McDonald, and the Voting Paradox:

Many years ago — 1992 to be precise — Steve Salop and I wrote a quirky little piece on something we called the “voting paradox.” It’s a minor, but very strange, little phenomenon in the law. The basic idea is quite simple. Suppose a 3-judge panel is hearing an appeal. In the appeal, the defendant — let’s assume it’s a criminal defendant who was convicted under a state nuisance statute — raises 2 issues: that the statute in question is unconstitutionally vague, or, in the alternative, an unconstitutional abridgement of the freedom of speech. Two of three judges, after due consideration, believe the statute is not unconstitutionally vague. Two of three judges believe the statute is not an unconstitutional abridgement of the freedom of speech. The defendant’s appeal, however, is successful and his conviction is overturned. How can that be?

The answer is pretty simple. The three judges divide this way:

Is the statute unconstitutionally vague?

Judge A NO

Judge B NO

Judge C YES

Is the statute a violation of the First Amendment?

Judge A YES

Judge B NO

Judge C NO

Two judges (A and C) will vote to overturn the conviction, and therefore they will prevail and the conviction will be overturned, even though “the court as a whole” thinks the statute is neitherunconstitutionally vague nor a violation of the First Amendment.

It’s an interesting problem, and a pretty knotty one when you start to look closely at it. First of all, what’s the “right answer” in the case? Given this distribution of reasoning among the three judges, what’s the “correct” outcome? Should the conviction be overturned, or not? Secondly, if the conviction is indeed overturned and the judges disclose their reasoning in an opinion (or several), how the hell do we interpret the result? Does this case “hold” that the statute is not unconstitutionally vague, and that it is not a First Amendment violation? [And if so, why isn’t the defendant in jail?]

Salop and I had some ideas about how to handle this problem (a number which, incidentally, I no longer think are valid . . .), but neither of us did much follow-up work on the problem after the paper came out. It turns out that the problem has spawned a little bloom of literature, and there’s now a fair bit of thinking about the problem out there (though I don’t think there’s a real consensus about how to deal with it).

I bring all this up now because over at SCOTUS, David Cohen asserts that McDonald v. City of Chicago represents an illustration of the paradox at work.

To illustrate this phenomenon, imagine explaining the result of the case in a different way. After stating the basic holding that the Second Amendment is incorporated, someone responds, “Interesting. How is it incorporated?” The answer to that question reveals the paradox.

Is it incorporated through the Due Process Clause? Well, no, it’s not, as a majority of the Justices concluded that the Due Process Clause does not incorporate the Second Amendment. The four dissenters (in two separate opinions) rejected the right as fundamental under Duncan v. Louisiana (1968). Justice Thomas, in his separate concurrence, rejected Due Process incorporation for non-procedural rights altogether. To be sure, the four plurality Justices believed that the Due Process Clause incorporated the Second Amendment, but they were in the five-four minority on this point.

Is it incorporated through the Privileges or Immunities Clause? Again, no, it’s not, as a majority of the Justices rejected that claim as well. The plurality of four refused to revisit the Slaughter-House Cases (1873) or United States v. Cruikshank (1876) (on the Privileges or Immunities question), and the four dissenters also rejected this claim. Only Justice Thomas endorsed overturning Slaughter-House and reinvigorating the Privileges or Immunities Clause as the mechanism for incorporation. However, he was in the eight-one minority on this issue.

Thus, even though, as we all now know, the Second Amendment is in fact incorporated against state and local governments, a majority of the Court rejected incorporating it through the Due Process Clause and a majority of the Court rejected incorporating it through the Privileges or Immunities Clause.

I haven’t actually read the opinions yet, so I can’t vouch for Cohen’s characterization myself. These cases have a tendency to become interpretive nightmares as courts and commentators try to parse through the meaning of the paradox, so if his characterization is correct, I predict that you Con Law types are in for a bit of a rough ride on this one.

[Thanks to Chaim Gordon for the pointer]