McDonald v. City of Chicago (2010)
McDonald v. City of Chicago, 561 U.S. 742 (2010) revisited the incorporation debate that was central to American constitutionalism during the 1950s and 1960s but had lain dormant for nearly fifty years. The incorporation debate concerns whether states are obligated to respect the rights enumerated in the first eight amendments to the Constitution. The Supreme Court in Barron v. Baltimore (1833) ruled that the first eight amendments, known as the Bill of Rights, limited only national power. That decision has never been technically overruled. Nevertheless, the Supreme Court in the late nineteenth and twentieth centuries began ruling that certain provisions of the Bill of Rights were incorporated by the due process clause of the Fourteenth Amendment. When a provision of the Bill of Rights is incorporated, states are held to the same standard of rights protection as the federal government. If a punishment when imposed by the federal government violates the cruel and unusual punishment clause of the Eighth Amendment, then the same punishment when imposed by a state violates the due process clause of the Fourteenth Amendment. By the end of the 1960s, the Supreme Court had ruled that every clause of the Bill of Rights other than the Second, Third and Seventh Amendments, the grand jury clause of the Sixth Amendment and the excessive fines clause of the Eighth Amendment was incorporated.
The main reason why the Second Amendment was not incorporated was that for many years, the Supreme Court heard no appeals and handed down no decisions on the scope of the constitutional right to bear arms. This changed in 2008 when the Supreme Court in District of Columbia v Heller ruled that the Second Amendment protected an individual right to bear arms. Almost immediately, proponents of gun rights in the states begin to challenge state laws, claiming that Heller provided the foundations for incorporating the Second Amendment. The case that reached the Supreme Court was brought by Otis McDonald, an elderly community activist in Chicago. Chicago prohibited most persons from owning a handgun in their homes. McDonald claimed he had a constitutional right under the Second Amendment as incorporated by the due process clause of the Fourteenth Amendment to have a weapon to protect his family from drug gangs.
The Supreme Court by a 5-4 vote ruled that the due process clause did incorporate the Second Amendment. Justice Samuel Alito’s opinion for the court began by pointing out that the crucial issue in incorporation is whether the right is “fundamental to our scheme of ordered liberty” or “deeply rooted in this nation’s history and tradition.” He then reviewed the historical evidence underlying the Supreme Court’s decision in Heller and concluded that the right to bear arms met this standard. Both “the Framers and ratifiers of the Fourteenth Amendment,” he stated, “counted the right to bear arms among those fundamental rights necessary to our system of ordered liberty.” Justice Clarence Thomas agreed that states had to protect the right to bear arms, but insisted that gun possession was best protected by the privileges and immunities of the Fourteenth Amendment. Justices Stephen Breyer, John Paul Stevens, David Souter, and Ruth Bader Ginsburg dissented. Breyer’s dissent pointed out that no consensus existed on the value of arms bearing, that “the appropriate level of firearm regulation has . . . long been, and continues to be, a hotly contested matter of public policy.”
The Supreme Court’s decision in McDonald did not affect the substance of the rights protected by the Second Amendment. The justices did not clarify, for example, whether states could forbid assault rifles or forbid persons from carrying weapons in their cars. McDonald held only that whatever rights the Supreme Court in the future determines are protected by the Second Amendment will be protected against both federal and state infringement.
McDonald witnessed role reversal on incorporation. During the 1950s and 1960s when incorporation centered around constitutional criminal procedure, liberals favored incorporation and conservatives were opposed. The more conservative members of the McDonald Court when incorporating the Second Amendment borrowed heavily from previous liberal arguments. The more liberal members of the McDonald Court when rejecting incorporating the Second Amendment borrowed heavily from previous conservative arguments.
Mark A. Graber
University of Maryland Carey School of Law
Last updated: January 2019