LEGAL NEWS FROM THE NATION’S CAPITAL JOHANNA REEVES, ESQ.
Ten years ago, the U.S. Supreme Court decided McDonald v. City of Chicago, 561 U.S. 742 (2010). Reaffirming the decision in District of Columbia v. Heller, 554 U.S. 570 (2008), that the Second Amendment to the U.S. Constitution guarantees an individual right to keep and bear arms and that self-defense is the central component to the right itself, the Court in McDonald held the Second Amendment applies fully to the states through the Due Process Clause of the Fourteenth Amendment. In light of the rapid rise in civil and political cries for defunding or eliminating the police throughout the nation, it is particularly fitting to reexamine this landmark case and its probe into the relationship between the Bill of Rights and the states, and whether there is a hierarchy of rights within the Bill of Rights—all matters that are no less relevant 10 years after this decision. This topic is all the more fitting, as I write this on the eve of Independence Day.
McDonald involved four Chicago residents Otis McDonald, Adam Orlov, Colleen Lawson and David Lawson, all of whom wanted to keep handguns in their homes for self-defense but could not because of a Chicago ordinance. The Municipal Code effectively banned handgun possession by prohibiting possession of unregistered firearms and making it impossible to register handguns.
When the city council passed the ordinance in 1982, it stated as its justification the need to protect residents from the loss of property and injury or death from firearms (McDonald at 750; citing Chicago, Ill., Journal of Proceedings of the City Council, P. 10049 (Mar. 19, 1982)). Not surprisingly, the petitioners in the case argued that the handgun ban left them vulnerable to criminals who ignored the law, and the Court cited Chicago Police Department statistics which showed the city’s handgun murder rate had actually increased since the ban was enacted.
According to the municipal respondents, the City of Chicago and Oak Park, the Second Amendment did not invalidate a local ordinance, because for a right set out in the Bill of Rights to apply to the states, it must be an indispensable attribute to any civilized legal system. In other words, if it is possible to imagine a civilized country that does not recognize the right, then the right is not protected by the due process guaranty of the Fourteenth Amendment. Pointing to England, Canada, Australia, Japan, Denmark, Finland, Luxembourg and New Zealand, the respondents argued that because there are civilized countries that ban or strictly regulate the private possession of handguns, due process does not preclude such measures (McDonald at 753).
What is the Due Process Clause?
The Fourteenth Amendment was ratified after the Civil War on July 9, 1868. Comprised of five sections, it addresses many aspects of citizenship and the rights of citizens. McDonald focused on Section 1, which prohibits a state from making or enforcing any law which abridges the privileges or immunities of citizens of the U.S., or which deprives any person of life, liberty or property without due process of law.
There is extensive case law on the Due Process Clause and whether it prohibits states from infringing on the rights set out in the Bill of Rights. Although fascinating, I will not dive too deeply into it in the interest of time and space. But not all rights had been incorporated into the Fourteenth Amendment by 2010. Other than the Second Amendment, the only other rights not incorporated were the Third Amendment’s protection against quartering of soldiers, the grand jury indictment requirement under the Fifth Amendment, the Sixth Amendment’s right to a unanimous jury verdict, the right to a jury trial in civil cases under the Seventh Amendment and the Eighth Amendment’s prohibition on excessive fines (McDonald at 764-765).
The Fourteenth Amendment was ratified after the Civil War on July 9, 1868. Comprised of five sections, it addresses many aspects of citizenship and the rights of citizens.
The McDonald Bottom Line
Thus it was in McDonald that the Court decided for the first time that the right to keep and bear arms applies to the states under the Due Process Clause of the Fourteenth Amendment. The municipal respondents argued that the Court should treat the Second Amendment differently from the other rights incorporated under the Due Process Clause. According to respondents, the Due Process Clause only protected those rights recognized by all temperate and civilized governments, from a deep and universal sense of [their] justice. So, if it is possible to imagine any civilized legal system that does not recognize a particular right, then according to the respondents, the Due Process Clause does not make that right binding on the states (McDonald at 780- 781).
The municipal respondents also argued for the Court to treat the right differently from the other rights deemed incorporated into the Due Process Clause because “it concerns the right to possess a deadly implement and thus has implications for public safety” (McDonald at 782).
The Court rejected these arguments. Examining the history of the Constitution, the Bill of Rights and the Fourteenth Amendment, the Court found that “the Framers and ratifiers of the Fourteenth Amendment counted the right to keep and bear arms among those fundamental rights necessary to our system of ordered liberty” (McDonald at 778). Therefore, the Court held that the Due Process Clause of the Fourteenth Amendment incorporates the Second Amendment right to possess a handgun in the home for the purpose of self-defense (McDonald at 791).
Where Are We Now?
McDonald was the last Second Amendment case the Court has heard, declining several opportunities in the last 10 years to address the “distressing trend” of treating “the Second Amendment as a disfavored right.” Peruta v. California, 137 S.Ct. 1995, 1999 (2017) (Thomas, J. dissenting from denial of certiorari). In Peruta, Justice Thomas decried the Court’s imposing a hierarchy of rights by hearing approximately 35 cases on the First Amendment and 25 cases on the Fourth Amendment, but nothing on the Second Amendment (at the time of Peruta, it had been 7 years since the Court decided McDonald). Two years earlier, Justice Thomas dissented from a denial of certiorari in Jackson v. City and County of San Francisco, 135 S.Ct. 2799, 2802 (2015), noting the need for the Court “to reiterate that lower courts may not engage” an interest-balancing inquiry into “the severity of a burden imposed on core Second Amendment rights” (citing Heller at 634).
