Could McDonald v. Chicago Be Narrowed?

McDonald is an example of what you can call a voting paradox. Why? Because despite the fact that Chicago won on both its arguments, it still lost the case. Won on both it’s arguments? Has Sebastian lost his mind? Well, yes, a long time ago, but let me explain. Chicago argued that the Second Amendment was not applicable to the states because of the Privileges or Immunities clause. It won that argument 8-1. It also argued that it was not applicable via the Due Process clause either. It won that argument 5-4. But it still lose the case because Thomas concurred in judgement. The Supreme Court, in the case of Marks v. US created a rule to attempt to deal with plurality decisions. David Cohen, over at The Faculty Lounge, gives us some analysis of McDonald and the Marks rule, and determined it can’t apply to the decision. Interesting. I’m not sure I fully understand what the implications are, but interesting.

One thought on “Could McDonald v. Chicago Be Narrowed?”

  1. Did Thomas specifically rule that the Second Amendment is not incorported under the Fourteenth Amendment, or did he merely rule that it was incorporated under P or I? Though I guess that doesn’t change your argument, since Chicago could have “won” DP incorporation 4-4, as a tie goes to the party who won in the lower court decision.

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