Please refresh this page often. I will be adding my instant analysis of McDonald v. Chicago as soon as the opinions is released.
The opinion is available here. The opinion is 214 pages long!
Writing for the majority, Justice Alito finds that the Second Amendment is incorporated through the Due Process Clause. Joining in judgment only, Justice Thomas writes that the Second Amendment should be incorporated through the Privileges or Immunities Clause. Justice Stevens and Justice Breyer dissented.
This presents a 4-1-4 split, something I predicted months ago.
Here is the thrust of Alito’s argument:
The Court must decide whether that right is fundamental tothe Nation’s scheme of ordered liberty, Duncan v. Louisiana, 391 U. S. 145, 149, or, as the Court has said in a related context, whether it is “deeply rooted in this Nation’s history and tradition,” Washing-ton v. Glucksberg, 521 U. S. 702, 721. Heller points unmistakably to the answer. Self-defense is a basic right, recognized by many legal systems from ancient times to the present, and the Heller Court held that individual self-defense is “the central component” of the SecondAmendment right. 554 U. S., at ___, ___. Explaining that “the needfor defense of self, family, and property is most acute” in the home, ibid., the Court found that this right applies to handguns because they are “the most preferred firearm in the nation to ‘keep’ and use for protection of one’s home and family,” id., at ___, ___–___. It thus concluded that citizens must be permitted “to use [handguns] for the core lawful purpose of self-defense.” Id., at ___. Heller also clarifies that this right is “deeply rooted in this Nation’s history and tradi-tions,” Glucksberg, supra, at 721. Heller explored the right’s origins in English law and noted the esteem with which the right was re-garded during the colonial era and at the time of the ratification ofthe Bill of Rights. This is powerful evidence that the right was re-garded as fundamental in the sense relevant here. That understand-ing persisted in the years immediately following the Bill of Rights’ratification and is confirmed by the state constitutions of that era,which protected the right to keep and bear arms. Pp. 19–22.
A survey of the contemporaneous history also demonstratesclearly that the Fourteenth Amendment’s Framers and ratifiers counted the right to keep and bear arms among those fundamentalrights necessary to the Nation’s system of ordered liberty.
However, Justice Alito, joined by Roberts, Scalia, and Kennedy, rejected the Privileges or Immunities Analysis.
A survey of the contemporaneous history also demonstratesclearly that the Fourteenth Amendment’s Framers and ratifiers counted the right to keep and bear arms among those fundamentalrights necessary to the Nation’s system of ordered liberty.
Justice Thomas took a different path,and would rely on the privileges or immunities clause.
Thomas actually knocks down substantive due process, and argues that this right should be protected by the privileges or immunities clause.
Thomas also proposes a purely originalist test for determining whether a right is a privilege or immunity
Lots more after the jump.
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