June 28, 2010
OKAY, having quickly skimmed the McDonald opinion, a few thoughts.
First, it’s 5-4. Though a pro-gun-rights opinion may pacify the gun-rights crowd to a degree, the closeness of these decisions is likely to keep them active in upcoming elections.
Second, it shows how little influence legal academics have. Virtually all of us have been saying that Slaughter House is lousy and that privileges or immunities should be far more significant, but only Justice Thomas was willing to go that far.
Third, it really is interesting how much emphasis the majority, and Justice Thomas’s concurrence, put on the racist roots of gun control. See this article and this one by Bob Cottrol and Ray Diamond for more background. And isn’t it interesting that this is happening on the same day the Senate’s last Klansman went to his reward?
Fourth, the Chicago law, being virtually identical to the DC law, is very likely to go down. The big question is, what comes next?
Fifth, and personally, I’d like to note that a lot of “respectable” commentators were, just a few years ago, calling the individual-rights theory of the Second Amendment absurd, ridiculous, and something that only (probably paid) shills for the NRA would espouse. (I’m talking to you, Garry Wills and Robert Spitzer, among others). Yet it is impossible to read this opinion, and the Heller opinion, and conclude that the individual right is really just a “fraud” concocted by the NRA. So were those who were saying so until quite recently being dishonest, or merely inexcusably ignorant?
UPDATE: On the other hand, I should note what Bob Cottrol said to me at the NRA convention after Heller: “We owe this to the open-mindedness of liberal law professors.” That includes people like Larry Tribe, and Sandy Levinson, whose 1992 Yale Law Journal essay, The Embarrassing Second Amendment, really kicked things off by signaling to the legal academy that it was okay to write about this. Also William Van Alstyne, for his essay The Second Amendment And The Personal Right to Arms.