近畿大学学術情報リポジトリ

全文

(1)McDonald. v. City of Chicago:. McDonald. Incorporation. v. City. Incorporation. of the. of the Second. of Chicago:. Second. Amendment. Huizenge. Shawn. I.. Introduction. II.. Background. III.. Legal. Arguments. The Supreme v.. I.. Amendment. Court's. Holding. Comment. Introduction. In the landmark. case of District of Columbia v. Heller, the United States. Supreme Court held that the Second Amendment Constitution. protected. to the United States. the individual right to keep and bear arms for. the purpose of self-defense.(2). The Heller Court struck down a District. of Columbia law which severely restricted. the possession of rifles and. shotguns and completely banned possession of handguns in the home.° While the Heller decision clarified an area of law long neglected, it left a number of significant involved the District. questions unresolved. of Columbia,. First, given that Heller. a political division of the federal. (1) Associate Professor, Faculty of Law, Kinki Japan (2) District of Columbia v. Heller, 554 U.S. L. Ed. 2d 637 (2008). (3) Heller, 554 U.S. at 629. — 117 —. University,. 570;. Higashi-Osaka,. 128 S. Ct.. 2783;. 171.

(2) i_q.-RT&T. '059. government,. the question. arms. in the home. well.(4). Second,. measures". remained. would. having. also apply allowed. on the possession. prohibitions that. 2 - 3. on possession. for. would. when reviewing. by felons. meet that. Amendment. Court. the right. outline, about. considered. as. regulatory. longstanding. ill, the Court noted. standard. the first. what. other. of review. to keep and bear. Due Process. the McDonald. decision. of these. In a plurality. Amendment's. of. to apply. arms. two issues decision,. protected. and thus applied Clause.(7). is significant. Court. holds rights. the Court. to the states. via. As this review shall. not only for what. protected. in the. by the Second. to keep and bear arms but also for outlining. by which the Supreme to be applicable. such as those. and did not specify. right. the right. lawful. or the mentally. was a fundamental. the Fourteenth. and local government. "presumptively. test or what. case of McDonald v. City of Chicago.° that. to state. to keep and bear. such questions.(5). The Supreme. found. the right. of firearms,. such a list was not exhaustive. regulations. whether. it says. the process. by the Bill of Rights. to the states.. (4) Heller, 554 U.S. at 619 n. 23. (5) Specifically, the Heller Court stated, "Nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms." Heller, 554 U.S. at 627 n. 26. (6) McDonald v. City of Chicago, 561 U.S. 3025; 130 S. Ct. 3020; 177 L. Ed. 2d 894 (2010). (7) McDonald, 130 S. Ct. at 3026. —118 —.

(3) McDonald. II.. v. City of Chicago:. handguns. in their. the petitioners of violence. homes. including. shall. and another. prevented. by city ordinances.. possession. Specifically, . . . possess. registration by private. the term. . . . commonly Following suit in federal and related. known. firearms unless. they stored. in their. homes. laws provided such person. for such firearm."). Similarly,. that is the. The code. thus effectively. in the city.°. "pistols,. the Supreme. Court's. district. seeking. Chicago. that. of. banning. the Village. for any person to possess . . . any firearm". as handguns.". court. in alternative. the firearms. of most handguns,. to include. threats. home had been the target. the Chicago. citizens. among. of specific. owned handguns. certificate. to keep. noted,. involved. . . . any firearm. of Oak Park made it "unlawful and defined. whose. from keeping. of a valid registration. then prohibited their. Amendment. who wished. As the Court. activist. These individuals. city limits,. no person. citizens. for self-defense.. a community. policing. several burglaries.° outside. were private. were some who had been the target. neighborhood. holder. of the Second. Background. The McDonald petitioners. ". Incorporation. and Oak Park. revolvers,. guns and small arms. °° Heller decision, a declaration ordinances. several that. violated. plaintiffs. filed. the handgun. ban. the Second. and. Id. at 3026, 3027. Id. at 3026 citing Chicago, Ill. Municipal Code Sec. 8-20-040(a) (2009). 00) McDonald, 130 S. Ct. at 3026, citing Chicago, Ill. Municipal Code Sec. 8-20-050(c) (2009). (11) McDonald, 130 S. Ct. at 3026, citing Oak Park, Ill. Municipal Code Secs. 27-2-1 (2007) (8) (9). — 119 —.

(4) M598/0 2 • 3 '4 Fourteenth. Amendments to the United States Constitution.. These cases. were consolidated with the same district judge who rejected Petitioners' claims.(12) The lower court explained that Heller did not address the issue of incorporation. against. state. government. and. it was therefore. bound to follow the Seventh. Circuit's past decisions upholding. constitutionality. ban.(13). of a handgun. On appeal, the Seventh Circuit affirmed,. also declining to predict. how the Supreme Court would apply the Second Amendment governments.". Thereafter,. the Supreme Court granted. the original McDonald case and later granted Rifle Association. (hereinafter. the. certiorari. to state. certiorari. on. to the National. NRA) to file as a Respondent in support. of Petitioner.(15). M.. Legal. Arguments. There are generally two arguments. as to how the right to keep and. bear arms contained in the Second Amendment Most advocates, including the majority of the Petitioners,. argued. that. may apply to the states.. of amicus briefs filed on behalf. as a fundamental. right the Second. (12) McDonald, 130 S. Ct. at 3027. (13) McDonald, 130 S. Ct. at 3027, citing NRA, Inc. v. Oak Park, 617 F. Supp. 2d 752, 754 (ND Ill. 2008). (14) NRA, Inc. v. Chicago, 567 F.3d 856-858 (7th Cir. 2009). (15) Thus, while the NRA is referred to as a Respondent throughout the McDonald opinion, it was aligned with the original McDonald Petitioners in seeking to apply the Second Amendment against state governments. — 120 —.

