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You’ve Come A Long Way, Baby

The Second Amendment finally applies to the states. Now the fight over gun rights really begins.

Brian Doherty
September 13, 2010

It was the morning of June 26, 2008, and Alan Gura had just won the first case he’d ever argued in front of the Supreme Court. Before taking a media victory lap to celebrate his historic vindication of the Second Amendment in D.C. v. Heller, Gura headed to the Court’s public information office for a moment of privacy. He called an old buddy from law school, the Chicago attorney David Sigale. “File it,” Gura said.

“It” became, almost exactly two years later, Gura’s second victory before the Supreme Court, McDonald v. Chicago. That case—decided, like the first one, by a narrow 5-4 majority—established that the gun rights recognized in the District of Columbia because of Heller must also be respected by states and cities outside the purview of the federal government. The Second Amendment’s protection now applies not just to D.C.’s 600,000 residents but to more than 300 million people across the country. 

The magnitude and reach of this earthquake in American law, which has touched off slow-motion aftershocks throughout the 50 states, are still uncertain. But whatever the future holds, Americans’ ability to own guns has, at long last, taken its place among the other individual rights spelled out in the Bill of Rights.

The invalidation of handgun bans throughout the country, accomplished in the space of two years, was sudden and surprising even to those who have spent decades laying the groundwork. Take Alan Gottlieb, founder and president of the Second Amendment Foundation, which began backing Gura’s various gun lawsuits after Heller. Since founding the SAF in 1974, Gottlieb has been hosting academic conferences, supporting legal scholars and historians, and filing carefully targeted lawsuits in defense of gun rights. Still, he says, “six years ago if you had said [the gun rights community would] see two cases get to the Supreme Court and two victories, I would have said, ‘Not in my lifetime. Maybe in someone else’s.’ ”

Gottlieb attributes the rapid turnaround in part to the brazen overconfidence of gun controllers. If Washington, D.C., had not challenged the March 2007 appeals court decision overturning its highly restrictive gun ban, the Supreme Court would not have had the opportunity to declare in Heller that the Second Amendment guarantees an individual right to arms. If Chicago had not insisted on maintaining its gun ban after the Heller decision, there would have been no McDonald, and the question of whether the Second Amendment binds states and cities would have remained unsettled. “We needed a little luck, and the other side gave us that luck,” says Gottlieb. “Our opponents are our biggest supporters.”

The Case and the Clients

Heller was momentous, but it left many issues unresolved. The majority opinion by Justice Antonin Scalia did not address the constitutionality of gun control laws that fall short of a complete handgun ban. Nor did it say whether the Second Amendment, like most other provisions of the Bill of Rights, applies to the states as well as the federal government, which has direct authority over the District of Columbia.

The next battleground presented itself. Chicago and several of its suburbs—Oak Park, Evanston, and Morton Grove—had laws very similar to the D.C. ordinance that was overturned in Heller. Immediately after Heller, Gura, the SAF, and the Illinois State Rifle Association challenged those laws in federal court. So did the National Rifle Association (NRA), which filed separate lawsuits. By the time the cases reached the U.S. Court of Appeals for the 7th Circuit in May 2009, only Chicago and Oak Park were still sticking to their gun bans. (One Chicago-area city, Wilmette, dropped its own gun laws after Heller without being sued.)

Under Chicago’s law, residents were not permitted to own a gun without registering it. But they weren’t allowed to register handguns, and they couldn’t register a long gun if it had already been in their possession. Re-registration of what few guns passed muster was required annually, and if a deadline was missed the weapon could never again be legally possessed in the city. The upshot of these restrictions was that Chicagoans were deprived of their Second Amendment right to use key tools of self-defense. So Gura selected four plaintiffs to represent a cross-section of the Second City.

