McDonald v. Chicago

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Not to be confused with McDonald v. Board of Election Commissioners of Chicago .

2010 United States Supreme Court case

McDonald v. City of Chicago, 561 U.S. 742 (2010), is a landmark

decision of the Supreme Court of the United States that found that the right of an individual to "keep and bear arms", as protected under the Second Amendment , is incorporated by the Fourteenth Amendment and is thereby enforceable against the states . The decision cleared up the uncertainty left in the wake of _District of Columbia v. Heller _ (2008) as to the scope of gun rights in regard to the states.

Initially, the Court of Appeals for the Seventh Circuit had upheld a Chicago ordinance banning the possession of handguns as well as other gun regulations affecting rifles and shotguns, citing _United States v. Cruikshank _ (1876), _Presser v. Illinois _ (1886), and _Miller v. Texas _ (1894). The petition for certiorari was filed by Alan Gura , the attorney who had successfully argued Heller, and Chicago-area attorney David G. Sigale. The Second Amendment Foundation and the Illinois State Rifle Association sponsored the litigation on behalf of several Chicago residents, including retiree Otis McDonald.

The oral arguments took place on March 2, 2010.

On June 28, 2010, the Supreme Court, in a 5–4 decision, reversed the Seventh Circuit's decision, holding that the Second Amendment was incorporated under the Fourteenth Amendment, thus protecting those rights from infringement by state and local governments. It then remanded the case back to the Seventh Circuit to resolve conflicts between certain Chicago gun restrictions and the Second Amendment.

Background

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In McDonald v. City of Chicago, Chicago resident Otis McDonald, a 76-year-old retired maintenance engineer, had lived in the Morgan Park neighborhood since buying a house there in 1971. McDonald described the decline of his neighborhood as being taken over by gangs and drug dealers . His lawn was regularly littered with refuse, and his home and garage had been broken into a combined five times, the most recent robbery being committed by a man whom McDonald recognized from his own neighborhood. As an experienced hunter, McDonald legally owned shotguns but believed them to be too unwieldy in the event of a robbery and so he wanted to purchase a handgun for personal home defense. Chicago required that all firearms in the city be registered but had refused all new handgun registrations since 1982, when a citywide handgun ban was passed. As a result, he was unable to own a handgun legally. He joined three other Chicago residents in 2008 in filing a lawsuit that became McDonald v. City of Chicago.

McDonald v. Chicago as compared to NRA v. Chicago

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Despite being consolidated at the U.S. Court of Appeals for the Seventh Circuit, the cases are different in scope in terms of the specific regulations challenged and the legal argument for applying the Second Amendment against state and local governments. The Second Amendment Foundation brought the McDonald case to the Supreme Court with its lead attorney Alan Gura. The cases were appealed separately to the U.S. Supreme Court.

• McDonald Petition for Certiorari

• Chicago Brief in Opposition to Cert Petition

Regulations challenged

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McDonald challenged four broad aspects of Chicago's gun registration law, which, according to the plaintiffs:

• Prohibit the registration of handguns, thus effecting a broad handgun ban
• Require that guns be registered prior to their acquisition by Chicago residents
• Mandate that guns be re-registered annually, with another payment of the fee
• Render any gun permanently non-registrable if its registration lapses

Legal basis for incorporation

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All of the post-Heller cases, including McDonald, NRA v. Chicago, Nordyke and Maloney, argued that the Second Amendment, in addition to applying to federal jurisdictions, should also be applied against state and local governments, using a judicial process called selective incorporation . Selective incorporation involves convincing the court that a right is "fundamental" by being "implicit in the concept of ordered liberty" or "deeply rooted in our nation's history and traditions" as defined most recently in the Supreme Court case _Duncan v. Louisiana , 391 U.S. 145 (1968).[citation needed
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In addition to claiming the Second Amendment should be incorporated through the selective incorporation process, McDonald is unique among post-Heller gun cases in that it asked the court to overturn the _Slaughter-House Cases _, 83 U.S. 36 (1873). Slaughter-House determined that the 14th Amendment's Privileges or Immunities Clause did not apply the Bill of Rights to the actions of states (and by extension, local governments). If it had been overturned, the Selective Incorporation process may have become unnecessary, since the entire Bill of Rights, including the 2nd Amendment, would arguably be applied to the states.

In attempting to overturn Slaughter-House, this case garnered the attention and support of both conservative and liberal legal scholars interested in its potential application in areas outside of firearms law. Their interest was that if Slaughter-House had been overturned, it would have been possible that constitutional guarantees such as the right to a jury in civil cases, right to a grand jury in felony cases, and other parts of the Bill of Rights, as well as future court rulings and existing federal precedent, not universally guaranteed in actions by the states, would have been applied against the states automatically.

In his concurring opinion, Justice Thomas criticized the Slaughter-House and Cruikshank decisions, proposing that "the right to keep and bear arms is a privilege of American citizenship that applies to the States through the Fourteenth Amendment's Privileges or Immunities Clause ."

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