About to head over to the Court. Chance of thunderstorms and an already-existing line shall not stop my final campout of the term.
After my obligatory “First” or “Not-so-First” photo up here, I will switch to my Twitter feed to send sporadic stati throughout the night.
Meanwhile, here’s a quick McDonald prediction based upon the oral argument:
- Roberts, Scalia, Kennedy, and Alito for full incorporation Heller‘s federal vision of the Second Amendment to the states via the Substantive Due Process doctrine. Maybe a few concurrences–Scalia explaining himself for why he’s accepted SDP, distinguishing its use for incorporation purposes as a matter of stare decisis while still hating on it as a tool for finding unenumerated constitutional rights; Kennedy, in response, trumpeting the “liberty” component of the Due Process Clause for protecting and incorporating both enumerated and unenumerated rights.
- Thomas concurring in the judgment for full incorporation via the Privileges or Immunities Clause of the Fourteenth Amendment, arguing that the Court missed its chance to overturn Slaughterhouse and right a longstanding constitutional wrong.
- Stevens concurring in part and dissenting in part, joined by Sotomayor, agreeing with the plurality to incorporate via SDP, but arguing for a more limited scope of incorporation allowing for the states for more breathing room in instituting gun control laws. Although Stevens was the lead dissenter in Heller, he will provide a final example of his “judicial conservatism” by abiding by stare decisis in recognizing the individual right to keep and bear arms. In doing so, however, he will work from the “inside” in a futile attempt to limit what he will present as the deleterious societal effects and misguided interpretive history of the Court’s prevailing gun rights jurisprudence. Sotomayor will sign because she joined the Court after the Heller decision and would therefore feel improper rejecting it outright.
- Breyer, joined by Ginsburg, dissenting, still protesting Heller.
That’s 7-2 for incorporation; 6-3 for incorporation via the Due Process Clause; 5-4 for full incorporation. Alito hasn’t yet written a majority opinion from the February sitting, so he’s due. But I wouldn’t be surprised if the Chief or Scalia end up as the author. Nor would I be surprised if any or all details of my prediction above, except for the 5-4 for full incorporation, will prove completely wrong.
Okay, it’s go time. If you’re in DC, come visit me–or, better yet, get in line!
I had been intending to take Professor Ginsburg’s Tax I class this coming fall as a capstone to my legal education. When I went to register and saw that his name was nowhere to be found, I figured he might have just taken the term off from teaching, as tenured titans may do from time to time. Turns out his absence was because of a much more serious reason.
A small anecdote: during my first year at Georgetown, I spotted H. Ross Perot’s name etched into the wall inside the entrance of McDonough Hall, the school’s main law building. I did some asking around to find out why he’d be a GULC benefactor. The answer? The Texas billionaire and former presidential candidate wanted to express his appreciation to Marty Ginsburg, his tax lawyer, for a job well done over the years.
My condolences to Justice Ginsburg and her family. I’ll be sitting shiva as I sit on the sidewalk tonight, convinced that Prof. Ginsburg is out there treating his friends old and new to a heavenly meal.