McDonald v. Chicago: Due Process or Privileges or Immunities?

In McDonald v. City of Chicago (2010), the Supreme Court relied on the Due Process Clause of the Fourteenth Amendment to hold that the Second Amendment right to keep and bear arms applies to state and local governments. That was the constitutional clause at issue in McDonald v. Chicago: a five-justice plurality used Due Process to “incorporate” the right against the states, while Justice Thomas concurred in the judgment on a different clause of the same amendment, the Privileges or Immunities Clause.¹

Why the Clause Question Mattered

Two years before McDonald, the Court decided District of Columbia v. Heller (2008), which recognized an individual right to possess a firearm for lawful purposes such as self-defense in the home.² But Heller struck down a federal enclave’s law and said nothing about state and local governments. Chicago’s effective ban on handgun possession, achieved by refusing to accept new handgun registrations, could only be challenged if some part of the Constitution carried the Second Amendment’s protection into city hall.

That is the work incorporation does, and the Fourteenth Amendment is where the Court has always looked for it. The question in McDonald was which clause of the Fourteenth Amendment would carry the load.

The Due Process Clause of the Fourteenth Amendment

Section 1 of the Fourteenth Amendment, ratified in 1868, provides that no state shall “deprive any person of life, liberty, or property, without due process of law.”³ Over the twentieth century, the Supreme Court developed a doctrine known as selective incorporation, using that clause to apply individual protections from the Bill of Rights against state and local governments one right at a time.⁴

By 2010, most of the Bill of Rights had already made that trip: the First Amendment’s speech and religion protections, the Fourth Amendment’s search-and-seizure rule, the Fifth Amendment’s double jeopardy and self-incrimination protections, the Sixth Amendment’s trial rights, and the Eighth Amendment’s ban on cruel and unusual punishment.⁴ The Second Amendment was the conspicuous holdout.

The “Deeply Rooted” Test

A right qualifies for incorporation if it is “fundamental to our scheme of ordered liberty” and “deeply rooted in this Nation’s history and tradition.”⁵ Justice Alito’s plurality opinion answered both prongs in the affirmative for the right to keep and bear arms.

The opinion traced self-defense from English common law through the founding era, then gave particular weight to evidence from the Reconstruction period. The framers of the Fourteenth Amendment, the plurality wrote, were acutely concerned that former Confederate states were disarming newly freed Black citizens and leaving them defenseless against organized violence. Congressional debates from the 1860s repeatedly invoked the right to bear arms as one of the fundamental rights the amendment was designed to protect.⁵

Because the right passed both prongs, the plurality concluded that the Due Process Clause incorporates the Second Amendment right recognized in Heller against state and local governments.¹ Chicago’s handgun ban could not survive.

The Same Standard That Binds Washington

Once incorporated through Due Process, a Bill of Rights protection applies to states under the same standard that governs the federal government. The plurality said so directly: those protections “must all be enforced against the States under the Fourteenth Amendment according to the same standards that protect those personal rights against federal encroachment.”⁵ A city cannot enact a firearms restriction that Heller would forbid Congress from enacting.

Justice Thomas’s Alternative: The Privileges or Immunities Clause

Justice Thomas agreed the Second Amendment applies to state and local governments but declined to sign onto the Due Process reasoning. In a lengthy concurrence, he argued the right should be incorporated through a different clause of the same constitutional sentence: the Privileges or Immunities Clause, which provides that no state shall “abridge the privileges or immunities of citizens of the United States.”³

Thomas’s core objection was textual. The Due Process Clause, he wrote, “speaks only to ‘process,'” and using it to define the substance of protected rights is “a legal fiction” that “strains credulity for even the most casual user of words.” The Privileges or Immunities Clause, by contrast, directly addresses what states cannot take away from their citizens. Thomas marshaled Reconstruction-era evidence showing that the amendment’s framers understood “privileges or immunities” to include the individual rights listed in the Bill of Rights, and the right to keep and bear arms in particular.⁶

Why the Plurality Would Not Go There

The Privileges or Immunities Clause had been sidelined for nearly a century and a half. In the Slaughter-House Cases of 1873, the Court read the clause narrowly, holding that it protected only a limited set of rights tied to national citizenship rather than the broad individual liberties its framers had described.⁷ The Court developed Due Process incorporation as a workaround in the decades that followed.

The four justices in the McDonald plurality acknowledged the historical case for Thomas’s position but saw no reason to overturn 140 years of settled precedent to reach the same result. Reviving the clause would open unpredictable questions about what other rights it might protect. The Due Process framework already existed and was widely accepted.¹ So the Court’s controlling reasoning rests on Due Process, and Thomas’s Privileges or Immunities theory remains a solo concurrence, influential in academic circles but not the law.

What Incorporation Did Not Do

The clause the Court chose incorporates the Second Amendment right, but not more than the right itself. The opinion repeated Heller‘s assurance that “incorporation does not imperil every law regulating firearms.” Longstanding prohibitions on possession by felons, restrictions in sensitive locations such as schools and government buildings, and regulations on the commercial sale of arms all remain permissible.² The core holding is narrower: a state or city cannot flatly prohibit law-abiding residents from keeping a commonly owned handgun in the home for self-defense.

The Dissenting Views on the Clause

Justices Stevens and Breyer each filed separate dissents. Justice Breyer, joined by Justices Ginsburg and Sotomayor, argued that the right to keep and bear arms differs in kind from other incorporated rights because of the public safety concerns firearms present, and that local governments should retain flexibility to craft regulations for their own conditions.⁵ Justice Stevens wrote separately, challenging the plurality’s historical analysis and arguing that the Court should weigh the practical consequences of incorporation rather than resting on whether the right is deeply rooted in tradition.

The dissents did not defend a different clause. They disputed whether either Due Process or Privileges or Immunities should carry the Second Amendment to the states at all. On that question, five justices said yes, and Due Process was the clause that got them there.

1
Justia U.S. Supreme Court Center. McDonald v. City of Chicago, 561 U.S. 742 (2010)
2
Supreme Court of the United States. District of Columbia v. Heller
3
Congress.gov. Fourteenth Amendment
4
Constitution Annotated. Modern Doctrine on Selective Incorporation of Bill of Rights
5
Library of Congress. McDonald v. Chicago, 561 U.S. 742 (2010)
6
Cornell Law Institute. McDonald v. Chicago – Thomas, J., Concurring
7
Justia U.S. Supreme Court Center. Slaughterhouse Cases, 83 U.S. 36 (1873)