The Second Amendment: An Overview of District of Columbia v. Heller and McDonald v. City of Chicago

Congressional research reportApr 5, 2011

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The Second Amendment: An Overview

of District of Columbia v. Heller and

McDonald v. City of Chicago

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April 5, 2011

Congressional Research Service

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An Overview of District of Columbia v. Heller and McDonald v. City of Chicago

Summary

In District of Columbia v. Heller, the Supreme Court of the United States ruled in a 5-4 decision

that the Second Amendment to the Constitution of the United States protects an individual right to

possess a firearm, unconnected with service in a militia, and the use of that firearm for

traditionally lawful purposes, such as self-defense within the home. The decision in Heller

affirmed the decision of the Court of Appeals for the District of Columbia, which declared three

provisions of the District of Columbia’s Firearms Control Regulation Act unconstitutional. The

provisions specifically ruled on were: DC Code § 7-.....02, which generally barred the

registration of handguns; DC Code § 22-4504, which prohibited carrying a pistol without a

license, insofar as the provision would prevent a registrant from moving a gun from one room to

another within his or her home; and DC Code § 7-.....02, which required that all lawfully

owned firearms be kept unloaded and disassembled or bound by a trigger lock or similar device.

In noting that the District’s approach “totally bans handgun possession in the home,” the Supreme

Court declared that the inherent right of self-defense is central to the Second Amendment right,

and that the District’s handgun ban amounted to a prohibition of an entire class of arms that has

been overwhelmingly utilized by American society for that purpose.

The Court in Heller conducted an extensive analysis of the Second Amendment to interpret its

meaning, but the decision left unanswered other significant constitutional questions, including the

standard of scrutiny that should be applied to laws regulating the possession and use of firearms,

and whether the Second Amendment is incorporated, or applies to, the states.

After Heller, three federal Courts of Appeals addressed the question of incorporation. Two of

these decisions, from the U.S. Courts of Appeals for the Second Circuit and the Seventh Circuit,

held that the Second Amendment did not apply to the states, whereas the Court of Appeals for the

Ninth Circuit held that the Second Amendment is incorporated under the Due Process Clause of

the Fourteenth Amendment, although this decision has since been vacated. In McDonald v. City of

Chicago, the Court reversed the decision of the Court of Appeals for the Seventh Circuit, and held

that the Second Amendment applies to the states.

With respect to the Heller decision, this report provides an overview of judicial treatment of the

Second Amendment over the past 70 years in both the Supreme Court and federal appellate

courts. With respect to the McDonald decision, this report presents an overview of the principles

of incorporation, early cases that addressed the application of the Second Amendment to state

governments, and the federal appellate cases that addressed incorporation of the Second

Amendment since the Heller decision. Lastly, this report provides an analysis of the Court’s

opinions in Heller and McDonald and the potential implications of these decisions for firearms

legislation at the federal, state, and local levels.

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An Overview of District of Columbia v. Heller and McDonald v. City of Chicago

Contents

Introduction ................................................................................................................................1

The Second Amendment—An Individual or Collective Right? ....................................................1

The Second Amendment in the Supreme Court: United States v. Miller .................................2

The Second Amendment in Federal Court: Appellate Decisions Since Miller.........................3

United States v. Emerson.................................................................................................5

Silveira v. Lockyer...........................................................................................................6

The District of Columbia v. Heller Decision ................................................................................7

Parker v. District of Columbia...............................................................................................8

District of Columbia v. Heller ............................................................................................. 10

Oral Argument .............................................................................................................. 11

The Decision in Heller ........................................................................................................ 12

The Second Amendment Post-Heller................................................................................... 15

The Second Amendment—Does It Apply to the States?............................................................. 16

Direct Application............................................................................................................... 16

Privileges or Immunities Clause of the Fourteenth Amendment ........................................... 17

Due Process Clause of the Fourteenth Amendment .............................................................. 18

Has the Supreme Court Addressed Incorporation of the Second Amendment via the

Due Process Clause? ........................................................................................................ 20

Post-Heller Appellate Decisions and Incorporation of the Second Amendment .................... 21

The Second and Seventh Circuit Decisions.................................................................... 21

The Ninth Circuit Decision ........................................................................................... 22

The McDonald v. City of Chicago Decision............................................................................... 24

Justice Alito’s Majority and Plurality Opinion: Incorporation of the Second

Amendment via the Due Process Clause of the Fourteenth Amendment ............................ 25

Justice Thomas’s Concurring Opinion: Application of the Second Amendment via the

Privileges or Immunities Clause ....................................................................................... 29

Justice Stevens’s Dissenting Opinion: No Incorporation Under a Substantive Due

Process Analysis .............................................................................................................. 31

Justice Breyer’s Dissenting Opinion: No Incorporation Under Due Process Clause.............. 34

The Second Amendment Post-McDonald ............................................................................ 36

Contacts

Author Contact Information ...................................................................................................... 40

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An Overview of District of Columbia v. Heller and McDonald v. City of Chicago

Introduction

In June 2008, the Supreme Court issued its decision in District of Columbia v. Heller, holding by

a 5-4 vote that the Second Amendment to the Constitution of the United States protects an

individual right to possess a firearm, unconnected with service in a militia, and to use that firearm

for traditionally lawful purposes such as self-defense within the home. 1 In Heller, the Court

affirmed the lower court’s holding that declared three provisions of the District of Columbia’s

Firearms Control Regulation Act to be unconstitutional. The decision in Heller marked the first

time in almost 70 years that the Supreme Court addressed the nature of the right conferred by the

Second Amendment. Although the Court conducted an extensive analysis of the Second

Amendment to interpret its meaning, the decision left unanswered other significant constitutional

questions, including the standard of scrutiny that should be applied to laws regulating the

possession and use of firearms, and whether the Second Amendment applies to the states. This

latter issue was subsequently addressed by the Supreme Court in McDonald v. City of Chicago.2

Accordingly, this report first provides a historical overview of judicial treatment of the Second

Amendment and a discussion of the Court’s decision in Heller. It then examines the issue of

incorporation, which was the focus of the McDonald decision. Lastly, this report concludes with

an analysis that focuses on the potential impact of the Court’s decisions in Heller and McDonald

on such legislation pertaining to the use and possession of firearms at the federal, state, and local

levels.

The Second Amendment—An Individual or

Collective Right?

The Second Amendment to the Constitution states that “A well regulated Militia, being necessary

to the security of a free State, the right of the people to keep and bear Arms, shall not be

infringed.” Despite its brevity, the nature of the right conferred by the language of the Second

Amendment has been the subject of great debate in the political, academic, and legal spheres for

decades. Generally, it can be said that there are two opposing models that govern Second

Amendment interpretation. On one side of the debate, there is the “individual right model,” which

maintains that the text and underlying history of the Second Amendment clearly establishes that

the right to keep and bear arms is committed to the people, that is, an individual, as opposed to

the states or the federal government. On the other end of the spectrum is the “collective right

model,” which interprets the Second Amendment as protecting the authority of the states to

maintain a formal organized militia. A related interpretation, commonly called the “sophisticated

collective right model,” posits that individuals have a right under the Second Amendment to own

and possess firearms, but only to the extent that such ownership and possession is connected to

service in a state militia.

The text of the amendment is often raised to both support and contravene the argument that there

is an individual right to keep and bear arms. The individual right model places great weight on the

operative clause of the amendment that states “the right of the people to keep and bear arms shall

District of Columbia v. Heller, 554 U.S. 570 (2008).

McDonald v. City of Chicago, 561 U.S. __ (2010); 130 S. Ct. 3020 (2010).

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not be infringed.” Accordingly, it is argued that this command language clearly affords a right to

the people, and not simply to states. To support this notion, it is argued that the text of the Tenth

Amendment, which clearly distinguishes between “the states” and “the people,” makes it evident

that the two terms are, in fact, different, and that the Founders knew to say “state” when they

meant it.3 Under this reading, it may be argued that if the Second Amendment did not confer an

individual right, it simply would have read that the right of the states to organize the militia shall

not be infringed. Supporters of the collective right model, by contrast, often counter with the

argument that the dependent clause, which refers to “a well regulated militia,” qualifies the rest of

the amendment, thereby limiting the right of the people to keep and bear arms and investing the

states with the authority to control the manner in which weapons are kept, and to require that any

person who possesses a weapon be a member of the militia.4

An outgrowth of the rationale used by the collective right proponents has been the argument that

the militia, in modern times, is embodied by the National Guard, and that the realities of modern

warfare have negated the need for the citizenry to be armed. 5 Individual right theorists have

countered these arguments by noting that the militia of the Founders’ era consisted of every ablebodied male, who was required to supply his own weapon. These theorists also point to 10 U.S.C.

§ 311, which as part of its express definition of the different classes of militia states that in

addition to the National Guard, there is an “unorganized militia” that is composed of all ablebodied males between the ages of 17 and 45 who are not members of the National Guard or naval

militia.6 Moreover, proponents of the individual right model deride the notion that an individual

right to keep and bear arms can be read out of the Constitution as a result of technological

advancements or shifting societal mores.7 As illustrated below, various federal appellate courts

gave effect to each of these interpretive models, contributing to the uncertainty that characterized

the debate over the meaning of the Second Amendment prior to the Court’s decision in Heller.

The Second Amendment in the Supreme Court: United States v.

Miller

Despite the heated debate regarding the meaning of the Second Amendment, the Supreme Court

had decided only one case touching upon its scope prior to the decision in Heller. That case,

United States v. Miller, considered the validity of a provision of the National Firearms Act in

relation to the Second Amendment. 8 An interesting aspect of the decision in Miller, as illustrated

below, is that it was commonly cited in subsequent lower court decisions as supportive of the

proposition that the Second Amendment confers a collective right to keep and bear arms.

However, the Court’s discussion and actual holding, while giving effect to the dependent clause,

See, e.g., Randy Barnett, Kurt Lash’s Majoritarian Difficulty: A Response to a Textual Historical Theory of the Ninth

Amendment, 60 Stan. L. Rev. 937, 948 (2008).

See David C. Williams, The Mythic Meanings of the Second Amendment: Taming Political Violence in a

Constitutional Republic 15 (2003).

See, e.g., H. Richard Uviller & William G. Merkel, The Second Amendment in Context: The Case of the Vanishing

Predicate, 76 Chi. Kent. L. Rev. 403 (2000).

See Ronald S. Resnick, Private Arms as the Palladium of Liberty: The Meaning of the Second Amendment, 77 U. Det.

Mercy L. Rev. 1, 32 (1999).

Id. at 50.

United States v. Miller, 307 U.S. 174 (1939).

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could nonetheless be taken to indicate that the Second Amendment confers an individual right

limited to the context of the maintenance of the militia.

In Miller, the Court upheld a provision of the National Firearms Act that required the registration

of sawed-off shotguns. In discussing the Second Amendment, the Court noted that the term

“militia” was traditionally understood to refer to “all males physically capable of acting in concert

for the common defense,” and that members of the militia were primarily civilians and, on

occasion, soldiers too, who when called upon “were expected to appear bearing arms supplied by

themselves and of the kind in common use at the time.”9 This kind of language throughout the

Miller Court’s brief discussion of the meaning and expectations of those in a militia during the

Founding-era, though subsequently cited as supporting a collective right interpretation, also lent

itself to the possible interpretation that the Second Amendment confers an individual right to keep

and bear arms limited to the context of the maintenance of a militia. Despite this language, the

Court in Miller held:

In absence of any evidence tending to show that possession or use of a “shotgun having a

barrel of less than 18 inches in length” at this time has some reasonable relationship to the

preservation or efficiency of a well regulated militia, we cannot say that the Second

Amendment guarantees the right to keep and bear such an instrument. Certainly it is not

within judicial notice that this weapon is any part of the ordinary military equipment or that

its use could contribute to the common defense.10

The Miller holding focuses on and appears to suggest that the applicability of the Second

Amendment depends upon the type of weapon possessed by an individual and that the weapon, in

order to be protected under the amendment, must have some reasonable relationship to the

preservation or efficiency of a well-regulated militia. Yet, the decision in Miller is perplexing

because while it indicated a connection between the right to keep and bear arms and the militia,

the Court did not explore the logical conclusions of its holding; thus the question remained as to

what point the regulation or prohibition of firearms would violate the strictures of the

amendment. After Miller, the cases decided in the following decades departed from this rather

undefined test, with each succeeding decision arguably becoming more attenuated such that

judicial treatment of the Second Amendment for the remainder of the 20th century almost

summarily concluded that the amendment conferred only a collective right to keep and bear arms.

The Second Amendment in Federal Court: Appellate Decisions

Since Miller

The process of departure from, and the attenuation of, Miller began with the 1942 decision in

Cases v. United States.11 The U.S. Court of Appeals for the First Circuit (First Circuit) stated its

view on the holding in Miller and found it to suggest that “the federal government can limit the

keeping and bearing of arms by a single individual as well as by a group of individuals but it

cannot prohibit the possession or use of any weapon which has any reasonable relationship to the

preservation or efficiency of a well regulated militia.”12 The First Circuit pointed out that a

Id. at 179.

Id. at 178. Notably, the defendant in Miller did not present any evidence in support of his argument.

Cases v. United States, 131 F.2d 916 (1st Cir. 1942).

Id. at 922.

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general application of the test in Miller could, as a consequence, prevent the government from

regulating the possession or use by private persons, not connected with a militia, of machine guns

and similar weapons, which clearly serve military purposes. Beginning its departure from Miller,

the court in Cases simply stated that it doubted the Founders intended for citizens to be able to

possess weapons like machine guns, and further declared that Miller did not formulate any sort of

general test to determine the limits of the Second Amendment.13 The court then applied a new test

of its own formulation, focusing on whether the individual in question could be said to have

possessed the prohibited weapon in his capacity as a militiaman. 14 Applying that rationale to the

case at hand, the First Circuit declared that the defendant possessed the firearm “purely and

simply on a frolic of his own and without any thought or intention of contributing to the

efficiency of [a] well regulated militia.”15 While Cases acknowledged that the Federal Firearms

Act “undoubtedly curtails to some extent the right of individuals to keep and bear arms,” the

court upheld its constitutionality, stating that the act “does not conflict with the Second

Amendment” because as suggested by the court’s new test, the government can regulate

individuals from possessing a weapon (that could be viewed as a weapon of common militia use)

if such an individual is not in fact using that weapon in his capacity as a militiaman or for the

purpose of common militia use.

The court in Cases further cited the Supreme Court’s decision in United States v. Cruikshank16

and Presser v. Illinois,17 (both of which were decided prior to the advent of modern incorporation

doctrine principles) as support for the proposition that the Second Amendment does not confer an

individual right: “The right of the people to keep and bear arms is not a right conferred upon the

people by the federal constitution. Whatever rights the people may have depend upon local

legislation; the only function of the Second Amendment being to prevent the federal government

and the federal government only from infringing that right.”18

The concept of the Second Amendment as a collective protective mechanism rather than a

conferral of an individual right was reinforced by the U.S. Court of Appeals for the Third

Circuit’s (Third Circuit) decision that same year in United States v. Tot.19 In that case, the Third

Circuit declared that it was “abundantly clear” that the right to keep and bear arms was not

adopted with individual rights in mind.20 The court’s support for this statement was brief and

conclusory, and did not address any of the relevant, competing arguments.21 It was this type of

holding that became the norm for the remainder of the century in cases addressing the Second

Amendment, with courts increasingly referring to others’ holdings to support the determination

Id. The court also stated its view that it “d[id] not feel that the Supreme Court in [Miller] was attempting to formulate

a general rule applicable to all cases. The rule which it laid down was adequate to dispose of the case before it and that

we think was as far as the Supreme Court intended to go.” Id.

Id. at 922-23.

Id. at 923.

United States v. Cruikshank, 92 U.S. 542 (1875).

Presser v. Illinois, 116 U.S. 252 (1886).

Cases, 131 F.2d at 921. The court also noted that past case law indicated that the limitation imposed upon the federal

government by the Second Amendment to not infringe on the right conferred by the amendment was not absolute. Id. at

922.

