McDonald v. Chicago

The first major Second Amendment case since the Supreme Court’s landmark decision in District of Columbia v. Heller, 128 S. Ct. 2783 (2008), concerns a number of Chicago gun control laws, including a general handgun ban and various registration requirements. Petitioners McDonald, et al., were each in violation of one or another of the gun control laws, which ultimately rendered certain firearms incapable of registration. Bringing suit against the City of Chicago, et al., Petitioners McDonald, Orlov, Lawson, the Second Amendment Foundation, and the Illinois State Rifle Association (referred to collectively as “McDonald”) allege violations of their Second and Fourteenth Amendment rights. In particular, they are asking the Court to re-examine its “Privileges or Immunities” jurisprudence and to overrule the Slaughterhouse Cases—the Court’s 1873 case of first-impression interpreting the Fourteenth Amendment as affecting only the rights of United States citizenship and not those of State citizenship.

I. Privileges or Immunities

McDonald’s primary argument is that the Second Amendment is among the privileges or immunities of American citizenship that states may not abridge. In so arguing, McDonald examines the circumstances surrounding the adoption of the Fourteenth Amendment following the Civil War.  In particular, McDonald focuses on the systematic oppression of freed blacks in the South following the Civil War, which led to a frequent deprivation of their right to keep and bear arms.   Such injustice, McDonald argues, led to the need to adopt an amendment that would secure “basic civil rights . . . [including] those memorialized in the Bill of Rights, within the protection of federal citizenship.”  To support their argument, McDonald moves through the popular understanding of the terms “privileges” and “immunities” during the early republic and the antebellum South, as well as the meaning ascribed to them by the framers of the Fourteenth Amendment.   In examining the evolution of the terms’ meanings, they argue that the privileges or immunities “of American citizens include two sets of overlapping rights:” so-called fundamental rights securing by Article IV, Section 2 of the Constitution, and those enumerated in the first eight amendments. 

Rather than focusing on the original intent of the Fourteenth Amendment’s framers, Chicago and Oak Park urge the Court, instead, to uphold rejecting incorporation of the Bill of Rights under the Privileges or Immunities Clause.  Chicago and Oak Park point to the Slaughterhouse Cases, where the Court held that the Fourteenth Amendment’s Privileges or Immunities Clause includes only those rights that “are dependent upon citizenship of the United States, and not citizenship of a State.” Such rights would include, for example, the freedom to petition the government, to run for political office, to become a citizen of any state through residence; however, such rights did not include those enumerated in the Bill of Rights, including the right to bear arms.  Chicago and Oak Park also point to the seminal cases of United States v. Cruikshank, which held that the Second Amendment did not apply to the States, and Presser v. Illinois, which held that the right to keep and bear arms is not a privilege or immunity of United States citizenship. They thus argue that the Court should use the doctrine of stare decisis to uphold cases that explicitly reject incorporation of the Second Amendment through the Fourteenth Amendment’s privileges or immunities clause.  

McDonald responds by arguing that stare decisis can be overcome when a case is clearly erroneous. They argue that the Slaughterhouse line of cases meets this bill for the four considerations enumerated in Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833, 854 (1992). First, McDonald argues that Slaughterhouse is an impractical opinion that results in the virtual elimination of the Privileges or Immunities Clause. Second, in response to the argument that stare decisis protects legitimate reliance interests, McDonald argues that depriving individuals of their constitutional rights cannot be a valid interest.  Third, McDonald argues that the Slaughterhouse line of cases is anachronistic, insofar as it dealt with the problems of freed slaves.  Finally, McDonald argues that modern factual understandings compel the Court to treat this case as one of first impression, i.e. as if looking at the scope of the Fourteenth Amendment’s Privileges or Immunities clause for the first time.  

Chicago and Oak Park, however, argue that the four Casey factors weigh in favor of applying stare decisis to the Slaughterhouse line of cases.  First, they argue that the cases offer a workable jurisprudence that is easy to apply. They argue that if the Court accepts McDonald’s argument, “it would also make applicable to the State unenumerated fundamental rights of uncertain scope,” which is arguably an unworkable and uncertain.  Second, they point to the fact that the cases have been good law for 137 years, which they argue compels the highest deference.  Third, they argue that there are substantial reliance interests created by the century-old precedent, including the systems of criminal and civil law.   Finally, Chicago and Oak Park argue that the facts of the Slaughterhouse cases have not been eroded and that a modern approach would not render the original holding anachronistic.  

II. Due Process

Chicago and Oak Park argue that the Second Amendment is not incorporated through the Due Process Clause.  In order for a right to be incorporated through the Due Process Clause, they argue that such a right must be “implicit in the concept of ordered liberty.” They argue that the considerations for determining whether a right fits within the concept of ordered liberty are the protections provided by the right and whether those protections are necessary in a system of ordered liberty.   They argue that this standard is exacting and that the considerations of federalism must play a role in determining whether a right is incorporated.   Arguing that federalism allows for a state to try novel social experiments, Chicago and Oak Park portray their cities as two of many laboratories of democracy and their gun regulations to be but a few of any permissible approaches.  

McDonald, on the other hand, argues that the Due Process Clause does incorporate the Second Amendment.  Agreeing with Chicago and Oak Park that the standard for determining whether a right is implicit in the concept of ordered liberty, McDonald argues that the modern incorporation test asks whether a right is fundamental to the American scheme of justice.   McDonald argues that the Court should consider three factors: (1) the historical acceptance of the right in our nation, (2) its recognition by the states, and (3) the nature of the interest secured by the right.   McDonald goes on to analyze each factor. First, McDonald argues that the historical acceptance of the right to bear arms was inherited from our English ancestors and is fundamental in the United States.   Second, McDonald points to the fact that forty-four states protect the right to bear arms in their respective constitutions. Finally, McDonald makes the argument that the right to bear arms and to defend oneself is an aspect of liberty deserving of incorporation.