McDonald v. Chicago Re-Redux

Last night, I made a post about the similarities between McDonald v. Chicago and the ACA lawsuits. Earlier today, Randy Barnett, who I mentioned is playing the role of Alan Gura in this drama, posted his thoughts on the recent Sixth Circuit decision. He opens with this paragraph:

“Volokh readers will remember when two widely-respected conservative Court of Appeals judges, Judge Easterbrook and Judge Posner were on a unanimous Seventh Circuit panel denying both the Due Process and Privileges or Immunities challenge to Chicago’s hand-gun ban. One year later, the Due Process challenge was upheld 5–4 in McDonald v. Chicago. My friend and current adversary, Walter Delliger said yesterdaythat the opinion by Judge Jeff Sutton to uphold the individual mandate “is a complete vindication of the constitutionality of the Affordable Care Act.” Not so fast. Sutton’s opinion was no surprise to anyone who was in the courtroom in Cincinnati. Nor would a contrary opinion have been surprising. Sutton was scrupulously critical of both sides that day. Indeed, his opinion shares the “on the one hand” and “on the other hand” character of his questioning. And it also bears some resemblance to Judge Easterbrook’s opinion in McDonald.”

I’m not the only one who sees that the cases are walking down the well-trod yet confusing path of McDonald. Seems like I can now upgrade from navel-gazing to armchair analysis…

  1. Good job Smurf.

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