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Second Amendment drama: Act II

At 10 a.m. Tuesday, the Supreme Court will hear one hour of oral argument in McDonald, et al., v. Chicago, et al. (08-1521).  Alan Gura of Gura & Possessky in Alexandria, Va., will argue for four Chicago-area residents and two gun rights groups, followed by Paul D. Clement of King & Spaulding in Washington with 10 minutes for the National Rifle Association.  James A. Feldman, as a special assistant to the Chicago corporation counsel, will argue for the cities of Chicago and Oak Park, Ill.   Documents filed in the case are available at this page on ScotusWiki.


On the day 20 months ago that the Supreme Court decided the historic case of District of Columbia v. Heller, declaring that the Second Amendment provides an individual right to have a gun for private use, the first of an expected swarm of follow-up lawsuits was filed to test just how far that right will extend.  That same-day sequel has now reached the Court, raising a misleadingly simple question: must state, county and city governments obey that Amendment for the first time in the 219 years it has been a part of the Constitution? The outcome will affect many more gun control laws than Heller itself did.  By one estimate, some 90 million people in the U.S. have guns — 200 million of them — and most of those are regulated more by state and local laws than by federal laws.


The Supreme Court, like the lower courts in this case, is likely to spend almost no time examining the gun control laws that are under challenge.  That’s because the sole issue is whether the Second Amendment (guaranteeing “a right to keep and bear arms”) even applies to those laws.  But the local laws at issue together provide a perfect test case for that issue: by functioning as virtually complete bans on handguns, the ordinances almost certainly would be struck down if the right established by the Heller decision can be invoked against them.  (A similar ban in force in the federal city of Washington, D.C., was nullified by Heller.)  Chicago’s city ordinance bans from the city any gun that is not registered, and most handguns simply cannot be registered.  Rifles and some shotguns are allowed in the city, if registered.  Oak Park, a city of about 50,000 people bordering the west side of Chicago, has gone even further: It makes it a crime for anyone to have within the city limits any gun small enough to be concealed on the person.

On June 26, 2008, right after the Supreme Court decided Heller, an already-prepared lawsuit was filed in federal court in Chicago to challenge that city’s gun law and related city regulations; the challengers were four gun enthusiasts in the area: Otis McDonald, Adam Orlov, and Colleen and David Lawson, along with the Second Amendment Foundation and the Illinois
State Rifle Association, a branch of the National Rifle Association.  The following day, two other lawsuits, ready beforehand, were filed in the same court, challenging the Chicago law and also the gun ban in Oak Park. Those cases were filed by the NRA, along with Chicagoans Kathryn Tyler, Van F. Welton and Brett Benson, and Oak Park residents Robert Klein Engler and Gene A. Reisinger.

As senior U.S. District Judge Milton I. Shadur would later write: “What is eminently plain is that both sets of lawyers…came loaded for bear, on the assumption that the Supreme Court majority would rule as it did [in Heller].”  And both sets of lawyers quickly agreed that Judge Shadur should narrow the issues in the case, down to the single question: does the Second Amendment apply to state and local laws, or just to those passed by Congress or the federal enclave of Washington, D.C.?

It took Judge Shadur less than six months to rule. In essence, he said he had no choice but to reject the claim that the Second Amendment does reach to the state and local level.   The judge wrote in December 2008 that the Seventh Circuit Court, whose decisions he must follow, had ruled on the issue in 1982 in Quilici v. Morton Grove (an Illinois case that the Supreme Court back then refused to review).  That decision, he said, “squarely upheld” a local handgun ban by relying on a Supreme Court decision issued in 1896, Presser v. Illinois.  Citing the Presser decision, Judge Shadur quoted the Supreme Court as having declared that the Second Amendment “is one of the amendments that has no other effect than to restrict the powers of the National government….”   And, he added, the Supreme Court in Heller had listed Presser, along with U.S. v. Cruikshank in 1876 and Miller v. Texas in 1894, as having concluded “that the Second Amendment applies only to the Federal Government.”

In modern times, there has been much debate about whether those old precedents remain good law, and the Supreme Court has already heard a great deal about that, and will hear more.  Judge Shadur was not in a position to judge that issue, he said.  But he did add that the Second Amendment’s extension argument “may well carry the day before a court that is unconstrained by the obligation to follow the unreversed precedent of a court that occupies a higher position in the judicial firmament.”

