McDonald v. Chicago May Not Be a Landmark Case

I am sure there will be much more analysis of McDonald v. Chicago, but I thought I would highlight some early thoughts on the case. First up is Kurt Hoffman, St. Louis Gun Rights Examiner in First Impressions about McDonald v. Chicago. Hoffman thinks we will win our basic argument, that the Second Amendment applies to States and municipalities, but don't get excited and start planning the purchase of an M4 just yet.

Then, there is our own Charlotte Gun Rights Examiner, Paul Valone's take on the case that
Incorporation is a Distinction Without a Difference. The Court seems unwilling to reverse the Slaughterhouse Cases because they have been with us a long time. Doing so, however, would open the door to incorporation through the "privileges and immunities" clause rather than through the narrower "due process" clause. I can understand the reluctance on the part of the Court, but if the cases were wrongly decided, as it appears they were, then the Court has a duty, it seems to me, to strike them down. But then, I am not a lawyer. If on the other hand, they do not strike them down because of a fear that some other cases dear to conservative hearts will go down with them, the Court is guilty of conservative judicial activism as bad as liberal judicial activism. To do that is to cede the "living document" argument to the progressives. The restoration of the Constitution can not be accomplished by fiddling with it to make it more conservative, but only by an honest interpretation of what the Framers meant when they wrote it.

Most interesting of all is Dave Hardy's comments on the case at
Of Arms and the Law. As with Heller, Dave Hardy was involved in putting the legal arguments together, and he was at the Supreme Court to hear the oral arguments. I found Straightarrow's comment to be most on point:

I am opposed to the use of the 14th amendment, Hell, I'm opposed to the amendment. The rest of the constitution is crystal clear, and every state had to agree to abide by it to become a state. The 14th says "you gotta do watchya said ya wud do, but if ya don't, hey, we got nothin'. anyway we may not like some parts of liberty under the rest of the constitution so, we'll use the 14th like a chinese restuarant menu."

It's a pretty sorry state of affairs when reliance on a subsequent amendment is required to honor the original plain as day "shall not be infringed" amendmnent. Yeah I know we should feel fortunate that we are getting a second bite of the apple. And I would, if I didn't recognize the fact that like the Heller decision, this one too is subject to be only correct enough to forestall armed insurrection without really dismantling any of those prohibited infringements.

Later comments made the point that McDonald would be only a "first step" and that other cases would hopefully flesh it out.

My own take? In order to get the fifth vote to win this point, the justices can not go too far. But I also believe that there is an element within the Court that sees itself as the maintainers of authority. That is an ugly side, to be sure.