Tag Archives | McDonald v. City of Chicago

“The ‘Silent Six’ States Worth Watching for Post-McDonald Second Amendment Litigation”

Prof. Doug Berman (Sentencing Law & Policy) has an interesting post on this, focusing on the six states that don’t have state constitutional right to keep and bear arms provisions. I would add to that list Massachusetts, which has a provision that has been interpreted as not securing an individual right, and Hawaii, which has a provision that has not been interpreted definitively one way or the other; both of these are relatively high-regulation states, and thus more likely to have potentially vulnerable gun control laws. […]

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Non-Unanimous Criminal Juries

If I were a criminal defense lawyer in Oregon or Louisiana, I’d use McDonald as a reason to challenge those states’ practice of allowing non-unanimous criminal juries. In Apodaca v. Oregon (1972), the Supreme Court held that the Sixth Amendment requires unanimity for a verdict — but that the Fourteenth Amendment does not carry this rule over to the states, and that even 9-3 verdicts are constitutionally permissible. The Jury Trial Clause is thus the one Bill of Rights clause that is neither completely incorporated against the states via the Fourteenth Amendment, nor completely not incorporated. (Recall that the Bill of Rights originally applied only to the federal government, and has been applied to the states only through the Fourteenth Amendment.)

Interestingly, Apodaca was a 4-1-4 decision, in which both of the groups of 4 Justices took the view that the rule should be the same for federal and state trials. Only one Justice, Lewis Powell, believed that the rule should differ; but since he was the swing vote, his position became the law. And the McDonald majority (this part of Justice Alito’s opinion did get five votes) didn’t have anything good to say about Apodaca:

[T]he Court [has] abandoned “the notion that the Fourteenth Amendment applies to the States only a watered-down, subjective version of the individual guarantees of the Bill of Rights,” stating that it would be “incongruous” to apply different standards “depending on whether the claim was asserted in a state or federal court.” Instead, the Court decisively held that incorporated Bill of Rights protections “are all to be enforced against the States under the Fourteenth Amendment according to the same standards that protect those personal rights against federal encroachment.”

[Footnote: There is one exception to this general rule. The Court has held that although the

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Constitutional Rights that Put Lives at Risk

In his dissent in McDonald, signed by three liberal justices, Justice Breyer argues that gun rights deserve little or no judicial protection at least in part because they put lives at risk:

Unlike other forms of substantive liberty, the carrying of arms for that purpose [self-defense] often puts others’ lives at risk…. And the use of arms for private self-defense does not warrant federal constitutional protection from state regulation.

This argument ignores social science evidence suggesting that extreme gun bans like those of DC and Chicago cost at least as many innocent lives than they save. Still, gun rights probably do cause at least some deaths that might otherwise have been prevented.

In that respect, however, they are no different from numerous other constitutional rights. Justice Breyer’s argument in McDonald is actually very similar to Justice Antonin Scalia’s dissent in Boumediene v. Bush, where Scalia warned that giving habeas corpus rights to War on Terror detainees “will almost certainly cause more Americans to be killed.” That argument didn’t move Breyer, who voted with the majority to extend those rights. Similarly, the enforcement of Fourth Amendment rights and Fifth Amendment rights allows at least some violent criminals to escape punishment, which in turn leads to some number of murders that might otherwise have been prevented. Pro-lifers certainly argue that the right to abortion kills far more people and in a far more direct way than gun ownership does.

But the really big skeleton in this particular closet is freedom of speech. Political speech and organization by communists, Nazis, racists, radical Islamists, and others has led to vastly more preventable deaths than private ownership of handguns. If the Russian Provisional Government of 1917 had suppressed the Bolshevik Party (as it could easily have done at various times during that year), […]

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Predicting the Impact of McDonald

The Supreme Court has now incorporated the Second Amendment against the states. But the impact of that decision may turn out to be fairly limited. In most states, there will be little if any change in the actual extent of gun regulation. The ideologically divided nature of the Court’s decision suggests that the legal status of the Second Amendment isn’t yet completely secure. That said, the decision will have a substantial practical impact in a few areas and it also represents a tremendous symbolic victory for gun rights advocates.

I. Limited Practical Impact.

On balance, I agree with scholars such as co-blogger Eugene Volokh and Jack Balkin who argue that McDonald will have only a limited practical effect. As Balkin puts it:

Complete bans on the use of handguns in the home for self-defense are likely to be held unconstitutional, as the Heller case suggested. But a wide range of other firearms regulations should be perfectly legal. The Supreme Court signaled as much in Heller and once again in McDonald.

