NRA- McDonld v. Chicago "Handgun ownership is now legal and constitutionally protected everywhere in the United Sates."

SPECIAL
D I G I TA L
EDITION

www.nranews.com July 2010

D I G I TA L

WINS OF
McDonalD v. chicago

CHANGE
In a historic decision,
the u.s. Supreme Court rules
that the Second Amendment
applies to all 50 states.

I G I T A L • JUL10 S P E C I A L E D I T I O N
A N A M E R I C A N V I C T O R Y

WAYNE LAPIERRE
EXECUTIVE VICE PRESIDENT, NRA

“THIS IS A LANDMARK DECISION. THE SECOND AMENDM
EVERY CITIZEN’S CONSTITUTIONAL RIGHT—IS NOW A R
OF AMERICAN CONSTITUTIONAL LAW.”

i g i t a l • JUl10 S P E C I A L E D I T I O N
a n a m e r i c a n v i c t o r y

Wayne lapierre
executive vice president, nra

“This is a landmark decision. The second amendm
every ciTizen’s consTiTuTional righT—is noW a re
of american constitutional laW.”

SPECIAL
D I G I TA L
EDITION

www.nranews.com July 2010

D I G I TA L

WINS OF
McDonalD v. chicago

CHANGE
In a historic 5-4 decision,
the u.s. Supreme Court rules
that the Second Amendment
applies to all 50 states.


WINS OF
CHANGE
iN MCDONALD V. CHICAGO, tHE U.S. SUPREME COURt
RUlES tHat tHE SECOND aMENDMENt aPPliES tO
EVERY laW-aBiDiNg CitiZEN iN EVERY CitY iN aMERiCa.


Victorious plaintiff
otis mcdonald

McDonalD can
be The sTarTing
poinT—The
firsT sTeps—in
rescuing the
people of our
most anti-gun
states from our
Worst and most
oppressive
anti-gun laWs.

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Thomas concurred in the judgment but relied on the 14th Amendment’s
Privileges or Immunities clause rather than the Due Process clause.
Accordingly, the court reversed the decision of the Seventh Circuit Court of
Appeals, which had upheld the Chicago and Oak Park, Ill., handgun bans on the
theory that the Second Amendment only limits the federal government.
“This decision makes absolutely clear that the Second Amendment
protects the God-given right of self-defense for all law abiding
Americans, period,” said Chris W. Cox, nra-ila Executive Director.
“Ironically, while crime in Chicago runs rampant and lawmakers there
call on the National Guard for help, Mayor Daley has insisted on leaving
the residents of his city defenseless. Today’s opinion puts the law back
on the side of the law-abiding. We will be watching closely to make sure
that Chicago abides by both the letter and the spirit of the Supreme
Court’s decision.”
The case now goes back to the federal district court (the trial court) in
Illinois. Realistically, the only thing the trial court can do with the case is
issue an order formally striking down the Chicago and Oak Park bans.
The city of Chicago’s Corporation Counsel (the city’s legal
department) has already told the Chicago police department
to immediately start allowing Chicagoans to register handguns.
Handgun ownership is now legal, and constitutionally protected,
everywhere in the United States.
Four dissenting justices supported the handgun bans. Justice John
Paul Stevens, who is retiring, wrote a dissenting opinion on his own.
Justice Stephen Breyer wrote another dissent, which was joined by
Justices Ruth Bader Ginsburg and Sonia Sotomayor.
All four of the dissenting justices made it clear that they are eager to
overturn District of Columbia v. Heller, and thereby write the Second
Amendment out of the Constitution. This means that Justice Sotomayor
was not exactly telling the whole story when she told the Senate last summer
that she “accepted” the Heller decision and considered it to be “settled law” (See
sidebar, next page).
Justice Alito’s opinion in the McDonald case is magnificent. It certainly shows
that Justice Scalia, author of the Heller opinion, is not alone in his knowledge of
the history of the Second Amendment.


