On March 2, 2010, oral argument was held before the United States Supreme Court in the McDonald v. Chicago case. A transcript of the argument is here.
On June 26, 2008, the Supreme Court issued its decision
in District of Columbia v. Heller
, holding that the Second Amendment protects an individual right to keep and bear arms and, on that basis, striking down the District of Columbia’s ban on possessing a handgun in the home. The decision in District of Columbia v. Heller
, however, only applied to federal gun control laws.
The issue being argued before the Supreme Court in the McDonald v. Chicago case is whether the Second Amendment also applies to state and local laws through the Fourteenth Amendment, which states in relevant part that: “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. . . .” The first clause is known as the privileges and immunities clause; the second is known as the due process clause. The Supreme Court had previously held in the 1876 case of United States v. Cruikshank that the Second Amendment did not apply to the states through the privileges and immunities clause of the Fourteenth Amendment. At the time of this decision, however, the Supreme Court had not yet applied any of the provisions in the Bill of Rights to the states. In a series of subsequent decisions, it has selectively applied the majority of the Bill of Rights to the states through the due process clause of the Fourteenth Amendment.
In the decision
being appealed in the McDonald v. Chicago
case, the U.S. Court of Appeals for the Seventh Circuit held that the Second Amendment does not apply to the bans on possessing handguns in the home by Chicago and Oak Park, because the Second Amendment only applies to federal laws. In doing so, the Court of Appeals held that it was governed by the Supreme Court’s decision in United States v. Cruikshank
that the Second Amendment does not apply to the states. It further noted that only the Supreme Court could determine that the reasoning of this decision is no longer valid based on its later decisions selectively incorporating most provisions in the Bill of Rights to the states, and should therefore be overruled.
The issue now before the Supreme Court in the McDonald v. Chicago case is whether it should overrule its decision in United States v. Cruikshank and hold that the Second Amendment applies to the states and, if so, whether to apply it through the privileges and immunities clause or the due process clause of the Fourteenth Amendment. Plaintiffs are primarily arguing that the Second Amendment should be applied through the privileges and immunities clause. This would also require the Supreme Court to overrule its 1873 decision in the Slaughterhouse Cases, which held that the privileges and immunities clause only applied to certain rights of national citizenship enumerated in the Constitution. A decision incorporating the Second Amendment to the states through the privileges and immunities clause may result in the entirety of the Bill of Rights being held to be applicable to the states. In contrast to the Plaintiffs, the National Rifle Association is primarily arguing that the Second Amendment should be incorporated to the states through the due process clause of the Fourteenth Amendment, as the Supreme Court has done with other provisions in the Bill of Rights. Although the Supreme Court will be deciding whether the Second Amendment applies to state and local laws, if it decides that they do, it may not also decide the issue of whether Chicago’s and Oak Park’s handgun bans violate the Second Amendment, but may instead remand the case to the lower courts to decide this issue. If it does so, however, it is virtually certain that these handgun bans will be held to violate the Second Amendment because they are essentially identical to the District of Columbia’s handgun ban that the Supreme Court held to be unconstitutional in the Heller v. District of Columbia case.