June 28, 2010

Supreme Court Decides McDonald v. City of Chicago

On June 28, the Supreme Court decided McDonald v. City of Chicago, No. 08-1521, holding that the Second Amendment right to bear arms for the purpose of self-defense is a fundamental right, incorporated in the Fourteenth Amendment's guarantee of due process, that applies to the states and to local units of government, as well as the federal government.

In District of Columbia v. Heller, 554 U.S. ___ (2008), the Supreme Court held that the Second Amendment of the U.S. Constitution protects the right of an individual to keep and bear arms for the purpose of self-defense. Chicago and one of its suburbs had previously enacted ordinances that effectively banned all possession of firearms by private citizens within those cities. Otis McDonald and others sued, seeking a declaration that these ordinances were unconstitutional in light of Heller. The district court rejected their arguments, noting that handgun bans had previously been upheld by the Seventh Circuit and that Heller had explicitly refrained from considering whether the Second Amendment applied to the states. The Seventh Circuit affirmed.

The Supreme Court reversed. It first reviewed the history of jurisprudence concerning applicability of the Bill of Rights to the states, concluding that, as the cases have evolved, the question turns on whether a provision of the Bill of Rights is "incorporated" in the Due Process Clause of the Fourteenth Amendment, which depends on whether the protection at issue is "fundamental to [our Nation's] scheme of ordered liberty and system of justice," or "is deeply rooted in this Nation's history and tradition." Almost all of the Bill of Rights' guarantees have been held to meet this requirement for incorporation and protection under the Due Process Clause.

The Court then held that the Second Amendment right to keep and bear arms, as recognized in Heller, is also incorporated as part of Fourteenth Amendment due process and therefore applies to the states. Heller held that the right of individual self-defense is "the central component" of the Second Amendment right, and self-defense is a basic right. Heller further held 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." The Court found, based on contemporaneous history, that the framers and ratifiers of the Fourteenth Amendment "counted the right to keep and bear arms among those fundamental rights necessary to our system of ordered liberty." It rejected various arguments suggesting that the rights guaranteed by the Second Amendment were somehow different from the other rights guaranteed by the Bill of Rights and incorporated in Fourteenth Amendment due process and therefore could be more readily infringed by state and local action than other constitutionally protected rights.

The Court declined, however, petitioners' request that it reconsider the extremely limited interpretation of the Fourteenth Amendment's Privileges or Immunities Clause adopted in the Slaughter House Cases, 16 Wall. (83 U.S.) 36 (1873), and hold that the right to keep and bear arms is one of the "privileges or immunities of citizens of the United States" protected by that clause.

Justice Alito delivered the opinion of the Court, in which Chief Justice Roberts and Justices Scalia, and Kennedy joined, and in which Justice Thomas joined in large part. Justice Scalia filed a separate concurring opinion. Justice Thomas also filed a separate opinion concurring in part and concurring in the judgment, in which he urged the Court to revive the Privileges or Immunities Clause as "a more straightforward path" for applying substantive Bill of Rights principles against the states. Justice Breyer filed a dissenting opinion, in which Justices Ginsburg and Sotomayor joined. Justice Stevens filed a dissenting opinion.

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