McDonald v. Chicago | National Constitution Center | Khan Academy

Hi, this is Kim from Khan Academy, and today we're learning more about McDonald v. Chicago, a 2010 Supreme Court case challenging a handgun ban in the city of Chicago. The question at issue was whether the Fourteenth Amendment's Due Process or Immunities Clause means that the Second Amendment right to keep and bear arms for the purposes of self-defense is applicable to the states. Or, put more plainly, the Second Amendment says the federal government can't infringe on citizens' rights to keep and bear arms, but can state governments?

To learn more about McDonald v. Chicago, I talked to two experts. Alan Gura is a lawyer who argued McDonald v. Chicago before the Supreme Court. Elizabeth Wydra is a Supreme Court litigator and the president of the Constitutional Accountability Center.

So, Ms. Wydra, could you set the stage for us? Who were the challengers in this case, and why did they decide to sue?

The lead plaintiff is—or was—Otis McDonald, then a 76-year-old African American retired maintenance engineer who lived in a part of Chicago and wanted to have a gun for self-defense—a handgun to protect himself and his family in his home. He lived in a neighborhood that had grown increasingly troubled with gang and drug-related violence, and he felt that he wanted to have a handgun to protect his wife and family after his home had been broken into several times.

But because the city of Chicago had strict rules barring handguns, he and three other Chicago residents brought their case into court, asking the court to find that the individual right to keep and bear arms, including a handgun for self-defense in the home that had been recognized just a few years earlier by the Supreme Court with respect to the federal government, also applies to the states and cities like Chicago.

In 2008, the Supreme Court had held that the Second Amendment to the Constitution guarantees Americans the right to have guns for the purpose of self-defense. But that case took place in Washington, D.C., and Washington, D.C., is sort of a unique law. It's a federal city; it's not located in any particular state. Therefore, everything that the city of Washington does is essentially done by the federal government or a unit of the federal government, to which the Bill of Rights applies directly.

Historically, the Bill of Rights was never thought to apply directly to limit what cities and states could do. So, what were some of the competing interpretations that were at issue in this case?

Well, there were a number of interpretations that were at issue. The Fourteenth Amendment has several parts to it. In the first section of the Fourteenth Amendment, it states that no state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States. It also says, among other things, that states can't deprive people of due process when it comes time to regulating their life, liberty, or property. States may not deprive anyone of life, liberty, or property without due process of law when it comes to your basic civil rights.

The question had always been whether or not the states are bound not to violate your civil rights because they are told not to abridge the privileges or immunities of American citizens, or are your rights not to be violated because the states can't deprive you of due process and law?

So, when the drafters of the Fourteenth Amendment were coming together to think about what rights would be protected in the Fourteenth Amendment, they looked at a lot of the abuses by state governments of key rights that had been previously protected against federal government action in the Bill of Rights. When they were debating what rights would be included in these protections against state action, they talked repeatedly about the importance of the right to keep and bear arms.

But the way they talked about it was very different from the way that we think about the 18th-century revolutionary founders talking about the right to keep and bear arms. In that case, it was very much about the militia and preventing the tyranny of government action. In the Fourteenth Amendment context, the right to keep and bear arms was very much an individual right. They were concerned about freed persons being subject to white militia violence and being able to protect themselves with a gun in their house.

So that was really one of the ways in which they wanted to protect the individual right to keep and bear arms, different from the way that I think the founders thought about it when they were drafting the Second Amendment.

Yeah, this is a really interesting point because you can kind of see how these things evolve over time. Particularly in the 1860s, after the Civil War, there were many local or state statutes known as the Black Codes that specifically prevented newly free African Americans from owning firearms or any kind of weapon.

Exactly, and that was a concern because, one, it was a right that they considered to be a right of citizenship. But two, and more practically and more immediately of concern for the people who were being targeted by this racial violence, it was something that was a question of life or death for them. The debates on this by the drafters of the Fourteenth Amendment were very clear and very colorful. Senator Samuel Pomeroy described how indispensable the right to keep and bear arms was and how important it was that the 14th Amendment right.

He said during the debates, "Every man should have the right to bear arms for the defense of himself and family and his homestead. And if the cabin door of the freedmen is broken open and the intruder enters for purposes as vile as were known to slavery, then should a well-loaded musket be in the hand of the occupant to send the polluted wretch to another world where his wretchedness will forever remain."

So, going back to the McDonald case, how did the court rule in this case?

MacDonald made two arguments for why we should win. The first argument we made was the historically more obvious one, although it's one that the courts had not often entertained. And that's the argument that says that when the Fourteenth Amendment provided that the people cannot be deprived of the privileges or immunities of American citizenship, that means they couldn't be deprived of their basic fundamental rights. Right there in the text of the 14th Amendment, it tells you that you can't be deprived of the rights of American citizenship.

Secondly, we made the argument that—this is the argument that the courts have been more open to over the years—we made the argument that where the state is prohibited from depriving Otis McDonald and other Chicago residents of due process of law, you can't deprive someone of due process. That means not just that the state can't do things arbitrarily, not just that Otis McDonald is entitled to some procedural protections in the way that he's regulated, but also that there are some results—some things that simply cannot be done.

Taking away someone's firearms in violation of the Second Amendment rights is not something that the state can do. There's no procedure that the state could could create to achieve that that would still be considered to be giving somebody due process of law.