(5) McDonald v. City of Chicago: Incorporation Amendment. applied. Fourteenth. Amendment."). that. the. right. immunities. to the states. Advocates. to keep. of United. through. and. bear. States. of the Second Amendment. the Due Process of the second. arms. citizenship. was. approach. among. guaranteed. Clause. the. Privileges. or Immunities. Clause.. of the. parties. McDonald. case. both. arguments.. Interestingly,. Respondents. focused. Petitioners privileges. A .. or immunities. privileges First,. or immunities. not abridge.a88. effort. Second,. or. the original. on the more. immunities. the right. of United. McDonald controversial. the narrow. was gravely. mistaken. argument. may. be. to keep and bear arms is among. States. citizenship. interpretation. Clause given by the Supreme. Cases decision. claim,. approach.". as follows.. the privileges. main. of these. Petitioners. Petitioners'. summarized. Immunities. their. addressed. Each. while the NRA and City of Chicago. on the due process. concentrated. McDonald. The. however,. or. by the Fourteenth. long-neglected in the. argued. privileges. Amendment's three. of the. that states. of the Privileges. may or. Court in its 1873 Slaughter-House. and should. be overruled.(19). (16) This process, discussed below, is termed "incorporation." (17) Given the considerable overlap between the alternative arguments, this review shall focus on each of the litigants' principal arguments: The Privileges or Immunities Clause for Petitioners and the Due Process Clause for the NRA, City of Chicago and Village of Oak Park Respondents. (18) Brief for Petitioners p. 9. (19) Brief for Petitioners p. 42 referencing the Slaughter-House Cases, 83 U.S. 36; 21 L. Ed. 394 (1873) — 121 —.

(6) m59gM 2 • 3 ,151Petitioners. argued that while the term. may not be familiar. "privileges or immunities". to modern ears, it was popularly. encompass pre-existing fundamental in the Bill of Rights.°). understood. to. rights along with those enumerated. Among the many examples offered was the early. decision of Corfield v. Coryell which, they noted, was long considered the leading interpretive authority under the Federal Clause.". on the scope of "privileges or immunities". Constitution's. Article IV Privilege or Immunities. In Colfield, Justice Washington. explained that, although. not. exhaustive, the list of what was included in the privileges or immunities guaranteed. by the federal government. was relatively. such rights as protection by the government, liberty,. the right. to acquire. broad, including. the enjoyment. and possess property,. of life and. the pursuit. of. happiness and safety, and the right to travel and reside in any other state to conduct business or trade.n The Article IV Privileges or Immunities Constitution. Clause of the United States. applies to the national government. and Coifield was decided. long before the Fourteenth. Amendment was ratified in 1868. However,. Petitioners. argued. during. Fourteenth. Amendment. that. the. debate. both supporters. and. over adoption opponents. of the. were still. p. 16, 17. (20) Brief for Petitioners Corfield v. Coryell, 6 (21) McDonald, 130 S. Ct. at 3067, referencing F. Cas. at 551-552 (CC ED Pa. 1825). in Corfield (22) Other Article IV rights noted by Justice Washington include the right to claim the benefit of habeas corpus, to institute and maintain actions of any kind in state courts and exemptions from higher taxes or impositions than those paid by the other citizens of the states. McDonald, 130 S. Ct. at 3067 n. 6, referencing Corfield, 6 F. Cas. at 551-552. — 122 —.

(7) McDonald v. City of Chicago: Incorporation of the Second Amendment following the Coifield definition and there was a consistent understanding of what these terms meant at the time of ratificationP Petitioners context. maintained. that when viewed in its proper historical. this understanding. Second Amendment. right to keep and bear arms.. claimed, the Fourteenth other fundamental the Thirteenth status. of privileges or immunities. Amendment's. They noted that while. Petitioners. out how the disarming of freedmen by southern. Petitioners. also pointed. militia was commonly. cited as one of the more serious Reconstruction-era press:2°. they. ended slavery, it did not improve the legal. of free blacks and their supporters.. northern. Moreover,. framers meant to apply this and. rights against the states. u. Amendment. included the. violations. in the. argued that the Civil Rights Act of 1866. and Freedmen's Bureau Act of 1866 represented Congress' initial response to southern citizenship latter. and granted. restated. specifically arms.". civil rights abuses.. the right. guaranteed. The former act established. blacks the same rights. as white citizens; the. to full and equal benefit freedmen. birthright. of the laws and. "the constitutional. right. to bear. AI,. The Clause. Fourteenth in particular,. Congress. that. (23) Brief. for. Amendment, they. and. argued,. the Civil Rights. the. Privileges. was the result. of growing. Acts alone would. Petitioners. p. 23-25.. Petitioners. p. 12, citing. or Immunities. prove. concern. insufficient. in to. (24) Id. at 26. (25) Id. at (26) Id. at (211 Brief. 10. 11. for. — 123 —. 14 Stat.. 173, 176 (July. 16, 1866)..

