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79 Geo. Wash. L. Rev. Arguendo 1 (2010)

handle is hein.journals/gwargu79 and id is 1 raw text is: The Paradox of McDonald v. City of Chicago David S. Cohen* ABSTRACT On the last day of its 2010 Term, the Supreme Court issued the landmark decision of McDonald v. City of Chicago, holding that the Second Amend- ment is incorporated against state and local governments. On its face, the 5-4 decision is simple enough, as a majority of the Court concluded that the 2008 decision in District of Columbia v. Heller, which held that the Second Amendment protects an individual's right to own a handgun, applied to state and local governments, such as the city of Chicago, just as it applied to the federal government and its territories, such as the District of Columbia. How- ever, this simple statement of McDonald's holding masks a much more com- plicated reality-that its outcome, an instance of a rare phenomenon called a voting paradox, turned not on grand theories of constitutional law, history, or doctrine, but rather on the minutiae of Supreme Court vote counting. In fact, only because the Court reaches a conclusion based on each Justice's vote on the case's outcome, as opposed to voting on the case's individual issues, were the headlines following McDonald that gun rights prevailed and gun reg- ulation lost, rather than the other way around. This Essay explains why McDonald is an important example of a voting paradox. The Essay first walks through the opinions in McDonald and then places McDonald in the context of relevant social choice theory that models voting paradoxes on multimember judicial bodies. Having described how Mc- Donald fits into this literature, the remainder of the Essay discusses three sig- nificant lessons that come from viewing McDonald as a paradox. First, McDonald illustrates the importance of the Supreme Court's voting rules, which decide cases based on outcome voting. Second, McDonald is a lesson to litigators of the value of including additional arguments. Finally, McDon- ald shows the considerable role of precedent-in -flux in creating voting paradoxes. INTRODUCTION On the last day of its 2010 Term, the Supreme Court issued the landmark decision of McDonald v. City of Chicago,' holding that the Second Amendment is incorporated against state and local govern- * Associate Professor of Law, Earle Mack School of Law at Drexel University. Thank you to Daniel Filler and Max Stearns for talking through the ideas in this Essay. 1 McDonald v. City of Chicago, 130 S. Ct. 3020 (2010). November 2010 Vol. 79 Arguendo

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