McDonald v. City of Chicago — Second Amendment Incorporated Against States

McDonald v. City of Chicago, 561 U.S. 742 (2010), is the Supreme Court decision that completed the transformation of the Second Amendment from a federalism provision — limiting only Congress and the federal government — into a full constitutional right enforceable against every state legislature, city council, and county government in the nation. Two years after District of Columbia v. Heller (2008) established that the Second Amendment protects an individual right to possess firearms for self-defense, McDonald answered the follow-on question: does that right bind the states? The Court said yes — 5-4 — applying the Bill of Rights incorporation doctrine through the Fourteenth Amendment. As a result, the handgun ban that Chicago and Oak Park, Illinois had maintained for decades was struck down. More importantly, McDonald meant that every state and local firearms regulation in America is now subject to Second Amendment scrutiny — a framework further developed in New York State Rifle & Pistol Association v. Bruen (2022) and United States v. Rahimi (2024).

Current Law (2026)

Legal Authority

• U.S. Const. amend. XIV, § 1 — Due Process Clause: "No State shall . . . deprive any person of life, liberty, or property, without due process of law" — the vehicle the plurality used to incorporate the Second Amendment
• U.S. Const. amend. XIV, § 1 — Privileges or Immunities Clause: "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States" — Justice Thomas's preferred incorporation vehicle
• U.S. Const. amend. II — "A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed"
• District of Columbia v. Heller, 554 U.S. 570 (2008) — Established the individual right to possess firearms for self-defense; McDonald extended it to the states
• Slaughter-House Cases, 83 U.S. (16 Wall.) 36 (1873) — Gutted the Privileges or Immunities Clause five years after the Fourteenth Amendment's ratification; Thomas's concurrence argued this was wrongly decided
• Palko v. Connecticut, 302 U.S. 319 (1937) — Set the selective incorporation test: rights "fundamental to the concept of ordered liberty"
• 42 U.S.C. § 1983 — Civil action for deprivation of incorporated constitutional rights by state and local actors

Key Mechanics

McDonald v. City of Chicago (2010) held 5-4 that the Second Amendment right recognized in District of Columbia v. Heller (2008) applies to state and local governments through the Fourteenth Amendment's Due Process Clause. Chicago had a handgun registration system that effectively banned new handgun registration; plaintiffs (including Otis McDonald) challenged it after Heller struck down D.C.'s handgun ban. The plurality (Alito, Roberts, Scalia, Kennedy) applied selective incorporation via the Due Process Clause: a right is incorporated if it is "fundamental to the concept of ordered liberty" (Palko) or "deeply rooted in this Nation's history and tradition." The plurality found the right to keep firearms for self-defense satisfies both tests. Justice Thomas concurred but argued incorporation should flow through the Privileges or Immunities Clause — a path that would require overturning the Slaughter-House Cases (1873). Justice Thomas's preferred route has gained attention from originalist scholars; its adoption would potentially expand the scope of incorporated rights. The practical effect of McDonald: state and local handgun restrictions face the same constitutional challenges as federal restrictions, and lower courts must apply Heller's standard (in-common-use weapons for lawful purposes are protected) to state laws. New York State Rifle & Pistol Assn. v. Bruen (2022) extended this framework, requiring that gun regulations have historical analogues from the founding era or Reconstruction rather than merely satisfying interest-balancing tests.

How It Works

Background: Chicago's handgun ban. After the Supreme Court struck down the District of Columbia's handgun ban in Heller (2008), gun owners and Second Amendment advocates immediately turned to city and state laws. Chicago had maintained one of the nation's strictest handgun prohibitions since 1982: the city required registration of all firearms, prohibited the registration of handguns, and effectively banned all handgun possession within city limits. Otis McDonald, a 76-year-old retired maintenance engineer who lived in a high-crime neighborhood on Chicago's South Side, wanted to keep a handgun at home for self-defense. The National Rifle Association filed a parallel challenge targeting Oak Park, Illinois, which had a similar ban. The cases were consolidated on appeal.

