McDonald v. Chicago (2010; 5 con – 4 lib)

McDonald v. Chicago

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McDonald v. Chicago
Seal of the United States Supreme Court.svg

Argued March 2, 2010
Decided June 28, 2010
Full case name Otis McDonald, et al. v. City of Chicago, Illinois, et al.
Docket nos. 08-1521
Citations 561 U.S. 742 (more)

130 S. Ct. 3020; 177 L. Ed. 2d 894
Prior history Judgment for defendants, 617 F. Supp. 2d 752 (N.D. Ill. 2008), aff’d, 567 F.3d 856 (7th Cir.), cert. granted, 557 U. S. ___ (2009)
Argument Oral argument
The Second Amendment right to keep and bear arms for self defense in one’s home is fully applicable to the states through the Fourteenth Amendment. Court of Appeals for the Seventh Circuit reversed and remanded.
Court membership
Case opinions
Majority Alito, joined by Roberts, Scalia, Kennedy (all); Thomas (all except parts II-C, IV and V)
Concurrence Scalia
Concurrence Thomas
Dissent Stevens
Dissent Breyer, joined by Ginsburg, Sotomayor
Laws applied
U.S. Const. amend. IIXIV

McDonald v. Chicago, 561 U.S. 742 (2010), is a landmark[1] decision of the Supreme Court of the United States that determined whether theSecond Amendment applies to the individual states. The Court held that the right of an individual to “keep and bear arms” protected by the Second Amendment is incorporated by the Due Process Clause of the Fourteenth Amendment and applies to the states. The decision cleared up the uncertainty left in the wake of District of Columbia v. Heller as to the scope of gun rights in regard to the states.

Initially the Court of Appeals for the Seventh Circuit had upheld a Chicago ordinance banning the possession of handguns as well as other gun regulations affecting rifles and shotguns, citing United States v. CruikshankPresser v. Illinois, and Miller v. Texas.[2] The petition for certiorari was filed by Alan Gura, the attorney who had successfully argued Heller, and Chicago-area attorney David G. Sigale.[3] The Second Amendment Foundation and the Illinois State Rifle Association sponsored the litigation on behalf of several Chicago residents, including retiree Otis McDonald.

The oral arguments took place on March 2, 2010.[4][5] On June 28, 2010, the Supreme Court, in a 5–4 decision, reversed the Seventh Circuit’s decision, holding that the Second Amendment was incorporated under the Fourteenth Amendment thus protecting those rights from infringement by local governments.[6] It then remanded the case back to Seventh Circuit to resolve conflicts between certain Chicago gun restrictions and theSecond Amendment.




In McDonald v. City of Chicago,(2010), Chicago resident Otis McDonald, a 76 year old (in 2010) retired maintenance engineer, had lived in theMorgan Park neighborhood since buying a house there in 1971.[7] McDonald decried the decline of his neighborhood, describing it as being taken over by gangs and drug dealers. His lawn was regularly littered with refuse and his home and garage had been broken into a combined five times, with the most recent robbery committed by a man McDonald recognized from his own neighborhood.[7] An experienced hunter, McDonald legally owned shotguns, but believed them too unwieldy in the event of a robbery, and wanted to purchase a handgun for personal home defense. Due to Chicago’s requirement that all firearms in the city be registered, yet refusing all handgun registrations after 1982 when a citywide handgun ban was passed, he was unable to legally own a handgun. As a result, in 2008, he joined three other Chicago residents in filing a lawsuit which became McDonald v. Chicago.[7]

McDonald v. Chicago as compared to NRA v. Chicago

Despite being consolidated at the U.S. Court of Appeals for the 7th Circuit, the cases are different in scope in terms of the specific regulations challenged and the legal argument for applying the Second Amendment against state and local governments. The Second Amendment Foundation brought the McDonald case to the Supreme Court with its lead attorney Alan Gura. The cases were appealed separately to the U.S. Supreme Court.[8]

Regulations challenged

McDonald challenged four broad aspects of Chicago’s gun registration law, which, according to the plaintiffs:[9]

  • Prohibit the registration of handguns, thus effecting a broad handgun ban
  • Require that guns be registered prior to their acquisition by Chicago residents
  • Mandate that guns be re-registered annually, with another payment of the fee
  • Render any gun permanently non-registrable if its registration lapses

Legal basis for incorporation

All of the post-Heller cases, including McDonaldNRA v. ChicagoNordyke and Maloney, argued that the Second Amendment, in addition to applying to federal jurisdictions, should also be applied against state and local governments, using a judicial process called selective incorporation. Selective incorporation involves convincing the court that a right is “fundamental” by being “implicit in the concept of ordered liberty” or “deeply rooted in our nation’s history and traditions” as defined most recently in the Supreme Court case Duncan v. Louisiana, 391 U.S. 145(1968).

