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Lawrence MA. Cardozo L. Rev. De Novo 2010; 2010: 139-723.


(Copyright © 2010)






I discuss the importance of McDonald, with regard to the Second Amendment, its contours in light of the District of Columbia v. Heller decision, and the question of its incorporation through the Fourteenth Amendment."

First, the basics: McDonald v. City of Chicago follows naturally from the Court's 2008 D.C. v. Heller decision, which held that the Second Amendment protects an individual right that Congress may not abridge--but which expressly did not address the question of whether the Second Amendment is incorporated through the Fourteenth Amendment to apply to the States. Because the challenged gun-control law in McDonald is a Chicago city ordinance, the first question the Court must answer, therefore, is whether the Second Amendment can even be claimed as protection by petitioner Otis McDonald--i.e., whether the Second Amendment is incorporated to apply to the States. Then, if the answer is affirmative, the Court must decide whether the particular ordinance runs afoul of the Second Amendment. I will focus entirely on the first question--the issue of incorporation. One reason this case is so interesting is that since the United States Supreme Court began its modern practice of selectively incorporating individual Bill of Rights provisions through the Fourteenth Amendment Due Process clause in 1925, it has never addressed the question of whether the Second Amendment applies to the States. So this question alone--whether the amendment is incorporated through the Due Process clause--is of great practical importance. But there is much more, in the fact that the Court has never given another relevant provision of the Fourteenth Amendment--the Privileges or Immunities clause, which was expressly intended by its framers to incorporate the entire Bill of Rights (including the Ninth Amendment, protecting unenumerated rights)--its proper reading; and this case offers the Court a golden opportunity to finally correct its past mistakes. This is precisely the point I made in an article published a couple years ago in the Missouri Law Review entitled Second Amendment Incorporation Through the Fourteenth Amendment Privileges or Immunities and Due Process Clauses1--and it is precisely the point petitioners Otis McDonald et al. are making in McDonald v. City of Chicago (spending fully sixty-five of seventy-three pages of their argument on the privileges or immunities argument; and the remaining eight on the traditional Due Process argument). In Section I of this short essay, I will briefly review the sad history of how the Court buried the Privileges or Immunities clause in 1873 just five years after its birth; then in Section II, I will offer a possible doctrinal approach were the Court to move forward in (finally) giving proper effect to the Privileges or Immunities clause.

Language: en


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