McDonald v. Chicago: The Blockbuster of the 2009 Term?

Richard Aynes is a law professor at the University of Akron, and signed an amicus brief for the petitioners in McDonald v. Chicago.

Writing in anticipation of the Supreme Court’s decision in McDonald v. Chicago, U.S. Law Week referred to it as potentially being the “blockbuster” of the 2009 Term.

Considering all the alternatives, prudent people could imagine differing results, with shifts in votes, and a holding limiting the application of Heller. But after 10:00 am yesterday morning, the decision – with the benefit of hindsight – looks very predictable.   This 5-4 decision by Justice Alito features the same voting pattern by the same members of the Court as did Heller. In spite of other possibilities, those who predicted that Heller foretold the outcome of McDonald were good prophets.

Further, Justice Alito himself wrote for the majority that on the question of whether the second amendment is to be enforced against the states through the fourteenth amendment, “our decision in Heller points unmistakably to the answer.” (Majority at 19) (emphasis added).

The result in McDonald is of  great  magnitude  to many people  who judge the issue to be a far more important one than many of the  cases the Court frequently decides which must seem esoteric to most of the nation’s people. This is a case that large numbers of people care about and upon which there are strong disagreements.

At the same time, just as the gun control law of Washington, D.C.  was an outlier, so are the laws of the City of Chicago and the Village of Oak Park.  One way to view the decision is that the Court is, again, reining in outliers who are not only out-of-step with the nation, but also with the Constitution.    This view is consistent with Justice Alito’s opinion characterizing  as “most striking” the “paucity of precedent sustaining bans comparable to those at issue here…” (p. 39)

Surely, one of the tactical mistakes of the municipal Respondents in McDonald was trying to re-argue Heller. This was apparent from a simple reading of their brief.  As Justice Alito notes, their “argument are at war with our central holding in Heller.”   Indeed, in analyzing their argument, the majority characterizes the “implications of municipal respondents’ arguments“ as “stunning.” (p. 34).   If the municipal Respondents had any chance of mustering a five-person majority, they would have been wise to have embraced Heller.

One could say the same for the Justice Stevens and the other dissenters as well.  Of course, we do not know what the discussions were among the Justices and it may be that there was no hope of turning the Heller dissenters into a McDonald majority.  But if that were the case, it is also true that the dissent lacks the clarity and force of a John Marshall Harlan I dissent.

Yesterday Lyle Denniston’s post on SCOTUS outlined many unknowns about the future application of McDonald. Yet in many ways Justice Alito and those who voted with him were taking an incremental approach, reaching only the issues that were directly before the Court.  Had they done otherwise, their expression would be tarred as dicta and they would have been subject to criticism for reaching out to resolve issues not before them.

In the end, McDonald leads to many issues whose resolution we cannot predict. As with many events in life, the future is unpredictable.