Justices Extend Firearm Rights in 5-to-4 Ruling
The Supreme Court ruled on Monday that the Second Amendment, which forbids Congress from infringing the right to keep and bear arms, applies to state and local governments as well.
By ADAM LIPTAK
Published: June 28, 2010
WASHINGTON — The Second Amendment’s guarantee of an individual right to bear arms applies to state and local gun control laws, the Supreme Court ruled Monday in a 5-to-4 decision.
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What Bolstering Gun Rights Will Mean
How should cities and states alter their gun control policies in light of the Supreme Court decision?
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The ruling on the Second Amendment pleased Wayne LaPierre, left, a top official of the National Rifle Association, who spoke about it Monday outside the Supreme Court.
Kamil Krzaczynski/European Pressphoto Agency
At issue was whether the amendment applied to states and municipalities, like Lockport, Ill., where handguns were for sale Monday.
The ruling came almost exactly two years after the court first ruled that the Second Amendment protects an individual right to own guns in District of Columbia v. Heller, another 5-to-4 decision.
But the Heller case addressed only federal laws; it left open the question of whether Second Amendment rights protect gun owners from overreaching by state and local governments.
Justice Samuel A. Alito Jr., writing for the majority, said the right to self-defense protected by the Second Amendment was fundamental to the American conception of ordered liberty. Like other provisions of the Bill of Rights setting out such fundamental protections, he said, it must be applied to limit not only federal power but also that of state and local governments.
The ruling is an enormous symbolic victory for supporters of gun rights, but its short-term practical effect is unclear. As in the Heller decision, the justices left for another day just what kinds of gun control laws can be reconciled with Second Amendment protection. The majority said little more than that there is a right to keep handguns in the home for self-defense.
Indeed, over the course of 200 pages of opinions, the court did not even decide the constitutionality of the two gun control laws at issue in the case, from Chicago and Oak Park, Ill. The justices returned the case to the lower courts to decide whether those exceptionally strict laws, which effectively banned the possession of handguns, can be reconciled with the Second Amendment.
In Chicago, Mayor Richard M. Daley said he was disappointed by the ruling because it made the city’s handgun ban “unenforceable.”
“Across the country, cities are struggling with how to address this issue,” Mr. Daley said. “Common sense tells you we need fewer guns on the street, not more guns.”
Justice Alito, who was joined by Chief Justice John G. Roberts Jr. and Justices Antonin Scalia, Anthony M. Kennedy and, in large part, Clarence Thomas, acknowledged that the decision might “lead to extensive and costly litigation,” but said that was the price of protecting constitutional freedoms.
The majority offered the lower courts little guidance about how much protection the Second Amendment affords. In a part of his opinion that Justice Thomas declined to join, Justice Alito reiterated the caveats in the Heller decision, saying the court did not mean to cast doubt on laws prohibiting possession of guns by felons and people who suffer from mental illness, laws forbidding carrying guns in sensitive places like schools and government buildings, or laws regulating the commercial sale of firearms.
The important point was a broad one, Justice Alito wrote: that the Second Amendment, like other provisions of the Bill of Rights, must be applied to the states under the 14th Amendment.
Justices John Paul Stevens, Ruth Bader Ginsburg, Stephen G. Breyer and Sonia Sotomayor dissented. They said the Heller decision remained incorrect and added that they would not have extended its protections to state and local laws even had it been correctly decided.
“Although the court’s decision in this case might be seen as a mere adjunct to Heller,” Justice Stevens wrote, “the consequences could prove far more destructive — quite literally — to our nation’s communities and to our constitutional structure.”
Though the majority agreed on the outcome, its members differed about how to get there.
The Second Amendment, like the rest of the Bill of Rights, originally restricted the power of only the federal government. The Supreme Court later ruled that most of the protections of the Bill of Rights applied to the states under the due process clause of the 14th Amendment, one of the post-Civil War amendments.
Many constitutional scholars had hoped that the court would use Monday’s decision, McDonald v. Chicago, No. 08-1521, to revise its approach to how constitutional protections are applied to, or “incorporated against,” the states.
They argued that the court should rely not on the due process clause but on the 14th Amendment’s “privileges or immunities” clause, which says that “no state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.” There is evidence that the authors of the clause specifically wanted it to apply to allow freed slaves to have guns to defend themselves.
But only Justice Thomas signed on for that project. Justice Scalia, in a concurrence, acknowledged misgivings about using the due process clause to apply Bill of Rights protections to the states but said he would go along with the method here “since straightforward application of settled doctrine suffices to decide it.”
Five justices wrote opinions in the case, with many pages examining the history of the Second and 14th Amendments. The justices in the majority said that history supported both finding a fundamental individual right and applying it to state and local laws.
The dissenters drew different conclusions from the historical evidence.
“The reasons that motivated the framers to protect the ability of militiamen to keep muskets available for military use when our nation was in its infancy, or that motivated the Reconstruction Congress to extend full citizenship to freedmen in the wake of the Civil War, have only a limited bearing on the question that confronts the homeowner in a crime-infested metropolis today,” Justice Stevens wrote in his final dissent before retiring.
He said the court should have proceeded more cautiously in light of “the malleability and elusiveness of history” and because “firearms have a fundamentally ambivalent relationship to liberty.”
In a dissent joined by Justices Ginsburg and Sotomayor, Justice Breyer said that history did not provide clear answers and that the empirical evidence about the consequences of gun control laws are mixed. But there was evidence, he said, that firearms caused 60,000 deaths and injuries in the United States each year and that Chicago’s handgun ban had saved many hundreds of lives since it was enacted in 1983.
All of that, Justice Breyer wrote, counseled in favor of deference to local elected officials in deciding how to regulate guns.
Justice Alito responded that many constitutional rights entail public safety costs, including ones limiting the use of reliable evidence obtained through police misconduct.
He also acknowledged that the majority decision limited the ability of states to address local issues with tailored gun regulations. “But this is always true,” he said, “when a Bill of Rights provision is incorporated.”
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