McDonald v. Chicago

  • 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."


  • June 28, 2010
    Guest Post

    By Adam Winkler, a constitutional law professor at UCLA School of Law. You can follow him on Twitter @adamwinkler.
    Today's decision in McDonald v. Chicago marks a major change in constitutional doctrine but one that will likely have only a minimal effect on gun control. For the first time, the Supreme Court held that the Second Amendment serves as a limit on what regulation state and local governments can impose on the right of individuals to have guns. Two years ago, in District of Columbia v. Heller, the Court ruled that the Second Amendment guaranteed an individual right to keep and bear arms unrelated to militia service. But that decision only applied to federal laws. Now the Second Amendment, like most provisions of the Bill of Rights, applies to all governmental entities in the United States.

    From the perspective of gun rights, however, that isn't as big a change as it may seem at first. Forty-two states already guarantee individuals the right to have guns in their state constitutions. McDonald extends that right to the remaining eight outliers. None of those eight states, however, ever tried to completely ban gun ownership and qualified individuals can lawfully obtain guns in every one. The Second Amendment now applies more broadly, but gun rights more generally were secure long before this decision.

    McDonald could still have a significant effect on gun control if the law of the Second Amendment were radically different from the state constitutional law doctrines relating to the right to keep and bear arms. So far, however, the two regimes are mostly the same. As I have shown elsewhere, under state law, courts tend to judge the constitutionality of gun control under a relatively deferential standard of review. Known as the "reasonable relationship" test-which is not the same as rational basis review-this standard is uniformly used in state after state, and has been for over a century. There have been hundreds of state cases applying this standard to challenged gun laws, the vast majority of which have survived.

    To date, the Second Amendment hasn't led to radically different outcomes. Since Heller, there have been approximately two hundred federal court decisions on the constitutionality of gun control under the Second Amendment. Nearly every challenged gun law has survived. Formally, the Supreme Court has not adopted the reasonable regulation standard universally used in the states. But practically, the results have been the same. Other than a complete ban on handguns-which, apart from Chicago and its suburbs, no state or city has-gun control remains constitutionality permissible.

    To be sure, McDonald will lead to a flood of lawsuits challenging every sort of gun control. And some laws, like New York City's extreme and discriminatory permitting scheme and California's refusal to approve certain guns designed for left-handed shooters, could be invalidated in the months and years to come. But if the scores of federal court decisions under Heller are any indication, the primary hurdle for gun control advocates will remain in the legislatures, not the courts.

  • March 5, 2010
    Guest Post

    By David H. Gans, Director of the Human Rights, Civil Rights, and Citizenship Program at the Constitutional Accountability Center. He is the lead author of the report, The Gem of the Constitution: the Text and History of the Privileges or Immunities Clause of the Fourteenth Amendment, and co-author of CAC's brief in McDonald. This article is cross-posted at CAC's blog, Text & History.

    On Tuesday, the Supreme Court heard oral argument in McDonald v. City of Chicago, which raises the question whether the Second Amendment's guarantee of a right to bear arms applies to states and local governments. Going into argument, incorporation of the Second Amendment right seemed a given - after all, states already have to obey virtually every right in the Bill of Rights. The critical question was whether the Court would breathe new life into the Privileges or Immunities Clause, and honor the part of the Fourteenth Amendment's text that clearly protects substantive fundamental rights from state infringement.

    The Privileges or Immunities Clause was intended to be the centerpiece of the Fourteenth Amendment, but it was written out of the Constitution by the Supreme Court in the 1873 Slaughter-House Cases. The decision has been regarded as one of the worst in the Court's history, and roundly condemned by the Amendment's framers in the 1870s, Justice Harlan in the early 20th century, and Justice Black in the 1940s. The overwhelming consensus among scholars across the ideological spectrum - reflected in a law professors' brief filed by CAC in McDonald - is that Slaughter-House obliterated the text and history of the Clause through a profoundly incorrect interpretation of the Constitution.

    Unfortunately, the Privileges or Immunities Clause received a chilly reception from the Court on Tuesday, especially from those Justices who most profess to take the Constitution's text and history seriously. Justice Scalia belittled the Clause, accusing Alan Gura, McDonald's attorney, of "bucking for some place on some law school faculty" by advancing an argument that was "the darling of the professoriate." Scalia, supposedly the Court's chief originalist, wouldn't even consider the merits of the argument. Chief Justice Roberts, too, refused to follow the Constitution's text and history where it leads. He explicitly worried that the Privileges or Immunities Clause would allow for broad protections of substantive liberty; he preferred to rely on the Due Process Clause, since that text is about process, and does not easily lend itself to protecting substantive fundamental rights. While Roberts and Scalia were content to rely on substantive due process to protect gun rights, they seemed to want to reserve the opportunity to bash the doctrine in future cases involving rights they don't recognize. Other Justices were less overtly hostile, but none seemed willing to revive the Clause.

    In light of its reception at the Court, was Gura too bold?