Five Takes on McDonald v. Chicago

Law review article by Prof. Glenn Reynolds and Prof. Brannon Denning. I am most interested in their fifth take, which looks at what the lower courts are doing and will likely do with the case. It is not very optimistic, but not terribly pessimistic either. They conclude by saying:

Will the Heller and McDonald decisions herald another constitutional revolution where no one showed up? Probably not. To a much greater extent than the Commerce Clause issues addressed in Lopez, the Second Amendment involves questions and issues that inspire fierce passion in large numbers of Americans, and in well-funded organizations both equipped and inclined to pursue follow-up litigation in both state and lower federal courts. So in concluding that this is, at most, “the end of the beginning,” we do not mean to suggest that there will not be further battles – only that those battles will now be fought on terrain, and in fashions, that constitutional lawyers will find familiar.

And some of those well funded organizations have the political muscle to make sure friendly Presidents and Congresses put the right people on the Court. NRA needs to be able to demonstrate it can play the role of kingmaker when it comes to federal judges, which they can’t do without us.

The goal would be to make it such that any federal judge who wants to be elevated to a higher bench had better not have a weak record on the Second Amendment, either in opinions from the bench or in their writings. I would imagine that judges are like anyone else who’s ambitious in their careers, in that every Federal Magistrate imagines himself a District Judge, every District Judge images himself on the Circuit Court, and every Circuit Court Judge imagines himself on the Supreme Court. If bad rulings on the Second Amendment end up being a ticket to a dead end career on the federal bench, that might tame some of the more ambitious judges, and force them to take the right more seriously than they might otherwise be inclined.

I’ve generally been more impressed with SAF’s litigation strategy than I have been with NRA’s. However only NRA has the power to influence which judges end up on the bench or get elevated. Both roles are going to be critical moving forward, if we’re going to win a broad, well-protected right.