Illustrating the McDonald v. Chicago Voting Paradox

Yesterday I wrote about viewing the Supreme Court's landmark decision of McDonald v. City of Chicago as a voting paradox.  I promised nifty charts and diagrams in a follow-up post, and I'll partially deliver today.

One way that I think is easy to see the paradox at work here is to look at the opinions in chart form.  Below is a convention that I first discovered in an article by Michael Meyerson, The Irrational Supreme Court.  I think this convention is a very easy way to see what's going on in a case's varying opinions.  The chart has a row for each opinion in the case with a parenthetical indicating the number of Justices who agree.  (I exclude Justice Scalia's separate concurring opinion because he fully joined Justice Alito's plurality.)

Opinion author and number of Justices joining	Does the Due Process Clause incorporate?	Does the Privileges or Immunities Clause incorporate?	Is the Second Amendment incorporated?
Alito (4)	Yes (4)	No (4)	Yes (4)
Thomas (1)	No (1)	Yes (1)	Yes (1)
Stevens (1)	No (1)	No (1)	No (1)
Breyer (3)	No (3)	No (3)	No (3)
Total	No (5-4)	No (8-1)	Yes (5-4)

The bottom line shows the tally for each issue and highlights the paradox.  The paradox arises because no individual Justice would vote according to the bottom line, as answering the first two questions “no” (concluding that the Second Amendment is incorporated neither through the Due Process Clause nor the Privileges or Immunities Clause), would lead to answering the third question “no” as well (concluding that the Second Amendment is not incorporated).  However, the Court as a collective entity can and did answer the first two questions “no” but the third, outcome-determinative question “yes.”

I'll continue tomorrow with more about voting paradoxes generally and some of the theory behind them.

Comments

[Alan]

So what precedent will lower courts follow? It is incorporated, so will lower courts get to decide than through which clause?