McDonald v. City of Chicago

The Supreme Court on Tuesday seemed poised to require state and local governments to obey the Second Amendment guarantee of a personal right to a gun, but with perhaps considerable authority to regulate that right. The dominant sentiment on the Court was to extend the Amendment beyond the federal level, based on the 14th Amendment’s guarantee of “due process,” since doing so through another part of the 14th Amendment would raise too many questions about what other rights might emerge.

When the Justices cast their first vote after starting later this week to discuss where to go from here, it appeared that the focus of debate will be how extensive a “right to keep and bear arms” should be spelled out: would it be only some “core right” to have a gun for personal safety, or would it include every variation of that right that could emerge in the future as courts decide specific cases? The liberal wing of the Court appeared to be making a determined effort to hold the expanded Amendment in check, but even the conservatives open to applying the Second Amendment to states, counties and cities seemed ready to concede some — but perhaps fewer — limitations. The eagerly awaited oral argument in McDonald, et al., v. Chicago, et al. (08-1521) found all members of the Court actively involved except the usually silent Justice Clarence Thomas. And, while no one said that the issue of “incorporating” the Second Amendment into the 14th Amendment had already been decided before the argument had even begun, the clear impression was that the Court majority was at least sentimentally in favor of that, with only the dimensions of the expansion to be worked out in this case and in a strong of likely precedents coming as time went on.

An attempt by an attorney for the cities of Chicago and Oak Park, Ill., defending local bans on handguns in those communities, to prevent any application of the constitutional gun right to states, counties and cities looked forlorn and even doomed. The nub of that argument by James A. Feldman of Washington was that, unlike other constitutional rights that the Court has extended to the state and local level, the right to a gun recognized by the Court two years ago in District of Columbia v. Heller pitted the threat that guns pose to human lives against a constitutional right, so the balance should be struck differently. So far as the hearing Tuesday showed, Justice Stephen G. Breyer was the only member of the Court attracted to that approach.

Justice Breyer drew only thinly veiled ridicule from conservatives on the Court when he suggested that there be a constitutional “chart” drawn up to rank the higher and lower priorities of rights that would be protected against state and local infringement — perhaps the highest rank safeguarding the right to have a gun in community self-defense (as with a “militia”) but with a decidedly lower rank for a right to “shoot birds.” While that idea drew no support, the notion that the Second Amendment right restricting state and local gun laws would not be an absolute right had significant appeal, it appeared.

The first argument to collapse as the hearing unfolded was the plea by the lawyer for gun rights advocates, Alan Gura of Alexandria, VA, that the Court should “incorporate” the Second Amendment into the 14th Amendment through the “privileges or immunities” clause. In the first comment from the bench after Gura had barely opened, Chief Justice John G. Roberts, Jr., noted that the Court had essentially scuttled that argument with its ruling in the SlaughterHouse Cases in 1873. And within a few minutes, Justice Antonin Scalia — the author of the Heller opinion and the Court’s most fervent gun enthusiast — was sarcastically dismissing the “privileges or immunities” argument.

“Why,” Scalia asked Gura, “are you asking us to overrule 140 years of prior law….unless you are bucking for a place on some law school faculty.” The Justice said the “privileges or immunities” argument was “the darling of the professorate” but wondered why Gura would “undertake that burden.” And Scalia noted that the “due process” clause — an open-ended provision that he has strongly attacked on other occasions– was available as the vehicle for incorporation, and added: “Even I have acquisced in that.” Gura somewhat meekly said “we would be extremely happy:” if the Court used the “due process” clause to extend the Second Amendment’s reach.

Justice Ruth Bader Ginsburg, one of the dissenters in Heller, then moved in to press Gura on just what “unenumerated rights” would be protected if the Court were to revive the “privileges or immunities” clause. It was a theme that would recur often thereafter, solidifying the appearance that the argument had virtually no chance of succeeding. (In fact, when Gura near the end of the argument returned to the podium for his rebuttal, his time was used up by Justices Ginsburg and Anthony M. Kennedy exploring what other rights might come into being if the Court gave new life to the “privileges or immunities” clause. He responded that he could not provide a full list, to which Justice Scalia retorted: “Doesn’ t that trouble you?” It was obvious that it troubled the Court.)

When Gura’s argument moved on to the general question of “incorporation” of the Second Amendment, Justice John Paul Stevens explored whether such an extension would “apply to all of the Second Amendment” — including any court interpretations that ensued — or only “a homeowner’s right to protect against intruders in the home” — the specific right that Heller recognized. Gura responded that the Second Amendment “was not so limited.” Stevens then asked whether the right would include “a right to parade around in the streets with a gun.” Gura said that the states and cities would have to obey a right that was fully equal to all rights embraced by the right to keep and bear arms.

Justice Kennedy soon joined in that exchange, and asked whether “incorporation” would embrace “all of the refinements” that courts would make in interpreting the right, or “just the core of the right.” Gura left no doubt that gun rights advocates were seeking the full panoply of whatever gun rights the Amendment were found to cover.

The remainder of Gura’s time was spent amid an exchange between Breyer and Scalia over whether courts should give the Second Amendment lesser scope based on statistics about the social cost that would result in people killed from others’ use of gun rights. Gura was essentially a bystander as the two Justices jousted over that issue.

The Court then got the focus that a majority seemed to be hoping for: a full-scale plea, by former Solicitor General Paul D. Clement, to use the “due process clause” as the vehicle for extending gun rights to the state and local level. And it was during Clement’s time at the podium that the Court’s liberal bloc began making a case — which Clement essentially resisted — to limit the “incorporated” right to, at most, some core guarantee, without all of the variations that would later develop. Clement noted that there were “not a lot” of variations of the gun right yet, since Heller was the only precedent so far, and that was limited to gun rights for self-defense in the home.

