The changing landscape of firearm legislation in the wake of McDonald v. City of Chicago.

• Author: Nieto, Michael

The Second Amendment, which enshrined the right to keep and bear arms, (1) has become one of the most contentiously debated amendments in the Bill of Rights. (2) Recently, legislation has restricted the ability to carry, use, or even own firearms. (3) The District of Columbia enacted regulations in 2001 making it a crime to possess usable unregistered firearms even in the home while, at the same time, prohibiting the registration of handguns. (4) In District of Columbia v. Heller, the Supreme Court struck down the law and ruled that the prohibition on possessing handguns for use in defense of an individual's home violated the Second Amendment. (5) Last Term, in McDonald v. City of Chicago, (6) the Court extended Heller to the States by incorporating the Second Amendment through the Due Process Clause of the Fourteenth Amendment. (7) The Court's decision in McDonald is consistent with both Heller and America's long history of gun ownership by its citizens. In its decision, the Court correctly concluded that "individual self-defense is 'the central component" of the Second Amendment right" to keep and bear arms. (8) The Court's analysis would be stronger, however, if it incorporated the right under the Fourteenth Amendment's Privileges or Immunities Clause--an argument that the petitioners proposed and the Court dodged--because such an approach would be more legitimate and would not open a path for activist judges to impose new restrictions on the States based on their political ideologies.

In McDonald, three gun rights organizations and a group of residents challenged ordinances in Chicago and its Oak Park suburb that effectively banned the possession of handguns by private citizens. (9) Otis McDonald, one of the petitioners, lived in Chicago and wanted to possess a handgun in his home for self-defense because he was in his late seventies and lived in a neighborhood with a high crime rate. (10) Handgun possession, however, was restricted by a Chicago firearms ordinance that stated that "[n]o person shall ... possess ... any firearm unless such person is the holder of a valid registration certificate for such firearm." (11) The law also prohibited the registration of most types of handguns, effectively banning nearly all possession for private residents of the city. (12) The Chicago City Council stated that the handgun ban was designed to protect residents "from the loss of property and injury or death from firearms." (13) The petitioners disagreed that the ban increased their safety and alleged that the handgun ban actually left them more vulnerable to crime. (14) In support of this position, the petitioners cited amicus briefs noting that the percentage of murders committed with handguns increased nearly forty percent between 1983 and 2008, the years in which the handgun ban was in force. (15)

The petitioners sought protection from this violence in the form of home firearm possession. McDonald, for example, was a community activist who devoted substantial time to alternative policing methods, attempting to increase safety in his neighborhood. Because of his efforts he received violent threats from nearby drug dealers. (16) Another petitioner, Colleen Lawson, had been the victim of a home burglary and believed possessing a handgun would decrease her chances of being killed or seriously injured in future attacks. (17) The petitioners owned handguns but were forced to keep them outside the city limits instead of inside their homes, which made them ineffectual for self-defense in the home.

Following the Supreme Court's decision in Heller, McDonald filed suit against the City of Chicago in the United States District Court for the Northern District of Illinois, seeking a ruling that Chicago's handgun ordinances violated the Second and Fourteenth Amendments to the Constitution. (18) The National Rifle Association (NRA) and two residents filed a similar challenge to an Oak Park ordinance. (19) The three district court cases were assigned to the same judge, who rejected the plaintiffs' claims under Seventh Circuit precedent that "squarely upheld the constitutionality of a ban on handguns a quarter century ago." (20)

The Seventh Circuit affirmed the decision, basing its conclusion on a trio of cases from the nineteenth century: United States v. Cruikshank, (21) Presser v. Illinois, (22) and Miller v. Texas, (23) which were decided in the wake of the Supreme Court's analysis of the Privileges or Immunities Clause of the Fourteenth Amendment in the Slaughter-House Cases. (24) Although "[t]he Seventh Circuit described the rationale of those cases as 'defunct' and recognized that they did not consider the question whether the Fourteenth Amendment's Due Process Clause incorporates the Second Amendment right to keep and bear arms," (25) the court nonetheless felt obligated to follow the Supreme Court precedent and affirmed the judgment of the district court. (26) The Supreme Court granted certiorari. (27)

On appeal, the petitioners argued that the Court should overturn the handgun bans on two grounds. First, they contended that the right to possess handguns is among the "privileges or immunities of citizens of the United States" and that the Court should reject the narrow interpretation of the Privileges or Immunities Clause taken in the Slaughter-House Cases. (28) Second, they argued that the Fourteenth Amendment's Due Process Clause incorporates the Second Amendment right to keep and bear arms. (29) Respondents refuted both arguments. First, they pointed to a long line of precedent where the Court declined to incorporate the Bill of Rights through the Privileges and Immunities Clause. (30) Second, they argued that a right established in the Bill of Rights applies to the States only if it is an indispensible attribute of any "civilized" legal system. (31)

Drawing on its decision in Heller, the Supreme Court held five to four that the local handgun bans were unconstitutional because the Fourteenth Amendment incorporates the Second Amendment. (32) Justice Alito, writing for the majority, began his analysis with an interpretation of how the provisions found in the Bill of Rights relate to the States. (33) The Bill of Rights and all its provisions initially applied only to the federal government. (34) Chief Justice Marshall in Barron ex rel. Tiernan v. Mayor of Baltimore, for example, rejected the theory that the first eight Amendments limited state power and instead held that they applied only to the federal government. (35) It was not until after the Civil War and the passage of the Court began incorporating the Bill of Rights against the States. (36)

The majority went on to embrace what has become the traditional, if somewhat flawed, doctrinal approach to incorporating the Bill of Rights against the States. Section one of the Fourteenth Amendment provides that a state may not abridge "the privileges or immunities of citizens of the United States" or deprive "any person of life, liberty, or property, without due process of law." (37) Arguably, a facial reading of the text of the Amendment restricts the States' ability to abridge constitutional rights. So read, the gun ordinances are of questionable validity. Just four years after the ratification of the Amendment, however, the Court was asked to interpret the meaning of "privileges or immunities of citizens of the United States." In the Slaughter House Cases, Justice...