The big difference between applying a constitutional right only against the federal government and applying it against state and local governments is that there are many more state and local regulations of firearms than federal regulations, and these regulations occur in many different varieties.

This increases the number of possible constitutional claims, and it also increases the opportunities for litigation. It does not, however, guarantee that Second Amendment rights will become too robust over time…

Federal courts tend to strike down mostly laws in outlier jurisdictions that are markedly different from the norm. That is what happened in the District of Columbia, and will likely happen in Chicago. More than 40 states already recognize an individual right to bear arms under their own constitutions. By and large, they have

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What Now for Limits on Gun Possession by 18-to-20-Year-Olds?

I suspect that even after McDonald, most gun controls will be upheld, either on the theory that certain kinds of gun possession are outside the scope of the Second Amendment as interpreted in Heller (e.g., bans on gun possession by felons), or on the theory that the gun control imposes only a slight burden on the right to keep and bear arms for self-defense and thus doesn’t “infringe[]” that right. (See here for more on that.)

But what about limits on gun possession by 18-to-20-year-olds? New York City totally bars gun possession by 18-to-20-year-olds. Illinois bars gun possession by 18-to-20-year-olds, except with the permission of a parent, and sometimes not even then. Many other states bar handgun possession by 18-to-20-year-olds. See N.Y. Penal Law § 400.00; N.Y. City Admin Code § 10-303; NYPD, Permits | Rifle/Shotgun Permit Information; 430 Ill. Comp. Stat. Ann. §§ 65/2(a)(1), 65/4(a)(2)(i) (barring gun ownership or possession by under-21-year-olds unless they have the written consent of a parent or guardian, and the parent or guardian is not himself disqualified from owning guns, which entirely bars 18-to-20-year-olds from possessing a gun if their parents are dead, or if the living parent or parents are felons, nonimmigrant aliens, mental patients, or otherwise disqualified from owning a gun in Illinois); Conn. Gen. Stat. Ann. §§ 29-34, -36f (banning handgun possession by anyone under 21); N.M. Stat. § 30-7-2.2 (2004) (banning handgun possession by anyone under 18). Federal law doesn’t ban such possession, but it does bar gun dealers from selling handguns to 18-to-20-year-olds, which makes handguns available to 18-to-20-year-olds only by the good graces of a nondealer third party who is willing to sell to them.

As I noted, there’s a possible argument that gun possession by 18-to-20-year-olds is also outside the scope of the Second Amendment […]

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McDonald v. City of Chicago and the Standard of Review for Gun Control Laws

I don’t have much that’s original or interesting to say about the historical and jurisprudential arguments made by the majority and the dissent in McDonald v. City of CHicago. But I did want to say a few words about the possible implications of McDonald. Let me begin with the question: How could McDonald affect the way that courts evaluate the constitutionality of gun controls, whether federal, state, or local (beyond the obvious point that there are now federal constitutional constraints and state and local gun laws)?

To begin with, let me repeat what I wrote about before, in my Implementing the Right to Keep and Bear Arms for Self-Defense article: Courts shouldn’t simply ask whether right-to-bear-arms claims should be subject to “strict scrutiny,” “intermediate scrutiny,” an “undue burden” test, or any other unitary test. Rather, as with other constitutional rights, courts should recognize that there are four different categories of justifications for a restriction on the right to bear arms:

  1. Limited Scope: A restriction might not be covered by the constitutional text, the original meaning of the text, the traditional understanding of the text’s scope, the background legal principles establishing who is entitled to various rights, or the categorical exceptions set forth by binding precedent (such as Heller‘s statement that bans on gun possession by felons, bans on concealed carry, and several other kinds of gun controls are constitutional).
  2. Slight Burden: A restriction might only slightly interfere with rightholders’ ability to get the benefits that the right secures, and thus might be a burden that doesn’t rise to the level of unconstitutionally “infring[ing]” the right.
  3. Reducing Danger: A restriction might reduce various dangers (in the case of arms possession, chiefly the dangers of crime and injury) so much that the court concludes that even a
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Why Not the Privileges or Immunities Clause?

In today’s Supreme Court decision incorporating the Second Amendment against the states, the four justice plurality opinion used the Due Process Clause of the Fourteenth Amendment to justify its ruling rather than the Privileges or Immunities Clause.

As various commentators, including co-blogger Randy Barnett, have pointed out, it is strange that four conservative justices supposedly committed to originalism should take this approach in the face of overwhelming evidence that the Bill of Rights was originally intended to be incorporated under the P or I Clause. It is also strange given their own, especially Justice Scalia’s, longstanding aversion to “substantive due process.”