WINS OF
firearm freedom arrives in tHe Windy city

CHANGE iN MCDONALD V. CHICAGO, tHE U.S. SUPREME COURt
RUlES tHat tHE SECOND aMENDMENt aPPliES
EVERY laW-aBiDiNg CitiZEN iN EVERY CitY iN aMERiCa.
tO

V
ictory!
On June 28, decent, law-abiding
Americans saw their fundamental
b y
right to defend their homes and
families upheld by the u.s. Supreme
Dav e Ko p e l Court—a battle won in the still
ongoing war for our Right to Keep
and Bear Arms.
By a vote of 5-4, the Supreme
Court in McDonald v. Chicago
decided the Second Amendment,
exactly like the majority of the Bill
of Rights, fully applies to every state and local government in the United States.
“This is a landmark decision,” said nra Executive Vice President Wayne LaPierre.
“The Second Amendment—as every citizen’s constitutional right—is now a real part
of American constitutional law. The nra will work to ensure this constitutional victory
is not transformed into a practical defeat by activist judges, defiant city councils or
cynical politicians who seek to pervert, reverse or nullify the Supreme Court’s
McDonald decision through Byzantine labyrinths of restrictions and regulations
that render the Second Amendment inaccessible, unaffordable or otherwise
impossible to experience in a practical, reasonable way.”
Justice Samuel Alito wrote the opinion of the court, joined by Justices Antonin
Scalia, Anthony Kennedy and Chief Justice John Roberts. The court held that the
Second Amendment applies to the states through the 14th Amendment. Justice Clarence


cHicago mayor ricHard daley

The ciTy of chicago’s corporaTion counsel
(legal deparTmenT) has already Told The chicago
police deparTmenT to immediately start alloWing
cHicagoans to register Handguns.

A n A m e r i C A n V i C t O r Y

Of Anti-Gunners & Lies

I t didn’t take long after
decision was announced by the u.
before spokesmen for gun-ban organiz
doing the two things they do best—cla
PAuL HeLmke the depths of defeat, while at the same
suPreme COurt
JUne 28, 2010 the carnage to come!
Paul Helmke, p
so-called Brady C
Prevent Gun Vio
a major victory fo
“We can expec
as a result of tod
by the u.s. Supre
McDonald v. Ch
lobby and gun c
it to try to strike
and those legal c
continue to fail,”
in trying to put
on the enormou
dealt to gun-ban
pleased that the


s o t o m ayo r ’ s

W
“ s e t t l e d l aW ”

hen the Senate was considered Heller to be “settl
considering the Supreme Court I guess that depends what t
nomination of Sonia Sotomayor last summer, she Justice Sotomayor joined t
repeatedly testified to the Judiciary Committee that she claimed that Heller was wron
declared, “In sum, the Frame
Second Amendment in orde
of armed self defense.”
In retrospect, the nra was
her nomination.
Justice Sotomayor’s role in
squared with the assurances
last year.
Her disappointing behavio
importance of senators close
Court nominee Elena Kagan
I will be testifying to the S
nomination on July 1 or 2. M
be available on my website, w
June 30.
Dave Kopel

