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Click here to download the U.S. Supreme Court’s Decision in the McDonald case striking down Chicago’s handgun ban and incorporating the Second Amendment (i.e making it supersede state law). Here are the highlights .  . .

“The right to keep and bear arms must be regarded as a substantive guarantee, not a prohibition that could be ignored so long as the States legislated in an evenhanded manner.”

” . . . The right to keep and bear arms is enforceable against the States because it is a privilege of American citizenship recognized by §1 of the Fourteenth Amendment, which provides, inter alia: “’No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.”'”

Majority Decision, Justice Alito

[page 38]

“Under our precedents, if a Bill of Rights guarantee is fundamental from an American perspective . . . that guarantee is fully binding on the States and thus limits (but by no means eliminates) their ability to devise solutions to social problems that suit local needs and values.”

[page 39]

“We made it clear in Heller that our holding did not cast doubt on such longstanding regulatory measures as “’prohibitions on the possession of firearms by felons and the mentally ill,”’ “’laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.”’ We repeat those assurances here. Despite municipal respondents’’ doomsday proclamations, incorporation does not imperil every law regulating firearms.”

[page 46]

“In Heller, we recognized that the codification of this right was prompted by fear that the Federal Government would disarm and thus disable the militias, but we rejected the suggestion that the right was valued only as a means of preserving the militias. On the contrary, we stressed that the right was also valued because the possession of firearms was thought to be essential for self-defense. As we put it, self-defense was ““the central component of the right itself.””

[page 48]

” . . . we have never held that a provision of the Bill of Rights applies to the States only if there is a “’popular consensus”’ that the right is fundamental, and we see no basis for such a rule.”

Justice Stevens, Dissenting


“The Court hinges its entire decision on one mode of intellectual history, culling selected pronouncements and enactments from the 18th and 19th centuries to ascertain what Americans thought about firearms. Relying on Duncan and Glucksberg, the plurality suggests that only interests that have proved “fundamental from an American perspective,” ante, at 37, 44, or “‘deeply rooted in this Nation’s history and tradition,’” ante, at 19 (quoting Glucksberg, 521 U. S., at 721), to the Court’s satisfaction, may qualify for incorporation into the Fourteenth Amendment.”


“The question in this case, then, is not whether the Second Amendment right to keep and bear arms (whatever that right’s precise contours) applies to the States because the Amendment has been incorporated into the Fourteenth Amendment. It has not been. The question, rather, is whether the particular right asserted by petitioners applies to the States because of the Fourteenth Amendment itself, standing on its own bottom. And to answer that question, we need to determine, first, the nature of the right that has been asserted and, second, whether that right is an aspect of Fourteenth Amendment ‘liberty.'”


“Understood as a plea to keep their preferred type of firearm in the home, petitioners’ argument has real force. The decision to keep a loaded handgun in the house is often motivated by the desire to protect life, liberty, and property. It is comparable, in some ways, to decisions about the education and upbringing of one’s children. For it is the kind of decision that may have profound consequences for every member of the family, and for the world beyond. In considering whether to keep a handgun, heads of households must ask themselves whether the desired safety benefits outweigh the risks of deliberate or accidental misuse that may result in death or serious injury, not only to residents of the home but to others as well. Millions of Americans have answered this question in the affirmative, not infrequently because they believe they have an inalienable right to do so—because they consider it an aspect of ‘the supreme human dignity of being master of one’s fate rather than a ward of the State.’ Many such decisions have been based, in part, on family traditions and deeply held beliefs that are an aspect of individual autonomy the government may not control.”


“But that is not the case before us. Petitioners have not asked that we establish a constitutional right to individual self-defense; neither their pleadings in the District Court nor their filings in this Court make any such request. Nor do petitioners contend that the city of Chicago — which, recall, allows its residents to keep most rifles and shotguns, and to keep them loaded — has unduly burdened any such right. What petitioners have asked is that we ‘incorporate’ the Second Amendment and thereby establish a constitutional entitlement, enforceable against the States, to keep a handgun in the home.

Of course, owning a handgun may be useful for practicing self-defense. But the right to take a certain type of action is analytically distinct from the right to acquire and utilize specific instrumentalities in furtherance of that action. And while some might favor handguns, it is not clear that they are a superior weapon for lawful self defense, and nothing in petitioners’ argument turns on that being the case. The notion that a right of self-defense implies an auxiliary right to own a certain type of firearm presupposes not only controversial judgments about the strength and scope of the (posited) self-defense right, but also controversial assumptions about the likely effects of making that type of firearm more broadly available. It is a very long way from the proposition that the Fourteenth Amendment protects a basic individual right of self-defense to the conclusion that a city may not ban handguns.”

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  1. Notice that Justice Alito focuses on home defense and even retiring Justice Stevens doesn't challenge the notion of home defense one whit. Stevens, though, reduces the petitioner's case to a desire to legalize handguns, which are arguably more useful for concealment (hence, crime) than for home defense.

    Stevens also challenges incorporation in a fairly abtruse way involving "liberty" rather than "due process." Alito takes exception to Stevens use of the word liberty rather than due process, so I suspect there are some deeper meanings there.

  2. Here's my problem with the whole issue of gun control/ownership. Whether or not you chose to own any kind of arms (be it a knife, a gun, a sword, a bow/arrow, whatever), you should have to right to do so without any kind of government interferance. This, however, is not something that we are ever likely to see. Throughout history, government and the individual have always been at odds. Government's sole purpose has been to control as much of the individual's life as possible and the individual (of course) fights against that to maintain as much of their personal liberty as possible. The point I guess I'm driving at is that the whole gun control battle is this ongoing war between the government and the individual. A well armed populace has always a great threat to any government.

    Now while on one hand I am glad to see the Supreme Court get something right for a change with this decision, on the other hand, I don't believe that this decision went nearly far enough or that it should have been necessary in the first place. This is one fight that we as citizens of this country have been laid back on for far too long. All it takes is one or two changes in the make up of the court to see this decision thrown out the door and don't believe for one second that politicians on both sides of the aisle ain't looking for those changes.

    • I'd say that if you look back throughout history, you see most people locked into a traditional role, and ruled by kings, warriors and priests. Compared to history, we're doing fairly well. Even in a family or small tribe, everyone has to give up a little personal freedom.

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