The McDonald Case

I hope this won’t be a surprise—but we won McDonald v. Chicago.  (And yes, I say, “we” because Justice Alito’s decision several times cited a George Mason Law Review article by myself, Professor Nicholas Johnson, and George A. Mocsary, who is a clerk with the Tenth Circuit Court of Appeals.)1  The Supreme Court ruled, 5-4, that the Second Amendment is incorporated through the Fourteenth Amendment against the states.  This means that state and local governments are obligated to recognize the rights protected by the Second Amendment.  

So, does this mean every state and local gun control law in the U.S. is now null and void?  No—but it is a very positive sign, and the beginning of the end for at least the most outrageous gun control laws.  For starters, Chicago’s handgun “freeze” law is dead.  This law banned anyone from registering any handguns after 1982—and if you didn’t have your handgun registered, you could not lawfully have it in your home in Chicago.  Even though technically, the Supreme Court’s decision did not strike down the Chicago law—it only ordered the lower courts to rehear the case—the language of Justice Alito’s decision was so clear that Chicago didn’t even bother to go back to court; they repealed the old law and passed a new one.

The new law requires Chicagoans to register handguns, take a safety class, and requires payment to obtain a Chicago handgun license (even in your own home).  Perhaps the greatest understatement of the Chicago City Council’s debate about this is from Alderman Ed Burke: “I have to confess that back in 1982, when I was chair of the police committee that perhaps I and so many others that voted in favor of this ordinance exhibited too much ardor for the ban and we perhaps we should have been more sensitive to weighing the rights of legitimate citizens to have weapons.”2  Ya think?  Wow.

The Court’s decision is fascinating in many ways.  As some of my previous columns have explained, there were several possible ways to interpret the way in which the Fourteenth Amendment might apply the Second Amendment to the states.  One might have been through the Equal Protection Clause—and gun control advocates tried to argue that because the Fourteenth Amendment sought to abolish various racially discriminatory laws in the South after the Civil War, therefore as long Chicago’s gun control law didn’t discriminate against anyone based on race, no problem!

Another approach would have been through the “privileges or immunities” clause of the Fourteenth Amendment.  The evidence is very clear that both the supporters and opponents of the Fourteenth Amendment understood that this is how the Bill of Rights (including the Second Amendment) would be applied to the states.  Justice Thomas, who wrote a powerful concurring opinion, took this approach—and we’re going to see more of Justice Thomas’ opinion in the future, I’m sure.

Another approach would have been through the due process clause of the Fourteenth Amendment.  This approach for applying the Bill of Rights to the states is so intellectually bankrupt that almost no one considers it legitimate.  Unfortunately, it is the method that the Supreme Court, over the last century, has used to do exactly that for nearly all the rest of the Bill of Rights.  From reading the oral arguments, where the justices grilled Alan Gura (the lead attorney on our side), it is clear that the justices know that this approach is wrong—but the decision by Justice Alito went ahead and took that approach anyway.  Why would you take the wrong approach?

The problem is this.  What if the Court said, “Look, for the last century, we’ve been using a defective theory of the Fourteenth Amendment and incorporation—all of these cases involving freedom of speech, Miranda warnings, right to not self-incriminate, and nearly all the rest of the Bill of Rights—are wrong.  The right approach is through the privileges or immunities clause.”  This would cause hundreds of existing precedents to be called into question.  There would be hundreds of thousands of lawsuits filed challenging a century’s worth of decisions.  While many of these precedents might be redecided under privileges or immunities with the same result—some of them would not, and with good reason.  In the meantime, the federal courts would be hopelessly gridlocked for a century.  (Hmmm.  Maybe this is a feature, not a bug.)

Not surprisingly, four justices ruled that the Second Amendment is incorporated through the due process clause, and Justice Thomas said, “It’s incorporated, but through privileges or immunities.”  The net result is nearly the same: state and local governments must recognize the Second Amendment.