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Near the beginning of the opinion, he observed the results of the Chicago
handgun ban: “the City’s handgun murder rate has actually increased since the
ban was enacted,” and “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.”
The court’s sources for these facts were amicus briefs from the Heartland
Institute (a think tank in Chicago), the Buckeye Institute (a think tank in Ohio)
and my amicus brief filed on behalf of the International Law Enforcement
Educators and Trainers Association (ileeta).
led law.” Also joining the ileeta brief were other
the meaning of “settled” is. law enforcement organizations, scholars,
the Breyer dissent, which the Congress on Racial Equality and the
Independence Institute (the Colorado think
ngly decided, and which
tank where I work).
ers did not write the Justice Alito pointed to the very real self-
er to protect a private right defense needs of Chicagoans. For example, the
lead plaintiff, “Otis McDonald, who is in his late
s clearly right to oppose seventies, lives in a high-crime neighborhood.
He is a community activist involved with
n McDonald cannot be alternative policing strategies, and his efforts to
s that she gave the Senate improve his neighborhood have subjected him
to violent threats from drug dealers.”
Next, the opinion provided a detailed history
or highlights the of the legal application of the Bill of Rights to
ely scrutinizing Supreme the states. To make a long story short, before the
n. Civil War, most courts viewed the Bill of Rights
Senate about the Kagan as a restraint only on the federal government.
My written testimony will Because of the problems that had resulted, in
www.davekopel.org, on 1866 Congress proposed the 14th Amendment,
which was ratified by the states.
According to the 14th Amendment, “No
State shall make or enforce any law which shall
abridge the privileges or immunities of citizens of the United States.” A huge
body of historical evidence shows that this clause was meant to make all of the
first eight amendments enforceable against the states.
However, a majority of the Supreme Court essentially nullified the Privileges or


u.s. supreme court justice
samuel alito

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Immunities clause. The court started to do so by a 5-4 vote in an 1873 decision,
the Slaughterhouse Cases. The court then finished the job of destroying the
Privileges or Immunities clause in the 1875 case United States v. Cruikshank.
That case ruled that the Second Amendment and the First Amendment right of
assembly were not covered by the Privileges or Immunities clause.
The 1886 case of Presser v. Illinois (a statewide ban on armed parades) and the
1894 case of Miller v. Texas (involving a white man who was violently attacked by
the police because he was having a romantic relationship with a black woman)
affirmed that the Second Amendment, like all of the Bill of Rights, was not
protected by the Privileges or Immunities clause.
Starting in 1897, the Supreme Court began implementing a new approach
to the 14th Amendment, while being
careful not to overrule the Privileges
“cHicago residents or Immunities precedents. The
noW face one of court turned to another clause of
tHe HigHest murder the amendment: “nor shall any State
rates in tHe country deprive any person of life, liberty, or
property, without due process of law.”
and raTes of oTher In American law, the concept of “due
violenT crimes ThaT process” had always been considered
exceed The average in to have some substantive content, so as
comparable ciTies.” to prohibit some kinds of outrageous
government actions, even if the
government followed appropriate
procedures. For example, if a legislature enacted a law that, after appropriate
public hearings, debate, and so on, said “We take a’s property and give it to b,” the
law would violate Due Process.
So the Supreme Court began “selective incorporation” of particular parts
of the Bill of Rights. Once “incorporated” into the 14th Amendment through
Due Process, the particular part of the Bill of Rights then applied to the states.
Since local governments get all their powers from the state, any right that is
incorporated against the states must also be obeyed by local governments.
By the late 1960s, the court had selectively incorporated almost all of the Bill
of Rights—except for the Fifth Amendment right to grand jury indictment, the
Third Amendment (quartering soldiers in the home), the Seventh Amendment
right to jury trials in civil (non-criminal) cases and the Eighth Amendment’s


of anti-gunners & lies

I t didn’t take long after
decision was announced by the u.
before spokesmen for gun-ban organiz
doing the two things they do best—cla
paul Helmke the depths of defeat, while at the same
supreme court
JUNE 28, 2010 the carnage to come!
Paul Helmke, p
so-called Brady C
Prevent Gun Vio
a major victory fo
“We can expec
as a result of tod
by the u.s. Supre
McDonald v. Ch
lobby and gun c
it to try to strike
and those legal c
continue to fail,”
in trying to put
on the enormou
dealt to gun-ban
pleased that the

