On June 28, 2010, the United States Supreme Court announced its latest Second Amendment decision, McDonald v. City of Chicago.

What did the Supreme Court decide in McDonald v. City of Chicago?

In McDonald v. City of Chicago, the United States Supreme Court held in a 5-4 ruling that the Second Amendment applies to state and local governments in addition to the federal government. In doing so, the Court reversed a Seventh Circuit decision that affirmed the dismissal of Second Amendment challenges to handgun bans in Chicago and Oak Park, Illinois.

The Supreme Court did not reach the issue of whether the Second Amendment applies against the states in District of Columbia v. Heller, the 2008 decision holding for the first time that the Second Amendment guarantees an individual right to possess a firearm in the home for self-defense, because that case involved only the laws of the District of Columbia (which is a federal enclave).

As it held in Heller, the Court reiterated in McDonald that the Second Amendment only protects a right to possess a firearm in the home for self-defense, and that a wide variety of gun laws are constitutionally permissible. The McDonald Court stated that:

It is important to keep in mind that Heller, while striking down a law that prohibited the possession of handguns in the home, recognized that the right to keep and bear arms is not ‘a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose.’ We made it clear in Heller that our holding did not cast doubt on such longstanding regulatory measures as ‘prohibitions on the possession of firearms by felons and the mentally ill,’ ‘laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.’ We repeat those assurances here. Despite municipal respondents’ doomsday proclamations, incorporation does not imperil every law regulating firearms.


What impact will McDonald have on firearms laws?

Giffords Law Center anticipates a substantial increase in the volume of Second Amendment litigation already clogging the nation’s courts, despite the fact that most, if not all, state and local firearms laws do not prevent a law-abiding citizen from possessing a firearm in the home for self-defense, and thus, would satisfy the holdings in Heller and McDonald. It is also likely that the gun lobby will continue to employ the threat of litigation to obstruct state and local efforts to enact common sense gun violence prevention measures.

Policymakers should rest assured, however, that nothing in the McDonald decision prevents them from adopting many types of reasonable laws to reduce gun violence. In the wake of the Heller decision, for example, the District of Columbia adopted comprehensive firearms laws. In March 2010, a federal district court rejected a Second Amendment challenge to many of those laws, including a ban on assault weapons and high capacity ammunition magazines, a one-handgun-a-month law, and a law requiring the reporting of lost or stolen firearms, demonstrating that many strong gun laws remain consistent with the Second Amendment.1 For more information about recent and ongoing Second Amendment litigation, please review our Post-Heller Litigation Summary.


Why was McDonald a bad decision?

In a dissenting opinion in McDonald, Justice Breyer (joined by Justices Ginsburg and Sotomayor) highlighted the many reasons why application of the Second Amendment to state and local governments is unwise:

[O]n any reasonable accounting, the incorporation of the right recognized in Heller would amount to a significant incursion on a traditional and important area of state concern, altering the constitutional relationship between the States and the Federal Government. Private gun regulation is the quintessential exercise of a State’s “police power”—i.e., the power to “protec[t]…the lives, limbs, health, comfort, and quiet of all persons, and the protection of all property within the State,” by enacting “all kinds of restraints and burdens” on both “persons and property.” The Court has long recognized that the Constitution grants the States special authority to enact laws pursuant to this power…

[T]he ability of States to reflect local preferences and conditions—both key virtues of federalism—here has particular importance. The incidence of gun ownership varies substantially as between crowded cities and uncongested rural communities, as well as among the different geographic regions of the country…The nature of gun violence also varies as between rural communities and cities. Urban centers face significantly greater levels of firearm crime and homicide, while rural communities have proportionately greater problems with nonhomicide gun deaths, such as suicides and accidents…

Given the empirical and local value-laden nature of the questions that lie at the heart of the issue, why, in a Nation whose Constitution foresees democratic decisionmaking, is it so fundamental a matter as to require taking that power from the people? What is it here that the people did not know? What is it that a judge knows better?


Don’t all of the provisions of the Bill of Rights — including the Second Amendment — automatically apply against the states?

No. When the Bill of Rights (the first ten amendments to the U.S. Constitution) was adopted, it was not intended to restrict state governments, only to limit the federal government. Subsequent to the adoption of the Fourteenth Amendment in 1868,2 however, the Supreme Court held that rights from the Bill of Rights may be selectively applied — or “incorporated” — through the Fourteenth Amendment’s Due Process Clause. In McDonald, the Court stated that provisions of the Bill of Rights may be incorporated only if they are “fundamental to our scheme of ordered liberty,” (emphasis in original) or “deeply rooted in this Nation’s history and tradition.”3

Most, but not all, of the provisions of the Bill of Rights have been incorporated through the Due Process Clause. The Supreme Court has held, for example, that the Fifth Amendment protections against double jeopardy and self-incrimination apply, but the Amendment’s right to indictment by grand jury in certain criminal cases does not. The Court has also held that the Seventh Amendment, protecting the right to trial by jury in civil cases, does not apply to the states.


McDonald v. City of Chicago Supreme Court Resources


Seventh Circuit Litigation Resources


District of Columbia v. Heller and the Second Amendment

  1. Heller v. District of Columbia, 2010 U.S. Dist. LEXIS 29063 (D.D.C. Mar. 26, 2010). The court held that the District Council had provided “ample evidence” of a “substantial nexus” between the registration system and the government’s interest in promoting public safety sufficient to satisfy the “intermediate scrutiny” level of review (which requires the government to prove that the challenged law is substantially related to an important governmental interest). The court deferred to the Council’s conclusion that assault weapons and large capacity magazines constitute dangerous and unusual weapons that are not within the scope of the core Second Amendment right, but observed that there was also sufficient evidence to find that these prohibitions met intermediate scrutiny. ⤴︎
  2. The Fourteenth Amendment states, in relevant part:

    Section 1. All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. ⤴︎

  3. The petitioners in McDonald v. City of Chicago argued that the Second Amendment should also be incorporated through the Fourteenth Amendment’s Privileges or Immunities Clause. Supreme Court precedent, however, has consistently held for over one hundred years that none of the Bill of Rights is incorporated through this clause. In McDonald, Justice Thomas joined the majority in holding that the Second Amendment applies to the states, but stated in a separate opinion that the Second Amendment right is a privilege of citizenship that should apply to the states through the Privileges or Immunities Clause. ⤴︎