McDonald v. Chicago as Paradox

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 . . . .

Comments

[Patrick]

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.

[HenryB]

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."

[HoosierHawk]

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?