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June 28, 2010

SCOTUS decides Second Amendment applies to the states in 5-4 opinion

Here is the early report from SCOTUSblog on the long-anticipated McDonald Second Amendment incorporation decision:

Alito announces McDonald v. Chicago: reversed and remanded. Gun rights prevail.

The opinion concludes that the 14th Amendment does incorporate the Second Amendment right recognized in Heller to keep and bear arms in self defense.

Stevens dissents for himself. Breyer dissents, joined by Ginsburg and Sotomayor.

Here is more from the SCOTUSblog folks:

The majority seems divided, presumably on the precise standard.

The majority Justices do not support all parts of the Alito opinion, but all five agree that the 2d Amendment applies to state and local government.

Alito, in the part of the opinion joined by three Justices, concludes that the 2d Amendment is incorporated through the Due Process Clause. 

Thomas thinks the Amendment is incorporated, but not under Due Process. He appears to base incorporation on Privileges or Immunities.

The full opinion, which runs a full 214 pages, is available here.

June 28, 2010 at 10:07 AM | Permalink


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I've previously written that my interest in this opinion hinged on whether the analysis would apply to the unanimity requirement in criminal prosecutions, a right that hasn't previously been applied to the states and doesn't exist in Oregon and Louisiana. I don't expect to formulate an opinion anytime soon, but that won't stop the impulse to jump to quick conclusions as I read. I note the summary seems to suggest that incorporation is appropriate if the right is "fundamental to the Nation's scheme of ordered liberty . . . or whether it is deeply rooted in this Nation's history and tradition"

I imagine an argument could be made that unanimity falls rather easily into the second category.

Posted by: Ryan S | Jun 28, 2010 10:40:33 AM

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