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My draft article on McDonald v. Chicago is up
Online at SSRN, and in circulation to law reviews. " McDonald v. Chicago: Fourteenth Amendment Incorporation, and Judicial Role Reversals." I start off with a note that in McDonald, the liberal wing turned conservative, and the conservative wing liberal, with the most liberal justice, Stevens, rejecting all of the Warren Court decisions, and one of the most conservative justices, Thomas, becoming heir to the (on this issue anyway) very liberal Justices Black and Douglas. That and Justice Scalia discovered that precedent can trump originalism, while the liberal wing discovered the virtues of judicial restraint.
I found the dissent very, very, weak, and point out a few problems with the plurality. I also try to resolve what may have been the unuttered concerns of the plurality with privileges or immunities incorporation.
Comments
That was a fun read on a rainy day.
Made me repeatedly think of the 1986 Hughes amendment to the FOPA, which is an outright ban on the manufacture and sale of new (manufactured after 1986) machine guns to the people.
This is a good starting point for repeal of a statute that bans an entire class of arms that is common use by both the militia and the individual citizen.
Posted by: Chuck at May 28, 2012 01:50 PM
Great article as well as a great case. It will be only a matter of time and court cases before the Hughes amendment goes into the ashcan of history.
Posted by: 475okh at May 28, 2012 03:51 PM
Great article! I hope it gets used in LOTS of cases. I also hope the 86 MG ban gets looked at and repealed. I also hope that the post office "ban" gets legislatively removed and our RIGHT to carry is recognized on ALL Federal (our) property.
Posted by: Fiftycal at May 28, 2012 04:34 PM
Why specifically did David's current article make you think of the Hughes amendment?
Posted by: Carl from Chicago at May 29, 2012 02:01 PM