561 U.S. 742 (2010)
In 2008, the Supreme Court decided District of Columbia v. Heller.1 The Court held that the Second Amendment protects the right to keep and bear arms for self-defense.2 It struck down a District of Columbia law that banned handgun possession in the home.3
Chicago and the village of Oak Park maintained laws effectively banning handgun possession by almost all private citizens.4 Chicago's Municipal Code required a valid registration certificate for any firearm.5 It prohibited registration of most handguns.6 Oak Park made it unlawful to possess any firearm, including pistols, revolvers, and other handguns.7
Otis McDonald, Adam Orlov, Colleen Lawson, and David Lawson were Chicago residents.8 Along with the National Rifle Association and two Oak Park residents, they filed federal suits challenging these ordinances after the Heller decision.9 Chicago enacted its handgun ban in 1982 to protect residents from loss of property and injury or death from firearms.10 The petitioners argued that the bans left them vulnerable to criminals.11 They pointed to Chicago Police Department statistics showing that the city's handgun murder rate had increased since the ban.12 Chicago residents faced one of the highest murder rates in the country along with elevated rates of other violent crimes.13
Several petitioners had personal experiences with threats and violence.14 Otis McDonald, in his late seventies and living in a high-crime neighborhood, faced violent threats from drug dealers because of his community activism with alternative policing strategies.15 Colleen Lawson's home had been targeted by burglars.16 She believed possessing a handgun would decrease her chances of serious injury or death if threatened again.17
The Chicago petitioners and two groups filed suit in the United States District Court for the Northern District of Illinois.18 They sought a declaration that the handgun ban and related ordinances violated the Second and Fourteenth Amendments.19 A separate action challenged the Oak Park law.20 A third action also challenged the Chicago ordinances.21 All three cases were assigned to the same district judge.22 The District Court rejected the claims.23 It noted that the Seventh Circuit had upheld a handgun ban a quarter century earlier.24 It also noted that Heller had refrained from addressing whether the Second Amendment applied to the States.25 The Seventh Circuit affirmed.26 It relied on three nineteenth-century cases—United States v. Cruikshank, Presser v. Illinois, and Miller v. Texas—that had been decided after the Slaughter-House Cases.27 The Supreme Court granted certiorari.28
Whether the Second Amendment right to keep and bear arms for self-defense, as recognized in District of Columbia v. Heller, applies to the States through the Fourteenth Amendment?29
The Due Process Clause of the Fourteenth Amendment incorporates Bill of Rights protections that are fundamental to the Nation's scheme of ordered liberty and system of justice.30 This framework was established through selective incorporation precedents beginning in the late nineteenth century and refined in cases such as Duncan v. Louisiana.31
Yes. The Court applied the selective incorporation framework to the facts presented.32
Chicago petitioners Otis McDonald, Adam Orlov, Colleen Lawson, and David Lawson, along with the National Rifle Association and Oak Park residents, challenged ordinances that effectively banned handgun possession in the home.33 This challenge came after the Heller decision recognized the central self-defense component of the Second Amendment right.34
Chicago's Municipal Code required registration certificates while prohibiting most handgun registrations.35 Oak Park banned pistols, revolvers, and other handguns.36 These rules left residents like McDonald, who faced threats from drug dealers in a high-crime neighborhood, and Lawson, whose home had been burglarized, vulnerable.37 Their situation was directly analogous to the District of Columbia law struck down in Heller.38
The Seventh Circuit's reliance on pre-selective-incorporation cases such as Cruikshank, Presser, and Miller could not preclude modern due process analysis of whether the right is deeply rooted in the Nation's history and tradition.39
The Second Amendment right to keep and bear arms for self-defense applies to the States through the Fourteenth Amendment's Due Process Clause.
Related opinions on this issue
Justice Scalia joined the judgment of the Court and filed a concurring opinion.
He emphasized that the substantive due process framework, though not his preferred originalist approach, has been long established and narrowly limited. This allowed straightforward application here without reconsidering the doctrine.
Scalia rejected Justice Stevens's broader theory of liberty as overly subjective. He warned that it would permit judges to update rights based on personal notions rather than the traditions of the American people.
Scalia stressed that the historical methodology provides greater objectivity and restraint than Stevens's approach, which relies on vague ethico-political principles.
