On June 28, the Supreme Court handed down the most consequential decision of this term in the historic gun-rights case, McDonald v. Chicago. Now the Second Amendment right to own a gun extends against every level of government, in a complex 5-4 decision that shows President Obama is using the Supreme Court to push a gun-control agenda.
After the 2008 Heller case holding that the Second Amendment secures an individual right, the biggest question for anyone working in constitutional law was simple: Does the Second Amendment provide a right only against the federal government, or does it also provide a right against state and local governments?
When the Bill of Rights went into effect in 1791, it only secured rights against the federal government. When the Fourteenth Amendment was ratified in 1868, it extended many federal rights—including most of the Bill of Rights—against the states and states’ subdivisions (counties and cities).
But the states are separate sovereigns. In the following decades, the Court held that only those rights that are fundamental rights can trump state sovereignty, limiting the power of state and local governments.
The city of Chicago has a gun ban as restrictive as the one the Court struck down in D.C. So in McDonald the Court was finally confronted with whether the right to keep and bear arms is one of these fundamental rights.
In a lengthy opinion (totaling over 200 pages), the Court held in a narrow 5-4 decision that the right to keep and bear arms is a fundamental right. As a result, the Chicago gun ban has suffered the same fate as D.C.’s, but that’s where agreement ends.
Contrary to many press reports, the Court could not agree on why the Second Amendment applies to the states. The Court agreed that the right to own a gun is fundamental, and so applies to the states. Because it applies to the states, the city law that bans all guns—such as the law in Chicago—cannot stand.
But that’s the end of the Court’s holding. In an opinion written by Justice Sam Alito, four justices went the straightforward route argued by the NRA that the Second Amendment is part of the Fourteenth Amendment Due Process Clause, which is the approach that the Court has used since 1897.
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