United States v. Tot, 131 F.2d 261 (3d Cir. 1942), rev’d on other grounds, 319 U.S. 463 (1943).

Id. at 266.

Id.

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that there is no individual right conferred under the Second Amendment, without engaging in any

appreciable substantive legal analysis of the issue.22

United States v. Emerson

The traditional, albeit highly undefined, balance among the federal appellate courts with regard to

judicial treatment of the Second Amendment changed with the 2001 decision in United States v.

Emerson.23 In Emerson, the U.S. Court of Appeals for the Fifth Circuit (Fifth Circuit) became the

first federal appellate court to hold that the Second Amendment confers an individual right to

keep and bear arms. The court in Emerson specifically addressed the constitutionality of 18

U.S.C. § 922(g)(8), which prevents those under a domestic violence restraining order from

possessing a firearm. The district court had ruled this provision to be unconstitutional on grounds

that it allows the existence of a restraining order, even if issued “without particularized findings

of the threat of future violence, to automatically deprive a citizen of his Second Amendment

rights.”24 The Fifth Circuit agreed with the district court’s conclusion that the Second Amendment

confers an individual right after it engaged in an extensive analysis of the text and history of the

amendment.25 It further stated that “the history of the Amendment reinforces its plain text, namely

that it protects individual Americans in their right to keep and bear arms whether or not they are a

member of a select militia or performing active military service or training.”26 In making this

determination, the Fifth Circuit explicitly acknowledged that it was repudiating the position of

every other circuit court that had previously addressed the meaning of the Second Amendment,

stating: “[W]e are mindful that almost all of our sister circuits have rejected any individual rights

view of the Second Amendment. However, it respectfully appears to us that all or almost all of

these opinions seem to have done so either on the erroneous assumption that Miller resolved that

issue or without sufficient articulated examination of the history and text of the Second

Amendment.”27

The court in Emerson stated: “We reject the collective rights and sophisticated collective rights

models for interpreting the Second Amendment. We hold, consistent with Miller, that it protects

the rights of individuals, including those not then actually a member of any militia or engaged in

active military service or training, to privately possess and bear their own firearm ... that are

suitable as personal, individual weapons and are not of the general kind or type excluded by

Miller.”28 Although the Emerson court adopted the individual right model, it nonetheless reversed

the district court decision, determining that rights protected by the Second Amendment are

subject to reasonable restrictions:

Although, as we have held, the Second Amendment does protect individual rights, that does

not mean that those rights may never be made subject to any limited, narrowly tailored

See, e.g., Love v. Peppersack, 47 F.3d 120, 123 (4th Cir. 1995) (“The lower federal courts have uniformly held that

the Second Amendment preserves a collective, rather than individual right.”); United States v. Warin, 530 F.2d 103,

106 (6th Cir. 1976) (“It is clear that the Second Amendment guarantees a collective rather than an individual right.”).

United States v. Emerson, 270 F.3d 203 (5th Cir. 2001), rehearing and rehearing en banc denied, 281 F.3d 1281 (5th

Cir. 2001), cert denied, Emerson v. United States, 536 U.S. 907 (2002).

United States v. Emerson, 46 F.Supp.2d 598, 610 (N.D. Tex. 1999).

Emerson, 270 F.3d at 218-259.

Id. at 260.

Id. at 227.

Id. at 260.

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specific exceptions or restrictions for particular cases that are reasonable and not inconsistent

with the right of Americans generally to individually keep and bear their private arms as

historically understood in this country. Indeed, Emerson does not contend, and the district

court did not hold, otherwise. As we have previously noted, it is clear that felons, infants and

those of unsound mind may be prohibited from possessing firearms.29

Applying this standard to the challenged provision, the Emerson court noted that while the

evidence before it did not establish that an express finding of a credible threat had been made by

the local state court, the nexus between firearm possession by an enjoined party and the threat of

violence was sufficient to establish the constitutionality of 18 U.S.C. § 922(g)(8).30 The decision

in Emerson was accompanied by a special concurrence arguing that “[t]he determination whether

the rights bestowed by the Second Amendment are collective or individual [was] entirely

unnecessary to resolve this case and has no bearing on the judgment we dictate by this opinion.”31

Although the decision in Emerson did not result in the invalidation of any laws, the decision was

quite significant as it marked the first time a circuit court adopted an individual rights

interpretation of the Second Amendment, which in turn led to the most substantive exposition of

the collective rights model by a sister circuit.

Silveira v. Lockyer

In Silveira v. Lockyer,32 the U.S. Court of Appeals for the Ninth Circuit (Ninth Circuit) rejected a

Second Amendment challenge to California’s Assault Weapons Ban, specifically repudiating the

analysis in Emerson and adopting the collective right model interpretation of the Second

Amendment. It stated, “Our court, like every other federal court of appeals to reach the issue

except for the Fifth Circuit, has interpreted Miller as rejecting the traditional individual rights

view.”33 The Silveira decision was particularly significant because the Ninth Circuit essentially

picked up the gauntlet thrown down in Emerson. The court engaged in its own substantive

analysis of the text of the amendment, but reached the opposite conclusion than that of the Fifth

Circuit, which is important because the opinion in Silveira acknowledged and purported to rectify

the deficiencies in prior cases that have summarily interpreted Miller as precluding an individual

rights interpretation.

In particular, the Ninth Circuit began its analysis by expressly acknowledging that “the entire

subject of the meaning of the Second Amendment deserves more consideration than we, or the

Supreme Court, have thus far been able (or willing) to give it.”34 After engaging in an extensive

consideration of the same historical and textual arguments that were addressed in Emerson, the

court in Silveira stated, “The amendment protects the people’s right to maintain an effective state

militia, and does not establish an individual right to own or possess firearms for personal or other

Id. at 261.

Id. at 264-65.

Id. at 272 (Parker, J., special concurrence).

Silveira v. Lockyer, 312 F.3d 1052 (9th Cir. 2003), rehearing en banc denied, 328 F.3d 567 (9th Cir. 2003), cert.

denied, Silveira v. Lockyer, 540 U.S. 1046 (2003).

Silveira, 312 F.3d at 1063.

Id. at 1064.

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use. This conclusion is reinforced in part by Miller’s implicit rejection of the traditional

individual rights position.”35 The court later reemphasized this position, declaring:

In sum, our review of the historical record regarding the enactment of the Second

Amendment reveals that the amendment was adopted to ensure that effective state militias

would be maintained, thus preserving the people’s right to bear arms. The militias, in turn,

were viewed as critical to preserving the integrity of the states within the newly structured

national government as well as to ensuring the freedom of the people from federal tyranny.

Properly read, the historical record relating to the Second Amendment leaves little doubt as

to its intended scope and effect.36

Upon determining that the collective right model controls Second Amendment analysis, the Ninth

Circuit held that the amendment “poses no limitation on California’s ability to enact legislation

regulating or prohibiting the possession or use of firearms, including dangerous weapons such as

assault weapons.”37 Like the Emerson decision, the opinion in Silveira was accompanied by a

special concurrence that argued that the court’s “long analysis involving the merits of the Second

Amendment claims,” and its adoption of the “collective rights theory” was “unnecessary and

improper” in light of existing precedent mandating the dismissal of such claims for a lack of

standing. 38 A request for rehearing en banc was denied by the full court, resulting in the dissent of

six judges.39

The holdings in Emerson and Silveira, for the first time, presented the Supreme Court with two

contemporaneous circuit court decisions that reached fundamentally different conclusions with

regard to the protections afforded by the Second Amendment. While this dynamic led to a great

deal of speculation as to whether the Court would grant a petition for certiorari in Silveira to

resolve this split, the Court ultimately denied the application. This was presumably due to the fact

that even though the decisions constituted a concrete split between the two circuit courts on this

issue for the first time, no firearms laws were actually invalidated.

The District of Columbia v. Heller Decision

In light of the split interpretations of the meaning of the Second Amendment in the circuit court

decisions Emerson and Silveira, both of which were denied certiorari by the Supreme Court, the

stage for just such a conflict was set in 2007 in Parker v. District of Columbia.40 The decision in

Parker, which eventually made its way to the Supreme Court, marked the first time that a federal

appellate court struck down a law regulating firearms on the basis of the Second Amendment.

Id. at 1066.

Id. at 1086.

Id. at 1087.

Id. at 1093-94 (Magill, J., special concurrence).

Silveira, 328 F.3d 567 (9th Cir. 2003). (Judge Pregerson, dissenting, “[T]he panel misses the mark by interpreting the

Second Amendment right to keep and bear arms as a collective right, rather than as an individual right. Because the

panel’s decision abrogates a constitutional right, this case should have been reheard en banc.” Id. at 568. Judge

Kozinski, dissenting, “The sheer ponderousness of the panel’s opinion—the mountain of verbiage it must deploy to

explain away these fourteen words of constitutional text—refutes its thesis far more convincingly than anything I might

say. The panel’s labored effort to smother the Second Amendment by sheer body weight has all the grace of a sumo

wrestler trying to kill a rattlesnake by sitting on it—and is just as likely to succeed.” Id. at 570.).

Parker v. District of Columbia, 478 F.3d 370 (D.C. Cir. 2007).

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Parker v. District of Columbia

In Parker, six residents of the District of Columbia challenged three provisions of the District’s

1975 Firearms Control Regulation Act: DC Code § 7-.....02(a)(4), which generally barred the

registration of handguns, thus effectively prohibiting of possession of handguns in the District;

§ 22-4504(a), which prohibited carrying a pistol without a license (to the extent the provision

would prevent a registrant from moving a gun from one room to another within his or her home);

and § 7-.....02, which required all lawfully owned firearms be kept unloaded and disassembled

or bound by a trigger lock or similar device. 41

The Parker court first dismissed the claims of five of the six plaintiffs upon determining that the

District’s general threat to prosecute violations of its gun control laws did not constitute an injury

sufficient to confer standing on citizens who had only expressed an intention to violate the

District’s gun control laws but had not suffered any injury in fact.42 The remaining plaintiff, Dick

Heller, was found to have standing due to the fact that he had applied for, and had been denied, a

license to possess a handgun. Based on this, the court determined that the denial of a license

“constitutes an injury independent of the District’s prospective enforcement of its gun laws.”43

The court also allowed Heller’s claims challenging § 22-4504(a) (prohibiting the carriage of a

pistol without a license) and § 7-.....02 (requiring firearms be kept unloaded and disassembled

or bound by a trigger lock) to stand, as they “would amount to further conditions on the [right]

Heller desires.”44

The court then turned to its substantive consideration of the Second Amendment, engaging in a

textual and historical analysis that largely mirrored the approach of the Fifth Circuit in Emerson.

The court placed particular importance on the “word[s] ... the drafters chose to describe the

holders of the right—‘the people.’”45 Stating that the phrase “the people” is “found in the First,

Fourth, Ninth, and Tenth Amendments,” and that “[i]t has never been doubted that these

provisions were designed to protect the rights of individuals,” the court stated that it necessarily

follows that the Second Amendment likewise confers an individual right.46 The court also rejected

the contention that the prefatory clause of the amendment (“A well regulated Militia, being

necessary to the security of a free State”) qualified the effect of its operative clause (“the right of

the people to keep and bear Arms, shall not be infringed”), based on its characterization of the

historical factors at play. According to the court, early Congresses recognized that the militia

existed as all “able-bodied men of a certain age,” independent of any governmental creation, but

also that a militia nevertheless required governmental organization to be effective.47 This

Id. at 373.

In making this finding, the court relied upon its prior holdings in Navegar, Inc. v. United States, 103 F.3d 994 (D.C.

Cir. 1997) and Seegars v. Gonzales, 396 F.3d 1248 (D.C. Cir. 2005). Based on those cases, the Parker court determined

that the “plaintiffs were required to show that the District had singled them out for prosecution,” as opposed to making

a showing of general threat of prosecution stemming from a potential future violation of the District’s gun control laws.

Parker, 478 F.3d at 374. While noting that Supreme Court precedent generally allows for more relaxed standing

requirements when faced with a “pre-enforcement challenge to a criminal statute that allegedly threatened

constitutional rights,” the Parker court stated that it was nonetheless bound by its decisions in Navegar and Seegars in

the absence of an en banc decision overruling those cases. Id.

Id. at 376.

Id.

Id. at 381.

Id.

Id. at 387-88.

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interpretation enabled the court to dispose of the District’s argument that “a militia did not exist

unless it was subject to state discipline and leadership.”48 By specifically rejecting the notion that

there is a state organization requirement for the creation of a militia, the court was able to

interpret the prefatory clause as encompassing a broad swath of the populace, irrespective of a

state’s right to raise a collective protective force. 49 The court concluded its analysis by stating:

“The important point, of course, is that the popular nature of the militia is consistent with an

individual right to keep and bear arms: Preserving an individual right was the best way to ensure

that the militia could serve when called.”50

The Parker court also addressed the District’s argument that it was not subject to the restraints of

the Second Amendment because it is a purely federal entity. This argument was predicated on the

supposition that since the District is not a state, no federalism concerns are posed within the

context of the Second Amendment as there is no possibility that the exercise of legislative power

would unconstitutionally encumber the organization of a state militia, that is, “interfere with the

‘security of a free State.’”51 The court, in rejecting the District’s argument, referred to it as an

“appendage of the collective right position” and made note that “the Supreme Court has

unambiguously held that the Constitution and Bill of Rights are in effect in the District.”52

The final argument addressed by the court in Parker was the District’s contention that “even if the

Second Amendment protects an individual right and applies to the District, it does not bar the

District’s regulation, indeed, its virtual prohibition, of handgun ownership.”53 Engaging in a

historical analysis, the court determined that long guns (such as muskets and rifles) and pistols

were in “common use” during the era when the Second Amendment was adopted.54 While noting

that modern handguns, rifles, and shotguns are “undoubtedly quite improved over [their] colonialera predecessors,” the court held that the “modern handgun ... is, after all, a lineal descendant” of

the pistols used in the Founding-era and that they “certainly bear ‘some reasonable relationship to

the preservation or efficiency of a well regulated militia,’” thereby meeting the standard

delineated in Miller.55 The court further rejected the argument that the Second Amendment

applies only to colonial era weapons, stating that “just as the First Amendment free speech clause

covers modern communication devices unknown to the Founding generation, e.g., radio and

television, and the Fourth Amendment protects telephonic conversation from a ‘search,’ the

Id. at 386.

Id. at 389.

Id.

Id. at 395.

Id. Judge Henderson, in her dissent, argued that the District was not a “state” within the meaning of the Second

Amendment because courts have held that a determination as to whether the District qualifies as a state under a certain

constitutional provision is dependent on the “character and aim of the specific provision involved.” Id. at 406

(Henderson, dissenting). In this case, Judge Henderson maintained that the “Second Amendment’s ‘character and aim’

does not require [treatment of] the District as a State,” because it “had—and has—no need to protect itself from the

federal government,” which was the primary reason the Second Amendment was drafted. Id. at 406-07 (Henderson,

dissenting).

Id. at 397.

Id. at 398.

Id. The Parker court refers Supreme Court’s decision in Miller that set forth the rationale that the applicability of the

Second Amendment depends upon the type of weapon possessed by an individual and that the weapon, to be protected

under the amendment, must have some reasonable relationship to the preservation of a well-regulated militia, see supra

footnotes 8-10 and accompanying text.

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Second Amendment protects the possession of the modern-day equivalents of the colonial

pistol.”56

The court stressed that its conclusion should not be taken to suggest that “the government is

absolutely barred from regulating the use and ownership of pistols,” stating that “the protections

of the Second Amendment are subject to the same sort of reasonable restrictions that have been

recognized as limiting, for instance, the First Amendment.”57 The court stated that its holding did

not conflict with earlier Supreme Court determinations that existing laws prohibiting the

concealed carriage of weapons or depriving convicted felons of the right to keep and bear arms

“[do] not offend the Second Amendment.”58 According to the court, regulations of this type

“promote the government’s interest in public safety consistent with our common law tradition.

