McDonald v. Chicago

  • May 5, 2014
    Guest Post

    by Adam Winkler, Professor of Law, UCLA School of Law; Author, Gunfight: The Battle Over the Right to Bear Arms in America

    May 15 marks the 75th anniversary of United States v. Miller, a 1939 case in which the Supreme Court unanimously held that Congress could prohibit the possession of weapons that were not related to the “preservation or efficiency of a well regulated Militia.” For decades, this was the only consideration the Court gave the Second Amendment, and arguably, it was generally understood that the Amendment's scope was limited to the use of firearms in connection with military activities. This changed in 2008 in District of Columbia v. Heller, and subsequently in 2010 in McDonald v. Chicago, when the Court declared that the Second Amendment provided an "individual right to possess a firearm.”  The Court explained that they were not overturning Miller; that Miller only limited the type of weapon to which the individual right applies. As we consider the constitutional, legal and policy questions that now surround the Second Amendment, we should take a step back and ask if the Supreme Court got it right in Heller and McDonald.  How should the Second Amendment be interpreted? ACS is pleased to raise this important question with progressive constitutional scholars and historians in an ACSblog symposium this week, May 5 through May 9.

    Heller was right. The Constitution protects the right of individuals to have arms for personal protection. Even if you don’t believe this accurately describes the original meaning of the Second Amendment – the history of which has confounded many – you should support the result if you believe the Constitution protects fundamental, unenumerated rights. There’s a long commitment in American constitutionalism to unwritten rights, including the right to privacy and the right to marry. In identifying which unwritten rights are protected by the Constitution, the courts ask whether the right, as a matter of history and tradition, has been respected by the American people. Under the doctrine of substantive due process, if the right is “objectively, deeply in this Nation’s history and tradition” it will be protected. The right of individuals to have guns for personal protection, especially in the home, easily passes this test.

    The right of individuals to have a gun in the home for self-defense has long been respected by American law. Since the founding, no state has ever prohibited its residents from having a gun in the home. Although Washington, D.C. effectively banned guns in the home for self-defense and Chicago banned handguns (while allowing long guns), these idiosyncratic outliers only highlight the dominant, longstanding legal tradition of allowing individuals to own guns. In numerous due process cases, the Supreme Court has looked to the absence of laws prohibiting the relevant behavior as strong evidence of a deeply rooted right. In Roe v. Wade, the Court explained that abortions in early pregnancy were not barred under the common law. In Lawrence v. Texas, the Court recognized that laws singling out same-sex sodomy for criminal punishment, while allowing opposite-sex couples to engage in the same activity, were contrary to our legal traditions. In Washington v. Glucksberg, the Court denied substantive due process protection for the right to die by pointing to the long history and tradition of laws against suicide. There’s no history and tradition of laws preventing law-abiding people from having guns.

  • May 5, 2014
    Guest Post

    by Geoffrey R. Stone, Edward H. Levi Distinguished Service Professor, The University of Chicago

    May 15 marks the 75th anniversary of United States v. Miller, a 1939 case in which the Supreme Court unanimously held that Congress could prohibit the possession of weapons that were not related to the “preservation or efficiency of a well regulated Militia.” For decades, this was the only consideration the Court gave the Second Amendment, and arguably, it was generally understood that the Amendment's scope was limited to the use of firearms in connection with military activities. This changed in 2008 in District of Columbia v. Heller, and subsequently in 2010 in McDonald v. Chicago, when the Court declared that the Second Amendment provided an "individual right to possess a firearm.”  The Court explained that they were not overturning Miller; that Miller only limited the type of weapon to which the individual right applies. As we consider the constitutional, legal and policy questions that now surround the Second Amendment, we should take a step back and ask if the Supreme Court got it right in Heller and McDonald.  How should the Second Amendment be interpreted? ACS is pleased to raise this important question with progressive constitutional scholars and historians in an ACSblog symposium this week, May 5 through May 9.

    In many respects, the United States Constitution has served as a model for constitutions throughout the world. Of the 188 nations that have written constitutions, the vast majority have adopted fundamental guarantees that were first fully articulated in the United States Constitution.

    Indeed, 97 percent of all the world's constitutions now protect the freedom of religion; 97 percent protect the freedom of speech and press; 97 percent protect a right of equality; 97 percent protect the right to private property; 95 percent protect the freedom against unreasonable searches; and 84 percent forbid cruel and unusual punishment. These freedoms, which were first constitutionalized in the United States, are now widely recognized as fundamental to a free, humane and civilized society.

    On the other hand, only 1 percent of all the other nations of the world recognize a constitutional right to keep and bear arms. Of the 188 nations with written constitutions, only Mexico and Guatemala have followed our example. Every other nation has rejected the notion that individuals have a fundamental right to purchase and possess firearms.