Clement, however, said that the Court should allow a “carryover” into the 14th Amendment of all of the jurisprudence that develops on the Second Amendment’s scope. There should not be a Second Amendment right and then a mere “shadow” of it that applied to state and local government, he argued. He did concede, though, that constitutional gun rights might be allowed to develop differently at the state and local level than at the federal level. But that, he said, is different from creating only a “shadow” right applied to state and local laws.

The Court’s strong leanings in the case became even more evident during questioning of Feldman, the lawyer for the two cities involved in the case. Although he absolutely needs the vote of Justice Kennedy if his plea is to prevail, he almost immediately frustrated Kennedy by arguing that gun rights were not an essential attribute of “ordered liberty,” thus questioning whether such rights qualify as fundamental. If they are not, Kennedy shot back, then the Heller decision was wrongly decided. And Chief Justice Roberts told Feldman that there was no way to read the Heller opinion to make the Second Amendment seem a less important right.

Tellingly, however, the Chief Justice commented that “we haven’t said anything about what the content of the Second Amendment is,” so that, over time, it may develop that state and local governments may well be allowed to impose restrictions, such as bans on carrying concealed weapons. And Scalia reminded Feldman that the Court in the Heller decision had left room for some regulation of guns even though the Second Amendment now embraced a personal right to have a gun. Kennedy also noted that “there are provisions of the Constitution” that allow states to have “significant latitude” in regulating what those provisions seek to protect.

Feldman made no headway with an argument that state and local political processes should be left to develop gun control policy, unimpeded by the Second Amendment or its equivalent. Some cities, he said, might conclude that “a ban on handguns is he best way to protect people,” and yet Heller says that the Second Amendment forbids such a ban. That was, in essence, a total rejection of the idea of “incorporation,” and it was by then more than evident that there was no majority for such a rejection. He also scores no points with a complaint that “incorporation” of the Second Amendment would go a long way toward established a national constitutional right of “self-defense,” which he said the Court has never mandated and should not now. For 200 years, he said, it has been up to state and local government to sort out when self-defense was justified. No member of the Court seemed persuaded that that was now at stake in the Second Amendment context.

Pre-Argument Articles

Argument Preview

Lyle Denniston originally wrote the following for SCOTUSblog.

On the day 20 months ago that the Supreme Court decided the historic case of District of Columbia v. Heller, declaring that the Second Amendment provides an individual right to have a gun for private use, the first of an expected swarm of follow-up lawsuits was filed to test just how far that right will extend. That same-day sequel has now reached the Court, raising a misleadingly simple question: must state, county and city governments obey that Amendment for the first time in the 219 years it has been a part of the Constitution? The outcome will affect many more gun control laws than Heller itself did. By one estimate, some 90 million people in the U.S. have guns — 200 million of them — and most of those are regulated more by state and local laws than by federal laws.

Background

The Supreme Court, like the lower courts in this case, is likely to spend almost no time examining the gun control laws that are under challenge. That’s because the sole issue is whether the Second Amendment (guaranteeing “a right to keep and bear arms”) even applies to those laws. But the local laws at issue together provide a perfect test case for that issue: by functioning as virtually complete bans on handguns, the ordinances almost certainly would be struck down if the right established by the Heller decision can be invoked against them. (A similar ban in force in the federal city of Washington, D.C., was nullified by Heller.) Chicago’s city ordinance bans from the city any gun that is not registered, and most handguns simply cannot be registered. Rifles and some shotguns are allowed in the city, if registered. Oak Park, a city of about 50,000 people bordering the west side of Chicago, has gone even further: It makes it a crime for anyone to have within the city limits any gun small enough to be concealed on the person.

On June 26, 2008, right after the Supreme Court decided Heller, an already-prepared lawsuit was filed in federal court in Chicago to challenge that city’s gun law and related city regulations; the challengers were four gun enthusiasts in the area: Otis McDonald, Adam Orlov, and Colleen and David Lawson, along with the Second Amendment Foundation and the Illinois State Rifle Association, a branch of the National Rifle Association. The following day, two other lawsuits, ready beforehand, were filed in the same court, challenging the Chicago law and also the gun ban in Oak Park. Those cases were filed by the NRA, along with Chicagoans Kathryn Tyler, Van F. Welton and Brett Benson, and Oak Park residents Robert Klein Engler and Gene A. Reisinger.

As senior U.S. District Judge Milton I. Shadur would later write: “What is eminently plain is that both sets of lawyers…came loaded for bear, on the assumption that the Supreme Court majority would rule as it did [in Heller].” And both sets of lawyers quickly agreed that Judge Shadur should narrow the issues in the case, down to the single question: does the Second Amendment apply to state and local laws, or just to those passed by Congress or the federal enclave of Washington, D.C.?

It took Judge Shadur less than six months to rule. In essence, he said he had no choice but to reject the claim that the Second Amendment does reach to the state and local level. The judge wrote in December 2008 that the Seventh Circuit Court, whose decisions he must follow, had ruled on the issue in 1982 in Quilici v. Morton Grove (an Illinois case that the Supreme Court back then refused to review). That decision, he said, “squarely upheld” a local handgun ban by relying on a Supreme Court decision issued in 1896, Presser v. Illinois. Citing the Presser decision, Judge Shadur quoted the Supreme Court as having declared that the Second Amendment “is one of the amendments that has no other effect than to restrict the powers of the National government….” And, he added, the Supreme Court in Heller had listed Presser, along with U.S. v. Cruikshank in 1876 and Miller v. Texas in 1894, as having concluded “that the Second Amendment applies only to the Federal Government.”

In modern times, there has been much debate about whether those old precedents remain good law, and the Supreme Court has already heard a great deal about that, and will hear more. Judge Shadur was not in a position to judge that issue, he said. But he did add that the Second Amendment’s extension argument “may well carry the day before a court that is unconstrained by the obligation to follow the unreversed precedent of a court that occupies a higher position in the judicial firmament.”

