Supreme Court Overturns Chicago Gun Ban

Today the Supreme Court ruled that Chicago's handgun ban violates the right to keep and bear arms. The 5-to-4 decision confirms that the Second Amendment binds state and local governments as well as federal domains such as the District of Columbia, which had a similar gun law that the Court overturned in the landmark 2008 case D.C. v. Heller. The Court ruled that the Second Amendment, like most other protections in the Bill of Rights, applies to the states by way of the 14th Amendment's Due Process Clause. It rejected an invitation to revive the amendment's Privileges or Immunities Clause, a more plausible basis  for incorporation.

The decision in McDonald v. City of Chicago is here (PDF). SCOTUS Wiki has the oral argument transcript and other documents related to the case here. Previous Reason coverage here. More later.

Addendum: Regarding the appropriate route for incorporation, Justice Antonin Scalia, an outspoken critic of substantive due process, has this to say in his concurring opinion:

Despite my misgivings about Substantive Due Process as an original matter, I have acquiesced in the Court's incorporation of certain guarantees in the Bill of Rights "because it is both long established and narrowly limited." This case does not require me to reconsider that view, since straightforward application of settled doctrine suffices to decide it.

In his concurring opinion, by contrast, Justice Clarence Thomas makes the case for enforcing the Privileges or Immunities Clause:

Applying what is now a well-settled test, the plurality opinion concludes that the right to keep and bear arms applies to the States through the Fourteenth Amendment's Due Process Clause because it is "fundamental" to the American "scheme of ordered liberty"...and "'deeply rooted in this Nation's history and tradition.'"...I agree with that description of the right. But I cannot agree that it is enforceable against the States through a clause that speaks only to "process." Instead, the right to keep and bear arms is a privilege of American citizenship that applies to the States through the Fourteenth Amendment's Privileges or Immunities Clause....

This Court's substantive due process framework fails to account for both the text of the Fourteenth Amendment and the history that led to its adoption, filling that gap with a jurisprudence devoid of a guiding principle. I believe the original meaning of the Fourteenth Amendment offers a superior alternative, and that a return to that meaning would allow this Court to enforce the rights the Fourteenth Amendment is designed to protect with greater clarity and predictability than the substantive due process framework has so far managed.

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  • Mike M.||

    Yes! A rare victory for liberty and defeat for the statist tyrants. I am going to have to celebrate tonight!!

  • Max||

    I'd like to get Weigel's take on this ruling. We might be talking a ratfucking Supreme Court.

  • ||

    Now if the court will reverse its idiotic rulings to the effect that James Madison and the other Framers intended the First Amendment to protect pornography and public obscenity, I'll be content.

  • BB||

    i can haz gunz?

  • matt||

    Looks like Obamagrad is gonna make it after all -- whether they want to or not. I'd even *consider* moving back!

  • ||

    There will be blood! The streets of Chicago will run red, reminiscent of the days of Capone.

    Or not.

  • Astrid||

    Yeah, I'm betting they'll do a study in a few years that shows that violence in Chicago has dropped "unexpectedly."

  • Suki||

    +1

  • Ragin Cajun||

    I heard my mama cry
    I heard her pray the night Chicago died...

  • AlmightyJB||

    I think I still have that 45.

  • Rocco||

    Military surplus?

    Oh, not that type of .45

  • The Other Kevin||

    Well, they actually are, even with the gun ban.

  • matt||

    What ban? You mean the partial ban, that never seemed to apply to rich investment bankers, street gangs, and other various thugs?

  • ||

    street gangs, and other various thugs

    You're talking about the local political class who carry, right?

  • ||

    Chicago streets have always been bloody... about time the good people can now defend themselves against the garbage in the streets. God bless America.

  • Suki||

    +1 Supreme Court!

  • ||

    Hear, hear. And I would like to point out (again) that it does seem to matter for liberty whether it's Team Red or Team Blue that has the presidency, given which Team nominated the five and which the four. (Yes, I know about Stevens.) If Gore had won in 2000, this would have gone the other way.

