Updated May 20, 2013

The Law Center’s Post-Heller Litigation Summary surveys the landscape of Second Amendment challenges to federal, state and local gun laws asserted in the aftermath of the United States Supreme Court’s controversial landmark decision in District of Columbia v. Heller.

Download our May 2013 summary or read it below. You can also download our March/April 2013 and February 2013 summaries.

The Law Center’s Recent Developments in Second Amendment Litigation, provides updates on the latest court decisions and lawsuits related to the Second Amendment.  Download our May 2013 update or read it below.

Finally, the Law Center’s Post-Heller Litigation Appendix provides the latest information about major ongoing Second Amendment cases.  Download our May 2013 Appendix or read it below.

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.¹ 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 1868,² 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.”³

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

• The Seventh Circuit’s opinion in NRA v. City of Chicago
• LCPGV’s amicus brief filed in the Seventh Circuit litigation

District of Columbia v. Heller and the Second Amendment

• Information and analysis on District of Columbia v. Heller, the 2008 Supreme Court decision that held, for the first time, that the Second Amendment guarantees an individual right to possess a firearm in the home for self-defense
• Publication: Gun Regulation and the Second Amendment: Moving Forward After District of Columbia v. Heller

1. Heller v. District of Columbia, 2010 U.S. Dist. LEXIS 29063 (D.D.C. Mar. 26, 2010). The court held that the District Council had provided “ample evidence” of a “substantial nexus” between the registration system and the government’s interest in promoting public safety sufficient to satisfy the “intermediate scrutiny” level of review (which requires the government to prove that the challenged law is substantially related to an important governmental interest). The court deferred to the Council’s conclusion that assault weapons and large capacity magazines constitute dangerous and unusual weapons that are not within the scope of the core Second Amendment right, but observed that there was also sufficient evidence to find that these prohibitions met intermediate scrutiny. [↩]
2. The Fourteenth Amendment states, in relevant part:

   Section 1. All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. [↩]

3. The petitioners in McDonald v. City of Chicago argued that the Second Amendment should also be incorporated through the Fourteenth Amendment’s Privileges or Immunities Clause. Supreme Court precedent, however, has consistently held for over one hundred years that none of the Bill of Rights is incorporated through this clause. In McDonald, Justice Thomas joined the majority in holding that the Second Amendment applies to the states, but stated in a separate opinion that the Second Amendment right is a privilege of citizenship that should apply to the states through the Privileges or Immunities Clause. [↩]

What was at issue in District of Columbia v. Heller?

In District of Columbia v. Heller, 554 U.S. 570 (2008), the Supreme Court heard Second Amendment challenges to Washington, D.C.’s decades-old ban on handgun possession and requirement that firearms in the home be stored unloaded and disassembled or bound by a locking device. In considering the meaning of the Second Amendment for the first time in 70 years, the Court examined whether the Amendment protects an individual right to possess firearms, or only protects firearm possession connected to service in a state militia. In a radical departure from its previous interpretation of the Second Amendment, the Court held that the Amendment guarantees an individual right to possess a firearm in the home for self-defense, and struck down the handgun possession ban as well as the safe storage law (which had no exception for self-defense).

The Supreme Court stated, however, that the Second Amendment should not be understood as conferring a “right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose.” The Court provided examples of laws it considered “presumptively lawful,” including those which:

• Prohibit firearm possession by felons and the mentally ill;
• Forbid firearm possession in sensitive places such as schools and government buildings; and
• Impose conditions on the commercial sale of firearms.

The Court noted that this list is not exhaustive, and concluded that the Second Amendment is also consistent with laws banning “dangerous and unusual weapons” not in common use at the time, such as M-16 rifles and other firearms that are most useful in military service. In addition, the Court declared that its analysis should not be read to suggest “the invalidity of laws regulating the storage of firearms to prevent accidents.”

Why is Heller such a radical departure from prior Second Amendment case law?

As discussed in LCPGV’s brochure Gun Regulation and the Second Amendment: Moving Forward After District of Columbia v. Heller, the ruling in Heller represented a dramatic reversal of the Court’s previous interpretation of the Second Amendment. In United States v. Miller, the Court stated, in a unanimous decision, that the “obvious purpose” of the Second Amendment was to “assure the continuation and render possible the effectiveness of” the state militia, and the Amendment “must be interpreted and applied with that end in view.” In reliance on Miller, hundreds of lower federal and state appellate courts had rejected Second Amendment challenges to our nation’s gun laws over the last seven decades, making Heller‘s reversal of this interpretation a watershed moment in Second Amendment law.

What issues were left unresolved by Heller?

Because the Heller case involved a law enacted by Washington, D.C., a federal enclave, the Court did not address the significant issue of whether the Second Amendment restricts state and local governments. The Court did note, however, that a series of Eighteenth Century decisions, beginning with United States v. Cruikshank, held that the Second Amendment applies only to the federal government. Heller cautioned, however, that, “Cruikshank…did not engage in the sort of Fourteenth Amendment inquiry required by our later cases.” Those later cases, in determining whether an amendment applied to the states, examined whether it applied to the states through the Due Process Clause of the Fourteenth Amendment, a method of analysis known as the “incorporation doctrine.”

Subsequently, the Supreme Court held in McDonald v. City of Chicago 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.

Additionally, while Heller provided examples of laws the Court considered “presumptively lawful,” the decision does not offer guidance about how lower courts should evaluate challenges to firearms laws that are not among those examples. As a result, subsequent courts have struggled with precisely how to scrutinize firearms laws, and legislators who wish to enact gun violence prevention measures that are consistent with the Second Amendment lack clear guidance on precisely how to do so.

LCPGV Heller Resources

• Summary and analysis of the Supreme Court’s opinion
• Publication: Gun Regulation and the Second Amendment: Moving Forward After District of Columbia v. Heller
• Press release commenting on the Supreme Court’s decision
• Op Ed discussing the impact of Heller on gun regulation and how courts have interpreted the decision, published in the Los Angeles Daily Journal on June 26, 2009
• Op Ed discussing the Heller decision and its implications for gun regulation, published in the San Francisco Chronicle on July 7, 2008
• Op Ed discussing the Heller case prior to oral arguments was published in the Recorder legal newspaper of Northern California on March 14, 2008
• Statement on the U.S. Supreme Court’s decision to review the District of Columbia Circuit opinion

U.S. Supreme Court Materials

• The Supreme Court’s opinion in District of Columbia v. Heller
• LCAV’s amicus brief in support of the District of Columbia, filed with 11 major U.S. cities and the United States Conference of Mayors
• Amicus briefs filed in support of Petitioner, the District of Columbia, along with other Heller case resources
• The official transcript and audio of oral arguments in the case

Following the U.S. Supreme Court’s decision in District of Columbia v. Heller, 128 S. Ct. 2783 (2008), which held that the Second Amendment to the U.S. Constitution guarantees an individual right to possess a handgun in the home for self-defense, LCPGV published Gun Regulation and the Second Amendment – Moving Forward After District of Columbia v. Heller. This brochure describes the Court’s opinion, emphasizing that the Court held that the right is not unlimited and allows for broad firearm regulation for public safety purposes.

Click here to download a PDF of Gun Regulation and the Second Amendment