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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, July 13, 2010 ::
    Back to McDonald v. Chicago

    The crucial passage in the plurality section of the opinion (the critical holding -- that the 2nd Amendment applies to the states through the 14th and disallows a ban on personal possession of handguns -- is of course a holding of the Court) dealing with the Privileges or Immunities Clause is, I think, this:
    [P]etitioners are unable to identify the Clause’s full scope, Tr. of Oral Arg. 5–6, 8–11. Nor is there any consensus on that question among the scholars who agree that the Slaughter-House Cases’ interpretation is flawed. See Saenz, supra, at 522, n. 1 (THOMAS, J., dissenting).

    We see no need to reconsider that interpretation here. For many decades, the question of the rights protected by the Fourteenth Amendment against state infringement has been analyzed under the Due Process Clause of that Amendment and not under the Privileges or Immunities Clause. We therefore decline to disturb the Slaughter-House holding.
    Now, as an explanation for those who belong to the admittedly-existing consensus that Slaughterhouse is a pile of [RRRRRRING! Hello? Yes, Dean! Yes, sir? Oh yes, I got your memo about language on the blog. Yes, I'll be more careful. Yessir. Thank you. Yes. You too, sir. Bye.] a pile of nonsense, this clearly will not do. [Paraphrasing:] "Petitioners and commentators can't specify the P/I clause's full scope, so we can't -- on the precise facts of this case that don't require us to determine its full scope -- correct what we ourselves virtually acknowledge to be grave error on our part." Fail.

    But at the same time, I stand by my earlier view that this is not a slamming of the door on the 14th Am P/I Clause. Let's say Slaughterhouse is a dude, OK, and the Court's a chick, and Slaughterhouse is "in a relationship" with the Court, which it kind of is, in the sense that it's "good law" in the technical sense. Well, wouldn't you advise it to start hedging its bets? It may that only Justice Thomas wants to throw it over, but I'm not sensing any passion from the plurality -- just a disinclination to go through a messy breakup right now.

    The option to go through Due Process rather than P/I renders the post-Slaughterhouse 2nd Am cases that were argued and decided under P/I, against applying the 2nd Am to the states, are not technically overruled but are rendered perfectly irrelevant, and are thus virtually overruled.

    Funny thing about overruling. Sometimes the Court declines to overrule a precedent explicitly, yet adopts a holding that puts the precedent(s) onto the museum-shelf. Think Brown => Plessy. And McDonald => Cruikshank, Presser, and Miller. And sometimes the Court trumpets to the heavens that it's overruling a precedent, yet fails to adopt a holding that is plainly irreconcilable with anything that was plainly held in the precedent. As examples of this, I'm thinking about (though the matter is of course debatable) Barnette => Gobitis, and Lawrence => Bowers.

    Long story short, I'd say Cruikshank, Presser, and Miller are now at least as overruled as Plessy.

    :: David M. Wagner 8:17 PM [+] ::

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