  • ||

    Too bad this happy day of a quality ruling from the Supreme Court has to be tempered by the hearings process starting for a potentially very bad addition to the Supreme Court.

  • Patrick||

    The opinion may be found here:

    http://www.supremecourt.gov/opinions/09pdf/08-1521.pdf

    Note that because Thomas concurs in the judgment, the difference in methodology he'd use (Gura's privileges and immunities argument, rather than incorporation through substantive due process) is immaterial.

    The Chicago gun law (and Oak Park's as if anyone cares) will surely be struck down on remand to the Seventh Circuit, because the majority adopts the Heller test precisely as against the states.

  • highnumber||

    and Oak Park's as if anyone cares

    I care! Sort of. Not gonna rush out and buy a gun, but I do sort of care.

  • Dello||

    That this should even be in question, much less a rare victory, is sickening.

    Still, yay!

  • ||

    sigh...as usual, Thomas is the only true Originalist. The rest side-stepped P&I. Dammit! I wanted repudiation of P&I far more than I cared about local gun laws.

  • Subsidize Me!||

    This... Because P&I is still "covered by an inkblot" (a la statist cocksucker Robert Bork) Chicago and Oak Park, like DC, will simply enact legislation that prevents any kind of lawful self-defense with guns outside of your home.

    This decision isn't a big deal for those of us who believe that you have an absolute right to defend yourself using the most powerful means available to an attacker.

  • ||

    It is still a big deal. Conceal and carry and the castle doctrine are very important to. You are right about that. With the right to own a gun, the right to defend yourself is pretty moot. And yes, without the castle doctrine you risk liability if you shoot someone in your house. But, thanks to gun rights, the guy breaking in risks death. You being tried by 12 won't help him when he is carried by six.

  • Subsidize Me!||

    What I take away from this is simply that outright bans are inconsistent with the second amendment. People unfortunate enough to live in places like Chicago now have a fair chance in their homes (unless Chicago prevents anything larger than a .22 in the legislation that will surely follow), and I think that is a great thing.

    It's just that I don't trust that "reasonable regulation" is anything more than a speed bump for a motivated legislator. Never underestimate belligerent, malicious stupidity.

  • ||

    ""What I take away from this is simply that outright bans are inconsistent with the second amendment. ""

    Which isn't much of a win.

    Infringe = outright ban.

  • ||

    Join me in drinking a toast -- the tears of the gun grabbers are so sweet.

    MP, as much as I'd have liked to see a repudiation of P&I, this decision doesn't exclude us getting that in the future. Unlikely in the near future, but we can still hope.

  • ||

    Gulp, gulp, gulp

  • ||

    Wow. I am so happy to see this. Fuck you Mayor Daily.

  • Keith Olbermann||

    DRED SCOTT!!!!111!

  • Jordan Elliot||

    WooHoo!

  • ||

    For once I am actually going to enjoy reading and watching the MSM. They crying and gnashing of teeth over this is going to be wonderful.

  • Clarence Thomas||

    I cannot accept a theory of constitutional interpretation
    that rests on such tenuous footing. This Court’s substan-
    tive due process framework fails to account for both the
    text of the Fourteenth Amendment and the history that
    led to its adoption, filling that gap with a jurisprudence
    devoid of a guiding principle. I believe the original mean-
    ing of the Fourteenth Amendment offers a superior alter-
    native, and that a return to that meaning would allow this
    Court to enforce the rights the Fourteenth Amendment is
    designed to protect with greater clarity and predictability
    than the substantive due process framework has so far
    managed.

  • ||

    Can anyone doubt that Clarence Thomas is the Supreme Court's most invaluable justice?

    The Grand Cyclops Robert Byrd is dead. Long live Justice Clarence Thomas!

  • ||

    You're referring to the guy who has no objection to schools strip searching pubescent girls accused of hiding a motrin pill?

    Yeah, I can doubt that Thomas is the most invaluable Justice.

  • robc||

    Actually, yes, despite the strip search decision.

    1 idiotic decision does not overrule a series of correct ones.

  • Welll it depends||

    If you are the one doing the search, Thomas is the most invaluable you're ever going to find.