Then, the next higher court in the firmament, the Seventh Circuit, similarly concluded that it had to follow those three precedents. “Cruikshank, Presser, and Miller still control even though their reasoning is obsolete,” the Circuit Court concluded in June of last year. Writing for the three-judge panel, Circuit Judge Frank Easterbrook added: “In decisions that no one thinks fossilized, the Justices have directed trial and appellate judges to implement the Supreme Court’s holdings even if the reasoning in later opinions has undermined their rationale.” The Circuit Court rejected the gun rights enthusiasts’ suggestion to find a way around the three precedents. To do that, it said, would mean that Supreme Court rulings “would bind only judges too dim-witted to come up with a novel argument.”

Thus, the lower courts had focused more on their own lack of authority than on the question that lay behind these first sequels to Heller: that is, what concept or actual language written into the Constitution would allow a court to conclude that the Second Amendment could apply to state and local governments? Over time, two potential approaches would emerge: one direct, and one indirect. The Bill of Rights could be read as placing direct restrictions on all levels of government, or, though supposedly written only to restrain the national government, they could be applied to the states by absorption (“incorporation”) into other phrases that do restrain the states and local governments.

James Madison had drafted the Bill of Rights, including the Second Amendment, in 1789, primarily to satisfy critics of the new Constitution, who argued that the national government being set up would have too much power over the citizenry. Although one can debate whether there was an “original understanding” to apply the Amendments only to the federal government, the Supreme Court in 1833 — in the case of Barron v. Baltimore, involving the Fifth Amendment — apparently rejected the direct approach; the Fifth Amendment, Chief Justice John Marshall wrote, “is not applicable to the legislation of the States.” That precedent has never been overturned and, in fact, is now widely understood as barring the direct approach to extending any of the Bill of Rights to the state and local level.

The “incorporation” alternative has fared much better, using the Fourteenth Amendment as the place to “incorporate” provisions of the Bill of Rights. While the Supreme Court has not ruled that every one of the Bill of Rights is “incorporated” into the Fourteenth Amendment, it began in 1897 (Chicago, Burlington & Quincy Railroad Co. v. City of Chicago) a process that came to be known as “selective incorporation.” Now, most provisions of the Bill of Rights have been so “incorporated.” But among the few still left out is the Second Amendment. While the Supreme Court in the Heller decision gave the Amendment a broad new meaning, it left undecided whether the right to keep and bear arms must be respected by state, county, and city governments, too.

In theory, there are two clauses in the Fourteenth Amendment that the Court might now use, if it were to decide to “incorporate” gun rights. First is the clause that protects citizens’ “privileges or immunities.” The second is the guarantee that “life, liberty or property” may not be taken away without “due process of law.” In every one of the Court’s “incorporation” decisions (the last of these came in 1979, in Burch v. Louisiana, requiring unanimous juries in some criminal cases), the Court has used the “due process” clause.

The two new test cases seeking “incorporation” of the Second Amendment have been aimed, from their very beginning, at putting the issue before the Supreme Court, and the attorneys pressing those cases have long been ready to do so when the opportunity fully arose. Thus, one day after the Seventh Circuit Court ruled in the Chicago and Oak Park cases, the NRA filed its appeal to the Justices (NRA, et al., v. Chicago, et al., docket 08-1497). Then, a week after the Circuit Court decision, the McDonald group filed theirs (McDonald, et al., v. Chicago, et al., 08-1521).

Petitions for Certiorari

The McDonald petition — the one the Court chose to review — and the NRA petition asked the Court to “incorporate” the Second Amendment into the Fourteenth using either — or both — the “privileges or immunities” clause or the “due process” clause. At the time these appeals were filed, both sides made much of the fact that federal Circuit Courts had reached conflicting conclusions about “incorporation.” They thus urged the Court to clear up that dispute promptly, in order to end what the McDonald papers called “the deprivation of fundamental constitutional rights among a large portion of the population.” It would serve no purpose, that petition said, to let the conflict among lower courts continue, and it added that “the scholarly landscape concerning the core constitutional issues in the case is exceptionally well-developed, enabling a just and comprehensive treatment by this Court.”

The two petitions differed in one significant respect. In McDonald, the lawyers directly urged the Court to overrule an 1873 precedent, the so-called Slaughter-House Cases, which many observers interpret as having virtually read the “privileges or immunities” clause out of the Constitution. “Given the profound scope of Slaughter-House’s error, and the confusion it has spawned in Fourteenth Amendment jurisprudence, overruling Slaughter-House remains imperative,” the petition argued. In NRA, the lawyers seemed to favor the “due process” approach, saying that the Court’s jurisprudence under that clause “easily brings the Second Amendment into the incorporation tent.” But, it added, if the Court wished to take a new look at “privileges or immunities” jurisprudence, “this would be an appropriate case in which to do so.”

Both petitions noted that, in a remark in a dissenting opinion in 1999 (Saenz v. Roe), Justice Clarence Thomas had said he would be open to reevaluate the meaning of the “privileges or immunities” case in an appropriate case.

The cities of Chicago and Oak Park did not oppose review by the Court of the question — still open, they conceded — whether the Second Amendment should be “incorporated” through the “due process” clause. While they argued that the three old precedents against applying the Second Amendment to the states “remain good law today,” they said that the Court should address the “incorporation” question if it “believes the time is right.” However, they did oppose review of the alternative argument, under the “privileges or immunities” clause. The two petitions, the cities contended, had not shown why the Court should consider “breaking with precedent” that long ago excluded that clause as a mechanism for “incorporation.” Their opposition papers went on to discuss why “incorporation” should not now be declared. Any “liberty interest” that due process may protect is, at least when it comes to having a gun for self-defense in the home, fully protected because guns other than handguns were allowed in the cities under the present ordinances.

If the Court did take on that issue, the cities suggested, the Court should not go further and review the constitutionality of the specific ordinances under challenge. No record on the scope of those laws was made in the lower courts, because all of the focus had been on the Second Amendment issue, the cities said.

