The Aftermath of McDonald v. Chicago

What's next for gun rights?


The Supreme Court's decision in McDonald v. Chicago came in this week, with Justice Samuel Alito writing for a plurality that the Second Amendment right to own guns applies to all levels of government—in the legal lingo, that the right is "incorporated" against the states via the 14th Amendment.

Justice Clarence Thomas also elected to reverse the 7th Circuit Court of Appeals' decision that the Chicago and Oak Park, Illinois, laws that essentially banned handgun use in the home couldn't be challenged on Second Amendment grounds. But he did so in a more radical way. Indeed, Thomas's concurrence was radical in both senses of the word. It struck to the root of the original meaning of the 14th Amendment, by declaring that its Privileges or Immunities Clause was the proper means to apply weapon possession rights to the states, rather than the less textually or originalist-appropriate Due Process Clause that the Alito opinion relied on.

Thomas was also radical in the sense that a victory for his pro-Privileges or Immunities Clause viewpoint would represent an extreme change in American jurisprudence. (In their respective dissents, Justice John Paul Stevens and Justice Stephen Breyer essentially denied that 2008's Heller decision ever happened, maintaining that the "right" in the Second Amendment could be balanced and experimented out of existence by states and localities in a manner no other constitutional right could be.)

Now, America faces the aftermath of the dual jurisprudential revolutions that the winning legal team in McDonald, led by Heller lawyer Alan Gura, tried to create.

The first such revolution is the application of the Second Amendment's protected right—at least to have commonly used weapons in the home for self-defense—to actions of state and local governments.

In theory, this victory for Gura and his lead plaintiff, Chicago's own Otis McDonald, a 76-year-old black grandfather, leaves a variety of laws newly vulnerable to legal challenge from either civil rights groups dedicated to defending Second Amendment rights (such as the Second Amendment Foundation, which launched McDonald, and the larger and better-known National Rifle Association) or criminals convicted under gun laws that might no longer pass constitutional muster.

To the surprise of some, the NRA did not have lawsuits loaded and ready to fire the day McDonald came down. Two days later, as I write this, they still have nothing in the works. NRA public affairs director Andrew Arulanandam would not say whether any particular NRA-sponsored legal challenges to state or local gun regulations are being planned, but did hint that his organization might be prepared to further challenge the city of Chicago in court (the NRA had also filed a suit challenging the same laws that McDonald overturned) if it does not properly comply with the implications of the McDonald victory. (Technically, the case is returned to a lower court for reconsideration, with the guidance that the Second Amendment right recognized in Heller does bind Chicago and Oak Park.)

A rematch with Chicago might be needed to beat them into submission, since Chicago Mayor Richard Daley is proposing to push the edges of permissible gun regulations, with one of his attorneys telling the Chicago Tribune that the city is "trying to figure out how far we can go and survive a (legal) challenge, because we know it will be challenged." Among the elements of Daley's proposals are a one-gun-per-owner rule, registration, legislated safety training, liability insurance purchase, and maybe even a ban on gun shops in the city.

Alan Gottlieb, head of the Second Amendment Foundation (SAF), tells me he also remains ready to fight it out again with Chicago in court if the city's new regulations still violate the Second Amendment. For their part, the SAF has filed one new post-McDonald suit against North Carolina, charging that its law completely banning gun or ammo possession outside the home during a declared state of emergency violates the Second Amendment.

Other SAF suits are planned, though Gottlieb is not prepared to discuss specifics until they've been filed. And two pre-McDonald California suits by the SAF that had been held up pending a McDonald decision should be moving forward again. Those suits challenge the state's register of permitted handgun types and models (Pena v. Cid), and Sacramento and Yalo counties' methods for issuing carry permits for weapons (Sykes v. McGinness).

As Alito's decision states, "incorporation does not imperil every law regulating firearms." Similarly, Justice Antonin Scalia's Heller decision famously stated:

The Second Amendment right is not unlimited. It is not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose: For example, concealed weapons prohibitions have been upheld under the Amendment or state analogues. The Court's opinion should not be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.

