U.S. Supreme Court Revisits The Second Amendment
Friday, January 22, 2010
by Chris W. Cox, NRA-ILA Executive
A year after the historic Heller decision, the
nation's highest court considers its impact on the states.
On September 30, the U.S. Supreme Court opened a new chapter in
Second Amendment legal history by announcing it would decide
whether the Second Amendment applies to the states. The case,
McDonald v. City of Chicago, is one of several that were
filed immediately after last year's decision in District of
Columbia v. Heller, in which the Court struck down Washington,
D.C.'s ban on handgun possession, as well as the capital city's ban
on keeping loaded, operable firearms for self-defense in the
The follow-up cases were filed by the NRA and others against
Chicago and several of its suburbs, as well as against the San
Francisco Housing Authority. They were all aimed at the same goal:
establishing that the Second Amendment forbids state and local
governments (not just federal authorities) from banning
How We Got Here
IT'S A SURPRISE to many gun owners that the Supreme Court has
not yet applied the Second Amendment to the states. To understand
why, we have to step back almost 200 years. In the 1833 case of
Barron v. Baltimore, the Supreme Court ruled that the Bill
of Rights only applies directly to the federal government and that
ruling has stood ever since.
After the Civil War, Congress was concerned about how to address
oppression of the newly freed slaves. Congress passed a series of
civil rights laws to deal with this problem and eventually also
passed the 14th Amendment, which says states may not "abridge the
privileges or immunities of citizens of the United States" or
"deprive any person of life, liberty, or property, without due
process of law." It's clear that the framers of the 14th Amendment
meant to protect the freedmen's Right to Keep and Bear Arms from
those who wanted to destroy their freedom. As attorney and
historian Stephen P. Halbrook has extensively documented, both
supporters and opponents agreed the amendment would do as
Just a few years later, the U.S. Supreme Court ruled that the
Privileges or Immunities Clause only protected the kind of
"privileges and immunities" that "owe their existence" to the
Constitution or to the nature of the federal government. By that
reasoning, the clause couldn't apply the Bill of Rights to the
states, because the Bill of Rights protected basic human rights
that existed before the Constitution was ratified.
This decision, in The Slaughter-House Cases (1873), has been
criticized by scholars ever since and U.S. Supreme Court Justice
Clarence Thomas has suggested it should be revisited. The decision
made the Privileges or Immunities Clause meaningless, contrary to
its drafters' clear desire to protect citizens' rights.
The Slaughter-House decision was followed by other cases in the
late 19th century that have been misinterpreted to claim the Second
Amendment doesn't protect an individual right. United States v.
Cruikshank (1876) made clear the Right to Keep and Bear Arms
existed before the Constitution, but said the Constitution doesn't
even protect the First Amendment against infringement by the
states, let alone by private individuals. Presser v.
Illinois (1886) and Miller v. Texas (1894) also said
the Second Amendment didn't directly protect against infringement
by the states, but did not address whether it applied to the 14th
Later, however, the Court found a way to protect the Bill of
Rights against state action. It did this by finding the 14th
Amendment's Due Process Clause protected those rights instead.
The theory of "substantive due process" took hold in the early
20th century, and it has been applied--one case at a time, one
right at a time--since the 1920s. That process is known as
"incorporation," based on the idea these provisions of the Bill of
Rights are now "incorporated" into the Due Process Clause.
Incorporation is such an accepted rule in modern constitutional
law that in the Heller decision, the Supreme Court pointed out the
19th century Cruikshank decision "did not engage in the sort of
14th Amendment inquiry required by our later cases."
Today, most provisions of the Bill of Rights have been
incorporated. But because the process does take place one case at a
time, not all of the provisions have been fully considered, and a
few have been rejected.
The Stakes Today
THE SECOND AMENDMENT is the biggest and most important gap in
this web of protection. The plaintiffs in the McDonald case are
asking the Supreme Court to change that--once and for all. And
while they argue that the Court should apply the Second Amendment
through the Privileges or Immunities Clause, it makes little
real-world difference to gun owners whether the Court does so, or
simply applies its traditional due process incorporation theory. As
the old saying goes, all roads lead to Rome; either outcome would
be a major win for gun owners.
The reason that's true is most of the worst gun laws in
America--from bans on large classes of firearms, to micro-stamping
and "smart gun" mandates, to convoluted licensing laws and
transport-ation requirements--have been passed at the state level.
