By Mark Tushnet, William Nelson Cromwell Professor of Law, Harvard Law School
McDonald v. City of Chicago puts the Court's conservatives to a choice: Guns or federalism? Today's conservatives say that the Constitution makes both of them important but so far they haven't come up with a decent account of why one or the other should prevail, and I don't think they can.
The Rehnquist Court engaged in a modest "Federalism Revolution," and some conservative scholars were annoyed when the Court went with drug laws instead of federalism in upholding the national ban on the use of marijuana for medical purposes in Gonzales v. Raich. These cases might be described as dealing with national power exercised by Congress, and of course no national statute is involved in McDonald. But when the Court has discussed each of the constitutional provisions available as a basis for striking the Chicago ordinance down, it has noted their implications for federalism. In the Slaughterhouse Cases, the Court rejected an expansive interpretation of the Privileges or Immunities Clause - the one some conservatives are asking the Court to adopt in McDonald - because, it said, such an interpretation would authorize Congress to use the Fourteenth Amendment's fifth section to enforce a new and large set of rights. And, Justice Potter Stewart once described the Due Process Clause as part of a vast expansion of national power - legislative and judicial - during Reconstruction.
Were conservatives truly concerned about federalism, they might want to think twice about their position in McDonald. Winning the case, particularly on Privileges or Immunities grounds, would give Congress a lot more power than they think it ought to have. And it should be obvious, although it hasn't been a major part of the discussion of McDonald that striking down the Chicago ordinance is an example of judicial activism as conservatives usually define it when questioning Supreme Court nominees. (Saying that we shouldn't worry about expanding congressional power by expanding the Fourteenth Amendment because the Court is always ready to strike down congressional statutes on federalism grounds simply reinforces the conclusion that McDonald will expand judicial power - and betrays an odd confidence, from conservatives, in the courts.)