Adam Orlov, a former cop from Evanston who now works in finance, has a libertarian intellectual background. He contacted Gura through friends at the Cato Institute while Gura was still fighting Heller, which was conceived and financed by the think tank’s current chairman, Robert Levy. As a police officer, Orlov says, he got tired of telling women who were home alone that if they found themselves in a situation where they needed a gun to save their lives, he’d be happy to come along afterward and file a report on the crimes committed against them.

David Lawson, a software engineer, is a member of both the SAF and the NRA. Like many Americans passionate about gun rights, Lawson had been following the Heller case, and he knew that a challenge to Chicago’s law was a likely next step. So he contacted Gura and volunteered himself and his wife Colleen, a hypnotherapist, as plaintiffs. The Lawsons had legally registered long guns in their Chicago home, but they did not consider a rifle or shotgun a suitable substitute for a handgun as a defensive weapon. Rifle rounds can travel dangerously far inside a residence, while shotguns fire a wide spray of pellets. Both are relatively hard to operate in an emergency, such as on the afternoon a few years ago when Colleen was home alone and three men tried to shove their way into the house through a sliding door.

The lead plaintiff, Otis McDonald, is a 76-year-old father of eight and grandfather of more than he can count; he rose from a maintenance engineer at the University of Chicago to head of his union local. McDonald had been embattled by drug dealers, suffering five break-ins in the Chicago home he shares with his wife. “I had a troubled neighborhood,” McDonald says. “I was pissed off about the way these kids that had grown up playing basketball in my backyard” had become a threatening gang. When you drive down his street, he says, “you don’t get by unless they let you get by.” He would see kids he’d known since they were 3 running down his alley, shooting at cars.

“I helped as much as I could help with their parents,” McDonald says, “until they told me they didn’t want to hear from me anymore in regards to them. I was just fed up. I had to find somebody, some organization, something with the resources and power, and then I knew that I could couple that with myself, with guts and the nerve to do what needed to be done.” McDonald started attending gun rights rallies down in Springfield. “I learned a lot about this Washington, D.C., case,” he says, “and that’s what made me know the Lord was guiding me. I just felt so sure they were going to win the case.” A friend McDonald met at a gun rally told Gura about him. When Gura needed clients, the two met and took to each other instantly.

The people who became the plaintiffs in McDonald v. Chicago all met with Gura and David Sigale, his local partner in the case, in the time between the March 2008 oral arguments in Heller and the decision three months later. McDonald recalls telling Gura: “Are you willing to go all the way? Then I’m your man, with the name and all. Furthermore, we are going to win.”

The Clause and the Controversy

Gura lost his Chicago case at the district court level and at the 7th Circuit, where it was consolidated in January with two of the NRA’s lawsuits. In a June 2009 decision, the 7th Circuit concluded that the outcome was dictated by 19th-century decisions in which the Supreme Court stated that the Second Amendment applies only to the federal government. By contrast, the U.S. Court of Appeals for the 9th Circuit had concluded in a separate case in April 2009 that the Second Amendment is binding on the states as well. The 9th Circuit noted that the 19th-century decisions had been handed down before the Supreme Court began to rule that the 14th Amendment, which explicitly protects Americans from violations of their rights by the states, incorporates most of the protections in the Bill of Rights. 

This judicial disagreement created a “circuit split,” enhancing the chances for Supreme Court review. (Due to eventual reconsideration of that 9th Circuit case, there was not technically a circuit split by the time the Supreme Court nevertheless decided to take up McDonald.)

When McDonald got to the Supreme Court in September 2009, Gura made a decision that unnerved many of his fellow Second Amendment defenders. All of them wanted the Supreme Court to rule that the 14th Amendment, which was passed in the wake of the Civil War, compelled states to respect the right to keep and bear arms, just as it compels them to respect the right to freedom of speech and various other provisions of the first eight amendments. But Gura disagreed with many of his allies about the best 14th Amendment argument for reaching that conclusion.

