McDonald v. City of Chicago
Does the Second Amendment's right to keep and bear arms, which the Court had previously held protects individuals against federal firearms restrictions, also apply to state and local governments through the Fourteenth Amendment?
The Decision
5-4 decision · Opinion by Samuel Alito · 2010
Majority Opinion— Samuel Alitoconcurring ↓dissent ↓
In a 5–4 decision authored by Justice Samuel Alito, the Supreme Court held that the Second Amendment right to keep and bear arms is incorporated against state and local governments through the Due Process Clause of the Fourteenth Amendment. This meant that the individual right to possess a firearm for self-defense in the home, which the Court had recognized in Heller as against the federal government, now applied as a constitutional limit on every state and local government in the country.
The majority's reasoning rested on the Court's well-established 'selective incorporation' doctrine. Under this approach, a right guaranteed by the Bill of Rights is applied to the states if the Court determines that it is 'fundamental to our scheme of ordered liberty' or 'deeply rooted in this Nation's history and tradition.' Justice Alito's opinion undertook a sweeping historical analysis to demonstrate that the right to keep and bear arms met both tests. He traced the right from its English common-law origins through the colonial era, the founding period, and — most crucially — through the period surrounding the ratification of the Fourteenth Amendment in 1868. The opinion devoted substantial attention to the post-Civil War period, noting that Congress passed the Fourteenth Amendment in large part to stop Southern states from disarming freed Black citizens through laws known as the Black Codes. The framers of the Fourteenth Amendment, Alito wrote, clearly considered the right to bear arms a fundamental right of American citizenship that the new amendment was meant to protect.
The majority also addressed and effectively set aside the 19th-century precedents that the Seventh Circuit had relied upon — Cruikshank, Presser, and Miller v. Texas — explaining that those cases were decided long before the Court developed the modern selective incorporation doctrine and did not reflect the current understanding of the Fourteenth Amendment. The Court emphasized that the right to self-defense is among the most basic of natural rights and that the Second Amendment's protection of the ability to exercise that right through firearms is no less fundamental than freedoms of speech, religion, or other incorporated rights.
Importantly, the majority stressed — as it had in Heller — that the right to keep and bear arms is not unlimited. The decision did not cast doubt on longstanding prohibitions such as those on felons or the mentally ill possessing firearms, laws forbidding firearms in sensitive places like schools and government buildings, or conditions on the commercial sale of arms. The Court reversed the Seventh Circuit's decision and sent the case back to lower courts to evaluate Chicago's ban under the newly applicable Second Amendment standard.
Concurring Opinions
Justice Clarence Thomas filed a notable separate opinion concurring in part and concurring in the judgment. While he agreed that the Second Amendment applies to the states, he would have reached that result through the Fourteenth Amendment's Privileges or Immunities Clause rather than the Due Process Clause, arguing that the original meaning of the Privileges or Immunities Clause was specifically intended to protect substantive rights like the right to bear arms from state interference. Justice Antonin Scalia also filed a brief concurrence directly responding to Justice Stevens' dissent, defending originalism as a methodology and criticizing Stevens' approach to defining constitutional liberty.
Dissenting Opinions
John Paul Stevens
Justice Stevens argued that the right to possess a firearm for private self-defense is not the type of right that should be incorporated against the states under the Fourteenth Amendment. He contended that the liberty protected by the Due Process Clause should be evaluated by considering the broad interests of all Americans — including the interest in being free from gun violence — rather than simply asking whether a right has historical pedigree.
- The meaning of 'liberty' in the Fourteenth Amendment should be determined by careful, contemporary judgment about which rights are truly essential to ordered liberty, not merely by historical analysis of what the framers of a particular amendment may have intended.
- Firearms are fundamentally different from other constitutionally protected rights because the exercise of the right to bear arms directly and uniquely threatens the physical safety of other people, warranting greater deference to democratic decision-making by state and local governments.
- Incorporation of the Second Amendment would impose a one-size-fits-all federal standard that would undermine the ability of states and cities to respond to their unique public safety challenges through democratic self-governance.
Stephen Breyerjoined by Ruth Bader Ginsburg, Sonia Sotomayor
Justice Breyer argued that even under the Court's standard incorporation framework, the Second Amendment right should not be incorporated because doing so would not serve the interests of ordered liberty and would instead produce serious practical harms by preventing cities from addressing gun violence through tailored regulations.
