McDonald v. Chicago | National Constitution Center | Khan Academy

McDonald v. Chicago | National Constitution Center | Khan Academy

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– [Kim] Hi, this is Kim from Khan Academy. And today we’re learning more
about McDonald v. Chicago, a 2010 Supreme Court case challenging a handgun ban
in the City of Chicago. The question at issue was whether the 14th
Amendment’s Due Process or Privileges or Immunities Clause means that the Second Amendment right to keep and bear arms for
the purposes of self-defense is applicable to the states. Or, put more plainly, the Second Amendment says
the federal government can’t infringe on citizens
rights to keep and bear arms, but can state governments? To learn more about McDonald v. Chicago, I talked to two experts. Alan Gura is a lawyer who
argued McDonald v. Chicago before the Supreme Court. Elizabeth Wydra is a
Supreme Court litigator and the president of the Constitutional
Accountability Center. So, Miss Wydra, could
you set the stage for us? Who were the challengers in this case and why did they decide to sue? – [Elizabeth] The lead
plaintiff was Otis McDonald, then a 76-year-old African-American retired maintenance engineer who lived in a part of Chicago and wanted to have a gun for self-defense, a handgun, to protect himself and
his family at his home. He lived in a neighborhood that had grown increasingly troubled with gang and drug-related violence and he felt that he
wanted to have a handgun to protect his wife and his family after his home had been
broken into several times. But because the City of Chicago had strict rules barring handguns, he and three other Chicago residents brought their case into court, asking the Court to find that the individual right
to keep and bear arms, including a handgun for
self-defense in the home that had been recognized
just a few years earlier by the Supreme Court with respect
to the federal government, also applies to the states
and cities like Chicago. – [Alan] In 2008, the Supreme Court had held that the Second Amendment
to the Constitution guarantees Americans
the right to have guns for the purpose of self-defense. But that case took
place in Washington, DC, and Washington, DC, is sort of a unique creature in our law. It’s a federal city, it’s not located in any particular state, and so everything that the
City of Washington does is essentially done by
the federal government or a unit of the federal government to which the Bill of
Rights applies directly. But, historically, the Bill of Rights was never
thought to apply directly to limit what cities and states could do. – [Kim] So, what were some of
the competing interpretations that were at issue in this case? – [Alan] Well, there were
a number of interpretations that were at issue. The 14th Amendment has
several parts to it. In the first section of the 14th Amendment it states that no state
shall make or enforce any law which shall abridge the
privileges or immunities of citizens of the United States. And then it also says, among other things, that the states can’t
deprive people of due process when it comes time to regulating their life, liberty, or property. States may not deprive anyone
of life, liberty, or property without due process of law. When it comes to your basic civil rights, the question had always been whether or not the states are bound not to violate your civil rights because they’re told not to abridge the privileges or immunities
of American citizens, or are your rights not to be violated because the states can’t deprive
you of due process of law. – [Elizabeth] So, when the
drafters of the 14th Amendment were coming together to think about what
rights would be protected in the 14th Amendment, they looked at a a lot of the
abuses by state governments of key rights that had
been previously protected against federal government
action in the Bill of Rights. And when they were debating what rights would be
included in these protections against state action, they talked repeatedly
about the importance of the right to keep and bear arms. But the way they talked about it was very different from the way that we think about the 18th
century Revolutionary Founders talking about the right
to keep and bear arms. In that case it was very
much about the militia and preventing the tyranny
of government action. In the 14th Amendment context, the right to keep and bear arms was very much an individual right. They were concerned about freed persons being subject to white militia violence and being able to protect themselves with a gun in their house. And so that was really one of the ways in which they wanted to
protect the individual right to keep and bear arms, different from the way that I think the Founders thought about it when they were drafting
the Second Amendment. – [Kim] Yeah, this is a
really interesting point because you can kinda see how
these things evolve over time. And particularly in the
1860s after the Civil War, there are many local or state statutes, know as the Black Codes, that specifically prevented
newly-freed African-Americans from owning firearms