(See "America's Worst Gun Laws," Aug. 2008.) While most states have
their own constitutional safeguards for the Right to Keep and Bear
Arms, the Second Amendment would provide another layer of
Perhaps more important, some of the states with truly awful gun
laws--such as California and New Jersey--have no provisions in
their state constitutions to protect the Right to Keep and Bear
For gun owners in those states, a win in the McDonald case could
open new doors.
On the other hand, a ruling that the Second Amendment doesn't
apply to the states would leave your freedoms at the mercy of state
legislators. Without fear of a Second Amendment challenge, anti-gun
groups would shift all their efforts to the state level--and they
already have plenty of allies in states where constitutional
provisions are weak or non-existent.
IN ILLINOIS, FOR example, the state constitution says that
"Subject only to the police power, the right of the individual
citizen to keep and bear arms shall not be infringed." In a
challenge to the handgun ban in Morton Grove, Ill., that provision
wasn't even a speed bump. The U.S. Court of Appeals for the Seventh
Circuit said "the right to keep and bear arms in Illinois is so
limited by the police power that a ban on handguns does not violate
that right." Fortunately, Morton Grove and several other Chicago
suburbs saw the writing on the wall and repealed their handgun bans
as soon as the NRA filed suit, right after the Supreme Court's
But Chicago has more taxpayer dollars to spend on defending its
gun ban. The Chicago law is nearly identical to the Washington,
D.C. law struck down in Heller, so it was the most logical target
for a case on the incorporation issue. In fact, it was such a
logical target that two cases were filed, and then consolidated for
In June, the Seventh Circuit handed down its ruling in those
cases. The opinion, by Judge Frank Easterbrook, was joined by Judge
Richard Posner (who wrote a magazine article criticizing the Heller
decision), and Senior Judge William Bauer (who wrote the 1982
opinion upholding the Morton Grove handgun ban).
Judges Easterbrook and Posner are well-respected scholars in
other areas of the law, but in this case, their scholarship failed
them. They skipped doing the kind of 14th Amendment incorporation
analysis that the Supreme Court said was "required;" instead, they
mistakenly followed the 19th century cases such as Cruikshank that
missed the mark.
In addition, their opinion also suggested that states are free
to ban self-defense in the home entirely, and handguns could then
be banned. Since the Supreme Court said in Heller, "the inherent
right of self-defense has been central to the Second Amendment
right" (emphasis in the original), the Seventh Circuit judges'
suggestion the states could do away with self-defense makes their
entire analysis of the case questionable, to say the least.
To make matters worse, the Seventh Circuit judges had an
excellent road map that would have shown them a better way. In
April, a three-judge panel of the Ninth Circuit ruled on
Nordyke v. King, which involved a gun show promoter's
challenge to Alameda County, California's ban on firearm possession
on county property. In his opinion in that case, Judge Diarmuid
O'Scannlain went through exactly the kind of 14th Amendment
analysis the Supreme Court requires, and concluded that since "the
Right to Keep and Bear Arms is deeply rooted in this Nation's
history and tradition," it's therefore incorporated into the 14th
Amendment's Due Process Clause and applies to the states. (The
Nordyke decision was later put on hold for a hearing before a
larger panel; that panel is now waiting for the Supreme Court to
resolve the Chicago case.) After the Seventh Circuit ruling, the
plaintiffs filed their appeal with the Supreme Court. They have
some heavy support; 34 state attorneys general filed "friend of the
court" briefs urging the Supreme Court to take the case.
The Next Steps
THE MCDONALD CASE will be argued early in 2010. Alan Gura, who
represented the winning plaintiffs in the Heller case, will argue
against the Chicago handgun ban and all gun owners should wish him
well in that effort. As we await the arguments and decision, NRA
members should be grateful to all the scholars and attorneys who
have brought the 14th Amendment to the forefront of the debate over
the right to keep and bear arms.
NRA members should also be proud of the NRA's efforts to bring
this issue to the court's attention, both through the coordination
of briefs filed in the Heller case, and through the many lawsuits
we filed and funded to overturn local bans on gun ownership and
self-defense immediately after Heller. We're looking forward to
working even harder in McDonald v. Chicago, to achieve
another major victory for gun owners' rights.