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:: A constitutional law blog by Scalia/Thomas fan David M. Wagner, M.A., J.D., Research Fellow, National Legal Foundation, and Teacher, Veritas Preparatory Academy. Opinions expressed here are those of the author and do not reflect those of the NLF or Veritas. :: bloghome | E-mail me ::

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    :: Thursday, June 17, 2010 ::
    So, what does Stop the Beach Renourishment betoken for McDonald?

    1. Scalia -- whether he's writing the opinion of the Court, or a concurrence, or a dissent, will not use Substantive Due Process to apply the 2nd Am to the states. Still less will he use the P/I Clause.

    But he can, and likely will, find that the 2nd Am applies to the states w/o using either s.d.p. or p/i. The original incorporationist on the Court, please remember, was Justice Black, who advocated literal, clause-for-clause incorporation as an alternative to standardless, seat-of-pants, sense-of-justice, "shocks the conscience" incorporation via 14th Am Due Process. (Black also called the latter process "natural law," which is a huge slander on natural law, but that's a post for another day.)

    Except on Establishment Clause issues, there's something Hugo-Blackian about Justice Scalia. He could well hold that the 2nd Am applies to the states b/c it's part of the Bill of Rights and the 14th made the Bill of Rights applicable to the States -- s.d.p. having nothing to with it.

    2. The opinion will be fragmented, at best. Some of the verbal by-play in Stop the Beach had a tone that I recall too well from June of 1992. Scalia's strong dissent in Weisman turned out to betoken other things going on within the Court.

    3. The Court could decide that the 2nd Am doesn't apply to the states. All that would take would be either Scalia deciding that incorporation, even the Hugo-Blackian version, has gone thus far and no further (tho' I can't really think of any reason why he would hold that, based on the oral arguments or anything he's said in the past), or Kennedy concluding that, sure, Due Process protects individual rights, but he, in his wisdom, doesn't think those rights include individual firearms ownership in this day and age, and while the result in Heller was compelled by the direct application of the 2nd Am to DC, here it's a matter of 14th Am Due Process, which means Justices can play the deuce with everything.

    :: David M. Wagner 11:34 PM [+] ::

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