Just as importantly, however, they do not impair the core conduct upon which the right was

premised.”59 It went on to state other “[r]easonable regulations also might be thought consistent

with a ‘well regulated Militia,’” including but not necessarily limited to, the registration of

firearms (on the basis that it would give the government an idea of how many would be armed for

militia service if called upon), or reasonable firearm proficiency testing (as this would promote

public safety and produce better candidates for service).60

Applying these standards to the provisions of the DC Code at issue, the court ruled that each

challenged restriction violated the protections afforded by the Second Amendment. With regard to

§ 7-.....02(a)(4) (prohibiting the registration of a pistol), the court stated: “Once it is

determined—as we have done—that handguns are ‘Arms’ referred to in the Second Amendment,

it is not open to the District to ban them.”61 Turning to § 22-4504(a) (prohibiting the carriage of a

pistol without a license, inside or outside the home), the court stated: “[J]ust as the District may

not flatly ban the keeping of a handgun in the home, obviously it may not prevent it from being

moved throughout one’s house. Such a restriction would negate the lawful use upon which the

right was premised—i.e., self defense.”62 Finally, with respect to § 7-.....02 (requiring that all

lawfully owned firearms be kept unloaded and disassembled or bound by a trigger lock or similar

device), the court stated: “[L]ike the bar on carrying a pistol within the home, [this provision]

amounts to a complete prohibition on the lawful use of handguns for self-defense. As such, we

hold it unconstitutional.”63

District of Columbia v. Heller

On November 20, 2007, the Supreme Court granted the District of Columbia’s petition for

certiorari, though limiting it to the question of “[w]hether the following provisions, DC Code

§§ 7-.....02(a)(4), 22-4504(a), and 7-.....02, violated the Second Amendment rights of

Id.

Id. at 399.

Id.

Id. at 400.

Id.

Id. at 401.

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individuals who are not affiliated with any state-regulated militia, but who wish to keep handguns

and other firearms for private use in their homes?”64

Oral Argument

On March 18, 2008, the Supreme Court heard oral argument for Heller, considering in detail

many of the issues raised by the decision in Parker. Based on the questions and comments of the

Justices, it was widely assumed that the Court would hold that the Second Amendment does in

fact confer an individual right to keep and bear arms.65 In particular, Chief Justice Roberts and

Justices Alito and Scalia all made statements indicating that they support an individual right

interpretation. For instance, responding to the Petitioner’s assertion that the prefatory clause of

the amendment confirms that the right is militia related, Chief Justice Roberts stated: “[I]t’s

certainly an odd way in the Second Amendment to phrase the operative provision. If it is limited

to State militias, why would they say ‘the right of the people’? In other words, why wouldn’t they

say ‘State militias have the right to keep arms’?”66 Likewise, Justice Scalia declared:

I don’t see how there’s any, any, any contradiction between reading the second clause as a—

as a personal guarantee and reading the first one as assuring the existence of a militia, not

necessarily a State-managed militia because the militia that resisted the British was not Statemanaged. But why isn’t it perfectly plausible, indeed reasonable, to assume that since the

framers knew that the way militias were destroyed by tyrants in the past was not by passing a

law against militias, but by taking away the people’s weapons—that was the way militias

were destroyed. The two clauses go together beautifully: Since we need a militia, the right of

the people to keep and bear arms shall not be infringed.67

Additionally, Justice Kennedy indicated that he would support an individual right interpretation,

suggesting that the purpose of the prefatory clause was to “reaffirm the right to have a militia,”

with the operative clause establishing that “there is a right to bear arms.”68 Justice Kennedy’s

questioning further indicated that he might view a right to self-defense as being of a constitutional

magnitude, suggesting that the Framers may have also been attempting to ensure the ability of

“the remote settler to defend himself and his family against hostile Indian tribes and outlaws,

wolves and bears and grizzlies.”69 While Justice Thomas remained silent during the oral

argument, he had made statements in the past indicating support for an individual right

interpretation of the Second Amendment.

District of Columbia v. Heller, 128 S. Ct. 645 (November 20, 2007). The District of Columbia’s petition for

certiorari asked the Court to consider the question of “[w]hether the Second Amendment forbids the District of

Columbia from banning private possession of handguns while allowing possession of rifles and shotguns.” Petition for

Writ of Certiorari, District of Columbia v. Heller, 128 S. ct. 2783 (2008) (No. 07-2390), 2007 WL 2571686. The

respondents, Heller, asked the Court to consider “[w]hether the Second Amendment guarantees law-abiding, adult

individuals a right to keep ordinary, functional firearms, including handguns, in their homes.” Brief in Response to

Petition for a Writ of Certiorari, Heller, 128 S. Ct. 2783 (No. 07-290), 2007 WL 2962912.

See, Linda Greenhouse, Court Weights Right to Guns, And Its Limits, N.Y. Times, March 19, 2008, at A-1 (“A

majority of the Supreme Court appeared ready ... to embrace, for the first time in the country’s history, and

interpretation of the Second Amendment that protects the right to own a gun for personal use.”)

Transcript of Oral Argument at 4, Heller, 128 S. Ct. 2783 (No. 07-290) available at,

http://www.supremecourtus.gov/oral_arguments/argument_transcripts/07-290.pdf.

Id. at 7.

Id. at 5-6.

Id. at 8.

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The Decision in Heller

On June 26, 2008, the Supreme Court issued its decision, holding by a vote of 5-4 that the Second

Amendment protects an individual right to possess a firearm, unconnected to service in a militia,

and protects the right to use that arm for traditionally lawful purposes such as self-defense within

the home. 70 The opinion engaged in an extensive analysis of the text of the amendment. It first

focused on the operative clause of the amendment (“the right of the people to keep and bear

Arms, shall not be infringed”), finding that the textual elements of this clause and the historical

background of the amendment “guarantee the individual right to possess and carry weapons in

case of confrontation.”71 With regard to the prefatory clause (“A well regulated Militia, being

necessary to the security of a free State,”) the Court held that the term “militia” refers to all ablebodied men, as opposed to state and congressionally regulated military forces described in the

Militia Clauses of the Constitution. The Court further held that “the adjective ‘well-regulated’

implied nothing more than imposition of proper discipline and training,” and that the phrase

“security of a free State” refers to the security of a free polity as opposed to the security of each

of the several states.72

After analyzing the operative and prefatory clause, the Court then addressed the issue of whether

the prefatory clause “fits” with the operative clause that “creates an individual right to keep and

bear arms.” The Court declared that the two clauses “fit[] perfectly” when viewed in light of the

historical backdrop that motivated adoption of the Second Amendment. 73 In particular, the Court

pointed to the concern, raised by Justice Scalia in oral argument, of the Founding generation’s

knowledge that the federal government would disarm the people in order to disable the citizens’

militia rather than banning the militia itself, which would then enable a politicized standing army

or a select militia to rule. According to the Court, the amendment was thus designed to prevent

Congress from abridging the “ancient right of individuals to keep and bear arms, so that the ideal

of a citizens’ militia would be preserved.”74

After reaching this conclusion, the Court examined its prior decisions relating to the Second

Amendment in order to ascertain “whether any of [its] prior precedents foreclose[] the

conclusions [it] reached about the meaning of the Second Amendment.” The Court first

considered its ruling in United States v. Cruikshank, which held that the Second Amendment does

not by its own force apply to anyone other than the federal government. There, the Cruikshank

Court vacated the convictions of a white mob for depriving blacks of their right to keep and bear

arms. Whereas past lower courts interpreted Cruikshank to support the proposition that the

Second Amendment does not confer an individual right, the Heller Court stated that the decision

in Cruikshank “supports, if anything, the individual-rights interpretation.”75 The Court stressed

that their decision in Cruikshank described the right protected by the Second Amendment as the

“bearing [of] arms for a lawful purpose,” and that “the people must look for their protection

District of Columbia v. Heller, 554 U.S. 570 (2008). The majority opinion was authored by Justice Scalia, and was

joined by Roberts, C.J., and Kennedy, Thomas, and Alito, JJ. Justice Stevens filed a dissenting opinion, in which

Souter, Ginsburg, and Breyer, JJ., joined. Justice Breyer filed another dissenting opinion, in which Stevens, Souter, and

Ginsburg, JJ., joined.

Id. at 591.

Id. at 595-596.

Id. at 598.

Id. at 599.

Id. at 620.

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against any violation by their fellow-citizens of the rights it recognizes to the States’ police

power.” This discussion in Cruikshank, according to the Court in Heller, “makes little sense if it

is only a right to bear arms in a state militia.”76

The Court then turned to its prior ruling in Presser v. Illinois, which held that the right to keep

and bear arms was not violated by a law that prohibited groups of men “to associate together as

military organizations, or to drill or parade with arms in cities and towns unless authorized by

law.”77 The Heller Court stated that this holding in Presser “[did] not refute the individual-rights

interpretation of the Amendment,” and has no bearing on the Second Amendment’s “meaning or

scope, beyond the fact that it does not prevent the prohibition of private paramilitary

organizations.”78

Regarding the holding in United States v. Miller, the Heller Court rejected the assertion that the

decision in Miller established that the “Second Amendment ‘protects the right to keep and bear

arms for certain military purposes, but ... does not curtail the legislature’s power to regulate the

nonmilitary use and ownership of weapons.’”79 The Court declared that “Miller did not hold that

and cannot be possibly read to have held that,” given that the decision in Miller was predicated on

the determination that the “type of weapon was not eligible for Second Amendment Protection.”80

According to the Heller Court, the holding in Miller “is not only consistent with, but positively

suggests, that the Second Amendment confers an individual right to keep and bear arms (though

only arms that ‘have some reasonable relationship to the preservation or efficiency of a well

regulated militia’).”81 The Court went on to note, “[h]ad the [Miller] Court believed that the

Second Amendment protects only those serving in the militia, it would have been odd to examine

the character of the weapon rather than simply note that the two crooks were not militiamen.”82

The Court concluded its consideration of this issue by stating, “Miller stands only for the

proposition that the Second Amendment right, whatever its nature, extends only to certain types

of weapons.”83

Having determined that the Second Amendment confers an individual right and that precedent

supports such an interpretation, the Court stressed, “like most rights, the right secured by the

Second Amendment is not unlimited.”84 The Court noted that the right at issue had never been

construed as allowing individuals “to keep and carry any weapons whatsoever in any manner

whatsoever and for whatever purpose,” and that “the majority of the 19th century courts to

Id. (citing United States v. Cruikshank, 92 U.S. 532, 553 (1875); Justice Stevens, in dissent, disagreed with “the

majority’s assertion that the Court in Cruikshank ‘described the right protected by the Second Amendment as “bearing

arms for a lawful purpose,”’ (quoting Cruikshank, 92 U.S. at 553).… The Cruikshank Court explained that the

defective indictment contained such language, but the Court did not itself describe the right or endorse the indictment’s

description of the right.” (emphasis in original). See Heller, 128 S. Ct. at 673. The majority countered Justice Stevens’s

point by stating “in explicit reference to the right described in the indictment, the Court stated that ‘The second

amendment declares that it [i.e., the right of bearing arms for a lawful purpose] shall not be infringed.’” See id. at 620,

n 22.

Heller, 128 S. Ct. at 620 (citing Presser v. Illinois, 116 U.S. 252, 264-5 (1886)).

Id. at 621.

Id. (quoting Stevens, J., dissenting).

Id. at 622 (emphasis in original).

Id.

Id. at 623.

Id. at 626.

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consider the question held that prohibitions on carrying concealed weapons were lawful under the

Second Amendment or state analogues.”85 Moreover, the Court’s opinion appears to indicate that

current federal firearm laws are constitutionally tenable:

[N]othing in our opinion should be taken to cast doubt on longstanding prohibitions on the

possession of firearms by felons and the mentally ill, or 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. [fn 26: We identify these

presumptively lawful regulatory measures only as examples; our list does not purport to be

exhaustive.]86

The Court further stressed:

We also recognize another important limitation on the right to keep and carry arms. Miller

said, as we have explained, that the sorts of weapons protected were those “in common use at

the time.” [citation omitted] We think that limitation is fairly supported by the historical

tradition of prohibiting the carrying “dangerous and unusual weapons.” [citations omitted]87

The Court in Heller ultimately affirmed the holding in Parker v. District of Columbia,88 ruling

unconstitutional the three relevant provisions of the DC Code. 89 The Court then declared that the

inherent right of self-defense is central to the Second Amendment right, and that the District’s

handgun ban amounted to a prohibition of an entire class of arms that has been overwhelmingly

utilized by American society for that purpose. 90 It did not specify a governing standard of review

for Second Amendment issues, but stated that the District’s handgun ban violates “any of the

standards of scrutiny that we have applied to enumerated constitutional rights.”91 The Court also

struck down as unconstitutional the District’s requirement that any lawful firearm in the home be

disassembled or bound by a trigger lock, as such requirement “makes it impossible for citizens to

use arms for the core lawful purpose of self-defense.”92 However, the Court’s opinion did not

address the District’s licensing requirement (§ 22-4504), making note of Heller’s concession that

Id.

Id. at 626-627.

Id. at 627. The language of the Court seems to indicate that current federal restrictions on the ownership of fully

automatic weapons are constitutionally valid. Although the Court further noted that “[i]t may be objected that if

weapons that are most useful in military service—M-16 rifles and the like—may be banned, then the Second

Amendment right is completely detached from the prefatory clause ... [T]he fact that modern developments have

limited the degree of fit between the prefatory clause and the protected right cannot change our interpretation of the

right,” (id.), it is interesting to note that the Court’s analysis on this point does not give any consideration to the

constitutional implications of the role that longstanding, legislatively imposed restrictions may play in preventing

certain types of weapons from being “typically possessed by law-abiding citizens” or from coming into “common use.”

Parker v. District of Columbia, 478 F.3d 370 (D.C. Cir. 2007).

See, footnotes 61-63 and accompanying text, supra.

Id. at 628-629. Earlier in its opinion, the Court stated: “Some have made the argument, bordering on the frivolous,

that only those arms in existence in the 18th century are protected by the Second Amendment. We do not interpret

constitutional rights that way. Just as the First Amendment protects modern forms of communication, [citation omitted]

and the Fourth Amendment applies to modern forms of search, [citation omitted] the Second Amendment extends,

prima facie, to all instruments that constitute bearable arms, even those that were not in existence at the time of the

founding.” Id. at 582.

Id. at 628.

Id. at 630.

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such a requirement would be permissible if enforced in a manner that is not arbitrary and

capricious.93

Subsequent to the Supreme Court decision, the District of Columbia amended its firearms laws to

be in compliance with the ruling. However, there has been much legislative movement with

respect to the District’s firearms laws. For more information on DC gun laws, see CRS Report

R40474, DC Gun Laws and Proposed Amendments, by (name redacted).

The Second Amendment Post-Heller

Although the decision in Heller marked the first time in almost 70 years that the Supreme Court

addressed the nature of the right conferred by the Second Amendment, the Court itself noted that

its decision did not constitute “an exhaustive historical analysis ... of the full scope of the Second

Amendment.”94 Consequently, while the Court’s opinion is extremely important simply by virtue

of its determination that the Second Amendment protects an individual right to possess a firearm,

it left unanswered many questions of significant constitutional magnitude.

The Court acknowledged the criticism that its ruling leaves “so many applications of the right in

doubt,” and that “it does not provid[e] extensive historical justification for those regulations of

the right,” which the Court described as constitutionally permissible. 95 In response to such

criticism, the Court explained:

[S]ince this case represents this Court’s first in-depth examination of the Second

Amendment, one should not expect it to clarify the entire field.... And there will be time

enough to expound upon the historical justifications for the exceptions we have mentioned if

and when those exceptions come before us.96

A significant question left open by the Court centers on the standard of scrutiny that should be

applied to laws regulating the possession and use of firearms.97 In Heller, the Court refused to

establish or identify any such standard, declaring instead that the challenged provisions were

unconstitutional “[u]nder any of the standards of scrutiny that we have applied to enumerated

constitutional rights.”98 Yet, the Court did reject a test grounded in rational basis scrutiny, stating

that “if all that was required to overcome the right to keep and bear arms was a rational basis, the

Second Amendment would be redundant with the separate constitutional prohibitions on irrational

laws, and would have no effect.”99 And, the Court explicitly rejected Justice Breyer’s argument,

raised in his dissent, that an “interest-balancing inquiry” that “asks whether the statute burdens a

protected interest in a way or to an extent that is out of proportion to the statute’s salutary effects

Id. at 630-631.