(8) M596P6 2 • 3 achieve their goals. Southern. Faced with the threat. resistance,. of presidential. veto and. as well as the earlier Supreme Court decisions in. Dred Scott v. Sandford and Barron ex rel Baltimore, Congress responded by constitutionalizing. these protections. and forcing states to recognize the. basic civil rights of American citizens, including the right to bear arms.' Given. this. interpretation. understanding,. Petitioners. argued,. of the Privilege or Immunities. the. Clause by the Supreme. Court in the Slaughter-House Cases was seriously mistaken. the Privileges or Immunities from national historical statements. citizenship,. By reading. Clause to only protect rights which arise they said, the Court failed to consider the. context of the Fourteenth by the drafters. narrow. indicating. Amendment. and the numerous. the state governments. were the. problem from which the freedmen needed protection.(29) Moreover, they claimed, construing on the creation American. of the federal. citizenship. as those inherent,. B.. rights related to national government. citizenship as dependent mistakenly. fails to include pre-existing. fundamental. natural. implies that rights such. rights noted in Corfield.(4. NRA Respondents. As with. the Petitioners. , the NRA Respondents. began their appellate. (28) Brief for Petitioner p. 48 citing Dred Scott v. Sandford, 60 U.S. 393 (1857) (Denying citizenship to persons of African descent whether slave or free); Barron v. Baltimore, 32 U.S. 243 (1833) (Holding the Bill of Rights only applied to the federal government). (29) Brief for Petitioners (30) Id. at 55.. p. 50.. — 124 —.

(9) McDonald v. City of Chicago: Incorporation argument Rights the. the civil rights. Acts, citing. numerous. understanding. protect the. outlining. that. an individual. Fourteenth. fundamental secure. in the. the. arguing. that. guaranteed state. NRA. literal. rights. straightforward: precedent stronger. This Under. the. case. than. for. to. 'liberty,'. right. through Due the. of. was intended. to. The drafters. of. this. right. to be. necessary. first. more. to. or immunities. conventional. approach. to keep and bear be incorporated. the Fourteenth. Supreme. right. on the privileges. should. Process. in the Second. 'a free society,'. Civil. in support. foundation. the right. incorporation. for any other. guaranteed. "the. the. Amendment. The NRA Respondents arms. took. as a fundamental. Clause.. sense,. viewed. the. of free citizens."(32). Respondents. in the Second. records. arms.(3°. argued,. focused largely. and local governments. Process. they. prompted. Amendment. to keep and bear. most. While the Petitioners. which. and debate. Fourteenth. Amendment,. all of the other. claim,. articles. the. right. abuses. of the Second Amendment. arms. against. Amendment's. Due. argument. was. incorporation Court's. selective. of the. Second. incorporation Amendment. is. in the Bill of Rights. argued. that. Amendment. 'free government,". the right. to keep and bear. is a right. —fundamental'. which is "at the base. (31) One such example from Harper's Weekly, Jan. 13, 1866: "The militia of this country have seized every gun and pistol found in the hands of the (so called) freedmen of this section of the country. They claim that the statute laws of Mississippi do not recognize the negro as having any right to carry arms." Brief for NRA Respondents p. 11 n. 3. (32) Brief for NRA Respondents p. 21. (33) Id. at 5, 6. (34) Id. at 30. — 125 —.

(10) fr. M598P6 2 • 3. of all our civil and political institutions." Amendment. They noted the Second. is "the only provision of the Bill of Rights that declares. its own essential link to liberty and a free society." Heller, the NRA Respondents. explained,. In addition, citing. "the fundamental. nature of the. right to keep and bear arms was recognized even before the founding of this country" fundamental. and that the Heller Court. the. link between the right to keep and bear arms and individual. liberty." (36)They maintained arms and liberty Fourteenth. "repeatedly referenced. the link between the right to keep and bear. was still fresh in the mind of the framers. Amendment.m. of the. Finally, they argued, the liberty protected by. the right to keep and bear arms is liberty not only from government tyranny,. but the liberty to defend oneself and one's family from violent. acts of private citizens as well.m Even outside the standard incorporation argued that Reconstruction-era. test, the NRA Respondents. history compelled the conclusion that the. right to keep and bear arms is protected by the Due Process Clause of the Fourteenth Amendment.m As the NRA Respondents stated, "E ven if this Court had never incorporated another right, and even if one were to entertain selective incorporation incorporation. jurisprudence. with respect to the. of any other elements of the Bill of Rights,. the Second Amendment. would still need to be incorporated. (35) Id. at 30, 31. (30 Id. at 31. (3.7) Id. at 32. Id. at. doubts about the Court's. 33, 34.. (39) Id. at 34, 35. — 126 —.

(11) McDonald. because. v. City of Chicago:. the. commonly and bear. C.. City. Fourteenth understood. arms. against. of Chicago. Incorporation. Amendment to secure. and Village. In contrast to the arguments Village of Oak Park Respondents. was. the. deprivation. of the Second. federal. by state. of Oak Park. Amendment. intended right. and to keep. governments.". 4°). Respondents. outlined above, the City of Chicago and focused the majority of their appellate. brief on reasons why the Second Amendment should not be incorporated against. the states. under the Fourteenth. Amendment's. Due Process. Clause. Their anti-incorporation First,. argument. may be summarized. citing Palko v. Connecticut, the City of Chicago. maintained. as follows. Respondents. that the provisions of the Bill of Rights to the states only. if it is "implicit in the concept of ordered liberty." 4D This, Respondents claimed, meant that "neither liberty nor justice would exist if [the right] were sacrificed." 42) Stated differently, due process only protects rights " recognized by all temperate and civilized governments, from a deep and universal sense of its justice." 43 In our federal system, they maintained, many possible approaches. to gun regulation. free to "perform their role as laboratories. exist and states should be. for experimentation. to devise. (40) Id. at 35. (41) Brief for City of Chicago Respondents p. 8 , citing Palko v. Connecticut, 302 U.S. 319, 325 (1937). (42) Brief for City of Chicago Respondents p. 9 , citing Palko v. Connecticut, 302 U.S. at 326. (43) Brief for City of Chicago Respondents p. 9, citing Chicago, B. & Q. R.R. v. City. of Chicago,. 166 U.S. 226, 238 (1897). — 127 —.

