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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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    :: Tuesday, June 29, 2010 ::
    Tomorrow, more about McDonald, the gun case. In the meantime, Prof. Randy Barnett had an excellent op-ed on it in today's WSJ. Unfortunately Rupert Murdoch wants you to pay to read it online, so instead, I'm linking to a shorter version that Randy posted on SCOTUSBlog.

    My own views will be with Randy, insofar as the P/I clause is a better vehicle for incorporating the 2nd Am -- and indeed the rest of the B of R -- than the Due Process clause. I also tip my hat to him for noticing that, since Justice Thomas's vote was necessary to make five votes for the outcome, his position on the P/I clause is no longer ignorable.

    I will, however, defend Justice Scalia from charges of being unprincipled on Substantive Due Process. Precedent may be overrated, but it's not unprincipled. There is also a principles distinction (recognized even in "Footnote Four") between "fundamental rights" s.d.p. based on mere subjective ideas on liberty, and "fundamental rights" s.d.p. based on constitutional text.

    EDITED TO ADD: Didn't really mean to hate on Murdoch up there. As long as his mission in New York is to screw over the New York Times, we're on the same side.

    :: David M. Wagner 11:42 PM [+] ::

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