The long awaited decision in McDonald v. Chicago is out, with the result that was expected by most court watchers. Following on the heels of the Heller decision (D. C. gun ban case), the Supreme Court ruled that the personal right to keep and bear arms applies not only to the federal government and its jurisdictions but to state and local governments as well. Justice Alito wrote for the plurality in this 5-4 decision. Justices Roberts, Scalia and Kennedy joined Alito’s opinion. Justice Thomas concurred in the result but argued for different reasoning. Justices Stevens, Breyer, Ginsberg and Sotomayor dissented.
The Bill of Rights, the first ten amendments to the Constitution, was adopted in 1791. At the time, it was regarded as a state’s rights clarification of the Constitution, supported by Thomas Jefferson and written by James Madison. Madison’s initial proposals were significantly modified prior to passage. [Image above left depicts Madison arguing for the Bill of Rights]. For the first 77 years of the Bill of Rights, they were regarded as applying exclusively to the federal government and having no impact on any state’s desire to legislate to the contrary. For this reason, many of the early states incorporated their own versions of the Bill of Rights into their state constitutions.
The view of the Bill of Rights began to change after the adoption of the post civil war amendments to the Constitution, particularly the Fourteenth Amendment. Early on, the Supreme Court found, in the Slaughterhouse Cases, that the privileges and immunities clause was strictly limited as it applied to most state action. Over the years the Court developed a doctrine that the due process clause of Section 1 of the Fourteenth Amendment’s could be used to impose certain sections of the Bill of Rights on the states based on a five part test. That test is enumerated in the McDonald decision.
In the 1960’s, beginning with Gideon v. Wainwright (right to counsel), the Court broadened its perspective and began to take the view that the Fourteenth Amendment imposed virtually all of the first eight amendments of the Bill of Rights on the states. This has become known as substantive due process. It was this approach that Alito and the three who joined his opinion used in deciding McDonald and to which Thomas objected, though he joined in the ultimate judgment. Justice Thomas would have expanded the privileges and immunities clause from the interpretation of the Slaughterhouse Cases, rather than use substantive due process, to reach the decision.
The Second Amendment reads:
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.
Section 1 of the Fourteenth Amendment reads:
All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. 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; nor deny to any person within its jurisdiction the equal protection of the laws.
McDonald v. Chicago arose out of two nearly identical city ordinances, one from the City of Chicago, the other from nearby Oak Park, Illinois. The ordinances effectively banned the private ownership and possession of almost all handguns. The Court relied heavily on its recent decision in District of Columbia v. Heller for the proposition that the right to bear arms is personal and unrelated to the militia clause of the Second Amendment. The Court specifically resorted to the right of self defense, and the use of handguns for that purpose, as the undergirding for that interpretation.
The Court’s Constitutional analysis followed the history of the use of the Fourteenth Amendment and adopted the modern substantive due process approach in reaching its decision. Because of the arguments presented to the Court, many (state’s rights advocates in particular) had believed, or hoped, that the Court might take this opportunity to move away from substantive due process and resurrect the privileges and immunities clause to reach its decision. Other than Justice Thomas, the Court was disinclined to do so and, instead, accepted substantive due process as settled law.
Based upon that analysis, the Court then further accepted the proposition that substantive due process necessarily incorporated virtually the entirety of the Bill of Rights, or at least the first eight amendments, to be enforced upon state and local government. From that perspective, the Court overruled the Seventh Circuit Court of Appeals which had found the ordinances constitutional and remanded the case back to the trial court for further action based on the Supreme Court’s ruling.
The opinion, concurrence and dissenting opinions cover more than two hundred pages. For those who wish to read it, the Court’s opinion is here.
Cross posted at Elijah’s Sweete Spot.