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Incorporating the Right to Bear Arms

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No big surprise, the right to bear arms recognized as an individual right in District of Columbia v. Heller is "incorporated" in the Fourteenth Amendment and made applicable to the states. The decision in McDonald v. City of Chicago is 5-4 on the practical outcome, divided along the predictable conservative-liberal lines.

On the theoretical question of whether it is the Due Process Clause or the Privileges or Immunities Clause that does the incorporation, Justice Alito's plurality opinion sticks with the traditional view of the Court's Warren/Burger-era precedents. Justice Thomas alone would go with the Privileges or Immunities approach. That approach is a better fit to the language and history of the Fourteenth Amendment but contrary to a lot of precedent. Justice Scalia goes along with Substantive Due Process based on the weight of precedent, but he grumbles a bit. He also crosses swords with Justice Stevens's dissent on fundamental issues of constitutional interpretation.

The majority portion of Justice Alito's opinion reiterates some good language from Heller on the importance of the right of self-defense.  (Use of force by the victim of crime, BTW, is the one issue of substantive criminal law where CJLF has filed briefs in support of defendants.)

The opinions and syllabus run 214 pages, so I expect to have more to say when I have a chance to read them in depth.

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"Detached reflection cannot be demanded in the presence of an uplifted knife."

Apparently, four SCOTUS Justices believe that states have the right to dictate to the people that they have to face uplifted knives unarmed. For all the rights that have been invented by the Courts, it's amazing that one with an explicit textual basis is rejected.

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