(12) idit)(*it. M59SM 2 • 3. various. solutions". City. to the question. of Chicago. firearms,. Respondents. and handguns. of ordered. the neighboring of both. and accidental. handguns,. they asserted,. and related. criminal. regulation. would. Amendment,. but they argued. that. would threaten. than. to firearms. in the. of ordered. liberty.°. concept systems. of England,. on handguns.' as Japan, (44) (15) (46) (0 (48) (t0) (50). Brief Id. at Id. at Id. at Id. at Id. at Id. at. Canada. Respondents. Denmark,. and Australia noted similar. and Finland. for City of Chicago 12, 13. 13. 16. 17. 21. 21, 22.. which, Respondents. — 128 —. not all firearms. firearm. of ordered. maintained,. Despite sharing. of state. liberty.° the approach share. our. to keep and bear. is not common. inherent origins,. strict. restrictions although. Second. regulation. those that. enforce. on. gun violence. on the ability. sensible. Amendment. and. problem. of the. the view that the right. Second. Chicago. of curbing. especially. public. Restrictions. recognized. system. of. than intrude. face a serious. incorporation. countries,. supports. as embodied. means. with their. rather. violence.°. Respondents. in other. common law traditions, arms. foster. City of Chicago. regulation. gun. regulation. including. any restriction. to experiment. the. a significant. they noted,. through. and local government. Similarly,. cities,. Respondents. be abolished. that. may preserve. are an effective. activity.°. rather. argued. Many. of Oak Park,. regulation.". represented. regulation. liberty.°. Village. gang-related. also. in particular,. safety issue such that stricter on a system. of firearms. in the the legal. regulations. in countries developing. p. 11, 12.. such. from. a.

(13) McDonaldv. City of Chicago:Incorporation of the SecondAmendment different legal tradition, should still be recognized as countries which respect "ordered liberty:61) The City of Chicago and Village of Oak Park Respondents also insisted that the manner in which firearms rights were dealt with by the states does not support incorporation.. Noting 'that the decision in. Heller protects weapons "in common use," Respondents pointed out the wide variation in firearm regulation from jurisdiction to jurisdiction including bans on certain classes of weapons such as handguns. As they emphasized, "No other substantive Bill of Rights protection has been regulated nearly as intrusively."62' Moreover, Respondents argued, the framing-era history of the Second Amendment. likewise does not support. incorporation.4. According to Respondents, the Second Amendment is unique because it was codified in the Bill of Rights not for the purpose which is now claimed to connect the right to the concept of ordered liberty (i.e. selfdefense) , but rather for the purpose of protecting the militia system against intrusion by the federal government.64) In sum, the City Respondents' contended that Congress was ultimately concerned with discriminatory measures against freedmen, which they noted was addressed by adopting a non-discrimination principle in the Fourteenth Amendment.. However, they argued, this. did not include a limitation on state firearms regulation.m (51) (52) (53) (54) (55). Id. Id. Id. Id. Id.. at at at at at. 22. 25. 31. 37. 7, 64. — 129 —.

(14) *,59t6. IV.. The. 2 • 3 14. Supreme. Court's. Holding. In a five to four decision, the Supreme Court reversed the Seventh Circuit's decision axid held the Second Amendment right to bear arms applied to state and local governments through the Fourteenth Amendment/. Writing for a four justice plurality, Justice Alito. determined this right was incorporated through the Due Process Clause.m In a separate concurrence, Justice Thomas agreed that that the right should be incorporated against the states but criticized the plurality's reliance on the Due Process Clause, arguing instead that the Privileges or Immunities Clause represented a stronger approach. Justice Stevens and Justice Breyer wrote in dissent. Justice Stevens argued that the due process "liberty" interest did not protect the right to possess a handgun in the home because of the "fundamentally ambivalent relationship" firearms pose to liberty.67) Justice Breyer argued against due process incorporation because it would infringe on state police power with respect to public safety.68). A.. The Privileges. In considering (56) Chief Justice Justice Alito.. or Immunities. Clause. the applicability. of the Second. Roberts,. Scalia. Justice. and. Amendment. Justice. Kennedy. against joined. 6) McDonald, 130 S. Ct. at 3107 (Justice Stevens dissenting). (58) Justice Ginsberg and Justice Sotomayor joined Justice Breyer dissent. — 130 —. in.

(15) McDonald v. City of Chicago: Incorporation of the Second Amendment state. and local governments,. historical. relationship. he explained, government Marshall. Justice. originally. applied. to the. federal. In the early case of Barron v. Baltimore, Chief Justice. rejected the idea that any of the individual rights protected. in the first eight amendments government.(6° Amendments. were meant. This was settled fundamentally. doctrine. changed. may not abridge. as limitations until. the. Specifically, Section 1 of the Fourteenth. deprive. the. between the Bill of Rights and the states.' th As. the Bill of Rights. alone?. Alito began by reviewing. on state. the post-Civil. nation's. federal. War. system.. Amendment provides that a state. "the privileges or immunities of the United States" or. "any person of life, liberty,. or property,. without due process. of law." (67) However, as Justice Alito recognized, the Supreme Court's SlaugherHouse decision rendered. the Privileges. or Immunities. Clause largely. meaningless?. The Slaughter-House Court concluded that the Privileges. or Immunities. Clause only protected. existence. to the Federal. Constitution,. those rights. government,. "which owe their. its National. or its laws" and that other fundamental. dated the creation of the federal government. Character,. its. rights which pre-. were not protected.. Thus,. as noted above, under the narrow reading adopted under Slaughter-House, the Privileges or Immunities. Clause only protected. right to travel to the seat of government 130 S. Ct. at 3028. (59) McDonald, (60) Id. (61) Id. at 3028, citing Barron, 32 U.S. at amend. XIV. (62) U.S. CONST. (63) McDonald, 130 S. Ct. at 3028,. 3029.. — 131 —. rights such as the. to assert a claim against it,. 247..

