RESPONDENT: City of Chicago
LOCATION: U.S. Court of Appeals for the Seventh Circuit
DOCKET NO.: 08-1521
DECIDED BY: Roberts Court (2009-2010)
LOWER COURT: United States Court of Appeals for the Seventh Circuit
CITATION: 561 US 742 (2010)
GRANTED: Sep 30, 2009
ARGUED: Mar 02, 2010
DECIDED: Jun 28, 2010
Alan Gura - for the petitioners
James A. Feldman - for the respondents
Paul D. Clement - for respondents National Rifle Association et al. in support of the petitioners
Facts of the case
Several suits were filed against Chicago and Oak Park in Illinois challenging their gun bans after the Supreme Court issued its opinion in District of Columbia v. Heller. In that case, the Supreme Court held that a District of Columbia handgun ban violated the Second Amendment. There, the Court reasoned that the law in question was enacted under the authority of the federal government and, thus, the Second Amendment was applicable. Here, plaintiffs argued that the Second Amendment should also apply to the states. The district court dismissed the suits. On appeal, the U.S. Court of Appeals for the Seventh Circuit affirmed.
Does the Second Amendment apply to the states because it is incorporated by the Fourteenth Amendment's Privileges and Immunities or Due Process clauses and thereby made applicable to the states?
Media for McDonald v. ChicagoAudio Transcription for Oral Argument - March 02, 2010 in McDonald v. Chicago
Audio Transcription for Opinion Announcement - June 28, 2010 in McDonald v. Chicago
John G. Roberts, Jr.:
Justice Alito has our opinion this morning, in case 08-1521, McDonald versus the City of Chicago.
Samuel A. Alito, Jr.:
Two years ago in District of Columbia versus Heller, we held that the Second Amendment protects an individual right to keep and bear arms in the home for purposes of self-defense.
The Heller case did not involve a law enacted by a state or by any subdivision of a state, and therefore, Heller did not decide whether the Second Amendment applies to the states.
This case requires us to address that question.
This litigation began when several Chicago residents brought suit, challenging Chicago ordinances that effectively ban handgun possession by virtually all private persons in the city.
Chicago has high rates of violent crime and the Chicago residents who brought suit, fear for their safety and want to keep handguns in their homes for self-protection.
The litigation against Chicago and similar litigation against the Chicago suburb of Oak Park were dismissed by the district court and the Seventh Circuit affirmed, relying primarily on several cases decided by this case -- this Court in the late 19th Century.
We granted certiorari.
In order to explain the question, we must decide, it's helpful to review very briefly some basic constitutional history.
The provisions of the Bill of Rights originally applied only to the Federal Government and that is how things stood until after the Civil War.
After the Civil War, the ratification of the Thirteenth, Fourteenth and Fifteenth Amendments changed the relationship between the Federal Government and the states.
Two provisions of the Fourteenth Amendment figure in the present case.
The first is the Privileges or Immunities Clause which prohibits a state from abridging "the privileges or immunities of citizens of the United States.”
The second is the Due Process Clause of the Fourteenth Amendment which prohibits a state from depriving any person of life, liberty or property without due process of law.
At the time of the ratification of the Fourteenth Amendment, there were those who thought that the phrase "Privileges or Immunities of citizens of the United States" protected all of the rights guaranteed by the Bill of Rights and there are prominent scholars today who continue to hold that view.
The meaning of the Privileges or Immunities Clause came before the Court in the Slaughter-House Cases in 1873.
In that case, in a sharply divided decision, the Court gave the Privileges or Immunities Clause of their own very narrow interpretation and the late 19th Century cases on which the Seventh Circuit relied have generally been interpreted as holding that the right to keep and bear arms does not qualify as one of the privileges or immunities of national citizenship.
While the Slaughter-House Cases meant that the right set out in the Bill of Rights would not be protected by the Privileges or Immunities Clause against infringement by the states, the Court beginning around the turn of the Century began to consider whether those rights were protected against abridgment by the states under the Due Process Clause of the Fourteenth Amendment.
The Court's decisions on this question fall into two distinct errors.
The first runs from around to the end of the 19th Century until roughly the middle of the 20th Century.
The second one is from the end of the prior era to the present day and has featured what has often been called the process of “selective incorporation.”
Now let me return to the pre-selective incorporation era.
The three characteristics of the cases that were handed down during that period should be noted.
First, some of the Court's cases during this era said that the Due Process Clause protects only those rights that are indispensable characteristics of any civilized society.
Second, the Court during that time was not hesitant to hold that a right set out in the Bill of Rights was not protected by the Due Process Clause.
And third, even when a right set out in the Bill of Rights was held to fall within the conception of due process, the protection or the remedies that were available against the states often differed from the protection or remedies that were available against the Federal Government.
During this pre-selective incorporation era, there was viable theory concerning the relationship between the Bill of Rights and the states and that has often been called the theory of "total incorporation" which as the name suggests meant that the Due Process Clause would be totally incorporated -- would totally incorporate all of the provisions of the Bill of Rights.
The Court never accepted that theory, but eventually it moved in that direction by beginning the process of selective incorporation.
And selective incorporation meant that the Court incorporated provisions of the Bill of Rights one-by-one rather than all at once.
The Court abandoned the three characteristics of the earlier era that I have previously noted.