Prediction of the Incorporation of the Second Amendment

Ok, so here's a paper I spent all of last quarter doing. It's 25 pages on the Supreme Court case McDonald v. City of Chicago, written prior to the respondent's filing of their merits brief. The prediction of the justices' votes is at the end. I should be writing a new blog entry later in the week on the subject of religion! Enjoy!

Predicting the Slaughter of the Slaughterhouse Cases’ Precedent

Justices of the Supreme Court are concerned with both making good policy and law. However, in a case like McDonald v. City of Chicago where there is relatively no precedent, besides the one in question, Justices are driven by their policy preferences since the only precedent governing them is the one they are voting to overturn, the Slaughterhouse Cases’ precedent. The petitioners in the case McDonald v. City of Chicago are asking the Supreme Court to overturn the precedent established in the Slaughterhouse Cases and incorporate the Second Amendment through the Privileges or Immunities Clause of the Fourteenth Amendment. The petitioners also provide justification for incorporating the Second Amendment through the Due Process Clause of the Fourteenth Amendment as a secondary route of incorporation if the Court rejects overturning the precedent established in the Slaughterhouse Cases. The preferences of the Justices will decide which route of incorporation the Court will implement, if any. Justice Scalia, the author of the District of Columbia v. Heller, will surely incorporate the Second Amendment to apply to the states through the Privileges or Immunities Clause as will Justice Kennedy, since they are both members of the conservative bloc. Justice Ginsburg, a member of the liberal bloc, will most likely go against incorporation of the Second Amendment to the states. Thus, the decision in the case will likely be 5-4 in favor of incorporation.

Some political scientists argue that the Court merely follows the letter of the law and its primary motivation is to make good law based on previous precedent, the plain meaning of the law at hand, and the intent of the creators of the law. Other political scientists believe that the Justices are less biased than the legal theorists make them seem. These political scientists believe the Justices primarily decide cases on their personal ideologies and mask their own preferences by interpreting the law in such a way to create the precedent their ideology most supports. The Supreme Court does both of these. The Justices on the Court work within the framework of the law but are still able to exercise their discretion by choosing cases they have an interest in and finding precedent that supports their ideologies. One conclusion that was found by Pritchett is that the Justices are deciding on the case on their policy preferences and not precedent, because if they were following precedent there should be no dissenting opinion. And, dissents have risen from 20% of cases having them in the 1900’s to over 60% after the 1940’s. The Court usually accepts cases it wishes to overturn, and the conservative Roberts Court is no different. In addition, in cases where there is no precedent, the Justices decide primarily on their ideological preferences since there are no binding legal principles governing them. However, precedent is not the only legal support for a decision. Justices also look towards the framer’s intent and the plain meaning of the words of the amendment or statute.

In cases in which the decision is a landmark one, the Supreme Court is less likely to adhere to precedent and be more likely to decide on attitudinal preferences (Segal p. 305). Part of the reason for this is both the public and the elite following the Court have a vested interest in the decision and the Court is concerned with both the elite and the public’s opinion. It is concerned with the public’s opinion since the public is ultimately the one that their decisions are imposed upon and if the public do not view the Court or the opinions of the Court to be legitimate, then they will not adhere to them. The Court is concerned with the legal elite’s opinion since Justice’s are plucked from the legal elite, so they are their contemporaries and colleagues. Since the Supreme Court is the high Court in the U.S., no other court can overturn its decisions.

A sound theory of the Supreme Court is helpful when analyzing any case, but particularly McDonald v. City of Chicago. McDonald v. City of Chicago (2009) is a case that arose from a challenge to Chicago’s firearm ordinance. The ordinance is effectively a complete ban on handguns and has strict registration standards. The petitioners and the respondent do not dispute the facts of the case but they do dispute how the Second Amendment should be incorporated to apply to the states if the Court chooses to incorporate it. The petitioners argue for the Second Amendment to be incorporated through the Substantive Due Process Clause of the Fourteenth Amendment or the Privileges or Immunities Clause of the Fourteenth Amendment; whereas the respondents argue for the Court to only consider incorporation through the Substantive Due Process Clause and then reject it. Whatever the Supreme Court decides to do, the Justices must keep in mind the consequences of incorporation and the legal and political questions that will emerge if they choose to incorporate the Second Amendment to apply to the states.