Thus, it's possible that McDonald won't trigger serious damage against many existing laws. As UCLA law professor Adam Winkler observed at SCOTUSBlog, "McDonald could still have a significant effect on gun control if the law of the Second Amendment were radically different from the state constitutional law doctrines relating to the right to keep and bear arms. So far, however, the two regimes are mostly the same." This means, Winkler writes, that "Since Heller, there have been approximately two hundred federal court decisions on the constitutionality of gun control under the Second Amendment. Nearly every challenged gun law has survived….Other than a complete ban on handguns—which, apart from Chicago and its suburbs, no state or city has—gun control remains constitutionality permissible."

What sort of state-level gun laws might be vulnerable post-McDonald? Winkler offered up "New York City's extreme and discriminatory permitting scheme and California's refusal to approve certain guns designed for left-handed shooters" as possibly on the way out. Nelson Lund of George Mason University's School of Law thinks that barring any ability to carry weapons in public shouldn't hold up any longer, though hardly any states still try to do that.

Heller and McDonald lawyer Gura says that "laws that arbitrarily deny law-abiding people the right to carry guns in self-defense and laws that ban weapons for arbitrary and irrational reasons, those are going to be in danger." UCLA law professor Eugene Volokh specifically points to laws that bar people between the ages of 18-20 from owning guns as likely to fall. He also says laws that bar people who have been under restraining orders from owning guns, if those orders were imposed through unrigorous procedures, could also be vulnerable. But Volokh argues that overexcited gun rights activists need to remember that not every restriction on a right rises to the level of a constitutionally prohibited infringement of it.

Moritz College law professor Douglas Berman points out that "there is so much pro-reasonable regulation dicta in Heller and echoed in McDonald that a court looking for a way to justify a gun regulation that is not a complete ban can come up with a basis." This means as well that if the judges in question don't want to justify the regulation, they might not do so. Given the ideological range of judges, this will surely lead to more circuit splits on gun-related issues, and give future Supreme Courts a chance to reshape Second Amendment law once again.

Robyn Thomas of Legal Community Against Violence—keeping her chin up in a media conference call the afternoon the McDonald decision came down—said that while she certainly expects a "rash of frivolous lawsuits" from gun rights defenders, she is confident that "the vast majority of existing [gun] regulations should be upheld in the wake of McDonald." She may well be right.

As for the Privileges or Immunities Clause, it was both a sad and happy day, though most of the enthusiastic intellectual partisans for a revival of the clause have been squeezing every bit of encouragement they can out of Thomas' concurrence. No justice, after all, said anything in full-blooded defense of the awful Slaughterhouse Cases, the 1873 precedent that neutered the Privileges or Immunities Clause. Mostly, the non-Thomas opinions just ignored the matter.

Ilya Somin of the Cato Institute offered, I think, the more sober and most likely correct take:

Josh Blackman…argu[es] that the plurality opinion does not preclude reconsideration of the Privileges or Immunities issue at a future time. [But] the plurality opinion's reasons for not applying the P or I Clause in McDonald—precedent and vagueness—apply just as strongly to any reasonably conceivable future case as to this one. 

Josh correctly notes that "vagueness and precedent have not stopped the Supreme Court before. In fact, the Court routinely deals with vagaries in, and routinely overrules long-standing precedents, when they want to." He suggests that these issues will not be "a major obstacle" to the revival of P or I "if five votes want it." I agree with this. But the plurality opinion's reliance on the precedent and vagueness arguments is a strong indication that we are nowhere near having five votes that "want it." In the meantime, the plurality's holding will be an important obstacle to P or I claims in the lower courts.

