U.S. Supreme Court Decisions in the 2nd Amendment Cases of McDonald v. Chicago & D.C. v. Heller
McDONALD v. CHICAGO (08-1521)
Whether the Second Amendment right to keep and bear arms is incorporated as against the States by the Fourteenth Amendment’s Privileges or Immunities or Due Process Clauses.
May a state or local government ban possession of handguns in light of the Second Amendment’s right to keep and bear arms?
Facts Of The Case:
The Second Amendment reads: “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.” U.S. Const. Amend. II. In District of Columbia v. Heller, 128 S.Ct. 2783 (2008), the Supreme Court held that the Second Amendment secures for individuals the right to keep and bear arms, including handguns, for the purpose of self-defense. See id. at 2821–22. Although the Heller Court held that the right to bear arms was not unlimited, the Court did strike down two Washington D.C. gun control laws in effect at the time. See id. The Washington D.C. laws did not ban handguns outright, but effectively reached that result by making the possession of an unregistered firearm a crime, and making the registration of handguns illegal. See id. at 2788. The Heller Court also struck down a Washington D.C. law that required that all lawful firearms kept in the home be either disassembled or trigger-locked. See id.
On June 26, 2008, one day after Heller was decided, Petitioners, McDonald, et al. (“McDonald”), brought lawsuits in the Northern District of Illinois against Respondents, City of Chicago and Village of Oak Park (“Chicago”), challenging municipal laws similar to the federal laws struck down in Heller. See McDonald v. Chicago, 2008 WL 5111112 at *1 (N.D. Ill. 2008). Like the laws struck down in Heller, Chicago and Oak Park’s laws prohibit the possession of most handguns. See Nat’l Rifle Ass’n v. Chicago, 567 F.3d 856, 857 (7th Cir. 2009). Chicago law accomplishes a virtual ban on handguns by prohibiting the possession of unregistered firearms. See Chi. Mun. Code § 8-20-040. Chicago law prohibits the registration of most handguns. See Chi. Mun. Code § 8-20-050. Similarly, Oak Park law prohibits the possession of handguns. See Oak Park Ill. Vill. Code §§ 27-2-1, 27-1-1. In his lawsuits, McDonald argued that the Second Amendment right to keep and bear arms should apply to states and municipalities through either the Due Process Clause or the Privileges and Immunities Clause of the Fourteenth Amendment. See Complaint at 6, 9, McDonald v. Chicago, 2008 WL 5111112.
The district court dismissed McDonald’s lawsuits with a cursory opinion. See McDonald v. Chicago, 2008 WL 5111112. McDonald appealed to the Court of Appeals for the Seventh Circuit. See Nat’l Rifle Ass’n v. Chicago, 567 F.3d 856 (7th Cir. 2009). The Seventh Circuit affirmed the district court’s dismissals. See id. at 857. In explaining its reasoning, the Seventh Circuit stated that “Heller dealt with a law enacted under the authority of the national government,” while the Illinois laws at issue were enacted by Chicago and Oak Park, “subordinate bodies of a state.” See id. at 857. Additionally, it noted that the Supreme Court has refused to incorporate the Second Amendment against the states in the past. See id. at 857. Finally, it asserted that the question of whether the right to bear arms should be incorporated against the states through the Fourteenth Amendment was a question that the Supreme Court, not a court of appeals, should decide. See id. at 857, 860. The Supreme Court granted certiorari on September 30, 2009. See Docket No. 08-1521.
The Supreme Court’s decision in this case will determine the power of states and municipalities to control the possession of handguns. Furthermore, should the Supreme Court choose to reach the issue, a decision reestablishing the Privileges and Immunities Clause as a meaningful check on State action by overruling the Slaughterhouse Cases will have far-reaching effects on longstanding conceptions of American constitutional law and federalism.