Id. at 626.

Id. at 635 (quoting Breyer, J., dissenting).

Id.

Generally there are three levels of judicial scrutiny. First, strict scrutiny, the most rigorous, requires a statute to be

narrowly tailored to serve a compelling state interest. Second, intermediate scrutiny, requires a statute to further a

government interest in a way that is substantially related to that interest. Third, the rational basis standard merely

requires the statute to be rationally related to a legitimate government function. See Erwin Chemerinsky, Constitutional

Law: Principles and Policies §§ 6.5, 10.1.2 (3d ed. 2006).

Heller, 554 U.S. at 628.

Id. at n.27.

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upon other important governmental interests” should be applied.100 Responding to Justice

Breyer’s suggesting, the Court stated:

We know of no other enumerated constitutional right whose core protection has been

subjected to a freestanding “interest-balancing” approach. The very enumeration of the right

takes out of the hands of government—even the Third Branch of Government—the power to

decide on a case-by-case basis whether the right is really worth insisting upon. A

constitutional guarantee subject to future judges’ assessments of its usefulness is no

constitutional guarantee at all.101

Another issue that was unresolved by the Court is whether the Second Amendment applies to the

states. However, this issue was soon settled in the 2009 term of the Supreme Court when it

decided McDonald v. City of Chicago, subsequently discussed.

The Second Amendment—Does It Apply to the

States?

On June 28, 2010, the Supreme Court issued its decision in McDonald v. City of Chicago.102 The

issue before the Court in McDonald was whether the Second Amendment applies to, or is

incorporated against, the states. An incorporation analysis generally asks whether the protections

provided for in the first eight amendments of the Bill of Rights apply to state governments in the

same manner that they directly apply to the federal government. Judicial treatment of

incorporation has evolved over time, with the Court inquiring: (1) if the first eight amendments

apply directly to the states; (2) if the Privileges or Immunities Clause of the Fourteenth

Amendment guarantees these rights; and (3) if the Due Process Clause of the Fourteenth

Amendment incorporates the protections provided for in the first eight amendments. These three

inquiries are explained below.

Direct Application

Initially, in the early 19th century, the Supreme Court had ruled in Barron v. Mayor & City

Council of Baltimore that the protection of individual liberties in the Bill of Rights applied only to

the federal government, not to state or local governments.103 Chief Justice John Marshall, writing

for the Court, stated: “The constitution was ordained and established by the people of the United

States for themselves, for their own government, and not for the government of the individual

states.”104 He further stated that had the framers intended the Bill of Rights to apply to the states,

“they would have declared this purpose in plain and intelligible language.”105 Although

application of the Bill of Rights solely to the federal government would mean that state and local

governments could then be free to infringe upon these individual protections, Chief Justice

100

Id. at 634-635 (quoting Breyer, J., dissenting).

Id.

102

McDonald v. City of Chicago, 561 U.S. ___; 130 S. Ct. 3020 (2010).

103

Barron v. Mayor & City Council of Baltimore, 32 U.S. (7 Pet.) 243 (1833).

104

Id. at 247.

105

Id. at 250.

101

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Marshall observed that “[e]ach state established a constitution for itself, and in that constitution,

provided such limitations and restrictions on the power of its particular government, as its

judgment dictated.”106 Although the argument continued to be made that the Bill of Rights applied

directly to the states, the Court rejected this contention time and time again.107

Privileges or Immunities Clause of the Fourteenth Amendment

It was not until after the Civil War when the Fourteenth Amendment was ratified that claimants

resorted to the Privileges or Immunities Clause of Section 1 of the amendment for judicial

protection. The Privileges or Immunities Clause provides: “No State shall make or enforce any

law which shall abridge the privileges or immunities of citizens of the United States.”108

Five years after the Fourteenth Amendment was ratified, the Supreme Court, in Slaughter-House

Cases, rejected the plaintiffs’ assertions that a state law, which granted a monopoly to the City of

New Orleans, was in violation of the U.S. Constitution because it created involuntary servitude,

denied them equal protection of the laws, and abridged their privileges or immunities as citizens

under the Thirteenth and Fourteenth Amendments. 109 In rejecting the plaintiffs’ challenge, the

Court narrowly construed all of these provisions. With respect to the Privileges or Immunities

Clause, the Court held that this Clause was not meant to protect individuals from state

government actions and was not meant to be a basis for federal courts to invalidate state laws. 110

In doing so, the Court first acknowledged: “It is quite clear, then, that there is a citizenship of the

United States, and a citizenship of a state, which are distinct from each other, and which depend

upon different characteristics or circumstances in the individual.”111 After making this distinction,

the Court specifically stated that “it is only the [privileges and immunities of the citizens of the

United States] which are placed by this clause under the protection of the Federal Constitution,

and that the [privileges and immunities of the citizen of the State] whatever they may be, are not

intended to have any additional protection by the paragraph of this amendment.”112 Furthermore,

the Court stated that “privileges and immunities relied on in the argument are those which belong

to the citizens of the States as such, and that they are left to State governments for security and

protection, and not by this article [the Fourteenth Amendment] placed under the special care of

the Federal government.”113 While this ruling has never been expressly overturned, and therefore

106

Id. at 247.

107

See Livingston’s Lessee v. Moore, 32 U.S. (7 Pet.) 469 (1833); Permoli v. First Municipality, 44 U.S. (3 How.) 589

(1845); Fox v. Ohio, 46 U.S. (5 How.) 410 (1847); Smith v. Maryland, 59 U.S. (18 How.) 71 (1855); Withers v.

Buckley, 61 U.S. (20 How.) 84 (1858); Pervear v. Massachusetts, 72 U.S. (5 Wall.) 475 (1867); Twitchell v.

Commonwealth, 74 U.S. (7 Wall.) 321 (1869).

108

U.S. Const. amend. XIV, § 1. See also Constitution Annotated, 1001 (2004).

109

Slaughter-House Cases, 83 U.S. (16 Wall.) 36, 85 (1873).

110

Id. at 77-78.

111

Id. at 74.

112

Id.

113

Id. at 78. While the Court in Slaughter-House declined to “defin[e] the privileges and immunities of citizens of the

United States which no State can abridge,” it had suggested that some of these privileges and immunities under the

Fourteenth Amendment are “those which owe their existence to the Federal government, its National character, its

Constitution, or its laws.” Id. at 79. These include the right to come to the seat of government, to access the seaports, to

“demand the care and protection of the federal government over one’s life, liberty, and property when on the high seas

or within the jurisdiction of a foreign government.” Id. See also infra footnote 224 for discussion on privileges and

immunities of citizens of the several States.

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generally continues to preclude use of the Privileges or Immunities Clause to apply the Bill of

Rights,114 Justice Thomas addressed the Clause as it applies to the Second Amendment at length

in his concurring opinion in McDonald (see infra).

Due Process Clause of the Fourteenth Amendment

In the early 20th century, the Supreme Court in Twining v. New Jersey115 recognized the possibility

that the Due Process Clause of the Fourteenth Amendment incorporates provisions of the Bill of

Rights, thereby making them applicable to state and local governments. The Due Process Clause

of the Fourteenth Amendment provides: “[N]or shall any State deprive any person of life, liberty,

or property, without due process of law.”116 In Twining, the Court observed that

[I]t is possible that some of the personal rights safeguarded by the first eight Amendments

against National action may also be safeguarded against state action, because a denial of

them would be a denial of due process of law ... not because those rights are enumerated in

the first eight Amendments, but because they are of such nature that they are included in the

conception of due process of law.117

Although the Court acknowledged that the Due Process Clause included “principles of justice so

rooted in the tradition and conscience of our people as to be ranked fundamental,”118 and

therefore “implicit in the concept of ordered liberty,”119 the Court, despite debate,120 has never

endorsed total incorporation of all of the Bill of Rights. Rather, the Court embraced what has

become known as the doctrine of “selective incorporation,” which holds that the Due Process

Clause incorporates the text of certain provisions of the Bill of Rights.121 It was in Gitlow v. New

York that the Supreme Court for the first time said that the First Amendment’s protection of

freedom of speech applies to the states through its incorporation into the Due Process Clause of

the Fourteenth Amendment. 122 Although the Court held that New York’s criminal anarchy statute

did not violate the Fourteenth Amendment because the state was properly exercising its police

power, the Court, in finding incorporation, stated, “[F]reedom of speech and of the press ... are

among the fundamental personal rights and ‘liberties’ protected by the due process clause of the

Fourteenth Amendment from impairment by the States.”123

Prior to McDonald, the Supreme Court had found the following provisions of the Bill of Rights to

be incorporated:

114

The Court, however, revived the Privileges or Immunities Clause in Saenz v. Roe, 526 U.S. 489 (1999), by using it

to protect the right to travel.

115

Twining v. New Jersey, 211 U.S. 78 (1908).

116

U.S. Const. amend. XIV, § 1.

117

Twining, 211 U.S. at 99.

118

Palko v. Connecticut, 302 U.S. 319, 325 (1937) (citations omitted).

119

Id.

120

See Adamson v. California, 332 U.S. 46, 69 (1947) (Black, J. dissent).

121

See also Constitution Annotated, 999-1008 (2004).

122

Gitlow v. New York, 268 U.S. 652 (1925).

123

Id. at 666.

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•

The First Amendment’s establishment clause, 124 free exercise clause, 125 and

protection of speech,126 press,127 assembly, 128 and petition.129

•

The Fourth Amendment’s protection against unreasonable searches and seizures

and the requirement for a warrant based on probable cause; also the exclusionary

rule, which prevents the government from using evidence obtained in violation of

the Fourth Amendment.130

•

The Fifth Amendment’s prohibition of double jeopardy,131 protection against selfincrimination,132 and requirement that the government pay just compensation

when it takes private property for public use.133

•

The Sixth Amendment’s requirements for speedy134 and public trial,135 by an

impartial jury,136 with notice of the charges, 137 and for the chance to confront

adverse witnesses, 138 to have compulsory process to obtain favorable

witnesses,139 and to have assistance of counsel if the sentence involves possible

imprisonment.140

•

The Eight Amendment’s prohibition against excessive bail141 and cruel and

unusual punishment.142

Over time, the Court has articulated various tests for deciding whether a provision of the Bill of

Rights is incorporated through the Due Process Clause of the Fourteenth Amendment. The

Supreme Court in Duncan v. Louisiana143 summarized these formulations, stating, “the question

has been asked whether a right is among those ‘fundamental principles of liberty and justice

124

Everson v. Board of Ed., 330 U.S. 1 (1947); Illinois ex rel. McCollum v. Board of Education, 333 U.S. 203 (1948);

Wallace v. Jaffree, 472 U.S. 38 (1985).

125

Hamilton v. Regents, 293 U.S. 245, 262 (1934); Cantwell v. Connecticut, 310 U.S. 296 (1940).

126

Gitlow v. New York, 268 U.S. 652 (1925); Fiske v. Kansas, 274 U.S. 380 (1927); Stromberg v. California, 283 U.S.

359 (1931).

127

Near v. Minnesota ex rel. Olson, 283 U.S. 697 (1931).

128

DeJonge v. Oregon, 299 U.S. 353 (1937).

129

DeJonge v. Oregon, 299 U.S. 353 (1937); Hague v. Committee for Industrial Organization, 307 U.S. 496 (1939);

Bridges v. California, 314 U.S 252 (1941).

130

Wolf v. Colorado, 338 U.S. 784 (1949); Mapp v. Ohio, 367 U.S. 643 (1961).

131

Benton v. Maryland, 395 U.S. 784 (1969).

132

Malloy v. Hogan, 378 U.S. 1 (1964); Griffin v. California, 380 U.S. 609 (1965).

133

Chicago, Burlington & Quincy R.R. Co. v. City of Chicago, 166 U.S. 226 (1897).

134

Klopfer v. North Carolina, 386 U.S. 213 (1967).

135

In re Oliver, 333 U.S. 257 (1948).

136

Irvin v. Dowd, 366 U.S. 717 (1961); Turner v. Louisiana, 379 U.S. 466 (1965). See also Duncan v. Louisiana, 391

U.S. 145 (1968) (holding that the Sixth Amendment is incorporated to the states and guarantees a jury trial for serious

criminal offenses).

137

In re Oliver, 333 U.S. 257 (1948).

138

Pointer v. Texas, 380 U.S. 400 (1965); Douglas v. Alabama, 380 U.S. 415 (1965).

139

Washington v. Texas, 388 U.S. 14 (1967).

140

Powell v. Alabama, 287 U.S. 45 (1932); Gideon v. Wainwright, 372 U.S. 335 (1963).

141

Schilb v. Kuebel, 404 U.S. 357 (1971).

142

Louisiana ex rel. Francis v. Resweber, 329 U.S. 459 (1947); Robinson v. California, 370 U.S. 660 (1962).

143

Duncan v. Louisiana, 391 U.S. 145, 148-49 (1968).

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which lie at the base of all our civil and political institutions ...’144 whether it is ‘basic in our

system of jurisprudence ...’145 and whether it ‘is a fundamental right, essential to a fair trial.’146”

The Court also noted, in discussing state criminal processes, that “the question ... is ... whether

given this kind of [common-law] system a particular procedure is fundamental—whether, that is,

a procedure is necessary to an Anglo-American regime of ordered liberty.”147

Has the Supreme Court Addressed Incorporation of the

Second Amendment via the Due Process Clause?

Over 100 years ago, the Supreme Court held in United States v. Cruikshank that the Second

Amendment does not act as a constraint upon state law.148 In its brief treatment of the Second

Amendment, the Court in Cruikshank stated that “this is one of the amendments that has no other

effect than to restrict the powers of the national government.”149 This holding was reaffirmed in

Presser v. Illinois, where the Court further commented that because “all citizens capable of

bearing arms constitute the reserved military force or reserve militia of the United States as well

as of the States,” the “States cannot, even laying the constitutional provision [aside], prohibit the

people from keeping and bearing arms, so as to deprive the United States of their rightful

resource for maintaining the public security, and disable the people from performing their duty to

the general government.”150 In other words, the Court seemed to be of the opinion that there was

no need to rely upon the Second Amendment to act as a constraint upon state law, because states

could not go so far as to prohibit the people from owning firearms as doing so would interfere

with the United States’ ability to rely on its reserved military force—defined as “citizens capable

of bearing arms”—to maintain the public security. Both of these decisions were decided shortly

after the Slaughter-House Cases decision, and prior to the advent of modern incorporation

principles (discussed above).

In Heller, the Court commented upon the issue of incorporation, stating:

With respect to Cruikshank’s continuing validity on incorporation, a question not presented

by this case, we note that Cruikshank also said that the First Amendment did not apply

against the States and did not engage in the sort of Fourteenth Amendment inquiry required

by our later cases. Our decisions in Presser v. Illinois (citation omitted) and Miller v. Texas,

153 U.S. 535, 538, 14 S.Ct. 874, 38 L.Ed. 812 (1894), reaffirmed that the Second

Amendment applies only to the Federal Government.151

At the time, this statement seemed to leave open the possibility that were the issue of

incorporation to come before the Supreme Court, the Court would either support the application

of modern incorporation doctrine principles to the Second Amendment or continue with the

144

Powell, 287 U.S. at 67.

In re Oliver, 333 U.S. at 272.

146

Gideon, 372 U.S. at 343-44.

147

Duncan, 391 U.S. at 149-50 n. 14.

148

United States v. Cruikshank, 92 U.S. 542, 553 (1875).

149

Id.

150

Presser v. Illinois, 116 U.S. 252, 265 (1886).

