Briefing Report: The Second Amendment Victory - The Right to Keep and Bear Arms Extends to the States

Thursday, August 19, 2010

The Second Amendment of the United States Constitution provides, "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."

Since the Supreme Court decided District of Columbia et al. v. Heller128 S.Ct. 2783 (2008), was delivered on June 26, 2008 the Second Amendment right to "keep and bear arms" has been a subject of much debate across the nation. Pundits, scholars and courts have split on how the opinion would impact firearm regulation in the United States. While it may take years to unravel the implications of the decision, the answer has its start in McDonald, et al., v. Chicago 561 U.S. (2010)

Case Background

In District of Columbia et al. v. Heller 128 S.Ct. 2783 (2008), the United States Supreme Court considered the Second Amendment implications of a District of Columbia firearms law which basically banned the possession of handguns. In a 5-4 decision, the court held that the Second Amendment does in fact guarantee the right of the individual to keep and bear arms, unconnected to a militia, for lawful purposes. The Court further determined that the District of Columbia's ban on handguns and especially the ban of such weapons in the home was unconstitutional, stating, "under any of the standards of scrutiny that we have applied to enumerated constitutional rights, banning from the home ‘the most preferred firearm in the nation to ‘keep' and use for the protection of one's home and family,'…would fail constitutional muster."

Subsequent to that decision, a Chicago, Illinois resident named Otis McDonald and several other plaintiffs filed a lawsuit in the United States District Court of the Northern District of Illinois challenging a similar handgun ban in the City of Chicago. In 1982, the City of Chicago had enacted a handgun ban and other firearm regulations because "the convenient availability of firearms and ammunition has increased firearm related deaths and injuries." Essentially, the ordinance prohibited possession of any firearm which was determined to be unregisterable and in those cases where a firearm was deemed to be registerable within the city; a resident would need to first obtain a valid registration certificate prior to taking possession. Failure to do so would render the particular weapon permanently unregisterable and could be punished by fines or imprisonment. The city broadly defined unregisterable firearms to include almost all handguns and any weapon which could be concealed, such as sawed-off shotguns. Rifles and shotguns were allowed but due to the extensive requirements of the ordinance, including annual renewal, it was very difficult, and some suggested nearly impossible to maintain long-term lawful registration of these weapons.

The overall result of the Chicago ordinance was effectively a ban on the possession of firearms within the city. The plaintiffs claimed that, similar to the District of Columbia law challenged in Heller, the city ordinance violated their Second and Fourteenth Amendment rights. They initially asked the court to rule on the city ordinance but later asked the court to narrow the scope of the case to consider the threshold question: whether the Second Amendment is incorporated into the Fourteenth Amendment, and thereby applies to the states.

The United States Supreme Court Decision

In a 5-4 decision, the United States Supreme Court held that the Due Process Clause of the Fourteenth Amendment incorporates the Second Amendment right of the individual to keep and bear arms, unconnected to a militia, for lawful purposes, especially for self-defense. It further noted that "a survey of the contemporaneous history also demonstrates clearly that the Fourteenth Amendment's framers and ratifiers counted the right to keep and bear arms among those fundamental rights necessary to the Nation's system of ordered liberty," and "the right to keep and bear arms must be regarded as a substantive guarantee, not a prohibition that could be ignored so long as the States legislated in an evenhanded manner."

What does this mean?

On its face, McDonald can be viewed simply as the logical progression of the decision in Heller which guaranteed the "individual right to possess and carry weapons in case of confrontation." However, despite that simplistic appearance, it is arguably more significant than its predecessor to the average citizen.

While the Heller decision established a right based on the Second Amendment, that right was limited to the federal government. The Supreme Court held as far back as 1833 that the provisions of the Bill of Rights do not apply to the states or restrict their authority. It was only after the passage of the Fourteenth Amendment in 1868 that the Supreme Court started the long process of "incorporation." That process is the use of the Due Process Clause of the Fourteenth Amendment to apply both procedural and substantive guarantees to the states. Though many citizens may not realize it, rights such as freedom of religion and speech were not always considered fundamental and could be infringed upon by the states. However, over the years the Supreme Court has selectively applied various provisions of the Bill of Rights to the states, enshrining some and virtually ignoring others.

Among those rights that were ignored in the past was the Second Amendment which provided that "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." So while Heller established that the "the right to keep and bear Arms" provides an individual with right to possess weapons for self-defense purposes, McDonald actually applies this right to the states rather than just the federal government. This is a critical step because a majority of the 300 million persons who reside in the United States are subject to laws crafted by and live in areas controlled by state entities. As a result, this opinion impacts a vastly larger population of citizens and requires the courts in non-federal cases to weigh the fundamental rights of citizens to possess a firearm whenever a challenge is brought against any firearm regulation passed by a state or other local government.

Limitations on Individual Rights and Application to Municipalities

As previously mentioned, McDonald can be seen to some degree as an extension of the Heller case. In its opinion, the Court continued to express the limitations raised in Heller. Justice Alito specifically noted 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.'" The court particularly singled out longstanding prohibitions of firearms for felons and the mentally ill, or law 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. In short, "despite doomsday proclamations, incorporation does not imperil every law regulating firearms."

McDonald and California Gun Laws

Despite the courts' statements regarding limitations on the possession of firearms, the ruling in McDonald has opened the door to those who may wish to challenge the validity of the numerous and varied laws regulating firearms in California. Unfortunately, the court did not clearly define any test for, or point at which a given law violates due process. It is clear that outright bans on firearms, such as those in Chicago, are unconstitutional but there is no apparent standard as to what types of law may be overturned or may be enacted. The court only opined that certain "longstanding" limitations were permissible.

As a result, there will be many court challenges and lawsuits before a body of law is established that clearly defines the limitations on this particular liberty interest. This was a significant concern noted in the dissenting opinion by Justice Breyer where he noted the numerous unanswered and almost limitless questions that will be posed to the lower courts. In his view this is tantamount to sending the courts on a "mission-almost-impossible."


While there have been many challenges regarding state and local laws regulating firearms and their constitutionality, the United States Supreme Court has now directly applied the newly recognized Second Amendment guarantee to municipal laws, noting " it is clear that the Framers and ratifiers of the Fourteenth Amendment counted the right to keep and bear arms among those fundamental rights necessary to our system of ordered liberty." This makes McDonald a watershed opinion for gun rights and gun control advocates. In the days following the delivery of the opinion both sides claimed victory, gun advocates pointing to this fundamental right as a source to challenge new and existing firearm prohibitions and proponents declaring it a clear signal that existing gun laws are constitutional. Numerous challenges to state firearms laws have sprung up all over the United States but time will decide the real impact of this opinion.


For more information on this report or other Public Safety issues , contact Eric Csizmar, Senate Republican Office of Policy at 916/651-1772.