Self-Defense and Personal Safety
Petitioners, McDonald, et al. (“McDonald”), argue that the right to keep and bear arms is a fundamental right that protects an individual’s inherent right to self-defense, and as such, states should be prohibited from infringing this right. See Brief for Petitioners McDonald, et al. at 69–70. The Rutherford Institute, citing the high crime rate in Chicago itself, urges that limiting state and local governments’ ability to restrict the right to bear arms is necessary to allow citizens to protect themselves against violent crime, especially in urban areas. See Brief of Amicus Curiae Rutherford Institute in Support of Petitioners at 11, 13–14. Several California district attorneys add that handguns, in particular, are especially useful to average citizens in defending themselves or their property against criminals, making handgun possession an important component of the individual right of self-defense. See Brief of Amici Curiae Thirty-Four California District Attorneys, et al., in Support of Petitioners at 25–28.
Organizations committed to protecting the public’s health, safety, and well-being argue that increased gun ownership leads to increased violence. See Brief of Amici Curiae Organizations Committed to Protecting the Public’s Health, Safety, and Well-Being in Support of Respondents at 8–9. These organizations cite research showing an increased risk of being murdered in areas with prevalent gun ownership. See id. at 14. Finally, the organizations state that there is a high, disproportionate risk of injury to women, adolescents, and children when guns are kept in the home. See id. at 18, 23. The Association of Prosecuting Attorneys argues that in urban areas, in particular, strict gun regulation allows law enforcement personnel to better maintain peace and reduce crime. See Brief of Amicus Curiae Association of Prosecuting Attorneys and District Attorneys in Support of Respondents at 6–7.
Balance of State and Federal Power
Chicago argues that incorporating the Second Amendment against the states would disrupt the balance between state and federal power. See Brief for Respondents at 8. For example, the United States Conference of Mayors emphasizes greater need for strict gun regulation in large urban areas with crime problems as opposed to rural areas and cites the success of strict gun regulations in reducing crime in large cities such as New York. See Brief of Amicus Curiae United States Conference of Mayors in Support of Respondents at 13. Chicago also worries that if the Second Amendment is incorporated, control over gun policy will move from local governments, who have an intimate understanding of local problems, to the federal courts, which are more detached from local conditions and will have to proceed with little to no case law on the subject. See Brief for Respondents at 18.
A number of states in support of McDonald argue that federalism concerns are misplaced because the right to bear arms is a fundamental right. See Brief of Amici Curiae Texas and 37 Other States in Support of Petitioners at 23-24. They reason that just as states do not have the authority to experiment with other fundamental rights, such as freedom of speech, states should not be allowed to experiment with the right to bear arms. See id. at 22-23. The Goldwater Institute notes that the passage of the Fourteenth Amendment altered the balance between state and federal power and that concerns of federalism should not outweigh the protection of individual liberties that the amendment was designed to ensure. See Brief of Amicus Curiae Goldwater Institute, et al., in Support of Petitioners at 26–27.
Finally, Illinois, Maryland and New Jersey argue against reestablishing the Privileges and Immunities Clause as a check on state power, because it would throw a significant amount of state law into question. See Brief of Amici Curiae State of Illinois, et al., in Support of Respondents at 27. For example, they argue that the Fifth Amendment right to a grand jury and the Seventh Amendment right to a jury in civil cases — neither of which are incorporated against the states through the Due Process Clause — would have to be incorporated against the states through the Privileges and Immunities Clause. See id. This, they argue, would wreak chaos on long established state court practice. See id.
The first major Second Amendment case since the Supreme Court’s landmark decision in District of Columbia v. Heller, 128 S. Ct. 2783 (2008), concerns a number of Chicago gun control laws, including a general handgun ban and various registration requirements. Petitioners McDonald, et al., were each in violation of one or another of the gun control laws, which ultimately rendered certain firearms incapable of registration. Bringing suit against the City of Chicago, et al., Petitioners McDonald, Orlov, Lawson, the Second Amendment Foundation, and the Illinois State Rifle Association (referred to collectively as “McDonald”) allege violations of their Second and Fourteenth Amendment rights. In particular, they are asking the Court to re-examine its “Privileges or Immunities” jurisprudence and to overrule the Slaughterhouse Cases—the Court’s 1873 case of first-impression interpreting the Fourteenth Amendment as affecting only the rights of United States citizenship and not those of State citizenship.