  • Max||

    England has long has very tight gun controls without becoming a tyrany. How do you ratfuckers explain that?

  • Dan T.'s porn||

    Kool-Aid.

  • Tomcat1066||

    England has long has very tight gun controls without becoming a tyrany.

    Depends on your perspective. Quite a few folks over there would cite the gun ban as proof that it already is a tyranny.

  • Suki||

    Don't forget the royalty.

  • Beltway Liberal-tarian||

    Irrelevant.

  • Bradley||

    0/10

  • Fluffy||

    England has a population of bootlickers who allowed themselves to be held beneath a monarch and a titled aristocracy long after Americans had thrown the yoke off.

  • Subsidize Me!||

    England has long has very tight gun controls without becoming a tyrany.

    Impressive: syntax, spelling, and logic fail. I have some windows you can lick, if you could be so troubled.

  • ||

    Cameras on every street corner tend to argue against your statement that the UK is not a tyranny.

  • Paul||

  • ||

    Max, you are a trollin' fucker, but I will play along. Do you have any idea of how easily the government can lock you up in England, for virtually nothing? They have statist laws that make the Patriot act look like the Yippie manifesto. They have roughly four times the rate of violent crime than the US (not gun deaths, tho) which includes, assault, rape, burglary and robbery - look at the FBI uniform crime statistics and the relevant British statistics- and, as John Stossel pointed out, most burglaries occur when people are home, whereas less than half do in America. And forget the police helping you - they will selectively enforce whatever laws are on the books because the criminals often outgun them - unless they are going on a statist raid of entire apartment blocks where they bring out all the jackboot accoutrement and put you in a cell even if you happen to live in the wrong place. The state controls almost all access to healthcare, runs it abysmally and often tells seniors it is time for them to be "made comfortable" ( bureaucratese for "starved, drugged and left for dead") or - if you are not a senior - denies you treatment for whatever life-threatening ailment you might have. In an Orwellian manner, these policies were formulated by the organization "NICE".
    I forget, why wouldn't this be called a tyranny?

  • Jason||

    In an Orwellian manner, these policies were formulated by the organization "NICE".

    Have you read C. S. Lewis's That Hideous Strength?

  • ||

    Two things. The English have willingly given up their rights. Thats their choice. Self imposed Tyranny is still Tyranny
    Second they have much higher crime rates. So when some asshole decides to give you shit on the street or take your money you have very little recourse. Oh you could run and get a Bobby who will probably not do anything. The guys robbing likely have guns or they might just prison shank yer ass. As you lie their bleeding on the street the Bobby might step over you and tsk tsk at the mess you are making. So shove off to England yer gonna hate it.

  • ||

    if it wasn't for us England would be speaking German and anyone who didnt like that would be a bar of soap. we kicked their ass to show them what freedom is... freedom means be yourself and do as you wish... as long as you dont curtail the freedom of your neighbor. this means carrying a gun to defend yourself is just as legal as carrying a rock to defend yourself. screw england. if you dont like it... move to england.

  • robc||

    Practical matter: what does this mean for my trip to Madison in August? Can I carry my firearm thru Illinois and Wisconsin now?

  • Patrick||

    I'd leave it in a locked glove compartment, or the trunk of your car.

    Remember that we don't know the extent of the right as defined in Heller, and it would be expensive to find out the extent of that right through an appellate court.

    Expect courts in the states whose laws are affected to be dragged, kicking and screaming, into the new age.

  • ||

    sure just dont get caught... the commies dont read supreme court rulings.

  • ||

    Can't I print the ruling and carry it with me in lieu of a permit?

  • Tomcat1066||

    This one isn't perfect, but it's a move in the right direction. Still, it still allowed a lot of restriction that it shouldn't, but restricted is better than a total ban.

    Now we just need the Court to strike down NYC's Sullivan Act and then I'll be much happier.

  • ||

    When McDonald has sunk in, we in NYS must petition the courts to strike down a law concieved and rooted in blatant racism.

