The Right to Keep and Bear Arms

On June 28, 2010, the United States Supreme Court issued an historic opinion holding that the right to keep and bear arms as guaranteed by the Second Amendment to the Constitution is incorporated to the States. Below is a brief synopsis of the opinion.

McDonald v. Chicago
561 US ___ (2010)

Justice Alito delivered the opinion of the Court, joined by Chief Justice Roberts and Justices Scalia, Kennedy, and Thomas.

Justice Stevens wrote a dissent, as did Justice Breyer, who was joined by Justices Ginsburg and Sotamayor.

In 2008, the Court held in District of Columbia v. Heller that D.C.'s gun ban violated the Second Amendment right to keep and bear arms. Because D.C. was a federal district, the Court did not answer the question  whether the individual States were bound by the Second Amendment.

Originally, the Bill of Rights (the first ten amendments to the Constitution) only applied to the federal government. Following the Civil War and the passage of the Fourteenth Amendment, the Court began to incorporate several provisions of the Bill of Rights to the states under the Due Process Clause of the Fourteenth Amendment. Over the past century, most of the Bill of Rights amendments were incorporated, and thus applied to the states. However, the Court had never decided whether the Second Amendment applied to the states.

After the decision in Heller, the Plaintiffs filed a lawsuit to challenge gun prohibitions in both Chicago and Oak Park, Illinois. The Chicago ordinance prohibited people from possessing firearms without a permit. The Oak Park law was more restrictive, and flat-out banned the possession of handguns. The named plaintiff, Otis McDonald, is a community activist in his late seventies who lives in a high-crime neighborhood, and has received several death threats from drug dealers and gangs due to his work to clean up his neighborhood. He and the other plaintiffs wish to possess firearms for self-defense purposes.

In the federal district court, the cities argued that the laws are necessary for public safety reasons. The district court held that the bans do not violate the Constitution. The Court of Appeals for the Seventh Circuit agreed, and said that the Second Amendment was not incorporated to the states.

The Plaintiffs raised two arguments to the Supreme Court; 1) that a ban on firearms violates the Privileges or Immunities Clause of the Constitution, and 2) that the Second Amendment is incorporated to the States by the Due Process Clause of the Fourteenth Amendment. The cities argued that the provisions of the Bill of Rights only apply to the States if that right is an "indispensable attribute of any civilized legal system," and that some civilized countries can and do regulate firearm possession.

The Court declined to follow the Plaintiffs' argument on the Privileges or Immunities Clause because the Fourteenth Amendment has been the traditional route to determine whether a right should be applied to the states. Justice Alito identified the main question as whether the Second Amendment right to "keep and bear arms is fundamental to our (the United States) scheme of ordered liberty."

The Court noted that self-defense is a basic right, and that individual self-defense is the central component of the Second Amendment right. The Court also explained that the right of self-defense is deeply rooted in English and colonial tradition. In answering his question, Justice Alito said that Yes, the Second Amendment is a fundamental right and it is incorporated to the States by the Due Process Clause of the Fourteenth Amendment.

The Court also noted that its ruling does not affect regulatory measures like prohibiting felons and the mentally ill from possessing guns, prohibiting firearms in sensitive areas like schools, and laws imposing conditions and qualifications on the commercial sale of guns.

Breyer's dissent argued that there is no consensus among scholars that the right to keep and bear arms is fundamental, that the right does not protect minorities or those neglected by the political process, that incorporation of the Second Amendment would intrude on an important area of state concern, and that judges would be forced to answer questions outside of their expertise. Justice Alito addressed and countered all of Justice Breyer's points.

In the wake of this ruling, States and municipalities cannot make laws that infringe upon the fundamental right to keep and bear arms as guaranteed by the Second Amendment of the Constitution because the Second Amendment is officially incorporated by the Due Process Clause of the Fourteenth Amendment.

Bryan W. Wolford
Attorney At Law