I. Privileges or Immunities
McDonald’s primary argument is that the Second Amendment is among the privileges or immunities of American citizenship that states may not abridge. See Brief for Petitioners, McDonald, et al., at 9; see also U.S. Const. amend. XIV, § 1. In so arguing, McDonald examines the circumstances surrounding the adoption of the Fourteenth Amendment following the Civil War. See Brief for Petitioners at 10. In particular, McDonald focuses on the systematic oppression of freed blacks in the South following the Civil War, which led to frequent deprivation of their right to keep and bear arms. See id. at 11. Such injustice, McDonald argues, led to the need to adopt an amendment that would secure “basic civil rights . . . [including] those memorialized in the Bill of Rights, within the protection of federal citizenship.” Id. at 14. To support their argument, McDonald moves through the popular understanding of the terms “privileges” and “immunities” during the early republic and the antebellum South, as well as the meaning ascribed to them by the framers of the Fourteenth Amendment. See id. at 16–26. In examining the evolution of the terms’ meanings, they argue that the privileges or immunities “of American citizens include two sets of overlapping rights:” so-called fundamental rights securing by Article IV, Section 2 of the Constitution, and those enumerated in the first eight amendments. Id. at 26.
Rather than focusing on the original intent of the Fourteenth Amendment’s framers, Chicago and Oak Park urge the Court, instead, to uphold rejecting incorporation of the Bill of Rights under the Privileges or Immunities Clause. See Brief for Respondents, City of Chicago and the Village of Oak Park at 42. Chicago and Oak Park point to the Slaughterhouse Cases, where the Court held that the Fourteenth Amendment’s Privileges or Immunities Clause includes only those rights that “are dependent upon citizenship of the United States, and not citizenship of a State.” Id.; see also 83 U.S. (16 Wall.) 36 (1872). Such rights would include, for example, the freedom to petition the government, to run for political office, to become a citizen of any state through residence; however, such rights did not include those enumerated in the Bill of Rights, including the right to bear arms. See id. at 43. Chicago and Oak Park also point to the seminal cases of United States v. Cruikshank, which held that the Second Amendment did not apply to the States, and Presser v. Illinois, which held that the right to keep and bear arms is not a privilege or immunity of United States citizenship. See id. at 44. They thus argue that the Court should use the doctrine of stare decisis to uphold cases that explicitly reject incorporation of the Second Amendment through the Fourteenth Amendment’s privileges or immunities clause. See id. at 45.
McDonald responds by arguing that stare decisis can be overcome when a case is clearly erroneous. See Brief for Petitioners at 57. They argue that the Slaughterhouse line of cases meets this bill for the four considerations enumerated in Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833, 854 (1992). First, McDonald argues that Slaughterhouse is an impractical opinion that results in the virtual elimination of the Privileges or Immunities Clause. See id. at 60. Second, in response to the argument that stare decisis protects legitimate reliance interests, McDonald argues that depriving individuals of their constitutional rights cannot be a valid interest. See id. at 61. Third, McDonald argues that the Slaughterhouse line of cases is anachronistic, insofar as it dealt with the problems of freed slaves. See id. at 64. Finally, McDonald argues that modern factual understandings compel the Court to treat this case as one of first impression, i.e. as if looking at the scope of the Fourteenth Amendment’s Privileges or Immunities clause for the first time. See id.
Chicago and Oak Park, however, argue that the four Casey factors weigh in favor of applying stare decisis to the Slaughterhouse line of cases. See Brief for Respondents at 46. First, they argue that the cases offer a workable jurisprudence that is easy to apply. See id. They argue that if the Court accepts McDonald’s argument, “it would also make applicable to the State unenumerated fundamental rights of uncertain scope,” which is arguably an unworkable and uncertain. Id. at 49. Second, they point to the fact that the cases have been good law for 137 years, which they argue compels the highest deference. See id. Third, they argue that there are substantial reliance interests created by the century-old precedent, including the systems of criminal and civil law. See id. at 51. Finally, Chicago and Oak Park argue that the facts of the Slaughterhouse cases have not been eroded and that a modern approach would not render the original holding anachronistic. See id.
