Constitutional Law Update: Second Amendment Now Applicable To States

By Chris Simpkins

On June 28, 2010, the Supreme Court of the United States handed down its decision in McDonald v. City of Chicago. The Court, per Justice Alito’s majority opinion, held by a vote of 5-4 that the Second Amendment right to keep and bear arms is fully applicable to the States by virtue of the Fourteenth Amendment. In so doing, the Court rendered a Chicago ban on private possession of handguns in the home unconstitutional and verified that the Second Amendment is applicable to state governments as well as the federal government.

Admittedly, after the Court’s watershed decision in District of Columbia v. Heller, which originally established the individual Second Amendment right to keep and bear arms for purposes of self-defense, the McDonald decision was not extremely surprising. The more interesting debate was focused on which path the Court would take to arrive at their determination. Would they again use the Fourteenth Amendment? Or, would they upset nearly 130 years of precedent and base their holding on the Privileges or Immunities Clause? Indeed, the petitioners devoted the substantial portion of their brief and oral argument time towards making the case for a much bolder interpretation of the Privileges or Immunities Clause.

In the end, the Court again preferred the more familiar path of the Fourteenth Amendment. The Court affirmed that self-defense is a basic right and a central component of the Second Amendment. Because self-defense is of the utmost importance in ones home, citizens must be permitted to use handguns for the lawful purpose of self-defense in their own residence.

Not to be outdone, the Chicago City-Council quickly passed new gun regulations by a vote of 45-0 four days after the Supreme Court’s decision. Chicago’s new law is only marginally weaker than the gun ban that was tossed out by the Supreme Court on June 28, and will likely find its way back to the Supreme Court very soon.