Chicago enacted the handgun ban in 1982 because the availability of firearms increased firearm related deaths. The four broad aspects of the Chicago ordinance are as follows: the prohibition of the registration of handguns; firearms that are registerable (rifles and shotguns) must be registered before possession in Chicago; the failure to renew registration makes a firearm unregisterable; and every year the firearm must be re-registered and a tax must be paid. All of the petitioners in the case contest at least one of the aspects of the firearm ordinances and have the standing to do so since the respondent enforced the ordinance upon them. According to the respondent’s brief in opposition, the Chicago ban lacks the requirement for legally owned firearms to be unloaded and disassembled or bound by a trigger lock when stored in the home as found in the D.C. ordinance in District of Columbia v. Heller (2008). So in that regard, the Chicago ordinance is different from the one found in the Heller case the Supreme Court ruled on last year. While the Chicago ordinance is what spurred the lawsuit, neither the petitioners nor the respondents argue the constitutionality of the ordinance, so it is unlikely that the Supreme Court will rule the ordinance as unconstitutional, like it did in the Heller case. More than likely the Court will remand the case to the 7th Circuit and they will decide the constitutionality of the ordinance consistent with the Court’s opinion.

The Court in the Heller case held that the Second Amendment guarantees the citizens of D.C. an individual right to keep and bear arms. Heller also upheld the inherent right to self-defense. This ruling settled the argument of whether the Second Amendment guaranteed citizens a collective right to bear arms and raise a militia or an individual right to own a gun. And eight of the sitting nine Justices heard the case. However, this ruling only applied to Washington D.C. since D.C. is considered an entity of the federal government and thus did not present the issue of incorporation, besides in a footnote in which the majority held that Cruikshank was not overturned by this opinion and the Court will likely consider the incorporation issue in a future case.

McDonald is not the only case dealing with the Second Amendment that has arisen in the wake of the Heller decision. NRA v. Chicago (2009) is a parallel case to McDonald, but it challenges the Oak Park gun ban along with the Chicago one. There are also two cases were decided by other circuits, Nordyke v. King (2009) from the Ninth Circuit and Maloney v. Cuomo (2009) from the Second Circuit. The Nordyke panel ruled that the Substantive Due Process Clause of the Fourteenth Amendment incorporates the Second Amendment. However, a judge on the circuit called for the case to be heard en banc, so the ruling was vacated. Prior to the call for an en banc hearing, the Ninth Circuit created a conflict with the Second Circuit. The Second Circuit in the Maloney case ruled that Presser, Cruikshank, and Miller all definitively say the Second Amendment cannot be incorporated through the Privileges or Immunities Clause and the Circuit Court cannot incorporate through the Due Process Clause of the Fourteenth Amendment since the Court has not said it could. The Maloney case also involved nun chucks and not firearms. This ruling is consistent with the Seventh Circuit’s ruling in McDonald. McDonald is the only one of the aforementioned cases granted cert.

The case originated in District Court for the Northern District of Illinois, Eastern Division. The District Court ruled that the gun ban was constitutional since it is consistent with the precedent set forth by the Seventh Circuit and the Supreme Court. The case was then appealed to the Seventh Circuit Court of Appeals. The Seventh Circuit ruled that they also could not overturn the precedent set forth by the Supreme Court, only the Supreme Court can overturn its own precedent. According to the petitioners brief for certiorari, the Seventh Circuit overlooked a footnote in Heller which said "we note that Cruikshank also said that the First Amendment did not apply against the States and did not engage in the sort of Fourteenth Amendment inquiry required by our later cases” (Petition for a Writ of Certiorari, McDonald v. Chicago, at 10). Notice the footnote says our later cases, meaning cases heard by the Supreme Court and not cases arising on this very issue, which imply cases heard by the lower courts. The Seventh Circuit also held that it is feasible for the Supreme Court to overturn the doctrine of self-defense in the home and only allow the use of pepper spray for self-defense. This holding is inconsistent with Heller’s holding that there is an established self-defense doctrine in the U.S.