The dissents are pretty amusing—largely because justices such as the retiring Justice Stevens, who has repeatedly argued that the states may not pass laws restricting obscenity, abortion, homosexual sex, and half a zillion other activities—argued that imposing the Second Amendment on the states would destroy the ability of local governments to make decisions appropriate to their local conditions.  The big difference?  The right to keep and bear arms is actually written down in the Constitution!  It’s not something that you can only find by putting on special glasses—like the right to an abortion.

What are the practical effects of the decision?  There are going to be a stack of lawsuits filed—some have been filed as I speak.  Other cases that were stalled at various levels of the courts waiting for this decision are starting to move forward.  I am expecting that challenges to the few remaining discretionary issuance concealed weapon permit laws are going to be very big.  There are very, very few laws like this in America, where a government official has unlimited discretion to decide whether you get to do something—and none of these other laws, to my knowledge, involve what Justice Alito’s decision called a “fundamental right.”  

States like California, Massachusetts, and New York will argue that the right to keep and bear arms is not unlimited—but once the Court attaches a label like “fundamental right,” this substantially raises the bar.  For a state to justify this unlimited discretion requires something a bit stronger than, “We think laws like this are a good idea.”  The Court is likely to require at least “intermediate scrutiny,” and perhaps even “strict scrutiny.”  Either of these standards will create a nearly insurmountable barrier.  I expect over the next few years, as these cases go up and down the courts, that the few remaining discretionary permit laws will be revised by the state legislatures to conform to some form of “shall-issue” law.

Assault weapon laws and the existing federal ban on new manufacture of machine guns for civilian ownership are a tougher call.  I would like to think that these laws will fall as well—but let’s be realistic: justices of the U.S. Supreme Court have the same emotional reactions as human beings (to which they bear a strong resemblance), and we might see some serious hemming and hawing if such cases come before them.  Our best bet is to work on legislative corrections for these laws.

The cases that are the most interesting are the laws that disarm felons, and those convicted of domestic violence misdemeanors.  Gun rights lawyers are generally not bringing such cases to court.  Criminal defense attorneys, trying to protect their clients, are.  So far, it appears that the felon-in-possession laws are not likely to be struck down.  From a pragmatic standpoint, that’s probably a good thing.  But there are people who have been convicted of various non-violent felonies (turning back a car odometer, for example) who are hard to imagine as a serious public safety threat.  I would not be surprised to see such a case cause the Supreme Court to eventually decide that some felonies don’t deserver such a severe punishment.

The domestic violence misdemeanor cases are even more interesting.  Here’s a harsh statement: many people who have been convicted of domestic violence misdemeanors should not have been convicted of anything.  We have gone from a situation where police often turned a blind eye to women being beaten by their thuggish husbands or boyfriends, to a situation where someone pushing a spouse out of the way in order to leave the house during an argument ends up convicted of domestic violence.  

At some point, the Court is going to have a case that absurd before it as a violation of the federal ban—and the results are going to be very interesting.  If they strike down the Lautenberg Amendment (which made it a federal crime for a person convicted of a domestic violence misdemeanor to possess a firearm), there will be a lot of screaming—and not just from feminists.  There are some people out there (both guys and gals) who probably shouldn’t have guns—or knives, or fists.  These are people with serious temper problems.  

At the same time, the Court shouldn’t be trying to rewrite federal law, or state laws, to solve a problem that requires important distinctions.  Is a shove not serious enough?  Is a slap too much?  Does hitting your spouse with a bottle cross the line?  Does it make sense for this to be a lifetime disability—or should it perhaps be a five-year firearms disability?  These are hard questions—best settled by legislators, not judges.

It is going to be an exciting next few years—but it’s gratifying to be on the winning side—again!

1 Clayton E. Cramer, Nicholas James Johnson, and George A. Mocsary, “'This Right is Not Allowed by Governments that are Afraid of the People': The Public Meaning of the Second Amendment When the Fourteenth Amendment was Ratified,” George Mason Law Review, 17:3[April 2010]. Available at SSRN:

2 Abdon M. Pallasch, “Chicago approves new gun restrictions,” Chicago Sun-Times, July 2, 2010,,new-chicago-gun-law-passed-070210.article, last accessed July 18, 2010.