By the time the Justices scheduled the two cases for initial consideration, in their first Conference late last September, the conflict among the Circuit Courts had come to at least a temporary end, when the Ninth Circuit Court voted to vacate and then reconsider en banc its ruling “incorporating” the Second Amendment through the “due process” clause. Even so, on Sept. 30, the Supreme Court agreed to take on the issue, granting review of the McDonald petition. It made no mention of the NRA petition. Later, because the NRA was supporting the McDonald plea for “incorporation,” the NRA was treated under the Court’s rules as a “respondent” in support of the McDonald group; that gave the NRA’s lawyers a full right to take part in the briefing.

Merits Briefs

With a call for the Court to return to the drafting of the Fourteenth Amendment beginning in 1866, the McDonald merits brief put forth a strong plea for “the text’s original public meaning.” The people at the time, it argued, understood that Amendment to safeguard “a broad array of pre-existent natural rights believed secured by all free governments, as well as the personal rights memorialized in the Bill of Rights. The Fourteenth Amendment’s framers used language that successfully accomplished their intent.” The bulk of the brief rested the “incorporation” argument on the “privileges or immunities” clause, and its reexamination of history was keyed largely to that. The “due process” argument is confined to a few concluding paragraphs focused on the “fundamental” nature of gun rights, and the fact that most of the remainder of the Bill of Rights has already been “incorporated” into the Fourteenth Amendment.

Seeking to guide the Court through the Fourteenth Amendment’s origins, the brief suggested that the framers had intended it to embrace virtually all “the natural rights of man,” perhaps so great in number that all of them could not be enumerated. Clearly, the brief asserted, it included all of the rights spelled out formally in the Bill of Rights, but went further to command respect for all “fundamental guarantees” of citizenship in a free country. One of Congress’ specific aims in writing the Fourteenth Amendment, it asserted, was to repudiate the Supreme Court’s decision in Barron v. Baltimore limiting the Bill of Rights to safeguard against the national government only.

After Congress had completed its work, the brief said, the new Amendment went out to the ratifying public, and thus the nation as a whole embraced the original sweep of rights that were being safeguarded. Clearly included in that public understanding, according to the McDonald brief, was the personal right to the security of having a gun for personal use.

Moving beyond the original meaning argument, the brief then energetically attacked the Slaughter-House Cases precedent curbing the scope of “privileges or immunities” along with the Cruikshank and Presser precedents. Each, it argued, misunderstood what the clause had intended, and should now be overruled. “These cases,” it contended, “established that the states could continue to violate virtually all privileges and immunities of American citizens, including those codified in the Bill of Rights, notwithstanding [the Fourteenth Amendment's] clear textual command to the contrary.”

Slaughter-House, the brief said, “announced a theory of the privileges or immunities clause never apparently considered by anyone during the framing and ratification process, standing diametrically opposed to every statement of intent and understanding related to the privileges or immunities clause.” That theory, it noted, was that the clause only protected the rights that citizens enjoyed at the national level, a very narrow list, indeed.

The NRA merits brief, in sharp contrast, suggested that the Court need not overrule any prior precedent in order to make the Second Amendment applicable to state and local laws. The Court, it noted, had never ruled directly on whether the Second Amendment was “incorporated” through the “due process” clause of the Fourteenth. Recalling the series of cases using that approach to extend other Amendments to the states, the brief said the Court has long been engaged in the process of assuring protections for all rights that are an “essential feature of all free governments.” The Bill of Rights, it added, is “the most natural place” to find what those rights are — and, of course, that includes the right to keep and bear arms.

“There can be no doubt,” it contended, “that the right to keep and bear arms protected by the Second Amendment easily meets the test set forth in this Court’s selective incorporation precedent. It is a right ‘fundamental’ to ‘liberty,’ ‘a free society, ‘free government,’ the ‘liberty…at the base of all our civil and political institutions,’ and ‘ordered liberty.’ The Second Amendment is the only provision of the Bill of rights that declares its own essential link to liberty and a free society” — pointing to the Amendment’s preamble, the right protected being “necessary to the security of a free state.” (The NRA later gained the chance to present 10 minutes of oral argument by contending that the McDonald brief had underplayed the “due process” argument, which NRA vowed to stress at the podium.)

The NRA filing, though, offered the Court two other potential paths for “incorporating” the Second Amendment. One would be to declare that the gun right is one of the privileges and immunities of national citizenship — thus giving it full protection even without overruling the Slaughter-House Cases precedent, which found that only national rights were protected by the clause. The second path, the brief indicated, is the only one requiring an overruling: casting aside Slaughter-House to ensure that gun rights are fully protected under the “privileges or immunities” clause. The overruling, it suggested, would be based on the premise that the right to guns predates the founding of this country, and thus is a basic attribute of citizenship.

The cities of Chicago and Oak Park, in their combined merits brief, dealt with the “incorporation” question primarily as a social policy issue — that is, it contended that guns “are designed to injure or kill,” so access to them could not possibly be regarded as a right that is “implicit in the concept of ordered liberty” under the “due process” clause. While those two cities have chosen to impose outright bans on handguns, the brief said “other approaches are possible and may be effective elsewhere.” Still, it asserted, “it cannot be concluded that easy and widespread availability of firearms everywhere is necessary to protect ordered liberty.”

Reviving some of the arguments that had been made in the Heller case in trying to persuade the Court that the Second Amendment did not embrace a personal right to a gun, the cities’ brief said that the Second Amendment at the time of its adoption was not understood to embrace “any view that a private arms right unconnected to preservation of the militia” was a fundamental right.

It also contended that the Heller decision only assured protection of a right to possess guns for self-defense, and said that this does no more than protect against a hypothetical law that would eliminate access to every kind of firearm — a kind of law that is unlikely anywhere. The brief also made a fervent argument that Heller did not establish a free-standing constitutional right of self-defense enforceable against government.

