McDonald v City of Chicago 2nd and 14th Amendments

Can Chicago ban handguns? In 1982 Chicago adopted a handgun ban. It wasn’t really a ban but a requirement to register the firearm, and possessing an unregistered one was a crime. In practice, almost all Chicago residents were banned from possessing handguns. The District Court ruled in favor of Chicago and the ban The Seventh Circuit Court of Appeals concurred. McDonald petitioned the Supreme Court and was granted cert.

The Amendments “ A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.” “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…”

Constitutional question Does the Second Amendment right to keep and bear arms apply to state and local governments through the 14th Amendment and thus limit Chicago’s ability to regulate guns?

The precedents Duncan v Louisiana (1968) So this precedent isn’t about guns but about WHY a portion of the BOR was incorporated. In this case the justices considered whether the liberty at issue was fundamental and “rooted in the tradition and conscience of the American people.” The court ruled that the 6th Amendment right to a jury trial for criminal offenses is “fundamental to the American scheme of justice.” District of Columbia v Heller (2008) DC (not a state) had a ban on handguns and the SCOTUS ruled that ban unconstitutional. The justices specifically noted that this did not apply to the states but only to DC because of the status of DC as an instrument of the federal government.

Arguments for Mcdonald Possessing a gun is a right that pre-dates even the founding of the country – guns are an important part of American culture and liberty. Almost the entire BOR is incorporated – all liberties in the BOR are fundamental rights and therefore should be incorporated under the 14th amendment If citizens can protect themselves from a tyrannical federal government it is only logical that they should also be able to do so against a tyrannical state or local government The Chicago ban obstructs the core right in Heller – to have a gun in your home for protection If it looks like a duck, quacks like a duck – it’s a duck. Just cause you don’t call it a ban doesn’t mean it isn’t one. Ruling in favor of McDonald does not create a public safety crisis – guns can still be limited.

Arguments for Chicago The Constitution and BOR are understood as limits on the federal government not the states Heller said the ban on guns was unconstitutional at the federal level only The right to keep a handgun is not a fundamental or established American tradition that warrants incorporation In Heller the SCOTUS said the right is not absolute – regulations are ok Chicago wasn’t actually banning guns but regulating them States/local governments should be allowed to make their own judgements re: public safety and gun control.

A 5 – 4 ruling The justices found that the 2nd Amendment was not only a fundamental right but based on historical records, guns were in fact rooted in the American tradition. It is “necessary to our system of ordered liberty.” Self-defense is a basic right and individual self-defense is the central component of the 2nd Amendment. Four of the five said the ruling “does not imperil every law regulating firearms.” Reasonable gun restrictions would still be allowed. However, only 4 justices signed this part of the opinion so it is not the law.

The dissents Stevens argued that the 2nd Amendment was adopted to protect the states from federal encroachment (that is why it says well-regulated militia). It makes no sense to apply that against state and local governments. Justice Breyer (joined by two others) said there was nothing in the text, history or underlying rationale that made it “fundamental” nor did it say anything about private self-defense. He also criticized the court for transferring the regulation of private firearm use away from the states.