Easterbrook and Wood Talk about McDonald, Incorporation, and Privileges or Immunities

December 5th, 2012

A great discussion in the GW Law Review between Chief Judge Easterbrook and Judge Wood on McDonald and Originalism:

JUDGE WOOD: I’m going to point out that a certain Frank Easterbrook in the McDonald case made it very clear that he was indeed following some rather antiquated marching rules from the Supreme Court about whether the Second Amendment was incorporated through the Fourteenth Amendment and thus applicable to the states. And he said they said no in the nineteenth century; it wasn’t incorporated. But I would just say there are some very large hints in that opinion that he thought maybe some kind of incorporation was possible— I’m not sure he went as far as privileges and immunities—and that the McDonald result in the court of appeals wasn’t going to last too long. So lower court judges can, and sometimes do, come to the correct bottom line with a bit of dicta along the way about where things might go.

JUDGE EASTERBROOK: Somebody had asked me. I agree with Justice Thomas’s opinion in McDonald, although I didn’t think that as a judge of the Seventh Circuit I could overrule the Slaughterhouse Cases all by myself. (Laughter)

Fascinating. Easterbrook agrees with Thomas!