In trying to head off an “incorporation” decision based on the “privileges or immunities” clause, the cities’ merits brief relied most heavily upon the Court’s doctrine of respecting its own precedents. The Court, it said, has consistently refused incorporation on a “privileges” clause basis, and this approach “is workable and venerable,” respects “significant reliance interests,” and reflects the understanding commonly held by those who lived through the Civil War and Reconstruction. If the clause were now used as the vehicle for “incorporating” rights, the brief warned, that “would throw into doubt the rights of aliens and corporations, make the grand jury clause and Seventh Amendment applicable to the states, and unsettle the legal status of unenumerated rights, both those that have been recognized and those that have not.”

Elaborating, the brief’s point about the rights of aliens and corporations was based on the fact that the “privileges or immunities” safeguard of the Fourteenth Amendment is limited to the rights of “citizens.” If the Court were now to require the states to respect the Bill of Rights so far as those guarantees apply to “citizens,” then aliens and corporations would find their rights at risk, not protected. Their rights now at least have some protection because they are “persons” under the “due process” clause, and thus have gained some benefit from “incorporation” of other parts of the Bill of Rights, the cities noted.

They also make an argument that such a decision would impair federalism interests, by unsettling the relationship between national and state governments.

Amicus Briefs

The proponents of applying the Second Amendment to state and local gun control laws have drawn twice as many supporting briefs from amici as do Chicago and Oak Park — 32 to 16.

Although 44 of the states already protect a right to a gun under their own state constitutions, a total of 38 states have joined in urging the Court to apply the Second Amendment to state and local laws, so as to clear up uncertainty about when millions of Americans can have guns. The states argued that the Court’s interpretation of the scope and nature of federal gun rights will help inform states as they develop or enforce their own gun laws. Fifty-eight members of the U.S. Senate and 251 members of the House added their support, too, reminding the Court of how strongly Congress has supported gun rights. Prominent constitutional law scholars, and a wide array of gun advocacy groups and conservative organizations, also supported the extension of the Second Amendment, with much of their argument focused on the “privileges and immunities” clause.

Competing historical interpretations, and social policy arguments, are offered on the cities’ side, along with the support of 55 members of the U.S. House, a wide array of municipal organizations, and many of the nation’s most prominent gun control advocacy organizations. Much of the historical argument targeted the gun advocates’ claims about the scope of the “privileges or immunities” clause, and some of the historians renewed arguments that had been made in the Heller case against the individual right to a gun, suggesting that such a right was not a fundamental one.

Analysis

Starting with the fact that the Heller majority found a personal right to have a gun to be a right that existed even before the Constitution was written, it is difficult to imagine that a majority will do anything other than require state and local governments, too, to respect that right. For the Court to conclude that this right is peculiarly undeserving of such protection, when almost all of the other key provisions of the Bill of Rights have long since been protected against state infringement, would require the abandonment of at least some of the sentiment, if not the substance, of the Heller decision itself. But that is only the start of the inquiry about how the Court may proceed.

There is much criticism in conservative circles, no doubt shared by at least some of the Justices, over the expansive interpretations that the modern Court has given to the Fourteenth Amendment’s “due process” clause. While that might deter the Court from using that clause to extend gun rights, the simple fact is that this has been the only basis of “incorporation” of any right up to now, and a departure would be something of a jurisprudential jolt. The only viable alternative is the “privileges or immunities” clause, and the cities’ merits brief has sketched for the Court a Pandora’s box of interpretive complications — and real-world effects — of shifting to that clause as a basis for “incorporation.”

The Court’s task has also been made more difficult, not easier, by the proponents’ attempt to establish a meaning for the Fourteenth Amendment that would safeguard many as-yet-unrecognized rights, well beyond the right to have a gun for self-defense in the home (which is, so far, all that Heller protected). The argument, in attempting to head off state infringement on gun rights, that the Amendment embraces virtually every right that a free person could possibly claim is so open-ended that the Court might have real problems accepting it and then trying to hold it in check.

The way out for the Court, then, may be to decide the case on an extremely narrow basis, dealing only with the very specific right established by Heller, and saying that, while that right is so fundamental that it applies to all government, it can be regulated by state and local agencies if they can demonstrate clearly that they have done so reasonably. As it did in Heller, the Court may well reiterate, and further clarify, examples of valid regulation that states, counties and cities might undertake. But, as to the two cities’ laws directly at issue, the Court seems unlikely to go ahead and rule on their constitutionality, leaving that task in the first instance to the lower courts when the cases return to them.

It is a virtual certainty, of course, that any decision that emerges is likely to divide the Court deeply, as Heller did. Thus, the decision in the case is likely to be one of the last to emerge from the Court near Term’s end.

