Constitutional Watch - “The McDonald Case - The Supreme Court Gets it Right” | Eastern North Carolina Now

McDonald v. City of Chicago (2010): The Second Case of the 21st Century to Affirm the Intent of the Second Amendment

McDonald v. City of Chicago, 153 U. S. 535 (Oct. 2009)

    I wrote the following review of the McDonald decision back in 2010 for my blogsite, and Beaufort County NOW, but wanted to re-post it here because in light of the gathering storm against gun rights, we should consider two things: (1) The McDonald case was the second Supreme Court decision (after District of Columbia v. Heller in 2008) that affirmed the Second Amendment as an individual right; and (2) both cases were decided by a slim 5-4 margin, with Justice Kennedy siding with the conservative justices. The government - OUR government - took the position that the Second Amendment applies only to militias, such as the National Guard, and not to private gun ownership. How do you trust a government that takes a position against the rights of its people and plots to take them away, waiting for the right moment to take action?

The Heller and McDonald cases marked the first time in about 70 years that the Supreme Court was willing to consider the meaning of the Second Amendment. For the first time, the Court was presented with the question of whether the Second Amendment protects an individual's right to bear arms for private purposes. In Heller, the Court held that the Second Amendment protects an individual right to possess a firearm unconnected with service in a militia and to use that firearm for traditionally lawful purposes, such as self- defense. The Court based its holding on the text of the Second Amendment and its history, as well as applicable language in state constitutions adopted soon after the Second Amendment.

The McDonald case came to the high Court from the Seventh Circuit, where the panel of judges held that states had the right to enact gun bans because the Fourteenth Amendment did not require the states to respect the rights protected under the Second Amendment. Luckily, the Supreme Court reversed the Seventh Circuit. It held that, indeed, the Fourteenth Amendment makes the Second Amendment right to keep and bear arms for the purpose of self-defense applicable to the states. In analyzing whether a particular right protected in the Bill of Rights applies to the States through the Fourteenth Amendment, the Court has come up with a threshold determination and that question asks whether the particular right is one that is "fundamental to the Nation's scheme of ordered liberty" or one that is "deeply rooted in this Nation's history and tradition." If the Court determines that it is so, then the Court will declare that the particular right is appropriately applied to the states through the Fourteenth Amendment. Based on the review done in Heller and the decision it reached, the Court in the McDonald case recognized that the right to self-defense was one such "fundamental" and "deeply rooted" right.

   Prior to the Heller case, the last case the Supreme Court heard on the Second Amendment was United States v. Miller, in 1938. It was a questionable decision then and unfortunately, because of the Court's doctrine of stare decisis ("that which has been decided": otherwise known as court "precedent"), the Court was still bound by it. Actually, the argument was never asserted in Miller that the Second Amendment protects the individual right to bear arm. Yet the Supreme Court nevertheless upheld a federal gun control law and said that the Second Amendment only protects arms that are reasonably related to the maintenance of a state militia.

   Since that horrible decision, federal circuit and federal district courts have ruled on dozens and dozens of cases in which gun control laws were challenged under the Second Amendment and they consistently read the Second Amendment to protect a state's right to preserve a militia and have it armed... but not as an individual right to bear arms for private purposes unrelated to militia services. So, while the militia theory of the Second Amendment, or collective rights theory of the Second Amendment, had only been vaguely mentioned by the Supreme Court in Miller, it had become the dominant law of the land in the federal courts in the 70 years prior to Heller.

   In the meantime, thank God, scholars began to study the Second Amendment and its history. Over the years, much historical, academic, scholarly material were collected which completely undermined the argument that the Second Amendment protected only a state's right to preserve a militia and not an individual's right to bear arms. Over the last 30 years there has been literally a tidal wave of scholarship looking into the original meaning and purpose of the Second Amendment. The overwhelming majority of studies have sided with view that our Founders sought to protect the individual's right to bear arms for self-defense. And it was this new-found understanding and appreciation of the Second Amendment that guided the Court's decision in Heller and then McDonald.

   The question, of course, is whether the government will continue to deny the fact that the Second Amendment was demanded by the States to protect the rights of individuals to protect themselves from harm and from a government that might attempt to strip them of their other rights. An individual without the right to protect himself is a victim... a subject... a sitting duck.