In addition to claiming the Second Amendment should be incorporated through the selective incorporation process, McDonald is unique among post-Heller gun cases in that it asked the court to overturn the Slaughter-House Cases, 83 U.S. 36 (1873). Slaughter-House determined that the 14th Amendment’s Privileges or Immunities Clause did not apply the Bill of Rights to the actions of states (and by extension, local governments). If it had been overturned, the Selective Incorporation process may have become unnecessary, since the entire Bill of Rights, including the 2nd Amendment, would arguably be applied to the states.[10][11]

In attempting to overturn Slaughter-House, this case garnered the attention and support of both conservative and liberal legal scholars interested in its potential application in areas outside of firearms law. Their interest was that if Slaughter-House had been overturned, it would have been possible that constitutional guarantees such as the right to a jury in civil cases, right to a grand jury in felony cases, and other parts of the Bill of Rights, as well as future court rulings and existing federal precedent, not universally guaranteed in actions by the states, would have been applied against the states automatically.[12][13][14]

In his concurring opinion, Justice Thomas alone supported overturning the Slaughter-House and Cruikshank decisions,[15] proposing that “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.”[16]

Amici curiae[edit]

Thirty-three amici curiae (“friends of the court”) briefs for this case were filed with the Clerk of the Supreme Court.[17]

One of these briefs was filed by U.S. senators Kay Bailey Hutchison (R, TX) and Jon Tester (D, MT) and U.S. representatives Mark Souder (R, IN) and Mike Ross (D, AR) asking the Supreme Court to find in favor of the petitioners and rule that the Second Amendment does apply to the states.[18] The brief was signed by 58 senators and 251 representatives, more members of Congress than any amicus curiae brief in history.[19] Furthermore, thirty-two states under the aegis of Texas (and California independently) also filed amici curiae.[clarification needed][20]


Writing for the majority, Justice Alito held that the Due Process Clause of the Fourteenth Amendment incorporates the Second Amendment right recognized in Heller.[21] Writing a concurring opinion, Justice Thomas reached the same conclusion regarding the incorporation issue on different grounds: Privileges or Immunities Clause of the Fourteenth Amendment.[22] The majority decision also reaffirmed that certain firearms restrictions mentioned in District of Columbia v. Heller are assumed permissible and not directly dealt with in this case.[23] Such restrictions include those to “prohibit…the possession of firearms by felons or mentally ill” and “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”.[23]


Justice Stevens wrote a lengthy dissenting opinion. Among his disagreements with the majority was the statement that incorporation was not at issue in this case. Citing Cruikshank, Stevens wrote, “The so-called incorporation question was squarely and, in my view, correctly resolved in the late 19th century.” In addition, he argues against incorporation, taking issue with the methodology of the majority opinions.

Justice Breyer wrote, “In sum, the Framers did not write the Second Amendment in order to protect a private right of armed self defense. There has been, and is, no consensus that the right is, or was, ‘fundamental.'”[24]


The initial reactions of the Court’s ruling were favorable from both the National Rifle Association[25] and the Brady Campaign to Prevent Gun Violence.[26] Both issued statements to the public that they feel they were vindicated by the Court’s holding. However, the court did not include a “clarification of the standard for review” as requested by the Brady group in their amicus brief.[27] In a discussion on the day of the ruling Wayne LaPierre of the NRA and Paul Helmke of the Brady Center both agreed that the Court’s ruling protected specifically against bans on handguns for self-protection in the home. But as to the general question of gun laws not covered in McDonald; a large number of lawsuits are needed in order to determine whether any other existing gun regulations might also be unconstitutional. Wayne LaPierre expressed caution that the NRA has “a lot of work ahead” attempting to overturn other gun control regulations not covered by McDonald, while Paul Helmke voiced his opinion that the NRA was “going to lose most of those lawsuits”.[28]