The main issue in the McDonald case is whether the Second Amendment can be incorporated to apply to the states through the Substantive Due Process Clause or the Privileges or Immunities Clause of the Fourteenth Amendment. In the merits brief for the petitioners, only seven pages of the 73-page brief are devoted to the Due Process Clause, which makes it obvious which route of incorporation the petitioners are most interested in. The Incorporation through Due Process clause has been decided repeatedly through Supreme Court jurisprudence. The Court has selectively incorporated portions of all of the Amendments in the Bill of Rights besides the Second, Third, and Seventh through the Due Process Clause since the doctrine of incorporation was established in Gitlow v. New York (1925). Therefore, if the Court incorporates through the Due Process Clause, then the Second Amendment is the only new addition to those amendments, which already apply to the states and its incorporation will be deeply rooted in precedent. If the Court chooses to incorporate through the Privileges or Immunities Clause, then at least the Second Amendment if not all of the first eight Amendments would apply to the states. Justice Black, in a concurrence in Duncan v. Louisiana, held that “the Fourteenth Amendment made all of the provisions of the Bill of Rights applicable to the States” (Duncan v. Louisiana, Justice Black, concurring). It does not seem feasible that incorporation through the Privileges or Immunities clause will result in the same selective approach as in the Due Process Clause. Mainly because the definitions of liberty under the Due Process Clause are arbitrary, this is obviously undesirable for good law or policymaking. However, if the Court incorporates through the Privileges or Immunities Clause, they will be overturning a century old precedent, which has shaped the course of the legal system. The Supreme Court has agreed to hear arguments on both forms of incorporation in this case.

The petitioners rather incorporate the Second Amendment rights to the states through the Privileges or Immunities Clause and rather than through the Due Process Clause. “The original error of eviscerating the Privileges or Immunities Clause has led to increased reliance on substantive due process, a concept which, whatever its merits, rests on shakier textual and originalist roots and is thus more prone to controversy” (Petition for a Writ of Certiorari, McDonald v. Chicago, at 27). Therefore, the petitioners believe that the Court should incorporate through the Privileges or Immunities Clause in order to secure a sturdier foundation for the Second Amendment to apply to the states. In order to evaluate this argument, reference must be made to the text of the Amendment itself and the history of Due Process incorporation must be evaluated. Compare the Privileges or Immunities Clause, “[n]o state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States” with the Due Process Clause, “nor shall any state deprive any person of life, liberty, or property, without due process of law” (U.S. Constitution, 14th Am., sec. 1). In order for the petitioners’ argument to be correct, the Court would have to consider the right to own a gun as a privilege enjoyed by national citizens and that argument is stronger than the argument that a state refusing to allow gun ownership is the deprivation of property or liberty. And as for the history of incorporation through the Due Process Clause, the doctrine of selective incorporation has made which rights must be recognized the states at the sole discretion of the Justice’s. This practice makes it difficult for states to determine which federal rights they may not infringed. “And the Rehnquist and Roberts Courts have taken steps to reign in these doctrine as they apply to substantive rights—which jurisprudence is in a ‘current [state of] disarray’” (Shapiro).

The petitioners also contend that incorporation through the Privileges or Immunities Clause would have the same effect as incorporating through the Substantive Due Process Clause. This argument is incorrect, since the Privileges or Immunities Clause read in the way the petitioner asks the Court, then at least the first eight Amendments would be incorporated, which would not occur if the right was incorporated through the Due Process Clause. In the merits brief, the petitioners hold that “’Privileges’ and ‘Immunities’ were popularly understood to encompass pre-existent fundamental rights, including those enumerated in the Bill of Rights” (Merits Brief 33). However, by incorporating through the Privilege or Immunities Clause, the Court would be overturning a well-established precedent, a practice it is usually unwilling to do.

The respondents believe the Slaughterhouse Cases were decided correctly and the Court should not consider over turning them. In addition, the respondents point to three cases following the Slaughterhouse Cases, which uphold the precedent and hold that the Second Amendment only applies to the federal government. These Cases include U.S. v. Cruikshank (1875), Presser v. State of Illinois (1886), and Miller v. Texas (1894). Cruikshank held that the Second Amendment only restricts the federal government. Presser furthered this precedent by holding that the Second Amendment only limits Congress and the national government. “And again in Miller, the Court made clear that the restrictions of the amendment ‘have no reference whatever to proceedings in state courts.’ 153 U.S. at 538” (Brief for Respondents in Opposition, McDonald v. Chicago, 2009, at 6). Yet, all of these precedents are over a century old and the petitioner claims that because of their datedness, their interpretation is no longer relevant. There is some weight to that argument, due to the evolution of legal system over the past century. Those cases mentioned in support of the respondents’ argument were decided previously to Substantive Due Process incorporation. The petitioner also claims that these precedents are no longer relevant because Duncan overruled them. The petitioner’s argument is flawed because Duncan was the last ruling in a Substantive Due Process incorporation case, whereas Miller was the last Privileges or Immunities case relevant to the Second Amendment.