(16) ~CFM. 59. 2• 3. to transact business with the government, to seek government protection and share. its offices, and to engage in administering. functions.°. The clause did not, as suggested. government. by the Slaughter-House. dissent, protect rights which are fundamental in their nature, such as "th e right of every man to pursue his profession without the imposition of unequal Privileges. or discriminatory or Immunities. restrictions.. "°. Significantly,. the. Clause did not apply any part of the Bill of. Rights against the states.° While Justice Alito acknowledged have. criticized. interpretation. the. that a number of legal scholars. Slaughter-House Cases decision. of the Privileges and Immunities. declined to follow Petitioner's. argument. Alito pointed out that Petitioners. for its. narrow. Clause, he nonetheless. to overrule that case.. Justice. themselves were unable to identify. the full scope of the Privileges or Immunities. Clause and that there is. no consensus on that issue among scholars who criticize the SlaughterHouse decision:6e) More importantly, offered an alternative. he emphasized, due process analysis. means of resolving the issue without having to. disturb past precedent.° Justice. Thomas disagreed.. Writing. separately,. he criticized the. (64) Id. at 3028, citing the Slaughter-House Cases, 83 U. S. at 79. (65) McDonald, 130 S. Ct. at 3029, citing the Slaughter-House Cases, 83 U. S. at 96-97. (66) McDonald, 130 S. Ct. at 3028. (67) Id., at 3030, citing Amar, Substance and Method in the Year 2000, 28 Pepperdine L. Rev. 601, 631 n. 178 (2001) (68) McDonald, 130 S. Ct. at 3030. (69) Id. at 3030, 3031. — 132 —.

(17) McDonald v. City of Chicago: Incorporation reliance. on the Due Process. Clause. as a source. He also criticized the lack of a "f undamental" from "non-fundamental" to a pre-Slaughter-House and the Privileges. the text of the amendment. B .. The. Due. clear. Process. of substantive. standard. rights. understanding. or Immunities. of the Second Amendment. to. and argued. which would. and the historical. distinguish for a return. of the Fourteenth. Clause. rights."). Amendment. better. account. for. basis for its adoption.n. Clause. Justice Alito's Due Process Clause analysis may be divided into three parts.. The. incorporation analysis.. first. discussed. historical. doctrine and the Supreme The second. Amendment. the. considered. under this standard.. the. development. of the. Court's modern due process applicability. Finally,. of the Second. in the third, Justice Alito. considered and rejected the main counter arguments. offered by the City. of Chicago and Village of Oak Park Respondents.. 1.. Standard. of Review. Justice. Alito. explained. 19th. century. when. late. whether rights. the Due Process. that the. due process. Supreme. Clause. Court. prohibited. listed in the Bill of Rights.". Under. (70) McDonald, 130 S. Ct., at 3062 (Justice (71) Id. (72) Id. at 3031. — 133 —. analysis. originated. first states. began from. the Court's. Thomas. in the. to consider infringing. early. on. due process. concurring)..

(18) M59W6 2 • 3 -14 analysis, the Court did not hesitate to find specific rights in the Bill of Rights to be beyond the scope of Fourteenth protection.. Amendment. Due Process. For example, while freedom of speech and freedom of the. press were found to be covered under the Due Process Clause, the right to indictment. by grand jury was not.4. Justice Alito's plurality opinion added that originally the only rights protected against state encroachment under the Due Process Clause were rights. "of such a nature that they are included in the conception of due. process of law." (74)Justice Alito recognized that the Supreme Court used various formulations. to describe the scope of due process including the. well-known phrasing of Palko v. Connecticut,which stated that due process includes those rights that are "the very essence of a scheme of ordered liberty:4. Moreover, he noted, when considering. the necessity of a. procedural safeguard, the Court sometimes framed the question in terms of whether. "a civilized system could be imagined that would not accord. the particular. protection."4. Last, Justice Alito explained, even when a right was held to fall. (73) In the case of Hurtado v. California, 110 U.S. 516 (1884), the Supreme Court held that due process does not require states to indict by grand jury. However, shortly thereafter in the case of Chicago, B. & 0. R. Co. v. Chicago, 166 U.S. 226 (1897), the Supreme Court found that due process prohibits states from taking private property for public use without just compensation. (74) McDonald, 130 S. Ct. at 3031, citing Twining v. New Jersey, 211 U.S. 78, 99 (1908). (78 McDonald, 130 S. Ct, at 3031, citing Palko v. Connecticut, 302 U.S. 319 (1937). (70 McDonald, 130 S. Ct. at 3032, citing Duncan v. Louisiana, 391 -U .S. 145, 149 n. 14 (1968) . —134 —.

(19) McDonald v. City of Chicago: Incorporation of the Second Amendment within the scope of due process protection, the remedy available for state infringement. sometimes. varied. from those. offered. against. federal. violations!" Justice Alito emphasized, however, that modern due process analysis has changed. in three. important. respects.. The current. standard,. he stressed,. imagined. that would not accord the particular. question,. he stated, is "whether a particular. is fundamental. governing. "is not whether any 'civilized system. [can] be. protection.'". Bill of Rights guarantee. to our scheme of ordered liberty and system of justice."". Justice Alito also noted that while the Court has not incorporated right enumerated. modern standards. to. by the Bill of Rights met the requirements. under the Due Process Clause.". due process analysis,. Moreover, under the. the Court no longer. between federal and state governments.. to be incorporated. every. in the Bill of Rights, it has "shed any reluctance. hold that rights guaranteed for protection. The. applies different. If the right is found. against states, it shall be "enforced against the States. under the Fourteenth. Amendment according to the same standards. that. protect those personal rights against federal encroachment."". McDonald,. 130 S. Ct. at 3032, citing. Betts. v. Brady,. 316 U.S. 455. (1942) (The Sixth Amendment did not require appointment of counsel when defendants were prosecuted in state court unless the absence of an attorney led to convictions "lacking in . . . fundamental fairness." Betts was later overturned by Gideon v. Wainwright, 372 U.S. 335 (1963)). (78) McDonald, 130 S. Ct. at 3034, citing Duncan, 391 U.S. at 149 n. 14. (79) McDonald, 130 S. Ct. at 3034, citing Duncan, 391 U.S. at 149 n. 14. (80) McDonald, 130 S. Ct. at 3034. (81) Id. at 3035, citing Malloy v. Hogan, 378 U.S. 1, 10 (1964). — 135 —.