Links and Further Information

Pre-Argument

Media Links

• New York Times: Justices Will Weigh Challenge to Gun Laws (Sep. 30, 2009)
• Los Angeles Times: Supreme Court Takes Gun Case that Will Test Reach of 2nd Amendment (Oct. 1, 2009)
• Wall Street Journal: High Court Agrees to Hear Gun Rights Case (Oct. 1, 2009)
• Washington Post: Justices to Decide if State Gun Laws Violate Rights (Oct. 1, 2009)
• Los Angeles Times: A Supreme Court Gunfight (Oct. 6, 2009)
• UPI: U.S. Supreme Court: Gun Control on Culture War's Front Burner (Oct. 18, 2009)
• Washington Times: A Gun Case or Pandora's Box? (Dec. 11, 2009)
• Chicago Tribune: The Public Face of Gun Rights (Jan. 30, 2010)
• Washington Post: NRA, Onetime Ally Feud Over Next Big Guns Case to Go Before Supreme Court (Feb. 8, 2010)
• Bloomberg: Local Gun-Control Laws Come Into Sights of U.S. Supreme Court (Feb. 19, 2010)
• Wall Street Journal: Handgun Case Creates Odd Alliances (Feb. 19, 2010)
• Washington Times: Shapiro & Blackman: Using Guns to Protect Liberty (Feb. 23, 2010)
• USA Today: High Court to Define Reach of Gun-Control Laws (Feb. 25, 2010)
• McClatchy: Supreme Court Case Could Limit Local Controls on Firearms (Feb. 26, 2010)
• Los Angeles Times: Gun Rights Case Likely to be Landmark Supreme Court Ruling (Feb. 28, 2010)
• San Jose Mercury News: U.S. Supreme Court to Take on Battle Over Gun Rights (Feb. 28, 2010)
• UPI.com: U.S. Supreme Court: Gun Case on Way to Supreme Court Creates Strange Bedfellows (Feb. 28, 2010)
• Chicago Sun-Times: Mayor Daley 'Optimistic' Supreme Court Will Uphold City's Handgun Ban (Mar. 1, 2010)
• Christian Science Monitor: Supreme Court to Take Up Landmark Gun-Control Case (Mar. 1, 2010)
• CNN: Supreme Court to Address Limits of Gun Control (Mar. 1, 2010)
• National Law Journal: The Most Dangerous Right (Mar. 1, 2010)
• National Public Radio: Supreme Court To Hear Chicago Gun Rights Case (Mar. 2, 2010)
• The Wall Street Journal: Guns and the States (Mar. 2, 2010)
• Washington Post: Gun Case Presents Quandary for Supreme Court Justices (Mar. 2, 2010)
• Washington Post: High Noon for High Court on Gun-Rights Case (Mar. 2, 2010)

From the Blogosphere

• American Constitution Society Blog: High Court to Review Chicago Gun Ban (Sep. 30, 2009)
• Sentencing Law and Policy: What is the Best Argument that Heller Should Only Impact the Feds? Will it Get Any Votes? (Sep. 30, 2009)
• National Law Journal: Supreme Court Adds 12 Cases to Docket, Including a Second Amendment Sequel (Oct. 1, 2009)
• PrawfsBlawg: Distinguishing Article IV "Privileges and Immunities" from Section One "Privileges or Immunities" (Oct. 1, 2009)
• Huffington Post: The Gun Issue Is Back in the Supreme Court: What Does it Mean? (Oct. 5, 2009)
• FindLaw: Does the Second Amendment Bind the States? (Oct. 6, 2009)
• SCOTUSblog: History Lesson on 2nd Amendment's Reach (Nov. 16, 2009)
• CBS Taking Liberties Blog: Second Amendment Protects All Americans, Supreme Court Told (Nov. 17, 2009)
• The Volokh Conspiracy: NRA Brief in McDonald v. Chicago (Nov. 17, 2009)
• The Volokh Conspiracy: How Many Votes to Overrule the Slaughterhouse Cases? (Nov. 17, 2009)
• The Volokh Conspiracy: How I'd Approach the Privileges or Immunities Issue in McDonald (Nov. 18, 2009)
• The Volokh Conspiracy: Predicting McDonald (Nov. 18, 2009)
• Sentencing Law and Policy: Should Criminal Justice Reform Groups Actively Urge SCOTUS to Overrule the Slaughterhouse Cases? (Nov. 18, 2009)
• WSJ Law Blog: Will Gun-Control Prompt a Constitutional Reawakening? (Nov. 19, 2009)
• Balkinization: The Privileges or Immunities Clause and the Constitutional Rights of Aliens (Nov. 24, 2009)
• SCOTUSblog: Amici Filings in 2d Amendment Case (Nov. 24, 2009)
• Sentencing Law and Policy: Seeking Help Working Through the Second Amendment Amicus Briefs Filed in McDonald (Nov. 24, 2009)
• The Volokh Conspiracy: Originalism and the Sixth Amendment Right "To Have the Assistance of Counsel" (Nov. 24, 2009)
• The Volokh Conspiracy: Does the Cert. Grant in McDonald Suggest the Court Would Rethink Slaughterhouse? (Dec. 6, 2009)
• The Volokh Conspiracy: Privileges or Immunities Extravaganza (Dec. 21, 2009)
• The BLT: NRA Will Argue in Second Amendment Case (Jan. 25, 2010)
• The Volokh Conspiracy: NRA Gets Oral Argument Time in McDonald v. City of Chicago (Jan. 25, 2010)
• WSJ Law Blog: Lawyer Fight! Plot Thickens in Huge High Court Gun-Control Case (Feb. 8, 2010)
• Reason.com: The NRA Muscles Into McDonald v. Chicago (Feb. 10, 2010)
• American Constitution Society Blog: In Second Amendment Case, Friends are Foes and Foes, Friends (Feb. 19, 2010)
• Josh Blackman's BlogL: Did Scalia Write that the Second Amendment Should Not Be Incorporated? Not Really. (Feb. 19, 2010)
• Reason.com: Does Justice Scalia Think the Second Amendment Applies Only to the Federal Government? (Feb. 19, 2010)
• Text and History: McDonald Argument Preview: Big Questions for the Roberts Court in Gun Case (Feb. 22, 2010)
• American Constitution Society Blog: McDonald v. Chicago: A Debate About Gun Control or the Original Meaning of the Fourteenth Amendment? (Feb. 24, 2010)
• American Constitution Society Blog: Pre-Argument Analysis: McDonald v. City of Chicago (Mar. 1, 2010)

