Bench Memos

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Supreme Court Misfires on McDonald Argument


In 1861, America began a war to end slavery. Shortly thereafter, we began another battle — Reconstruction — to end the incidents of slavery, culminating in the ratification of the Thirteen, Fourteenth, and Fifteenth Amendments. But from today’s arguments in McDonald v. City of Chicago, you would never know any of that had ever occurred, let alone that the Fourteenth Amendment — including specifically its Privileges or Immunities Clause — was enacted for the specific purpose of putting an end to a Southern tyranny that included the systematic disarmament of newly free blacks and their white supporters in order to keep them in a state of servile terror.

McDonald involves a challenge to Chicago’s decades-old handgun ban, which has shown itself to be no more effective at limiting violent crime than the one struck down by the Supreme Court two years ago in District of Columbia v. Heller. But it appears that any similarity between the two cases may end there.
Heller, in which I was co-counsel to the plaintiffs, was a milestone case because it represented the Supreme Court’s first serious look at the question of gun rights, specifically whether the Second Amendment protects an individual’s right to keep handguns at home for lawful self-defense. The Court correctly said yes to that question, rejecting the nonsensical idea that the Second Amendment only protects some sort of “collective” right on the part of states to arm their own militias. Notably, both Justice Scalia’s majority opinion and the principal dissent authored by Justice Stevens were couched in overtly originalist terms. In other words, although the justices split 5–4 on the outcome of the case, all nine seemed to agree that their interpretation of the Second Amendment should be guided by an appreciation of the relevant historical context. And while the two sides disagreed significantly about key aspects of that history (including the prevalence of gun regulation during the Founding era), they certainly paid meticulous attention to it.

And that is where this morning’s arguments in McDonald present such a jarring contrast to the justices’ reasoning in Heller.

McDonald presents two questions, one easy and one a bit more difficult. The easy question is whether the right to keep and bear arms applies not just to the federal government, which was the issue in Heller, but to state and local governments as well. The answer is yes, undoubtedly. The harder question is how.

Unlike the federal government, states are not directly bound by the Bill of Rights. Instead, state and local governments are bound by the Fourteenth Amendment, which requires them to ensure that all people receive both due process and equal protection of the laws and forbids them from abridging “the privileges or immunities of citizens of the United States.” Over the years, the Supreme Court has “incorporated” nearly all of the two-dozen or so discrete provisions in the Bill of Rights against the states, but it has done so through a controversial doctrine called “substantive due process.” Lawyers for the would-be gun owners in McDonald argued, correctly, that a more originalist approach would be to take a fresh look at the text, history, and original public meaning of the Fourteenth Amendment and conclude, as have virtually all modern scholars and practitioners familiar with the issue, that the right to keep and bear arms is protected first and foremost by the Privileges or Immunities Clause — not the modern doctrine of substantive due process.

Powerful support for that approach comes not just from the congressional debates over the adoption of the Fourteenth Amendment and the extensive coverage those debates received in leading periodicals, but also from the abundant historical evidence about what prompted Congress to propose the Fourteenth Amendment in the first place. Simply put, it was the tyranny of Southern states and their brazen attempt to keep blacks in a state of constructive servitude while terrorizing anyone who presumed to stand in the way. The legislative record contains extensive reports of forced disarmaments and lynchings, often at the hands of militias and other officials acting under color of state law. Reconstruction Republicans were outraged by that conduct, as was the public. As a result, few (if any) rights were mentioned as regularly in connection with the Fourteenth Amendment as the right to keep and bear arms.

That history is stark, undisputed, and, if today’s arguments are any indication, seemingly irrelevant to the Court’s decision whether the Fourteenth Amendment protects the right to keep and bear arms. If so, that’s a tragedy. Correction: the continuation of a tragedy.

Clark Neily is a senior attorney with the Institute for Justice and was one of three attorneys who litigated on behalf of gun owners in District of Columbia v. Heller.


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