(20) iER* 2.. t. 59g M 2. Applicability. 3 '6'-. of the Second Amendment. Justice Alito found that the result in Heller unmistakably. confirmed. the right to keep and bear arms was fundamental.° The due process. analysis. was straightforward.. Justice. Alito's. plurality opinion began by noting that Heller acknowledged self-defense to be "a basic right, recognized by many legal systems. from ancient. times to the present day.". In addition, he echoed Heller in its holding. that. is the "central. individual. self-defense. component". of the right. protected in the Second Amendment and that the need for defense of self, family and property is most critical in the home."' explained that the Heller decision confirmed. Justice Alito further. that this right applied to. handguns which represent "the most preferred firearm in the nation to `k eep' and use for protection of one's home and family."' Justice background. Alito's. plurality. opinion. then. outlined. the. historical. of the right to keep and bear arms in order to demonstrate. the right was "deeply rooted in this Nation's history and tradition."' Quoting extensively from Heller, he charted the development of the right from its origins in the 1689 English Bill of Rights assessment. that the right to keep and bear arms was a fundamental. right of Englishmen. (82) McDonald, (83) (84) (85) (86). and Blackstone's. and was considered equally fundamental. 130 S. Ct.. to the. at 3036.. Id. Id. Id. Id. at 3037, citing Washington. v. Glucksberg,. —136—. 521 U.S. 702, 721 (1997)..

(21) McDonald v. City of Chicago: Incorporation drafters. of the Bill of Rights.67'. national Justice. government Alito. would. noted. that. While acknowledging. disarm. the right. valued for purposes. of self-defense". and. attempts. described. denounced. in the. constitutional Similarly, and freedmen Congress' Bureau. how. northern. the. press. as. "violent. Alito detailed the disarming soldiers. of the right. Bureau bill was amended. to keep and bear arms,. that. the unamended. Justice intended. Alito concluded. pre-Civil. as noted. Alito agreed War. that. precedent. alone were not sufficient accepted. that. constitutional. 130 S.. would. in state. appellate. convinced. Congress. As he noted,. 3040. n. 23. — 137 —. reference. "the to the. believe. the right." Act of 1866. argument. that. "Today,. above,. vetoes,. legislative. was understood. the rights. n. 22.. and. in the Freemen's. Presidential. to achieve these goals.. at 3037.. militias. in the South.(91). resistance,. Ct.. of their. of the Civil Rights. Petitioner's. Amendment. were. black soldiers. have protected. of blacks. basis for protecting. (87) McDonald, (88) Id. at 3038. (89) Id. at 3039, (90) Id. at 3040 (91) Id. at 3041. in Kansas. at least some members. Southern. the Fourteenth. period. Act of 1866."). the drafters. in the. the antebellum. to include an express. alone. to end the disarmament. However, Justice. that. "highly. to bear arms. even though. version. was. of former. serving. the. over time,. infringement". Justice. right. faded. Free-Soilers. to keep and bear arms.'. guarantee. had. throughout. to disarm. by ex-Confederate. the fear that. to keep and bear arms. Act of 1866 and the Civil Rights. Freedmen's. militia. rights. explicit. of the Second Amendment. and. remedies. it is generally to provide. set out in the Civil Rights. a.

(22) id&. t6596. Act of 1866."m ratification,. 2 • 3 '6'. Citing. he concluded. considered. the right. deserving. protection.m. 3.. from the Congressional. Response. that the drafters. and after. Amendment. to be a fundamental. right. Arguments. The McDonald plurality standard. before. of the Fourteenth. to keep and bear arms. to Opposing. debates. then drew on the due process incorporation. discussed above and the historical intent of the drafters. Fourteenth. Amendment. to answer. the Respondents'. of the. objections. to. incorporation. Justice Alito devoted considerable attention argument. that. measures against. Congress. merely. meant. to outlaw. freedmen and that a ban on firearms. as long as it was done in a non-discriminatory Fourteenth. Amendment. terms. was acceptable While the. language. operated as more than just an antidiscrimination. The City Respondents, of the Freedmen's. in the. Clause, it was clear, he explained, that the. this were not the case, the incorporation sense.'. discriminatory. fashion.. includes antidiscrimination. form of the Equal Protection Amendment. to respond to the City's. rule.. If. doctrine would make little. said Justice Alito, ignored the explicit. Bureau. Act of 1866.. Rather. than just a. (92) Id. at 3041. (93) Id. 049 Id. at 3043. As Justice Alito noted, states would be free to violate aspects of the Bill of Rights which have already been held to apply, such as the First Amendment rights to freedom of speech or freedom of religion, so long as they did so in a non-discriminatory manner. — 138 —.