In the McDonald, the petitioners ask the Court to overturn the interpretation of the Privileges or Immunities Clause of the Fourteenth found in the Slaughterhouse Cases (1879) on the basis the Court decided wrongly according to historic and contemporary scholars. The Court in the Slaughterhouse Cases interpreted the Privileges or Immunities Clause quite narrowly and according to the petitioners made the Clause meaningless. And the Court has since held that the Clause only protects national citizenship rights, which include free access to sea ports, to use navigable waters, to peaceably assemble, petition for redress of grievances, and to become a citizen of any state (Brief for Respondents in Opposition, McDonald v. Chicago, 2009). The petition for writ of certiorari for the case McDonald v. Chicago (2009) holds that “[l]egal scholars agree on little beyond the conclusion that the Clause does not mean what the Court said it meant in 1873" Saenz v. Roe, 526 U.S. 489, 23 n.1 (1999) (Thomas, J., dissenting). So, the part of the petitioner’s argument for why the Slaughterhouse Cases were decided wrongly is based on a dissent which has no legal value and on contemporary and 19th century legal scholars and not precedent. This argument is relevant if the Court is concerned with how the elite academics view the Court.

The petitioners also contend that the drafter of the Fourteenth Amendment, Rep. Bingham, one of the key framers of the Fourteenth Amendment, held that he intended for the Fourteenth Amendment to overrule Barron v. Baltimore and apply the Bill of Rights to the states. "’[O]ver and over [John Bingham] described the privileges-or-immunities clause as encompassing ’the bill of rights’- a phrase he used more than a dozen times in a key speech...” (Petition for a Writ of Certiorari, McDonald v. Chicago, at 24). “I deny that any State may exclude a law-abiding citizen of the United States from coming within its Territory, or abiding therein, or acquiring and enjoying property therein, or from the enjoyment therein of the ‘privileges and immunities’ of a citizen of the United States . . . . I maintain that the persons thus excluded from the State by this section of the Oregon constitution, are citizens by birth of the several States, and therefore are citizens of the United States, and as such are entitled to all the privileges and immunities of citizens of the United States, amongst which are the rights of life and liberty and property, and their due protection in the enjoyment thereof by law” (Merits Brief, McDonald v. Chicago, at 23).

So, the Court in the Slaughterhouse Cases deviated from the intent of the framers by holding that Privileges or Immunities only apply to limited fundamental national rights, which do not include property ownership. If the Court considers the framer’s intent as more important than out of touch precedents, then the petitioners have an excellent argument.

There is an indication that the petitioners do indeed have a strong argument. Justice Thomas stated in the dissent in Saenz v. Roe (1999), “[b]ecause I believe that the demise of the Privileges or Immunities Clause has contributed in no small part to the current disarray of our Fourteenth Amendment jurisprudence, I would be open to reevaluating its meaning in an appropriate case. Before invoking the Clause, however, we should endeavor to understand what the framers of the Fourteenth Amendment thought that it meant.” Yet, Justice Scalia is known for being opposed to looking towards the intent of the framers so obtaining a majority on this point will be difficult for the petitioners to do.

As the Respondent’s argue, the Court has not signaled a willingness to overturn the Slaughterhouse Cases precedent nor have any of the lower courts. There is no established consensus legally speaking as to whether the Court should in fact over turn this precedent. Justice Ginsburg will be sympathetic to this argument as evidenced in her views of activism of the Court without consensus in Roe v. Wade. However, the Court was willing to grant an individual right to bear arms in Heller without this consensus or any prior indication of a willingness to define the Second Amendment in this way.

The original meaning of Privileges or Immunities has also been lost due to the Slaughterhouse Cases. “The words ‘privileges and immunities’ often were used to describe fundamental rights and liberties such as those in the Federal Bill of Rights . . . . This usage stretches from the English and Colonial period, in which such rights were considered privileges of freeborn Englishmen, through the struggle for American independence, to the American Civil War and the framing of the Fourteenth Amendment and beyond” (Merits Brief, McDonald v. Chicago, at p.33). As a result of this the brief holds that “faced with a clear conflict between precedent and the Constitution, this Court should uphold the Constitution”(Denniston, SCOTUSBLOG). The brief is clearly arguing towards the originalism established by the Supreme Court in Heller. The respondent’s disagree with the Court’s usage of originalism in that case since “our laws and traditions in the past half century that ‘are of most relevance’ in determining what liberty interests are protected” (Respondent’s brief p. 11). Had the merits brief for the Respondent been available, better arguments could be juxtaposed more closely to the petitioners’ arguments, which is true in the next section as well.

