This is one of the most consequential days at the Supreme Court in a long time, and we will have much to write about. But first, I want to raise a pressing question about McDonald v. Chicago. Is the precedential force of today’s ruling—holding that the right to keep and bear arms is judicially enforceable against state and local governments—significantly weakened by the absence of a majority of the court on any one theory? Only four justices (Chief Justice Roberts and Justices Scalia, Kennedy, and Alito) agree that the Due Process Clause of the 14th Amendment “incorporates” the Second Amendment and makes it applicable to state and local governments. Only Justice Thomas believes that the Privileges and Immunities Clause of the 14th Amendment provides gun rights against the states. Together they make a majority to reverse in this particular case. But is this result entitled to stare decisis effect? Should subsequent justices consider it binding? Or is it a negative precedent in the sense that the five justices reject Alito’s due process theory and eight justices reject Thomas’s Privileges and Immunities approach? (Is “rejection” a fair characterization?) Would a subsequent justice be justified in saying that because there is no majority position on either constitutional approach, there is no ruling in this case entitled to future deference? Paul, you successfully argued this case for the NRA. Is there an opinion you can express?
I want to think about this issue of precedential effect a good bit more before offering an opinion. And there is much, much more to digest in today’s rulings.