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

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URL: https://www.frixlaw.com/law-library/documents/crs%3AR41750

## Record

- **Collection:** Congressional research report
- **Document type:** CRS Report
- **Published:** April 5, 2011
- **Citation:** R41750

## Text

The Second Amendment: An Overview
of District of Columbia v. Heller and
McDonald v. City of Chicago
-name redactedLegislative Attorney
April 5, 2011

Congressional Research Service
7-....
www.crs.gov
R41750

CRS Report for Congress
Prepared for Members and Committees of Congress

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
1
2

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,

3

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).
4
See David C. Williams, The Mythic Meanings of the Second Amendment: Taming Political Violence in a
Constitutional Republic 15 (2003).
5
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).
6
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).
7
Id. at 50.
8
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
9

Id. at 179.
Id. at 178. Notably, the defendant in Miller did not present any evidence in support of his argument.
11
Cases v. United States, 131 F.2d 916 (1st Cir. 1942).
12
Id. at 922.
10

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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

13

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.
14
Id. at 922-23.
15
Id. at 923.
16
United States v. Cruikshank, 92 U.S. 542 (1875).
17
Presser v. Illinois, 116 U.S. 252 (1886).
18
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.
19
United States v. Tot, 131 F.2d 261 (3d Cir. 1942), rev’d on other grounds, 319 U.S. 463 (1943).
20
Id. at 266.
21
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
22

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.”).

23
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).
24
United States v. Emerson, 46 F.Supp.2d 598, 610 (N.D. Tex. 1999).
25
Emerson, 270 F.3d at 218-259.
26
Id. at 260.
27
Id. at 227.
28
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

29

Id. at 261.
Id. at 264-65.
31
Id. at 272 (Parker, J., special concurrence).
32
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).
33
Silveira, 312 F.3d at 1063.
34
Id. at 1064.
30

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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.
35

Id. at 1066.
Id. at 1086.
37
Id. at 1087.
38
Id. at 1093-94 (Magill, J., special concurrence).
39
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.).
40
Parker v. District of Columbia, 478 F.3d 370 (D.C. Cir. 2007).
36

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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
41

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.
43
Id. at 376.
44
Id.
45
Id. at 381.
46
Id.
47
Id. at 387-88.
42

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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

48

Id. at 386.
Id. at 389.
50
Id.
51
Id. at 395.
52
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).
53
Id. at 397.
54
Id. at 398.
55
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.
49

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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

56

Id.
Id. at 399.
58
Id.
59
Id.
60
Id.
61
Id. at 400.
62
Id.
63
Id. at 401.
57

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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.

64
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.
65
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.”)
66
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.
67
Id. at 7.
68
Id. at 5-6.
69
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
70

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.
71
Id. at 591.
72
Id. at 595-596.
73
Id. at 598.
74
Id. at 599.
75
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
76

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.
77
Heller, 128 S. Ct. at 620 (citing Presser v. Illinois, 116 U.S. 252, 264-5 (1886)).
78
Id. at 621.
79
Id. (quoting Stevens, J., dissenting).
80
Id. at 622 (emphasis in original).
81
Id.
82
Id.
83
Id. at 623.
84
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

85

Id.
Id. at 626-627.
87
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.”
88
Parker v. District of Columbia, 478 F.3d 370 (D.C. Cir. 2007).
89
See, footnotes 61-63 and accompanying text, supra.
90
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.
91
Id. at 628.
92
Id. at 630.
86

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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
93

Id. at 630-631.
Id. at 626.
95
Id. at 635 (quoting Breyer, J., dissenting).
96
Id.
94

97
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).
98
Heller, 554 U.S. at 628.
99
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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/crs%3AR41750. Public record. Not legal advice.