation of the Second Amendment under the Due Process Clause was not previously considered (or was not considered under the “selective incorporation” framework) and thus there is no reliance interest involved. That doesn’t seem right. Why isn’t the more logical way of thinking about this to say that for two centuries there was no federal constitutional right involving guns that bound the States? Now you might well think that this should not be an impediment to incorporation–similar traditions did not preclude the incorporation of other rights–but some explanation would have been helpful.
2. I think that Justice Stevens’ analysis of the Second Amendment right is convincing. (Once you put aside all of his broader jurisprudential musings, which are pretty weak. For instance, his procedural/substantive distinction makes no sense given the full incorporation of the First Amendment.). Because I think that Justice Black’s total incorporation view is the correct one, I think the Court got this case right. This is a good example, though, of the difference between being a professor and a judge. As a judge bound by the selective incorporation approach, I think McDonald is a hard case.
3. Justice Breyer tries to argue that he’s taking a pragmatic view of the issue in contrast to the formalism (history-ladened) approach of the Court. The problem with that is that a real pragmatist would point out that gun rights have become much more popular in the last couple of decades, and that it’s now basically political poison to oppose them. This doesn’t mean that the right should necessarily be constitutionalized, but it does mean that his argument that there is no popular consensus on the issue (just citing some briefs produced for litigation) isn’t worth much.