or any kind of weapon. – [Elizabeth] Exactly, and that was a concern because, one, it was a right that
they considered to be a right of citizenship. But two, and more practically
and more immediately of concern for the people
who were being targeted by this racial violence, it was something that was
a question of life or death for them. And the debates on this by the drafters of the 14th Amendment were very clear and very colorful. Senator Samuel Pomeroy
described how indispensable the right to keep and bear arms was and how important it was
that the 14th Amendment protect that right. He said during the debates, “Every man should have
the right to bear arms “for the defense of himself
and family and his homestead. “And if the cabin door of
the freedman is broken open “and the intruder enters “for purposes as vile as
were known to slavery, “then should a well-loaded musket “be in the hand of the occupant “to send the polluted
wretch to another world “where his wretchedness will
forever remain complete.” – [Kim] So, going back
to the McDonald case, how did the Court rule in this case? – [Alan] In McDonald,
we made two arguments for why we should win. The first argument we made was the historically more obvious one, although it’s one that courts
had not often entertained. In essence, the argument says that when the 14th Amendment provided that people cannot be deprived of the privileges or immunities
of American citizenship, that means they couldn’t be deprived of their basic fundamental rights. Right there in text, the 14th Amendment tells you that you can’t be deprived of the rights of American citizenship. Secondly, we made the argument that, and this is the argument that the courts have been
more open to over the years, we made the argument that where the state is prohibited from depriving Otis McDonald
and other Chicago residents of due process of law, you can’t deprive somebody of due process, that means not just that the state can’t do things arbitrarily, not just that Otis McDonald is entitled to some procedural protections in the way that he’s regulated but also that there are some results, some things that simply cannot be done. In taking away someone’s firearms in violation of the
Second Amendment rights, it’s not something that the state can do, there’s no procedure that
the state could create to achieve that. They would still be considered to be giving somebody due process of law. – [Elizabeth] So, the Court
said what we have done when we’ve looked at individual rights under the 14th Amendment, and whether or not original
Bill of Rights rights that were initially understood to limit the federal government
applied to the states, it’s looked at whether
or not they are part of what we generally talk about as fundamental to our
scheme of ordered liberty. Or, stated another day, the question is whether
the right is firmly rooted in this nation’s history and tradition. And when they looked at that question with respect to the right
to keep and bear arms, they looked at a lot of
the reconstruction history and said this was clearly something that the drafters of the 14th Amendment considered to be very
fundamental to ordered liberty and thought that indeed the freed men, the African-American people of the South who had been subject to the slave power and people across the country who had been subject to
discrimination from the states should be able to look to the Constitution to protect the right to keep and bear arms as their individual right. Just as the Court had
held in the Heller case, they could be able to
look to the Constitution for protection of that right
against the federal government. – [Kim] So, in the McDonald case, how did the majority of the Court rule? – [Alan] The justices broke
down in multiple different ways. There were four justices,
led by Justice Alito, who refused to look any further at the Privileges or Immunities Clause. They thought it was old, it
was water under the bridge. They were not interested in looking to see whether or not the Court’s
erasing of that provision was legitimate, even if it’s widely agreed
to be illegitimate today. But the Court didn’t wanna go there. And instead those four
justices, led by Justice Alito, held that the due process clause incorporates the Second Amendment right to keep and bear arms as against the states because it is a fundamental right, it’s deeply rooted in our
nation’s history and traditions, it’s something that’s very
basic to our understanding of our civil and political institutions. Four justices thought that the right to keep and
bear arms is fundamental. – [Elizabeth] So, there
was actually a debate among the members of the majority who all believed that there was a right to have a handgun in the
house for self-defense that was protected against state and local
government regulations. But Justice Thomas would
have found that right through another means. He would have looked at the
Privileges or Immunities Clause of the 14th Amendment instead of the now accepted method of looking at the due
process liberty clause of the 14th Amendment, which is how these other
provisions of the Bill of Rights have been incorporated against the states. There were many arguments, including I should say