In a string of incorporation rulings stretching back to 1925, the Court had relied on the 14th Amendment’s provision that no state may “deprive any person of life, liberty, or property without due process of law.” This doctrine, known as “substantive due process,” has long drawn criticism from conservatives and libertarians for abusing what was intended to be a procedural guarantee. They have argued that it makes much more sense to “incorporate” rights via the 14th Amendment’s prohibition of “any law which shall abridge the privileges or immunities of citizens of the United States.” 

This critique finally found its Supreme Court champion in Gura, who decided it was time to argue that the right to bear arms was one of those “privileges or immunities” that states could not abridge.

The problem was that the Supreme Court, way back in 1873, had interpreted the Privileges or Immunities Clause so narrowly that it barely even impacted the states. For the Court to accept Gura’s argument, it would have to overturn that longstanding precedent, known as the Slaughterhouse Cases, and implicitly admit that all its incorporation rulings relying on the Due Process Clause had focused on the wrong provision of the 14th Amendment. Tactically, the much safer course was to urge the Court to proceed as usual, adding the Second Amendment to the list of guarantees incorporated in the Due Process Clause.

Yet Gura had a powerful case for reviving the long-neglected Privileges or Immunities Clause. The men who drafted and ratified the 14th Amendment explicitly sought to protect newly emancipated slaves from oppression by Southern governments, which had passed laws disarming blacks, interfering with their freedom to sign contracts and own property, and forbidding them from leaving their employers’ property without permission. 

The 14th Amendment’s Senate sponsor, Jacob Howard, cited the need to protect “the personal rights guaranteed and secured by the first eight amendments of the Constitution,” such as “freedom of speech and of the press” and “the right to keep and bear arms.” According to Howard, “The great object of the first section of this amendment is…to restrain the power of the States and compel them at all times to respect these great fundamental guarantees.”

Textual and historical evidence, gathered in Gura’s petition for certiorari to the Supreme Court, makes clear that Howard in his citation was referring to the Privileges or Immunities Clause. And Sen. Howard wasn’t the only one who thought that the clause, at the very least, imposed the Bill of Rights on the states. The general public, jurists, and legal scholars (including opponents of the 14th Amendment) also understood the Privileges or Immunities clause to mean that, as Gura quotes Judge George Paschal writing in a textbook on the Constitution from 1868, “the general principles which had been construed to apply only to the national government, are thus imposed upon the States.”

Since the 14th Amendment was intended to protect the rights covered by the ineffective civil rights statutes that preceded it, these “privileges or immunities” almost certainly were also meant to include economic rights that Southern states routinely violated: freedom of contract, the right to own and transfer property, and the right to make a living free from unreasonable interference by the state.

The Supreme Court ignored all this in the Slaughterhouse Cases, decided just five years after the 14th Amendment was ratified. Upholding a state-enforced slaughterhouse monopoly against a challenge based on the Privileges or Immunities Clause, Gura explains, the Court “declared pretty much that the only privileges and immunities protected by the 14th Amendment are those of national citizenship, rights that accrue out of the existence of the federal government, like the right to a passport or right to travel the waterways of the U.S. or to petition Congress.” According to the Slaughterhouse Court, the Privileges or Immunities Clause did not protect the fundamental, pre-existing rights (such as the right to armed self-defense) that the designers of the 14th Amendment thought they were protecting.

As McDonald made its way to the Supreme Court, the idea of reviving the Privileges or Immunities Clause excited and worried legal thinkers across the political spectrum. Progressives imagined it as a wedge for unenumerated welfare rights, while libertarians saw it as a way to battle oppressive economic regulations, protect property rights, and guarantee freedom of contract. Conversely, each side feared the other’s agenda.

Gura argues that potential abuse of the Privileges or Immunities Clause should not deter advocates from using it when appropriate. “If the Privileges or Immunities Clause guarantees certain unenumerated rights and those rights are violated, then great, have those rights vindicated,” he says. “But if people file unmeritorious litigation, that litigation will not succeed, the courts will do their job, and that wave of misguided litigation will subside.”

