Key Takeaways
- McDonald v. City of Chicago (2010) held that the Second Amendment applies to state and local governments, not just the federal government.
- The plurality reached that result through the Fourteenth Amendment's Due Process Clause, while Justice Thomas would have relied on the Privileges or Immunities Clause; either way, the result binds states and cities.
- Because most gun regulation in America is state and local, McDonald opened that entire body of law to Second Amendment challenges.
When the Supreme Court recognized an individual right to keep a handgun in 2008, did that right limit only the federal government, or also your state, city, and local library board?
In this TalksOnLaw Brief, Joel Cohen talks with Darrell A. H. Miller, now the Harry N. Wyatt Professor of Law at the University of Chicago Law School and co-founder of the Duke Center for Firearms Law, about McDonald v. City of Chicago, the 2010 case that answered that question.
Why Incorporation Mattered
District of Columbia v. Heller involved the District of Columbia, which Professor Miller notes is an anomaly: a city where federal law applies. That left open whether the Second Amendment reached the states. In the early 1830s, the Supreme Court under Chief Justice John Marshall held that the Bill of Rights did not apply to the states. Beginning in the twentieth century, the Court applied most of its guarantees to state and local laws through selective incorporation. Even today, he notes, not every provision of the Bill of Rights has been incorporated. Until 2010, the Second Amendment had not been, and until 2008 there was not even a recognized personal right to have a gun at home for self-defense. As he puts it, this entire area of constitutional law is quite new.
Otis McDonald's Challenge
Otis McDonald lived in a rough part of Chicago's South Side and wanted a handgun at home for self-defense. Chicago's law was, for all practical purposes, essentially identical to the one struck down in Heller. In that sense, Professor Miller says, the case was a slam dunk, but there was still a real question whether and how the Second Amendment would apply to a city.
A Fractured Court
The Court held that it does, in an opinion by Justice Alito for a fragmented Court. Professor Miller explains the two routes the justices took. The plurality relied on the Due Process Clause of the Fourteenth Amendment, the usual path for incorporation. Justice Thomas, writing separately, relied on the Privileges or Immunities Clause. As a practical matter, either way, the Second Amendment now restrains what states and localities can do. He also highlights Justice Scalia's concurrence, which looked to regulations enacted around the time of the Second Amendment to define the right's contours, helping to set up a historical approach to gun regulation.
What to Know Now
McDonald remains settled law, and its importance has grown. As Professor Miller notes, most gun regulation in America is state and local, and all of it is now subject to Second Amendment review. New York State Rifle & Pistol Association v. Bruen (2022) adopted the history-focused approach he describes and struck down New York's permit law. In Wolford v. Lopez (2026), the Court applied the Second and Fourteenth Amendments to strike down a Hawaii carry restriction, and it will soon decide whether a Cook County ban on AR-15-style rifles is constitutional. Because the right applies to the states through the Fourteenth Amendment, courts and scholars continue to debate whether 1791 or 1868 is the key date for historical analysis.
