Can McDonald Be Analyzed Using the Narrowest Grounds Rule from Marks v. United States?

In response to my recent posts about Monday's decision in McDonald v. Chicago as being a voting paradox, some of you may be wondering whether I'm making too big a deal about it.  After all, the Court issues splintered decisions not infrequently, and we have the "narrowest grounds" rule for handling such decisions.  Can't we analyze McDonald using that rule and leave all this talk of paradoxes behind?

No, we can't.  Here's why.  Marks v. United States is the 1977 case that established the "narrowest grounds" rule.  In Marks, the Court had to interpret a prior case about obscenity that did not have a majority opinion.  The Court stated:  "When a fragmented Court decides a case and no single rationale explaining the result enjoys the assent of five Justices, 'the holding of the Court may be viewed as that position taken by those Members who concurred in the judgments on the narrowest grounds . . . .'"  (The quote is from a three-Justice opinion in Gregg v. Georgia.)

Using this rule, we can often determine the holding of a splintered Court.  For instance, in Regents of the University of California v. Bakke, the Court split 4-1-4 on the issue of educational affirmative action under the Equal Protection Clause.  Four Justices said that it was unconstitutional in all instances.  Four Justices said that it was constitutional in most instances.  The one Justice in the middle was Justice Powell who rejected it in most instances except for when the plan was created to further diversity.  The narrowest grounds rule of Marks tells us that Justice Powell's opinion is controlling.

Why doesn't this rule then apply to McDonald?  Isn't Justice Alito's plurality opinion narrower than Justice Thomas' concurrence because Justice Thomas' concurrence would re-write the law on incorporation?

In order to apply Marks we have to understand what the Court means by "narrowest grounds."  As Max Stearns has so well articulated in an article advocating including Marks as a part of the first year constitutional law curriculum, the rationale behind Marks is that the opinion with the "narrowest grounds" is precedential because it is logically entailed by the opinion of enough other Justices to make a majority who agree on the point.  In Bakke, Justice Powell's opinion on diversity being a compelling reason for affirmative action is logically entailed by the opinion of the four Justices who believe that affirmative action is constitutional in a wide variety of circumstances.  Thus, his opinion is controlling on this point because it is, in essence, supported by a majority of the Court (even if the other Justices did not sign on to his opinion).

This same analysis is inapplicable in cases of the voting paradox.  Justice Thomas' opinion is not logically entailed by Justice Alito's (just like Justice Alito's is not logically entailed by Justice Thomas').  After all, they both completely reject each other's rationales, so there can't be any overlap.  This is true in all voting paradox cases -- the two positions that make up the majority vote on the outcome do not overlap and one does not logically entail the other.

To explain a slightly different way, if you think Marks might apply to McDonald, how can you say for certain which is the narrowest grounds opinion - Alito's or Thomas'?  Maybe Justice Alito's opinion is narrower because, as I suggested above, Justice Thomas' opinion would rewrite the law of incorporation.  But, maybe Justice Thomas' opinion is narrower because his rewriting of incorporation law would incorporate fewer rights and be a narrower rule.  A proper Marks analysis doesn't leave this question to guesswork.  Rather, the answer comes by looking to which rationale is logically entailed by broader reasoning.  In McDonald, that type of analysis is worthless because the rationales are, in the language of social choice theory, multidimensional.  This is in contrast to the positions in Bakke, which can be clearly lined up from narrower to broader, and are, again in the language of social choice, unidimensional.

Thus, Marks cannot apply to McDonald because there is no "narrowest grounds" implicitly agreed upon by the five Justices in the majority.   This is true in all voting paradox cases.

Comments

[Josh Blackman]

Very interesting post and great analysis of the Marks Rule. So the question remains, on remand to the 7th Circuit, what will Judges Posner, Easterbrook, and Bauer do with this? Knowing Posner and Easterbrook, the Court almost certainly will rely on the plurality approach of using Due Process. But if this issue is raised in different circuits, could other courts rely on privileges or immunities as the "most narrow ground." We shall see. I discuss those thoughts a bit more here http://joshblackman.com/blog/?p=4798

[David S. Cohen]

The answer on remand for this case is simple – the Seventh Circuit will treat the Second Amendment right recognized in Heller as incorporated against Chicago and apply Heller to Chicago’s gun law. It doesn’t have to deal with how the right is incorporated, because on remand it will only need to reason from the fact that it is in fact incorporated.

The trouble here will be when other courts address issues of incorporation in the future, such as for the civil jury right or unanimous criminal juries. Those courts, not bound by the actual outcome in McDonald, will have to figure out how to proceed. McDonald might be worthless for them, as there is no majority in support of the outcome that helps with incorporation.