Appealed from the United States Court of Appeals for the Seventh Circuit (June 2, 2009)
Oral argument: March 2, 2010
SECOND AMENDMENT, SUBSTANTIVE DUE PROCESS, PRIVILEGES AND IMMUNITIES CLAUSE
The 2008 Supreme Court case Heller v. District of Columbia ruled that Washington D.C. gun control laws that effectively banned the possession of handguns violated an individual’s Second Amendment right to self-defense. Petitioners, Otis McDonald, et al. (“McDonald”), challenge the constitutionality of Respondent’s, City of Chicago’s (“Chicago”), gun control laws, arguing that they are similar to Heller’s. After Heller, the federal government cannot prohibit the possession of handguns in the home. This case raises the question of whether the same restriction applies to state governments. McDonald argues that the right to bear arms is a fundamental right that states should not be able to infringe. Chicago argues that states should be able to tailor firearm regulation to local conditions. The outcome of this case will affect the ability of states to regulate the possession of handguns in their jurisdictions and could have far-reaching effects on long-held conceptions of federalism.
Whether the Second Amendment right to keep and bear arms is incorporated as against the States by the Fourteenth Amendment's Privileges or Immunities or Due Process Clauses.
May a state or local government ban possession of handguns in light of the Second Amendment's right to keep and bear arms?
The Second Amendment reads: “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.” U.S. Const. Amend. II. In District of Columbia v. Heller, 128 S.Ct. 2783 (2008), the Supreme Court held that the Second Amendment secures for individuals the right to keep and bear arms, including handguns, for the purpose of self-defense. See id. at 2821–22. Although the Heller Court held that the right to bear arms was not unlimited, the Court did strike down two Washington D.C. gun control laws in effect at the time. See id. The Washington D.C. laws did not ban handguns outright, but effectively reached that result by making the possession of an unregistered firearm a crime, and making the registration of handguns illegal. See id. at 2788. The Heller Court also struck down a Washington D.C. law that required that all lawful firearms kept in the home be either disassembled or trigger-locked. See id.
On June 26, 2008, one day after Heller was decided, Petitioners, McDonald, et al. (“McDonald”), brought lawsuits in the Northern District of Illinois against Respondents, City of Chicago and Village of Oak Park (“Chicago”), challenging municipal laws similar to the federal laws struck down in Heller. See McDonald v. Chicago, 2008 WL 5111112 at *1 (N.D. Ill. 2008). Like the laws struck down in Heller, Chicago and Oak Park’s laws prohibit the possession of most handguns. See Nat’l Rifle Ass’n v. Chicago, 567 F.3d 856, 857 (7th Cir. 2009). Chicago law accomplishes a virtual ban on handguns by prohibiting the possession of unregistered firearms. See Chi. Mun. Code § 8-20-040. Chicago law prohibits the registration of most handguns. See Chi. Mun. Code § 8-20-050. Similarly, Oak Park law prohibits the possession of handguns. See Oak Park Ill. Vill. Code §§ 27-2-1, 27-1-1. In his lawsuits, McDonald argued that the Second Amendment right to keep and bear arms should apply to states and municipalities through either the Due Process Clause or the Privileges and Immunities Clause of the Fourteenth Amendment. See Complaint at 6, 9, McDonald v. Chicago, 2008 WL 5111112.
The district court dismissed McDonald’s lawsuits with a cursory opinion. See McDonald v. Chicago, 2008 WL 5111112. McDonald appealed to the Court of Appeals for the Seventh Circuit. See Nat’l Rifle Ass’n v. Chicago, 567 F.3d 856 (7th Cir. 2009). The Seventh Circuit affirmed the district court’s dismissals. See id. at 857. In explaining its reasoning, the Seventh Circuit stated that “Heller dealt with a law enacted under the authority of the national government,” while the Illinois laws at issue were enacted by Chicago and Oak Park, “subordinate bodies of a state.” See id. at 857. Additionally, it noted that the Supreme Court has refused to incorporate the Second Amendment against the states in the past. See id. at 857. Finally, it asserted that the question of whether the right to bear arms should be incorporated against the states through the Fourteenth Amendment was a question that the Supreme Court, not a court of appeals, should decide. See id. at 857, 860. The Supreme Court granted certiorari on September 30, 2009. See Docket No. 08-1521.
The Supreme Court’s decision in this case will determine the power of states and municipalities to control the possession of handguns. Furthermore, should the Supreme Court choose to reach the issue, a decision reestablishing the Privileges and Immunities Clause as a meaningful check on State action by overruling the Slaughterhouse Cases will have far-reaching effects on longstanding conceptions of American constitutional law and federalism.
Self-Defense and Personal Safety
Petitioners, McDonald, et al. (“McDonald”), argue that the right to keep and bear arms is a fundamental right that protects an individual’s inherent right to self-defense, and as such, states should be prohibited from infringing this right. See Brief for Petitioners McDonald, et al. at 69–70. The Rutherford Institute, citing the high crime rate in Chicago itself, urges that limiting state and local governments’ ability to restrict the right to bear arms is necessary to allow citizens to protect themselves against violent crime, especially in urban areas. See Brief of Amicus Curiae Rutherford Institute in Support of Petitioners at 11, 13–14. Several California district attorneys add that handguns, in particular, are especially useful to average citizens in defending themselves or their property against criminals, making handgun possession an important component of the individual right of self-defense. See Brief of Amici Curiae Thirty-Four California District Attorneys, et al., in Support of Petitioners at 25–28.
