How McDonald v. Chicago carried the Second Amendment to every state

A constitutional right that stops at the city line is not much of a right. In June of 2008 the Supreme Court said that the Second Amendment protects your right to keep a handgun at home. But the city that lost that case was Washington, D.C., which is run by the federal government. So what about the city next door? What about Chicago, or your hometown, or the county seat where the sheriff's cousin writes the ordinances? Does a right written into the Constitution in 1791 bind a mayor in 2008?

You might think the answer is obviously yes. A right is a right, and the Constitution is the supreme law of the land. But for most of American history the Supreme Court said otherwise, and the story of how that changed is one of the great chapters in the law. It begins with a war, passes through some of the worst-reasoned decisions the Court ever handed down, and ends on a June morning in 2010 in a case about a retiree on Chicago's South Side.

Before the war: the Bill of Rights stopped at the state line

In 1833, in Barron v. Baltimore, Chief Justice John Marshall wrote for the Court that the Bill of Rights restrained the federal government, not the states. That was a defensible reading of how the founders had drafted it. The First Amendment begins "Congress shall make no law." The Bill of Rights was written to calm fears of the new national government, and most of the original states had their own bills of rights to protect against their own legislatures.

That left a constitutional gap that did very little harm for most free citizens and enormous harm to others. Before the Civil War, slave states restricted the arms of free Black residents, and a regime that could not bear to let an enslaved person own a gun had no interest in a federal rule saying otherwise.

1865 and 1866: the Black Codes and the answer

When the Civil War ended and the Thirteenth Amendment abolished slavery in 1865, the former Confederate states passed the Black Codes: laws meant to keep freedpeople in a condition as close to bondage as the new Constitution would let them. Mississippi's code of 1865 was a notorious example, and among other restrictions it barred freedmen from keeping or carrying firearms. The point of disarming freedmen was to leave them unable to defend their homes, their families and their wages.

The Republican Congress answered. It passed the Civil Rights Act of 1866 over President Andrew Johnson's veto in April. In July 1866, again over Johnson's veto, it passed an updated Freedmen's Bureau Act, which guaranteed the "full and equal benefit of all laws and proceedings concerning personal liberty, personal security, and the acquisition, enjoyment, and disposition of estate, real and personal, including the constitutional right to bear arms." Read that phrase twice. Congress, in 1866, treated bearing arms as a constitutional right that freedmen were entitled to, and it did so while writing the Fourteenth Amendment.

If you want more of that story, Citizenship, Equal Protection and the Ballot in the 14th and 15th Amendments sets out the amendments themselves, and Grant, the Enforcement Acts and the Federal Government's War on the First Klan shows how a Republican President tried to enforce them against the Klan.

1868: the Fourteenth Amendment

The Fourteenth Amendment was ratified in 1868. Its first section says that "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."

The drafters, led in the House by John Bingham of Ohio, meant that clause to protect the rights of citizens against state governments. Senator Jacob Howard, introducing the amendment in the Senate in May 1866, listed the personal rights secured by the first eight amendments, including the right to keep and bear arms, as among the privileges and immunities that the states could no longer abridge. The theory was simple. The Bill of Rights guaranteed certain liberties; the states had denied them to millions of people; the new amendment would end that.

That should have been the end of it. It was not, because of what the Supreme Court did next.

1873 and 1876: the Court takes the clause away

In the Slaughter-House Cases, decided in 1873 by a vote of 5-4, the Court considered a Louisiana law that gave a monopoly on slaughtering in New Orleans to a single company. Butchers sued under the Privileges or Immunities Clause. Justice Samuel Miller's majority opinion read the clause so narrowly that it protected only a short list of rights that belong to national citizenship, such as the right to travel to the seat of government and to use the navigable waters. The text of the Fourteenth Amendment, the Court said, did not make the Bill of Rights binding on the states.

In practical terms the clause was dead. Three years later, in United States v. Cruikshank in 1876, the Court dealt with the aftermath of the Colfax massacre, in which a mob of white men in Louisiana killed dozens of Black men in April 1873 after a contested local election. Federal prosecutors had charged some of the attackers under the Enforcement Act of 1870 with conspiring to deprive Black citizens of their rights, including the right to bear arms and to assemble. The Supreme Court threw out the convictions. It said the right to assemble and the right to keep and bear arms were not rights granted by the Constitution and that the First and Second Amendments restricted only the national government. A state, or a mob that the state would not prosecute, was outside the amendment's reach. The Court repeated the point about the Second Amendment in Presser v. Illinois in 1886.

Think about what that meant on the ground. The Reconstruction amendments had been written to secure the rights of the freedpeople against hostile state governments. The Supreme Court, within a decade, read them so that hostile state governments, and the private violence they tolerated, were free of any federal check. In the decades that followed, Southern states and localities went on using gun laws, and violence the law would not punish, to keep Black citizens disarmed. This is the real background to the question in McDonald. It was not a fight about a handgun ordinance. It was a fight about whether the Fourteenth Amendment meant what its authors said it meant.

The slow road of incorporation

The Court did eventually apply most of the Bill of Rights to the states, but it did it by a different route. Not through the Privileges or Immunities Clause, which Slaughter-House had gutted, but through the Due Process Clause, which says no state may deprive a person of liberty without due process of law. Beginning in the 1920s, the Court held, one right at a time, that certain guarantees were part of the "liberty" the Due Process Clause protects. Free speech came first in Gitlow v. New York in 1925 (the Court assumed it and later cases confirmed it). Over the following decades the same logic carried across, for instance, the exclusionary rule in Mapp v. Ohio in 1961 and the right to a lawyer in Gideon v. Wainwright in 1963.

