Document Type


Publication Date

January 2010


The Supreme Court of the United States has granted certiorari in the case of McDonald v. City of Chicago to consider this question:

"Whether the Second Amendment right to keep and bear arms is incorporated as against the States by the Fourteenth Amendment’s Privileges or Immunities or Due Process Clauses."

This case follows and seeks to build upon District of Columbia v. Heller which held that the Second Amendment protects both the right to self-defense and what has been termed an individual right to bear arms. Of course, Heller’s application is limited to the federal government and has no direct application to the states. Yet all knew, as surely as night follows day, that the question of applying Heller to the states would be the next inevitable step in the litigation.

At one level, Heller was a monumental decision. It was the first case in modern times where the Court squarely considered whether there was an individual right to bear arms under the Second Amendment and it was the first time in which the Court indicated there was a constitutional right to engage in self defense. On the other hand, this case could also be viewed as simply reigning in an “outlier.” Justice Scalia’s opinion, by recognizing a right to have arms but reassuring lower courts that this would not interfere with traditional regulation of those arms, displaced only “outlier” regulations and crafted an opinion which paralleled the views of the majority of people in the nation.

Extending Heller to the states would have both a greater and a smaller impact than Heller itself. It would have a greater impact, because it would apply to all fifty states and encompass more people and a much larger geographical region than Heller which only applies to the District of Columbia and other federal enclaves. Yet it can be said to have a smaller impact because while it may conflict with laws of a city like Chicago, it would be largely congruent with the state laws and most city regulations across the country. Though it is easy to see how the rationale of Heller could be extended and enforced against the states by the Fourteenth Amendment, the purpose of this essay is to illustrate how the right to bear arms could be reasonably enforced against the states even without reference to Heller.

Publication Title

Cardozo Law Review, de●novo

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