In any case, Gura says, the original understanding of the Privileges or Immunities Clause clearly included the right to arms, so that was the argument he led with. Certainly, asking the Court to overturn nearly 140 years of precedent was a bold move, to say the least. But supporters of Gura’s strategy were encouraged by the mere fact that the Court had decided to hear McDonald,  rather than a gun case that depended exclusively on the due process argument.

Privileges or Immunities fans also noted that Justice Clarence Thomas had, in a 1999 dissent, expressed a willingness to re-examine the meaning of the Privileges or Immunities Clause “in an appropriate case.” 

Observers who were eager for just such a re-examination were then miffed when the NRA petitioned the Court for oral argument time in Gura’s case so it could present a claim based on the Due Process Clause, which it considered the more viable strategy. The Court gave the NRA 10 minutes of Gura’s original 30. Gura, who was ready to present his own due process argument, resented the NRA for horning in on his turf and time, especially since the group had been similarly obstructionist in Heller, only coming on board as an ally when the case reached the Supreme Court.

In Gura’s McDonald brief, he explained that if the Court followed the standard for incorporation laid out in the 1968 case Duncan v. Louisiana, the Second Amendment definitely should make the cut. “The modern incorporation test asks whether a right is ‘fundamental to the American scheme of justice’…or ‘necessary to an Anglo-American regime of ordered liberty,’ ” he wrote. “Duncan’s analysis suggests looking to the right’s historical acceptance in our nation, its recognition by the states (including any trend regarding state recognition), and the nature of the interest secured by the right.” Given America’s history with guns, the gun rights provisions in 44 state constitutions, the decades-long trend toward fewer restrictions on the right to carry concealed handguns in public (with over 40 states now allowing such carrying for any citizen who meets simple objective standards, or with no restrictions whatever, compared to only eight such states in 1986), and the importance of self-defense to civilized life, Gura thought this argument was a slam dunk. By contrast, Chicago’s brief argued that if we can imagine a civilized society that does not respect a certain right, that right must not be fundamental and states shouldn’t have to respect it. 

Gura garnered 57 amicus briefs from across the political and ideological spectrum supporting incorporation of the Second Amendment, including one signed by 33 state attorneys general. Gura found it “gratifying to see state attorneys general who will come out and say, ‘We understand it’s better if our states are bound by this right.’ It’s rare to see a government official claiming they should be bound by some constitutional limitation.” The state law enforcement officials brought up a classic gun rights argument often mocked by liberal intellectuals: that a well-armed citizenry is a safeguard against tyranny as well as crime. Their brief stated that “the right to bear arms provides the foundational bulwark against the deprivation of all our other rights and privileges as Americans—including rights that have already been incorporated against the States by this Court.”

The Conclusion and the Concurrence

The possibility of resuscitating the Privileges or Immunities Clause generated the biggest buzz around McDonald going into March’s oral arguments. Although nearly everyone expected that the five justices who upheld the Second Amendment in Heller would apply it to the states, legal scholars across the ideological spectrum who agreed Slaughterhouse was a bad decision were eager to see if the Court would make the more daring move of saying so. 

But the biggest moment for Gura’s gambit came in a dismissive laugh line from Scalia, who has long been critical of substantive due process and whose professed originalism should have made him receptive to a privileges or immunities argument.

“Mr. Gura,” Scalia said early in the hearing, “do you think it is at all easier to bring the Second Amendment under the Privileges and Immunities Clause than it is to bring it under our established law of substantive due process? Why are you asking us to overrule 140 years of prior law, when you can reach your result under substantive due [process]? Unless you are bucking for a place on some law school faculty.”