Then, the next higher court in the firmament, the Seventh Circuit, similarly concluded that it had to follow those three precedents.  “Cruikshank, Presser, and Miller still control even though their reasoning is obsolete,” the Circuit Court concluded in June of last year.  Writing for the three-judge panel, Circuit Judge Frank Easterbrook added: “In decisions that no one thinks fossilized, the Justices have directed trial and appellate judges to implement the Supreme Court’s holdings even if the reasoning in later opinions has undermined their rationale.” The Circuit Court rejected the gun rights enthusiasts’ suggestion to find a way around the three precedents.  To do that, it said, would mean that Supreme Court rulings “would bind only judges too dim-witted to come up with a novel argument.”

Thus, the lower courts had focused more on their own lack of authority than on the question that lay behind these first sequels to Heller: that is, what concept or actual language written into the Constitution would allow a court to conclude that the Second Amendment could apply to state and local governments?  Over time, two potential approaches would emerge: one direct, and one indirect.  The Bill of Rights could be read as placing direct restrictions on all levels of government, or, though supposedly written only to restrain the national government, they could be applied to the states by absorption (“incorporation”) into other phrases that do restrain the states and local governments.

James Madison had drafted the Bill of Rights, including the Second Amendment, in 1789, primarily to satisfy critics of the new Constitution, who argued that the national government being set up would have too much power over the citizenry.  Although one can debate whether there was an “original understanding” to apply the Amendments only to the federal government, the Supreme Court in 1833 — in the case of Barron v. Baltimore, involving the Fifth Amendment — apparently rejected the direct approach; the Fifth Amendment, Chief Justice John Marshall wrote, “is not applicable to the legislation of the States.”  That precedent has never been overturned and, in fact, is now widely understood as barring the direct approach to extending any of the Bill of Rights to the state and local level.

The “incorporation” alternative has fared much better, using the Fourteenth Amendment as the place to “incorporate” provisions of the Bill of Rights.   While the Supreme Court has not ruled that every one of the Bill of Rights is “incorporated” into the Fourteenth Amendment, it began in 1897 (Chicago, Burlington & Quincy Railroad Co. v. City of Chicago) a process that came to be known as “selective incorporation.”  Now, most provisions of the Bill of Rights have been so “incorporated.”  But among the few still left out is the Second Amendment.  While the Supreme Court in the Heller decision gave the Amendment a broad new meaning, it left undecided whether the right to keep and bear arms must be respected by state, county, and city governments, too.

In theory, there are two clauses in the Fourteenth Amendment that the Court might now use, if it were to decide to “incorporate” gun rights.  First is the clause that protects citizens’ “privileges or immunities.”  The second is the guarantee that “life, liberty or property” may not be taken away without “due process of law.”  In every one of the Court’s “incorporation” decisions (the last of these came in 1979, in Burch v. Louisiana, requiring unanimous juries in some criminal cases), the Court has used the “due process” clause.

The two new test cases seeking “incorporation” of the Second Amendment have been aimed, from their very beginning, at putting the issue before the Supreme Court, and the attorneys pressing those cases have long been ready to do so when the opportunity fully arose.  Thus, one day after the Seventh Circuit Court ruled in the Chicago and Oak Park cases, the NRA filed its appeal to the Justices (NRA, et al., v. Chicago, et al., docket 08-1497).  Then, a week after the Circuit Court decision, the McDonald group filed theirs (McDonald, et al., v. Chicago, et al., 08-1521).

Petitions for Certiorari

The McDonald petition — the one the Court chose to review — and the NRA petition asked the Court to “incorporate” the Second Amendment into the Fourteenth using either — or both — the “privileges or immunities” clause or the “due process” clause.   At the time these appeals were filed, both sides made much of the fact that federal Circuit Courts had reached conflicting conclusions about “incorporation.”  They thus urged the Court to clear up that dispute promptly, in order to end what the McDonald papers called “the deprivation of fundamental constitutional rights among a large portion of the population.”  It would serve no purpose, that petition said, to let the conflict among lower courts continue, and it added that “the scholarly landscape concerning the core constitutional issues in the case is exceptionally well-developed, enabling a just and comprehensive treatment by this Court.”

