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Supreme Court Rules Second Amendment Applies Against States In McDonald v. City of Chicago

By Jason Hicks, Esq.

On Monday June 28, 2010, the Supreme Court issued its ruling in McDonald v. City of Chicago.

The issue in the case was whether the Second Amendment private right to bear arms, recognized in Heller, was applicable against States and localities. In Heller, the Court addressed the scope of the Second Amendment as it applies against the federal government (i.e., the handgun ban in Washington, DC), and left open the question of whether the private right to keep and bear arms applies in the same manner against the States.

In McDonald v. City of Chicago, the petitioners challenged a similar hand gun ban in the City of Chicago. They argued that the Second Amendment applied against States and localities by virtue of the Privileges and Immunities Clause and Substantive Due Process Clause in the Fourteenth Amendment. The Seventh Circuit, however, ruled in favor of the City because they were bound by prior decisions of the Supreme Court and Seventh Circuit. In other words, the Seventh Circuit essentially said that it would not strike down Chicago?s hand gun ban until the Supreme Court had overruled its prior case law.

In a 5-4 decision, the Court held that the Second Amendment did apply against the States and localities.

Judge Alito?s plurality opinion held that the Second Amendment applied against the States because it was incorporated into the substantive Due Process Clause of the Fourteenth Amendment. That holding only received 4 votes. Although, Justice Thomas also believed that the Second Amendment applied against the States (thus providing the fifth vote), he thought it did so because of the Privileges and Immunities Clause. Justice Thomas would have overruled the Slaughter House Cases (cases that almost everyone believes were wrongly decided, but virtually no one wants to revisit after 137 years of precedent).

Regardless of the basis for the ruling, five members of the Court agreed that the Second Amendment applies against the States. Therefore, the case was remanded so that the lower court could consider whether Chicago?s hand gun ban violates the Second Amendment. The lower court is expected to rule in favor of petitioners and strike down the hand gun ban. However, certain aspects of the Court?s ruling suggest that less restrictive gun control laws may be allowed under the Second Amendment.

Full post as published by Antitrust and Distribution Law Blog on June 29, 2010 (boomark / email).