There were several of citations to Footnote Four of Carolene Products in McDonald v. Chicago. Both Stevens and Breyer cited Footnote Four for the proposition that because “discrete and insular minorities” are not implicated, a searching inquiry is not appropriate.

Only problem is, they didn’t cite the entirety of footnote four.

I quote from Pandora’s Box.

Footnote Four made two primary contributions to constitutional law. First, it provided for more exacting scrutiny of laws that touch “discrete and insular minorities.”357 This provision served to expand liberty, and reinforce the representation of those least able to engage in the political process.358 Second, the footnote bifurcated constitutional rights. The first sentence reads: “There may be narrower scope for operation of the presumption of constitutionality when legislation appears on its face to be within a specific prohibition of the Constitution, such as those of the first ten amendments, which are deemed equally specific when held to be embraced within the Fourteenth.”359

Footnote four provides more searching scrutiny for laws that touch “discrete and insular minorities.” But it also provies more a more searching inquiry for “specific prohibitions of the Constitution, such as those of the first ten amendments.”

Last time I checked, the Chicago gun ban involved a “specific prohibition of the Constitution, such as those of the first ten amendments, which are deemed equally specific when held to be embraced within the Fourteenth.” That is, the Second Amendment.

The Court would be well-served to consider the entirety of footnote four. For once, a narrow presumption of constitutionality actually advances a “conservative” right.

Footnote Four Fail!

Quotes from Footnote Four after the jump.

From Stevens Opinion-

Conversely, we have longappreciated that more “searching” judicial review may bejustified when the rights of “discrete and insular minorities”—groups that may face systematic barriers in thepolitical system—are at stake. United States v. Carolene Products Co., 304 U. S. 144, 153, n. 4 (1938). Courts have a “comparative . . . advantage” over the elected branches on a limited, but significant, range of legal matters. Post, at 8.

Stevens-

This is not a case, then, that involves a “special condition” that “may call for a correspondingly more searchingjudicial inquiry.” Carolene Products, 304 U. S., at 153,

n. 4. Neither petitioners nor those most zealously committed to their views represent a group or a claim that is liable to receive unfair treatment at the hands of the majority. On the contrary, petitioners’ views are supported by powerful participants in the legislative process. Petitioners have given us no reason to believe that theinterest in keeping and bearing arms entails any specialneed for judicial lawmaking, or that federal judges aremore qualified to craft appropriate rules than the people’s elected representatives.

This is not a case, then, that involves a “special condition” that “may call for a correspondingly more searchingjudicial inquiry.” Carolene Products, 304 U. S., at 153,n. 4. Neither petitioners nor those most zealously committed to their views represent a group or a claim that is liable to receive unfair treatment at the hands of the majority. On the contrary, petitioners’ views are supported by powerful participants in the legislative process. Petitioners have given us no reason to believe that theinterest in keeping and bearing arms entails any specialneed for judicial lawmaking, or that federal judges aremore qualified to craft appropriate rules than the people’s elected representatives.

Breyer opinion-

Alexander Hamilton feared granting that power to Congress alone, for he feared that Congress,acting as judges, would not overturn as unconstitutional a popular statute that it had recently enacted, as legislators.The Federalist No. 78, p. 405 (G. Carey & J. McClellaneds. 2001) (A. Hamilton) (“This independence of the judges is equally requisite to guard the constitution and the rights of individuals from the effects of those ill humours, which” can, at times, lead to “serious oppressions of the minor part in the community”). Judges, he thought, mayfind it easier to resist popular pressure to suppress thebasic rights of an unpopular minority. See United States
v. Carolene Products Co., 304 U. S. 144, 152, n. 4 (1938).That being so, it makes sense to ask whether that particular comparative judicial advantage is relevant to the caseat hand. See, e.g., J. Ely, Democracy and Distrust (1980).

Breyer- opinion

Moreover, there is no reason here to believe that incor-poration of the private self-defense right will further any other or broader constitutional objective. We are aware of no argument that gun-control regulations target or are passed with the purpose of targeting “discrete and insularminorities.” Carolene Products Co., supra, at 153, n. 4; see, e.g., ante, at 49–51 (STEVENS, J., dissenting).