McDonald v. City of Chicago

I found the recent Supreme Court decision in McDonald v. City of Chicago to be very encouraging. This decision, of course, is an extension of the Court’s decision in D.C. v. Heller which held that the city’s handgun ban was a violation of the second amendment. Washington D.C. is, of course, a federal enclave, so the Supreme Court did not officially make a decision affecting state laws in D.C. v. Heller. The decision was disappointingly, but not surprisingly, not unanimous – four justices held that the second amendment is not applied to the states by the fourteenth amendment.

The majority opinion relied heavily on original intent, both the original intent of the second amendment as well as the fourteenth. They looked at Blackstone, ratification debates, and the Federalist and Anti-federalist papers. They also looked extensively at the debates surrounding the passage of the thirteenth, fourteenth, and fifteenth amendments. In response to the City of Chicago’s attorney’s argument that the Court needed to think about whether a civilized society could exist without gun rights and his examples of “civilized” societies that do not have gun rights, the Court correctly observed that many of the rights incorporated under the fourteenth amendment, rights like the right to trial by jury, are not protected in other civilized countries. The Court also observed that it is not international consensus or opinion that ought to be considered, but our national history and consensus. The Court found that the majority of states do have constitutional protections of gun rights and that that right is inherent to our system of government and conception of freedom. The majority held, then, that right to own and bear arms is a fundamental right. Based on previous decisions, this means that the right to bear arms is incorporated against state governments under the Due Process clause of the 14th amdendment.

Justice Scalia’s concurring opinion was highly effective in pointing out the errors in the reasoning of the four dissenters as well as their logical inconsistencies. He pointed out that, by looking at international standards, it would be very possible to do away with many of our most important rights. He lambasted them for their hubris in thinking that they were able to issue rulings based on their political opinion alone.

The part of this decision I found most encouraging (besides the failure of the dissenters to come up with a valid reason not to incorporate gun rights to the states) was Justice Thomas’ concurrence. He agreed that gun rights were fundamental, but his argument was that gun rights were part of the Privileges or Immunities clause of the 14th amendment. Justice Thomas went into an in-depth explanation of the history and philosophy of the 14th amendment and explained what the writers intended. He disagrees with the Court’s historical broad interpretation of the Due Process clause of the 14th amendment, arguing that it would be more accurate to protect those rights under the Privileges or Immunities clause, which the Court usually refused to do.

Justice Thomas goes on to explain that the terms “privileges or immunities” mean rights, liberties, or freedoms to the people that ratified the 14th amendment – he points to concurrent court decisions as well as dictionary definitions of the time. Thus, those ratifying the 14th amendment understood that their fundamental rights as U.S. citizens were to be incorporated against the states. Because the right to keep and bear arms is a fundamental right of U.S. citizenship (as based on its historical importance to the founders and Common Law and its place in the Bill of Rights), and because the word privileges is synonymous with “right,” the Privileges and Immunities clause protects gun rights from state abridgement.

The original intent analysis of this decision was very in-depth. The majority used it extensively to prove that gun rights are fundamental rights. Justice Thomas used it even more precisely to disagree with decades of precedent in order to go back to the founders’ (and those that ratified the 14th amendment) intent. Overall, it was a well reasoned and encouraging decision. Justice Scalia’s concurrence was just the icing on the cake!