Monday, June 28, 2010

Victory! And Justice Alito Cited One Of My Law Reviews

The Supreme Court has handed down its decision, McDonald v. Chicago (2010).  As expected, the Court ruled that the Second Amendment is incorporated through the "due process" clause of the Fourteenth Amendment against state and local governments, because the Second Amendment is a fundamental human right.  Justice Thomas's concurrence argues that "privileges or immunities" is the more correct approach.

I am glad to see the law review paper by myself, Nicholas Johnson, and George Mocsary, "'This Right is Not Allowed by Governments That Are Afraid of The People': The Public Meaning of the Second Amendment When the Fourteenth Amendment was Ratified" cited by Justice Alito, in several places--and there are primary sources cited elsewhere in Alito's opinion that I am quite sure come out of that same law review.

I was amused to see even Justice Breyer's dissent citing my book Concealed Weapon Laws of the Early Republic.

Those of you who live in California, New York, Massachusetts, and some of the other gun-hostile states owe me one!  You can expect to see the most outrageous of the gun control laws in those states under fierce attack.  Once something is elevated to the status of a fundamental human right, it is not enough for the legislature to say, "We think this law is a good idea," or "We think this law will save lives."  Fundamental human right implies that at least intermediate scrutiny, and more likely, strict scrutiny, will be applied to such laws.


  1. Go you!

    I'd love to see you delve deeper into the decision and even the dissenting opinions.

  2. Congrats Clayton! Getting a mention in the majority opinion is no small thing. And by a dissent.

    Maybe NOW some publisher will look on you more favorably? You ain't just some Joe Blow-hard.

    By the way, how many cites does that make for you now? Wasn't there one in Heller too?

  3. Man, I'm about 50 pages in, and those last few have been doozies. If it's possible to be utterly Fisked in a Supreme Court decision, the Respondents really should be hiding their heads in shame (As well as Justice Stevens).

  4. Congrats for the cites,Clayton. I'm quite jealous.

  5. Two words:

    Thank you!

    This is a great victory, I think.

  6. If you ever visit Tucson again, the beer's on me.

  7. The MacDonald decision is 214 pages in PDF form. I read through the first 68 pages and realized that we the “people” are totally screwed by the political class and sure enough, the Chicago gauleiter Herr Daley has already begun the process outlined here.
    Such “victories” as this decision make Pyrrhus look like a brilliant tactician.

  8. Calm down. It isn't going to happen over night, but McDonald has just put a major obstacle in the way of many gun control laws. Defending any gun control regulation with either strict scrutiny or intermediate scrutiny as the test gets much, much harder.