I have a client today, so I’ll make this brief, and hold off on the champagne until I’m not slogging through any reports—
[I]t really is interesting how much emphasis the majority, and Justice Thomas’s concurrence, put on the racist roots of gun control. See this article and this one by Bob Cottrol and Ray Diamond for more background. And isn’t it interesting that this is happening on the same day the Senate’s last Klansman went to his reward? . . .
I’d like to note that a lot of “respectable” commentators were, just a few years ago, calling the individual-rights theory of the Second Amendment absurd, ridiculous, and something that only (probably paid) shills for the NRA would espouse. (I’m talking to you, Garry Wills and Robert Spitzer, among others). Yet it is impossible to read this opinion, and the Heller opinion, and conclude that the individual right is really just a “fraud” concocted by the NRA. So were those who were saying so until quite recently being dishonest, or merely inexcusably ignorant?
. . . On the other hand, I should note what Bob Cottrol said to me at the NRA convention after Heller: “We owe this to the open-mindedness of liberal law professors.” That includes people like Larry Tribe, and Sandy Levinson, whose 1992 Yale Law Journal essay, The Embarrassing Second Amendment, really kicked things off by signaling to the legal academy that it was okay to write about this. Also William Van Alstyne, for his essay “The Second Amendment And The Personal Right to Arms.”
Jonathan Adler, at the Volokhs’ treehouse:
The Supreme Court holds in McDonald v. Chicago that the Second Amendment is fully applicable to the states through the 14th Amendment. The opinion for the Court is by Justice Alito. All the opinions together are a whopping 214 pages. Justice Alito, joined by the Chief Justice, and Justices Scalia and Kennedy holds that the Second Amendment is incorporated through the Due Process Clause. Justice Thomas concurs separately (in a fifty-plus page opinion) and would hold that the right to keep and bear arms is a privlege of citizenship protected by the 14th Amendment. Justice Stevens dissents alone, and Justice Breyer dissents joined by Justices Ginsburg and Sotomayor. Justice Scalia has a concurring opinion responding to Justice Stevens’ dissent. [UPDATE: Justice Scalia’s concurrence is a strongly worded attack on Justice Stevens’ concurrence over matters of constitutional interpretation. So much for being nice to the guy on his last day at work. Those who love Scalia opinions will love this one. Those who don’t, well . . . ]
I think what this means is, once I get rich again I can buy all the guns I want for my Chi-Town nieces and nephews.
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Wake me and tell me what provision of the Constitution allows the Supreme Court to decide which specific provisions of the Bill of Rights apply to the several states?
I’d say that only Justice Thomas got it right. Thr right to bear arms is fundamental to citiizenship.