McDonald v. City of Chicago

June 28, 2010
United States Supreme Court

On June 28, 2010, the United States Supreme Court ruled 5-4 in McDonald v. City of Chicago that Second Amendment rights are incorporated against the states. The Court cited in its decision The Heartland Institute's amicus brief in support of the right of Otis McDonald to keep a handgun at home to protect himself and his property.

Click the PDF link below to read the whole decision. Some excerpts:

From Justice Samuel Alito's majority opinion:

"The Court is correct in describing the Second Amendment right as “fundamental” to the American scheme of ordered liberty, Duncan v. Louisiana, 391 U. S. 145, 149, and “deeply rooted in this Nation’s history and traditions,” Washington v. Glucksberg, 521 U. S. 702, 721.  But the Fourteenth Amendment’s Due Process Clause, which speaks only to “process,” cannot impose the type of substantive restraint on state legislation that the Court asserts.  Rather, the right to keep and bear arms is enforceable Court of Appeals is reversed, and the case is remanded for further proceedings."

From Justice Antonin Scalia's concurring opinion:

"JUSTICE STEVENS’ approach, on the other hand, deprives the people of that power, since what­ ever the Constitution and laws may say, the list of pro­tected rights will be whatever courts wish it to be.  After all, he notes, the people have been wrong before, post, at 55, and courts may conclude they are wrong in the future. JUSTICE STEVENS abhors a system in which “majorities or powerful interest groups always get their way,” post, at 56, but replaces it with a system in which unelected and life­ tenured judges always get their way. That such usurpa­tion is effected unabashedly, see post, at 53—with “the judge’s cards . . . laid on the table,” ibid.—makes it even worse. In a vibrant democracy, usurpation should have to be accomplished in the dark. It is JUSTICE STEVENS’ ap­proach, not the Court’s, that puts democracy in peril."

From Justice Clarence Thomas's concurring opinion:

"In my view, the record makes plain that the Framers of the Privileges or Immunities Clause and the ratifying-era public understood—just as the Framers of the Second Amendment did—that the right to keep and bear arms was essential to the preservation of liberty.  The record makes equally plain that they deemed this right necessary to include in the minimum baseline of federal rights that the Privileges or Immunities Clause established in the wake of the War over slavery.  There is nothing about Cruikshank’s contrary holding that warrants its retention.

I agree with the Court that the Second Amendment is fully applicable to the States.  I do so because the right to keep and bear arms is guaranteed by the Fourteenth Amendment as a privilege of American citizenship."

From Justice John Paul Stevens' dissenting opinion:

"When one legal standard must prevail across dozens of jurisdictions with disparate needs and customs, courts will often settle on a relaxed stan­dard. This watering-down risk is particularly acute when we move beyond the narrow realm of criminal procedure and into the relatively vast domain of substantive rights. So long as the requirements of fundamental fairness are always and everywhere respected, it is not clear that greater liberty results from the jot-for-jot application of a provision of the Bill of Rights to the States.  Indeed, it is far from clear that proponents of an individual right to keep and bear arms ought to celebrate today’s decision."

From Justice Stephen Breyer's dissenting opinion:

"In sum, the Framers did not write the Second Amendment in order to protect a private right of armed self defense. There has been, and is, no consensus that the right is, or was, “fundamental.”  No broader constitutional interest or principle supports legal treatment of that right as fundamental. To the contrary, broader constitutional concerns of an institutional nature argue strongly against that treatment."