- Incorporating the Second Amendment would generate enormous amounts of litigation, creating an unworkable standard and forcing courts to second-guess the judgments of elected officials on matters of public safety about which judges have little expertise.
- The empirical evidence does not clearly demonstrate that private firearm ownership for self-defense reduces crime or enhances public safety, and cities like Chicago adopted their handgun bans in response to devastating levels of gun violence.
- The history surrounding the Fourteenth Amendment is far more ambiguous than the majority acknowledged — many states had robust firearms regulations both before and after 1868, suggesting the Amendment's framers did not intend to prevent all such local regulation.
Background & Facts
Otis McDonald was a 76-year-old retired maintenance engineer who had lived in the Morgan Park neighborhood on Chicago's South Side for decades. Over the years, he watched his once-quiet neighborhood deteriorate as drug dealers and gangs moved in. McDonald's home had been broken into multiple times, and he and his family had been directly threatened. He wanted to keep a handgun in his home for self-defense, but Chicago's municipal code — enacted in 1982 — effectively banned the private possession of handguns by making it illegal to register any new handguns within city limits. The nearby suburb of Oak Park had a nearly identical ban.
McDonald, along with several other Chicago residents — including Colleen Lawson, a single woman living alone who feared for her safety, and Adam Orlov, a retiree whose home had been targeted by burglars — filed a lawsuit challenging Chicago's handgun ban. They argued that the ban violated their Second Amendment right to keep and bear arms. Their case was filed shortly after the Supreme Court's landmark 2008 decision in District of Columbia v. Heller, which had struck down a similar handgun ban in Washington, D.C. and declared that the Second Amendment protects an individual's right to possess firearms for self-defense. However, because Washington, D.C. is a federal enclave, Heller only addressed whether the Second Amendment limits the federal government. It left open the critical question of whether that same right also limits state and local governments — a question known in constitutional law as 'incorporation.'
The U.S. District Court for the Northern District of Illinois dismissed McDonald's challenge, and the U.S. Court of Appeals for the Seventh Circuit affirmed that dismissal. The Seventh Circuit acknowledged that there were strong arguments in McDonald's favor after Heller, but it felt bound by older Supreme Court precedents — specifically, three 19th-century cases (United States v. Cruikshank from 1876, Presser v. Illinois from 1886, and Miller v. Texas from 1894) — which had held that the Second Amendment did not apply to the states. The Seventh Circuit reasoned that only the Supreme Court itself could overrule those precedents.
The Supreme Court agreed to hear the case because it presented one of the most consequential unresolved constitutional questions of the era: whether the individual right to keep and bear arms recognized in Heller was binding on every level of government in the United States, or only on the federal government. The case was consolidated with a related challenge brought by the National Rifle Association against the City of Chicago and Oak Park.
The Arguments
McDonald argued that the Second Amendment right to keep and bear arms for self-defense is a fundamental right that applies to state and local governments through the Fourteenth Amendment. He contended that Chicago's near-total ban on handgun possession left law-abiding citizens like himself unable to defend their homes and families against criminal violence.
- The Supreme Court's decision in Heller established that the Second Amendment protects an individual right to possess firearms for self-defense in the home — a right that should be recognized as fundamental and therefore binding on states and cities, not just the federal government.
- The Fourteenth Amendment, ratified in 1868 to protect the rights of newly freed slaves, was specifically understood by its framers to protect the right to keep and bear arms, since Southern states had been systematically disarming Black citizens after the Civil War.
- Under the Court's modern 'selective incorporation' doctrine, virtually every other provision of the Bill of Rights has been applied to the states through the Fourteenth Amendment, and the right to bear arms is no less fundamental than those other rights.
Chicago argued that the Second Amendment should not be incorporated against state and local governments, and that even if some form of firearms right applies, municipalities must retain broad discretion to regulate firearms to protect public safety in densely populated urban areas.
- Nineteenth-century Supreme Court precedents explicitly held that the Second Amendment does not apply to the states, and those precedents have never been overruled.
- Incorporation of the Second Amendment would strip cities of the ability to craft firearms regulations tailored to local conditions, such as the severe gun violence plaguing Chicago, and would invite a flood of litigation challenging longstanding public safety measures.
- The right to keep and bear arms is fundamentally different from other Bill of Rights protections because firearms regulations are deeply intertwined with local public safety needs, and the tradition of state and local firearms regulation in America dates back centuries.