    These data are interesting because they shed light on the meaning of the Second Amendment. What did the Framers have in mind? Could they really have enshrined a right that virtually no one else in the world values?

  • February 13, 2013

    by Jeremy Leaming

    For far too long the gun lobby has loudly proclaimed that the Constitution bars almost any kind of law aimed at curbing gun violence. But since a string of mass shootings last year culminating in the Newtown mass shooting that took the lives of 20 children, there’s been a growing chorus of voices pushing back against the gun lobby’s platitudes and simplistic, often misleading, interpretation of the Second Amendment.

    More than 50 constitutional law scholars signed a letter explaining why the Second Amendment is not absolute or unlimited. Very few of rights and liberties enshrined in the Constitution are absolute. One of the scholars who signed that letter is among the nation’s greatest constitutional law scholars -- Laurence H. Tribe, a distinguished Harvard Law School professor.

    Hours before President Obama, a former student of Tribe’s, gave his State of the Union Address, Tribe testified before a Senate Judiciary committee examining ways to curb gun violence without trampling the Second Amendment right to bear arms.

    In his oral and written testimony Tribe made it clear that efforts to reduce – not eliminate – gun violence through government action are not beyond reach because of the Second Amendment. In current Supreme Court rulings, such as D.C. v. Heller, Tribe explained the justices took certain policy choices off the table for consideration and “thereby cleared the path to reasonable regulations to be enacted without fear that those policy choices would ever open the door to unlimited government control or be imperiled by exaggerated interpretations of the Second Amendment.” (Click picture of Tribe for video of his opening remarks, or see here.)

    Tribe noted that Justice Antonin Scalia author of the majority opinion in Heller noted that the court’s interpretation of the “Constitution leaves open a variety of regulatory tools to combating the problem of gun violence in this country.”

    In his written testimony, Tribe put it this way: “Proposals to disarm the American people, to leave firearms solely in the hands of the military and the police, have been decisively taken off the table – if they were ever truly on the table – by the Supreme Court’s Second Amendment decisions in 2008 and 2010 [Heller and McDonald v. Chicago respectively].”

     

  • August 17, 2012

    by Clark Taylor

    The tired refrain from gun advocates that “guns don’t kill people, people kill people,” pushes the wobbly claim that even without the easy availability of guns people would use other means to destroy life. Alan Gura of the Second Amendment Foundation, for example, writes in a piece for the Baltimore Sun, “The problem is that, regrettably, there are going to be criminals and crazy people ….”

    Gura misses the point, and hopes others will as well. For it does not follow that violent-prone individuals like the Aurora, Colo. shooter could have used other means to commit their crimes, we should not bother to seek commonsense regulation of firearms. This is a false choice. Just because something will not perfectly solve a problem does not mean that policy makers should ignore the matter – the perfect should not be the enemy of the good. 

    In McDonald v. Chicago, the U.S. Supreme Court ruled that individuals have a Second Amendment right to bear arms. What the Supreme Court did not hold, however, was that this right was an unqualified one subject to no regulation. 

    But the National Rifle Association however, continues to fight even existing gun regulations. It seeks to roll back existing background checks. It argues for guns to be sold at gun shows without background checks. (NRA members themselves are in favor of a certain level of regulation, suggesting that the NRA leadership is more extreme than the members they represent.) 

  • June 29, 2010
    Debate is building over the fate of gun control regulation following the Supreme Court's decision that the Second Amendment applies to state and local laws.

    Reporting for National Public Radio (NPR), Nina Totenberg noted that many on both sides of the debate were looking at the opinion (pdf) in McDonald v. Chicago and finding little guidance.

    Totenberg noted that even the National Rifle Association "conceded that the court had provided little guidance for the lower courts to use in evaluating which regulations are permissible and which are not." As Adam Liptak reported in The New York Times the McDonald majority "said little more than that there is a right to keep handguns in the home for self defense. Indeed, over the course of 200 pages of opinions, the court did not even decide the constitutionality of the two gun control laws at issue in the case, from Chicago and Oak Park, Ill.

    Both Totenberg and Liptak note that McDonald is therefore likely to prompt plenty of litigation, and the McDonald majority conceded that its decision might spur "extensive and costly litigation."

    Herb Titus, counsel for Gun Owners of America and former dean of TV minister Pat Robertson's Regent University and attorney for former Alabama Supreme Court Justice Roy Moore, told NPR that he sees litigation challenging regulations on age of gun ownership and registration.

    But first in the pipeline, he says, will be challenges to laws banning guns for those convicted of domestic violence misdemeanors.

    Several mayors, however, are signaling that they are ready to find ways to enforce gun control regulations.

    In a press statement, New York City Mayor Michael Bloomberg said, "I will continue to collaborate with mayors across the country to pursue common-sense, constitutional approaches to protecting public safety."