The key legal question. Heller involved the District of Columbia — a federal enclave under direct congressional authority. The Second Amendment, like the rest of the Bill of Rights, was understood at the Founding to apply only to the federal government, not the states. To strike down Chicago's ordinance, the Court would have to hold that the Second Amendment is "incorporated" against the states through the Fourteenth Amendment. This required applying the established selective incorporation framework: whether the right is "fundamental to the scheme of ordered liberty" or "deeply rooted in this Nation's history and tradition."

The Alito plurality on Due Process incorporation. Justice Alito wrote for a four-justice plurality (himself, Roberts, Scalia, and Kennedy), applying the standard selective incorporation methodology through the Fourteenth Amendment's Due Process Clause. The analysis was straightforward: Heller had already determined that the Second Amendment protects a right to self-defense that is "deeply rooted in this Nation's history and tradition." That determination controlled the Due Process incorporation question — if a right is deeply rooted in national history and tradition, it is incorporated. The plurality surveyed the right to keep and bear arms in pre-Civil War history, Reconstruction-era debates over the Fourteenth Amendment, and the consistent treatment of the Second Amendment as a fundamental individual right in American legal culture. It found the evidence overwhelming: the right to armed self-defense was deeply rooted, fundamentally important, and must be incorporated.

Justice Thomas's pivotal concurrence: Privileges or Immunities. Justice Thomas provided the fifth vote for the result — striking down the Chicago ban — but on entirely different grounds. Thomas argued that the plurality's Due Process incorporation approach was historically inaccurate and that incorporation should run through the Fourteenth Amendment's Privileges or Immunities Clause instead.

Thomas traced the original understanding of the Privileges or Immunities Clause, arguing that the clause was specifically designed to protect the freedoms enumerated in the Bill of Rights from state abridgment — solving the problem Barron v. Baltimore (1833) had created by holding that the Bill of Rights constrained only the federal government. Thomas argued that the Slaughter-House Cases (1873) — which gutted the Privileges or Immunities Clause five years after ratification — were wrongly decided and had distorted constitutional law ever since. Under a correct reading of the Privileges or Immunities Clause, Thomas wrote, the Second Amendment right to keep and bear arms is unquestionably a "privilege or immunity" of U.S. citizenship that states cannot abridge.

The practical outcome was the same: Chicago's ban fell. But Thomas's concurrence — joined by no other justice — has been the most legally significant element of the decision for subsequent scholarship. It revived serious discussion of whether the Privileges or Immunities Clause should displace Due Process incorporation, which could have far-reaching consequences for other constitutional rights. No majority has adopted Thomas's view, but it remains a live theoretical possibility in a Court that has shown willingness to revisit historical constitutional questions.

The Stevens and Breyer dissents. Justice Stevens (joined by Ginsburg, Breyer, and Sotomayor) dissented on the merits, arguing that the selective incorporation test had been misapplied. In his view, the Second Amendment right recognized in Heller was specifically tailored to the federal context — involving a federal district — and could not be straightforwardly "incorporated" because the question of whether the right applies to state and local governments involved different historical and structural considerations. Justice Breyer dissented separately (joined by Ginsburg and Sotomayor), arguing that the plurality's historical analysis was selective and that the Court should defer to democratic experimentation in firearms regulation. Breyer pointed to the extensive empirical evidence on the relationship between handgun availability and urban gun violence, arguing that courts are poorly positioned to second-guess legislative judgments in this domain.

Implications for state and local gun regulation. McDonald's most concrete effect was to subject the entire universe of state and local firearms regulation to Second Amendment scrutiny. Before McDonald, state and local governments could enact firearms laws constrained only by their own state constitutions. After McDonald, every state statute, county ordinance, and city regulation affecting firearms must comply with the federal Second Amendment. Combined with Heller's identification of "presumptively lawful" categories — felon prohibitions, sensitive place restrictions, commercial sale conditions, dangerous and unusual weapons bans — and Bruen's (2022) text/history/tradition test, McDonald transformed the constitutional landscape for firearms legislation at every level of government.