Post-Argument

Media Links

• Christian Science Monitor: Supreme Court Seems Ready to Extend Gun Rights to Cities, States (Mar. 2, 2010)
• CNN: Justices Debate Chicago Handgun Ban (Mar. 2, 2010)
• Fox News: What Do the Supremes Think of Chicago's Gun Ban? (Mar. 2, 2010)
• Kansas City Star: Supreme Court Hears Arguments on Chicago Handgun Law (Mar. 2, 2010)
• Los Angeles Times: Justices Signal They're Ready to Make Gun Ownership a National Right (Mar. 2, 2010)
• National Law Journal: Justices Shoot Down Privileges Argument in Gun Case (Mar. 2, 2010)
• National Public Radio: Chicago Handgun Ban In Jeopardy At Supreme Court (Mar. 2, 2010)
• National Review Online: Supreme Court Misfires on McDonald Argument (Mar. 2, 2010)
• New York Times: Supreme Court Still Divided on Guns (Mar. 2, 2010)
• New York Times: Tailgating Outside the Supreme Court, Without the Cars (Mar. 2, 2010)
• USA Today: High Court Considers Reach of Second Amendment Regulation (Mar. 2, 2010)
• Wall Street Journal: The Second Amendment and the States (Mar. 2, 2010)
• The Atlantic: The McDonald Gun Case: Here to Serve You (Mar. 3, 2010)
• Bloomberg: Give Us a Right to Be Free of Those Who Bear Arms (Mar. 3, 2010)
• Wall Street Journal: New Ammunition for Gun Rights (Mar. 3, 2010)
• Wall Street Journal: So Where's Your Originalism Now, Justice Scalia? (Mar. 3, 2010)
• Washington Post: Supreme Court Does More Wrangling With Gun Laws (Mar. 3, 2010)
• Washington Post: Justices Arm Themselves with Activism in Chicago Gun Ban Case (Mar. 3, 2010)
• The Chicago Tribune: Chicago's Pointless Handgun Ban (Mar. 4, 2010)
• The Christian Science Monitor: Behind Supreme Court Case: Do Gun Rights Protect Against Tyranny? (Mar. 4, 2010)
• The Economist: Old McDonald Hadn't an Arm (Mar. 4, 2010)
• The Columbus Dispatch: Supreme Court Should Uphold Local, State Regulation of Guns (Mar. 7, 2010)
• The Washington Post: How the Constitution, Filtered by the High Court, Affects Guns (Mar. 7, 2010)
• Washington Examiner: Is Justice Scalia Abandoning Originalism? (Mar. 8, 2010)
• Chicago Tribune: If the Court Kills the Ban (June 7, 2010)
• Atlanta Journal-Constitution: Court Poised to Change Gun Debate (June 15, 2010)
• Chicago Sun-Times: Daley Ready to Respond if Chicago's Handgun Ban Overturned (June 25, 2010)
• Chicago Tribune: City Ready to Reload with Gun Law if Handgun Ban Is Shot Down (June 25, 2010)

From the Blogosphere

• American Constitution Society Blog: Supreme Court Considers Reach of Second Amendment (Mar. 2, 2010)
• Balkinization: Don't Trash the Constitution, Justice Scalia (Mar. 2, 2010) (cross-posted at Huffington Post)
• Blog of Legal Times: In Chicago Gun Case, Supreme Court Sounds Note of Caution (Mar. 2, 2010)
• Concurring Opinions: Thoughts on the McDonald Argument (Mar. 2, 2010)
• CQ Researcher Blog: Justices Set To Enforce Gun Rights (Mar. 2, 2010)
• Constitutional Law Prof Blog: Oral Arguments in McDonald (Mar. 2, 2010)
• Josh Blackman's Blog: McDonald v. Chicago Instant Analysis (Mar. 2, 2010)
• Sentencing Law and Policy: Could there be Five Votes for Only "Partial" Incorporation of the Second Amendment? (Mar. 2, 2010)
• The Volokh Conspiracy: A Few Thoughts on the McDonald Argument (Mar. 2, 2010)
• The Volokh Conspiracy: Married Women’s Property Rights and the Privileges or Immunities Clause (Mar. 2, 2010)
• The Volokh Conspiracy: "Reasonable Regulation" and McDonald (Mar. 2, 2010)
• WSJ Law Blog: Will McDonald Case, After All, Be Much Ado About (Relatively) Little? (Mar. 2, 2010)
• American Constitution Society Blog: Supersizing the Second Amendment? (Part I) (Mar. 3, 2010)
• Balkinization: Guns, Abortion, and the McDonald Oral Argument (Mar. 3, 2010)
• The Volokh Conspiracy: Hey Orin (Mar. 3, 2010)
• The Volokh Conspiracy: More on the McDonald Argument: A Reply to Randy (Mar. 3, 2010)
• American Constitution Society Blog: Supersizing the Second Amendment? (Part II) (Mar. 4, 2010)
• Balkinization: Overrule Cruikshank, not Slaughter-House (Mar. 4, 2010)
• PrawfsBlawg: Thoughts on McDonald v. Chicago (Mar. 4, 2010)
• American Constitution Society Blog: McDonald and the Future of the Privileges or Immunities Clause (Mar. 5, 2010)
• Blog of Legal Times: Message from Malta: Kmiec Comments on Chicago Gun Case (Mar. 5, 2010)
• Law.com: Guns, Virtuous History and Internet Searches (Mar. 8, 2010)
• Slate: Gun Points (Mar. 8, 2010)
• The Volokh Conspiracy: McDonald, Constitutional Theory, and the Confirmation Process (Mar. 8, 2010)
• WSJ Law Blog: Is Thomas the Last Hope for a ‘Privileges or Immunities’ Revolution? (Mar. 8, 2010)
• Law.com: Despite High Court Skepticism, Advocates Defend Privileges Clause Push (Mar. 10, 2010)
• PrawfsBlawg: Grutter-izing the Second Amendment? (Mar. 15, 2010)
• PrawfsBlawg: The Oddest Omission in McDonald v. Chicago (Apr. 1, 2010)
• Huffington Post: Will Supreme Court Do the Right Thing? (June 7, 2010)
• Josh Blackman's Blog: Who Will Write McDonald v. Chicago? (June 15, 2010)
• Sentencing Law and Policy: Mark Your Calendars for Monday, June 28, Second Amendment Fans (June 24, 2010)
• Josh Blackman's Blog: My Final Predictions for McDonald v. Chicago (June 27, 2010)

