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June 24, 2010

Mark your calenders for Monday, June 28, Second Amendment fans

With the release of a ruling in Skilling and the other honest services cases (basics here) and also a fascinating AEDPA habeas ruling in Magwood (basics here), criminal justice fans now only await one final decision from the Justices this Term.  But it is a doozy: the McDonaldSecond Amendment incorporation case concerning state and local restrictions on gun rights.  And according to the Court, that opinion will be handed down on Monday, June 28, which will be the last day of the SCOTUS Term.

Based on the authorship of the opinions that have been handed down, the folks at SCOTUSblog predict that Justice Alito is the main author of the main opinion in McDonald.  That prediction should make criminal justice fans especially eager and excited to learn on Monday what the Court says about the Second Amendment and the impact of Heller on the states.  As the only former prosecutor in the Heller majority, I suspect Justice Alito may be more attentive than some other Justices to the potential echoes of Heller and now McDonald for state criminal justices systems.

Anyone dare to predict the outcome and voting patterns in McDonald?  Anyone think I am foolish to hope (and/or fear) that McDonald will turn out to be the biggest and most consequential criminal justice decision of the Term?  Anyone think there is a chance that selective incorporation (an idea I pitched in this McDonald amicus brief could carry the day).

June 24, 2010 at 11:34 AM | Permalink


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I imagine there will be particular interest in the analysis -- and whether your argument is adopted -- in Oregon and Louisiana. If the court incorporates 2nd Amendment protections, how they get there will either raise or dash hopes for incorporating the unanimity requirement in criminal jury trials.

Posted by: Ryan S | Jun 24, 2010 1:26:27 PM

Just my guess, from a non-legal society perspective. I'm think 5-4, same line-up as Heller. The only reason I think this is Alito is likely to write the decision. Would Stevens, Breyer, or Ginsburg have passed on the opportunity to write the majority opinion for this case? I think it unlikely.

Posted by: ihate2fly | Jun 24, 2010 8:24:43 PM

I am looking forward to see how much of the dicta in Heller is adopted. Everyone (including federal judges) assumes that the dicta in Heller concerning felon in possession, drug user in possession...etc is law. It is not, it was dicta. How they define the right in McDonald will go a long way in 922 and 924 prosecutions and defenses. I think Chicago's gun ban is dead (as I think they will find a 14th amendment right). what they will allow the states or federal government to restrict the right is the issue.

Posted by: bryan | Jun 25, 2010 2:38:46 PM

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