The Court could also choose to incorporate through the Due Process Clause of the Fourteenth Amendment. The petitioners present a good argument for the Court to do so. In their petition for certiorari, the petitioners accurately analyze Duncan in their favor.
“The modern incorporation test asks whether a right is "fundamental to the American scheme of justice," Duncan, 391 U.S. at 149, or "necessary to an Anglo-American regime of ordered liberty," id. at 149 n. 14. Duncan’s analysis suggests looking to the right’s historical acceptance in our nation, its recognition by the states (including any trend regarding state recognition), and the nature of the interest secured by the right” (Petition for a Writ of Certiorari, McDonald v. Chicago, at 15).
This argument is strong because of the pervasiveness of gun culture in the U.S. legal system. There is a long history of state and federal cases and ordinances protecting a citizen’s gun rights. For example, 42 States have adopted constitutional provisions [similar to the Second Amendment] (Oral argument, D.C. v. Heller 2008, at 15). Another example of the prevalence of gun laws in the U.S. can be seen in the concealed carry laws. Only two states restrict concealed carry, nine states are may issue, or subjected to the whims of the county sheriff, and all the rest are shall issue or unrestricted, which means that citizens of thirty-nine states have the right to concealed carry. State support for the incorporation of the Second Amendment is also high. Thirty-two state attorney generals filed an amicus brief in favor of the incorporation of the Second Amendment in the McDonald case.

The brief in opposition provides a counter argument to the aforementioned petitioners’ argument. The respondent holds that “[i]f there is a due process right to arms for self-defense, it is preserved with arms suitable for that purpose, and does not extend to any particular weapon merely because it is in common use” (Brief for Respondents in Opposition, McDonald v. Chicago, 2009, at 9). This argument highlights the difference in the ordinances of D.C. and Chicago. Since the D.C. gun ban held that legally owned guns must be kept disassembled and under lock and key in the home, their use for self-defense is nearly impossible. Whereas, the Chicago ordinance does not have that restriction, so it is possible to use a rifle or a shotgun for self-defense in the home. The respondent continues the argument by saying “the right to keep and bear arms carries an inherent risk of danger to the liberty and interests of others. ‘Homicides are most often committed with guns, especially handguns,’ and nearly 60% of those homicides take place in large cities. Department of Justice, Bureau of Justice Statistics, Homicide Trends in the United States (available at https://www.ojp.usdoj.gov/bjs/homici,:le/homtrnd.htm) (Brief for Respondents in Opposition, McDonald v. Chicago, 2009, at 12). And this argument is noteworthy because it contrasts the inherent danger of gun rights with the other Amendments, like the First Amendment. The nature of guns and the crimes they are used in is important for the justices to consider while hearing this case.
An important sub-issue that goes with the issue of incorporation is the issue of federalism. The reason being that the federal government is granting a right it guarantees citizens against the federal government to also be applied against state governments. And this practice impedes on state sovereignty, since state governments (local governments as well) have historically written ordinances pertaining to the possession and use of firearms. And the nature of gun rights and usage make the issue of federalism more prevalent. For example, it is easy to imagine New York City having different gun needs than a rural area like Morton Grove, Illinois. And the fact that guns can pose a security issue to other citizens is also relevant. So, the Court needs to be careful to not disenfranchise states and municipalities when crafting its opinion. And the Court also needs to be mindful of the future lawsuits that could arise out of the McDonald opinion and what this opinion means for the future of Constitutional jurisprudence.

Since the right being argued to be incorporated is the individual one now found in the Second Amendment, the issues with that right also merit a discussion. Guns have been prevalent in American culture and society for centuries. According to an Albany government Law Review article, “32% of American homes have a long gun and 25% of homes have a handgun” (449-450). In the same article, it holds that “16% of adult Americans own a handgun” (450). So, there is a sizable group of people that are exercising their individual right to gun ownership. And this must be considered by the Court when determining whether a state can restrict a federal right to gun ownership.

The Court also must consider the national debate and divide over gun rights. Currently, arguments for gun rights and arguments for gun control are still prevalent nationally. These conflicting views will make it difficult for the Court to decide the case, but there is a correct outcome. If the Court decides the issue on a minimalist level and holds that outright bans are unconstitutional since they infringe upon Second Amendment rights, then it will not upset the gun control groups.

