Supreme Court Extends Right To Bear Arms


Supreme Court Extends Right To Bear Arms: McDonald v. City of Chicago, 130 S. Ct. 3020 (2010)

On June 28, 2010, the United States Supreme Court ruled in a 5-to-4 decision that the Second Amendment guarantee of an individual’s right to bear arms applies to state and local gun control laws. The decision of McDonald v. City of Chicago was issued almost exactly two years after the Court first ruled that the Second Amendment protects an individual’s right to own guns in District of Colombia v. Heller, 128 S. Ct. 2783 (2008), another 5-to-4 decision. Heller, however, addressed only federal law, leaving open the question of whether the Second Amendment protects gun owners from overreaching state and local governments as well.

Justice Samuel A. Alito Jr., writing for the majority, recognized that the right to self-defense as protected by the Second Amendment is fundamental to the American concept of ordered liberty. Like other fundamental protections preserved in the Bill of Rights, the Second Amendment must be applied to limit not only federal power, but also that of state and local governments. While the ruling is a significant symbolic victory for supporters of gun rights, its long-term practical effects remain unclear. As in Heller, the Supreme Court left for another day just what kinds of gun control laws can be reconciled with Second Amendment protection. The majority offered little more than assurance that the constitutional guarantee includes a right to keep handguns in the home for self-defense. In fact, the Court failed even to decide the constitutionality of the two gun control laws at issue in the case, from Chicago and Oak Park, IL. Instead, the Court returned the case to the lower courts to decide whether the exceptionally strict laws in those cities, which effectively banned the possession of all handguns, can be reconciled with the Second Amendment.

Unfortunately, the majority offered lower courts little guidance on how much protection the Second Amendment actually affords. Justice Alito reiterated the caveats in the Heller decision, saying the Court did not mean to cast doubt on laws prohibiting possession of guns by felons or those who suffer from mental illness, forbidding the carrying of guns in sensitive places such as schools and government buildings, or regulating the commercial sale of firearms. But beyond such obvious restrictions, the McDonald decision left the scope of the right largely undefined.

Justices Stevens, Ginsburg, Breyer and Sotomayor dissented. In an opinion written by Justice Breyer, the dissenters criticized the previous Heller decision as incorrect, adding that they would not have extended its protections to state and local laws even if Heller was decided correctly. “Although the court’s decision in this case might be seen as a mere adjunct to Heller,” added Justice Stevens in a separate dissenting opinion, “the consequences could prove far more destructive – quite literally – to our nation’s communities and to our constitutional structure.” The dissenting justices argued that history did not provide clear answers and that empirical evidence regarding the consequences of gun control laws remains mixed. But there is evidence, Justice Breyer pointed out, that firearms cause 60,000 deaths and injuries in the United States each year and that Chicago’s handgun ban had saved many hundreds of lives since its enactment in 1983. Such evidence, stated Justice Breyer, counsels in favor of giving deference to local elected officials in deciding how to regulate guns.

Justice Alito, writing for the majority, responded that many constitutional rights entail public safety costs, including those limiting the use of reliable evidence obtained through police misconduct. He further acknowledged that the majority decision limits the ability of states to address local issues with tailored gun regulations. “But this is always true,” he concluded, “when a Bill of Rights provision is incorporated.”

Published in Developments in Municipal Law Fall 2010 Newsletter.