On June 28, 2010, the United States Supreme Court announced its latest Second Amendment decision, McDonald v. City of Chicago.
What did the Supreme Court decide in McDonald v. City of Chicago?
In McDonald v. City of Chicago, the United States Supreme Court held in a 5-4 ruling that the Second Amendment applies to state and local governments in addition to the federal government. In doing so, the Court reversed a Seventh Circuit decision that affirmed the dismissal of Second Amendment challenges to handgun bans in Chicago and Oak Park, Illinois.
The Supreme Court did not reach the issue of whether the Second Amendment applies against the states in District of Columbia v. Heller, the 2008 decision holding for the first time that the Second Amendment guarantees an individual right to possess a firearm in the home for self-defense, because that case involved only the laws of the District of Columbia (which is a federal enclave).
As it held in Heller, the Court reiterated in McDonald that the Second Amendment only protects a right to possess a firearm in the home for self-defense, and that a wide variety of gun laws are constitutionally permissible. The McDonald Court stated that:
It is important to keep in mind that Heller, while striking down a law that prohibited the possession of handguns in the home, recognized that the right to keep and bear arms is not ‘a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose.’ We made it clear in Heller that our holding did not cast doubt on such longstanding regulatory measures as ‘prohibitions on the possession of firearms by felons and the mentally ill,’ ‘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.’ We repeat those assurances here. Despite municipal respondents’ doomsday proclamations, incorporation does not imperil every law regulating firearms.
What impact will McDonald have on firearms laws?
LCPGV anticipates a substantial increase in the volume of Second Amendment litigation already clogging the nation’s courts, despite the fact that most, if not all, state and local firearms laws do not prevent a law-abiding citizen from possessing a firearm in the home for self-defense, and thus, would satisfy the holdings in Heller and McDonald. It is also likely that the gun lobby will continue to employ the threat of litigation to obstruct state and local efforts to enact common sense gun violence prevention measures.
Policymakers should rest assured, however, that nothing in the McDonald decision prevents them from adopting many types of reasonable laws to reduce gun violence. In the wake of the Heller decision, for example, the District of Columbia adopted comprehensive firearms laws. In March 2010, a federal district court rejected a Second Amendment challenge to many of those laws, including a ban on assault weapons and high capacity ammunition magazines, a one-handgun-a-month law, and a law requiring the reporting of lost or stolen firearms, demonstrating that many strong gun laws remain consistent with the Second Amendment. For more information about recent and ongoing Second Amendment litigation, please review our Post-Heller Litigation Summary.
Why was McDonald a bad decision?
In a dissenting opinion in McDonald, Justice Breyer (joined by Justices Ginsburg and Sotomayor) highlighted the many reasons why application of the Second Amendment to state and local governments is unwise:
[O]n any reasonable accounting, the incorporation of the right recognized in Heller would amount to a significant incursion on a traditional and important area of state concern, altering the constitutional relationship between the States and the Federal Government. Private gun regulation is the quintessential exercise of a State’s “police power”—i.e., the power to “protec[t]…the lives, limbs, health, comfort, and quiet of all persons, and the protection of all property within the State,” by enacting “all kinds of restraints and burdens” on both “persons and property.” The Court has long recognized that the Constitution grants the States special authority to enact laws pursuant to this power…
[T]he ability of States to reflect local preferences and conditions—both key virtues of federalism—here has particular importance. The incidence of gun ownership varies substantially as between crowded cities and uncongested rural communities, as well as among the different geographic regions of the country…The nature of gun violence also varies as between rural communities and cities. Urban centers face significantly greater levels of firearm crime and homicide, while rural communities have proportionately greater problems with nonhomicide gun deaths, such as suicides and accidents…
Given the empirical and local value-laden nature of the questions that lie at the heart of the issue, why, in a Nation whose Constitution foresees democratic decisionmaking, is it so fundamental a matter as to require taking that power from the people? What is it here that the people did not know? What is it that a judge knows better?
Don’t all of the provisions of the Bill of Rights — including the Second Amendment — automatically apply against the states?
No. When the Bill of Rights (the first ten amendments to the U.S. Constitution) was adopted, it was not intended to restrict state governments, only to limit the federal government. Subsequent to the adoption of the Fourteenth Amendment in 1868, however, the Supreme Court held that rights from the Bill of Rights may be selectively applied — or “incorporated” — through the Fourteenth Amendment’s Due Process Clause. In McDonald, the Court stated that provisions of the Bill of Rights may be incorporated only if they are “fundamental to our scheme of ordered liberty,” (emphasis in original) or “deeply rooted in this Nation’s history and tradition.”
Most, but not all, of the provisions of the Bill of Rights have been incorporated through the Due Process Clause. The Supreme Court has held, for example, that the Fifth Amendment protections against double jeopardy and self-incrimination apply, but the Amendment’s right to indictment by grand jury in certain criminal cases does not. The Court has also held that the Seventh Amendment, protecting the right to trial by jury in civil cases, does not apply to the states.
McDonald v. City of Chicago Supreme Court Resources
- The Supreme Court’s opinion in McDonald v. City of Chicago
- LCAV’s press release following the McDonald decision: Supreme Court Holds That Second Amendment Right Applies to State and Local Governments, But Permits Wide Range of Regulation
- A transcript of the Supreme Court oral argument in McDonald v. City of Chicago
- The City of Chicago’s Supreme Court brief
- The U.S. Supreme Court docket for McDonald v. City of Chicago
- The following amicus briefs were filed in support of the City of Chicago:
- LCPGV’s Supreme Court amicus brief [Brief for The Board of Education of The City of Chicago, the Institute of Medicine of Chicago, Wayman African Methodist Episcopal Church of Chicago, the Illinois Council Against Handgun Violence, Legal Community Against Violence, Violence Policy Center, States United to Prevent Gun Violence, Freedom States Alliance, Connecticut Against Gun Violence, Maine Citizens Against Gun Violence, Citizens for a Safer Minnesota, Ohio Coalition Against Gun Violence, Wisconsin Anti-Violence Effort Educational Fund, and GunFreeKids.org]
- Brief for American Cities, Cook County, Illinois, and Police Chiefs
- Brief for Representatives Carolyn McCarthy, Mike Quigley, and 53 Other Members of the the United States Congress
- Brief for the Association of Prosecuting Attorneys and District Attorneys
- Brief for the Anti-Defamation League
- Brief for the United States Conference of Mayors
- Brief for the Educational Fund to Stop Gun Violence
- Brief for Organizations Committed to Protecting the Public’s Health, Safety, and Well-Being
- Brief for the States of Illinois, Maryland, and New Jersey
- Brief for Thirty-Four Professional Historians and Legal Historians
- Brief for Historians on Early American Legal, Constitutional and Pennsylvania History
- Brief for English/Early American Historians
- Brief for Professors of Criminal Justice
- Brief for Historians and Legal Scholars
- Brief for the Villages of Winnetka and Skokie, Illinois, the City of Evanston, Illinois, the Illinois Municipal League, and the International Municipal Lawyers Association
- Brief for the Oak Park Citizens Committee for Handgun Control
- Motion for Leave to File Brief and Brief for Law Professor and Students
- LCPGV’s press release regarding the Supreme Court’s announcement that it would hear the McDonald case
Seventh Circuit Litigation Resources
District of Columbia v. Heller and the Second Amendment