    With this intro given, the analysis of McDonald, as written in 2010, is as follows:

    On June 28, 2010, the Supreme Court decided one of the most important Second Amendment cases in U.S. history. McDonald v. City of Chicago. It marks a huge victory for conservatives, for Constitutionalists, for the NRA, and for common sense. This case represents a consolidation of cases filed against the Northern District of Illinois against the City of Chicago and Village of Oak Park challenging their gun ban laws which prohibit the possession of most handguns. Petitioners challenged the Chicago and Oak Park gun bans, claiming that such bans not only left them vulnerable to crime, but were in violation of the second and fourteenth amendments. All petitioners live in high-crime neighborhoods in Chicago and have been victims of crime. The individual suits were filed intentionally after the Supreme Court’s issued its landmark decision in District of Columbia v. Heller (2008), the first Second Amendment case to come before the Court in over 70 years. In that case, the Supreme Court held that a District of Columbia handgun ban violated the Second Amendment. The Court reasoned that the law in question was enacted under the authority of the federal government and, thus, the Second Amendment was applicable.

    The Second Amendment reads: “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.” In Heller, the Supreme Court held that the Second Amendment secures for individuals the right to keep and bear arms, including handguns, for the purpose of self-defense. (pp. 2821–22). Although the Heller Court held that the right to bear arms was not unlimited, the Court did strike down two Washington D.C. gun control laws which were in effect at the time (while they did not ban handguns outright, they effectively reached that result by making the possession of an unregistered firearm a crime, and making the registration of handguns illegal). The Petitioners in McDonald wanted to have the rights recognized in Heller applicable to citizens of the individual states. The case would also stand as a landmark decision. It would have far-reaching effects for rights of self-protection and on long-held conceptions of federalism.

    As Justice Clarence Thomas explained in McDonald: “In Heller, this Court held that the Second Amendment protects an individual right to keep and bear arms for the purpose of self-defense, striking down a District of Columbia ordinance that banned the possession of handguns in the home. The question in this case is whether the Constitution protects that right against abridgment by the States. (McDonald, pg. 217).” Thus the question in McDonald was whether the Second Amendment should also apply to the states. The Court answered in the affirmative, by a narrow 5-4 decision.

    American Thinker gave an excellent presentation of the case: “The most important job of the government is the protection of its people. That protection involves their physical safety and the security of their property. It means providing police presence to deter criminals before they commit crimes and harsh penalties for offenders whose crimes were not deterred. The fact is that most crimes cannot be deterred because the bad guys don't generally mug people in front of the officer on patrol. Since the police can't be everywhere, people need a way to protect themselves. And that was how Otis McDonald felt when he walked into a Chicago police station and applied for a .22-caliber pistol two years ago. As the lead plaintiff in a lawsuit challenging Chicago's 28-year handgun ban, McDonald, a 76-year-old retired maintenance engineer, was a sympathetic figure: an elderly man trying to protect himself from violent hoodlums preying upon his neighborhood.” [He was also a neighborhood activist, proposing alternative policing strategies to make his neighborhood safer; his efforts earned him death threats from local gangs].

    “One would think that granting McDonald the right to protect himself would be a no-brainer. After all, it's common knowledge that many street gangs are equipped with enough firearms to take on the Taliban. Our feckless justice system has been proven inadequate to disarm the thugs that roam freely throughout the country. Therefore, why not allow the potential victims of those thugs to at least have a fighting chance. How insane is it to tell people that they are prohibited from being armed during a continuous war on crime, especially when they live in crime-ridden areas like Chicago.” By the way, if there is a ban on legal handguns, who is responsible for all the gun violence? Was Chicago Mayor Daly able to explain? Apparently he made no attempt to support the plaintiffs’ case to the Supreme Court but rather suggested that the Justices do not understand the nature of crime.

