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July 01, 2010


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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

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.

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