Lawyers call this process "selective incorporation," and it has a test: a right is incorporated if it is fundamental to our scheme of ordered liberty, or, in the Court's later phrasing, deeply rooted in this Nation's history and tradition. By the time the Second Amendment came up, most of the Bill of Rights had been applied to the states this way. The Second was the conspicuous holdout.

Chicago and the plaintiffs

In 1982 Chicago passed an ordinance that effectively banned handguns. Residents could not register a new handgun, and unregistered handguns were forbidden. A nearby suburb, Oak Park, had a similar rule. After Heller came down in 2008, Chicago residents, including a retiree named Otis McDonald who lived on the city's South Side, sued, arguing that if the Second Amendment protected a handgun in a Washington home it protected one in a Chicago home.

The Seventh Circuit disagreed. It did not say the right was unimportant. It said that only the Supreme Court could overrule Cruikshank and Presser, and until it did, those cases bound the lower court. The Supreme Court agreed to hear the case.

June 28, 2010

The Court decided McDonald v. City of Chicago on June 28, 2010, by a vote of 5-4. Justice Samuel Alito wrote the principal opinion, speaking for four justices (himself, Chief Justice Roberts and Justices Scalia and Kennedy) on the main reasoning. The conclusion: the Second Amendment right recognized in Heller applies to the states through the Due Process Clause of the Fourteenth Amendment. Alito's reasoning ran through the incorporation test. Self-defense, he wrote, is a basic right, recognized by many legal systems from ancient times to the present, and the right to keep and bear arms for that purpose was among the fundamental rights necessary to our system of ordered liberty. The opinion examined the Reconstruction history at length: the Black Codes, the Freedmen's Bureau Act and the speeches of the Fourteenth Amendment's authors.

Justice Clarence Thomas supplied the fifth vote, for a different reason. Thomas agreed the right applies to the states but would have gotten there through the clause the Court had buried in 1873. In a separate opinion he argued that the Privileges or Immunities Clause is the proper home for the right, that Slaughter-House was wrongly decided, and that the Due Process Clause is a poor vehicle for protecting substantive rights because its text speaks of procedures. He had the better textual argument. The text of the clause says what it says. Alito, for his part, declined to overrule Slaughter-House, and that is the road not taken.

Justice John Paul Stevens dissented, as did Justice Stephen Breyer, joined by Justices Ginsburg and Sotomayor. Stevens argued that due process protects liberty in a more flexible sense and that the Second Amendment right was not fundamental in the way the majority claimed. Breyer's dissent emphasized that gun regulation involves difficult empirical judgments about public safety, and that states and cities are better placed than judges to make them.

The steelman: federalism and local choice

The dissent's best argument is one conservatives should respect, since we make it ourselves in other contexts. Cities differ. A dense urban neighborhood and a ranch in Wyoming do not face the same risks, so why should one national rule bind them both? Our whole system rests on the idea that states are laboratories (Brandeis Called the States Laboratories and Conservatives Took Him at His Word makes the case), and federalism is a conservative principle.

Here is the answer. Federalism is a principle about who decides within the boundaries of the Constitution. It is not a license for a state to ignore a right the Constitution protects. The Fourteenth Amendment is itself a limit on the states, ratified by the states in the wake of a war that began over the question of whether a state could do whatever it liked to people in its borders. A state can ban a particular kind of trailer, regulate a particular sale, or require a particular background check, within the room the Second Amendment leaves. What McDonald holds is that a city can't ban the core right. We apply the same rule to speech: Texas is free to experiment with a hundred policies, but not with licensing newspapers.

Also remember who the original victims of the "local choice" theory were. The communities that most needed to keep and bear arms in the 1870s were the ones whose local governments refused to protect them.

Why it matters now

McDonald opened the door for every later gun case. Without it, New York State Rifle & Pistol Association v. Bruen, which struck down New York's carry-permit rule in 2022, could never have been brought, because the Second Amendment would have been a limit on Washington only. You can trace how the courts have handled the question since in Bruen and Rahimi explained, the history test every gun law now faces and Heller, McDonald and Bruen Explain How Judges Now Read the Second Amendment. And when Illinois's carry ban fell, the process began in the same federal circuit; see four ways a state can regulate carrying a gun, side by side.

McDonald also left a loose end that Thomas keeps pulling. If the Privileges or Immunities Clause is the right home for the Bill of Rights, other cases may one day revisit what it protects. That's an open argument among serious people, and one worth following.

The bottom line

• A right that stops at the city limit isn't much of a right. McDonald held that the Second Amendment binds states and cities as it binds Washington.
• The history is the point. The Black Codes disarmed freedpeople, Congress responded in 1866, and the Fourteenth Amendment was ratified in 1868 to protect them. The Court's decisions in 1873 and 1876 left that promise unkept for generations.
• The vote was 5-4, and the reasoning split. Four justices used due process; Justice Thomas argued for the Privileges or Immunities Clause. Know the difference, because it may matter in the next case.
• Federalism has a floor. States decide a great deal. They don't get to decide whether the Constitution applies to them.
• Next time your city council meets, read the ordinance. The question is no longer whether the Second Amendment reaches them. It does. The question is whether the rule they are voting on leaves the core of the right intact.