151

Heller, 554 U.S. at 620, n.23.

145

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precedents found in Cruikshank and Presser that the Second Amendment does not apply to the

states.

Post-Heller Appellate Decisions and Incorporation of the

Second Amendment

After the Heller decision, three courts of appeals addressed whether the Second Amendment

applies to the states, that is, via direct application or via incorporation through the Due Process

Clause of the Fourteenth Amendment. The U.S. Courts of Appeals for the Second Circuit and

Seventh Circuit both held that the Second Amendment does not apply to the states, whereas the

Court of Appeals for the Ninth Circuit in Nordyke v. King held that the Second Amendment is

applicable to the states, though it later vacated its decision in light of McDonald.152

The Second and Seventh Circuit Decisions

The U.S. Court of Appeals for the Second Circuit (Second Circuit) was the first to address this

issue in Maloney v. Rice.153 In Maloney, the plaintiff sought a declaration that a New York penal

law that punishes the possession of nunchukas154 was unconstitutional. On appeal, the plaintiff

argued that the state statutory ban violates the Second Amendment because it infringes on his

right to keep and bear arms.155 The court, citing Presser, held that the state law did not violate the

Second Amendment because “it is settled law ... that the Second Amendment applies only to

limitations the federal government seeks to impose on this right.”156 The court noted that,

although Heller might have questioned the continuing validity of this principle, Supreme Court

precedent directed them to follow Presser because “[w]here, as here, a Supreme Court precedent

‘has direct application in a case, yet appears to rest on reasons rejected in some other line of

decisions, the Court of Appeals should follow the case which directly controls, leaving to the

Supreme Court the prerogative of overruling its own decisions.’”157

Similarly, in National Rifle Association v. City of Chicago,158 the U.S. Court of Appeals for the

Seventh Circuit (Seventh Circuit) held that the Second Amendment does not apply to the states.

Here, the National Rifle Association (NRA) appealed the decision of the lower court to dismiss its

152

Nordyke v. King, No. 07-15763 (9th Cir. July 12, 2010) (order to vacate panel opinion in Nordyke v. King, 563 F.3d

439 (9th Cir. 2009) and to remand case for further consideration in light of McDonald v. City of Chicago).

153

Maloney v. Rice, 554 F.3d 56 (2d Cir. 2009).

154

A “chuka stick” (or “nunchuka”) is defined as “any device designed primarily as a weapon, consisting of two or

more lengths of a rigid material joined together by a thong, rope or chain ... capable of being rotated in such a manner

as to inflict serious injury upon a person.” Id. at 58 (citing N.Y. Penal Law § 265.01(1)).

155

Of note, while Maloney was dismissed on grounds that the Second Amendment is not incorporated, the presence of

nunchukas as the weapon of issue begs the question of whether the Second Amendment would protect such “arms.”

See infra note 208 and accompanying text.

156

Maloney, 554 F.3d at 58.

157

Id. at 59 (quoting Rodriguez de Quijas v. Shearson/Am. Express, Inc., 490 U.S. 477, 484 (1989) (affirming a Fifth

Circuit Court of Appeals decision but stating “We do not suggest the Court of Appeals on its own authority should have

taken the step of renouncing Wilko [v. Swann]. If a precedent of this Court has direct application in a case, yet appears

to rest on reasons rejected in some other line of decisions, the Court of Appeals should follow the case which directly

controls, leaving to this Court the prerogative of overruling its own decisions.”)).

158

Nat’l Rifle Ass’n v. City of Chicago, 567 F.3d 856 (7th Cir. 2009) [hereinafter NRA v. City of Chicago], rev’d

McDonald v. City of Chicago, 130 S. Ct. 3020 (2010).

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suits against two municipalities on the ground that Heller dealt with law enacted under the

authority of the national government, while the City of Chicago and Village of Oak Park are

subordinate bodies of a state.159 Although the NRA case was decided after the Ninth Circuit’s

decision in Nordyke v. King, which held the opposite, the Seventh Circuit stated that the Supreme

Court’s decisions in Cruikshank, Presser, and Miller still control, as they have direct application

in the case. The court noted that, although Heller questioned Cruikshank, this “[did] not license

inferior courts to go their own ways.... If a court of appeals may strike off on its own, this not

only undermines the uniformity of national law but also may compel the Justices to grant

certiorari before they think the question ripe for decision.”160

The Ninth Circuit Decision

On April 20, 2009, the U.S. Court of Appeals for the Ninth Circuit in Nordyke v. King held that

the Due Process Clause of the Fourteenth Amendment incorporated the Second Amendment and

applied it against the states and local governments. 161 However, the Chief Judge issued an order

on July 29, 2009, stating that the Ninth Circuit would rehear the case en banc and that the threejudge panel decision issued in April 2009 was not to be cited as precedent by or to any court of

the Ninth Circuit.162 Following the McDonald decision, the Ninth Circuit vacated the panel

decision and remanded the case for further consideration.163 Despite these developments, this

report examines the April 2009 opinion, as the Court in McDonald followed a similar analysis

when it examined the Second Amendment through the Due Process Clause of the Fourteenth

Amendment.

Nordyke stated that there are three doctrinal ways the Second Amendment could apply to the

states: (1) direct application, (2) guaranteed as a right by the Privileges or Immunities Clause of

the Fourteenth Amendment, or (3) incorporation by the Due Process Clause of the Fourteenth

Amendment. Citing precedent, the court held that it was precluded from finding incorporation

through the first two options.164 The court then embarked on an analysis under the Due Process

Clause of the Fourteenth Amendment. 165 It began by noting that “[s]elective incorporation is a

species of substantive due process, in which the rights the Due Process Clause protects include

some of the substantive rights enumerated in the first eight amendments of the Constitution.”166

The court stated that addressing either selective incorporation, which addresses enumerated

159

Id. at 857.

Id. at 858.

161

Nordyke v. King, 563 F.3d 439 (9th Cir. 2009).

162

Nordyke v. King, No. 07-15763, (9th Cir. 2009 July 29, 2009) (order to rehear case en banc and that the three-judge

panel opinion shall not be cited).

163

Nordyke v. King, No. 07-15763 (9th Cir. July 12, 2010) (order to vacate panel opinion in Nordyke v. King, 563 F.3d

439 (9th Cir. 2009) and to remand case for further consideration in light of McDonald v. City of Chicago).

164

The court acknowledged that Supreme Court precedent foreclosed a finding through direct application. Nordyke,

563 F.3d at 446 (citing Barron, 32 U.S. at 247-51). It also acknowledged that the Slaughter-House Cases preclude

analysis through the Privileges or Immunities Clause of the Fourteenth Amendment. Id. (citing Slaughter-House Cases,

83 U.S. at 74-5).

165

The court addressed an earlier Ninth Circuit case, Fresno Rifle & Pistol Club, Inc. v. Van de Kamp, 965 F.2d 723

(9th Cir. 1992) which held that the Second Amendment applies only to the federal government. The court found that

Fresno Rifle only decided that the Second Amendment was not incorporated via direct application of the Privileges or

Immunities Clause of the Fourteenth Amendment, and that the decision did not reach the question of whether the

Second Amendment could be incorporated via the Due Process Clause of the Fourteenth Amendment.

166

Nordyke, 563 F.3d. at 449.

160

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rights, or substantive due process, which addresses unenumerated rights, requires the court to

answer if “a right is so fundamental that the Due Process Clause guarantees it.”167

To answer this, the Ninth Circuit, although acknowledging other standards used in selective

incorporation analyses, applied another standard the Supreme Court used “outside the context of

incorporation” to determine whether an individual right unconnected to criminal or trial

procedures is a fundamental right protected by substantive due process.168 Specifically, the Ninth

Circuit inquired “whether the right to keep and bear arms ranks as fundamental, meaning

‘necessary to an Anglo-American regime of ordered liberty’ ... [which compelled them] to

determine whether the right is ‘deeply rooted in this Nation’s history and tradition’ (emphasis

added).”169 The inquiry “deeply rooted in this Nation’s history and tradition” stems from Moore v.

City of East Cleveland,170 where the Supreme Court recognized a fundamental right to keep

family together that includes an extended family. Noting that “incorporation is logically a part of

substantive due process,”171 the court in Nordyke applied the standard from Moore because that

case noted “the similarity between ... general substantive due process and the incorporation

inquiry stated in Duncan [v. Louisiana].”172 As will be seen infra, the Supreme Court in

McDonald generally abstained from addressing that its past decisions had linked the Due Process

Clause with a substantive due process analysis even though it also utilized the “deeply rooted in

our Nation’s history” standard. However, Justice Stevens, dissenting, conducted his own

substantive due process analysis and concluded that the right is not incorporated. 173

After engaging in a historical analysis of the right during the Founding era, the postRevolutionary years, and the post-Civil War era,174 and drawing from some of the Supreme

Court’s findings in Heller, the Ninth Circuit concluded that the Second Amendment is

incorporated and applies against state and local governments because “the crucial role [of this]

deeply rooted right ... compels us to recognize that it is indeed fundamental [and] necessary to the

Anglo-American conception of the ordered liberty that we have inherited.”175

Typically, when a right is deemed fundamental, the court must use the strict scrutiny test as the

standard of review, meaning that “a law will be upheld if it is necessary to achieve a compelling

government purpose.”176 Although the Ninth Circuit concluded that the Second Amendment was a

fundamental right, it did not apply the strict scrutiny test to the challenged county ordinance.177

167

Id.

Id. at 451.

169

Id.

170

431 U.S. 494, 503 (1977).

171

Nordyke, 563 F.3d at 450.

172

Moore, 431 U.S. at 503 n. 10.

173

See infra “Justice Stevens’s Dissenting Opinion: No Incorporation Under a Substantive Due Process Analysis.”

174

Nordyke, 563 F.3d at 451-57.

175

Id. at 457.

168

176

Generally there are three levels of judicial scrutiny. First, strict scrutiny, the most rigorous, requires a statute to be

narrowly tailored to serve a compelling state interest. Second, intermediate scrutiny, requires a statute to further an

government interest in a way that is substantially related to that interest. Third, the rational basis standard merely

requires the statute to be rationally related to a legitimate government function. See Erwin Chemerinsky, Constitutional

Law: Principles and Policies §§ 6.5, 10.1.2 (3d ed. 2006).

177

The Alameda County ordinance that was challenged was one that “makes it a misdemeanor to bring onto or to

possess a firearm or ammunition on County property.” Nordyke, 563 F.3d at 442.

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Rather, it noted that the Supreme Court in Heller did not announce a standard of review and held

that the challenged ordinance, which prohibited the possession of firearms or ammunition on

county property, “fits within the exception from the Second Amendment for ‘sensitive places’ that

Heller recognized.”178

The McDonald v. City of Chicago Decision

On June 28, 2010, the Supreme Court issued its decision in McDonald v. City of Chicago. The

petitioners, Otis McDonald and other residents of Chicago and the Village of Oak Park, Illinois,

asserted that certain municipal ordinances prevented them from keeping handguns in their homes

for self-defense. The Chicago ordinance provided: “No person ... shall ... possess ... any firearm

unless such person is the holder of a valid registration certificate of such firearm.”179 The Chicago

Code, however, prohibited the registration of most handguns, which “effectively ban[s] handgun

possession by almost all private citizens who reside in the City.”180 Similarly, Oak Park made it

“unlawful for any person to possess ... any firearm,” a term that included “pistols, revolvers, guns

and small arms ... commonly known as handguns.”181

Petitioners advocated for incorporation of the Second Amendment against the states either under

the Fourteenth Amendment’s Privileges or Immunities Clause or under the Fourteenth

Amendment’s Due Process Clause.182 It is worth noting that the petitioners devoted much of their

brief and oral argument for application of the Second Amendment via the Privileges or

Immunities Clause of the Fourteenth Amendment. On the other hand, the NRA, who was

recognized by the Court as a “respondent” in support of the petitioners’ (McDonald) group,

primarily argued for incorporation of the Second Amendment via the Due Process Clause of the

Fourteenth Amendment.183

Although five Justices agreed that the Second Amendment applies to the states, these Justices

came to different conclusions as to how the amendment is incorporated, resulting in a fractured

opinion. Justice Alito delivered the opinion of the Court and concluded that the Due Process

Clause of the Fourteenth Amendment incorporates the Second Amendment. This opinion was

joined by Chief Justice Roberts, and Justices Scalia and Kennedy. Justice Thomas, however, filed

a concurring opinion in which he concluded that the Privileges or Immunities Clause of the

178

Nordyke, 563 F.3d at 460 (quoting Heller, 554 U.S. at 626-627, “[N]othing in our opinion should be taken to cast

doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or 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.”).

179

McDonald, 130 S. Ct. at 3026 (citing Chicago, Ill., Municipal Code § 8-20-040(a) (2009)).

180

Id. (citing Chicago, Ill., Municipal Code § 8-20-050(c)).

181

Id. (citing Oak Park, Ill., Municipal Code §§ 27-2-1 (2007), 27-1-1 (2009)).

182

Brief for Petitioners at i, McDonald v. City of Chicago, 130 S. Ct. 3020 (2010) (No. 08-1521). As a technical note,

the term “incorporated” is not generally utilized when asking if a right applies to the states via the Privileges and

Immunities Clause of the Fourteenth Amendment. In such cases, the question typically analyzed by the Court is

whether the Privileges and Immunities Clause guarantees the right. See, e.g., Saenz v. Roe, 526 U.S. 489 (1999).

183

The NRA case from the Seventh Circuit had consolidated both the petitioners and respondents in support of

petitioners’ cases. After the Seventh Circuit issued its decision, each party applied separately to the Supreme Court for

writ of certiorari—(McDonald v. City of Chicago, docket 08-1521) and (NRA v. Chicago, docket 08-1497). However,

the Supreme Court granted certiorari only for petitioners (McDonald) but later recognized the NRA as a respondent in

support of the petitioners.

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Fourteenth Amendment guarantees the right to keep and bear arms. Two dissenting opinions were

filed. Justice Stevens opined that whether the Second Amendment applies should be analyzed

under a substantive due process analysis, and that “the analysis should depend on whether there is

a constitutionally protected liberty to keep handguns in the home ... which he [consequently] did

not believe existed due to the ‘fundamentally ambivalent relationship’ of firearms to liberty.”184

The second dissenting opinion was authored by Justice Breyer, joined by Justices Ginsburg and

Sotomayor, who opined that the history of the right is so uncertain that it does not support

incorporation; that determining the constitutionality of a particular state gun law is outside the

Court’s scope and expertise; and that incorporation would intrude significantly upon state police

power.

Justice Alito’s Majority and Plurality Opinion: Incorporation of the

Second Amendment via the Due Process Clause of the Fourteenth

Amendment

Justice Alito, writing for the Court, revisited the precedents in Barron and Slaughter-House

Cases, which precluded application of the Bill of Rights either by direct application or the

Privileges or Immunities Clause of the Fourteenth Amendment, respectively. Although Justice

Alito, writing for the plurality, declined to disturb these holdings, and further acknowledged that

the Court’s decisions in Cruikshank, Presser, and Miller held that the Second Amendment applies

only to the federal government,185 he stated that those decisions “do not preclude us from

considering whether the Due Process Clause of the Fourteenth Amendment makes the Second

Amendment right binding on the States.”186

Before analyzing how the Fourteenth Amendment incorporates the Second Amendment, the Court

first examined the evolution of its Due Process Clause analysis.187 It noted five features of its

earlier approach to a Due Process Clause analysis, which included

•

viewing “the due process question as entirely separate from the question whether

a right was a privilege or immunity of national citizenship”;188

•

the use of “different formulations in describing the boundaries of due process,”189

which included looking to “immutable principles of justice which no member of

the Union may disregard,”190 or protecting rights that are “so rooted in the

traditions and conscience of our people as to be ranked fundamental,”191 and that

are “the very essence of a scheme of ordered liberty ... and essential to ‘a fair and

enlightened system of justice’”;192

184

McDonald, 130 S. Ct. at 3107 (Stevens, J., dissenting).

