While the Senate Judiciary Committee peppered U.S. Supreme Court nominee Elena Kagan with questions two weeks ago, the really important news happened at the Court itself. On Monday morning, June 28, the Court issued the most important fundamental-rights decision since 1973, when Roe v. Wade created the right to abortion. In McDonald v. City of Chicago, the Supreme Court for the first time ever applied the Second Amendment to state and local governments.
Certain to be lost in the discussion of McDonald is the fact that, as a peculiar consequence of the Court’s decision-making rules, Chicago, which lost the case, actually prevailed on each of the decisive issues needed to win. The outcome in this landmark decision, which will dramatically alter legal policy in vital urban centers, is less a function of grand theories of constitutional law than the inner workings of the Court.
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