Caseflicks

Supreme Court of the United States • 2010

McDonald v. City of Chicago

561 U.S. 742 | 130 S. Ct. 3020 | 177 L. Ed. 2d 894 | 2010 U.S. LEXIS 5523 | 22 Fla. L. Weekly Fed. S 619 | 78 U.S.L.W. 4844

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Takeaway

In short, McDonald held that the Second Amendment right to possess a handgun in the home for self-defense applies to state and local governments through the Fourteenth Amendment, while leaving room for many longstanding firearms regulations.

Background

After District of Columbia v. Heller recognized an individual Second Amendment right to possess a handgun in the home for self-defense, Otis McDonald and other Chicago residents challenged Chicago’s firearm ordinances. Chicago required firearm registration but generally refused to register handguns, effectively barring most private residents from possessing them. McDonald, who lived in a high-crime neighborhood and had received threats connected to his community activism, wanted to keep a handgun at home for protection. Related suits challenged a similar Oak Park handgun prohibition.

The Federal District Court rejected the challenges because Seventh Circuit precedent had previously sustained a handgun ban, and Heller had expressly reserved the question whether the Second Amendment applied to the States. The Seventh Circuit affirmed, treating United States v. Cruikshank, Presser v. Illinois, and Miller v. Texas as controlling. Although it recognized that those decisions rested on outdated reasoning, the court held that it was bound by them unless the Supreme Court changed the law.

Issues

Issue #1

Whether the Court should overrule the Slaughter-House Cases and hold that the Privileges or Immunities Clause itself applies the Second Amendment to the States.

Holding

No. The Court declined to reconsider Slaughter-House and did not rest its judgment on the Privileges or Immunities Clause.

Reasoning

The Court acknowledged substantial scholarly criticism of Slaughter-House, which had read the Privileges or Immunities Clause narrowly and limited it largely to rights of national citizenship. But the petitioners could not identify a settled, administrable account of the Clause’s full scope, and the Court saw no need to reopen that foundational precedent in order to decide this case.

Cruikshank, Presser, and Miller had said that the Second Amendment restricted only the Federal Government, but they did not resolve the modern Due Process incorporation question. They predated the Court’s selective-incorporation doctrine, under which many Bill of Rights guarantees have become enforceable against the States through the Fourteenth Amendment. Thus, those cases did not prevent the Court from considering incorporation through due process.

Issue #2

Whether the Fourteenth Amendment’s Due Process Clause incorporates the Second Amendment right recognized in Heller.

Holding

Yes. The Fourteenth Amendment makes the Second Amendment right to keep and bear arms for lawful self-defense fully applicable to the States.

Reasoning

The Court applied the established incorporation test: whether the asserted right is fundamental to the Nation’s scheme of ordered liberty or deeply rooted in the Nation’s history and tradition. Under modern doctrine, an incorporated Bill of Rights guarantee generally applies against state and federal governments by the same standard.

Heller identified individual self-defense as the central component of the Second Amendment right. The Court reasoned that the need to defend oneself, one’s family, and one’s home is basic, and that handguns are the firearms most commonly selected by Americans for lawful home defense. That made the right recognized in Heller a strong candidate for incorporation.

History confirmed that conclusion. The Court traced the right to English legal tradition, the colonial and founding eras, early state constitutional protections, and nineteenth-century legal commentary. In the Court’s view, both Federalists and Anti-Federalists treated the right to keep and bear arms as an important safeguard of liberty, even though they disagreed about whether the original Constitution adequately protected it.

The Reconstruction-era evidence was especially important. After the Civil War, Southern governments and private groups systematically disarmed freed Black Americans, leaving them vulnerable to violence. Congress responded through the Freedmen’s Bureau Act, the Civil Rights Act of 1866, and ultimately the Fourteenth Amendment. The Court concluded that the amendment’s framers and ratifiers regarded the right to keep and bear arms as a substantive, fundamental right—not merely a right to be free from racially discriminatory gun laws.

Chicago’s argument that a right is incorporated only if every civilized legal system recognizes it was incompatible with settled incorporation doctrine. Many rights protected in American criminal procedure are not universally recognized abroad, yet they are incorporated. The relevant inquiry is whether the right is fundamental in the American constitutional tradition, not whether other nations regulate it differently.

The Court also rejected the claim that federalism and local experimentation justified a special, weaker incorporation rule for the Second Amendment. Incorporation always limits state experimentation to some degree. Once a Bill of Rights guarantee is found fundamental, states remain able to enact reasonable regulations, but they may not eliminate the constitutional core of the right.

Issue #3

What effect incorporation has on Chicago’s handgun ban and on other firearms regulations.