Related cases[edit]

The day after Heller was filed the National Rifle Association filed five similar lawsuits challenging local gun bans:

Other notable post-Heller Second Amendment court cases:

  • Nordyke v. King, 563 F.3d 439 (9th. Cir. 2009) Held that the 2nd Amendment did apply to the states in the Ninth Circuit, though the ruling was vacated for en banc reconsideration, and the Alameda County, California prohibition of firearms on county property remained constitutional until overturned by McDonald v. Chicago.
  • Maloney v. Rice (a.k.a. Maloney v. Cuomo and Maloney v. Spitzer), 554 F.3d 56 (2d. Cir. 2009) Held that the 2nd Amendment does not apply to the states in the Second Circuit. The case involved a state ban on Nunchaku sticks (a martial arts weapon). In a memorandum opinion dated June 29, 2010, the Supreme Court vacated the Second Circuit decision in Maloneyand remanded for further consideration in light of McDonald’s holding that the Second Amendment does apply to the states.
  • State of Washington v. Sieyes The Washington Supreme Court held that the 2nd Amendment is incorporated and applies to Washington State, via the Due Process Clause of the Fourteenth Amendment. Superseded by, but consistent with, McDonald.
  • Commonwealth v. Runyan, 456 Mass. 230 (2010) The Supreme Judicial Court of Massachusetts held that Heller did not apply to the Massachusetts state legislature and that the gun locks ordered under Massachusetts law are different from those regulated in Heller. Partially overturned by McDonald; The decisions made in Heller do apply to the State of Massachusetts (as with all States), but the gun lock requisite under MA law may indeed differ enough from D.C.’s statute to be found constitutional.
  • In Ezell v. Chicago, decided July 6, 2011, the Seventh Circuit reversed a district court decision that the post-McDonald measures adopted by the City of Chicago were constitutional. The Chicago law required firearms training in a shooting range in order to obtain a gun permit, but also banned shooting ranges within the City of Chicago. The City had argued that applicants could obtain their training at gun ranges in the suburbs. The opinion noted that Chicago could not infringe Second Amendment rights on the grounds that they could be exercised elsewhere, any more than it could infringe the right to freedom of speech on the grounds that citizens could speak elsewhere.
  • In Moore v. Madigan, the United States Court of Appeals for the Seventh Circuit issued a ruling in December 2012 that required the Illinois Legislature to modify existing State law to adopt a concealed carry law to allow the denizens of Illinois the right to bear arms outside of the home. In February 2013, the entire Court of Appeals decided to let stand the December 2012 decision of a three-judge panel.[31][32] Following a final 30-day extension, Illinois was required by the court to draft a concealed carry law by July 9, 2013. In the end, the legislature overrode a veto of the governor and approved Illinois concealed carry to begin January 2014, at the latest.[33][34][35][36]

See also[edit]