    The origin of the Sullivan Act (and is is a Statewide law) was in racism; the desire of the Irish rulers of NYC to subject the Italian immigrant class to the corrupt depravations of the rulers and prohibit the Italians from self-defence.

    I am sorry to state that NY's politicians have not adequatley traced this history and still believe that a law born and nurtured in racism still must remain on the books. Shame on them.

    The best solution for NY: Convert the system from "may issue" to "shall issue".

  • ||

    ""When McDonald has sunk in, we in NYS must petition the courts to strike down a law concieved and rooted in blatant racism.""

    At best, it will be replaced with a law that creates a high bar to get a license to own one. Heller does not prevent a license to own, nor does it prevent a process so distasteful that people will not want to jump through the hoops.

  • Tomcat1066||

    Yep. And fighting THAT shit is the next step.

  • ||

    Probably won't win that battle. If safety can trump the "make no law" in the 1st amendment, it will trump the 2nd's "infringement".

    I've been saying for a while, until SCOTUS can properly define "infringement" any victory will be small.

    This is nothing but a bump in the road for the anti-gun crowd.

  • Tomcat1066||

    True, but it still needs to be fought. I'm not real keen on giving the statists an inch without fighting for it.

  • ||

    A true victory for the Constitution and for the Nation! For those of us in states like NY,IL,WI, etc. it is an affirmation that taxpaying citizens have natural rights established by the Constitution that "shall not be infringed".

    I agree with the posters who are saddened by the decision not to incorporate the Second Ammendment under the Priveleges and Immunites clause, however, that should not stop us from continuing to petition the Government (and SCOTUS) for a redress of grievances. This must continue until we have returned to a nation governed by laws decided by the People, not a ruling class of fools.

  • Michael Ejercito||

    I agree with the posters who are saddened by the decision not to incorporate the Second Ammendment under the Priveleges and Immunites clause, however, that should not stop us from continuing to petition the Government (and SCOTUS) for a redress of grievances. This must continue until we have returned to a nation governed by laws decided by the People, not a ruling class of fools.


    Maybe you can try that with Perry v. Schwarzenegger , although convincing the Supreme Court that the right to same-sex "marriage" was recognized as a privilege or immunity in 1868 is admittedly a tough sell.

  • ||

    Next up: Incorporation of the Third Amendment.

  • Patrick||

    I'd settle for incorporating the Ninth Amendment against the federal government.

  • T||

    Gonna be hard to get standing on that one, ProL.

  • ||

    That is right. Then maybe I can get those Guardsman out of my basement.

  • Subsidize Me!||

    Is that code for "Weigel is in my basement?"

    *looks the other way*

  • robc||

    The 3rd is the least violated amendment.

    From what I remember, the Supremes have only had one A3 case ever.

  • Orel Hazard||

    I live in Chicago. I can guarantee you that nobody cares one bit about SCOTUS's decision. Everybody who was prone to owning a gun already had one, and everybody who is prone to own one will own one after.

    The only difference is that pubertarians who live in much smaller places or out in the sticks may now commence to masturbatin' over fantasies of widespread social changes here over the "appearance" of guns in the hands of "ordinary" Chicagoans.

    They'll imagine all kinds of retarded cowboy scenarios where bold, clear-eyed property owners, now unshackled from the hated state's restrictions point their new pistols at their problems and win the day. Everyone will be well-trained, gun violence stats will plummet and pigeons will poop delicious candy onto the streets.

    In the meantime, despite court orders, BP will continue to dump 50,000 gallons of dioxin per day in Lake Michigan from its Whiting, IN refinery.

    Not a single BP executive will have a gun drawn on them, but you guys will have your whackin' material, so it's all good.

  • Fluffy||

    Wah!

  • Tomcat1066||

    Someone needs to get laid.

  • Strawman||

    Thank you for birthing me.

  • Suki||

    +1

  • ||

    I'm led to believe this post was made by some sort of headline-skimming computer program that randomly throws together key words from cnn.com.

  • Orel Hazard||

    You're led to believe a lot of things.

  • Fluffy||

    Wah!