Holding

Chicago’s categorical prohibition on possessing handguns in the home for self-defense cannot stand under the incorporated Second Amendment, but incorporation does not invalidate all firearms regulations.

Reasoning

Because Heller held that the Second Amendment protects possession of a handgun in the home for the core lawful purpose of self-defense, Chicago could not defend its effective handgun ban on the ground that the Second Amendment did not apply to the States. The Court reversed the Seventh Circuit and remanded for further proceedings consistent with that holding.

The Court repeated Heller’s limiting language. The right is not a right to keep and carry every weapon, in every place, for every purpose. Heller had identified presumptively lawful longstanding regulations, including restrictions on firearm possession by felons and persons with mental illness, restrictions in sensitive places such as schools and government buildings, and conditions on commercial firearm sales.

Concurrences

Justice Scalia

Reasoning

Justice Scalia joined the Court’s opinion. He wrote separately because, although he had originalist objections to substantive due process, he accepted selective incorporation as long established and narrowly confined doctrine. In his view, applying that settled doctrine was sufficient to incorporate the Second Amendment right.

He strongly criticized Justice Stevens’s proposed liberty-based approach. Justice Scalia argued that an open-ended inquiry into autonomy, dignity, and evolving social values leaves judges free to select the rights they personally favor. A historically grounded approach, though not perfectly mechanical, better constrains judicial discretion and leaves unrecognized rights to the democratic process.

Justice Thomas

Reasoning

Justice Thomas agreed that the Second Amendment applies to the States, but rejected the plurality’s Due Process Clause rationale. In his view, a clause requiring “due process” cannot plausibly be the source of substantive restrictions on state legislation. The more textually and historically faithful route runs through the Privileges or Immunities Clause.

Justice Thomas maintained that ordinary citizens who ratified the Fourteenth Amendment would have understood “privileges or immunities of citizens of the United States” to include constitutionally enumerated rights, including the right to keep and bear arms. He relied on the language of the Clause, antebellum usage of “privileges” and “immunities” as synonyms for rights, congressional debates, Reconstruction legislation, and contemporary public commentary.

In particular, Justice Thomas stressed the postwar disarmament of freed Black citizens. The protection of their ability to defend themselves against state-supported and private violence, he concluded, was a central purpose of the Fourteenth Amendment. He would reject Cruikshank’s contrary reading and enforce the right as a privilege of American citizenship.

Dissents

Justice Stevens

Reasoning

Justice Stevens argued that the case should be analyzed as a substantive due process claim, not as mechanical incorporation of the Second Amendment. The Fourteenth Amendment’s protection of liberty, he maintained, can protect interests found in the Bill of Rights but does not necessarily give those interests identical scope against the States and the Federal Government.

In his view, the asserted interest was narrow: keeping a handgun or other chosen firearm in the home. That interest had genuine force because the home receives special constitutional protection and firearms may aid self-defense. But he concluded that it was not sufficiently fundamental to justify a nationwide, judicially imposed constitutional rule.

Justice Stevens emphasized that firearms uniquely threaten the liberty and physical security of others. Because guns can be used for lawful self-defense but can also facilitate suicide, accidental injury, and violent crime, a legislature may reasonably conclude that restrictions serve public safety. He distinguished this interest from personal liberties involving family life, bodily integrity, conscience, and intimate relationships.

He also stressed federalism. States and cities have long regulated weapons, conditions vary sharply among localities, and elected officials are better positioned than courts to balance contested empirical evidence about gun regulation. In his view, Chicago’s policy should remain subject to democratic revision rather than constitutional invalidation.

Justice Breyer

Reasoning

Justice Breyer, joined by Justices Ginsburg and Sotomayor, agreed with Justice Stevens that the Fourteenth Amendment did not incorporate a general private right to possess firearms for self-defense. He argued that the Second Amendment’s original militia-related purpose did not establish that a private handgun right is fundamental for incorporation purposes.

He criticized the majority’s reliance on contested historical evidence. In his view, the historical record showed extensive firearm regulation from the founding through Reconstruction and beyond. At most, it showed acceptance of a right subject to reasonable police-power regulation, not a deep national consensus against laws such as Chicago’s handgun ban.

Justice Breyer also argued that incorporation was especially inappropriate because firearms regulation lies at the core of state police power and requires difficult empirical judgments. Courts would have to assess the effects of particular restrictions on crime, accidents, suicide, self-defense, and public safety—questions legislatures can investigate more effectively and answer through democratic accountability.

Finally, he emphasized the diversity of local conditions and regulatory judgments. Cities with dense populations and serious gun violence may reasonably reach different conclusions from rural communities with different traditions of firearm use. The Court’s decision, he warned, unnecessarily transferred these policy choices from state and local democratic institutions to federal judges.