Both sides present strong arguments and by no means is this an easy case for the Justices to decide. Moreover, one reason that makes it so difficult is that the last incorporation case was heard in 1968 and the Slaughterhouse Cases made the Privileges or Immunities Clause irrelevant to most cases and controversies. In addition, the case also centers on gun rights, an issue that has deeply divided America for at least the past couple decades, making it a noteworthy case for the public to watch and study. The pressure is on the Supreme Court now to decide this fundamental issue of Constitutional law and the nation is watching with baited breath.

McDonald v. City of Chicago has no previous precedent that a sound prediction could be reasonably based on. The only case to look to would be District of Columbia v. Heller, but the Heller case did not address the issue of incorporation, which could drastically change the voting record in the case at hand. However, Heller does provide one answer to how eight of the sitting justices feel about gun rights. Since the conservative majority bloc held there was an individual right to gun ownership, they are in favor of gun rights. Whereas, the dissenters held that there is only a militia based collective right to gun ownership, which could be seen as anti-gun rights since it allows for restrictive regulation like the D.C. ban. Scalia wrote the majority opinion in Heller so it is very clear as to what his views are on an individual’s gun ownership rights, but there were no concurring opinions. Thus, it is difficult to determine the extent by which Justice Kennedy agrees with the majority opinion he signed on to. There were two dissents, which were written by Breyer and Stevens and signed by all four liberal dissenters. Therefore, the problem faced with determining Kennedy’s views also applies to Ruth Bader Ginsburg.
In order to form a theory of how the Justices may decide without any previous case law, one must look towards their ideological preferences, judicial philosophies, and interpretations of the Constitution. In the McDonald case, not only is it important to consider the Justices’ potential views on incorporation but their views on the Second Amendment and what that means for its incorporation. Justice Scalia is a known hunter, with a familiarity of firearms. So he has an interest in protecting his own individual right to possess and use a gun and the rights of his hunting buddies, like Dick Cheney. In addition, it is apparent that Scalia believes the Second Amendment provides a fundamental right to gun ownership that cannot be abridged by the government, since this right is a natural right, which existed prior to the ratification of the Constitution.

Justice Scalia’s background also plays a role in his decision-making. He was a law professor prior to his work as a judge. Therefore, he was a member of the legal elite prior to becoming a Justice. He then would be more likely to have his ear turned towards in hopes of appeasing them and staying consistent with the general elite consensus. Justice Scalia is a conservative whose values match closely with the president who appointed him, Reagan. These values are also apparent throughout his opinions and are sometimes under the guise of originalism. What this means for his opinions on the Court is they will have a conservative slant, regardless of his repeated contention that he is merely making good law. Justice Cardozo said it best with “We may try to see things as objectively as we please. Nonetheless, we can never see them with any eyes except our own” (Greenhouse, 2009).
“District of Columbia v. Heller is the most explicitly and self-consciously originalist opinion in the history of the Supreme Court” (Sunstein). It comes as no surprise that Justice Scalia was the author of that opinion. Justice Scalia’s judicial philosophy is one of originalism, meaning he looks towards the meaning of the words when the Amendment or statute was codified. He does not believe that changing social values shape what the Constitution means for today (i.e. the living Constitution theory) and that the Constitution can be changed to match contemporary social values. “The legislature would seem a much more appropriate expositor of social values” (Scalia 174). Originalism for Scalia does not look towards the intent of the framers. “Justice Scalia rejects the original intention in favor of the original meaning. To assess intentions, courts need to ask something subjective, involving what lies inside particular people's heads; to ask about meaning, courts can undertake a more objective inquiry”(Sunstein).
Adherence to precedent is another topic Scalia touches on in his article “Originalism: The Lesser Evil”. For Scalia, precedent is in place so the Court does not have to evaluate every rooted precedent for each case that comes before it. Scalia also discusses in his interview with National Review Online that the doctrine of incorporation may be incorrect today in applying the Bill of Rights to the states. But, it was not incorrect when it was created and he can work with it so he would not overturn the doctrine of incorporation since it is so rooted in the American legal system.