II. Due Process
Chicago and Oak Park argue that the Second Amendment is not incorporated through the Due Process Clause. Brief for Respondents at 8. In order for a right to be incorporated through the Due Process Clause, they argue that such a right must be “implicit in the concept of ordered liberty.” Id. (quoting Palko v. Connecticut, 302 U.S. 319, 325 (1937)). They argue that the considerations for determining whether a right fits within the concept of ordered liberty are the protections provided by the right and whether those protections are necessary in a system of ordered liberty. See id. at 10. They argue that this standard is exacting and that the considerations of federalism must play a role in determining whether a right is incorporated. See id. Arguing that federalism allows for a state to try novel social experiments, Chicago and Oak Park portray their cities as two of many laboratories of democracy and their gun regulations to be but a few of any permissible approaches. See id. at 11.
McDonald, on the other hand, argues that the Due Process Clause does incorporate the Second Amendment. See Brief for Petitioners at 66. Agreeing with Chicago and Oak Park that the standard for determining whether a right is implicit in the concept of ordered liberty, McDonald argues that the modern incorporation test asks whether a right is fundamental to the American scheme of justice. See id. at 67. McDonald argues that the Court should consider three factors: (1) the historical acceptance of the right in our nation, (2) its recognition by the states, and (3) the nature of the interest secured by the right. See id. McDonald goes on to analyze each factor. First, McDonald argues that the historical acceptance of the right to bear arms was inherited from our English ancestors and is fundamental in the United States. See id. at 68. Second, McDonald points to the fact that forty-four states protect the right to bear arms in their respective constitutions. See id. Finally, McDonald makes the argument that the right to bear arms and to defend oneself is an aspect of liberty deserving of incorporation. See id.
Justice Alito, writing in the plurality, specified that the Due Process Clause of the Fourteenth Amendment incorporates the Second Amendment right recognized in Heller. He rejected Justice Clarence Thomas’s separate claim that the Privileges or Immunities Clause of the Fourteenth Amendment more appropriately incorporates the Second Amendment against the states. Alito stated that the Court’s decision in the Slaughterhouse Cases — rejecting the use of the Privileges or Immunities Clause for the purpose of incorporation — was long since decided and the appropriate avenue for incorporating rights was through the Due Process Clause.
Justice Antonin Scalia concurred. He agreed with the Court’s opinion, but wrote separately to disagree with Justice John Paul Stevens’ dissent. Justice Clarence Thomas concurred and concurred in the judgment. He agreed that the Fourteenth Amendment incorporates the Second Amendment against the states, but disagreed that the Due Process Clause was the appropriate mechanism. Instead, Justice Thomas advocated that the Privileges or Immunities Clause was the more appropriate avenue for rights incorporation. Justice John Paul Stevens dissented. He disagreed that the Fourteenth Amendment incorporates the Second Amendment against the states. He argued that owning a personal firearm was not a “liberty” interest protected by the Due Process Clause. Justice Stephen G. Breyer, joined by Justices Ruth Bader Ginsburg and Sonia Sotomayor, also dissented. He argued that there is nothing in the Second Amendment’s “text, history, or underlying rationale” that characterizes it as a “fundamental right” warranting incorporation through the Fourteenth Amendment.
DISTRICT OF COLUMBIA v. HELLER (No. 07-290)
478 F. 3d 370, affirmed, June 26, 2008
Certiorari to the United States Court of Appeals for the District of Columbia Circuit
District of Columbia law bans handgun possession by making it a crime to carry an unregistered firearm and prohibiting the registration of handguns; provides separately that no person may carry an unlicensed handgun, but authorizes the police chief to issue 1-year licenses; and requires residents to keep lawfully owned firearms unloaded and dissembled or bound by a trigger lock or similar device. Respondent Heller, a D. C. special policeman, applied to register a handgun he wished to keep at home, but the District refused. He filed this suit seeking, on Second Amendment grounds, to enjoin the city from enforcing the bar on handgun registration, the licensing requirement insofar as it prohibits carrying an unlicensed firearm in the home, and the trigger-lock requirement insofar as it prohibits the use of functional firearms in the home. The District Court dismissed the suit, but the D. C. Circuit reversed, holding that the Second Amendment protects an individual’s right to possess firearms and that the city’s total ban on handguns, as well as its requirement that firearms in the home be kept nonfunctional even when necessary for self-defense, violated that right.
