McDonald v. Chicago, 5-4

The 7th Circuit’s decision in McDonald v. Chicago has been reversed by the Supreme Court and remanded for further proceedings.  That means we won.

To some extent, that is.

The ruling [pdf] was a narrow 5-4 decision, and the 2nd Amendment has been incorporated against the states through the Due Process clause of the 14th.

We get incorporation, but Slaughterhouse stands.

Writing for the majority, Justice Alito finds that the 2nd Amendment meets the same criteria for incorporation as any other fundamental right:

We have previously held that most of the provisions of the Bill of Rights apply with full force to both the Federal Government and the States. Applying the standard that is well established in our case law, we hold that the Second Amendment right is fully applicable to the States.  (pp. 1-2)

Regarding petitioners’ request to revive the Privileges or Immunities clause, the majority sees no reason to rattle established procedure, as they find selective incorporation be a sufficient mechanism:

For many decades, the question of the rights protected by the Fourteenth Amendment against state infringement has been analyzed under the Due Process Clause of that Amendment and not under the Privileges or Immunities Clause. We therefore decline to disturb the Slaughter-House holding.  (p. 10)

Sadly, they do this while acknowledging that selective incorporation runs counter to original intent.

As Justice Black noted, the chief congressional proponents of the Fourteenth Amendment espoused the view that the Amendment made the Bill of Rights applicable to the States and, in so doing, overruled this Court’s decision in Barron. Nonetheless, the Court never has embraced Justice Black’s “total incorporation” theory.  (pp. 14-15)

The Court does find that the “core right” of self-defense, implied by the 2nd Amendment in the Heller decision, meets the Glucksberg test of being “deeply rooted in this Nation’s history and tradition.” As such, it is found deserving of incorporation.

Justice Alito spares little acrimony for Chicago’s arguments:

Municipal respondents’ remaining arguments are at war with our central holding in Heller: that the Second Amendment protects a personal right to keep and bear arms for lawful purposes, most notably for self-defense within the home. Municipal respondents, in effect, ask us to treat the right recognized in Heller as a second-class right, subject to an entirely different body of rules than the other Bill of Rights guarantees that we have held to be incorporated into the Due Process Clause.

Municipal respondents’ main argument is nothing less than a plea to disregard 50 years of incorporation precedent and return (presumably for this case only) to a by gone era.  (p. 33)

Regarding respondents’ arguments to utility (i.e. “blood will run in the streets”):

Municipal respondents maintain that the Second Amendment differs from all of the other provisions of the Bill of Rights because it concerns the right to possess a deadly implement and thus has implications for public safety. (…) The right to keep and bear arms, however, is not the only constitutional right that has controversial public safety implications. All of the constitutional provisions that impose restrictions on law enforcement and on the prosecution of crimes fall into the same category.  (pp. 35-36)

One claim of respondents was that incorporating the 2nd Amendment would endanger our concept of federalism. In response,

There is nothing new in the argument that, in order to respect federalism and allow useful state experimentation, a federal constitutional right should not be fully binding on the States. This argument was made repeatedly and eloquently by Members of this Court who rejected the concept of incorporation and urged retention of the two track approach to incorporation. Throughout the era of “selective incorporation,” Justice Harlan in particular, invoking the values of federalism and state experimentation, fought a determined rearguard action to preserve the two-track approach.

Time and again, however, those pleas failed. Unless we turn back the clock or adopt a special incorporation test applicable only to the Second Amendment, municipal respondents’ argument must be rejected. Under our precedents, if a Bill of Rights guarantee is fundamental from an American perspective, then, unless stare decisis counsels otherwise, that guarantee is fully binding on the States and thus limits (but by no means eliminates) their ability to devise solutions to social problems that suit local needs and values.  (pp. 37-38)

Justice Scalia writes in concurrence, partially to refute a few of Stevens’ claims and partially to acknowledge a grudging acquiescence to the majority:

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 estab­ lished and narrowly limited.” This case does not require me to reconsider that view, since straightfor­ward application of settled doctrine suffices to decide it.

Most compelling is Justice Thomas’ long and well-researched concurrence, in which he is the sole advocate of reviving the Privileges or Immunities clause. I can only hope future 14th Amendment cases will take guidance from his opinion.

[T]he 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.  (Thomas concurrence, p. 1)

Describing the whole idea of selective incorporation as a “legal fiction,” he continues.

The notion that a constitutional provision that guarantees only “process” before a person is deprived of life, liberty, or property could define the substance of those rights strains credulity for even the most casual user of words. Moreover, this fiction is a particularly dangerous one. The one theme that links the Court’s substantive due process precedents together is their lack of a guiding principle to distinguish “fundamental” rights that warrant protection from nonfundamental rights that do not.  (Ibid, p. 7)

In response to the majority’s decision to play it safe by sticking with precedent for the purposes of procedure,

I acknowledge the volume of precedents that have been built upon the substantive due process framework, and I further acknowledge the importance of stare decisis to the stability of our Nation’s legal system. But stare decisis is only an “adjunct” of our duty as judges to decide by our best lights what the Constitution means.  (Ibid, p. 8)

This case could have been a small revolution, but I’ll take what we can get for now.

Oddly enough, the Brady Campaign isn’t claiming this a “victory for common-sense gun laws” like they did following the Heller decision.  Their only statement so far has been:

Just this morning, the U.S. Supreme Court struck down Chicago’s handgun ban, and ruled that the Second Amendment applies to the states.

Even though the ruling only recognizes a right to guns in the home for self-defense, I’ve been in this fight long enough to know the gun lobby will immediately launch its biggest assault yet on all sensible gun laws.

Every crucial life-saving law we have fought so hard to enact will now be only one lawsuit – and one judge – away from being wiped off the books.

They’re not entirely correct, as one lawsuit won’t entirely change the landscape.  However, several will, and some of those are already pending.  Expect Nordyke v. King and Peña v. Cid to grow new legs in the wake of this, and expect a wave of challenges to various local ordinances and regulations in the coming months.

The Chicago gun ban stands for now, but it’ll go back to the 7th Circuit, whose only reason for finding it constitutional was a lack of incorporation.  With the landscape changed, I’ve little doubt that the ban will be overturned.