Id. at 3030 (Alito, J., plurality).

186

Id. at 3031.

187

Justice Thomas joined in section, part III-A and III-B, with the other four Justices, but did not agree to their

concluding that the Due Process Clause of the Fourteenth Amendment incorporates the Second Amendment.

188

Id. (majority) (citing Twining, 211 U.S. at 99).

189

Id.

190

Id. at 3032 (citing Twining, 211 U.S. at 102 (internal quotation marks omitted).

191

Id. (citing Snyder v. Massachusetts, 291 U.S. 97, 105 (1934)).

192

Id. (citing Palko, 302 U.S. at 325).

185

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•

asking whether any other “civilized system could be imagined”193 as not

affording a particular procedural safeguard before compelling a state to recognize

a particular right;

•

recognizing that some rights set out in the Bill of Rights failed to meet the test for

inclusion within the protection of the Due Process Clause; and

•

holding that even if a right was protected against state infringement that “the

protection or remedies afforded against [the state] sometimes differed from the

protection or remedies provided against abridgment by the Federal

Government.”194

Out of these five features, the Court pointed out that later cases, which selectively incorporated

certain rights, abandoned three of the previously noted characteristics. The Court, instead of

examining “any civilized system,” now asks “whether a particular guarantee is fundamental to

our scheme of ordered liberty and system of justice.”195 The second feature the Court has shed

was any prior “reluctance to hold that rights guaranteed by the Bill of Rights met the

requirements for protection under the Due Process Clause,” stating that the Court has

incorporated almost all of its provisions, as discussed above. Lastly, the Court has “abandoned

‘the notion that the Fourteenth Amendment applies to the States only a watered-down, subjective

version of the individual guarantees of the Bill of Rights,’ stating that it would be ‘incongruous’

to apply different standards ‘depending on whether the claim was asserted in a state or federal

court.’”196 With some exceptions, 197 the Court has held that incorporated Bill of Rights

protections “‘are all to be enforced against the States under the Fourteenth Amendment according

to the same standards that protect those personal rights against federal encroachment.’”198

With this modern framework for analyzing if a right comes under the protection of the Due

Process Clause, the Court turned to the issue of whether the Second Amendment was just such a

right that was incorporated in the concept of due process. The Court, similar to the Ninth Circuit,

analyzed whether “the right to keep and bear arms is fundamental to our scheme of ordered

liberty, (citation omitted) or as [it has] said in a related context, whether this right is ‘deeply

rooted in this Nation’s history and tradition’ Washington v. Glucksberg, 521 U.S. 702, 721 (1997)

(internal quotation marks omitted).”199

193

Id. (citing Duncan, 391 U.S. at 149, n. 14).

Id. at 3032.

195

Respondents made the argument that the Court should look at whether a procedural right is fundamental “given this

kind of system,” referring to the United States, but that for a substantive right, the Court is not limited as to “the context

of a particular procedural system, but whether [the substantive right] is more generally implicit in the concept of

ordered liberty,” thus allowing the Court to examine other civilized systems. Brief for Respondents at 10, n.3,

McDonald v. City of Chicago, 130 S. Ct. 3020 (2010) (No. 08-1521). See also infra footnote 257.

196

Id. at 3035 (citing Malloy v. Hogan, 378 U.S. 1, 10-11 (1964) (internal quotation marks omitted)).

194

197

For example, the Court has held that the Sixth Amendment right to trial by jury does not require unanimous jury

verdict in state trials although they are required in federal trials. See McDonald, 130 S. Ct. at 3036, n. 14.

198

Id. (citing Malloy, 378 U.S. at 10).

199

Id. at 3036. The Court notably utilized the “deeply rooted in this Nation’s history and tradition” inquiry, the same as

the Ninth Circuit, to examine the Second Amendment under the Fourteenth Amendment. However, while the Ninth

Circuit acknowledged that this test’s origins lay outside the “context of selective incorporation ” and from Moore v.

City of East Cleveland, where the Court engaged in a substantive due process analysis of an unenumerated right, the

Court in McDonald seems to omit the discussion of this connection. See supra footnotes 168-173 and accompanying

text.

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Turning back to its decision in Heller, the Court emphasized self-defense as a basic right that is

the “central component” of the Second Amendment right. It reiterated that it had found “the need

for defense of self, family, and property [as] most acute” in the home and that the right applies to

handguns because they are “the most preferred firearm in the nation to ‘keep’ and use for

protection of one’s home and family.”200 Thus, the Court’s decision appeared to concentrate on

whether the Fourteenth Amendment’s Due Process Clause incorporated the Second Amendment

as it was defined in Heller, that is, the right to keep and bear arms for a lawful purpose such as

self-defense201 and that it protects those weapons typically possessed by law-abiding citizens for

lawful purposes.202 In the Court’s review of historical evidence from both the Framing-era of the

Bill of Rights and the ratifying era of the Fourteenth Amendment, it believed it to be “clear that

the Framers and ratifiers ... counted the right to keep and bear arms among those fundamental

rights necessary to our system of ordered liberty.”203

According to the Court, both Federalists and Antifederalists of the Framing-era considered the

right to keep and bear arms as fundamental to the newly formed system of government, but

differed as to whether the right was sufficiently protected. Federalists believed that the right was

adequately protected due to the limited powers assigned to the federal government, while

Antifederalists, who feared that the new federal government would infringe on traditional rights,

insisted on the adoption of the Bill of Rights as a condition of ratification.204 By the mid-19th

century, the Court found that the Second Amendment “was still highly valued for the purposes of

self-defense” even though the perceived threat of the federal government’s intrusion had faded.205

According to the Court, in the aftermath of the Civil War, southern states and militia members

made “systematic efforts” to disarm African Americans, to which the 39th Congress decided that

legislative action was necessary. The legislative actions included the Freedmen’s Bureau Act and

the Civil Rights Act of 1866, both of which the Court found demonstrated that the right to keep

and bear arms was still recognized as fundamental.206 Specifically, Section 14 of the Freedmen’s

Bureau Act provided that “the right ... to have full and equal benefit of all laws and proceedings

concerning personal liberty, personal security, and the acquisition, enjoyment, and disposition of

estate, real and personal, including the constitutional right to bear arms, shall be secured to and

enjoyed by all citizens ... without respect to race or color, or previous condition of slavery

(emphasis added).”207 Section 1 of the Civil Rights Act, similarly, guaranteed the “full and equal

benefit of all laws and proceedings for the security of person and property, as is enjoyed by white

citizens.”208 Although the Civil Rights Act does not explicitly define the meaning of “all laws and

200

Id. (citing Heller, 128 S. Ct. at 628-629).

201

Respondents noted that “contentions about the need for firearms for self-defense have long dominated the

controversies about the extent to which governments at various levels should regulate or limit firearms. This case,

however, does not present any question about the constitutional status ... of an unenumerated right to self-defense, and

the presumed existence of such a right would not support incorporating the Second Amendment in any event.” Brief for

Respondents, supra footnote 195, at 37-8.

202

Heller, 554 U.S. at 625128 S. Ct. at 2786, 2815-16 (“We therefore read [United States v.]Miller to say only that the

Second Amendment does not protect those weapons not typically possessed by law-abiding citizens for lawful

purposes, such as short-barreled shotguns.”).

203

McDonald, 130 S. Ct. at 3042 (majority).

204

Id. at 3037.

205

Id. at 3038.

206

Id. at 3040.

207

Id. (citing 14 Stat. 176-77 (1866)).

208

Id. (citing 14 Stat. 27 (1866)).

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proceedings,” the Court stated that Representative Bingham, one of the drafters of the Fourteenth

Amendment, believed the act “protected the same rights as enumerated in the Freedmen’s Bureau

bill.”209 Based on this evidence, the Court concluded that “the Civil Rights Act, like the

Freedmen’s Bureau Act, aimed to protect ‘the constitutional right to bear arms’ and not simply to

prohibit discrimination”210 and that “[t]oday, it is generally accepted that the Fourteenth

Amendment was understood to provide a constitutional basis for protecting the rights set out in

the Civil Rights Act.”211 In addition, the Court presented excerpts of the congressional debates on

the Fourteenth Amendment, 212 and from the period immediately following ratification of the

amendment, as well as emphasized the number of state constitutions that recognized the right, as

evidence that the right to keep and bear arms was considered fundamental. 213

Although the Court found incorporation under the Due Process Clause, the plurality chose to

address an argument made by respondents concerning the Privileges or Immunities Clause,

specifically that the historical record provides no basis for imposing the Second Amendment on

the states, and that Section 1, presumably in its entirety,214 was “overwhelmingly” viewed by

Members of the U.S. House of Representatives as an antidiscrimination rule. The respondents’

end point seemed to be that mixed understanding and divided views among 19th century

legislators and legal scholars alike demonstrate that the public could not have understood the

reach of the Privileges or Immunities Clause or understood that the Clause incorporated the Bill

of Rights.215 The Court, however, focused on the assertion that Section 1 would only outlaw

discriminatory measures and stated five reasons as to why such a construction would be

“implausible.” These reasons included (1) that if Section 1 did no more than prohibit

discrimination, it would be plausible that “the Fourth Amendment, as applied to the states, would

not prohibit all unreasonable searches and seizures, but only discriminatory searches and

seizure”;216 (2) that the Freedmen’s Bureau Act must be read as more than a simple prohibition of

racial discrimination because it would have been nonsensical for Congress to guarantee “the full

and equal benefit” of “the constitutional right to bear arms,” if it did not exist;217 and (3) that if

the 39th Congress and the ratifying public had simply prohibited racial discrimination with respect

to the bearing of arms, opponents of the Black Codes, laws that deprived blacks of their rights,

would have been left without the means of self-defense.218

209

Id. (citing 39th Cong. Globe 1292).

Respondents argued that these Acts “did not grant any substantive rights or purport to define the privileges or

immunities of national citizenship; [they] required only nondiscriminatory treatment.” Brief for Respondents, supra

footnote 195, at 62-3.

211

Id. at 3041 (citing General Building Contractors Ass’n., Inc. v. Pennsylvania, 458 U.S. 375, 389 (1982)).

212

Id. at 3041-42. The Court highlighted the speech of Representative Stevens from 1868 where he addressed the

disarmament of freedmen and emphasized the necessity of the right. Id.

213

Id. at 3041-42.

210

214

U.S. Const. amend, XIV, § 1 (“All persons born or naturalized in the United States, and subject to the jurisdiction

thereof, are citizens of the United States and of the State wherein they reside. 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; nor deny to any person within its jurisdiction the equal

protection of the laws.”).

215

Brief for Respondents, supra footnote 195, at 75.

216

McDonald, 130 S. Ct. at 3043 (majority).

217

See supra footnote 210.

218

McDonald, 130 S. Ct. at 3043-44 (Alito, J., plurality).

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Justice Thomas’s Concurring Opinion: Application of the Second

Amendment via the Privileges or Immunities Clause

Although the plurality declined to find incorporation under the Privileges or Immunities Clause,

Justice Thomas in his concurring opinion proceeded with his own analysis of the Second

Amendment’s application through the Clause, because he could “not agree that it is enforceable

against the States through a clause that speaks only to ‘process.’”219 Justice Thomas took to task

the Court’s precedent where it has determined that the Due Process Clause applies to

unenumerated rights against the states, believing that “neither its text nor its history suggests that

it protects the many substantive rights this Court’s cases now claim it does.”220 In acknowledging

the numerous cases founded upon the substantive due process framework and the importance of

stare decisis, Justice Thomas stated that his only task at hand is to decide “to what extent, [a]

particular clause in the Constitution protects the particular right at issue” and that the objective of

his inquiry is to “discern what ‘ordinary citizens’ at the time of ratification would have

understood the Privileges or Immunities Clause to mean.”221

First, Justice Thomas found that “the terms ‘privileges’ and ‘immunities’ had an established

meaning as synonyms for ‘rights.’”222 Second, in tracing the English roots, he concluded that the

“[F]ounding generation generally did not consider many of the rights identified in [the]

amendments as new entitlements, but as inalienable rights of all men,” and that “both the States

and Federal Government had long recognized the inalienable rights of state citizenship.”223 Third,

he concluded that Article IV, § 2, which provides that “[t]he Citizens of each State shall be

entitled to all Privileges and Immunities of Citizens in the several States,” protected traveling

citizens against state discrimination with respect to the fundamental rights of state citizenship.224

Noting textual similarity between Article IV, § 2 and that of the Privileges or Immunities Clause

(§ 1) of the Fourteenth Amendment, Justice Thomas stated that “it can be assumed that the

public’s understanding of the latter was informed by its understanding of the former.”225

Therefore, to determine whether the Second Amendment was one of the rights guaranteed in the

Fourteenth Amendment’s Privileges or Immunities Clause, he explored two remaining questions.

First, he asked if “the privileges or immunities of ‘citizens of the United States’ recognized by § 1

[are] the same as the privileges and immunities of ‘citizens in the several States’ to which Article

IV, § 2 refers?”226 To a certain extent, Justice Thomas implicitly answered this question by

219

Id. at 3059 (Thomas, J., concurring).

Id. at 3062.

221

Id. at 3063.

222

Id. at 3063-64.

223

Id. at 3067-68.

224

Id. at 3067-68. Justice Thomas noted that Justice Washington in Corfield v. Coryell, 6 F. Case. 546, 551-52

(C.C.E.D. Pa. 1823) (No. 3,230) had defined the “Privileges and Immunities of the several States” as those rights

“which are, in their nature, fundamental; which belong, of right, to the citizens of all free governments.” In Corfield, 6.

F. Cas. at 551-52, the court did not define “fundamental rights” but indicated that they could “‘be all comprehended

under’ a broad list of ‘general heads,’ such as ‘[p]rotection by the government,’ ‘the enjoyment of life and liberty, with

the right to acquire and possess property of every kind,’ ‘the benefit of the writ of habeas corpus,’ and the right of

access to ‘the courts of the state,’ among others (footnote omitted).” See also supra “Privileges or Immunities Clause of

the Fourteenth Amendment.”

225

Id. at 3066.

226

Id. at 3068.

220

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referring to some instances where politicians debating the Fourteenth Amendment and legal

commentators equated the privileges and immunities of § 1 to those referred to in Article IV,

§ 2.227 However, much of Justice Thomas’s analysis focused on presenting evidence, such as

treaties, 228 congressional speeches,229 and legislation of the era.230 From these various sources,

Justice Thomas concluded that the “evidence overwhelmingly demonstrates” that “the ratifying

public understood the Privileges or Immunities Clause to protect constitutionally enumerated

rights, including the right to keep and bear arms.”231

The second question asked is if “§ 1 [of the Fourteenth Amendment], like Article IV, § 2 prohibits

only discrimination with respect to certain rights if the State chooses to recognize them, or does it

require States to recognize those rights?”232 Or, more specifically applied to the right at issue,

“whether the Privileges or Immunities Clause merely prohibits States from discriminating among

citizens if they recognize the Second Amendment’s right to keep and bear arms, or whether the

Clause requires States to recognize the right.”233 In his analysis, Justice Thomas seemed to answer

this question by stating “it was understood that liberty would be assured little protection if §1 left

each State to decide which privileges or immunities of United States citizenship it would

protect.”234 However, a greater part of his discussion to this second question was devoted to why

the Privileges or Immunities Clause protects against more than just state discrimination and

establishes a “minimum baseline of rights for all American citizens.”235

227

Id. at 3074 and 3076. The first example is the floor speech given by Senator Jacob Howard in introducing the new,

and ultimately adopted, draft of the Fourteenth Amendment. He stated that Section 1 imposed “a general prohibition

upon all the States ... from abridging the privileges and immunities of the citizens of the United States.” Id. at 3074

(citing 39th Cong. Globe 2765). Senator Howard explained that the rights included “‘the privileges and immunities

spoken of’ in Article IV, § 2.” Id. (But see Brief of Respondents, supra note 203, at 66 arguing that apart from Senator

Howard, “no one else expressly agreed with, or clearly articulate, that idea.”). A second reference is to the remarks of

Representative Mills, who opposed the initial draft of the Fourteenth Amendment. He stated, “[t]hese first amendments

[of the Bill of Rights] and some provisions of the Constitution of like import embrace the ‘privileges and immunities’

of citizenship as set forth in article 4, section 2 of the Constitution and in the fourteenth amendment (emphasis added).”

