McDonald v. Chicago and Second Amendment Incorporation

by Austin Raynor

Last week the Supreme Court heard oral arguments for McDonald v. Chicago, in which the constitutionality of the Chicago handgun ban was challenged. The Supreme Court limited its review to the question of whether the Second Amendment is incorporated against the states via the Fourteenth Amendment.

In D.C. v. Heller (2008), the Supreme Court ruled that the Second Amendment, which provides that “[a] well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed,” protects an individual right to keep and bear firearms, not a collective right conditioned by the prefatory clause’s mention of a “well regulated militia.”

The ruling, which dealt with D.C. alone, which is a federal enclave, only extends to federal regulations. The law at issue in the Chicago case is a state law, and thus the Second Amendment does not apply directly, as the Court ruled in Barron v. Baltimore (1833), where the justices decided that the Bill of Rights, standing alone, serves only as a restriction on the federal, not state, government.

The complexion of federalism changed, however, with the passage of the Fourteenth Amendment in 1868. Following the Civil War and the liberation of the slaves, a number of southern states attempted to restrain the freedmen through the passage of Slave Codes, which denied freedmen basic liberties, including the right to bear arms.

Section One of the Fourteenth Amendment (containing the Privileges and Immunities Clause, the Due Process Clause, and the Equal Protection Clause), the relevant portion to the Chicago case, reads: “[n]o State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

The clause of Section One with the most ostensibly logical connection to protecting the substantive rights of citizens against state infringement is the Privileges and Immunities Clause. However, in the Slaughterhouse Cases (1873), the Court effectively gutted this clause, precluding judicial protection of the Bill of Rights against the states via a Privileges and Immunities Clause interpretation.

Alan Gura, representing McDonald in the Chicago case, said, “[t]he Slaughterhouse Cases declared pretty much that the only privileges and immunities protected by the Fourteenth Amendment are those of national citizenship, rights that accrue out of the existence of the federal government, like the right to a passport or right to travel the waterways of the U.S. or to petition Congress.”

However, the battle for incorporation (the application of the Bill of Rights to the states) did not end with Slaughterhouse. In 1897, in Chicago, Burlington, and Quincy Railroad v. Chicago, the Supreme Court employed an approach known as substantive due process in which it invoked the Due Process Clause to incorporate substantive rather than merely procedural rights. Over the next century, most of the Bill of Rights was incorporated in this way, including the freedom of speech and press, freedom of petition, prohibitions on unreasonable search and seizure, etc.

In applying substantive due process, the Court has incorporated rights on the basis of whether or not they are “fundamental” (Hurtado v. California, 1884) and whether they are “necessary to an Anglo-American regime of ordered liberty” (Duncan v. Louisiana, 1968). The test of fundamentality, and particularly the test espoused in Duncan, point to a historical evaluation of the importance of the right to bear arms.

Heller held that “[b]y the time of the founding, the right to have arms had become fundamental for English subjects.” It was the British attempt to confiscate American arms that ignited the American Revolution. The enshrinement of this right in the Second Amendment itself testifies to the right’s importance.

An examination of the ratification of the Fourteenth Amendment reveals that the legislation at the time was understood to incorporate the Second Amendment. Both Representative John Bingham, drafter of the amendment, and Senator Jacob Howard, who presented the bill to the Senate, explicitly stated that the bill would incorporate the Second Amendment against the states. No Congressmen disputed these assertions.

If the Court chooses to incorporate the Second Amendment, it must decide whether to do so on the basis of the Privileges and Immunities Clause or the Due Process Clause. The Privileges and Immunities approach would overturn Slaughterhouse and potentially open up a plethora of unenumerated rights to incorporation. The Due Process approach would have a stronger precedential grounding and is the route the Court is likely to take.

If the Court does incorporate, it must then determine whether or not the Chicago handgun ban violates the Second Amendment. The decision here is clear: according to Heller, “[u]nder any of the standards of scrutiny that we have applied to enumerated constitutional rights, banning from the home ‘the most preferred firearm in the nation [referring to handguns] to ‘keep’ and use for protection of one’s home and family,’ would fail constitutional muster.”

Chicago claims that it has a right to certain policy choices that, in its view, will restrict crime. But the Constitution precludes certain policy choices as a matter of principle: Chicago may not restrict unpopular speech that it feels fosters discontent, nor take property without just compensation, even if it feels that would be in the best interest of the taxpayers. Equal enforcement of the Second Amendment alongside these other fundamental guarantees is long overdue. Fundamental rights deserve to be protected from infringement by any overbearing government, be it state or federal.