The two petitions differed in one significant respect.  In McDonald, the lawyers directly urged the Court to overrule an 1873 precedent, the so-called Slaughter-House Cases, which many observers interpret as having virtually read the “privileges or immunities” clause out of the Constitution.  “Given the profound scope of Slaughter-House‘s error, and the confusion it has spawned in Fourteenth Amendment jurisprudence, overruling Slaughter-House remains imperative,” the petition argued. In NRA, the lawyers seemed to favor the “due process” approach, saying that the Court’s jurisprudence under that clause “easily brings the Second Amendment into the incorporation tent.”  But, it added, if the Court wished to take a new look at “privileges or immunities” jurisprudence, “this would be an appropriate case in which to do so.”

Both petitions noted that, in a remark in a dissenting opinion in 1999 (Saenz v. Roe), Justice Clarence Thomas had said he would be open to reevaluate the meaning of the “privileges or immunities” case in an appropriate case.

The cities of Chicago and Oak Park did not oppose review by the Court of the question — still open, they conceded — whether the Second Amendment should be “incorporated” through the “due process” clause.  While they argued that the three old precedents against applying the Second Amendment to the states “remain good law today,” they said that the Court should address the “incorporation” question if it “believes the time is right.”  However, they did oppose review of the alternative argument, under the “privileges or immunities” clause.  The two petitions, the cities contended, had not shown why the Court should consider “breaking with precedent” that long ago excluded that clause as a mechanism for “incorporation.”  Their opposition papers went on to discuss why “incorporation” should not now be declared.  Any “liberty interest” that due process may protect is, at least when it comes to having a gun for self-defense in the home, fully protected because guns other than handguns were allowed in the cities under the present ordinances.

If the Court did take on that issue, the cities suggested, the Court should not go further and review the constitutionality of the specific ordinances under challenge.  No record on the scope of those laws was made in the lower courts, because all of the focus had been on the Second Amendment issue, the cities said.

By the time the Justices scheduled the two cases for initial consideration, in their first Conference late last September, the conflict among the Circuit Courts had come to at least a temporary end, when the Ninth Circuit Court voted to vacate and then reconsider en banc its ruling “incorporating” the Second Amendment through the “due process” clause.   Even so, on Sept. 30, the Supreme Court agreed to take on the issue, granting review of the McDonald petition.  It made no mention of the NRA petition.  Later, because the NRA was supporting the McDonald plea for “incorporation,” the NRA was treated under the Court’s rules as a “respondent” in support of the McDonald group; that gave the NRA’s lawyers a full right to take part in the briefing.

Merits Briefs

With a call for the Court to return to the drafting of the Fourteenth Amendment beginning in 1866, the McDonald merits brief put forth a strong plea for “the text’s original public meaning.”  The people at the time, it argued, understood that Amendment to safeguard “a broad array of pre-existent natural rights believed secured by all free governments, as well as the personal rights memorialized in the Bill of Rights.  The Fourteenth Amendment’s framers used language that successfully accomplished their intent.”  The bulk of the brief rested the “incorporation” argument on the “privileges or immunities” clause, and its reexamination of history was keyed largely to that.  The “due process” argument is confined to a few concluding paragraphs focused on the “fundamental” nature of gun rights, and the fact that most of the remainder of the Bill of Rights has already been “incorporated” into the Fourteenth Amendment.

Seeking to guide the Court through the Fourteenth Amendment’s origins, the brief suggested that the framers had intended it to embrace virtually all “the natural rights of man,” perhaps so great in number that all of them could not be enumerated.  Clearly, the brief asserted, it included all of the rights spelled out formally in the Bill of Rights, but went further to command respect for all “fundamental guarantees” of citizenship in a free country.  One of Congress’ specific aims in writing the Fourteenth Amendment, it asserted, was to repudiate the Supreme Court’s decision in Barron v. Baltimore limiting the Bill of Rights to safeguard against the national government only.

After Congress had completed its work, the brief said, the new Amendment went out to the ratifying public, and thus the nation as a whole embraced the original sweep of rights that were being safeguarded.  Clearly included in that public understanding, according to the McDonald brief, was the personal right to the security of having a gun for personal use.

