The Supreme Court case McDonald v. City of Chicago (2010) marked a pivotal moment in the understanding of gun rights and regulation in the United States. One of the most significant Second Amendment cases in recent history, McDonald clarified the application of the right to bear arms to the states. In our interview with Duke Law Professor Darrell Miller, we will delve into the details of this landmark case and discuss its lasting impact on gun law in America.
McDonald v. City of Chicago centered around a challenge to the city's strict gun control laws, which banned possessing them within city limits. Otis McDonald, a 76-year-old retired maintenance engineer, filed suit against the city, arguing that the regulations violated his Second Amendment rights.
In a 5-4 decision, the Supreme Court ruled in favor of McDonald, holding that the Second Amendment right to bear arms is applicable to state and local governments through the Fourteenth Amendment's Due Process Clause. This ruling built upon the 2008 case District of Columbia v. Heller, which affirmed an individual's right to possess firearms for self-defense under the federal law. McDonald extended this individual right to state and local levels, effectively limiting the power of states and municipalities to restrict gun ownership.
The McDonald decision has had a profound impact on the interpretation of the Second Amendment and on the regulation of guns. By applying the right to bear arms to the states, the Supreme Court constrained the extent to which state and local governments can regulate firearms. To better understand the intricacies and implications of McDonald v. City of Chicago, we sit down with Duke Law Professor Darrell Miller.
Darrell Miller is a leading Second Amendment scholar and a professor at Duke Law School. He serves as co-director of the Duke Center for Firearms Law.
This video was created in collaboration with the Duke Center for Firearms Law, dedicated to the development of firearms law as a scholarly field, through the development and support of reliable, original, and insightful scholarship, research, and programming on firearms law.
Cases and Law Discussed
Second Amendment to the United States Constitution – "A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed."
Fourteenth Amendment to the United States Constitution – ratified in 1868 and aimed to ensure that all citizens had equal protection under the law. There are four components, but the due process clause was discussed in its applicability to the McDonald Case:
All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
District of Columbia v. Heller – Established the personal 2nd Amendment right and struck down a law banning the keeping of guns in the home. (2008)
NYSRPA v. Bruen – Supreme Court case which expanded Second Amendment rights outside of the home and established a new Second Amendment test. (2022)
McDonald v. Chicago – Supreme Court case that established (through the 14th Amendment) that the 2nd Amendment right to keep and bear arms is applicable to states. (2010)
Related Resources
Gun Laws after Bruen – a 1hr titans of law interview with Prof. Blocher on the Supreme Court's decision in NYSFPA v. Bruen and its impact.
Text, History and Tradition Test – Established by the 2022 landmark decision, NYSRPA v. Bruen, the text, history, and tradition test now governs laws restricting the right to keep and bear arms – invalidating any gun laws that fail to meet its standard.
McDonald vs. the City of Chicago is one of the most important Second Amendment gun rights cases ever heard at the Supreme Court. Welcome to Talks on Law, I'm Joel Cohen. Today, I'm joined in person with Professor Darrell Miller of Duke Law School and the co-director of the Duke Center for Firearms Law. Darrell, it is a pleasure to be in your space today. Great to have you here and great to talk about these issues.
We're going to talk about McDonald right now, and I guess first off, why is this case so important?
McDonald is super significant for a couple of reasons. It's the case that held that the Second Amendment actually applies to more than just the federal government; it applies also to state and local governments as well. So whereas the watershed case in 2008, District of Columbia vs. Heller, just had to deal with the Second Amendment application to federal law, with McDonald the question was, is it going to apply to essentially all law - state, local, down to your local library board? Because DC is this weird anomaly where it's a city, and it's also federal law applied. So before McDonald, it wasn't clear whether or not the Second Amendment applied to the states.
There's a technical issue called incorporation. In 1833, Justice John Marshall held that none of the Bill of Rights – the First Amendment, Second Amendment, Fourth Amendment, and so forth – applied to state law. Now that began to ebb in the middle of the 20th century through a process known as selective incorporation, where the Supreme Court of the United States began to incorporate the guarantees of the Bill of Rights and apply them to state laws and local laws. The question in the McDonald case was, is the Second Amendment going to be incorporated to apply to state and local laws the same way it does apply to federal law?
Professor, McDonald's in 2010. Are you telling me that the Second Amendment wasn't incorporated until so recently?
That's absolutely correct. Until 2010, the Second Amendment didn't apply to the states. But then again, it wasn't until 2008 in the District of Columbia vs. Heller case that we even had a Second Amendment right that guaranteed personal rights like having a gun in the home for self-defense. So this entire area of Second Amendment litigation and rights is pretty new as a matter of federal constitutional law.
Maybe we could do a quick look at the specifics. McDonald was a guy who wanted to keep a gun in his house.
Otis McDonald lived in a rough part of the south side of Chicago, and he wanted to have a pistol in his home for purposes of self-defense. The city of Chicago had a law that was, in all intents and purposes, essentially identical to the law that had been struck down in the District of Columbia vs. Heller case. In some ways, it was a slam dunk. It was, as you mentioned, very similar. It was just the type of law that Heller had found to be unconstitutional. But was there concern at the time? Were people thinking, hey, maybe the Second Amendment doesn't apply to the states?
This gets into the nuances of what's known as selective incorporation. Beginning in the 20th century, the Supreme Court of the United States began to take parts of the Bill of Rights and apply them to state and local laws, a process known as incorporation. But even today, not all the rights in the Bill of Rights are incorporated to apply to states. So there was at least some question as to whether and how the Second Amendment would apply to a regulation like that in the city of Chicago. The court ended up deciding, in a somewhat fractured opinion, that it does apply.
Who drafted the opinion of the court?
This was an opinion written by Justice Alito, writing for a fragmented Court. This is a little bit technical, but there are two ways in which the justices – the conservative justices on the Court – ended up thinking about the incorporation question. One is to incorporate through the Due Process Clause of the 14th Amendment, which is the mechanism by which most incorporation questions have been decided. The second was through a provision of the 14th Amendment called Privileges or Immunities that essentially guarantees everyone the privileges or immunities of citizenship. That's the route that Justice Thomas took in writing a separate opinion. But as a practical matter, whether incorporation happens through the Due Process Clause or Privileges or Immunities, it still applies to affect and restrain what states and localities can do with regard to gun regulation.
Am I right that Justice Scalia had a bit of a different approach?
Why Justice Scalia's opinion is important is that he characterizes the nature of the question about the right of the Second Amendment guarantees to keep and bear arms in a historical lens. He says we essentially know what the contours of the right are by contemporary regulations that were enacted around the same time as the Second Amendment. So this is what sort of begets a kind of historical analysis of gun regulation.
This concurrence by Scalia is, am I right, in some ways foreshadowing what happened much more recently in the Bruen decision, which created what is now the test for Second Amendment jurisprudence?
Absolutely. I think taking Heller, McDonald, and then Bruen together, it's pretty clear that there is a cohort of the Court that wants to look historically for understanding what the scope and meaning of the Second Amendment is. And this is right in the middle of that train of decisions.
So what would you say, in sum, is the legacy of McDonald?
The incorporation question, which is answered in McDonald, is incredibly significant because the vast swath of gun regulation in America is not federal gun regulation; it's gun regulation by states, by local county commissioners, gun restrictions in schools, or public parks, or library districts. The fact now that this entire body of law is subject to Second Amendment challenges is incredibly significant.
Darrell Miller teaches constitutional law at Duke Law School. Professor, it was such a pleasure.
Thank you.