Comment

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its language in District of Columbia v. Heller that
the Second Amendment individual right to possess
guns in the home for self-defense does not prevent
our elected representatives from enacting common-
r the McDonald sense gun laws to protect our communities from
.s. Supreme Court gun violence.”
zations began For her part, Kristen Rand at the Violence Policy
aiming victory in Center took the opposite tack—the time-tested, but
time warning of always wrong, “blood in the streets” claim.
“People will die because of this decision,” Rand said. “It
president of the is a victory only for the gun lobby and America’s fading
Campaign to firearm industry.
olence, declared it “The inevitable tide of frivolous pro-gun litigation
for gun banners. destined to follow will force cities, counties and states
ct two things to expend scarce resources to defend longstanding,
day’s decision effective public safety laws. The gun lobby and gun
eme Court in makers are seeking nothing less than the complete
hicago: the gun dismantling of our nation’s gun laws in a cynical effort
criminals will use to try and stem the long-term drop in gun ownership
e down gun laws, and save the dwindling gun industry.”
challenges will Of course, Rand’s fantasy of a long-term drop in gun
” Helmke said, ownership is nothing more than an outright lie. And
a positive spin recent fbi reports indicate that with more guns in the
us blow the court hands of law-abiding citizens than ever before, violent
n groups. “We are crime rates continue to fall to all-time lows.
court reaffirmed Mark Chesnut, Editor


stepHen
Halbrook

paul
clement

stepHen d. poss

nra was represenTed in McDonalD by a sTellar legal T
including former u.s. soliciTor general paul clement o
spalding llp, aTTorney and second amendmenT hisToria
Halbrook and aTTorney stepHen d. poss of goodwin pr

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prohibition on excessive fines. And of course the court had never addressed
the question of whether the Second Amendment is incorporated through the
Due Process clause.
In the McDonald briefing, nra primarily urged the court to incorporate via
Due Process. Alan Gura, attorney for Otis McDonald, focused on asking the
court to overturn Slaughterhouse and to incorporate via Privileges or Immunities.
(In the Seventh Circuit Court of Appeals, the case of McDonald v. Chicago had
been consolidated with the parallel cases of nra v. Chicago and nra v. Oak Park.
The Supreme Court granted certiorari in the McDonald case only, but made nra
and Oak Park parties to the case.)
Justices Alito, Roberts, Scalia and Kennedy declined to overturn the old
Privileges or Immunities precedents, instead following more than a century of
Due Process precedents that provide a road map for incorporation.
Under the modern test for incorporation, the court explained, the questions
are “whether the right to keep and bear arms is fundamental to our [American]
scheme of ordered liberty” and “whether this right is ‘deeply rooted in this
Nation’s history and tradition.’”
“Self-defense is a basic right,” wrote Justice Alito. And (quoting from Heller),
the “inherent right of self-defense has been central to the Second Amendment
right.” He explained that Heller had protected the right to own handguns because
handguns are “the most preferred firearm in the nation to ‘keep’ and use for
protection of one’s home and family.”
Further, the court detailed how Heller’s analysis of the history of the right to
arms—from its English roots up to the present—made it clear that the right to
arms is “deeply rooted in this Nation’s history and tradition.”
By the 1850s, “the perceived threat that had prompted the inclusion of the
Second Amendment in the Bill of Rights—the fear that the national government
would disarm the universal militia—had largely faded as a popular concern,
but the right to keep and bear arms was highly valued for
purposes of self-defense.”
Team
For example, the disarming of free soil Kansas settlers
of king & by the pro-slavery territorial government was considered a
an stepHen national outrage. After the Civil War, some southern states
rocTer llp. tried to keep the freedmen in de facto servitude by enacting
“Black Codes” which forbade them exercising constitutional
rights, including the right to own and carry


ta k i n g

bitter to writers’ lack of knowl
court’s conservative m
a neW level

O
of American history,
from Britain and the
the authors of the Co
f all the so-called “mainstream” considered gun owne
media outlets that took shots at the Supreme Never missing a ch
Court’s decision in McDonald v. Chicago, none did so with editorial concluded: “
such venom—and with such lack of facts—as the failing the theoretical debate
New York Times. or the relentless strea
Times editorial writers began their next-day editorial with gun lobby that will un
huge lies, and never let down from that point on. any and all restriction
“This began two years ago, when the Supreme Court even harder. Too man
disregarded the plain words of the Second Amendment Indeed, too many li
and overturned the District of Columbia’s handgun decision has been ren
ban, deciding that the amendment gave individuals in punitive gun bans, m
the district, not just militias, the right to bear arms,” not lost.
the Times bemoaned, proving their ignorance of the Mark Chesnut, Edit
Second Amendment. “Proceeding from that flawed logic,
the court has now said the amendment applies to all
states and cities, rendering Chicago’s ban on handgun
ownership unenforceable.”
The Times continued by further showing the editorial