He noted that the right to keep and bear arms is deeply rooted in the Nation's history and tradition, satisfying even the most demanding tests for fundamental rights.
Justice Thomas concurred in the judgment but wrote separately to advocate a more straightforward path under the Privileges or Immunities Clause.
He asserted that the right to keep and bear arms is a privilege of American citizenship that the Fourteenth Amendment makes enforceable against the States. Thomas argued that the Due Process Clause speaks only to process and cannot impose substantive restraints on state legislation.
He surveyed contemporary legal authorities from the ratification era. These authorities showed that the ratifying public understood the Privileges or Immunities Clause to protect constitutionally enumerated rights, including the right to keep and bear arms.
Thomas maintained that this approach is more faithful to the text and history of the Fourteenth Amendment than reliance on substantive due process.
Justice Stevens dissented. He contended that the question is whether the particular right asserted by petitioners is protected by the Fourteenth Amendment standing on its own bottom.
Stevens argued that the right to possess a functional handgun in the home is not fundamental in the relevant sense. The Second Amendment's militia-focused origins and the States' long history of firearms regulation demonstrate that it is not deeply rooted in the Nation's traditions in a manner requiring national judicial imposition.
Stevens warned that reviving broad substantive due process claims would inject excessive subjectivity into constitutional interpretation. He noted that the Privileges or Immunities Clause's clean slate creates special hazards for judges seeking to impose their personal views of appropriate public policy.
Stevens emphasized that the democratic process remains capable of safeguarding the interest in keeping and bearing arms.
Joined by Justice Ginsburg And Justice Sotomayor
Justice Breyer dissented, joined by Justices Ginsburg and Sotomayor. He maintained that the historical record is ambiguous on whether the private self-defense right is fundamental.
Breyer argued that incorporation of the Heller right would disrupt the constitutional allocation of authority. It would remove a quintessential exercise of state police power from democratic control.
This is especially problematic given the empirical complexities of gun regulation and the absence of any consensus that the private self-defense right is fundamental. Breyer stressed that state and local governments have long regulated firearms extensively.
Judges lack the institutional capacity to make the fine-grained empirical judgments required. He concluded that the police power, legislative superiority, and federalism concerns all militate against incorporation.
Whether the Fourteenth Amendment's Privileges or Immunities Clause protects the right to keep and bear arms against state infringement?40
The Privileges or Immunities Clause of the Fourteenth Amendment protects only those rights which owe their existence to the Federal government, its National character, its Constitution, or its laws, as narrowly construed in the Slaughter-House Cases.41 It does not encompass fundamental rights predating the Federal Government.42
No. Although petitioners primarily argued that the right to keep and bear arms is among the privileges or immunities of citizens of the United States and urged rejection of the Slaughter-House Cases' narrow interpretation, the Court declined to reconsider that precedent.43
For many decades the question of rights protected against state infringement has been analyzed under the Due Process Clause rather than the Privileges or Immunities Clause.44 The facts of the Chicago and Oak Park handgun bans could be resolved through the established selective incorporation approach without disturbing the Slaughter-House holding.45
The Court does not base its decision on the Privileges or Immunities Clause and leaves the Slaughter-House interpretation undisturbed.46
Related opinions on this issue
Justice Thomas wrote separately to advocate that the right to keep and bear arms is enforceable against the States because it is a privilege of American citizenship recognized by the Privileges or Immunities Clause.47
He provided a more straightforward and faithful path to the conclusion than the Due Process Clause.48 Thomas surveyed contemporary legal authorities to show that the ratifying public understood the Clause to protect constitutionally enumerated rights including the right to keep and bear arms.49
He argued that the objective of the inquiry is to discern what ordinary citizens at the time of the Fourteenth Amendment's ratification would have understood the Privileges or Immunities Clause to mean.
Justice Stevens's dissent implicitly supports the decision not to revive the Privileges or Immunities Clause as a vehicle for new substantive rights.
He warned that such an approach would inject excessive subjectivity into constitutional interpretation.50 Stevens noted that the Clause's clean slate creates special hazards for judges seeking to impose their personal views of appropriate public policy.51
He emphasized that the ability of omnidirectional guideposts to constrain judicial discretion is inversely proportional to their number.52 Stevens argued that requiring courts to show respect for the democratic process should serve as a constraint on expansive readings of the Clause.53