That said, the eight justices who are not Clarence Thomas won't constitute the Supreme Court forever, and revolutions in American jurisprudence can and do happen. Clark Neily, Robert McNamara, and Steve Simpson of the Institute for Justice, all Privileges or Immunities Clause enthusiasts, offered up examples of how non-dominant, but well-thought-out Supreme Court concurrences and dissents laid the roots for later ruling doctrines. One such example is Justice Robert Jackson's approach to executive power in his concurrence in Youngstown Sheet and Tube v. Sawyer (1952); another is Justice Oliver Wendell Holmes' dissent in Abrams v. U.S. (1919), which shaped a more serious consideration of the First Amendment in later cases.

With the promise of reviving the Privileges or Immunities Clause left unfulfilled, perhaps McDonald isn't so revolutionary. Perhaps it is merely the final cementing of a middle-of-the-road consensus about guns that had been solidifying since the last wave of strong gun control regulations in the mid-1990s, the same wave that many Democrats think hurt their party in the 1994 and 2000 elections.

With shall-issue carry laws sweeping the nation over the past 25 years with no commensurate public mayhem, and with strong gun prohibitions largely absent from the national political stage, a basic understanding of a limited right to own guns rules the republic. No doubt, there are committed partisans for a "what part of 'shall not be infringed' don't you understand?" stance, as well as dedicated keep-guns-out-of-everyone's-hands warriors.

But both sides are fighting a war as relevant as the Crimean to most Americans. No guns are being pried out of anyone's cold, dead hands. Still, it's worth remembering that while alcohol prohibition is over, that doesn't mean it isn't a highly regulated pain-in-the-ass trying to run a bar, or that one's access to booze isn't highly circumscribed in various localities. That's also the likely future for guns in a post-McDonald America where total prohibition is no longer an option.

Senior Editor Brian Doherty is author of This is Burning Man (BenBella), Radicals for Capitalism (PublicAffairs) and Gun Control on Trial (Cato Institute).

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  1. OH wow, that makes a lot of sense dude.


  2. That’s really scary when you think about it.

      1. Sorry. Firmware is updating…

  3. It’s almost impossible for me to think about gun control without frothing at the mouth with rage.

  4. Details from Chicago.…..t_gun.html

    1. # t allows for registration of no more than one handgun per month in the home per adult or applicant and generally prohibits the possession of a handgun by any person except in the person’s home.
      # It establishes a two-step process to own and register a handgun. First, the applicant must obtain a city firearms permit, which requires having a valid State of Illinois Firearm Owners’ Identification Card, and then the applicant must register the gun with the Chicago Police Department.
      # Handgun ownership is prohibited for anyone who has been convicted of any violent crime, has two or more offenses for driving under the influence of alcohol or drugs and under state law has been convicted of domestic violence.
      # It bans assault weapons and provides for mandatory jail time beginning in 2011 for anyone who is caught with one.
      # It requires firearms safety training, both in a classroom and on a firing range.
      # It bans gun shops.
      # It includes severe penalties for violating the ordinance, including hefty fines and jail time.

      what a load of shit. Isn’t there some terminal and painful disease that that idiot son could get?

      1. King Daley can’t have the peasants owning guns, now can he. The retarded thing about this is it will be challenged and struck down, which will take time, but most importantly, will be paid for by the people. But then again, they vote the same fuckers in, so in a way, fuck them.

        1. I believe the last 3 governors were indicted on corruption charges. The new Governor elect promises to clean up the state’s corruption problem, and is swiftly indicted on corruption charges.

          1. Ryan and Blago have been, but as far as we know Jim Edgar was clean.

        2. It is too bad for Chicago residents that this authoritarian thug, always accompanied by armed bodyguards, still refuses to obey they law. But they keep voting people like this into office so if they shit in their bed they can sleep in it.

        3. They had McDonald on a show after the ruling and he said he has been voting for Daley all along!!! He is an old black guy so all I can figure is he has been brainwashed so long by Dems pandering to him that he is to fucking blind to see he is voting for people willing to take away his rights.

      2. They have no imagination. Just ban the bullets.

        1. Why not ban shooting people?

          1. Ha-ha-haaa!! And next up – vote on a house resolution that declares, yes, ‘mean people suck!’ Love it….

      3. Yes. High-velocity lead poisoning. Sic semper tyrannis.

        Oops! Did I say that out loud?

