Otis McDonald and three other Chicago residents wished to keep handguns in their homes for self-defense but are prohibited from doing so by Chicago’s firearms laws. The petitioners challenged the Chicago statute.
The Second Amendment protects the right to keep and bear arms for the purpose of self-defense and this provision of the Bill of Rights apply with full force to both the Federal Government and the States.
Chicago prohibits keeping a handgun in their property to protect its residents from the loss of property and injury or death from firearms. The Chicago petitioners argue that the handgun ban has left them vulnerable to criminals. Chicago Police Department statistics reveal that the City’s handgun murder rate has actually increased since the ban was enacted and that Chicago residents now face one of the highest murder rates in the country and rates of other violent crimes that exceed the average in comparable cities. Petitioners argue that the Chicago laws violate the right to keep and bear arms under the privileges and immunities of citizens of the United States.
Does Chicago laws that prohibit individuals from keeping a firearm in their property violate the Constitution?
Yes, the Second Amendment protects the right to possess a handgun in the home for the purpose of self-defense. A provision of the Bill of Rights that protects a right that is fundamental from an American perspective applies equally to the Federal Government and the States. Therefore, the Due Process Clause of the Fourteenth Amendment incorporates the Second Amendment right and the Chicago laws that prohibit individuals from possessing a handgun in their property violates the Constitution.
Nothing in the Second Amendment’s text, history, or underlying rationale warrants characterizing what is fundamental insofar as it seeks to protect the keeping and bearing of arms for private self-defense purposes. Determining the constitutionality of a particular state gun law requires finding answers to complex empirical based questions of a kind that legislatures are better able than courts to make.
There is a more straightforward path to the conclusion than consulting the Second Amendment. To right to keep and bear arms is a privilege of American citizenship that applies to the States through the Fourteenth Amendment’s Privileges and Immunities Clause.
Evidence from the period immediately following the ratification of the Fourteenth Amendment confirms that the right to keep and bear arms was considered fundamental. Congress routinely referred to the right to keep and bear arms and decried the continued disarmament of blacks in the South in 1870s and legal commentators from the period emphasized the fundamental nature of the right. Self-defense is a basic right, recognized by many legal systems from ancient times to the present day and in Heller, the Court held that individual self-defense is the central component of the Second Amendment right. In debating the Fourteenth Amendment, the 39th Congress referred to the right to keep and bear arms as a fundamental right deserving of protection. All this evidence indicates that a State may not prohibit individuals from possessing a handgun in their property for the purpose of self-defense.