Justice Kennedy is more difficult to analyze since he did not write the majority opinion in Heller and he has become the swing vote on the Roberts Court as a result of Justice O’Connor’s retirement. “In all of this, a pattern emerged. Where Justice Kennedy goes, so goes the Supreme Court: for the past three terms, in 5-4 cases, he has voted with the majority more often than any other Justice, and so have been the pivotal figure in case after case” (Rosen 1). Justice Kennedy is not one that is desirable as the swing vote in most controversial cases before the Court. And it seems like that he quite enjoys being the one who gets to decide the law and is rather pompous because of his special role. He tends to wring his hands over every judicial decision and agonize as to whether he made the right choice, like in the Casey case. He is quite concerned with the public and elite’s perception of him, as recently evidenced in the news about his office censoring a student reporter and his quick reply that it was his office and not him, he never authorized it. Ideologically he falls right of center, more liberal then the four other justices, which make up the conservative bloc and more conservative than the four justices in the liberal bloc. He has also been described a libertarian championing for liberty at every opportunity he gets. While this may be an exaggeration, he has spoken a great deal on the necessity of liberty and freedom and voted in some cases, like Casey and Lawerence v. Texas, in accordance with them.

Kennedy has disappointed many conservatives with his sometimes liberal opinions. He was appointed by Pres. Bush Sr., so he was assumed to be in favor of overturning Roe v. Wade, which in Casey he was in the majority which protected the right to an abortion. “Terry Eastland, in American Spectator, held that Kennedy abandoned his conservative principles as a result of the Greenhouse Effect” (Rosen 3). This is not the case in every opinion, but it is true that he is concerned with the elite legal scholars’ opinions. Part of the reason for this is he was appointed at a young age of 38 to the 9th Circuit Court of Appeals, making him the youngest appellate judge in the country. So his lack of experience at the time of appointment, may have lead him to look towards other legal scholars for approval and guidance.

Justice Ruth Bader Ginsburg is on the other side of the voting spectrum from the previously analyzed Justices. She votes consistently with the liberal bloc in 5-4 decisions and is quick to sign dissents by Stevens. Her experience as a law professor shapes her interpretation of the issues at hand. She, like Scalia and Kennedy, is also concerned with the elite legal opinion because of her background as a professor and she has commented openly, even here at OSU, that the Courts should look towards international courts for guidance in order to retain prestige in their eyes.

Justice Ginsburg was also counsel for the ACLU and was in charge of women’s rights litigation on behalf of the ACLU. She clearly has a vested interest in women’s rights and believes in strict scrutiny of laws that infringe upon them. Yet, she is against how the Court decide Roe v. Wade. She believes that had the Court “merely stuck down the extreme Texas law and went no further on that day… might of served to reduce rather than fuel controversy” (Ginsburg 195). Roe “invited no dialogue with legislators” and “seemed to entirely remove the ball from their court” (Ginsburg 198). Prior to Roe, there were no “stepping stones” to the extensive abortion rights enumerated in its opinion and Roe practically struck down all fifty states’ abortion statutes.

Ruth Bader Ginsburg has been an advocate for states rights and a restrained judiciary in cases like BMW v. Gore and Bush v. Gore. However, these cases are ones which advance conservative ideologies. In an interview with C-SPAN, Ginsburg thought it was a nice bi-partisan gesture of Secretary Rice to ask her to perform the oath of office. Therefore, it is quite apparent that Ginsburg’s ideological values do play a role in her decision-making.

Because of previous analysis of the Justices, the important theories of the Court, and the case at hand, the Court will rule 5-4 in favor of incorporation of the Second Amendment through the Privileges or Immunities Clause. The voting coalition will be divided along ideological lines with the conservatives in the majority and the liberals dissenting. Which means in terms of the Justices discussed, Kennedy and Scalia will be in favor and Ginsburg opposed. The main reason the Court will incorporate along these lines is evidenced in Shapiro and Blackman’s article “Opening Pandora’s Box? Privileges or Immunities, The Constitution in 2020, and Properly Incorporating the Second Amendment.” In a comment to the Volokh Conspiracy, Blackman summarizes the point of the article as:
“A future court could easily recognize a constitutional right to positive rights such as health care or social equality. Thus, we propose that the Court look to rights held as privileges or immunities during the time of Reconstruction, and not an evolving standard of rights (as articulated in Balkin’s work, and the Constitution in 2020 Project). If the Conservative majority takes a stand now, they can preserve an originalist jurisprudence for the forseeable future.”
So, the Conservative majority needs to take a stand on Privileges or Immunities now in order to prevent future liberal courts from incorporating rights like healthcare to apply to the states. All of the Justices will be concerned with how their opinion impacts the public and what the public opinion on gun rights is, which currently is at an all time low for restrictive gun laws. It is important for the Court to consider public opinion in this case since it is on such a controversial topic and effects gun owners across America.