McDonald, 130 S. Ct. at 3076 (Thomas, J., concurring) (citing 2 Cong. Rec. 384-85 (1874)). A third reference is from

legal commentators of the time who explained “that the rights listed in § 1 had ‘already been guaranteed’ by Article IV

and the Bill of Rights, but that these rights, ‘which had been construed to apply only to the national government, are

thus imposed upon the States.’” Id. (citing G. Paschal, The Constitution of the United States 290 (1868)).

228

For example, 19th century treaties in which the United States acquired territory from other sovereigns, like the

Louisiana Cessation Act of 1803, often provided that inhabitants would enjoy all the “rights, advantages and

immunities of citizens of the United States.” McDonald, 130 S. Ct. at 3069 (Thomas, J., concurring) (citing Treaty

Between the United States of American and the French Republic, Art III, Apr. 30, 1803, 8 Stat. 202, T. S. No. 86).

229

For example, Representative John Bingham, the principal draftsman of § 1, in presenting the first draft of the

Fourteenth Amendment, emphasized that the aim of Section 1 was to “arm the Congress of the United States ... with the

power to enforce the bill of rights as it stands in the Constitution today.” McDonald, 130 S. Ct. at 3072 (Thomas, J.,

concurring) (citing 39th Cong. Globe 1088 (1866)).

230

Like the plurality, Justice Thomas highlighted the Freedmen’s Bureau Act and Civil Rights Act of 1866 as examples

that reflected an understanding that the “privileges” of citizenship provided to freedmen in these acts included

constitutional rights, such as the right to keep and bear arms. McDonald, 130 S. Ct. at 3074-75 (Thomas, J.,

concurring).

231

Id. at 3068, 3077.

232

Id. at 3077.

233

Id. at 3077.

234

Id. at 3083.

235

Id.

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First, Justice Thomas pointed out that the Privileges or Immunities Clause uses the verb “abridge”

rather than “discriminate,” to describe the limit it imposes on state authority (“[n]o State shall”).

He referred to the dictionary which defines the word “abridge” to mean “[t]o deprive; to cut off ...

as, to abridge one of his rights.”236 Thus, a plain reading of the Clause indicates that it is meant to

impose a limitation on state power to infringe upon pre-existing substantive rights and does not

indicate that the Framers of the Clause used “abridge” to prohibit only discrimination. Second,

Justice Thomas presented several reasons as to the lack of discussion on this Clause and Section 1

to rebut the “typical” argument that because there was no extensive public discussion on the

Clause, that it must “not have been understood to accomplish such a significant task of subjecting

States to federal enforcement of minimum baseline of rights.”237 He, instead, looked to historical

events that “underscored the need for, and wide agreement upon, federal enforcement of

constitutionally enumerated rights against the States, including the right to keep and bear

arms.”238 Chronicling the many instances prior to, and after, the Civil War where pro-slavery

forces and southern legislatures enacted laws that “repressed virtually every right recognized in

the Constitution” including prohibiting blacks from carrying or possessing firearms, Justice

Thomas, reiterating the Court, stated that “if the Fourteenth Amendment ‘had outlawed only those

laws that discriminate on the basis of race or previous condition of servitude, African-Americans

in the South would likely have remained vulnerable to attack by many of their worst abusers: the

state militia and state peace officers.’”239 In other words, because evidence demonstrates that the

intent was to protect blacks from such abuses,240 the Clause, contrary to respondents’ claim,

cannot simply be about protection from discriminatory state laws, as a nondiscriminatory law

banning firearm possession outright would have still “left firearms in the hands of militia and

local peace officers.”241 Building upon his Privileges or Immunities Clause analysis, Justice

Thomas concluded that “history confirms what the text of the ... Clause most naturally suggests:

... that ‘[n]o State shall ... abridge’ the rights of United States citizens, the Clause establishes a

minimum baseline of federal rights, and the constitutional right to keep and bear arms plainly was

among them.”242

Justice Stevens’s Dissenting Opinion: No Incorporation Under a

Substantive Due Process Analysis

Justice Stevens began his dissent by rephrasing the question presented. Rather than asking if the

Fourteenth Amendment incorporates the Second Amendment, a question he believed to be settled

by the Cruickshank, Presser, and Miller decisions, the question he posed was “whether the

Constitution ‘guarantees individuals to a fundamental right,’ enforceable against the States, ‘to

possess a functional, personal firearm, including a handgun, within the home.’”243

236

Id. at 3078 (citing Webster, An American Dictionary of the English Language, at 6).

Id.

238

Id.

239

Id. at 3082 (citing McDonald, 130 S. Ct. at 3043).

240

Id. (“[S]tatements by citizens indicate that they looked to the [Joint]Committee [on Reconstruction] to provide a

federal solution to this problem.”).

241

Id.

242

Id. at 3083.

243

Id. at 3089 (Stevens, J., dissenting).

237

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He stated that the Court’s decisions that render procedural guarantees in the Bill of Rights

enforceable against the states have little impact on the meaning of the word “liberty” in the

Clause or about the scope of its protection of nonprocedural rights, such as the Second

Amendment. Asserting that a substantive due process analysis must be used to determine if the

Second Amendment should be applied to the states, his dissent provided a “fresh survey of this

old terrain.”244 Justice Stevens presented three general principles elicited from the Court’s

substantive due process case law. First, he stated “that the rights protected by the Due Process

Clause are not merely procedural in nature.”245 A second principle made clear by case law is that

substantive due process is fundamentally a matter of personal liberty, in which it must be asked if

the interest asserted is “compromised within the term liberty.”246 The third principle derived from

case law is that “the rights protected against state infringement by the Fourteenth Amendment’s

Due Process Clause need not be identical in shape or scope to the rights protected against Federal

Government infringement by the various provisions of the Bill of Rights.”247 He also forewarned

that “the costs of federal courts’ imposing a uniform national standard may be especially high

when the relevant regulatory interests vary significantly across localities, and when the ruling

implicates the States’ core police powers.”248

Justice Stevens disagreed with the plurality that the historical pedigree of a right is dispositive of

its status under the Due Process Clause, and its suggestion “that only interests that have proved

‘fundamental from an American perspective,’ ... or ‘deeply rooted in this Nation’s history and

tradition,’ to the Court’s satisfaction, may qualify for incorporation into the Fourteenth

Amendment.”249 He stated that although the tests have varied, the Court “has been largely

consistent in its liberty-based approach to substantive interests outside of the adjudicatory

system,” and that the focus has been “not so much on the historical conceptions of the guarantee

as on its functional significance within the States’ regimes.”250

With this framework,251 Justice Stevens believed it necessary to examine the “nature of the right

that petitioners have asserted,” and “whether [the right asserted] is an aspect of Fourteenth

244

Id. at 3090.

245

Id. (“It has been ‘settled’ for well over a century that the Due Process Clause ‘applies to matters of substantive law

as well as matters of procedure’ (citation omitted) ... The Clause also includes a substantive component that ‘provides

heightened protection against government interference with certain fundamental rights and liberty interests.’ Troxel v.

Granville, 530 U.S. 57, 65 (2000).”).

246

Id. at 3092. (“Inclusion in the Bill of Rights is neither necessary nor sufficient for an interest to be judicially

enforceable under the Fourteenth Amendment. This Court’s ‘selective incorporation’ doctrine, (citation omitted) is not

simply ‘related’ to substantive due process, (citation omitted); it is a subset thereof.” Id. at 3093.).

247

Id. at 3093. Justice Stevens acknowledged that the Court’s decisions from the 1960s show “jot-for-jot” incorporation

of a number of procedural rights, a norm during this era; yet, “at least one subsequent opinion suggests that these

precedents require perfect state/federal congruence only on matters ‘“at the core”’ of the relevant constitutional

guarantee Crist v. Bretz, 437 U.S. 28, 37 (1978).” In Justice Stevens’s opinion, it is necessary that some procedures be

the same in state and federal courts to ensure certainty, uniformity, and fairness. However, this bears “little relevance to

the question of whether a nonprocedural rule set forth in the Bill of Rights qualifies as an aspect of the liberty protected

by the Fourteenth Amendment.” McDonald, 130 S. Ct. 3094 (Stevens, J., dissenting).

248

Id. at 3095.

249

Id. at 3097. Justice Stevens found that the Court’s decisions in Palko (302 U.S. 319 (1937)) and Duncan (391 U.S.

145 (1968)) are not so draconian such that the Court is limited to examining only “one mode of intellectual history.”

Rather, these cases suggest that the Court must look to other factors when deciding if a right is implicit of ordered

liberty. Id. at 3096-97.

250

Id. at 3098.

251

Noting that the Framers did not clearly define the meaning of liberty and aware that a “liberty” analysis is open to

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Amendment ‘liberty.’”252 Finding the gravamen behind petitioners’ complaint plainly to be “an

appeal to keep a handgun or other firearm of one’s choosing in the home,” Justice Stevens stated

that the petitioners’ argument “has real force”253 but felt that a number of factors supported the

respondents.

First, Justice Stevens stated that “firearms have a fundamentally ambivalent relationship to

liberty.”254 On the one hand, “[g]uns may be useful for self-defense, as well as hunting and sport,

but they also have a unique potential to facilitate death and destruction and thereby to destabilize

ordered liberty.”255 Second, “the right to possess a firearm of one’s choosing is different in kind

from the liberty interests [the Court] has recognized under the Due Process Clause” and that is

“not the kind of substantive interest ... on which a uniform, judicially enforced national standard

is presumptively appropriate.”256 Third, the experience of other advanced democracies

undermines “the notion that an expansive right to keep and bear arms is intrinsic to ordered

liberty.”257 Fourth, Justice Stevens reasoned that the Second Amendment differs from the other

Amendments in that it is a federalism provision and that “it is directed at preserving the autonomy

of the sovereign States, and its logic therefore ‘resists’ incorporation by a federal court against the

States.”258 In other words, because the Second Amendment, like the Tenth Amendment, exists for

the vitality of the states, one cannot argue that it applies to the states. Furthermore, Justice

Stevens stated the reasons that motivated the Framers or Reconstruction Congress to act “have

only a limited bearing on the question that confronts the homeowner in a crime-infested

metropolis today.”259 Fifth, he emphasized that the “idea that States may place substantial

restrictions on the right to keep and bear arms short of complete disarmament, is in fact, far more

entrenched than the notion that the Federal Constitution protects any such right.”260 Agreeing with

the Seventh Circuit that “[f]ederalism is a far ‘older and more deeply rooted tradition than is a

(...continued)

excessive subjectivity by the Court, Justice Stevens stated that precedent provides a number of constraints on the

decision process and that “significant guideposts” do exist. Id. at 3100. These include respect for the democratic

process, “sensitivity to the interaction between the intrinsic aspects of liberty and the practical realities of contemporary

society,” and the deeper principle that judges must approach their work with “humility and caution.” Id. at 3101.

252

Id. at 3103.

253

Justice Stevens wrote: “Bolstering petitioners’ claim, our law has long recognized that the home provides a special

kind of sanctuary in modern life. ... [W]e have long accorded special deference to the privacy of the home.” Id. at 3105.

254

Id. at 3107.

255

Id. at 3108.

256

Id. at 3109. (“[I]t does not appear to be the case that the ability to own a handgun, or any particular type of firearm,

is critical to leading a life of autonomy, dignity, or political equality: The marketplace offers many tools for selfdefense, even if they are imperfect substitutes....”Id.).

257

Id. at 3110. The plurality critiqued respondents and Justice Stevens for its argument that it can rely on the experience of

any civilized society. Id. at 3045 (Alito, J., plurality). Addressing this, Justice Stevens wrote: “While the ‘American

perspective’ must always be our focus, (citation omitted), it is silly—indeed, arrogant—to think we have nothing to learn

about liberty from the billions of people beyond our borders.” Id. at 3111 (Stevens, J., dissenting).

258

Id. at 3111 (citing Elk Grove Unified School Dist. v. Newdow, 542 U.S. 1, 45 (2004)).

259

Id. at 3112. Justice Stevens also noted that the episodes of violence against African Americans in the nation’s

history, as chronicled by Justice Thomas and the plurality, “do not suggest that every American must be allowed to

own whatever type of firearm he or she desires—just that no group of Americans should be systematically and

discriminatorily disarmed and left to the mercy of racial terrorists.” Id. In addition, he noted that although “some

Americans,” presumably referring to Representative Bingham and Senator Howard, may have thought or hoped that the

Fourteenth Amendment incorporated the Second Amendment does not “justify the conclusion that it did.” Id.

260

Id. at 3112.

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right to carry,’ or to own, ‘any particular kind of weapon,’”261 Justice Stevens noted that the

Court’s ruling in particular will take a “heavy toll in terms of state sovereignty.”262 Lastly, due to

the varying patterns of gun violence and traditions and cultures of lawful gun use across the states

and localities, among other things, Justice Stevens asserted that even if the Court could assert a

plausible constitutional basis for intervening, that it should not necessarily do so. 263

Justice Scalia also wrote a concurring opinion, which takes issue with the substantive due

process, or “liberty clause” analysis espoused by Justice Stevens. Justice Scalia primarily

critiqued the subjective nature of the standard proposed by the dissent, stating that any of the

guideposts or constraints listed by Justice Stevens still leaves too much power in the hands of

judges, ultimately depriving people of power. 264

Justice Breyer’s Dissenting Opinion: No Incorporation Under Due

Process Clause

Justice Breyer issued a separate dissenting opinion, in which Justices Ginsburg and Sotomayor

joined. Noting Justice Stevens’s conclusion that the Fourteenth Amendment’s guarantee of

substantive due process does not include a general right to keep and bear firearms for purposes of

self-defense, Justice Breyer chose to consider separately the question of “incorporation” as the

Court had done so when it asked “if the Second Amendment right to private self-defense is

‘fundamental’ so that it applies to the States through the Fourteenth Amendment.”265 In short,

Justice Breyer concluded that he could “find nothing in the Second Amendment’s text, history, or

underlying rationale that could warrant characterizing it as ‘fundamental’ insofar as it seeks to

protect the keeping and bearing of arms for private-self-defense purposes.”266

First, Justice Breyer revisited the Heller decision by stating that the Court had based its

conclusion “almost exclusively upon its reading of history.”267 Yet, he cited numerous articles by

historians, scholars, and judges268 that the history underlying the Heller decision is far from clear.

Given the Court’s emphasis on the historical pedigree of the right, he thus posited “where Heller’s

historical foundations are so uncertain, why extend its applicability?”269 However, Justice Breyer

expressed that the Court “has never stated that the historical status of a right is the only relevant

consideration,”270 but rather it has asked if the “right in question has remained fundamental over

time.”271 Furthermore, he opined that the Court should look to other factors where history does

261

Id. (quoting NRA, 567 F.3d 856, 860).

Id. at 3113.

263

Id. at 3114-16.

264

Id. at 3058 (Scalia, J., concurring) (“Justice Stevens’ approach ... deprives people of ... power, since whatever the

Constitution and laws may say, the list of protected rights will be whatever the courts wish it to be. ... Justice Stevens

abhors a system in which ‘majorities or powerful interest groups always get their way,’ ... but replaces it with a system

in which unelected and life tenured judges always get their way.” Id.).

265

Id. at 3120 (Breyer, J., dissenting).

266

Id.

267

Id. at 3121.

268

According to Justice Breyer, these articles express the view that the Court’s historical account was flawed. Id.

269

Id. at 3122.

270

See also supra footnotes 249-250 and accompanying text.