Scalia, who called the Privileges or Immunities Clause “the darling of the professoriate,” decided he’d rather go with the precedential flow than vindicate the intentions of the 14th Amendment’s enactors. Although he thinks substantive due process is “wrong,” Scalia said, he has “acquiesced” to it. During the oral arguments, none of the justices showed the slightest interest in re-examining the Privileges or Immunities Clause, leaving unanswered the question of why they had chosen to review a case that emphasizes it.

The Court did, as expected, rule that states must obey the Second Amendment, and the majority opinion by Justice Samuel Alito relied on the Court’s usual substantive due process analysis, saying “there is no need to reconsider” the Slaughterhouse Cases. But Gura’s privileges or immunities argument did get a vindication of sorts. In a concurring opinion, Justice Clarence Thomas attacked the due process approach to incorporation as ahistorical, textually ungrounded, and unprincipled, noting that “neither side argues that the meaning they attribute to the Due Process Clause was consistent with public understanding at the time of its ratification.” Laying out the history of the 14th Amendment’s ratification, Thomas argued that the “privileges or immunities of citizens” were understood to include the protections in the Bill of Rights as well as additional, unenumerated rights.

Libertarian legal thinkers welcomed Thomas’ analysis with enthusiasm, hoping it was a sign of things to come. After all, Progressive-era doctrinal victories such as “rational review” of violations of constitutional rights had evolved over generations from being the opinion of a few radicals to the dominant ethos of American law. Randy Barnett, a libertarian lawyer thrilled by Thomas’ concurrence, points out that “It took 25 years for Justice Powell’s lone 1978 opinion in Bakke—in which he accepted ‘diversity’ as a rationale for affirmative action in schools—to be adopted by a majority of the Court.” Revolutions in American jurisprudence can and do happen, and several non-ruling but well-thought-out Supreme Court concurrences and dissents laid the roots for later ruling doctrines. Justice Oliver Wendell Holmes’ dissent in Abrams v. U.S. (1919), for example, shaped a more serious consideration of the First Amendment in later cases. Perhaps Thomas’ lonely pro–Privileges or Immunities concurrence will play a similar role in the future.

But even then, the progressive/libertarian pro–Privileges or Immunities coalition that Gura gathered will still have plenty to fight about. Douglas Kendall of the Constitutional Accountability Center, a progressive group that was one of Gura’s allies in the fight to revive the clause, told me that while he and almost every other living legal thinker agrees the reasoning in Slaughterhouse was bad, he doesn’t disagree with the result, that is, the upholding of a pro-monopoly law. Allowing free competition in any line of business is not something he thinks the 14th Amendment’s framers meant by “privileges or immunities.” So the fight over the clause’s meaning will continue.

The Constitution and the City

The majority opinion in McDonald could not have been clearer: Second Amendment “incorporation does not imperil every law regulating firearms.” Writing at SCOTUSBlog right after the decision came down, UCLA law professor Adam Winkler noted: “Since Heller, there have been approximately two hundred federal court decisions on the constitutionality of gun control under the Second Amendment. Nearly every challenged gun law has survived.…Other than a complete ban on handguns—which, apart from Chicago and its suburbs, no state or city has—gun control remains constitutionality permissible.”

What sort of gun laws might be successfully challenged in the wake of McDonald? Winkler suggested “New York City’s extreme and discriminatory permitting scheme and California’s refusal to approve certain guns designed for left-handed shooters.” George Mason University law professor Nelson Lund thinks that a blanket ban on carrying weapons in public would be overturned as well, but few state restrictions go that far. UCLA professor Eugene Volokh says that laws barring people between the ages of 18 and 20 from owning guns are likely to fall. But Volokh cautions overexcited gun rights activists to remember that not every restriction on a constitutional right will be deemed unconstitutional.

There is so much language in Heller and McDonald allowing for the constitutionality of reasonable regulations, says Moritz College law professor Douglas Berman, that “a court looking for a way to justify a gun regulation that is not a complete ban can come up with a basis.” If judges don’t want to justify a regulation, of course, they might decide to overturn it now. Given the ideological range among federal judges, we will surely see more circuit splits on gun issues, giving the Supreme Court further opportunities to define the parameters of the right to keep and bear arms. Important questions about the appropriate standard of scrutiny in Second Amendment cases are still up in the air.

