Anthony Sculimbrene, Esq.
McDonald v. City of Chicago
561 US 742 (2010)
The Second Amendment applies to the states and limits state regulations of arms.
Voting Results: 5 to 4 (bold denotes current court members as of 7/2017)
Majority: Alito (author of the majority) joined by Roberts (Chief Justice), Scalia, Kennedy, and Thomas (in part)
Concurrence 1: Scalia
Concurrence 2: Thomas
Dissent 1: Stevens
Dissent 2: Breyer joined by Ginsburg and Sotomayor
Voting Trend: In this case, like in Heller, the Court broke down along its then-existing ideological lines. In fact, the coalition of judges in the majority was identical to the coalition in the majority in Heller–basically the conservative judges persuaded the then-swing vote Anthony Kennedy to join their side. Scalia’s groundwork in Heller set the model for Alito’s opinion here, both are steeped in historical analysis of various sources from the time the crucial amendments were passed. Scalia’s concurrence is basically a fight with Stevens’ dissent, while Breyer and his coalition mounted a more traditional dissent.
Finally, like in Heller, so long as the number of conservative justices remains the same (at least 4 with a swing vote for 5), McDonald is unlikely to be overruled. It is especially notable that Alito, Roberts, and Thomas are unlikely to retire soon, and Scalia’s replacement Gorsuch, is likely to vote similarly to his predecessor. Kennedy is near retirement as of 7/2017 and so his replacement is important. Both Breyer and Ginsburg are older and so they could be replaced with conservative justices depending on when they retire. In all, this decision like Heller, seems on very solid grounds, votes-wise.
Otis McDonald and a handful of other residence of Chicago sued the City of Chicago after it denied them an application for a firearms license for a handgun. McDonald had been the victim of roughly five burglaries and the other litigants had a similar history. McDonald owned a licensed shotgun, but felt it was too unwieldy in his house and so applied for a license for a handgun. The laws of the City of Chicago banned even licensed ownership of handguns and so McDonald was denied.
This case involves a highly technical legal argument about something called “incorporation,” that is, whether individual amendments in the Bill of Rights apply to the states. Despite the technicalities, the question in the case is crucially important for knife owners – whether states can ban arms. By their own terms, the Bill of Rights explicitly and exclusively limit ONLY the federal government. There is no reference to the Bill of Rights applying to the States. Thus, on its own, the Second Amendment could not limit a state’s ability to ban arms, including knives and firearms. However, the Fourteenth Amendment, one of the amendments passed because of the Civil War, applied the constitutional limitations set forth in the Bill of Rights on states as well. Over the century plus since the Civil War, the U.S. Supreme Court has had to decide, on a case by case basis, which of the Bill of Rights was applied to the states, that is “incorporated,” by the Fourteenth Amendment. At the time of McDonald, almost all of the Bill of Rights had been incorporated, except for the Second Amendment and a few other minor provisions in other amendments (such as a requirement in criminal cases for a grand jury indictment).
In this case Chicago had a handgun ban very similar to the one D.C. had in Heller. And, like in Heller, a gun owner applied for a license for his handgun and was denied. He, and others like him, took the case to court. At the trial level, the ban was upheld. At the first appeals stage, the ban was struck down, relying on Heller. At a full hearing of the court of appeals, the ban was upheld. The case was then appealed to the U.S. Supreme Court.
Alito, writing for the majority (the same majority as in Heller), quickly reviews the history of the Court’s efforts to incorporate the individual Bill of Rights. The test the Court uses is whether the right contained in a given amendment is “necessary in our scheme of ordered liberty.” This, in turn, requires an analysis of whether the right is one that has long and deep roots in the traditions of our country. Thus, the Court analyzed the history of the right to keep and bear arms. Unlike in Heller, when the relevant period was a time when the Bill of Rights was written, here, in this case, the relevant time is when the Fourteenth Amendment was passed. Thus, the question for the Court is reduced to this: was the right to keep and bear arms something fundamental to the country at the time of the Civil War (when the Fourteenth Amendment was passed). Analyzing sources from the time Alito finds an abundance of support for the notion that the right to keep and bear arms was fundamental. He relies heavily on examples of how the right to keep and bear arms was systematically stripped from freed slaves and the protests that it caused at the time. This analysis led into the foundation of the Second Amendment – the right to defend one’s self and one’s liberty. This, Alito claims (like Scalia in Heller), is the core of the Second Amendment and this concept has been present for centuries in the Anglo-American tradition.
Alito then dispenses with arguments proffered by Chicago and the dissents. First, Chicago claims that the right to keep and bear arms is not a fundamental right because other advanced industrialized countries do not have such a right and function just fine. Alito notes that this argument fails because the test for incorporation is not whether a right is necessary in ANY scheme of ordered liberty, but whether it is necessary in OUR scheme or ordered liberty. Second, like many constitutional rights, the Second Amendment will impact state’s ability to regulate issues related to safety, assuming, of course, that gun possession leads to gun violence (Alito points out that there is support for and against the notion that guns make people more at risk). A few more arguments are dashed in short fashion – that the Fourteenth Amendment is only non-discriminatory in nature, that incorporated rights are “watered down” versions of the Bill of Rights, and that the Second Amendment, as applied to the states, would bar all state regulations of firearms.
In the end, the case is sent back to the lower court with the notion that the ban in Chicago is unconstitutional.
Normally concurrences and dissents are not all that valuable, but here, Justice Thomas asserts a novel theory for incorporation that knife owners and attorneys with knife cases should pay attention to during litigation. The Fourteenth Amendment has a few different parts. The part traditionally used to incorporate rights from the Bill of Rights is called the “Due Process Clause.” There is another part called the “Privileges and Immunities Clause.” This clause has traditionally been very narrowly construed and unused. Thomas, however, cites historical sources that show that the drafters of the Fourteenth Amendment believed the Privileges and Immunities Clause was the mechanism to apply the Bill of Rights to the states.
Notes for Knife Owners
Aside from strong language grounding the Second Amendment in a right to self-defense, this case is almost purely aimed at lawyers.
Notes for Attorneys
While offering nothing to non-lawyers, McDonald gives attorneys quite of bit of ammunition in litigating knife cases. First, it is clear after McDonald that Heller applies to the states. This is good, but remember that some courts have taken the position that Heller doesn’t cover knives. Second, McDonald and Heller both emphasize in perhaps as strong of terms as possible that the foundation of the Second Amendment is self-defense. Finally, and perhaps most importantly, Thomas’s concurrence offers another argument to claim that the Second Amendment applies to the states and knives. Sift through the Privileges and Immunities Clause cases to see if there some other way to argue about knives, self-defense, and knife possession, especially in light of the fact that some courts are intent on not extending Heller’s holding to knives.
- Point 1: Heller applies to the states and limits state regulations on weapons.
- Point 2: McDonald provides additional strong language for self-defense claims, even in cases with arms.
- Point 3: With Thomas’s concurrence, cases involving Privileges and Immunities Clauses, as few as they are, cannot be mined for new arguments.