      4. They are drafting an ordinance that would limit handgun ownership to only one per person (rather than per month). Also would require liability insurance (probably some insane amount), and would discriminate against people who don’t meet some standard for eyesight.

    2. “And he expressed great concern over the danger faced by law enforcement and emergency “first-responders” when they enter a home in which there are guns.”

      I love that one. Gee, our police might not be able to terrorize citizens with impunity anymore.

      1. The retarded part of this is that the criterion is valid, but in reverse. It’s much safer for first responders and cops to deal with people law-abiding enough to register their guns. Cops in shall-issue states tend to relax when they’re dealing with a concealed handgun licensee.

        A well-trained cop walking into any situation will be considering the possibility that someone might be armed.

      2. If you own a gun and know how to use it. I see no reason to call the police to stop a crime against you. Just call the cororner to remove the dearly departed!

      1. He can do whatever he wants so long as Obama is in the White House. No way Obama messes with Daley.

    3. Just one more reason to not live in the shit hole known as Chicago!

  5. I see armed people.

  6. “Nelson Lund of George Mason University’s School of Law thinks that barring any ability to carry weapons in public shouldn’t hold up any longer, though hardly any states still try to do that.”

    California’s ability to do so is in danger of going away via AB1934.

  7. Why should he want to make guns legal? He has a job for life that includes a private security detail. It would literally take an army of muggers to victimize Hizzoner JR….But all those poor black motherfuckers on the south and west sides who just want to sleep unafraid at night are not worthy of the same rights… way to be elitist you liberal statist fucktards. Chad, you out there? Sally? Hmmm…??

    1. A few years back, circa 2004 to 2005 one of the Supreme Court Justices was mugged while jogging in SW DC, I think somewhere around the Wharf. I can’t remember who it was now or the eventual disposition of the case.

      It was a source of amusement to me at the time because I regularly walked in that area to visit a young lady I was friends with at the time who lived down M street. I can’t remember even being panhandled.

      1. It was Souter.

        1. Whatever happened to the punks?

          Assault on a Justice has got to be a Federal rap.

          1. I don’t think they ever caught them. Basically he was out jogging, a few young punks jumped him, he was treated and released at the hospital. The punks didn’t get anything from him, either. I’m guessing he wasn’t carrying any money or anything while jogging.

            Some speculate that the mugging might have played a role in his decision to get the hell out of Dodge City and retreat to his lily white cabin in the New England woods.

            1. Ten Four.

            2. retreat to his lily white cabin…


            3. And yet, he was one of the 4 against the 2A ruling that the SCOTUS recently heard in the 5-4 decision. Amazing.

          2. Souter hunted them down, using the stealth powers inherent in the Black Robes of Justice.

            And he executed justice upon them.

            1. I saw a movie like that once. Who was Souter’s sidekick?

              1. Werner Herzog. It was not a significant bullet.

                1. Sometimes a bullet is just a bullet.

                  Did Werner survive? Sidekicks usually don’t.

          3. Assault on a Justice has got to be a Federal rap.

            Only if you know he’s a Justice, which it’s quite possible the muggers didn’t.

  8. The word “bear” in the second amendment now needs to be addressed.

    And there are still law abiding citizens who have been excepted from their right to “keep”.

    1. All but “infringed” was detailed in Heller.

  9. I can’t believe that McDonald’s hamburgers didn’t sue for the use of their name.

  10. “No guns are being pried out of anyone’s cold, dead hands.”

    That is actually not true. Under Federal law, many guns cannot be inherited or sold once the owner dies.

    In some states, such as Cali, common firearms, such as AR-15’s and many others, cannot be inherited or sold either.

  11. The Supremes have determined that the individual has a right to keep and bear arms, as explicitly described in the Bill of Rights.

    A former set of Supremes discovered a heretofore unrecognized right of a woman to have an abortion.

    Controls on abortion have largely been shot down (so to speak) by courts at all levels. Such things as waiting periods have been found a violation of that right.

