Academic

McDonald Oral Argument

By Calvin Massey

    At SCOTUSblog, Lyle Denniston has this report on today's oral argument in McDonald v. City of Chicago.  The gist of Denniston's story is that incorporation of the Second Amendment via the privileges and immunities clasue of the 14th Amendment is a non-starter (no surprise there) but that incorporation via the due process clause looks like a done deal.  The only issue is whether incorporation will be limited to some "core right" or extend to whatever the scope of the Second Amendment right will turn out to be as Second Amendment jurisprudence develops.  Of course, all of this is speculation based on oral argument alone.  

     Nevertheless, the idea that incorporation should be limited to some "core" aspect of the Second Amendment is indefensible in terms of prior incorporation law and is incoherent in terms of the Second Amendment.  All other incorporated Bill of Rights guarantees are fully incorporated; indeed the operative principle is so-called "jot-for-jot" incorporation, by whic the scope of the right is identical whether asserted against the federal government or a state.  There is no reason why the Second Amendment should be the Second-Class Amendment when it comes to incorporation.  Moreover, given the paucity of jurisprudential flesh on the Second Amendment skeleton (Heller is it, so far) it is premature to identify a "core right."  We don't know what the Second Amendment encompasses, but whatever is included in it should be equally enforceable against any government.  The action in this area will be to determine the decision rules that determine when a government has validly regulated the exercise of the right and when it has invalidly infringed the right.  To limit incorporation to some prematurely determined "core right" is to ignore the hard work of  creating those decision rules when it comes to the states, even while that work must be done with respect to federal gun regulations.  That makes no sense.  

Full post as published by The Faculty Lounge on March 02, 2010 (boomark / email).