Moving beyond the original meaning argument, the brief then energetically attacked the Slaughter-House Cases precedent curbing the scope of “privileges or immunities” along with the Cruikshank and Presser precedents.  Each, it argued, misunderstood what the clause had intended, and should now be overruled.   “These cases,” it contended, “established that the states could continue to violate virtually all privileges and immunities of American citizens, including those codified in the Bill of Rights, notwithstanding [the Fourteenth Amendment’s] clear textual command to the contrary.”

Slaughter-House, the brief said, “announced a theory of the privileges or immunities clause never apparently considered by anyone during the framing and ratification process, standing diametrically opposed to every statement of intent and understanding related to the privileges or immunities clause.”  That theory, it noted, was that the clause only protected the rights that citizens enjoyed at the national level, a very narrow list, indeed.

The NRA merits brief, in sharp contrast, suggested that the Court need not overrule any prior precedent in order to make the Second Amendment applicable to state and local laws.  The Court, it noted, had never ruled directly on whether the Second Amendment was “incorporated” through the “due process” clause of the Fourteenth.  Recalling the series of cases using that approach to extend other Amendments to the states, the brief said the Court has long been engaged in the process of assuring protections for all rights that are an “essential feature of all free governments.”  The Bill of Rights, it added, is “the most natural place” to find what those rights are — and, of course, that includes the right to keep and bear arms.

“There can be no doubt,” it contended, “that the right to keep and bear arms protected by the Second Amendment easily meets the test set forth in this Court’s selective incorporation precedent.  It is a right ‘fundamental’ to ‘liberty,’ ‘a free society, ‘free government,’ the ‘liberty…at the base of all our civil and political institutions,’ and ‘ordered liberty.’  The Second Amendment is the only provision of the Bill of rights that declares its own essential link to liberty and a free society” — pointing to the Amendment’s preamble, the right protected being “necessary to the security of a free state.”  (The NRA later gained the chance to present 10 minutes of oral argument by contending that the McDonald brief had underplayed the “due process” argument, which NRA vowed to stress at the podium.)

The NRA filing, though, offered the Court two other potential paths for “incorporating” the Second Amendment.  One would be to declare that the gun right is one of the privileges and immunities of national citizenship — thus giving it full protection even without overruling the Slaughter-House Cases precedent, which found that only national rights were protected by the clause.   The second path, the brief indicated, is the only one requiring an overruling: casting aside Slaughter-House to ensure that gun rights are fully protected under the “privileges or immunities” clause.   The overruling, it suggested, would be based on the premise that the right to guns predates the founding of this country, and thus is a basic attribute of citizenship.

The cities of Chicago and Oak Park, in their combined merits brief, dealt with the “incorporation” question primarily as a social policy issue — that is, it contended that guns “are designed to injure or kill,” so access to them could not possibly be regarded as a right that is “implicit in the concept of ordered liberty” under the “due process” clause.  While those two cities have chosen to impose outright bans on handguns, the brief said “other approaches are possible and may be effective elsewhere.”   Still, it asserted, “it cannot be concluded that easy and widespread availability of firearms everywhere is necessary to protect ordered liberty.”

Reviving some of the arguments that had been made in the Heller case in trying to persuade the Court that the Second Amendment did not embrace a personal right to a gun, the cities’ brief said that the Second Amendment at the time of its adoption was not understood to embrace “any view that a private arms right unconnected to preservation of the militia” was a fundamental right.

It also contended that the Heller decision only assured protection of a right to possess guns for self-defense, and said that this does no more than protect against a hypothetical law that would eliminate access to every kind of firearm — a kind of law that is unlikely anywhere.  The brief also made a fervent argument that Heller did not establish a free-standing constitutional right of self-defense enforceable against government.

In trying to head off an “incorporation” decision based on the “privileges or immunities” clause, the cities’ merits brief relied most heavily upon the Court’s doctrine of respecting its own precedents.  The Court, it said, has consistently refused incorporation on a “privileges” clause basis, and this approach “is workable and venerable,” respects “significant reliance interests,” and reflects the understanding commonly held by those who lived through the Civil War and Reconstruction.   If the clause were now used as the vehicle for “incorporating” rights, the brief warned, that “would throw into doubt the rights of aliens and corporations, make the grand jury clause and Seventh Amendment applicable to the states, and unsettle the legal status of unenumerated rights, both those that have been recognized and those that have not.”

