"McDonald v. Chicago: Fourteenth Amendment Incorporation and Judicial
Role Reversals" (
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2061920 )
DAVID T. HARDY (
http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=716350 ),
affiliation not provided to SSRN
Email: [email protected]
McDonald v. Chicago, which incorporated the Second Amendment right to
arms, was the first Supreme Court ruling to address incorporation in
many decades. It was an unusual ruling, in that the Court’s
“conservative wing” took what had been traditionally the liberal
approach, while its “liberal wing” suddenly became very conservative.
Indeed, Justice Thomas staked out the most liberal position, while
Justice Stevens staked out the most conservative one, and for good
measure Justice Scalia found that precedent can trump originalism. It
was, in short, "the world turned upside down."
This article outlines the virtues, and problems, of the three major
opinions in McDonald, and suggests solutions to some of the problems
uncovered. The plurality opinion by Justice Alito is certainly faithful
to precedent, although it highlights some illogical aspects of
substantive due process incorporation. The concurrence by Justice Thomas
is faithful to legislative history and original public meaning, but
would have required overruling more than a century of case law. The
dissent by Justice Breyer opens by proposing a very complicated, and
perhaps ultimately meaningless, legal test with no basis in precedent,
and alternately sets forth a very narrow application of the existing
test – an application so narrow as to call into question almost all the
Court’s past rulings on the issue.
****************************************************************************************************************
Professor Joseph Olson, J.D., LL.M.
o- 651-523-2142
Hamline University School of Law (MS-D2037)
f- 651-523-2236
St. Paul, MN 55113-1235
c- 612-865-7956
[email protected]
http://law.hamline.edu/constitutional_law/joseph_olson.html
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