Thanks Dan for letting me join this great community to share some thoughts with you. Today, like many constitutional law professors, I'm thinking about the Second Amendment. But my thoughts are probably a little different than most others.
Certain to be missed in the coverage of today’s decision in McDonald v. Chicago, the Supreme Court decision that incorporates the Second Amendment against state and local governments, is the fact that the City of Chicago actually won both of its arguments . . . yet, it lost its case.
How is this possible? Chicago has a phenomenon called the voting paradox to thank, in particular a very specific instance of it that I have written about before called the precedent-based voting paradox.
To understand the paradox, think of the two arguments Chicago made to the Supreme Court. First, Chicago argued that the Second Amendment is not incorporated via the Fourteenth Amendment’s Due Process Clause. Five of the nine Supreme Court Justices agreed with Chicago on this point -- Justice Stevens in his lone dissent; Justices Breyer, Ginsburg, and Sotomayor in Justice Breyer’s dissent; and Justice Thomas in his concurrence in the result. To be fair, Justice Thomas had a different reason for agreeing with Chicago than the others, but he ultimately agreed that the Due Process Clause does not incorporate the Second Amendment.
Second, Chicago argued that the Second Amendment is not incorporated via the Fourteenth Amendment’s Privileges or Immunities Clause. This argument was based on the 1873 Slaughter-House Cases, which seriously restricted the meaning of that clause. Although that decision has been criticized from all quarters, the Court has stuck to it, including eight Justices today. Those Justices relied on the Slaughter-House Cases, as well as the 1876 case of United States v. Cruikshank, which specifically said that the Second Amendment was not incorporated pursuant to the Privileges or Immunities Clause. The four Justices in the plurality stated that they “decline[d] to disturb” Slaughter-House, and the four dissenters followed the case as well. Only Justice Thomas argued for overturning Slaughter-House, saying that he “reject[s]” the case. He had more damning words for Cruikshank, saying that it “is not a precedent entitled to any respect.”
Thus, Chicago won 5-4 on its Due Process Clause argument and won 8-1 on its Privileges or Immunities Clause argument. Yet all the headlines are about a victory for gun rights.
A full explanation of how this happens is beyond the scope of this short post, but the short answer comes from the field of social choice. Social choice studies the difficulty of aggregating individual preferences. Because the Supreme Court is made up of individual Justices with individual preferences but has to reach an aggregated result, sometimes paradoxes occur in which the results on the individual issues do not correspond to the result on the outcome. This can occur when the Court, without a majority opinion, reaches two (or more) issues that are sufficiently unrelated and when no one issue garners a majority result consistent with the outcome of the case.
I'll have more to say about McDonald and the voting paradox tomorrow, including some nifty charts and diagrams. But for now, what McDonald illustrates is the power of this paradox. Chicago wins its arguments, but it loses its case.
Imagine being the lawyer for Chicago trying to explain this to your client . . . .