This article examines the opinion of the Court in McDonald v. Chicago and its implications for the future. The author participated as a party-amicus in the case and an article he authored in 1993 was cited by the Court.
Using a concept that others have applied in other situations, this paper suggests that Chicago was a “outlier” and that this case simply involved reigning in a maverick outlier. While the paper finds Justice Thomas’s concurring opinion (with the exception of dicta on the establishment clause) being the most faithful to the meaning, intention, and public understanding of the 14th Amendment, it also notes that Justice Alito’s majority opinion is the most conservative approach because it follows established doctrine. While the conflicting opinions of Justice Scalia’s concurring opinion and Justice Stevens’ dissent will be perhaps be of interest from a jurisprudential standpoint, the paper sets them to one side as being little more than an articulation of the differences in personal views of the two justices. The manuscript faults Justice Breyer’s dissenting opinion for focusing upon the 2nd Amendment, rather than the actual issue before the court: the effect of the 14th Amendment.
The article also touches upon the problems that arise because the majority of the court has based the Constitutional right to act in self defense upon the 2nd Amendment rather than a variety of other approaches that have or could be taken. The Court’s approach calls into question what should not be a matter of Constitutional dispute: do people have a right to act in self defense if they are not using a gun? The paper also examines other related issues in the application of McDonald to new situations. In the end the author concludes that it is only the common sense of both the American people and their judges that can strike the balance between the right to recognize to McDonald and the important interest of public safety.
Akron Journal of Constitutional Law and Policy
Richard Aynes, McDonald v. Chicago, Self-Defense, the Right to Bear Arms, and the Future, 2 Akron Journal of Constitutional Law and Policy 181 (2011).