Search the Lounge


« Welcome Guest Blogger David Cohen | Main | Supreme Court Round Up At The Glom »

June 28, 2010


Feed You can follow this conversation by subscribing to the comment feed for this post.


Further proof that incorporation doctrine is a battleground of illogic, the same way that milk proved to be the great battleground of the Commerce Clause.

A similar thing happened with respect to incorporating the Sixth Amendment jury right, in Apodaca v. Oregon. Five Justices concluded that the Sixth Amendment requires fedral jury verdicts to be unanimous. All nine Justices concluded that the Fourteenth Amendment incorporates the Sixth Amendment against the states.

Just as in McDonald, the Petitioners in Apodaca won both their arguments -- the Court agreed that the Sixth Amendment requires unanimous verdicts, and that the Sixth Amendment is incorporated. Yet the case's holding? That the Federal Constitution permits states to convict with less than unanimous verdicts (which Oregon, Louisiana, Puerto Rico, and - in a more limited sense, Oklahoma - do to this day). Much like McDonald, the result can be attributed to a highly nuanced - and arguably quirky - approach to stare decisis by one Justice (Powell in that case, Alito in today's).

Much abstract work can be (and is) done trying to locate the force of that precedent. Familiar rules like narrowest grounds don't seem to help. But nobody really doubts what the case means: states can convict with less than unanimous jury verdicts. Methinks McDonald will turn out the same way.


Actually, J. Thomas did not assert that the Due Process clause does not incorporate the 2nd Amendment. Instead, he stated that an more straightforward conclusion would use the Privileges or Immunities Clause. He made no other statement about the Due Process clause.

frederick edwards

I carry a gun because a cop is too heavy to carry.

bobby b

Only if the cop isn't your brother.

Steve White

I do not understand one thing about incorporation via Due Process: why is it that the other amendments in the Bill of Rights merit this, but the 2nd would not? I assume that the justices who said that the 2nd does not merit incorporation firmly believe that (for example) the 1st does.

Why is that?

I've not seen an explanation of this on any legal blog or website. Am I the only one who doesn't know?

Jack of Spades

Takes too long to draw a cop.

David S. Cohen

HenryB - Justice Thomas is quite clear on this point in his very first page. He rejects incorporation through the Due Process Clause for any part of the Bill of Rights: "But I cannot agree that it is enforceable against the States through a clause that speaks only to “process.”" He later says, on page 8, after discussing the history of Due Process incorporation: "I cannot accept a theory of constitutional interpretation that rests on such tenuous footing."


Only a law professor could reach the conclusion that Chicago "won" both it's agruments, but lost the case. Chicago's argument was that the gun ban was constitutional.

They lost. While differnet justices may have taken different paths to that conclusion, or have had differnet justifactions - the ruling is that the 2nd Amendment applies to the states as well. It's not an aberration.

David Fryman

Prof. Cohen, I don't know why my trackback feature isn't working but I responded to your post on my blog.

K Crary

Well, if my client really was confused by this result, I'd start by explaining the difference between AND and OR.

 jordan 11

Mishaps are like knives that either serve us or cut us as we grasp them by the handle or blade. Do you understand?

The comments to this entry are closed.


  • StatCounter
Blog powered by Typepad