The Heller-McDonald-Bruen-Rahimi arc. McDonald is the second step in what has become a four-case doctrinal arc:

1. Heller (2008): Established the individual right; struck down DC's handgun ban; identified "presumptively lawful" regulatory categories
2. McDonald (2010): Incorporated the right against states; struck down Chicago's handgun ban; revived the Privileges or Immunities Clause debate
3. Bruen (2022): Established the text/history/tradition test; struck down New York's "proper cause" carry licensing; extended Second Amendment protection to public carry
4. Rahimi (2024): First major application of Bruen's test; upheld federal domestic violence firearms prohibition; clarified that "principles not twins" governs historical analogy

The arc has moved the Second Amendment from a rarely-litigated constitutional provision to one of the most actively contested areas of constitutional law, with hundreds of challenges pending in federal courts at any given time.

How It Affects You

If you are a gun owner living in a state or city with strict firearms regulations: McDonald is the foundational ruling that makes the Second Amendment your constitutional shield against state and local gun laws. Before McDonald, a city could ban all handguns and you had no federal constitutional remedy — you could only look to your state constitution. After McDonald, any state or local regulation that burdens your Second Amendment rights is subject to federal constitutional challenge under the text/history/tradition test established in Bruen (2022). What McDonald did not do: it did not strike down all gun regulations, did not prevent shall-issue licensing systems for carrying in public, and did not address regulations like background checks, waiting periods, or safe storage laws (whose constitutionality is determined under Bruen's framework). If you believe a specific state or local firearms regulation violates your Second Amendment rights, an attorney specializing in firearms law can assess the regulation against the Bruen historical-tradition framework. The Second Amendment Foundation and Firearms Policy Coalition actively litigate post-McDonald challenges and may be able to connect you with counsel.

If you are a state legislator or local official drafting gun policy: McDonald means there is no local opt-out from Second Amendment scrutiny. Cities that previously maintained strict handgun bans (Chicago, Oak Park, San Francisco, Washington D.C.) were forced to revise their ordinances. Any new firearms regulation you enact will be subject to federal constitutional challenge under Bruen's text/history/tradition test — meaning your regulation must be grounded in a historical analogue from the Founding or Reconstruction era. Regulations that survive constitutional scrutiny (based on current case law): shall-issue licensing with objective criteria, prohibitions on felons and the adjudicated mentally ill, location restrictions in traditionally "sensitive places" (schools, government buildings), and conditions on commercial firearms sales. Regulations facing greater scrutiny: broad assault weapon bans, location restrictions extending far beyond traditional sensitive places, and licensing regimes with subjective or discretionary criteria. Building a historical record supporting your regulatory choice — including working with legal historians — is now part of the legislative process for firearms laws.

If you are a civil rights attorney or Section 1983 litigant: McDonald made 42 U.S.C. § 1983 available as an enforcement vehicle for Second Amendment claims against state and local officials. Before incorporation, federal civil rights claims for firearms-related grievances were limited to federal actors. After McDonald, a gun owner whose incorporated Second Amendment rights are violated by a city's unconstitutional ordinance can sue the city under § 1983 for damages and injunctive relief. The standard obstacles to § 1983 recovery apply: municipalities are liable for constitutional violations caused by an official policy or custom (Monell v. Department of Social Services, 1978) — a city's handgun ban is quintessentially an official policy. Individual officers may raise qualified immunity for their specific enforcement actions. The litigation strategy in post-McDonald Second Amendment cases typically involves seeking permanent injunctive relief against unconstitutional statutes (where the policy/custom requirement is easily met) rather than pursuing damages against individual officers.