271

Id. at 3123 (referring to Apodaca v. Oregon, 406 U.S. 404, 410 (1972) (plurality opinion) (stating that the

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262

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not provide a clear answer. These factors include “the nature of the right; any contemporary

disagreement about whether the right is fundamental; the extent to which incorporation will

further other ... constitutional aims; and the extent to which incorporation will advance or hinder

the Constitution’s structural aims, including its division of powers among different governmental

institutions.”272

Justice Breyer applied these factors to the “private right of self-defense” as it is considered “the

central component” of the Second Amendment by the Court in Heller.273 With respect to these

factors, he found (1) that there is disagreement, or no consensus, that the private right of selfdefense is fundamental;274 (2) that there is no reason to believe that incorporation will further any

broader constitutional objectives;275 and (3) that incorporation of the right will disrupt the

constitutional allocation of decision-making authority. Justice Breyer gave several reasons in

support of this last factor, including that incorporation of the right recognized in Heller “would

amount to an incursion on a traditional and important area of state concern, altering the

constitutional relationship between the States and the Federal Government.”276 Additionally,

because “determining the constitutionality of a particular state gun law requires finding answers

to complex empirically based questions,” he made the case that the courts are not suited with

either the expertise or the tools to weigh the constitutional right to bear arms “against the

‘primary concern of every government—a concern for the safety and indeed the lives of its

citizens’” (citation omitted). 277 In light of these factors, he suggested that the Court could proceed

in examining state gun regulation by “adopting a jurisprudential approach similar to the many

state courts that administer a state constitutional right to bear arms.”278 However, he noted that the

Court has not only not done so, but also rejected an “interest-balancing approach” similar to that

utilized by the states.279

Second, Justice Breyer returned to examine history after determining that none of the factors

supported incorporation. Because the Court examined whether the interests the Second

Amendment protects are “deeply rooted in this Nation’s history and tradition,” Justice Breyer

declared that the question, thus, is not whether there are references to the right to bear arms for

self-defense throughout the Nation’s history as there naturally would be, but rather “whether there

is a consensus that so substantial a private self-defense right as the one described in Heller

applies to the States.”280 Although the Court in Heller collected much evidence, Justice Breyer

(...continued)

incorporation “inquiry must focus upon the function served” by the right in question in “contemporary society”

(emphasis in the original)).

272

Id. at 3123.

273

Id. at 3124.

274

Id. at 3124 (“Much of this disagreement rests upon empirical considerations. One side believes the right essential to

protect the lives of those attacked in the home; the other side believes it essential to regulate the right in order to protect

the lives of others attacked with guns. It seems unlikely that definitive evidence will develop one way or another.” Id.

at 3125.).

275

Id. at 3125 (“Unlike the First Amendment’s rights of free speech, free press, assembly, and petition, the private selfdefense right does not comprise a necessary part of the democratic process that the Constitution seeks to establish.”

Id.).

276

Id. (“Private gun regulation is the quintessential exercise of a State’s ‘police power’....” Id.).

277

Id. at 3127 (citation omitted).

278

Id.

279

Id. The “interest-balancing approach” was suggested by Justice Breyer in Heller but rejected by the Court.

280

Id. at 3130 (noting that “general historical references to the ‘right to keep and bear arms’ are not always helpful”

(continued...)

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An Overview of District of Columbia v. Heller and McDonald v. City of Chicago

stated that he found “no more than ambiguity and uncertainty” when he supplemented the

findings in Heller with additional historical facts from the 18th, 19th, 20th, and 21st centuries.281 He

declared that “a historical record that is so ambiguous cannot itself provide an adequate basis for

incorporating a private right of self-defense and applying it against the States.”282

The plurality opinion criticized Justice Breyer’s dissent on four grounds. First, it did not approve

of his assertion that “there is no popular consensus” that the right is fundamental, stating that the

Court has never used “popular consensus” as a rule for finding incorporation.283 Second, the

plurality did not agree with his argument that “the right does not protect minorities or persons

holding political power” when he argued that incorporation should not be found because the right

at issue does not further any broader constitutional objective. 284 The plurality countered by citing

petitioners’ and other supporting briefs’ claims that the right is especially important for women

and members of groups vulnerable to crime as evidence that the Second Amendment right

protects “the rights of minorities and other residents of high-crime areas whose needs are not

being met by elected public officials.”285 Third, the plurality agreed with Justice Breyer that

incorporation will limit the legislative freedom of the states, but it was not convinced that this

argument was persuasive in finding a lack of incorporation, given that a limitation on the states

always exists when a provision is incorporated. 286 Last, the plurality disagreed with Justice

Breyer’s argument that “incorporation will require judges to assess the costs and benefits of

firearms restrictions,” because “[t]he very enumeration of the right takes out of the hands of

government ... the power to decide on a case-by-case basis whether the right is really worth

insisting upon”(emphasis in the original). 287

The Second Amendment Post-McDonald

Although holding that the Second Amendment as recognized in Heller applies to the states, the

Court did not decide whether the challenged municipal ordinances were in violation of the

amendment, leaving the question for the lower court to examine. Because the McDonald decision

was thus limited, a number of questions unanswered by the Court in Heller still remain, most of

which are concerned with the scope of the Second Amendment.

First, what standard of judicial scrutiny288 will be used to decide if a firearms law is in violation

of the Second Amendment? As discussed above, the Court in Heller did not specify a particular

level of scrutiny, instead stating that the three challenged District of Columbia firearms provisions

were unconstitutional “[u]nder any of the standards of scrutiny that we have applied to

enumerated constitutional rights.”289 The Court in Heller rejected a rational basis standard as well

(...continued)

when “evaluating a more particular right—namely, the right to bear arms for the purposes of private self-defense.” Id.).

281

Id. at 3131.

282

Id.

283

Id. at 3049 (Alito, J., plurality).

284

Id.

285

Id.

286

Id. at 3050.

287

Id. (quoting Heller, 554 U.S. at 634).

288

See supra footnotes 97 and 176 for description of three levels of judicial scrutiny.

289

Heller, 554 U.S. at 628.

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An Overview of District of Columbia v. Heller and McDonald v. City of Chicago

as Justice Breyer’s proposed “interest-balancing” inquiry, which would have examined “whether

the statute burdens a protected interest in a way that is out of proportion to the statute’s salutary

effects upon other important governmental interests.”290 (For more of the Court’s discussion of

the standard of scrutiny in Heller, see “The Second Amendment Post-Heller”).

Since McDonald, the U.S. Court of Appeals for the Third Circuit (Third Circuit), in United States

v. Marzzarella,291 attempted to draw a framework for how to approach such cases when it held

that a federal ban on possession of unmarked firearms was constitutional. 292 The Third Circuit

noted that Heller suggested a two-pronged approach:

First, we ask whether the challenged law imposes a burden on conduct falling within the

scope of the Second Amendment’s guarantee (citations omitted). If it does not, our inquiry is

complete. If it does, we evaluate the law under some form of means-end scrutiny. If the law

passes muster under the standard, it is constitutional. If it fails, it is invalid.293

With respect to the challenged federal statute, the defendant argued that because firearms in

common use in 1791 did not have serial numbers, the Second Amendment must protect firearms

without serial numbers. The court was not convinced by this argument because it found that “it

would make little sense to categorically protect a class of weapons bearing a certain characteristic

wholly unrelated to their utility. ... The mere fact that some firearms possess a nonfunctional

characteristic should not create a categorically protected class of firearms on the basis of that

characteristic.”294 The court was further skeptical of the defendant’s argument that “possession in

the home is conclusive proof that § 922(k) regulates protected conduct.”295 Nonetheless, the court

assumed that 18 U.S.C. § 922(k) burdened the defendant’s Second Amendment right. Looking to

First Amendment jurisprudence for guidance, the court noted that even an enumerated,

fundamental right may be subjected to varying levels of scrutiny depending on the

circumstances.296 The court noted that § 922(k) “does not severely limit the possession of

firearms,” and still pass muster because the statute is narrowly tailored to achieve the

government’s compelling interest in preserving serial numbers for tracing purposes.297

Second, does the Second Amendment right for purposes of lawful self-defense extend only to the

home? In both Heller and McDonald, the provisions challenged were those that prevented

handgun possession in the home, and in each case the Supreme Court stressed the right of selfdefense within the home as being central component of the right to keep and bear arms. However,

the Court did not make clear if this similar protective right extend to a vehicle, a temporary living

290

Id. at 689 (Breyer, J., dissenting).

United States v. Marzzarella, 614 F.3d 85 (3d Cir. 2010), cert. denied Marzzarella v. United States, 131 S. Ct. 958

(2011).

292

Id. at 87 (referring to 18 U.S.C. § 922(k)).

293

Id. at 89. The Third Circuit found Heller’s list of “presumptively lawful” firearm regulations susceptible to two

meanings. “On the one hand, this language could be read to suggest the identified restrictions are presumptively lawful

because they regulate conduct outside the scope of the Second Amendment. On the other hand, it may suggest the

restrictions are presumptively lawful because they pass muster under any standard of scrutiny.” Id. at 91.

294

Id. at 94.

295

Id. at 94

296

Id. at 97-100.

297

Id. at 97.

291

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An Overview of District of Columbia v. Heller and McDonald v. City of Chicago

space, a place of business, or in public places? Heller mentioned the possibility that the selfdefense right has the potential to extend further upon “future evaluation.”298

Third, what types of regulations would be burdensome enough to infringe on the Second

Amendment right? Both Heller and McDonald emphasized 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.”299 The Court further repeated assurances that its holding “does not imperil

every law regulating firearms,” and “[does] not cast doubt on [] longstanding regulatory measures

[such] as ‘prohibitions on the possession 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 arm.’”300 Heller

indicated that mere regulation of a right would not sufficiently infringe upon, or burden, the

Second Amendment right, when it pointed out that certain colonial-era ordinances did not

“remotely burden the right of self-defense as much as an absolute ban on handguns.”301 In other

words, it appears that to be burdensome, a regulation must also substantially burden the selfdefensive right.302

Fourth, what types of weapons will fall within the protection of the Second Amendment? Heller

determined that the Second Amendment protection extends to weapons that are “in common use

at the time,” and not those that are “dangerous and unusual.”303 The Court in Heller made clear

that the Second Amendment protects handguns, as it found them to be a common weapon

“overwhelmingly chosen by American society” for purposes of self-defense, but not other

weapons such as machine guns, short-barreled rifles and shotguns, or grenade launchers.

However, it is unclear if other types of so-called “assault” weapons, martial arts weapons,304 and

clubs will be protected under the Second Amendment. There have been recent challenges to state

and local “assault weapons” bans, which have been upheld. In 2009, the California Court of

Appeals in People v. James considered Heller’s impact on California’s Roberti-Roos Assault

Weapons Control Act of 1989, which several localities like the District of Columbia and Cook

County, Illinois have mirrored. 305 In James, the court declared that the prohibited weapons on the

state’s list “are not the types of weapons that are typically possessed by law-abiding citizens for

298

After McDonald, the Chicago City Council approved new handgun ordinances, which include banning gun shops in

Chicago and prohibiting gun owners from stepping outside their homes, even onto their porches or in their garages,

with handguns. Don Babwin, Chicago Approves New Handgun Restrictions, Associated Press, July 6, 2010, available

at http://www.msnbc.msn.com/id/38061266/.

299

McDonald, 130 S. Ct. at 3047 (Alito, J., plurality) (citing Heller, 554 U.S. at 626).

300

Id. at 3047 (citing Heller, 554 U.S. at 626-627).

301

Heller, 554 U.S. at 632.

302

For example, it remains to be seen how the courts will decide if Maryland’s requirements to obtain a permit to carry

a firearm are too burdensome. Maria Glod, Gun Rights Advocates Challenge Maryland’s Restrictions on Handgun

Carry Permits, Washington Post, July 30, 2010, at B06.

303

Heller, 554 U.S. at 627. See footnote 202.

304

See supra footnote 155.

305

People v. James, 94 Cal. Rptr. 3d 576 (Cal. Ct. App.2009). See also Heller v. District of Columbia, 698 F.Supp.2d

179 (D.D.C. 2010) (holding that the District of Columbia’s regulations on firearm registration procedures, a prohibition

on assault weapons, and a prohibition on large capacity ammunition feeding devices withstand intermediate scrutiny);

Wilson v. Cook County, Ill., No. 1-08-1202, 2011 Ill. App. LEXIS 77 (Ill. App. Ct. Feb. 9, 2011) (upholding a trial

court order that the Cook County ordinance banning certain categories of assault weapons: (1) was not

unconstitutionally vague or overbroad; (2) did not violate the Second Amendment or article I, § 22 of the Illinois

Constitution; and (3) that the plaintiffs did not state a cause of action for violation of the due process and equal

protection clauses under the United States Constitution).

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An Overview of District of Columbia v. Heller and McDonald v. City of Chicago

lawful purposes such as sport hunting or self-defense; rather these are weapons of war.”306 It

concluded that the relevant portion of the act did not prohibit conduct protected by the Second

Amendment as defined in Heller and therefore the state was within its ability to prohibit the types

of dangerous and unusual weapons an individual can use. 307

It is highly likely that these last three questions, which center on the scope of the Second

Amendment, will result in future litigation. As courts begin to tackle these questions, they may

draw from the Third Circuit’s framework or develop their own standards. For example, since the

Marzzarella decision, the U.S. Court of Appeals for the Seventh Circuit in United States v. Skoien

rejected a Second Amendment challenge to 18 U.S.C. § 922(g)(9)—prohibiting persons convicted

of misdemeanor crimes of domestic violence from possessing firearms—on the basis that “logic

and data” demonstrate “a substantial relation between § 922(g)(9) and [an important

governmental] objective.”308

Faced with evaluating the same federal provision as in Skoien, the U.S. Court of Appeals for the

Fourth Circuit (Fourth Circuit) in United States v. Chester issued a decision to provide district

courts in its circuit guidance on the framework for deciding Second Amendment challenges. 309

The Fourth Circuit followed the two-pronged approach delineated in Marzzarella, that is, the

first, a historical inquiry “seeks to determine whether the conduct at issue was understood to be

within the scope of the right at the time of ratification,” and second, if the regulation burdens the

conduct that was within the scope of the Second Amendment as historically understood, “then we

move up to the second step of applying the appropriate form of means-end scrutiny.”310

Although the Fourth Circuit remanded the case to the district court, it noted that § 922(g)(9), like

§ 922(g)(1)—prohibiting convicted felons from possession—requires the court to evaluate

whether a person, rather than a person’s conduct, is unprotected by the Second Amendment, and

that “the historical data is not conclusive on the question of whether the Founding era

understanding was that the Second Amendment did not apply to felons.”311 Thus, as in

Marzzarella, the Fourth Circuit assumed, due to lack of historical evidence, that the defendant

was entitled to some Second Amendment protection to keep and possess firearms in his home for

self-defense. For this defendant and other similarly situated persons, the court declared that the

government, upon remand, must meet the intermediate scrutiny standard and not strict scrutiny,

because the defendant’s claim “was not within the ‘core right’ identified in Heller—the right of a

law-abiding, responsible citizen to possess and carry a weapon for self-defense—by virtue of [the

defendant’s] criminal history as a domestic violence misdemeanant.”312 (emphasis in the original).

306

James, 94 Cal. Rptr. 3d at 585-86 (quoting Cal. Penal Code § 122275.5(a) (West 2006)).

James, 94 Cal. Rptr. 3d at 586 (citing the Cal. Penal Code §§ 12280(b)-(c) which are penalties for possession of

assault weapon or .50 BMG rifle).

308

United States v. Skoien, 614 F.3d 638, 642 (7th Cir. 2010) (vacating a panel decision by the Seventh Circuit, 587

F.3d 803 (7th Cir. 2009), that had determined that the “core right of self defense identified in Heller [was] not

implicated” and had voted to remand the case to give the government the opportunity to carry its burden imposed by

the intermediate constitutional framework as that was the appropriate level of scrutiny for the challenged provision).

309

United States v. Chester, 628 F.3d 673, 2010 U.S. App. LEXIS 26508 *1 (4th Cir. 2010).

310

Id. at *18.

311

Id. at *20.

312

Id. at *26.

307

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An Overview of District of Columbia v. Heller and McDonald v. City of Chicago

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