In 1982, Chicago adopted a municipal ordinance effectively prohibiting the registration of most handguns, which, combined with a separate registration requirement, amounted to a citywide handgun ban. The neighboring suburb of Oak Park enacted a similar prohibition. After District of Columbia v. Heller (2008) held that the Second Amendment protects an individual right to possess a handgun in the home for self-defense against federal (District of Columbia) regulation, Otis McDonald and other residents filed § 1983 actions challenging the Chicago and Oak Park ordinances. They argued that the Second Amendment, as construed in Heller, should be applied to the states through the Fourteenth Amendment's Privileges or Immunities Clause or, alternatively, the Due Process Clause. The district court rejected their claims, and the Seventh Circuit affirmed, reasoning that earlier Supreme Court precedents (United States v. Cruikshank and Presser v. Illinois) had held the Second Amendment inapplicable to the states and that it was for the Supreme Court, not the lower courts, to reconsider incorporation. The Supreme Court granted certiorari and consolidated the cases.
Does the Second Amendment right to keep and bear arms, as recognized in District of Columbia v. Heller, apply to the states and their political subdivisions through the Fourteenth Amendment, and if so, through which clause?
Under selective incorporation, a provision of the Bill of Rights applies to the states through the Fourteenth Amendment if the right is fundamental to the American scheme of ordered liberty and deeply rooted in the Nation's history and tradition. The Supreme Court has adopted the Due Process Clause as the vehicle for selective incorporation; the Privileges or Immunities Clause remains constrained by The Slaughter-House Cases. Applying this doctrine, the right to keep and bear arms for self-defense recognized in Heller is fundamental and is therefore fully applicable to the states through the Fourteenth Amendment's Due Process Clause.
Yes. The Second Amendment right to keep and bear arms for self-defense is fundamental and is incorporated against the states through the Fourteenth Amendment's Due Process Clause. The Court reversed the Seventh Circuit and remanded, rendering Chicago's and Oak Park's handgun bans unconstitutional.
Plurality (Justice Alito, joined by Roberts, Scalia, and Kennedy): The Court began by surveying the modern incorporation framework, under which most of the Bill of Rights has been applied to the states via the Fourteenth Amendment's Due Process Clause when the right is fundamental to our scheme of ordered liberty and deeply rooted in our history and tradition. Heller established that the Second Amendment protects an individual right to possess a handgun in the home for self-defense. Historical sources from the Founding through Reconstruction showed that self-defense and the right to keep and bear arms were widely valued and protected, including by many state constitutions. Post–Civil War evidence—Congressional debates, the Freedmen's Bureau Act, and the widespread concern with disarmament of freedmen—confirmed that protecting this right against state infringement was a central purpose of the Fourteenth Amendment. Against this backdrop, the Court concluded that the right is fundamental and therefore must be enforceable against the states. The plurality rejected the municipalities' arguments that federalism and local experimentation should control. While acknowledging room for reasonable regulation, the Court emphasized that enumerated constitutional rights are not subject to majoritarian balancing on a city-by-city basis. The Court also addressed precedents such as Cruikshank and Presser, explaining that they predated modern incorporation doctrine and are no longer controlling to the extent they held the Second Amendment inapplicable to the states. The Court declined to specify a level of scrutiny or to define the entire scope of permissible regulations, but it reiterated Heller's assurance that longstanding, presumptively lawful restrictions (e.g., bans on possession by felons and the mentally ill, regulations on carrying in sensitive places, and conditions on commercial sales) remain permissible. Privileges or Immunities vs. Due Process: Petitioners urged incorporation through the Privileges or Immunities Clause. The plurality refused to revisit The Slaughter-House Cases and other precedent limiting that Clause, opting instead to incorporate via due process, which accords with the Court's century of selective incorporation cases. Justice Thomas concurred in the judgment only, contending that the original meaning of the Fourteenth Amendment's Privileges or Immunities Clause secures the right to keep and bear arms against state infringement and that Slaughter-House was wrongly decided. Nonetheless, because his vote supplied the fifth vote for incorporation, the result was incorporation—albeit via different reasoning. Dissents: Justice Stevens dissented, arguing that the asserted right was not shown to be fundamental under the Court's due process jurisprudence and criticizing the majority's historical methodology. Justice Breyer, joined by Justices Ginsburg and Sotomayor, dissented separately, emphasizing the absence of a national consensus deeming private armed self-defense fundamental, the empirical complexity of gun regulation, public safety concerns, and federalism interests that, in their view, counsel against constitutionalizing local policy choices. Both dissents warned against extending Heller's reasoning to the states and questioned the administrability of the majority's approach.
McDonald completes the major work of selective incorporation by applying the Second Amendment to state and local governments, ensuring that the core right recognized in Heller—possession of a handgun in the home for self-defense—binds all levels of government. For students of constitutional law, it is a canonical case on the mechanics of incorporation: defining "fundamental" rights, reconciling older precedents like Cruikshank and Presser with modern doctrine, and choosing the Due Process Clause over the Privileges or Immunities Clause as the vehicle for applying enumerated rights to the states. The decision also frames later Second Amendment litigation. Although McDonald did not prescribe a level of scrutiny or a definitive test for all gun regulations, it reaffirmed Heller's carveouts for longstanding, presumptively lawful measures and left regulatory details to be developed in subsequent cases. It simultaneously revived academic and judicial interest in the Privileges or Immunities Clause through Justice Thomas's concurrence, setting the stage for ongoing debates about original meaning, federalism, and the structure of Fourteenth Amendment protections.
McDonald v. City of Chicago cemented the Second Amendment's status as a fundamental right enforceable against state and local governments. By extending Heller through the Fourteenth Amendment's Due Process Clause, the Court placed meaningful constitutional constraints on state and municipal firearm prohibitions while acknowledging that longstanding, reasonable regulations remain permissible.