Justice Scalia’s opinion in this case will focus on the original meaning of the Privileges or Immunities Clause and how that incorporates the fundamental right to gun ownership as a result of self-defense doctrine. He will be willing to overturn the precedent in this case since it is a bad one and a Constitutional one with originalist foundations at that. Constitutional precedent is more easily overturned by the Court since Constitutional interpretation can only be changed through an Amendment or the Court itself. Scalia has spoken often about the doctrine of incorporation and he held in a speech that “even Larry Tribe has abandoned substantive due process because it's idiotic. The idea of substantive due process is babble. Privileges and immunities is flotsam." In same speech it was observed that “Scalia thinks the incorporation doctrine, which uses the 14th Amendment to apply the Bill of Rights against state governments, is mistaken. That said, it is now so widely accepted that Scalia wouldn't think about reversing it.” Scalia has an interest in incorporating through the Privileges or Immunities Clause and not the Due Process Clause since it will give him the chance to correct the interpretation of the Privileges or Immunities Clause to an originalist one and secure gun rights as a result of this and his opinion will reflect these interests.

Justice Kennedy’s opinion would also support incorporation through the Privileges or Immunities Clause of the Fourteenth Amendment. In his speeches reprinted on page 48 in the book, The Tie Goes to Freedom, Justice Kennedy often mentions looking towards the intent of the framers, even though it is not often evident in his opinions. His opinion would contain references to the scholarly work and debate over the meaning of the Privileges or Immunities Clause and use as support the evidence presented by scholars that the Slaughterhouse Cases should be overturned. He would also cite the petitioners’ argument that gun ownership is a fundamental liberty that existed before the Constitution itself and has remained deeply rooted American society. He has an interest in preserving gun ownership rights as a form of liberty and this will be evident in his opinion.

Justice Ginsburg will be in the dissenting bloc of McDonald v. City of Chicago. She will make the analogy between what the Court did in Roe v. Wade to what the Court is doing in the case at hand. As a result of her liberal political ideologies and doctrine of judicial restraint she will say the Court has no right in implementing an individual right to gun ownership against the states, especially when the states have such diverse gun laws. The majority in the case will decide the case too broadly for Ginsburg in order to foreclose on future cases arising from the Privileges or Immunities doctrine, much like Roe v. Wade did, and she will make this known in her dissent.

The Court will decide McDonald v. City of Chicago in a way that will prevent liberal future liberal Justices from incorporating un-enumerated rights prior to the Fourteenth Amendment’s ratification and ensure that the individual right to gun ownership is protected from state abridgement. The Court will look towards the petitioners’ arguments of original intent and meaning and conclude that the Privileges or Immunities Clause does incorporate the first eight amendments of the Bill of Rights and the doctrine of selective incorporation will be no more. The reason, as has been expressed by scholars, is that selective incorporation allows Justices to make arbitrary determinations as to which rights apply to the states. The Court in this opinion will also be catering to public opinion on the issue of gun rights and to the elite on the issue of the meaning of the Privileges or Immunities Clause. This case will result in an enormously complex opinion that will require lower courts to sort out its meaning and implement in regards to their own state’s gun laws.


Works Cited
Bogus, Carl T. “Gun Control and America's Cities: Public Policy and Politics.” 1 Alb. Gov't L. Rev. 449 (2008)
Duncan v. Louisiana, 391 U.S. 145 (1968).
Ginsburg, Ruth Bader. “Speaking in a Judicial Voice: Reflections on Roe v. Wade.” ed. O’Brien. Judges on Judging. CQ Press. Washington D.C. 2004.
Greenhouse, Linda. “What Law Commands.” The New York Times. 19 Nov. 2009.
http://opinionator.blogs.nytimes.com/2009/11/19/what-the-law-commands/
Knowles, Helen J. The Tie Goes to Freedom. 2009. Rowman Littlefield Publishers.
Krishnamurthy, Vivek. “Live Blogging Nino Scalia. The Reaction Blog.
”http://the-reaction.blogspot.com/2006/11/live-blogging-nino-scalia.html
McDonald v. Chicago 08-152, Brief for Respondents in Opposition (2009).
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McDonald v. Chicago, 08-1521, Petition for a Writ of Certiorari (2009).
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U.S. Constitution, 14th Am., sec. 1
Volokh Conspiracy. Comment by Josh Blackman.
http://volokh.com/2009/11/18/how-id-approach-the-privileges-or-immunities-issue-in-mcdonald/