Organizations committed to protecting the public’s health, safety, and well-being argue that increased gun ownership leads to increased violence. See Brief of Amici Curiae Organizations Committed to Protecting the Public’s Health, Safety, and Well-Being in Support of Respondents at 8–9. These organizations cite research showing an increased risk of being murdered in areas with prevalent gun ownership. See id. at 14. Finally, the organizations state that there is a high, disproportionate risk of injury to women, adolescents, and children when guns are kept in the home. See id. at 18, 23. The Association of Prosecuting Attorneys argues that in urban areas, in particular, strict gun regulation allows law enforcement personnel to better maintain peace and reduce crime. See Brief of Amicus Curiae Association of Prosecuting Attorneys and District Attorneys in Support of Respondents at 6–7.
Balance of State and Federal Power
Chicago argues that incorporating the Second Amendment against the states would disrupt the balance between state and federal power. See Brief for Respondents at 8. For example, the United States Conference of Mayors emphasizes greater need for strict gun regulation in large urban areas with crime problems as opposed to rural areas and cites the success of strict gun regulations in reducing crime in large cities such as New York. See Brief of Amicus Curiae United States Conference of Mayors in Support of Respondents at 13. Chicago also worries that if the Second Amendment is incorporated, control over gun policy will move from local governments, who have an intimate understanding of local problems, to the federal courts, which are more detached from local conditions and will have to proceed with little to no case law on the subject. See Brief for Respondents at 18.
A number of states in support of McDonald argue that federalism concerns are misplaced because the right to bear arms is a fundamental right. See Brief of Amici Curiae Texas and 37 Other States in Support of Petitioners at 23-24. They reason that just as states do not have the authority to experiment with other fundamental rights, such as freedom of speech, states should not be allowed to experiment with the right to bear arms. See id. at 22-23. The Goldwater Institute notes that the passage of the Fourteenth Amendment altered the balance between state and federal power and that concerns of federalism should not outweigh the protection of individual liberties that the amendment was designed to ensure. See Brief of Amicus Curiae Goldwater Institute, et al., in Support of Petitioners at 26–27.
Finally, Illinois, Maryland and New Jersey argue against reestablishing the Privileges and Immunities Clause as a check on state power, because it would throw a significant amount of state law into question. See Brief of Amici Curiae State of Illinois, et al., in Support of Respondents at 27. For example, they argue that the Fifth Amendment right to a grand jury and the Seventh Amendment right to a jury in civil cases — neither of which are incorporated against the states through the Due Process Clause — would have to be incorporated against the states through the Privileges and Immunities Clause. See id. This, they argue, would wreak chaos on long established state court practice. See id.
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. See Brief for Petitioners, McDonald, et al., at 9; see also U.S. Const. amend. XIV, § 1. In so arguing, McDonald examines the circumstances surrounding the adoption of the Fourteenth Amendment following the Civil War. See Brief for Petitioners at 10. In particular, McDonald focuses on the systematic oppression of freed blacks in the South following the Civil War, which led to frequent deprivation of their right to keep and bear arms. See id. at 11. 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.” Id. at 14. 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. See id. at 16–26. 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. Id. at 26.
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. See Brief for Respondents, City of Chicago and the Village of Oak Park at 42. 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.” Id.; see also 83 U.S. (16 Wall.) 36 (1872). 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. See id. at 43. 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. See id. at 44. 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. See id. at 45.
McDonald responds by arguing that stare decisis can be overcome when a case is clearly erroneous. See Brief for Petitioners at 57. 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. See id. at 60. 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. See id. at 61. Third, McDonald argues that the Slaughterhouse line of cases is anachronistic, insofar as it dealt with the problems of freed slaves. See id. at 64. 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. See id.
Chicago and Oak Park, however, argue that the four Casey factors weigh in favor of applying stare decisis to the Slaughterhouse line of cases. See Brief for Respondents at 46. First, they argue that the cases offer a workable jurisprudence that is easy to apply. See id. 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. Id. at 49. Second, they point to the fact that the cases have been good law for 137 years, which they argue compels the highest deference. See id. Third, they argue that there are substantial reliance interests created by the century-old precedent, including the systems of criminal and civil law. See id. at 51. 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. See id.
II. Due Process
Chicago and Oak Park argue that the Second Amendment is not incorporated through the Due Process Clause. Brief for Respondents at 8. 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.” Id. (quoting Palko v. Connecticut, 302 U.S. 319, 325 (1937)). 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. See id. at 10. They argue that this standard is exacting and that the considerations of federalism must play a role in determining whether a right is incorporated. See id. 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. See id. at 11.
McDonald, on the other hand, argues that the Due Process Clause does incorporate the Second Amendment. See Brief for Petitioners at 66. 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. See id. at 67. 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. See id. 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. See id. at 68. Second, McDonald points to the fact that forty-four states protect the right to bear arms in their respective constitutions. See id. Finally, McDonald makes the argument that the right to bear arms and to defend oneself is an aspect of liberty deserving of incorporation. See id.
This case will consider a century-old precedent concerning the scope of the Privileges and Immunities and Due Process Clauses of the Fourteenth Amendment. If the Court sides with Petitioners Otis McDonald, et al., it may reverse the Slaughterhouse line of cases and incorporate the Second Amendment—and possibly the entire Bill of Rights—against the States. On the other hand, if the Court sides with Respondent, City of Chicago, et al., it will uphold the Slaughterhouse cases and restrict the scope of the Fourteenth Amendment.
Edited by: Lucienne Pierre
Associated Press, Mark Sherman: Ban Handguns? Supreme Court Taking A New Look (Sept. 30, 2009)
CNN, Bill Mears: Justices Take On Potentially Landmark Gun Rights Cases (Sept. 30, 2009)
New York Times, Adam Liptak: Justices Will Weigh Challenges to Gun Laws, N.Y. Times (Sept. 30, 2009)