McDonald v. Chicago

Following is the case brief for McDonald v. Chicago, 561 U.S. 742 (2010)

Case Summary of McDonald v. Chicago:

  • Chicago residents, concerned about their own safety, challenged the City of Chicago’s handgun ban.
  • Building on the Court’s recent decision in Heller, the petitioners sought to have the Second Amendment apply to the States, either under the Fourteenth Amendment’s Privileges or Immunities Clause, or by incorporation through the Due Process Clause.
  • The lower courts rejected petitioners’ argument, finding that the handgun ban was constitutional.
  • The U.S. Supreme Court reversed, holding that the Second Amendment applies to the States through the Fourteenth Amendment’s Due Process Clause.

McDonald v. Chicago Case Brief

Statement of the Facts:

The City of Chicago and a nearby village have laws that effectively ban handgun possession by virtually all private citizens.  Following the Supreme Court’s decision in District of Columbia v. Heller, petitioners filed suit, claiming that the handgun ban left them vulnerable to crime.  The petitioners sought a declaration that Chicago’s handgun ban violated the Second and Fourteenth Amendments to the Constitution.

Specifically, petitioners argued that the Second Amendment applied to the States by virtue of the Fourteenth Amendment’s Privileges or Immunities Clause (representing a novel application of that infrequently cited clause).  In the alternative, petitioners argued that the Second Amendment applied through the Fourteenth Amendment’s Due Process Clause (which has become a common path for Federal rights to be incorporated to the States).

Procedural History:

  • Both the trial court and Seventh Circuit Court of Appeals rejected petitioners’ challenge.
  • Those courts noted that the Seventh Circuit recently affirmed the constitutionality of a handgun ban, that Heller did not discuss whether the Second Amendment applied to the States, and that Seventh Circuit precedent controlled the case.
  • The U.S. Supreme Court granted certiorari.

Issues and Holdings:

  1. Does the Second Amendment apply to the States by virtue of the Privileges or Immunities Clause?  No.
  2. Should the Second Amendment be applicable to the States by incorporation under the Due Process Clause? Yes.


The Seventh Circuit Court of Appeals decision is reversed and remanded.

Rule of Law or Legal Principle Applied:

The Fourteenth Amendment’s Due Process Clause allows the Second Amendment right – to keep and bear arms for the purpose of self-defense – to be applied to the States by incorporation.


This case is a natural extension of Heller, which did not have to reach the incorporation question because the law at issue in that case was from Washington D.C., to which Federal law directly applied.

The Bill of Rights, as originally conceived, only applied to the Federal Government, not the States.  Over time, however, many of the rights in the Bill of Rights have been deemed applicable to the States by incorporation under the Fourteenth Amendment’s Due Process Clause.  The standard by which the Court determines whether a particular right should be incorporated to the States is whether the right is fundamental to the country’s scheme of ordered liberty, or “deeply rooted in this Nation’s history and tradition.”

Based on the Court’s view of legal history, the right to keep and bear arms was first to protect the States from Federal military intrusion.  However, history indicates that self-defense was the “central component” of the Second Amendment.  Accordingly, because the right to keep and bear arms is viewed as fundamental and “deeply rooted” in this country, the Second Amendment should be deemed applicable to the States.

As for the Privileges or Immunities Clause, the Court need not decide the case on that grounds, nor disturb the Court’s precedent, which has a very narrow reading of that Clause.

Concurring and Dissenting Opinions:

Concurring Opinion (Scalia):

Concurring in the opinion, Justice Scalia spent his entire concurrence disagreeing with Justice Stevens’ dissent.  Justice Scalia asserted that his “originalism” approach, which the Court adopted in this case, is not presented as a perfect approach.  Rather, it is the best available approach to avoid unrestrained judicial activism.

Concurring in Part, and Concurring in the Judgment (Thomas):

The Privileges or Immunities Clause is a much more direct, and preferable, way in which to apply the Second Amendment to the States.  Based on the language of the Clause, it is clear that the right to keep and bear arms is a “privilege” of citizenship.

Dissenting Opinion (Stevens):

The real question in this case is not whether the Due Process Clause “incorporates” the Second Amendment, but whether the Constitution sees a person’s right to a particular type of gun as fundamental.  The Chicago law bans handguns, not all guns.

The Court’s opinion focuses solely on history, i.e., “originalism,” to reach its conclusion.  However, that approach lacks the sophistication and nuance required for a substantive due process analysis.  A proper analysis looks at history, to be sure, but it also tries to harmonize Court precedent, the current state of affairs, and the use of sound judgment.  Justice Scalia’s “originalism” purports to be an objective, neutral approach.  It is, in fact, just as subjective as a “living Constitution” approach, if not more so because Justice Scalia and his followers on the Court get to cherry pick the history that suits their position.

Also, when looking at the standard of a “scheme of ordered liberty,” the Court was wrong to forget that one person’s liberty to have a handgun will necessarily infringe on another person’s liberty to be free of armed violence.  The Court’s decision is a dramatic change in the law that could have destructive consequences for communities throughout the country.  It would be wise to proceed more cautiously.

Dissenting Opinion (Breyer):

There is nothing in the text, history, or underlying rationale that demonstrates that the right to a handgun for self-defense is fundamental.  In fact, the amateur historical analysis present in Heller and in the Court’s opinion here has been debunked by true historians.  Simply stated, the Second Amendment has to do with a “well regulated Militia,” not self-defense.


McDonald v. Chicago is the natural progression of the conservative view of the Second Amendment discussed in Heller.  What is most significant about McDonald is the dialogue between Justice Stevens, with an eloquent discussion of the ‘living Constitution,’ and Justice Scalia, with his adherence to his so-called “originalist” approach.  The back and forth is reminiscent of similar exchanges between Justice Brennan and Justice Scalia years earlier.

Student Resources:

Full Text of Opinion

Hear the Oral Arguments