Elwood on McDonald v. Chicago

October 1st, 2010

From John Elwood’s witty Supreme Court Revue:

Another slow-mo moment came in McDonald v. City of Chicago, involving
whether the individual Second Amendment right to bear arms recognized two
Terms ago in District of Columbia v. Heller is incorporated against the states. No
one who isn’t mystified by instant replay (“He dropped the ball again!”) could look
at the still-extant Heller majority and think the outcome here would be any
different, and so it was widely expected the Court would hold the right incorporated.
The petitioners thus decided to use the opportunity to try to revive incorporation
through the Privileges and Immunities Clause, which is not unlike when the
dominant 1985 Bears decided to have rookie defensive lineman William “The
Fridge” Perry throw his first NFL pass during Super Bowl XX. Perhaps as a result
(of the argument, that is—Perry’s pass attempt resulted only in a one-yard loss), the
Court took the rare step of granting argument time to a non-federal amicus—the
NRA—to advocate incorporation through the conventional Due Process Clause
route. Only Captain Renault was surprised—nay, shocked—when the Court held
for McDonald by a 5-4 vote, and the Privileges and Immunities boomlet was over
before it began, as four members of the majority (and all of the dissenters)
reaffirmed traditional Due Process Clause incorporation. Justice Thomas seized the
opportunity to advocate overruling the Slaughterhouse Cases and United States v.
Cruikshank—the last two empty spaces on his “Overrule ‘em All!” punch-card.
Having finally completed the set, he won a toaster.
CT’s “Overrule’ em All!” card certainly has a number of empty spaces left–Wickard, Raich, and Kelo to name a few.