So the court said what we have done when we've looked at individual rights under the Fourteenth Amendment and whether or not original Bill of Rights rights that were initially understood to limit the federal government applied to the states is look at whether or not they are part of what we generally talk about as fundamental to our scheme of ordered liberty. Or stated another way, the question is whether the right is firmly rooted in this nation's history and tradition.

When they looked at that question with respect to the right to keep and bear arms, they looked at a lot of the Reconstruction history and said this was clearly something that the drafters of the Fourteenth Amendment considered to be very fundamental to ordered liberty and thought that indeed the freedmen, the African American people of the South who'd been subject to the slave power, and people across the country who had been subject to discrimination from the states should be able to look to the Constitution to protect the right to keep and bear arms as their individual right. Just as the court had held in the Heller case, they could look to the Constitution for protection of that right against the federal government.

So, in the McDonald case, how did the majority of the court rule?

The justices broke down in multiple different ways. There were four justices led by Justice Alito who refused to look any further at the privileges or immunities clause. They thought it was old; it was water under the bridge. They were not interested in looking to see whether or not the court's erasing of that provision was legitimate, even if it's widely agreed to be illegitimate today. But the court didn't want to go there.

Instead, those four justices led by Justice Alito held that the Due Process Clause incorporates the Second Amendment right to keep their arms as against the states because it is a fundamental right. It's deeply rooted in our nation's history and traditions. It's something that's very basic to our understanding of our civil political institutions.

Before, justices thought the right to keep their arms is fundamental. There was actually a debate among the members of the majority, who all believed that there was a right to have a handgun in the house for self-defense that was protected against state and local government regulations. But Justice Thomas would have found that right through another means. He would have looked at the Privileges or Immunities Clause of the Fourteenth Amendment instead of the now-accepted method of looking at the due process Liberty Clause of the Fourteenth Amendment, which is how these other provisions of the Bill of Rights have been incorporated against the states.

There were many arguments, including, I should say, a brief that I filed on behalf of scholars from across the ideological spectrum, who said that in fact the Privileges or Immunities Clause of the Fourteenth Amendment is the part of that constitutional amendment that was intended to protect this particular substantive right, as well as the other substantive rights of the Bill of Rights against state infringement.

Justice Thomas's concurrence did not get any other votes, rather from the people who were against the right to keep and bear arms, or those who didn't. But it is an important contribution to thinking about how we understand rights and where they are protected in the Constitution. Justice Thomas's opinion in McDonald is groundbreaking. It represents the first time since 1868 that the original meaning of the Fourteenth Amendment's Privileges or Immunities Clause, the basic protection that we have for civil rights in this country against state and local governments, was decisive in a case at the Supreme Court.

It's been that long since a true original understanding of the 14th Amendment to be decisive. There were, of course, justices who thought that there is not an individual right to have a handgun in the home for self-defense. These were the same justices, not surprisingly, who thought that there wasn't a Second Amendment right to be protected against federal government action to keep a handgun in the home for self-defense. They would have thought that this was much more a right in the Second Amendment context that had to do with militia service, military service; therefore, it did not extend to an individual right to have a gun in the home for self-defense.

McDonald is really a Fourteenth Amendment case. I mean, guns happen to be the thing that was in it, but I'd always seen it primarily as a Fourteenth Amendment case. It's not only a case that tells you anything about the scope of the Second Amendment; in fact, it doesn't say anything about the scope of the Second. There are very little issues left to be resolved in the Second Amendment context.

The Heller case itself, which first articulated that there was a right for individuals to keep and bear arms in their homes for self-defense, made clear that it wasn't saying that there could be no gun regulation. That case, even though it was written by Justice Scalia, and certainly in the McDonald case Justice Alito's majority opinion reiterated this, said that while there were certain laws that would be struck down as unconstitutional because they prohibited the possession of handguns in the home, they recognized at the same time that the right to keep and bear arms is not a right to keep and carry any weapon whatsoever, in any manner whatsoever, and for whatever purpose.

So, given that the court itself, and even very conservative justices, recognized that there could be—and perhaps should be—common-sense limitations on both the types of guns that are allowed, the manner in which they are allowed, and where they can be taken and in what manner, then a lot of the gun regulations that are being passed are still very much part of the constitutional debate.

We've seen, frankly, most of the laws thus far be upheld as constitutional laws that, for example, target assault weapons, high-capacity magazines, and certain licensing and registration requirements. So I think we will see more cases to define the contours of the individual right to keep and bear arms as these gun regulations get passed and as the courts get to pass upon their constitutionality.

So, we've learned that the Supreme Court ruled that the Fourteenth Amendment's Due Process Clause—that no state can deprive a citizen of life, liberty, or property without due process of law—did incorporate the Second Amendment into the states under the reasoning that the right to keep and bear arms for self-defense is fundamental to the nation's scheme of ordered liberty.

According to Alan Gura, even though this case was about guns, it was really a Fourteenth Amendment case concerning whether states can restrict citizens' liberty. Elizabeth Wydra, however, cautions that the decision in McDonald didn't preclude any restriction on gun ownership, and she suspects that new cases will continue to define the individual right to keep and bear arms. To learn more about this case, visit the National Constitution Center's interactive Constitution and Khan Academy's resources on U.S. government and politics.