Thoughts on the McDonald Argument

Gerard Magliocca

Gerard N. Magliocca is the Samuel R. Rosen Professor at the Indiana University Robert H. McKinney School of Law. Professor Magliocca is the author of three books and over twenty articles on constitutional law and intellectual property. He received his undergraduate degree from Stanford, his law degree from Yale, and joined the faculty after two years as an attorney at Covington and Burling and one year as a law clerk for Judge Guido Calabresi on the United States Court of Appeals for the Second Circuit. Professor Magliocca has received the Best New Professor Award and the Black Cane (Most Outstanding Professor) from the student body, and in 2008 held the Fulbright-Dow Distinguished Research Chair of the Roosevelt Study Center in Middelburg, The Netherlands. He was elected to the American Law Institute (ALI) in 2013.

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4 Responses

  1. Chris says:

    With regard to #1, Justice Sotomayor asks on pp. 4-5 of the transcript whether “ordered liberty” has been badly affected by the Court’s refusal to incorporate through the Privileges and Immunities Clause. That likely explains Scalia’s reference.

  2. Phil Nuejahr says:

    Not sure that we could have expected much more out of Justice Stevens. Thanks for your thoughts and the update!

  3. Ben says:

    Won’t the outcome depend more on how Kennedy votes? I think we all know how the others are going to come down on this.

  4. Ken says:

    >>1. One amusing moment was when Justice Scalia asked whether the right to bear arms is “implicit in the concept of ordered liberty,” the test from Cardozo’s opinion in Palko v. Connecuticut, and pointed out the most nations don’t guarantee gun rights. That was a criticism of the Palko test, but I thought were weren’t supposed to look at foreign law to interpret the Constitution.>>

    I think Justice Scalia’s rhetorical question was not meant to introduce foreign law into interpretation of our Constitution, but rather to clarify (or limit) “implicit in the concept of ordered liberty.” It is a factual/logical argument, not a legal argument, to point out that other nations with “ordered liberty” do not guarantee gun rights, thus demonstrating that gun rights are not a necessary condition for “ordered liberty.”