Think the 6th Amendment right to Criminal Trial by Jury is incorporated? Kinda. Oregon has an odd rule that criminal verdicts need not be unanimous. The Supreme Court in Apodaca v.Oregon upheld this deviant practice on a 4-1-4 split. Though, the Court in McDonald noted that “not an endorsement of the two-track approach to incorporation.”

With the 2nd Amendment now incorporated, the Oregon Public Defender bar seeks to set the stage to challenge this ruling.

From the 9th Circuit Blog (H/t Sentencing Blog):

The Supreme Court’s opinion in McDonald, which extended the federal Second Amendment protections in identical form to the States, should finally bring an end to Oregon’s deviant non-unanimous jury rule. Assistant Federal Public Defender Renée Manes has been campaigning against the injustice of non-unanimous juries in what is probably the least friendly forum for such challenges: federal habeas corpus under the extremely restrictive standards of the Antiterrorism and Effective Death Penalty Act of 1996. Now, McDonald gives us a new road map for state and federal court litigation:

Interestingly, the public defenders are willing to rely on Due Process AND Privileges or Immunities in their challenges.

The Privileges And Immunities Clause Provides Additional Support For Striking Down The Verdicts Of Non-Unanimous Juries. . . .But the alternative route of overruling Privileges and Immunities Clause precedent persuaded Justice Thomas, so we need to be sure to preserve and argue this ground. Some or all of the other Justices may now agree that, in the Sixth Amendment context, the federal and state protections are identical under the due process clause, but we may need Justice Thomas’s vote both on the certiorari grant and on the ultimate merits in the Supreme Court. Interestingly, only now-retired Justice Stevens defended two-track incorporation in his solo dissent, and even he noted that “there can be significant practical, as well as esthetic, benefits from treating rights symmetrically with regard to State and Federal Governments.”

Since the Court has already rejected this argument under Due Process in Apodaca (kinda), why not use Privileges or Immunities?

We can expect to see much more incorporation litigation following McDonald, which makes the Privileges or Immunities analysis quite important .