In a little less than 18 hours, the Supreme Court will decide McDonald v. Chicago. Since cert was granted on this case, I have co-authored a 90 page law review article, gave several talks at law schools, and have written over 100 blog posts about this case (about 10% of my total blog posts!). Needless to say, I am very interested in this case.
Here are my final predictions about the possible scenarios, and likely aftermath.
I predict that there are 5 votes to incorporate the Second Amendment. Beyond that, there are a couple possible scenarios, depending on how the Court wishes to address (a) the contours of gun control regulations and (b) the privileges or immunities clause.
D.C. v. Heller left open many issues of what types of gun control are constitutional. Most lower courts have seized on the “sensitive places” and “longstanding prohibitions” dicta in Heller, and found that most types of gun control are constitutional. The Supreme Court may want to clarify that jurisprudence. Or, they may want to leave the Heller test as it is, lest they lose Justice Kennedy’s crucial vote. Many postulate that Kennedy was responsible for inserting that dicta into Heller.
Second, the Court asked the parties to address whether the second amendment should be incorporated through the due process clause, as well as through the privileges or immunities clause. During oral arguments, Scalia and Roberts were overtly hostile towards the privileges or immunities clause. Alito asked a question about privileges or immunities and economic liberty, but I couldn’t really read which way he was going. Kennedy didn’t ask anything about privileges or immunities, and as usual, Justice Thomas was silent. The only likely vote for privileges or immunities is Justice Thomas. He has written previously that he is open to revisiting the clause, and this is the perfect case. Additionally, Justice Kennedy who is a fan of expansive forms of liberty, may be willing to breath some life into this long dormant clause.
The authorship of the opinions, in my mind, will depend on these two issues.
Here are a few possible scenarios.
Chief Justice Roberts writes the opinion.
The simplest option will be a very brief opinion–maybe 20 pages or less–that simply says the 2nd Amendment is incorporated through the due process clause. If this is case, I am almost certain Chief Justice Roberts writes this opinion. It will be short, and clean. Let’s hope Roberts considers originalism at the right time, and discusses the right to keep and bear arms at the time of the ratification of the 14th amendment, and not during the revolutionary era. Roberts will keep Kennedy and Scalia on board by not talking about liberty too much, yet ensuring that gun control regulations can stand. It will follow existing incorporation doctrine, and add nothing. Scalia, who has railed against substantive due process, will have no problem contradicting himself by incorporating the second amendment through the due process clause (see here and here). Relying on the test proffered in DC v. Heller, the Chicago gun ban is unconstitutional. The Court may add a few sentences narrowing the holding in Heller, but this is unlikely. It really isn’t necessary for the purposes of this case.
With respect to the privileges or immunities clause, I see two possible outcomes. First, Roberts will disparage p or i. He will compare it to a form of judicial lawlessness reminiscent of the Lochner era, and the Court should eschew it. If this is the case, expect a fierce concurrence from Thomas accomplishing several goals. First, Thomas will argue that historically, the more “originalist” method of incorporation is through the privileges or immunities clause, and not the due process clause. Second, Thomas will call the Chief out for using substantive due process to incorporate the second amendment, even though that is the precise doctrine Scalia and others have excoriated for decades. Third, Thomas may argue that P or I protects rights beyond those listed in the bill of rights–that is unenumerated rights. And, this may be a stretch, but Thomas may join in the judgment only, finding that he would not incorporate through due process. This would yield a 4-1-4 split. The Chicago gun ban would be unconstitutional, but the reasoning why–that is due process or privileges or immunities–would be unclear.
Alternatively, Roberts does not address Privileges or Immunities, or mentions it, but writes that this is not a proper case to discuss it. If this is the case, Thomas will likely argue that p or i is the more originalist form of incorporation, and argue that it protects some unenumerated rights. However, he won’t attack substantive due process, and will certainly join the majority opinion.
The wildcard is Justice Kennedy. He loves expansive forms of liberty and personal autonomy. While he does not believe in the right to bear arms in sensitive places, certainly he things it is permissible to protect oneself in non-sensitive places–that is in, the home. Kennedy may also realize that p or i could protect more forms of liberty currently unavailable under the due process clause. He may join Thomas’s concurring opinion, or perhaps write his own. If Roberts rips P or I, Kennedy will write a strong concurrence. For that reason, more than anything else, I do not expect Roberts to disparage p or i. Roberts is the only justice who will not indulge his own views in order to keep 5 votes.
Justice Alito writes the opinion
If the Court seeks to adds additional limitations on DC v. Heller, then I would agree with Goldstein at SCOTUSBlog, and Alito would be the Justice to write it. Justice Alito, who has a history as a prosecutor, may be more interested in strengthening gun control laws. In this case, Justice Alito will write this opinion. Though, I have difficulty accepting that Scalia would sign onto this opinion. Heller is his baby. I think he would be most comfortable with having the Chief write a short opinion affirming Heller, and incorporating the second amendment without waxing eloquent on substantive due process. If this is the case, expect Scalia to concur, arguing that the Heller test should be reaffirmed.
With respect to privileges or immunities, I do not think Alito would be as brazen as the Chief could be, and likely will not disparage p or i. Therefore my reasoning above stands. Expect Thomas and/or Kennedy to concur.
Expect an epic dissent from Justice Stevens. This is his parting salvo, and one of the last major opinion he will deliver. He dissented in Heller, so expect many of the similar refrains– how the majority’s argument is historically inaccurate (don’t expect Stevens to use originalism at the right time), the states have long been able to control guns, and it is not implicit in the concept of ordered liberty to allow guns. Additionally, he will address the policy concerns, and say this will lead to more death and dying.
I am not sure if Stevens will write about substantive due process, or the privileges or immunities clause. At arguments, Stevens argued for a narrow vision of incorporation. This would only make sense if the Court incorporates the 2nd amendment, but does not strike down the Chicago gun ban. This ain’t gonna happen. So, Stevens will have to say the due process clause does not counsel incorporation. He may throw some dicta in about p or i, but I don’t think he’ll focus on it.
Breyer, who also dissented in Heller, will issue a policy paper disguised as a judicial opinion, arguing why guns are bad and dangerous, and should be balanced against a states legitimate interests in gun control. Don’t expect much constitutional law in this opinion.
Once the opinion is issued, suits will be filed in cities across the country, challenging local gun control laws. If the Supreme Court decides that the Chicago gun ban falls because it is a 100% ban–like the Chicago gun ban–other suits will have difficulty. If the Court decides that a ban that is not 100%, but is still really onerous violates the second amendment–like the one in New York City–expect those suits to have more success.
Needless to say, in places like New York City, Chicago, and Los Angeles, regardless of what the Constitution says, it will be extremely difficult to purchase a gun, and the right will be constructively violated at every step. In the 2 years since Heller, only 800 guns have been registered in D.C.. These Supreme Court opinions are largely symbolic. Yet, often the fight for liberty must start with mere symbolic victories.