a brief that I filed on behalf of scholars from
across the ideological spectrum who said that in fact the Privileges or Immunities
Clause of the 14th Amendment is the part of that
constitutional amendment that was intended to protect this particular substantive right as well as the other substantive rights of the Bill of Rights against state infringement. Justice Thomas’ concurrence
did not get any other votes, whether from the people who were against the right to keep and bear arms and those who didn’t, but it is an important contribution to thinking about how we understand rights and where they are protected
in the Constitution. – [Alan] Justice Thomas’
opinion in McDonald is groundbreaking. It represents the first time since 1868 that the original meaning of the 14th Amendment’s
Privileges or Immunities Clause, the basic protection that
we have for civil rights in this country against state and local governments was decisive in a case
at the Supreme Court. It’s been that long since a
true original understanding of the 14th Amendment’s language has finally proven to be decisive. – [Elizabeth] There
were of course justices who thought that there is
not an individual right to have a handgun in the
home for self-defense. These were the same
justices, not surprisingly, who thought that there wasn’t
a Second Amendment right to be protected against
federal government action to keep a handgun in the
home for self-defense. They would have thought that
this was much more a right in the Second Amendment context that had to do with militia
service, military service, and therefore did not extend
to an individual right to have a gun in the
home for self-defense. – [Alan] McDonald’s really
a 14th Amendment case. Guns happened to be the
things that was in it but I’d always seen it primarily as a 14th Amendment case. It’s not really a case
that tells you anything about the scope of the Second Amendment. In fact, it doesn’t say anything about the scope of the Second Amendment, very little. – [Elizabeth] There are many
issues left to be resolved in the Second Amendment context. The Heller case itself, which first articulated that there was a right for individuals to keep and bear arms in
their homes for self-defense made clear that it wasn’t saying that there could be no gun regulation. That case, even though it was
written by Justice Scalia, and certainly in the McDonald case Justice Alito’s majority
opinion reiterated this, said that while there were certain laws that would be struck
down as unconstitutional because they prohibited the possession of handguns in the home, they recognized at the same time that the right to keep and bear arms is not a right to keep and
carry any weapon whatsoever in any manner whatsoever and for whatever purpose. So given that the Court itself, and even very conservative
justices recognized that there could be and perhaps should be common sense limitations on both the types of
guns that are allowed, the manner in which they are allowed, and where they can be
taken and in what manner, then a lot of the gun
regulations that are being passed are still very much part of
the constitutional debate. We’ve seen frankly most
of the laws thus far be upheld as constitutional laws that for example target assault weapons, high-capacity magazines, and certain licensing and
registration requirements. So I think we will see more
cases to define the contours of the individual right keep and bear arms as these gun regulations get passed and as the courts get to pass
upon their constitutionality. – [Kim] So, we’ve learned
that the Supreme Court ruled that the 14th Amendment’s
Due Process Clause that no state can deprive a citizen of life, liberty, or property
without due process of law did incorporate the Second
Amendment into the states under the reasoning that the right to keep and
bear arms for self-defense is fundamental to the nation’s
scheme of ordered liberty. According to Alan Gura, even though this case was about guns, it was really a 14th Amendment case concerning whether states can
restrict citizens liberty. Elizabeth Wydra, however, cautions that the decision in McDonald didn’t preclude any
restriction on gun ownership, and she suspects that new
cases will continue to define the individual right
to keep and bear arms. To learn more about this case, visit the National Constitution Center’s Interactive Constitution, and Khan Academy’s resources
on US government and politics.

One thought on “McDonald v. Chicago | National Constitution Center | Khan Academy

  • Michael Pisciarino Post author

    McDonald V. Chicago
    0:39 Our Experts

    1:05 Otis McDonald

    1:57 (Washington) D.C. V. Heller

    2:44 Interpretations

    3:52 (Civil War, State Abuses) An individual right

    5:16 Black Codes, (KKK)

    6:18 Arguments Gura Made
    1. You can’t be deprived of fundamental rights
    2. The State can’t deprive McDonald of due process


    8:59 How did The Supreme Court Rule?

    • Privilege or immunities Clause
    • Due Process Clause

    11:24 Justice Thomas’ Opinion

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