If you are a constitutional law scholar or policy researcher: McDonald's most enduring theoretical contribution is Justice Thomas's Privileges or Immunities Clause concurrence. If Thomas's view — that the Slaughter-House Cases (1873) were wrongly decided and that incorporation properly runs through Privileges or Immunities rather than Due Process — were ever adopted by a Court majority, the implications would extend far beyond the Second Amendment. Economic liberties that were de-incorporated during the Lochner-era backlash (freedom of contract, property rights against economic regulation) might be reincorporated. The clause's original meaning as described by Thomas would protect a broad set of rights incident to national citizenship. The question of which rights count as "privileges or immunities" is contestable and could be shaped by the same kind of historical inquiry Bruen requires for firearms regulations. No majority has moved in this direction, but the Court's current originalist supermajority has shown willingness to revisit long-settled constitutional questions — see Dobbs v. Jackson Women's Health Organization (2022) overruling Roe v. Wade.

State Variations

McDonald applies equally to all fifty states, the District of Columbia, and U.S. territories. It eliminated the ability of jurisdictions to opt out of Second Amendment scrutiny through local firearms prohibitions. The immediate post-McDonald landscape:

• Illinois revised its firearms laws after McDonald and subsequently enacted a shall-issue concealed carry statute in 2013 (under judicial pressure from the Seventh Circuit holding that Illinois's categorical prohibition on public carry was unconstitutional).
• California, New York, New Jersey, Maryland, Massachusetts, and Hawaii — states with the most restrictive pre-McDonald regimes — have all faced sustained post-McDonald and post-Bruen litigation. Bruen (2022) forced the "may-issue" states to revise their carry licensing systems.
• Many cities that maintained assault weapon bans, magazine capacity limits, or elevated purchase requirements are now defending these laws under the Bruen text/history/tradition test.

State constitutions provide independent and often broader protections. Forty-six states have explicit right-to-bear-arms provisions in their state constitutions, and many state courts have interpreted these provisions to be at least as protective as the federal Second Amendment, sometimes more so. The federal floor set by McDonald is the minimum — states and cities cannot provide less than the Second Amendment guarantees, but many state constitutions provide more.

Pending Legislation

No federal legislation is pending that would directly modify the McDonald holding — which is a constitutional ruling and could only be reversed by the Supreme Court itself or by a constitutional amendment through the Article V process. Federal and state legislation affecting the practical scope of the incorporated Second Amendment right continues to be enacted and challenged:

• Ghost Gun Final Rule (ATF, 2022) — Required serialization and background checks for privately made firearms; challenged in multiple federal courts under Bruen
• Bipartisan Safer Communities Act (Pub. L. 117-159, 2022) — Enhanced background checks for under-21 buyers, domestic violence dealer definitions; subject to ongoing constitutional litigation
• State assault weapon bans — Multiple states have enacted or defended assault weapon bans post-Bruen; these are being litigated in the Seventh, Ninth, and Fourth Circuits

Recent Developments

• 2024 — United States v. Rahimi (2024): The first Supreme Court application of Bruen's text/history/tradition test confirmed that the incorporated Second Amendment permits disarming persons who pose a credible threat — the federal domestic violence prohibition survived 8-1. Chief Justice Roberts's majority opinion clarified that historical analogues need not be identical, only "well-established and representative." See United States v. Rahimi.
• 2022 — New York State Rifle & Pistol Association v. Bruen: Extended McDonald's incorporation to the context of public carry, striking New York's discretionary carry licensing. Established the text/history/tradition test that replaced means-end scrutiny in all Second Amendment cases. See Bruen.
• 2019–2022 — Post-McDonald circuit development: After McDonald, lower courts used a two-step framework (Second Amendment scope + intermediate scrutiny) that Bruen later rejected. The circuit courts' decade of post-McDonald but pre-Bruen precedents were largely displaced by the Bruen framework.
• 2010 — McDonald decided (June 28, 2010): Justice Alito's plurality incorporated the Second Amendment via Due Process; Justice Thomas's concurrence argued for Privileges or Immunities. The 5-4 ruling struck Chicago's handgun ban and established that the individual right recognized in Heller applies to every level of American government.