Gura and the SAF want to take the lead in shaping post-McDonald Second Amendment law. They have already filed three new lawsuits challenging guns laws since the McDonald decision came down. The first is against North Carolina, charging that its ban on gun or ammunition possession outside the home during a declared state of emergency violates the Second Amendment. The second is against Westchester County, New York, arguing that it should be enjoined from its manner of enforcing a state law that allows carry licenses to be denied merely because applicants cannot show “good cause.” A third suit was filed against state officials in Maryland for requiring a man to show he was in specific danger before he could get a carry permit. As SAF’s Gottlieb said in a press release, “Our civil rights, including the right to keep and bear arms, should not be subject to the whims of a local government or its employees, just because they don’t think someone ‘needs’ a carry permit.”

In addition, two pre-McDonald California suits by Gura and the SAF, which were held up pending the McDonald decision, should now move forward. One of those suits, Peña v. Cid, challenges California’s list of officially approved handgun types and models. The other, Sykes v. McGinness, challenges the methods used by Sacramento and Yolo counties to issue carry permits. Since the Heller decision, Gura has already succeeded in prompting the District of Columbia to eliminate its list of legal weapons, which was modeled on California’s, and he is also pursuing a challenge to D.C.’s carry ban.

Chicago, meanwhile, is providing further grist for lawsuits. After McDonald, various city officials announced their determination to keep  gun rules as restrictive as possible, with one of the city’s attorneys telling the Chicago Tribune that Chicago is “trying to figure out how far we can go and survive a [legal] challenge, because we know it will be challenged.” In July the Chicago City Council unanimously approved a new set of laws prohibiting all gun sales, empowering a city official to unilaterally ban gun models he deems “unsafe,” barring residents under 21 from legally owning guns, requiring gun permit applicants to undergo firearms training (yet simultaneously banning firing ranges), allowing no more than one gun per owner to be assembled and operable at a time, and banning the carrying of guns anywhere outside the home, including porches and garages. Four Chicagoans and the Illinois Association of Firearms Retailers have challenged those provisions in federal court.

David and Colleen Lawson, two of the McDonald plaintiffs, attended Chicago City Council meetings where the new gun laws were discussed. “All the experts on the council’s panel [were] against having a handgun in the home,” Colleen Lawson says. “Most aldermen were speaking as if their constituents did not have enough brains or ability to regulate our own emotions.” One alderman openly encouraged his constituents to disrupt a pro-gun rally. The Lawsons recall being the only people who spoke in support of gun rights during the public comment period. 

As of this writing, Otis McDonald is still embroiled in Chicago’s new registration process, still awaiting official permission to have his legally purchased .45 in his home for self defense. Fifty-two people were shot in Chicago the weekend before the McDonald decision came down; all the airy talk of clauses and scrutiny and incorporation aside, Chicago is full of hundreds of thousands of people like Otis McDonald, surrounded by others who do or might mean them or their property harm, and are as of this writing still being burdened in exercising their right to defend themselves in the most effective way.

Otis McDonald is not thrilled with the stubborn way Chicago has reacted to the decision in his namesake case. He’s particularly disturbed by the $100 permit fee citizens will have to pay the city every three years for every gun they legally own. “Everybody is strapped for money in these times,” he says. “Many of us are on fixed income, senior citizens—do we have to be out there vulnerable just because we might not have the money to pay to exercise a right that we inherited? That is unfair, and I believe that somewhere, someway that is going to change.”

Senior Editor Brian Doherty (bdoherty@reason.com) is the author of Gun Control on Trial (Cato). This column first appeared at Reason.com.


Brian Doherty is Senior Editor


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