What is really being argued in McDonald v. Chicago and why do we care? Part One - Case Background

Yesterday, the Supreme Court heard oral arguments from Alan Gura, the attorney for Otis McDonald, a retiree and Chicago resident who, along with several other Chicago residents challenged the handgun ban that currently exists in the City of Chicago.  This case is sponsored by the Second Amendment Foundation and the Illinois State Rifle Association.

At issue is the constitutionality of the Chicago handgun ban.  When the case was originally contested, a trial court ruled in favor of the City of Chicago on December 18, 2008.  This decision was appealed to the 7th Circuit Court of Appeals and on June 2, 2009 that court affirmed the decision of the lower court.

Subsequent to the Court of Appeals ruling, the Second Amendment Foundation requested that the Supreme Court review the case and on September 30, 2009 the request was granted.  The National Rifle Association also requested review on the part of the plaintiffs and on January 25, 2010 was granted a motion for 'divided argument' on the case, meaning that both the Second Amendment Foundation sponsored attorney, Alan Gura and the NRA sponsored attorney, Paul Clement would both argue for the plaintiff.

It is worth noting that this 'divided argument' places the plaintiff at a bit of a disadvantage since the two attorneys split the time allotted for oral arguments.  In addition, the two attorneys arguments originate in different points of law which could have the effect of complicating the consideration of the issue.  This is particularly noteworthy in light of the success of Alan Gura in DC v. Heller.  Several observers questioned the wisdom of the petition by the NRA and its motivation.

The McDonald case challenges four aspects of the Chicago gun registration law.  The specific issues are that the law:

• Prohibits the registration of handguns, resulting in an de facto handgun ban.
• Requires that guns be registered prior to their purchase or acquisition by Chicago resident
• Requires that the registration be renewed annually and charges a fee for that registration
• Permanently prohibits the re-registration of any gun should the original registration lapse

The attorneys for McDonald are proposing that the Second Amendment, in addition to being applied in federal jurisdictions, should also be applied to state and local governments. 

The vast majority of the American people probably do not realize that virtually all of their rights guaranteed under the Bill of Rights have been incorporated to the states with the exception of three specific rights.  Those rights that are not incorporated to the states are:

• The Second Amendment of the Constitution
• The Grand Jury clause of the Fifth Amendment
• The Right to Jury Trial in a Civil Trial in the 7th Amendment

All other rights that are included in the original Bill of Rights have been incorporated to the states through a legal concept known as 'Selective Incorporation'.  Essentially, the court over time has decided that a constitutional right is 'fundamental' by being "implicit in the concept of ordered liberty" and "deeply rooted in our nation's history and traditions".

While this probably comes as a significant surprise to most readers, our Bill of Rights did not 'automatically' apply to the states.  These rights have been 'incorporated to the states' by various judicial decisions by the Supreme Court.

In many ways, 'Selective Incorporation' began after the ratification of the Fourteenth Amendment which stated in part, "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".

Supreme Court decisions have used either the 'privileges and immunities' clause or the 'due process' clause of the Fourteenth Amendment to incorporate rights to the states. 

Moreover, the Fourteenth Amendment was understood to include the fundamental rights honored by any free government.

One of the most pivotal decisions on State's Rights after the passage of the Fourteenth Amendment was a decision known as the "Slaughter House Cases".  In the mid-1880s in New Orleans, there were thousands of butchers that slaughtered over 300,000 animals each year in the New Orleans area.  The vast majority of these butchers dumped the blood, feces and entrails of the slaughtered animals into the Mississippi River.  Since this was largely done north of New Orleans, the public water supply was being polluted in an alarming fashion.  Between 1832 and 1869 there were over 11 cholera outbreaks in New Orleans that were attributed to this threat to public health.

The City of New Orleans attempted to solve this problem by passage of a city ordinance that required all butchers to use a city-owned slaughterhouse facility and prohibited the dumping of animal entrails upstream from the city.  All in all, this was probably a wise law from the standpoint of public health.

The butchers felt this was an unreasonable restriction on their ability to practice their trade and sued claiming that such laws violated their rights to practice their trade freely.  Considering the public health threat, lower courts sided with the City of New Orleans and upheld the law.

In 1873 the case was appealed to the Supreme Court and in April of that year, the court ruled with a very narrow interpretation of the Fourteenth Amendment and held that it did not restrict the police powers of the states to deal with issues of public safety.  The court also held that the rights of the butchers had not been violated under the Fourteenth Amendment.  This extremely narrow interpretation of the Fourteenth Amendment has been the basis for the rejection of many equal protection cases over the past 140 years.

Part of the arguments in McDonald v. Chicago calls on the court to consider a broader interpretation of the Fourteenth Amendment as advocated by Justice Steven Field in his dissent to the original decision in the Slaughter House Cases.

Almost without exception, legal scholars have written that the Supreme Court was in error in its narrow decision on Slaughter House.  Many feel that the Fourteenth Amendment was written to embrace common law in favor of an individual's right to pursue a legitimate occupation and to more broadly protect property interests against hostile state laws.

The Supreme Court has used the 'due process' clause in a broad range of cases to incorporate many of our basic constitutional rights to the states so that our constitutional rights still apply under state law.

There is also the issue of 'un-enumerated rights' that is part of the 'privileges or immunities' clause of the Fourteenth Amendment.  Many of these rights were actually codified in the Civil Rights Act of 1866.  This law was actually passed by a super-majority of Congress over President Andrew Johnson's veto.  The law provided that:

• Everyone born in the United States was a citizen.
• All persons within the United States shall have the same rights in every State and Territory
• All United States citizens posses the right to make and enforce contracts
• Can sue other parties
• Can be parties to any Civil action
• Can give evidence
• Have full and equal benefit of all laws
• Have security of persons and property
• Shall be subject to the same punishments, pains, taxes and licenses as any other citizen

The upshot of this was to create a federal law that prevented discrimination for any reason against former slaves.

The 'privileges and immunities' clause has been used to affirm many of our constitutional rights using procedural justifications over the 140 years since the original Slaughter House decision.

The 'due process' clause has largely been used to affirm many of our more substantive rights under the US Constitution.

Tune in tomorrow for Part 2, the Oral Arguments where we will discuss the arguments made by counsel both for and against the case.