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Issue
Whether the Second Amendment is applicable to the states and local governments, and thus whether a city’s effective ban on handguns violates the Second Amendment.
Facts
Otis McDonald moved to Chicago in 1971. Since that time, he said, gangbangers and drug dealers had taken over his neighborhood. Out in the street, drinking and smoking in the middle of the night, they often littered homeowners’ lawns and burglarized houses. People were afraid to ask them to leave for fear of being shot or assaulted. McDonald’s own house had been broken into three separate times, he said. His garage had been ransacked twice—most recently by a man McDonald recognized from around the neighborhood.
An experienced hunter, McDonald wanted to purchase a handgun to keep inside his home for self-defense. The Supreme Court had ruled in District of Columbia v. Heller 2008 that the Second Amendment protects the fundamental right to purchase and possess firearms, including handguns, for traditional, lawful purposes such as self-defense. But Chicago had effectively banned handguns from the city by requiring handgun registration up until 1982, and then the city banned all future handguns after 1982. McDonald and three other Chicago residents filed a lawsuit claiming the city was violating their Second Amendment rights.
The Court Below
The National Rifle Association NRA filed two lawsuits in the U.S. District Court for the Northern District of Illinois. They were consolidated into one case in which the NRA argued the Second Amendment should be made applicable to state and local action via the Due Process Clause of the 14th Amendment. See the opinion here:
NRA v. Chicago and Oak Park, 617 F. Supp. 2d N.D., Ill. 2008
Another set of lawyers for McDonald similarly filed a lawsuit in the same court, arguing that the Second Amendment should be applied to the states via the Privileges and Immunities Clause of the 14th Amendment. Should this approach fail, counsel argued, then the court should extend prohibitions on handgun bans to states and localities via the Due Process Clause of the 14th Amendment in a more traditional approach to restricting state and local action. See the opinion here:
McDonald v. Chicago, No. 08 C 3645 N.D., Ill. 2008
The district court ruled against both McDonald and the NRA, both of whom appealed to the 7th Circuit Court of Appeals.
The 7th Circuit Court of Appeals combined McDonald’s and the NRA’s cases and upheld the lower court’s ruling, writing that the Bill of Rights does not apply en bloc to the states based on the Privileges and Immunities Clause of the 14th Amendment, contrary to the plaintiff’s urging. The plaintiff’s other argument for the selective incorporation of the Second Amendment into the 14th Amendment similarly failed. See the opinion here:
NRA v. Chicago and Oak Park, 567 F.3d 856 7th Cir. 2009
Plaintiffs appealed to the Supreme Court, which held that indeed, the Second Amendment was incorporated under the 14th Amendment via the Due Process Clause, and thus states and local governments cannot constitutionally infringe on the right to keep and bear arms. See the opinion here:
McDonald v. Chicago, 561 U.S. 742 2010
Question before the Supreme Court
“Whether the Second Amendment right to keep and bear arms is incorporated as against the States by the Fourteenth Amendment’s Privileges or Immunities or Due Process Clauses[?]”
CCJ filed amicus curiae brief in support of McDonald based on the Privileges and Immunities Clause only.
Summary:
At the time of the Founding, the terms rights, liberties, privileges, and immunities were generally used interchangeably. In many colonial charters, for example, the American colonists were promised protections of rights of citizens under English law. In the 1606 Charter of Virginia, the colonists “shall have and enjoy all liberties, franchises, and immunities … as if they had been abiding and born, within this our Realme of England.” Famed English jurist William Blackstone wrote of privileges and immunities to describe the fundamental rights of Englishmen, sanctioned under notable constitutional documents such as the Petition of Right and the English Bill of Rights. The original entitlement of state citizens to the privileges and immunities of the several states similarly was sanctioned in Article IV, Sect. 2 of the Constitution.
Those who came after the Framers also understood the terms “privileges” and “immunities” to include well-understood, fundamental rights. Supreme Court Justice Bushrod Washington, for example, wrote in Corfield v. Coryell 1823 that “those privileges and immunities which are, in their nature, fundamental; which belong, of right, to the citizens of all free governments; and which have, at all times, been enjoyed by the citizens of the several states which compose this Union, from the time of their becoming free, independent, and sovereign.” This view of the Privileges and Immunities Clause of Article IV was widely shared by contemporary judges and influenced those who ratified the 14th Amendment.
These privileges and immunities of the 14th Amendment included the right to keep and bear arms, a fundamental, individual right long recognized as essential to the preservation of liberty and personal safety. Aristotle stated that “arms bearing” was an essential aspect of each citizen’s proper role, for example. John Locke noted the “fundamental, sacred, and unalterable law of self-preservation” and the right to resist, which ultimately depended on the use of force. Thinkers such as Blackstone, Algernon Sydney, Thomas Hobbes, and Hugo Grotius, among others, agreed that the right to keep and bear arms is an essential right.
The great weight of these authorities on which the Framers relied helps lead to the conclusion that the right to keep and bear arms is a fundamental, natural right that is included within those “privileges” and “immunities” upon which state and local governments may not infringe. Many of the states included protections of that right in their constitutions after the break from Great Britain. James Madison praised the Constitution for preserving “the advantage of being armed, which Americans possess over the people of almost every other nation …” Thomas Jefferson stated that “[n]o freeman shall ever be debarred the use of arms,” even asserting that “it is their right and duty to be at all times armed.”
Finally, the authors of the 14th Amendment believed the right to keep and bear arms was included in the privileges and immunities upon which the states could not infringe. The amendment was originally enacted in part to protect the privileges and immunities of recently freed black slaves. After the Civil War, Southern states were not about to allow newly freed slaves access to all the rights and privileges held by whites, and the states’ black codes curtailed fundamental rights such as the right to keep and bear arms. Fearing that the courts would invalidate the Civil Rights Act of 1866, the Senate proposed the 14th Amendment in part to protect such individual rights. A purview of the Congressional Record for the 39th Congress reveals that members such as James Wilson believed fundamental rights such as personal security, liberty, and property may not be alienated from citizens—and of course, the right to bear arms is often a necessary means by which individuals can ensure personal safety. Indeed, Senator Jacob Howard, who brought forward the 14th Amendment in the Senate, said that the terms “privileges” and “immunities” as used in the amendment incorporated the personal rights protected in the Bill of Rights.
Final Outcome
Although the Court rejected in its majority opinion the Privileges and Immunities approach that CCJ proposed Justice Thomas agreed with CCJ in his concurring opinion, it did rule that the Second Amendment was incorporated into the 14th Amendment via the Due Process Clause, thus making it applicable to state and local law. In agreement with CCJ, the Supreme Court ruled that the Second Amendment protects gun rights from infringement by local governments.
