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More Thoughts on McDonald

Gerard Magliocca

Gerard N. Magliocca is the Samuel R. Rosen Professor at the Indiana University Robert H. McKinney School of Law. Professor Magliocca is the author of three books and over twenty articles on constitutional law and intellectual property. He received his undergraduate degree from Stanford, his law degree from Yale, and joined the faculty after two years as an attorney at Covington and Burling and one year as a law clerk for Judge Guido Calabresi on the United States Court of Appeals for the Second Circuit. Professor Magliocca has received the Best New Professor Award and the Black Cane (Most Outstanding Professor) from the student body, and in 2008 held the Fulbright-Dow Distinguished Research Chair of the Roosevelt Study Center in Middelburg, The Netherlands. He was elected to the American Law Institute (ALI) in 2013.

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3 Responses

  1. Bruce Boyden says:

    “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?”

    Gerard, they can’t say *that*. They’re just calling balls and strikes, remember?

  2. “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?”

    Because for most of one of those centuries, there wasn’t any 14th amendment, so it’s a bit of a farce to say “two centuries”?

    Because your ‘more logical way of thinking about this’ would logically preclude incorporating ANY right against the states, whatsoever? A position which has already been rejected?

    “but some explanation would have been helpful.”

    Here’s your explanation: Until very recently the legal community was consumed with a malign animus towards this particular amendment. But that’s not the sort of thing the Court is likely to admit in a ruling, is it? Especially when 4 members of the current Court are still consumed by said animus.

    “This doesn’t mean that the right should necessarily be constitutionalized”

    Too late. It was constitutionalized over 200 years ago… That’s what you do when you ratify amendments to the Constitution, you constitutionalize what’s in the amendment.

  3. Altereggo says:

    I apparently wasn’t the only person who thought Breyer made Stephen’s own point better–in one paragraph–than the latter did in his entire off-topic dissent.
    Then again, Breyer isn’t part of a comedy duo with Scalia.

    The historians briefs for the respondents were also very interesting, but I did not see how they undermined the majority’s ‘amatuer’ analysis.
    I’m convinced that the US bill of rights is best seen as both a development of and a reaction to the 1688 Bill of Rights–they certainly took pains to preclude anything like anti-catholic provisions. The British historians appeared to read it as a straight evolution from one to the other.