Post-Opinion

Media Links

• Boston Globe: Silver Lining on Chicago Gun Decision (June 28, 2010)
• BBC News: US Supreme Court Extends Gun Rights (June 28, 2010)
• CBS News: Supreme Court Gun Rights Decision: A Win or a Setback? (June 28, 2010)
• Chicago Sun-Times: Chicago Grandpa Who Filed Gun Suit: "I'm So Happy" (June 28, 2010)
• Christian Science Monitor: The Supreme Court Fun Rights Decision Leaves Loopholes (June 28, 2010)
• The Guardian: Gun Lobby Victory as Every American's Right to Bear Arms Upheld by Ruling (June 28, 2010)
• National Public Radio: High Court: Gun Rights Apply Across the Nation (June 28, 2010)
• NBC New York: Supreme Court Gun Decision Won't Affect NYC (June 28, 2010)
• New York Times: Justices Extend Firearm Rights in 5-to-4 Ruling (June 28, 2010)
• USA Today: Supreme Court Ruling Tilts Law Against Limits on Guns (June 28, 2010)
• CNN: High Court Strikes Down Chicago Handgun Ban (June 29, 2010)
• Washington Post: Supreme Court Affirms Fundamental Right to Bear Arms (June 29, 2010)
• Washington Post: In Clarence Thomas's Gun Rughts Opinion, Race Plays a Major Role (June 30, 2010)
• Chicago Tribune: Daley Proposes New Handgun Ordinance (July 1, 2010)
• Wall Street Journal: Chicago Mayor Proposes Tighter Gun Rules (July 1, 2010)
• The Detroit News: Supreme Court Opens Door to More Liberty (July 5, 2010)
• National Public Radio: Some DC Residents Say it's Too Hard to Get a Gun (July 5, 2010)
• National Public Radio: Supreme Court Ruling Fuels Chicago's Handgun Debate (July 5, 2010)
• Forbes: Court Wrong on the Chicago Gun Case (July 6, 2010)
• Chicago Tribune: Race Cases Win Gun Rights for All (July 7, 2010)
• Boston Globe: Residents, Group Sue Over Chicago Gun Rules (July 8, 2010)
• Los Angeles Times: Chicago's New Gun Ordinance Takes Effect, Replacing a Ban Supreme Court Made Unenforceable (July 12, 2010)
• National Law Journal: McDonald Typifies Need for Consensus (July 12, 2010)
• ABC News: Gun Sales Expected to Shoot Up (July 16, 2010)

From the Blogosphere

• American Constitution Society Blog: McDonald v. Chicago: A Major Shift in Constitutional Doctrine, Unlikely to Force Significant Change in Gun Contro (June 28, 2010)
• Josh Blackman's Blog: The Future of Privileges or Immunities After McDonald v. Chicago (June 28, 2010)
• New York Times Room for Debate Blog: What Bolstering Gun Rights Will Mean (June 28, 2010)
• Politico: Supreme Court Ruling Could Prompt Lawsuits (June 28, 2010)
• The Volokh Conspiracy: McDonald v. City of Chicago and the Standard of Review for Gun Control Laws (June 28, 2010)
• The Volokh Conspiracy: Why Not the Privileges or Immunities Clause? (June 28, 2010)
• Washington Post PostPartisan Blog: The Supreme Court Gun Decision Moves Us Toward Anarchy (June 28, 2010)
• Sentencing Law and Policy: Effective Review of State Gun Laws Likely to Be Challenged After McDonald (June 30, 2010)
• Concurring Opinions: More Thoughts on McDonald (July 1, 2010)
• Reason: The Aftermath of McDonald v. Chicago (July 1, 2010)
• Balkinization: Supreme Court Holds that Congress has Incorporated the Entire Bill of Rights (July 2, 2010)
• Josh Blackman's Blog: Why Did Justice Alito Write McDonald v. Chicago? Perhaps Alito is More Receptive to Privileges or Immunities than We Thought... (July 5, 2010)
• The Constitutional Holding of McDonald (July 6, 2010)
• The Volokh Conspiracy: Suit Against the New Chicago Anti-Gun Laws (July 6, 2010)
• WSJ Law Blog: Predicted Gun-Litigation Flurry Starts With a Bang in Chicago (July 7, 2010)
• Josh Blackman's Blog: Justice Thomas on the Use of Legislative History in McDonald (July 14, 2010)

Expert Commentary from SCOTUSblog

• McDonald Impact: More State Court Litigation (Douglas Berman)
• McDonald: Big Victory for Liberty (Ilya Shapiro)
• McDonald Impact: Slew of New Legal Challenges (Steven Calabresi)
• A Challenge of Heller's Historical Interpretations (Jack Rakove)
• Thomas' Concurrence on the Privileges or Immunities Clause (Nelson Lund)
• Privileges or Immunities Clause Alive Again (Randy Barnett)
• A Minimal Effect on Gun Control (Adam Winkler)
• McDonald and the Text and History of the Fourteenth Amendment (David Gans)
• Judicial Activism, Historical Revisionism, and the Legacy of the Roberts Court (Saul Cornell)
• McDonald v. City of Chicago: Much Ado About Not Much? (Jon Lowy)
• McDonald - A Victory for the Second Amendment (Alan Gura)
• The Thick Edge of the Wedge (Alison LaCroix)
• McDonald v. Chicago: The Blockbuster of the 2009 Term? (Richard Aynes)
• McDonald v. Chicago and the Standard of Review for Gun Control Laws (Eugene Volokh)
• McDonald - Incorporation, Irony and History (Robert Cottrol)

Other Resources

• The Federalist Society: SCOTUScast Debate Featuring Clark Neily, Kurt T. Lash, and Nelson Lund