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<I>McDonald v. Chicago:</I> NRA's Argument Prevails as Supreme Court Applies Second Amendment Nationwide

Tuesday, July 13, 2010

On June 28, 2010, the Supreme Court, in McDonald et al. v. City of Chicago, Illinois, et al.—a case challenging handgun bans in Chicago and Oak Park, Illinois—ruled that the Second Amendment protects a fundamental, individual right to keep and bear arms for self-defense nationwide. The Court said, “We have previously held that most of the provisions of the Bill of Rights apply with full force to both the Federal Government and the States. Applying the standard that is well established in our case law, we hold that the Second Amendment right is fully applicable to the States.” The ruling reversed the decision of the U.S. Court of Appeals for the Seventh Circuit, which upheld the bans, and requires that court to reconsider McDonald in light of the Supreme Court’s ruling. Chicago thereafter passed an ordinance permitting handgun ownership with unreasonable restrictions. NRA is supporting Benson v. Chicago, challenging the ordinance.

The Supreme Court’s majority opinion was written by Justice Samuel Alito, with Chief Justice John Roberts and Justices Anthony Kennedy, Antonin Scalia, and Clarence Thomas concurring in whole or in part. These five Justices also constituted the 5-4 majority in District of Columbia v. Heller (2008), in which the Court ruled that the Second Amendment protects a pre-existing, private, individually-held right to keep and bear arms, without regard to a person’s relationship to a militia, and that the District of Columbia’s bans on handguns and on keeping firearms assembled within the home were unconstitutional. Dissenting in McDonald were Justices Stephen Breyer, Ruth Bader Ginsburg and John Paul Stevens, all of whom dissented in Heller, and Justice Sonia Sotomayor, recently appointed to the Court by President Barack Obama, after stating during her Senate confirmation hearings that she considers Heller to be a matter of settled law.

In McDonald, the Court applied the Second Amendment nationwide through the Fourteenth Amendment’s Due Process Clause, as argued for the NRA by former Solicitor General Paul Clement, rather than through the amendment’s Privileges or Immunities Clause. (Because McDonald was consolidated with the separate case of NRA v. Chicago in the Court of Appeals, NRA was a party to McDonald and presented its argument before the Supreme Court.)

The Court stated, “A provision of the Bill of Rights that protects a right that is fundamental from an American perspective applies equally to the Federal Government and the States. We therefore hold that the Due Process Clause of the Fourteenth Amendment incorporates the Second Amendment right recognized in Heller.” The Court added:

Self-defense is a basic right, recognized by many legal systems from ancient times to the present day, and in Heller, we held that individual self-defense is “the central component” of the Second Amendment right. Explaining that “the need for defense of self, family, and property is most acute” in the home, we found that this right applies to handguns because they are “the most preferred firearm in the nation to ‘keep’ and use for protection of one’s home and family.” Thus, we concluded, citizens must be permitted “to use [handguns] for the core lawful purpose of self-defense.” Heller makes it clear that this right is “deeply rooted in this Nation’s history and tradition”. . . . The right to keep and bear arms was considered no less fundamental by those who drafted and ratified the Bill of Rights.


Justice Breyer, joined by Justices Ginsburg and Sotomayor, filed a dissenting opinion that claimed that the right to arms shouldn’t be incorporated because (1) it isn’t recognized to be fundamental by “popular consensus,” (2) it doesn’t protect minorities or persons neglected by those holding political power, (3) its incorporation would alter the relationship between the federal and state governments, by prohibiting states from restricting the right to arms, and (4) its incorporation would force state and local judges to answer questions outside their area of expertise. Taking these arguments as numbered above, the Court said:

(1) “[W]e have never held that a provision of the Bill of Rights applies to the States only if there is a ‘popular consensus’ that the right is fundamental, and we see no basis for such a rule. But in this case, as it turns out, there is evidence of such a consensus. An amicus brief submitted by 58 Members of the Senate and 251 Members of the House of Representatives urges us to hold that the right to keep and bear arms is fundamental.”

(2) “[P]etitioners and many others who live in high crime areas dispute the proposition that the Second Amendment right does not protect minorities and those lacking political clout. . . . If, as petitioners believe, their safety and the safety of other law-abiding members of the community would be enhanced by the possession of handguns in the home for self-defense, then the Second Amendment right protects the rights of minorities and other residents of high-crime areas whose needs are not being met by elected public officials.”

(3) “Incorporation always restricts experimentation and local variations, but that has not stopped the Court from incorporating virtually every other provision of the Bill of Rights. . . . This conclusion is no more remarkable with respect to the Second Amendment than it is with respect to all the other limitations on state power found in the Constitution.”

(4) “Justice Breyer is incorrect that incorporation will require judges to assess the costs and benefits of firearms restrictions and thus to make difficult empirical judgments in an area in which they lack expertise. As we have noted, while his opinion in Heller recommended an interest-balancing test, the Court specifically rejected that suggestion.”

Justice Stevens dissented separately, claiming that “rights protected against state infringement by the Fourteenth Amendment’s Due Process Clause need not be identical in shape or scope to the rights protected against Federal Government infringement by the various provisions of the Bill of Rights.” The Court disagreed, noting that it had previously “decisively held that incorporated Bill of Rights protections ‘are all to be enforced against the States under the Fourteenth Amendment according to the same standards that protect those personal rights against federal encroachment.’” And, it concluded, “The relationship between the Bill of Rights’ guarantees and the States must be governed by a single, neutral principle.”

Justice Scalia, in an opinion concurring with the majority, said that Justice Stevens used a “subjective” and “topsy turvy” standard for determining what rights should be protected through the Fourteenth Amendment. He said that under that standard, “a right, such as the right to keep and bear arms, that has long been recognized but on which the States are considering restrictions, apparently deserves less protection, while a privilege the political branches (instruments of the democratic process) have withheld entirely and continue to withhold, deserves more.” He also noted that, under that standard, many rights protected by the Due Process Clause would lose their protection. To Justice Stevens’ claim that owning a handgun isn’t “critical to leading a life of autonomy, dignity, or political equality,” Justice Scalia responded, “Who says? Deciding what is essential to an enlightened, liberty-filled life is an inherently political, moral judgment.”

Justice Thomas filed an opinion concurring with the majority on many points, but arguing that “the right to keep and bear arms is a privilege of American citizenship that applies to the States through the Fourteenth Amendment’s Privileges or Immunities Clause.”

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