    The Supreme Court was given statistics from the Chicago Police Department which showed that the City’s handgun murder rate actually increased since the ban was enacted and that Chicago residents now face one of the highest murder rates in the country. They were given statistics to show that guns increasingly end up in the hands of criminals, gang members, and others who are mal-intentioned. It is also a statistical fact that legal gun owners are exponentially less likely to commit a crime. Bob Weir, a former detective sergeant in the New York City Police offered his views on gun control laws: “We have often heard a scenario in which a law-abiding citizen, unable to wait for assistance any longer, took action against an intruder and lived to talk about it. One of the scariest scenes I can imagine is one in which I'm awakened in the middle of the night by strange sounds coming from another room of the house and I have no weapons to protect my family…. During my twenty years as a cop, I took a lot of guns off the bad guys, none of which were registered. How could they be? Bad guys aren't allowed to have registered guns! Only good guys have that right. Hence, when you make gun possession illegal for the good guys, the bad guys will be the only ones with guns.”

    It is also worth noting that in the weeks leading up to the decision, Chicago suffered a surge in gun violence, with between 26-55 shootings per week and many of them being fatalities. Bob Weir commented: “We'll never know if some of those lives would have been spared had the victims been armed. But one thing seems obvious: If the guys with illegal guns knew that the rest of the population was unarmed, they could kick down any door and have their way with the residents. The only thing stopping them now is the knowledge that many people have guns and are willing to use and capable of using them to protect their families. We've all heard tape recordings of people who dialed 911 as someone was breaking into their home only to be told that the police may be several minutes away. In cases where the caller was armed, shots could be heard as the intruder gained entry and tried to attack the caller.”

    The Supreme Court held that the right to own a gun (bear arms) is a fundamental right, one that is firmly rooted in our history and heritage, and as such, citizens cannot be denied this right by any State due to the Fourteenth Amendment’s “Due Process” clause and its “Privileges and Immunities” clause. Justice Samuel Alito’s opinion for the majority of the Court stressed the “Due Process” clause as the Constitutional provision to secure this individual right. The most compelling opinion, however, came from Justice Clarence Thomas who used the Fourteenth Amendment’s “Privileges and Immunities” clause to support the right of gun ownership.
    
    Justice Thomas agreed that the Fourteenth Amendment makes the Second Amendment right to keep and bear arms, as recognized in Heller, fully applicable to the States. However, he asserted, there is a path to this conclusion that is more straightforward and more faithful to the Second Amendment’s text and history. He agreed with the majority’s opinion as advocated by Justice Alito that the Second Amendment right as “fundamental” to the American scheme of ordered liberty [see Duncan], and “deeply rooted in this Nation’s history and traditions.” (Glucksberg, pg. 721). But, as Thomas noted, the Fourteenth Amendment’s Due Process Clause, which speaks only to “process,” cannot impose the type of substantive restraint on state legislation that the Court asserts. Rather, the right to keep and bear arms is enforceable against the States because it is a privilege of American citizenship recognized by Section 1 of the Fourteenth Amendment, which provides, among other things, that: “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.” In interpreting this language, it is important to recall that Constitutional provisions are “written to be understood by the voters.” [see Heller]. When the Court consulted legal authorities in regard to the understanding of “ordinary citizens” at the time of the 14th Amendment’s ratification, it was clear that the public understood the Clause to protect constitutionally enumerated rights, including the right to keep and bear arms.

    In addition to his legal analysis, Justice Thomas also discussed the history of the Fourteenth Amendment, the use of discriminatory “Black Codes” to prevent blacks from gun ownership, and even the history of Democratic Party racism (which I’ll address in greater detail below). Thomas pointed out how the Republican-controlled Congress, while engaged in debate on the Fourteenth Amendment, explicitly referred to the right to keep and bear arms as a fundamental right deserving of protection.  As Frances Rice of the National Black Republican Association pointed out in her article “Supreme Court Affirms Racist Origins of Gun Control: “Republican Senator Samuel Pomeroy described three ‘indispensable safeguards of liberty under our form of Government,’ one of which was the right to keep and bear arms.” Senator Pomeroy, representing Kansas in the mid-19th century, served in the United States Senate during the Civil War. “Pomeroy said: ‘Every man should have the right to bear arms for the defense of himself and family and his homestead.  And if the cabin door of the freedman is broken open and the intruder enters for purposes as vile as were known to slavery, then should a well-loaded musket be in the hand of the occupant to send the polluted wretch to another world, where his wretchedness will forever remain complete.’ “