  • ||

    Yeah, the line about dioxin comes out of nowhere. And is probably b.s., because dioxin contamination is a parts-per-trillion thing; nobody dumps pure gallons of it.

  • Patrick||

    Bueller? Weigel?

  • Paul||

    I live in Chicago. I can guarantee you that nobody cares one bit about SCOTUS's decision. Everybody who was prone to owning a gun already had one, and everybody who is prone to own one will own one after.

    So Chicagoans were a bunch of gun-toting scofflaws. Your point is utterly lost.

  • highnumber||

    He's right about this part. I've checked on some of the other things he said. The pigeons are definitely NOT pooping candy. Or it's the worst tasting candy I've ever tried.

  • Zeb||

    I am in favor of your candy pooping pigeon proposal, but I am not sure what BP has to do with it.

  • ||

    Can we dump oil on to Chicago? Then guns won't be a problem.

  • ||

    too bad all that oil can't be dropped on you.

  • ||

    Should we want a lawyer with no bench experience nominated and accepted for SCOTUS; I want to place Alan Gura in nomination. He is also young enough to last a while on the bench.

    I do not know what law school he graduated from, but he learned his tradecraft well and has a most adequate legal mind.

  • Johnnybegood||

    Amen.

  • Hacha Cha||

    So, will this kill other bans? What about the Philadelphia gun ban?

  • ||

    yes

  • PicassoIII||

    Daley II was fully expecting this and is bound to have his^ council rubber stamp a whole slew of fees and hoops.
    Still this is awesome.
    *grins*

    ^ Somewhere around 30% of the aldercritters have been appointed by him.

  • MRK||

    A while back a friend of mine was mugged at gunpoint in Chicago. I told her "That's impossible. Chicago banned guns. It must have been someone pointing his fingers in pistol shape."

    I like to say Chicago is the Windy City because it sucks just that hard. Today it is got a little less windy.

  • PicassoIII||

    While i've always been against Daley's ban in principle, it's total failure was highlighted more than 10 years ago.
    Keeping a friend company while he was waiting for a tow in a less than gentrified area (once it got dark a couple of can fires had been lit down an alley).
    A passing cop made this suggestion "If you have a gun, put it in your lap."

  • BloodMeal||

    "I like to say Chicago is the Windy City because it sucks just that hard."

    Pssst...it's the beer, beans and brats.

  • Michael Ejercito||

    Despite my misgivings about Substantive Due Process as an original matter, I have acquiesced in the Court's incorporation of certain guarantees in the Bill of Rights "because it is both long established and narrowly limited." This case does not require me to reconsider that view, since straightforward application of settled doctrine suffices to decide it.


    Substantive due process predates the 14th Amendment (and there is no reason to believe that the 14th did away with substantive due process). Due process, for example, protected the liberty of persons to own slaves. ( Dred Scott v. Sanford )(While the application of Dred Scott on the issue of slavery was made moot by the 13th Amendment, the rest of the ruling is still good law.)

  • Michael Ejercito||

    Here is more:

    This line of argument is, of course, inconsistent with the long-established standard we apply in incorporation cases.See Duncan, 391 U. S., at 149, and n. 14. And the pre-sent-day implications of municipal respondents’ argumentare stunning. For example, many of the rights that our Bill of Rights provides for persons accused of criminal offenses are virtually unique to this country.If our understanding of the right to a jury trial, the right against self-incrimination, and the right to counsel were necessaryattributes of any civilized country, it would follow that theUnited States is the only civilized Nation in the world.
  • robc||

    I can accept that final comment.

  • Richard M. Daley||

    Ow! My balls!

  • Chony||

    Mine, too...oh, wait...nevermind.

  • ||

    Why did Antonin have to kick me in the balls so hard? I was just on my way out!

  • ||

    I don't know how much practical effect this will have (undoubtedly Chicago will follow D.C.'s lead, and slow-walk through a new law that's only slightly less oppressive) but it will be fun to watch MSNBC tonight. Mathews, Olberman, and Maddow will be shrieking like banshees, and illogical arguments will fill the air like fog.