Why did the plurality make this choice? They cite two reasons – the failure of the petitioners to explain the exact scope of the rights protected by the Privileges or Immunities Clause, and longstanding precedent:

In petitioners’ view, the Privileges or Immunities Clause protects all of the rights set out in the Bill of Rights, as well as some others, …, but petitioners are unable to identify the Clause’s full scope….. Nor is there any consensus on that question among the scholars who agree that the Slaughter-House Cases’ interpretation is flawed… We see no need to reconsider that interpretation here. For many decades, the question of the rights protected by the Fourteenth Amendment against state infringement has been analyzed under the Due Process Clause of that Amendment and not under the Privileges or Immunities Clause. We therefore decline to disturb the Slaughter-House holding.

Tellingly, these supposedly originalist justices offer no originalist justification for their conclusion. The precedent argument is at least understandable, though the Court has often been willing to reverse longstanding precedent when it believed that important constitutional rights were at stake. But the vagueness argument is extremely dubious.

It’s true that the petitioners in McDonald failed […]

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Second Amendment Binds State and Local Governments, via the Fourteenth Amendment

So holds the Court in McDonald v. City of Chicago, by a 5-4 vote. The syllabus suggests that there were four votes (the five conservatives minus Justice Thomas) for the proposition that the Due Process Clause applies the Second Amendment to the states and their subdivisions; Justice Thomas concluded that it is the Privileges or Immunities Clause that does so. […]

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NRA brief in McDonald v. Chicago

Last night, Orin noted the filing of the Petitioner’s brief in McDonald v. Chicago, the case that will decide whether the 14th Amendment makes the 2d Amendment applicable to state and local governments. As Orin noted, that brief is almost entirely devoted to incorporation under the Privileges or Immunities clause. It directly asks the Court to over-rule Slaughterhouse, Cruikhank, and Presser.

In my view, it’s a superb brief. It’s worthy of study by law students and anyone else who wants a great example of legal writing that is passionate and forceful, yet also sober and serious.

In the brief’s short discussion of Due Process, attorney Alan Gura aptly writes: “A ‘law’ depriving one of life, liberty or property ‘must not have exceeded the limits of legislative power marked by natural and customary rights.’” (quoting Frederick Gedicks, An Originalist Defense of Substantive Due Process: Magna Carta, Higher-Law Constitutionalism, and the Fifth Amendment, 58 Emory L.J. 585, 644-45 (2009).) This is an important point; “substantive due process” may be ill-named, but it is founded on legitimate, originalist doctrine.

Many folks have been wondering why the Gura brief concentrates so heavily on the bolder theory (Privileges or Immunities) rather than the one that courts have used over the last century (Due Process). Here’s the answer: After Heller, the Second Amendment Foundation (SAF) and the National Rifle Association each filed separate lawsuits against the Chicago handgun ban. The cases were consolidated in the Seventh Circuit; after the panel ruled, SAF and NRA each filed separate petitions for certiorari. The Supreme Court granted cert. in the SAF case, McDonald v. Chicago. A few weeks later, the Court added NRA to the case as a party. So NRA is now a “Respondent in Support of Petitioners.” The suburb of […]

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United States v. Cruikshank, 92 U.S. 542 (Year?)

The Supreme Court will consider whether the Second Amendment should apply to the states, and thus whether to overrule United States v. Cruikshank, 92 U.S. 542 (1876). Or is it United States v. Cruikshank, 92 U.S. 542 (1875)? Both citations are commonly used; HeinOnline reports that the 1875 date is given in roughly 60% of law review citations, and the 1876 in roughly 40%. Which is it?

Well, if you want to give the date of decision — which is the modern Bluebook requirement — you should say 1876, since the case was decided Mar. 27, 1876. The reason that many people say 1875 is that, to quote the Supreme Court’s Web page on the subject,

The dates of decisions do not appear beneath the case name in the first 107 volumes of the U.S. Reports. Beginning in 1854 (58 U.S.) the Lawyers’ Edition of the Supreme Court Reports includes the date, though there are some errors and omissions….

Some dates do appear in the U.S. Reports, either in the margin or in the body of the opinion. One edition of a particular volume may have dates while another edition does not. These dates sometimes differ from the dates found in the [Engrossed Minutes of the Supreme Court].

Fortunately the page I just linked to contains the official publication dates, so if you want to include the year of decision, you may do so. And for Cruikshank, the year is 1876.

(Note that the characterization of the issue in McDonald as being whether to overrule Cruikshank is something of an oversimplification, but let’s go with it for now.) […]

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