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. In its McDonald decision, the Court addressed the issue of 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.
Justice Alito wrote the opinion of the Court, which was joined by Chief Justice Roberts and Justices Scalia and Kennedy. Justice Thomas joined in the judgment, and certain parts of Justice Alito’s opinion. Justice Scalia wrote a concurring opinion and Justice Thomas wrote an opinion concurring in part and concurring in the judgment. Justice Stevens wrote a dissenting opinion and Justice Breyer wrote a dissenting opinion in which Justices Ginsburg and Sotomayor joined.
Justice Alito concluded that the Second Amendment right to keep and bear arms was incorporated to the states through the due process clause of the Fourteenth Amendment. Justice Thomas, in contrast, concluded that it should be incorporated through the privileges and immunities clause of the Fourteenth Amendment. Although a majority of the Court was unable to agree on the specific clause of the Fourteenth Amendment through which the Second Amendment right to keep and bear arms was incorporated to the states, a majority of the Court did agree that it was so incorporated, the same Justices that had formed the majority in the Heller decision
The Court held that the right to keep and bear arms is fundamental to the American scheme of ordered liberty, and is deeply rooted in the Nation’s history and tradition. The Court referred to its decision in Heller as having held that “individual self-defense is the central component of the Second Amendment right.” As in Heller, the Court did not address the appropriate standard of review to be applied in deciding Second Amendment challenges to gun control laws, but it did reject the proposition that the scope of the right to keep and bear arms should be determined by judicial interest balancing. The Court also did not delineate the precise scope of the Second Amendment right to keep and bear arms stating that:
It is important to keep in mind that Heller, while striking down a law that prohibited 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 clear in Heller that our holding did not cast doubt on such longstanding regulatory measures as “prohibitions on the possessions 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.
The Court did not directly overturn Chicago’s ban on the possession of handguns in the home, but rather reversed the decision of the Seventh Circuit Court of Appeals and remanded the case for further proceedings. Nevertheless, it is virtually certain that this handgun ban will be held to violate the Second Amendment because it is 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.
The Supreme Court’s McDonald decision is likely to result in Second Amendment challenges to restrictive gun controls laws in various states, such as New York, which requires a license and registration to purchase a handgun and possess it in one’s own home. The full scope of the right to keep and bear arms is unsettled and will be determined through successive judicial decisions over the coming years.