    Perhaps the more noteworthy opinion in McDonald came from Justice Sonia Sotomayor who concurred with Justice Stephen Breyer’s dissent which held that there is no fundamental right to bear arms in the US Constitution (even though the plain language would appear to say so. As the Founders often explained, there is a reason the Constitution is short and clearly written. It’s so that Americans can read and easily understand it). As Breyer wrote: “I can find nothing in the Second Amendment’s text, history or underlying rationale that could warrant characterizing it as ‘fundamental’ insofar as it seeks to protect the keeping and bearing of arms for private self-defense purposes.” It is noteworthy because when Sotomayor was before the Senate Judiciary Committee for her confirmation hearings, she gave a very different impression of how she viewed the Second Amendment. Senate Judiciary Chairman Patrick Leahy asked her specifically: “Is it safe to say that you accept the Supreme Court’s decision as establishing that the Second Amendment is an individual right?” She replied: “Yes, sir.” Leahy even commented on her position: “I do not see how any fair observer could regard her (Sotomayor’s) testimony as hostile to the Second Amendment’s personal right to bear arms, a right she has embraced and recognizes.”

    I think it’s safe to say that this most recent Supreme Court decision on gun control not only gives Americans some measure of faith in the Supreme Court which was finally able to look to the intent of the Constitution in rendering this important decision (although only 5 were able to do so), but it also gives well-meaning citizens the right to defend themselves against an extreme level of crime that our government is not willing to do anything about. Bob Weir says it best: “We all owe Mr. McDonald our gratitude because his courage in taking on Chicago's gun ban has resulted in a ruling that reinforces what the champions of liberty meant when they wrote about not infringing on the people's right to bear arms. We're also indebted to five of the nine justices, who decided that the Second Amendment is the law of the land, superseding local gun control laws. Writing for the majority, Justice Samuel Alito made it clear that "self-defense is a basic right ... individual self-defense is 'the central component' of the Second Amendment." Can I have an ‘amen.’”

    Conservatives see this decision as a victory. But it’s a bittersweet victory. It’s a victory that we got by only the slimmest of margins. Only 5 of the 9 Justices understood the right to bear arms as applicable to the states through the Fourteenth Amendment. Yet the Court had no problem for over 50 years determining that the Fourteenth Amendment requires religion to be taken out of every facet of public life in all states, schools to be forcibly integrated, and students to be bussed all over towns and cities to achieve racial equality and to be forced to mix with students who don’t necessarily share the same commitment to education and social development. While we rejoice in this most fragile of victories, we must realize that we would have gotten this decision had had the Supreme Court not used the Fourteenth Amendment in the first place to gut the states of their inherent sovereign powers and leave the Tenth Amendment a sham.

    The Fourteenth Amendment, which was adopted in the aftermath of the Civil War, fundamentally altered our country’s federal system, and more specifically, shifted power away from the States to the government. Those who remember their Constitutional history will recall the issue that weighed most heavily on the States in designing a Constitution that would bind them all and would create a federal (“federation of states”) government to centralize some degree of power over them. It was the issue of how much power they would need to cede to the federal government… how much sovereign power they would have to give up. They wanted to give up no more than absolutely necessary to provide for a common defense, for foreign affairs, and to regulate interstate commerce so that all states were treated fairly in trade. The Federalist Papers, written by James Madison, John Jay, and Alexander Hamilton, were a series of essays designed to “sell” the Constitution to the states for ratification. The essays made a very compelling case for the philosophy and motivation of the proposed system of government. They went into great detail to explain how the states would retain most of their sovereign power and explained the guarantees provided within the Constitution for that very purpose. Although the Federalist Papers did not recommend nor see the need for a Bill of Rights (since the Constitution was series of limited and clearly-enumerated powers; all others were simply not granted to the government), the states and popular opinion carried the day. All those who feared a strong centralized government demanded a Bill of Rights as a guarantee that such government would never be able to trample upon those fundamental rights that the colonies just fought for and won their independence over. As Thomas Jefferson explained: “A bill of rights is what the people are entitled to against every government on earth, general or particular, and what no just government should refuse." The States could remain sovereign and establish local life to reflect the will of their populations, but the government can never establish national policy to deny our rights. Hence, our Constitution reflected a sharing of power, between the States and the federal government.