In 2018, Justice Thomas again called out the habit of lower courts to ignore Heller and McDonald to apply a balancing or “rational-basis” review. Silvester v. Becerra, 138 S.Ct. 945 (2018). In his dissent from the Court’s denial of certiorari, Justice Thomas stated:
If a lower court treated another right so cavalierly, I have little doubt that this Court would intervene. But as evidenced by our continued inaction in this area, the Second Amendment is a disfavored right in this Court. Because I do not believe we should be in the business of choosing which constitutional rights are ‘really worth insisting upon,’ I would have granted certiorari in this case.
Silvester at 945 (citing Heller at 634).
This year, the Court denied certiorari to several Second Amendment cases. In addition to the famed New York State Rifle & Pistol Association, Inc. v. City of New York, 140 S.Ct. 1525 (2020) (Per Curiam) (Alito, Gorsuch and Thomas dissenting), wherein the Court denied certiorari on the basis of mootness, the Court also declined to hear 10 other cases. In Rogers v. Grewal, — S.Ct. — (2020), Justice Thomas again denounced the Court’s refusal to review any Second Amendment case since McDonald.
We have stated that this ‘fundamental righ[t]’ is ‘necessary to our system of ordered liberty.’ Yet in several jurisdictions throughout the country, law-abiding citizens have been barred from exercising the fundamental right to bear arms because they cannot show that they have a ‘justiciable need’ or ‘good reason’ for doing so. One would think that such an onerous burden on a fundamental right would warrant this Court’s review. The Court would almost certainly review the constitutionality of a law requiring citizens to establish a justifiable need before exercising their free speech rights. And it seems highly unlikely that the Court would allow a state to enforce a law requiring a woman to provide a justifiable need before seeking an abortion. But today, faced with a petition challenging just such a restriction on citizens’ Second Amendment rights, the Court simply looks the other way.
Rogers at 1.
Justice Thomas’ criticisms must not be forsaken. There is no denying the disturbing trend of lower courts to diminish the Heller and McDonald decisions. And yet, the importance of the Second Amendment has not been more apparent. June saw an unprecedented increase in firearm purchases, with close to half of those being first-time buyers. Why? Perhaps it is mere coincidence, but June also saw nationwide protests, riots, looting and violence in the name of defunding the police over the death of George Floyd by police in Minneapolis. In a bizarre twist, the loudest cries for defunding the police are in higher crime areas where the police are most needed and where progressive leaders for decades have been restricting (if not all out prohibiting) the people’s abilities to acquire or possess firearms.
But the media will not address this conundrum. If there was any question about how the fourth branch of government views the Second Amendment as the red-headed-stepchild of the Bill of Rights, such doubts were eliminated with the coverage of the McCloskeys. This couple in St. Louis gained instant notoriety at the end of June when video showed them standing outside their home wielding a rifle and a handgun and fending off protestors advocating for defunding and eliminating the police. The protestors were on their way to demonstrate in front of the mayor’s house, which was accessible only by a private road inside a gated community. So the protestors had broken through a gate in front of the McCloskey’s home to access the private road. The gate was marked with “NO TRESPASSING” and “PRIVATE STREET” signs (Associated Press, apnews.com/def4fbb664edeac24746cc7af0c5c555, June 29, 2020).
Predictably, the media has portrayed the trespassers as “peaceful protestors” and vilified the “gun-toting” McCloskeys. “Standing outside their palatial home, the couple—Mark wearing a pink polo and carrying a rifle and Patricia with her finger on the trigger of a pistol—looked like a portrait of weaponized white wealth” (The Daily Beast, thedailybeast.com/the-insane-neighborhood-drama-behind-the-gun-toting-st-louis-lawyer-couple, Jul. 1, 2020). The Circuit Attorney for St. Louis, Kimberly Gardner, stated that her office will not tolerate any effort to chill peaceful protest by the threat of deadly force (Associated Press, apnews.com/def4fbb664edeac24746cc7af0c5c555, Jun. 29, 2020).
Mr. McCloskey has explained that he and his wife feared for their lives and grabbed their guns when protestors threatened them and their property. “I turned to my wife, and I said, ‘Oh my God, we’re absolutely alone. There is nobody here to protect us’” (Fox News, foxnews.com/media/armed-st-louis-homeowner-speaks-out-protest, Jul. 1, 2020).
As more and more of us feel alone and unprotected, we will rely on our inherent right to protect ourselves against external threats. The Supreme Court recognized the right of self-defense to be central to the Second Amendment right (McDonald at 767; citing Heller at 599). “And whatever else [the Second Amendment] leaves to future evaluation, it surely elevates above all other interests the right of law-abiding, responsible citizens to use arms in defense of hearth and home” (Heller at 635).
Unfortunately, liberal progressive politicians reject this notion and brazenly inflict laws that cut against and chip away at this basic principle. Hopefully the Supreme Court will address this soon.
The information contained in this article is for general informational and educational purposes only and is not intended to be construed or used as legal advice or as legal opinion. You should not rely or act on any information contained in this article without first seeking the advice of an attorney. Receipt of this article does not establish an attorney-client relationship.
ABOUT THE AUTHOR
Johanna Reeves is the founding partner of the law firm Reeves & Dola, LLP in Washington, DC (reevesdola.com). For more than 17 years she has dedicated her practice to advising and representing U.S. companies on compliance matters arising under the federal firearms laws and U.S. export controls. Since 2011, Johanna has served as Executive Director for the Firearms and Ammunition Import/Export Roundtable (F.A.I.R.) Trade Group (fairtradegroup.org). She has also served as a member of the Defense Trade Advisory Group (DTAG) since 2016. Johanna can be reached at email@example.com or 202-715-9941.
|This article first appeared in Small Arms Review V24N8 (Oct 2020)|