U.S. Supreme Court Strikes Handgun Ban in Chicago. 2d Amendment Applies to Individuals

Justice Samuel Alito wrote for the majority and put it quite plainly; 'It cannot be doubted that the right to bear arms was regarded as a substantive guarantee, not a prohibition that could be ignored so long as states legislated in an evenhanded manner.'

P>WASHINGTON, DC (Catholic Online) - The United States Supreme Court issued what is being hailed as a "landmark ruling" on Monday, June 28, 2010. The case was styled McDonald v. Chicago (#08-1521). It resulted in the issuance of 214 pages of judicial opinions from the U.S. Supreme Court which will be studied by law students for years to come.

The case involved a 28-year-old handgun ban in the City of Chicago and surrounding areas. The ban has not curtailed the alarming escalation of violent crime in the City.  The Supreme Court took notice of this irony right within its opinion in these words:

"Chicago Police Department statistics, we are told, reveal that the City's handgun murder rate has actually increased since the ban was enacted and that Chicago residents now face one of the highest murder rates in the country and rates of other violent crimes that exceed the average in comparable cities."

The entire decision can be read in its entirety here

The practical effect is that the handgun ban in the Chicago, Illinois area is now called into question as unconstitutional. The Mayor has already signaled his intention to attempt to craft new legislation to somehow regulate guns. Whether he can succeed is doubtful, at least in this lawyer and Court observer's reading of this strong opinion.

However, the impact of the decision is not only in its holding that the right to bear arms applies to individuals - building on the Court's 2008 decision which struck down a similar ban on handguns in Washington, DC in the case of District of Columbia v. Heller - but the legal analysis upon which the decision was based, namely the expansion of the legal concept of substantive due process.

The majority opinion supports the legal theory that the 14th Amendment to the US Constitution incorporates the Bill of Rights and applies it to the States, including the Second Amendment. Section 1 of the 14th amendment reads:

" All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. 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 Fourteenth Amendment to the United States Constitution was adopted in 1868. This "Due Process clause" was successfully used to overrule the decision in Dred Scott v. Sandford (1857) which held that African Americans were not full citizens under the law.

Its application grew to the recognition of substantive due process rights which were incorporated to the States and protected citizens against the unjust deprivation of life, liberty or the pursuit of happiness. The clause was the basis for the landmark Supreme Court case of Brown v. Board of Education (1954) which brought an end to the evil of racial segregation in the United States.

The significance of the McDonald decision goes beyond the probable effect of the striking down of the Chicago handgun ban by a lower Court upon remand. The Supreme Court, in its majority opinion, embraced an application of the concept of substantive due process which extends beyond the First Amendment. It recognized that the rights conferred by the Second Amendment are individual rights which must also be recognized by the States.

Justice Samuel Alito wrote for the majority and put it quite plainly; "It cannot be doubted that the right to bear arms was regarded as a substantive guarantee, not a prohibition that could be ignored so long as states legislated in an evenhanded manner."

The plurality majority opinion involved Justices Alito, Roberts, Scalia, and Kennedy who concurred that the due process clause of the Fourteenth Amendment incorporates the Second Amendment. 

Justice Scalia wrote separately, "I join the Court's opinion. Despite my misgivings about Substantive Due Process as an original matter, I have acquiesced in the Court's incorporation of certain guarantees in the Bill of Rights 'because it is both long established and narrowly limited.' Justice Thomas concurred but rejected substantive due process.

However, the overall effect of the ruling is that the rights conferred by the Second Amendment have now been incorporated against the States through the 14th Amendment. Seems an academic argument to many, I am sure. However, the history of American Jurisprudence demonstrates it is not.

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