McDonald v. City of Chicago
The Supreme Court struck down Chicago's near-total ban on handgun possession, ruling that the Second Amendment right to keep a gun for self-defense, first recognized against the federal government two years earlier, also applies to states and cities.
The 5-4 decision means state and local governments can no longer flatly ban handguns in the home, though the Court stressed that many other gun regulations remain untouched. The case splintered over exactly why the right applies to states, with four justices relying on due process and one justice, Thomas, relying on a different, rarely used part of the Fourteenth Amendment.
How it got here: A federal trial court and the Seventh Circuit rejected the challenge, relying on 19th-century Supreme Court cases holding the Second Amendment did not apply to states; the Supreme Court then agreed to hear the case.
The Case in Depth
What happened
Chicago and its suburb Oak Park had laws that effectively banned nearly all private citizens from possessing handguns. Otis McDonald and several other Chicago residents, worried about crime in their neighborhoods, wanted to keep handguns in their homes for self-defense but were legally barred from doing so. After the Supreme Court struck down a similar federal handgun ban in the District of Columbia in 2008, they sued to challenge the local bans as well.
The question before the Court
After ruling that the Second Amendment protects a personal right to own a handgun for self-defense, did the Supreme Court say that right also applies against city and state governments, not just the federal government?
Why it matters
City and state handgun bans like Chicago's and Oak Park's can no longer stand, and gun owners nationwide gained a constitutional backstop against the most restrictive local gun laws. Cities that want to regulate firearms must now design rules that stop short of outright bans, and courts across the country face years of litigation sorting out which regulations survive.
What changes now
The case returns to the lower courts, which must now apply the newly incorporated Second Amendment right to strike down Chicago's handgun ban and similar local laws. This is a final merits ruling, not a temporary order, but it leaves open exactly which other gun regulations will survive constitutional challenge; that question will be worked out case by case in the lower courts for years to come.
What this does not decide
The Court expressly left in place regulations like bans on gun possession by felons or the mentally ill, restrictions on carrying guns in schools or government buildings, and conditions on commercial gun sales. It also did not decide whether the right extends outside the home, what standard of review applies to specific gun laws, or whether the Privileges or Immunities Clause should be reinterpreted more broadly, a question four justices left unresolved.
Concurrences and dissents
Concurrence — Justice Scalia
Justice Scalia joined the Court's opinion in full but wrote separately to rebut Justice Stevens's dissent. He argued that a historically grounded approach to substantive due process is far less subjective and far less intrusive on democracy than Stevens's approach, which he said lets judges pick which rights to protect based on personal moral judgments dressed up as flexible 'guideposts.'
Concurrence in part — Justice Thomas
Justice Thomas agreed the Second Amendment applies fully to the states but rejected the majority's due-process reasoning, arguing the Due Process Clause cannot logically create substantive rights because it speaks only to 'process.' He argued the right is instead protected as a privilege of American citizenship under the Fourteenth Amendment's Privileges or Immunities Clause, and would have revived that long-dormant clause rather than relying on substantive due process.
Dissent — Justice Stevens
“First, firearms have a fundamentally ambivalent relationship to liberty.”Stevens's central objection that guns, unlike other incorporated rights, can also threaten others' safety.
Justice Stevens argued the real question was whether the specific liberty interest in keeping a handgun in the home is protected by the Fourteenth Amendment's own liberty guarantee, not whether the Second Amendment is mechanically 'incorporated.' He concluded that firearms possession is different from other incorporated rights because guns pose direct physical danger to others, states have always heavily regulated them, and the issue is better left to local democratic experimentation rather than a nationwide judicial rule.
Dissent — Justice Breyer
Justice Breyer, joined by Justices Ginsburg and Sotomayor, argued that the private self-defense right was never the Framers' primary reason for the Second Amendment, that there is no historical consensus it is 'fundamental,' and that applying it to the states would force judges to make difficult empirical judgments about gun policy that legislatures are far better equipped to handle. He would have left gun regulation to the ordinary democratic process.
How the Court got there
The legal reasoning, step by step
- The Court reviewed how it has decided, over more than a century, which Bill of Rights guarantees also bind state and local governments — a process called selective incorporation, where a right becomes binding on states if it is 'fundamental to our scheme of ordered liberty' and 'deeply rooted in this Nation's history and tradition.'
- The Court declined to revisit its narrow 1873 reading of the Fourteenth Amendment's Privileges or Immunities Clause (from the Slaughter-House Cases), which had blocked that clause from being used to apply Bill of Rights guarantees to the States, and instead analyzed the question under the Due Process Clause, as it has done in nearly all incorporation cases for decades.
- Relying heavily on its 2008 decision recognizing an individual right to keep a handgun in the home for self-defense, the Court found that self-defense is a right recognized since ancient times and was treated as fundamental by the Framers, by state constitutions adopted after the Bill of Rights, and by the Reconstruction-era Congress that wrote the Fourteenth Amendment specifically to protect freed slaves' right to own guns against Southern disarmament campaigns.
- The Court rejected Chicago's argument that a right can be denied to states so long as it is applied without racial or other discrimination, reasoning that this would gut the substantive protection the Bill of Rights gives to other rights like free speech and unreasonable searches, and would treat the Second Amendment as a uniquely disfavored right.
- Because the right to keep and bear arms for self-defense met the same fundamentality test the Court applies to every other incorporated right, the Court concluded it must bind the States on the same terms it binds the federal government, unless a specific reason tied to precedent counseled otherwise.
Doctrinal impact
Cases affected by this decision
Limits United States v. Cruikshank (92 U. S. 542)
The Court held this 19th-century case does not block a due-process analysis of whether the right applies to states.
Limits Presser v. Illinois (116 U. S. 252)
Along with Cruikshank, treated as predating modern incorporation analysis and not controlling here.
Reaffirms Slaughter-House Cases (16 Wall. 36)
The Court declined to disturb this 1873 decision's narrow reading of the Privileges or Immunities Clause.
Reaffirms District of Columbia v. Heller (554 U. S. 570)
The Court relied on and extended Heller's recognition of an individual right to keep handguns for self-defense.