Elaborating, the brief’s point about the rights of aliens and corporations was based on the fact that the “privileges or immunities” safeguard of the Fourteenth Amendment is limited to the rights of “citizens.”  If the Court were now to require the states to respect the Bill of Rights so far as those guarantees apply to “citizens,” then aliens and corporations would find their rights at risk, not protected.  Their rights now at least have some protection because they are “persons” under the “due process” clause, and thus have gained some benefit from “incorporation” of other parts of the Bill of Rights, the cities noted.

They also make an argument that such a decision would impair federalism interests, by unsettling the relationship between national and state governments.

Amicus Briefs

The proponents of applying the Second Amendment to state and local gun control laws have drawn twice as many supporting briefs from amici as do Chicago and Oak Park — 32 to 16.

Although 44 of the states already protect a right to a gun under their own state constitutions, a total of 38 states have joined in urging the Court to apply the Second Amendment to state and local laws, so as to clear up uncertainty about when millions of Americans can have guns.  The states argued that the Court’s interpretation of the scope and nature of federal gun rights will help inform states as they develop or enforce their own gun laws.  Fifty-eight members of the U.S. Senate and 251 members of the House added their support, too, reminding the Court of how strongly Congress has supported gun rights.  Prominent constitutional law scholars, and a wide array of gun advocacy groups and conservative organizations, also supported the extension of the Second Amendment, with much of their argument focused on the “privileges and immunities” clause.

Competing historical interpretations, and social policy arguments, are offered on the cities’ side, along with the support of 55 members of the U.S. House, a wide array of municipal organizations, and many of the nation’s most prominent gun control advocacy organizations.  Much of the historical argument targeted the gun advocates’ claims about the scope of the “privileges or immunities” clause, and some of the historians renewed arguments that had been made in the Heller case against the individual right to a gun, suggesting that such a right was not a fundamental one.


Starting with the fact that the Heller majority found a personal right to have a gun to be a right that existed even before the Constitution was written, it is difficult to imagine that a majority will do anything other than require state and local governments, too, to respect that right.  For the Court to conclude that this right is peculiarly undeserving of such protection, when almost all of the other key provisions of the Bill of Rights have long since been protected against state infringement, would require the abandonment of at least some of the sentiment, if not the substance, of the Heller decision itself.  But that is only the start of the inquiry about how the Court may proceed.

There is much criticism in conservative circles, no doubt shared by at least some of the Justices, over the expansive interpretations that the modern Court has given to the Fourteenth Amendment’s “due process” clause.  While that might deter the Court from using that clause to extend gun rights, the simple fact is that this has been the only basis of “incorporation” of any right up to now, and a departure would be something of a jurisprudential jolt.  The only viable alternative is the “privileges or immunities” clause, and the cities’ merits brief has sketched for the Court a Pandora’s box of interpretive complications — and real-world effects — of shifting to that clause as a basis for “incorporation.”

The Court’s task has also been made more difficult, not easier, by the proponents’ attempt to establish a meaning for the Fourteenth Amendment that would safeguard many as-yet-unrecognized rights, well beyond the right to have a gun for self-defense in the home (which is, so far, all that Heller protected).  The argument, in attempting to head off state infringement on gun rights, that the Amendment embraces virtually every right that a free person could possibly claim is so open-ended that the Court might have real problems accepting it and then trying to hold it in check.

The way out for the Court, then, may be to decide the case on an extremely narrow basis, dealing only with the very specific right established by Heller, and saying that, while that right is so fundamental that it applies to all government, it can be regulated by state and local agencies if they can demonstrate clearly that they have done so reasonably.  As it did in Heller, the Court may well reiterate, and further clarify, examples of valid regulation that states, counties and cities might undertake.   But, as to the two cities’ laws directly at issue, the Court seems unlikely to go ahead and rule on their constitutionality, leaving that task in the first instance to the lower courts when the cases return to them.

It is a virtual certainty, of course, that any decision that emerges is likely to divide the Court deeply, as Heller did.  Thus, the decision in the case is likely to be one of the last to emerge from the Court near Term’s end.