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- [Kim] Hi, this is Kim from Kahn Academy and today we're learning more about McDonald versus Chicago, a 2010 Supreme Court case challenging a handgun ban in the city of Chicago. The question at issue was whether the 14th Amendment's due process or privileges or immunities clause means that the 2nd Amendment right to keep and bear arms for the purposes of self defense is applicable to the states or, put more plainly, the 2nd 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 versus Chicago, I talked to two experts. Alan Gura is a lawyer who argued McDonald versus Chicago before the Supreme Court. Elizabeth Wydra is a Supreme Court litigator and the president of the Constitutional Accountability Center. So, Miss Wydra, could you set the stage for us? Who were the challengers in this case and why did they decide to sue? - [Elizabeth] The lead plaintiff is or was Otis McDonald, then 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 his 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. - [Alan] In 2008, the Supreme Court had held that the 2nd 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 creature in our law. It's a federal city, it's not located in any particular state, and so 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, but historically, the Bill of Rights was never thought to apply directly to limit what cities and states could do. - [Kim] So what were some of competing interpretations that were at issue in this case? - [Alan] Well, there were a number of interpretations that were at issue. The 14th Amendment has several parts to it. In the first section of the 14th 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." And then 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 of law. - [Elizabeth] So when the drafters of the 14th Amendment were coming together to think about what rights would be protected in the 14th 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. And 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 14th 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, and 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 2nd Amendment. - [Kim] Yeah, this is a really interesting point because you can kind of see how these things evolve over time and particularly in the 1860s after the Civil War, there are 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. - [Elizabeth] 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, and the debates on this by the drafters of the 14th 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 protect that 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 freedman 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 complete." - [Kim] So going back to the McDonald case, how did the court rule in this case? - [Alan] In McDonald, we 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 14th 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, and 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, and you can't deprive someone of due process. That means not just that the state can 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's some results, some things that simply cannot be done, and taking away someone's firearms in violation of the 2nd Amendment rights is not something that the state can do. There's no procedure that the state could create to achieve that. They would still be considered to be giving somebody due process of law. - [Elizabeth] So the court said what we have done when we've looked at individual rights under the 14th 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, and 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 14th Amendment considered to be very fundamental to ordered liberty and thought that, indeed, the freedmen, the African American people of the South who had been subject to the slave power and people across the country who'd 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 be able to look to the Constitution for protection of that right against the federal government. - [Kim] So in the McDonald case, how did the majority of the court rule? - [Alan] 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 courts erasing of that provision was legitimate, even it's widely agreed to be illegitimate today, but the court didn't wanna go there, and instead those four justices, led by Justice Alito, held that the due process clause incorporates the 2nd Amendment right to keep and bear 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 and political institutions. The four justices thought the right to keep and bear arms is fundamental. - [Elizabeth] There was actually a debate among the members of the majority who all believe 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 14th Amendment, instead of the now accepted method of looking at due process liberty clause of the 14th 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 14th 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, just as Thomas' concurrence did not get any of the other votes, whether 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. - [Alan] Justice Thomas' opinion in McDonald is groundbreaking. It represents the first time since 1868 that the original meaning of the 14th 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's language has finally proven to be decisive. - [Elizabeth] 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 there wasn't a 2nd Amendment right to be protected against federal government action to keep a handgun in the home for self defense. They would've thought that this was much more a right in the 2nd Amendment context that had to do with militia service, military service, and therefore did not extend to an individual right to have a gun in the home for self defense. - [Alan] McDonald's really a 14th Amendment case. I mean, guns happen to be the thing that was in it, but I'd always seen as primarily is a 14th Amendment case. It's not really a case that tells you anything about the scope of the 2nd Amendment. In fact, it doesn't say anything about the scope of the 2nd Amendment, very little. - [Elizabeth] There are many issues left to be resolved in the 2nd 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 Scolia, 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 recognize 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 a 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. - [Kim] So we've learned that the Supreme Court ruled that the 14th 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 2nd 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 14th 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 Kahn Academy's resources on US Government and Politics.