Monday is the last day for opinions, and the consensus seems to be that the opinion for McDonald v. Chicago will be written by Justice Alito.
From a 2nd Amendment perspective, this is a good thing. It may also be glad tidings for the 14th.
Jim March thinks that having Justice Alito author the opinion signals the Court’s willingness to revive the Privileges or Immunities clause. I’d lost hope for that mechanism when I first parsed the oral arguments. Justice Scalia’s naked rancor for the approach seemed to have doomed it in favor of Due Process.
However, Mr. March points out a couple of utterances from Justice Alito that I’d missed, including his invocation of Justice Harlan (the 1st), himself a champion of total incorporation. Alito has also been in agreement with Justice Thomas in the majority of cases, and Thomas has been an ardent defender of an originalist reading of the 14th Amendment.
I’m still not sure that the Court is ready to ignite a small revolution in jurisprudence, but I would love nothing more than to be proven wrong.
3 thoughts on “McDonald v. Chicago: Come Monday”
As much as I wish Jim were correct, Alito was referring to the second Justice Harlan and he was a polar opposite on this issue…
-Gene
There seems to be some confusion even among those discussing it in orals, but on re-reading it, I think you’re right. If we’re talking Harlan II, there’s little cause for optimism.
As you mentioned, the ghost of Lochner waits in the wings whenever the Court deliberates on matters of PorI.
Still, I wonder why the Court chose to hear this case rather than NRA v. Chicago, in which they could have completely avoided the debate altogether.
Only a few more hours. Are you as excited as I am?