  • ||

    What can they possibly say? "Oh no, law abiding citizens will now be packing. I felt so much safer when only criminals had guns and cops showed up after they robbed me."

  • ||

    In other news - woot for the ruling in Christian Legal Society v. Martinez - a case where the liberal wing got it right for once.

    Reason was totally wrong in their analysis of the case by assuming freedom of association requires official government recognition and funding. Groups by their nature have no equal protection rights nor equal rights to government money. And non-existent equal protections for groups should not override the equal protections for homosexual taxpayers forced to fund organizations that discriminate against them.

    What a good day of Supreme Court decisions! Thanks Anthony Kennedy!

  • ||

    Whoops - guess this was issued a few months ago and I missed it... oh well...

  • ||

    Wait - nope - I was right.

  • PicassoIII||

    Since the squirrelz are werkin overtime.

    Orel Hazard wrote:
    "In the meantime, despite court orders, BP will continue to dump 50,000 gallons of dioxin per day in Lake Michigan from its Whiting, IN refinery."

    Nice try, it was suspended solids and ammonia.

  • Almanian||

    Hey, they got another one right! Oh, wait...

    Hey, they 5 out of 9 got another one right! Fixed it for myself.

    My reserved happiness for the ruling is still overshadowed by my grave concern that a) it even had to come to this and b) we were this close to the decision going the other way.

    Eternal vigilence...

    PS And fuck the Daley and Obama administrations, and may Robert Byrd get ass fucked in hell by John Brown - he deserves it.

  • Michael Ejercito||

    My reserved happiness for the ruling is still overshadowed by my grave concern that a) it even had to come to this and b) we were this close to the decision going the other way.


    What was the split in Brown v. Board of Education ?

    There are always voices against freedom.

  • The Dude||

    Brown was a 9-0 decision. Say what you will about Warren, but he had a knack for broad coalition-buildling.

  • EMp||

    Stating the obvious here, but the decision SHOULD have been 9-0 in favor of the Bill of Rights.

  • Jersey McJones||

    Chicago will just make it as onerous as possible to bother owning a concealed weapon. The only departure here from Heller was that the court applied it to a state locality. No surprise there. This simply upheld the Heller precedent and further solidified it as overriding state and local law. It did nothing, however, to clarify an issue that's now been hanging out there since Heller - what is "well-regulated?" If the federal government is going to mandate state gun laws, then they have to define what they can be. You'd think you libertarians would understand that simple fact.

    These decisions (Heller and McDonald) seem intentionally to keep this issue front and center in the courts for a long time to come. These longstanding gun laws were overturned in the interest of the whims of the very, very few, and, I believe, to ensure that the minutae of the boundaries of regulation will be litigated federally for years and years to come.

    Libertarians and conservatives who are stupid enough to believe that somehow their Second Amendment right is at serious risk will be drawn like flies to broadcasts and news stories covering this issue, and flock to the pols who harp on it. For what? In the end, we already have the most lax gun laws in the free world. How much more lax can they be? Is this right really for "anyone, any gun, anywhere, any time?" Really? The SCOTUS must draw a clear line somewhere or they only expose themselves for the pandering politicians they really are.

    JMJ

  • The Dude||

    So because our laws are more lax than everyone else's, everyone else's laws are right?

    How about no one's laws are right on this issue? You have to live under constant surveillance in London and on top of THAT you can't own a gun. Talk about tyranny.

    We have a unique nation with vast terrorities and a realization that the individual has a right to protect himself against force, by force. Why is this a bad thing?

    Furthermore, guns exist in this vast country and by limiting the ability of law abiding citizens to acquire them you are merely empowering those already in power (from criminals to the government).

    And how was the Second Amendment NOT at risk here? There was an outright handgun ban!

  • ||

    Hey midwest, I moved to Oregon back in 2002 and have been carrying concealed since then. Nobody robs a store here, nobody messes with other people... because you never know who is armed. We stop when people step into the crosswalk and wait for them to cross the street. You all should try it... It is kind of nice... PS you get the freedom the constitution gave us all and ... crime goes down. duh!

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