  1. Jump up^ “In McDonald v. Chicago another Supreme Court landmark ruling on guns?”The Christian Science Monitor. 2010-03-01.
  2. Jump up^ National Rifle Ass’n of Amer., Inc. v. City of Chicago, 567 F.3d 856, 857 (7th Cir. 2009)
  3. Jump up^ Taff, Mark. “SAF Files Lawsuit Challenging Chicago’s Handgun Ban” Retrieved July 6, 2009.
  4. Jump up^ Miller, Erin (March 2, 2010). “Podcasts: McDonald v. City of Chicago”SCOTUSblog. Retrieved March 2, 2010.
  5. Jump up^ Liptak, Adam (March 2, 2010). “Supreme Court Still Divided on Guns”The New York Times.
  6. Jump up^ Mears, Bill (June 28, 2009). “Court rules for gun rights, strikes down Chicago handgun ban”CNN.
  7. Jump up to:a b c Tanaka, Jennifer (January 2010). “On Otis McDonald and his lawsuit challenging Chicago’s 1982 handgun ban”.Chicago Magazine. Retrieved 10 October 2012.
  8. Jump up^ “A new Second Amendment case”SCOTUSblog. Retrieved July 4, 2009.[dead link]
  9. Jump up^ “ » FAQs”. Retrieved July 6, 2009.
  10. Jump up^ “[T]he words ‘No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States’ seems to me an eminently reasonable way of expressing the idea that henceforth the Bill of Rights shall apply to the States.” Erwin Chemerinsky et al., Constitutional Law § 6.3.2 (3d ed. 2006) (quoting Duncan v. Louisiana, 391 U.S. 145, 166 (1968) (Black, dissenting))
  11. Jump up^ More precisely, the Privileges or Immunities Clause would incorporate the first eight amendments of the Bill of Rights; since the 9th and 10th Amendments refer to the unenumerated rights of individuals and reserved powers of the states respectively, their incorporation, at least for the 10th Amendment, would be paradoxical or meaningless.
  12. Jump up^ “Liberals Use Supreme Court Gun Case to Bolster Other Rights”. Retrieved July 4, 2009.
  13. Jump up^ “Constitutional Accountability Center filed brief in NRA v. Chicago” Retrieved July 4, 2009.
  14. Jump up^ “Brief for Constitutional Law Professors as Amici Curiae”. Retrieved June 29, 2010.
  15. Jump up^ slip op., at 52-54 (Thomas, J., concurring)
  16. Jump up^ slip op., at 1 (Thomas, J., concurring)
  17. Jump up^ “Merit Briefs for February Supreme Court Cases, Term 2009-2010”. American Bar Association. Retrieved June 29, 2010.
  18. Jump up^ “Brief for Senator Kay Bailey Hutchison et al. as Amici Curiae”. Retrieved June 28, 2010.
  19. Jump up^ “Sen. Kay Bailey Hutchison press release”. November 23, 2009. Archived from the original on 2011-02-04. Retrieved October 9, 2013.
  20. Jump up^
  21. Jump up^ McDonald, at ___-___ (slip op., at 44)
  22. Jump up^ SCOTUS blog
  23. Jump up to:a b McDonald, at ___-___ (slip op., at 39-40)
  24. Jump up^ “OK, Let’s Debate Gun Control!”The Wall Street Journal. 2012-07-23.
  25. Jump up^ “Statement by Wayne LaPierre Executive Vice President, NRA and Chris W. Cox Executive Director, NRA-ILA Regarding U.S. Supreme Court Decision McDonald v. City of Chicago. Retrieved June 25, 2010.
  26. Jump up^ “Brady Campaign to Prevent Gun Violence: Media”. Retrieved June 25, 2010.
  27. Jump up^ “Brief for the Brady Center to Prevent Gun Violence et al. as Amici Curiae”. Retrieved June 28, 2010.
  28. Jump up^ Interviewer: Gwen Ifill (June 28, 2010). “After Supreme Court Ruling, Cities Face Restructuring of Gun Laws”.NewsHourPBS.
  29. Jump up^ Egelko, Bob (January 14, 2009). “San Francisco Housing Authority settles gun lawsuit”. Retrieved 2009-01-16.
  30. Jump up^ “NRA Eyes More Targets After D.C. Gun-Ban Win”. (NPR). Retrieved July 6, 2009.
  31. Jump up^ Koppel, David (11 December 2013). “Moore v. Madigan, key points”. The Volokh Conspiracy. Retrieved 13 July 2013.
  32. Jump up^ “Appeals court won’t reconsider concealed carry ruling”.Associated Press. Chicago Sun Times. 22 February 2013. Retrieved 13 July 2013.
  33. Jump up^ McCune, Greg (July 9, 2013). “Illinois Is Last State to Allow Concealed Carry of Guns”Reuters. Retrieved July 20, 2013.
  34. Jump up^ Jones, Ashby (July 9, 2013). “Illinois Abolishes Ban on Carrying Concealed Weapons”Wall Street Journal. Retrieved July 20, 2013.
  35. Jump up^ McDermott, Kevin, and Hampel, Paul (July 11, 2013).“Illinois Concealed Carry Now on the Books — But Not Yet in the Holster”St. Louis Post-Dispatch. Retrieved July 20, 2013.
  36. Jump up^ DeFiglio, Pam (July 9, 2013). “General Assembly Overrides Veto, Legalizing Concealed Carry in Illinois”,Patch Media. Retrieved July 20, 2013.

External links[edit]


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