    And this sharing of power was a perfect system to protect the kinds of liberties our Founders deemed needed to be secured and protected. The Founders understood that throughout history, people have been ruled by systems that range anywhere from King’s Rule (tyranny) at one far end to complete Anarchy at the other far end (which is the absence of law). The Founders recognized the bad in both. Tyranny was oppressive and people were merely “subjects” with only those freedoms that the ruler was generous enough to give them. With anarchy, people alone, without laws, would become a mob and would resort to the lowest forms of human behavior. Consequently, they wanted to establish a system of “People’s Law,” which is someplace halfway between King’s Rule and Anarchy – halfway between tyranny and mob rule. Under “People’s Law, the government is kept under the control of the people and political power is maintained at the balanced center with enough government to maintain security, justice and good order, but not enough government to abuse the people and intrude in their lives. But how to constitutionally structure this government? That was the question.

    The answer, the Founders believed, was minimal government with maximum individual liberty. And the way to achieve this was twofold: First, the Founders realized that most of the people’s power would have to remain within the State and relegated to the individual State. And second, the powers delegated to the government would have to be limited and clearly-defined. James Madison described the division of labor between the states and the federal government in the Federalist No. 45: “The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the state governments are numerous and indefinite. The powers reserved to the several states will extend to all the objects which, in the ordinary course of affairs, concern the lives, liberties, and property of the people, and the internal order, improvement, and prosperity of the state.”

    Then along came the Fourteenth Amendment which destroyed this delicate and protective balance.

    It is crucial to understand the times in which the Fourteenth Amendment was adopted and for what purposes it was enacted, because in the 20th Century, the Supreme Court began to intentionally disregard the clear intention behind it use it in a manner to disrupt the very structure of our government, the one which our Founders labored so tirelessly and fiercely to protect.

    The Fourteenth Amendment was adopted in the aftermath of the Civil War. The North had just defeated the South and had abolished slavery. Not only was the North inflicting its will on the South, but it was apparent that it was going to try to punish the South as well. In many Southerner’s eyes, the Reconstruction Era (re-building the South and re-defining its society) was an era of punishment. It isn’t hard to imagine the bitter sentiments that the South was feeling. President Lincoln intended for a seamless transition for the South back into the Union – a transition centered on peace, respect, charity, and amnesty. After all, his only goals were emancipation and saving the Union. In his message to Congress in December 1862, he linked emancipation to the longevity of America: “"In giving freedom to the slave, we assure freedom to the free -- honorable alike in what we give, and what we preserve. We shall nobly save, or meanly lose, the last best, hope of Earth." His sentiments were mirrored by the words of General Ulysses S. Grant regarding the South’s surrender at Appomattox on April 9, 1965. When the Union forces gloated over their victory with artillery salutes, Grant demanded they stop. As he later explained: “We did not want to exult over their downfall. The war is over. The rebels are our countrymen again.” And in his very own words, in his second inaugural address, Lincoln promised: “With malice toward none; with charity for all; with firmness in the right, as God gives us to see the right, let us strive on to finish the work we are in; to bind up the nation's wounds; to care for him who shall have borne the battle, and for his widow, and his orphan — to do all which may achieve and cherish a just and lasting peace, among ourselves, and with all nations.”

    Unfortunately, Lincoln didn’t live to see the Union effectively reunite. He was assassinated only days after the surrender – on April 14th. President Andrew Johnson tried to continue Lincoln's lenient plans but the radical Republicans in Congress rejected his terms. They felt that the terms were not harsh enough. They wanted to punish the South for starting the war, and perhaps even too, to establish their political power in the reunited territory. The North was bitter about the need to go to war (which it blamed on the South) and the South was still bitter about losing its slave-based agricultural economy because of demands by the North, which it felt had no right to interfere with. Lincoln had emancipated all slaves, in September 1862, in areas that were in rebellion against the Union (the question of what to do with slaves in the border states remained however). On January 31, 1865, Congress passed Thirteenth Amendment, which was ratified by the states that December, abolishing slavery once and for all. But it wasn’t quite enough. Congress knew that freed slaves could still be harassed by bitter states. Consequently, it drafted the Fourteenth Amendment which of course, the states would have to ratify. It reflected Republican determination that southern states should not be readmitted to the Union without additional guarantees to black people. But the radical Republicans put in place a plan whereby southern states would be “forced” to adopt the Fourteenth Amendment. (They would also be “forced” to adopt the Fifteenth Amendment as well, giving blacks the right to vote).