(23) McDonald v. City of Chicago: Incorporation of the Second Amendment prohibition on racial discrimination, right to bear arms." meant to prohibit vulnerable. Similarly,. the. Fourteenth. Moreover, he explained, if Congress had only. racial discrimination,. to continued. the armed militia. the law recognized a "constitutional. oppression. blacks would have remained. as the worst violators. and state officials acting. City Respondents'. Amendment. were often. under state authority.. antidiscrimination. theory. of the. failed to consider the position of whites in the. South who opposed the Black Codes.. As he noted, if Congress meant. only to prevent racial discrimination. in the possession of arms, loyal. whites in the South would have been left without the ability to defend themselves,. much as had been the case for the Free-Soilers. in Kansas. before the Civil War!" Justice remaining. Alito concluded that. the City of Chicago Respondent's. objections to incorporation. were "at war with our central. holding in Heller: that the Second Amendment. protect as personal right. to keep and bear arms for lawful purposes, most notably for self-defense within the home."(6 The McDonald plurality. flatly rejected the argument. other countries. either ban or severely limit handgun. is accordingly. no such right. reasoning, standard. ownership there. under the Due Process Clause.. said Justice Alito, is inconsistent used in incorporation. that because. This. with the long-established. cases under Duncan which focus on the. (95) Id., citing the Freedmen's Bureau (98) McDonald, 130 S. Ct. at 3043. (97) Id. (98) Id. at 3044. — 139 —. Act. of. 1866. 14 Stat.. 176-177..

(24) `059WO 2 • 3 4 relationship. of the right at issue to " [the American]. scheme of ordered. liberty." (99) Moreover, he explained, if this approach were followed, many of the rights already incorporated. against the states, such as the right. to trial by jury, the right against self-incrimination,. and the right to. counsel would no longer be applicable.° Justice Alito also turned argument. aside the City of Chicago Respondent's. that the Second Amendment was unique in that it implicated. public safety concerns.. As he noted, the right to keep and bear arms. was not the only constitutional. right that. generates. social costs.°. Rights which restrict law enforcement and the prosecution of crimes such as the speedy trial requirement. and Miranda warnings similarly fall into. the same category.° While Justice Alito acknowledged that conditions differ from region to region, it nonetheless. denied Respondent's. of federalism. are. inconsistent. Amendment.. As. he explained,. assertion. with incorporation under. precedent, if a Bill of Rights guarantee. the. Court's. is fundamental. system of justice, unless stare decisis cautions otherwise, binds the states. just as the federal. government.°. that principles of the. Second. incorporation to the American the guarantee This, he said,. (99) Id. (100)Id. (101)Id. at 3045. (le Id. citing Barker v. Wingo, 407 U.S. 514, 522 (1972) (reflecting on the serious consequences of dismissal for speedy trial violations); Miranda v. Arizona, 384 U.S. 436, 517 (1966) (White, J. dissenting) (objecting that the Court's rule would lead to an unknown of cases in which killers and rapists were set free). an McDonald, 130 S. Ct. at 3045, 3046. — 140 —. number.

(25) McDonald v. City of Chicago: Incorporation represents. a limitation. develop solutions Thus,. handgun such. consistent. while. McDonald. but not a complete. Court. a right. said. incorporates. V.. equally Justice. the Second. McDonald. the. Supreme. Heller. on. protected. to. federal. Alito,. " the. Amendment. separate. grounds,. the. to possess. Absent. to the. did not. Court's. come. McDonald is nonetheless The most incorporation represents. right. right. the a. stare decisis concerns,. and. state. governments.. Fourteenth. Amendment. recognized. Heller. as a surprise significant. important. to most. in a number. consequence. of the. Second. a remarkable. shift.. no clear. recent. in Heller."4. understanding. Amendment Prior. the. to bear. amendment. was only to be read as a means and held little relevance. are still a number. of questions. which. observers.. Second. arms.. the. remain,. in. However,. decision. is its. states.. This. in 2008, there. Amendment. Many. argued. of protecting. in modern. result. of respects.. against. an individual. system. the. to the Heller decision. whether right. decision,. of the McDonald. guaranteed. militia. authority. Comment. Given. was. agreed. for self-defense.°. applies. Accordingly,. Thomas that. in the home. ban on state. with local needs and values.°. Jusice found. of the Second Amendment. America.. even that. the. the antiquated While there. the Second Amendment. 00t, Id. at 3046. (In As noted infra, the plurality based incorporation on the Fourteenth Amendment's Due Process Clause while Justice Thomas based it on the Privileges or Immunities Clause. 000 McDonald, 130 S. Ct. at 3050. — 141 —.

(26) jEAUKit*. Z59kZ. 2• 3. now applies to state and local governments the federal government. in the very same manner as. and all must recognize the central holding in. Heller that an individual has a fundamental. right to possess handguns. in the home for the purpose of self-defense. McDonald is also noteworthy forty. years. Although. to incorporate. in that it is the first case in more than. a right. listed in the. Bill of Rights.°. a few rights listed in the Bill of Rights have not been held to. apply against the states, the Second Amendment is likely the last of the enumerated. rights. Amendment. Due Process Clause for the foreseeable future.(1°. Alito's. opinion. fundamental majority. that. which. other. will be incorporated. substantive. via the Fourteenth. due process. rights. Justice must be. to the American system of justice is also significant.°. of Supreme. Scalia's theory. Court justices now appear committed to Justice. of substantive. due process outlined. Glucksberg which limits the expansion rights to those In addition,. A. in Washington v.. of unenumerated. constitutional. "deeply rooted in history and tradition."(° while Justice Thomas. was alone advocating. a revival. 395 U.S. 784 (1969). (IN) Benton v. Maryland, (1O Hurtado v. California, 110 U.S. 516 (1884) (The Fifth Amendment right to indictment by grand jury does not apply to the states); Minneapolis v. St. Louis R. Co. v. Bombolis, 241 U.S. 211 (1916) (The Seventh Amendment right to trial by jury in civil cases does not apply to the states). The Supreme Court has not ruled on the applicability of the Third Amendment's prohibition on the quartering of soldiers during peacetime or the Eighth Amendment's prohibition on excessive bail and excessive fines. (IS McDonald, 130 S. Ct. at 3034, citing Duncan, 391 U.S. at 149. (111)McDonald, 130 S. Ct. at 3036 citing Glucksberg, 521 U.S. at 721. — 142 —.

