Take a look at this interesting piece from Nelson Lund, titled Two Faces of Judicial Restraint (Or Are There More?) in McDonald v. Chicago. I have an article forthcoming in the Cato Supreme Court Review, along with Alan Gura and Ilya Shapiro. We hit on a number of the same points. I will quote from it when it is ready.
On P or I:
Alito’s answer to this question is brief and revealing. He notes that the petitioners’ lawyer was unable at oral argument to identify the “full scope” of the Privileges or Immunities Clause, and he observes that the scholars who criticize the Slaughter-House interpretation of the Clause have not been able to agree among themselves about the correct interpretation.20 Nowhere in the opinion does Alito make any effort to defend Slaughter-House or its progeny, and he makes no effort to show that the modern doctrine of substantive due process has any basis in the Constitution.
The implication seems to be that if there are doubts about the original meaning of a constitutional provision, it is better to accept whatever precedents happen to exist, even if that requires deciding a case under a line of case law that is itself chock full of uncertainties. This suggests a very strong, if implicit, position that judicial restraint consists primarily in fidelity to precedent.
Given this strong presumption that the original meaning of a constitutional provision is irrelevant once the Court has spent “many decades” deciding cases without making any inquiries about the original meaning,21 one would expect Alito to analyze the Second Amendment in much the same way that the Court has previously treated other substantive due process and selective incorporation cases.
More on P or I:
Unfortunately, Alito’s effort to marry respect for precedent with an originalist inquiry leads him into some difficulties. Perhaps most obviously, he cites no evidence about the original meaning of the Due Process Clause. And for good reason. If an originalist case can be made for incorporation, it has to be based on the Privileges or Immunities Clause, which he has already refused to consider.
Taken by itself, this may not be particularly troubling. Alito seems implicitly to argue that even if the Court picked the wrong clause to justify its doctrine of selective incorporation, the fact remains that the Fourteenth Amendment was meant to protect the Second Amendment right against state action. Or, to put it another way, even if the Court’s approach has been questionable as a formal matter, the outcome is substantively correct under originalism, and that agreement is what is most important. Why engage in a disruptive spring cleaning of a century’s worth of case law, only to reach the same result under a different clause of the same constitutional provision?28
On the Heller Dicta:
This repetition of Heller’s “assurances” is unnecessary and irresponsible. These three dicta, which will probably be treated by most lower courts as though they are the law, were tossed off by the Heller Court without a basis in prior Supreme Court case law and without regard to the original meaning of the Second Amendment.48 Their reappearance in Alito’s McDonald opinion is the single largest obstacle to regarding that opinion as a sound model of judicial restraint.
More on Longstanding prohibitions:
Consider the first dictum: “[N]othing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill . . . .”50 This sounds intuitively obvious, at least at first. But how “longstanding” are these prohibitions? Scalia either did not know, or decided not to tell us. Apparently, however, the first general ban on the possession of firearms by felons was enacted in 1968.51 This was 177 years after the adoption of the Second Amendment, and less than a decade before the D.C. handgun ban was enacted.52
Lund comes to the defense of Alan Gura, who was shot down by Justice Scalia for seeking to use originalism to overturn Slaughter-House and its progeny.
Scalia was certainly right to suggest that petitioners’ effort to persuade the Court to overrule Slaughter-House was a quixotic undertaking. Ridiculing the lawyer for making an original-meaning argument that was far from frivolous, however, was not a display of anything that could be called judicial restraint. Especially coming from a Justice who has spent much of his career promoting the very interpretative approach on which the lawyer was relying. Apparently, the mere fact that “even I have acquiesced in” a doctrine that “I think [is] wrong” should be good enough for everyone else.