What McDonald Means for Unenumerated Rights

In June a splintered Supreme Court held in McDonaldv. City of Chicago that the Second Amendment applied tostate and local governments. But the case was about much more than handguns. It presented the Court withan unprecedented opportunity to correct its own erroneousprecedent and revive the Fourteenth Amendment'sPrivileges or Immunities Clause.

The plurality declinedthe offer not, as Justice Alito's opinion suggested, out of aprofound respect for stare decisis, but rather because atleast four Justices like the consequences of that ancienterror, especially insofar as unenumerated rights areconcerned. This observation in turn raises questionsabout interpretative method and the Court's fidelity to thewritten Constitution.