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AP®︎/College US Government and Politics
Course: AP®︎/College US Government and Politics > Unit 3
Lesson 7: Selective incorporationMcDonald v. Chicago
The Supreme Court case McDonald vs. Chicago debated if the 14th Amendment's due process clause applies the 2nd Amendment right to bear arms to states. The court ruled that this right is fundamental to our nation's ordered liberty, thus applying it to the states. However, this doesn't prevent all gun ownership restrictions.
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- I know I am late, but in the Chicago vs. McDonald case during the time of the case taking place, Chicago had, i would assume based on the fact that handguns were banned, very strict gun laws and regulations. In McDonald's situation, and the others that participated in the case, crime was still very prominent, even having McDonald's house broken into multiple times. I assume that a majority of these crimes involved the usage of a firearm on the behalf of the criminal. wouldn't this contradict the whole point of having such harsh restrictions on firearms if the criminals are still able to obtain them, and don't have to worry about the people they rob retaliating due to the public disarming?
This is just my observation based on the context at which McDonald had brought up at the court case, I very well could be missing context, or I am ignorant to the actual gun regulations that took place during the time of the court case, or may be wrong that the criminals were actually using firearms during these mass crimes. I am only assuming a majority of these statistics based on how these crimes are committed today and around the U.S.
I'm not trying to get into a heated debate, I would just like someone else's view on this situation because I don't see anybody bringing it up in the comments.
thank you for your time and opinion.(4 votes) - At, Kim talks about how even the more conservative justices feel there should be "common sense" regulation on firearms. Why is such legislation so slow in coming? Is the delay in the judicial branch, or is the delay more from Congress and lobbying by groups such as the NRA? 13:33(0 votes)
- I believe that the answer is fairly simple, it is not that a particular part of the government that is holding things back. But simply because this "common sense" of firearms regulation is not universal. People with different backgrounds that have different knowledge of firearms have drastically different ideas on gun control. A decent portion of the population believes that any gun control at all is an infringement of the 2nd Amendment. The term "assault weapon" mentioned in this video lack a clear and universal definition, and there are debates on whether high capacity magazine regulations actually have an impact on crime rates. So I believe that you are making quite an assumption here, that gun control is 100% the correct solution, and interest groups like the NRA is holding the nation back from a better future. When in reality it is a highly controversial topic, and maybe none of us is right.(7 votes)
- Under his circumstances, I agree that Mr. McDonald felt that he needed a handgun for self-defense. The question I have, since pursuing a case to the U.S. Supreme Court through all the lower jurisdictions is quite expensive, is who funded the lawsuit?(2 votes)
- FWIW, the lawsuit was funded by the Second Amendment Foundation and the Illinois State Rifle Association, according to the SAF press release at the time: https://www.saf.org/saf-files-lawsuit-challenging-chicagos-handgun-ban/
Not unusual at all, though, for public interest firms on all sides of the political spectrum to fund litigation and search for clients to be sympathetic plaintiffs in lawsuits to challenge statutes.(3 votes)
- I dont get the fact that its a city well if it was its no were near a city its a person i see the winner is mcdonalds(1 vote)
Video transcript
- [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.