(27) McDonaldv. City of Chicago:Incorporationof the SecondAmendment of the Privileges or Immunities Clause, the Supreme Court's treatment of the question itself is noteworthy.. As Northwestern University law. professor and Federalist Society founder Steven Calabresi has pointed out, Justice Thomas' concurring opinion constitutes a major victory for constitutional originalists as the first Supreme Court opinion in 135 years to argue this reading of the Fourteenth Amendment!" While the earlier Heller decision seemed to anticipate a number of potential attacks on gun regulation, the result in McDonaldwill almost certainly open the door to a vast number of challenges.. Many of the. cases that have already made their way to federal and state court are not particularly difficult, falling squarely within what some legal scholars have termed Heller's "Safe Harbor" of permissible firearm regulation!" Examples include cases involving individuals who have challenged felonin-possession convictions,(13 convictions for carrying firearms in "sensitive places," such as airports!" and convictions for possession of "dangerous and unusual weapons" such as machine-guns.°4. (Ill See: SCOTUSBlog, http//www.scotusblog.com/archive-mcdonald-vchicago-debate/, last accessed Oct. 18, 2011. (11 Brannon P. Denning & Glenn H. Reynolds, Lower Courts and the New Right to Keep and Bear Arms, 60 Hastings L.J. 1245, 1247 (2009). (111 As Professors Denning and Reynolds note, the most common right to bear arm challenges following Heller are by felons convicted of violating 18 U.S.C. §922(g)(1), which prohibits possession of firearms by convicted felons. (110 Denning & Reynolds, supra n. 112, at 1252 citing New York v. Ferguson, No. 2008QN036911, 2008 WL 4694552, at 4 (N.Y. Crim. Ct. Oct. 24, 2008). Denning & Reynolds, supra n. 112, at 1255 citing United States v. Gilbert, 286 F. App'x 383, 386 (9th Cir. 2008). — 143 --.

(28) $-59%. 2 • 3 I-6'. These relatively easy cases aside, the Supreme Court will eventually have to clarify what constitutes. permissible firearms regulation. of Heller's "Safe Harbor" provision. is beyond the scope of this review. which may eventually. outside. A complete discussion of these cases However, a few interesting. reach the Supreme. Court. examples. include questions. involving state laws banning firearm possession for individuals convicted of a domestic violence misdemeanor. or individuals subject to a domestic. order of protection;°1 questions involving what constitutes place;"°. as well as questions. a "sensitive. of what weapons are protected. by the. Second Amendment.° Finally, the McDonald decision is significant in that, like Heller, it did not establish a clear standard. of review for lower courts to apply when. reviewing these questions of appropriate the Court noted that the regulations under any standard of review.°. firearms regulation.. In Heller,. at issue in that case would fail. In McDonald, the plurality. and Justice. Thomas' concurrence both referred to the right as "fundamental". which. would normally suggest that strict scrutiny, the highest level of judicial. (11$ United States v. Skoien, 587 F.3d 803 (7th Cir. 2009). Orb United States v. Luedtke, 589 F. Supp. 2d 1018 (E.D.Wis. 2008). 01$ Denning & Reynolds, supra n. 112 , at 1253 citing People v. Yarbrough, 86 Cal. Rpter. 3d 674 (Cal. Ct. App.) (rejecting a challenge to conviction for carrying a concealed weapon in a residential driveway as the location fell within the "historical tradition" of prohibiting carrying dangerous weapons in "sensitive places.") 03 Eugene Volokh, Implementing the Right to Keep and Bear Arms For SelfDefense: An Analytical Framework and a Research Agenda, 56 UCLA LAW REVIEW 1443, 1475-1491 (2009) (ill Heller, 554 U.S. at 628, 629. —144 —.

(29) McDonald v. City of Chicago: Incorporation of the Second Amendment scrutiny, would be used to judge the regulation hand, the recognition. of acceptable restrictions. noted above seems to indicate something suffice.. Lower courts. conclusions reluctant. about. considering. the correct. to aggressively. standard. overturn. what the Supreme. on firearms. possession. less than strict scrutiny. of review but most appear. current. gun restrictions.°. This. the Second Amendment. may be. Court had in mind.°. What is certain,. however, now that McDonald has extended the Second Amendment state and local governments, firearms. related litigation. will. this issue have come to different. conservative approach to implementing exactly. at issue.°2° On the other. to. is that there is sure to be a great deal more to come.. (121)United States v. Caroline Products Co. 304 U.S. 144, 152 n. 4.(1938) (12D United States v. Marzzarella, 595 F. Supp. 2d 596 (W.D. Pa. 2009) (using. intermediate. scrutiny. to uphold. the. federal. prohibition. on. possessing a firearm with an obliterated serial number); United States v. Engstrum, 609 F. Supp. 2d 1227 (D. Utah 2009) (applying strict scrutiny and upholding the prohibition on possession of firearms by a domestic-violence misdemeanant). (12$1See Glenn H. Reynolds & Brannon P. Denning, Heller's Future in the Lower Courts, 102 Nw. U. L. Rev. 2035 (2008). — 145 —.

(30) •. •. I. ,. •. ". i,•. •; -1;.

(31)