    As a rights activist, I will simply demand that my state applies the same level of restriction on gun right that they do on abortion rights, no more, no less, and for the same reasons.

  12. They had McDonald on a news show after the ruling and he said he has been voting for Daley all along!!! He is an old black guy so all I can figure is he has been brainwashed so long by Dems pandering to him that he is to fucking blind to see he is voting for people willing to take away his rights.

  13. This is an excellent discussion. Also I wonder if political geography is often overlooked. For example, in a rural setting where guns ownership is sometimes considered somewhat of a basic necessity, a Privileges and Immunities Clause might be more relevant. Whereas, in an urban city like Chicago, deprivation of Due Process rights due to registration requirements, etc. might be more applicable:…..lications/

  14. From the Thomas concurrence:

    “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.”

    To be a privilege implies that it is to be granted by government, not that it is a fundamental right. Thomas’s reasoning is inherently flawed right here from the beginning. The right is also not dependent upon citizenship. See the plain wording of the Second Amendment in regards to “people” vs. “citizens”.


    “At the time of Reconstruction, the terms “privileges” and”immunities” had an established meaning as synonyms for “rights.” The two words, standing alone or paired together, were used interchangeably with the words “rights,” “liberties,” and “freedoms,” and had been since the time of Blackstone…Blackstone, for example, used the terms “privileges” and “immunities” to describe both the inalienable rights of individuals and the positive-law rights of corporations. ”

    And here, Blackstone had it just plain wrong. Privileges and immunities are legal terms that imply they are granted by government, whereas rights are inherent in mere human existence and trascend and supercede any power of government. The RKBA under the Second Amendment is a right, not a privilege or immunity, and as such cannot be repealed by government the way a privilege or immunity can be. Why Thomas buys into this Blackstone argument when he should know better is inexplicable.

    BTW, corporations have no rights, because despite what the courts may think, they aren’t living and breathing persons, but rather artifical entities.

    “the Court has determined that the Due Process Clause applies rights against the States that are not mentioned in the Constitution at all”

    This is very important as it incorporates the NINTH Amendment as well.

    But there was a simpler, more clear argument to decide this case that nobody took: the plain language.

    Unlike the First Amendment, which limited the actions of Congress and by extension had to be incorporated, the Second Amendment stated that RKBA was not to be infringed, and lacked detail as to by whom, and therefore applied to all government. By its very language it was already applicable to the states!

    However, since the collosal screwup that was Heller (yes, it affirmed the individual right, but they pointedly ignored the “shall not be infringed” part in classic SCOTUS form!), it was to be expected that the Court would engage in convulted and lengthy reasoning to arrvie at the conclusion, taking a legal scenic route over a hundred miles to go to the corner store.

    One last quote from Thomas:

    “”It cannot be presumed that any clause in the constitution is intended to be without effect.” Marbury v. Madison, 1 Cranch 137, 174 (1803) (Marshall, C. J.). ”

    Can we see this actually applied to the Tenth Amendment for once?

  15. This article is tea-bagger garbage. Robin Hood’s true legacy was fighting against the Norman aristocrats to help the Saxon peasants. During the 1950s in Indiana, Robin Hood was banned reading in some school districts because of right-wing bigots who thought Robin Hood was promoting socialism. Not that there is anything wrong with socialism.

  16. Unlike the First Amendment, which limited the actions of Congress and by extension had to be incorporated, the Second Amendment stated that RKBA was not to be infringed, and lacked detail as to by whom, and therefore applied to all government. By its very language it was already applicable to the states!

  17. It’s relly terrible when I think something about it.

  18. Eh bien, je suis un bon poste watcher vous pouvez dire et je ne donne pas une seule raison de critiquer ou de donner une bonne critique ? un poste. Je lis des blogs de 5 derni?res ann?es et ce blog est vraiment bon cet ?crivain a les capacit?s pour faire avancer les choses i aimerais voir nouveau poste par vous Merci
    ????? ???

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