1. The Second Amendment protects an individual right to possess a firearm unconnected with service in a militia, and to use that arm for traditionally lawful purposes, such as self-defense within the home. Pp. 2–53.
(a) The Amendment’s prefatory clause announces a purpose, but does not limit or expand the scope of the second part, the operative clause. The operative clause’s text and history demonstrate that it connotes an individual right to keep and bear arms. Pp. 2–22.
(b) The prefatory clause comports with the Court’s interpretation of the operative clause. The “militia” comprised all males physically capable of acting in concert for the common defense. The Antifederalists feared that the Federal Government would disarm the people in order to disable this citizens’ militia, enabling a politicized standing army or a select militia to rule. The response was to deny Congress power to abridge the ancient right of individuals to keep and bear arms, so that the ideal of a citizens’ militia would be preserved. Pp. 22–28.
(c) The Court’s interpretation is confirmed by analogous arms-bearing rights in state constitutions that preceded and immediately followed the Second Amendment . Pp. 28–30.
(d) The Second Amendment ’s drafting history, while of dubious interpretive worth, reveals three state Second Amendment proposals that unequivocally referred to an individual right to bear arms. Pp. 30–32.
(e) Interpretation of the Second Amendment by scholars, courts and legislators, from immediately after its ratification through the late 19th century also supports the Court’s conclusion. Pp. 32–47.
(f) None of the Court’s precedents forecloses the Court’s interpretation. Neither United States v. Cruikshank, 92 U. S. 542 , nor Presser v. Illinois, 116 U. S. 252 , refutes the individual-rights interpretation. United States v. Miller, 307 U. S. 174 , does not limit the right to keep and bear arms to militia purposes, but rather limits the type of weapon to which the right applies to those used by the militia, i.e., those in common use for lawful purposes. Pp. 47–54.
2. Like most rights, the Second Amendment right is not unlimited. It is not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose: For example, concealed weapons prohibitions have been upheld under the Amendment or state analogues. The Court’s opinion should not be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms. Miller’s holding that the sorts of weapons protected are those “in common use at the time” finds support in the historical tradition of prohibiting the carrying of dangerous and unusual weapons. Pp. 54–56.
3. The handgun ban and the trigger-lock requirement (as applied to self-defense) violate the Second Amendment . The District’s total ban on handgun possession in the home amounts to a prohibition on an entire class of “arms” that Americans overwhelmingly choose for the lawful purpose of self-defense. Under any of the standards of scrutiny the Court has applied to enumerated constitutional rights, this prohibition—in the place where the importance of the lawful defense of self, family, and property is most acute—would fail constitutional muster. Similarly, the requirement that any lawful firearm in the home be disassembled or bound by a trigger lock makes it impossible for citizens to use arms for the core lawful purpose of self-defense and is hence unconstitutional. Because Heller conceded at oral argument that the D. C. licensing law is permissible if it is not enforced arbitrarily and capriciously, the Court assumes that a license will satisfy his prayer for relief and does not address the licensing requirement. Assuming he is not disqualified from exercising Second Amendment rights, the District must permit Heller to register his handgun and must issue him a license to carry it in the home. Pp. 56–64.
478 F. 3d 370, affirmed.
Scalia, J., delivered the opinion of the Court, in which Roberts, C. J., and Kennedy, Thomas, and Alito, JJ., joined. Stevens, J., filed a dissenting opinion, in which Souter, Ginsburg, and Breyer, JJ., joined. Breyer, J., filed a dissenting opinion, in which Stevens, Souter, and Ginsburg, JJ., joined.