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anti-establishment rule binding on the states.
Chicago and Oak Park had asserted that the Second Amendment should
be treated like a second-class right because guns are dangerous. But every
criminal procedure protection (such as the ban on coerced confessions)
sometimes means that dangerous criminals go free, Justice Alito retorted.
Yet the court has never “refrained from holding that a provision of the Bill
of Rights is binding on the States on the ground that the right at issue has
disputed public safety implications.”
As a fallback argument, some of the anti-gun amici had urged that the court
incorporate only a weak version of the Second Amendment. During the 1940s
and 1950s, the court had taken such an approach on some provisions of the Bill
of Rights—such as making applicable to the states only a weak version of the
Fourth Amendment protections against unreasonable or warrantless searches
and seizures. However, Justice Alito pointed out that partial incorporation has
been rejected since the 1960s, and the court has never wavered since then.
So the Second Amendment that now applies to the states is the full-strength
Second Amendment.
That does not mean every gun control law will be found unconstitutional.
McDonald reaffirmed the Heller court’s comment suggesting that bans on gun
carrying in “sensitive places” (such as schools or government buildings), laws
against gun possession by convicted felons or the mentally ill and “laws imposing
conditions and qualifications on the commercial sale of arms” would all be
constitutional. So despite Chicago’s and Oak Park’s “doomsday proclamations,
incorporation does not imperil every law regulating firearms.”
Finally, the Alito opinion addressed some arguments from Justice Breyer’s
dissent. Breyer claimed that “there is no popular consensus” that the Second
Amendment right is fundamental. Alito replied that the Supreme Court has
never demanded that there be a “popular consensus” in order for a right to
incorporated. Moreover, there is a consensus in this case: “An amicus brief from
58 members of the Senate and 251 members of the House of Representatives
urges us to hold that the right to keep and bear arms is fundamental”—as did an
amicus brief of 38 states, filed by the state attorneys general.
Breyer asserted that the Second Amendment does not deserve incorporation
because it does not help minorities and persons lacking political clout. Not so,
answered Alito: “If, as petitioners believe, their safety and the safety of other
law-abiding members of the community would be enhanced by the possession

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guns. Marauding gangs of white racists, including the Ku Klux Klan,
confiscated firearms from the freedmen—leaving them defenseless against
further acts of terrorism.
In 1866, the Reconstruction Congress struck back with the Freedmen’s Bureau
Act, the Civil Rights Act and the 14th Amendment—every one of them explicitly
aimed at safeguarding the freedmen’s right to own guns for self-defense.
The court refuted the Chicago and Oak Park arguments one by one: Congress
could not have intended to allow
gun bans if they were applied
ledge on the topic: “Once again, the equally to all races. That would
majority imposed its selective reading have meant that the southern white
supporters of civil rights could have
citing the country’s violent separation
been disarmed, just like the white
battles over slavery as proof that abolitionists in Kansas had been.
onstitution and its later amendments Congress was not interested in
ership a fundamental right.” protecting militia rights. It was the
hance to take a potshot at the nra, the southern state militias that were
“They should not be intimidated by perpetrating some of the worst
e that has now concluded at the court violence against the freedmen.
am of lawsuits sure to follow from the Indeed, Congress disbanded the
undoubtedly keep pressing to overturn southern state militias, while
respecting the Second Amendment
ns. Officials will have to press back
by allowing the militiamen to keep
ny lives are at stake.” their own guns.
ives are at stake. And now that the Nor did the court think much
ndered and lawsuits promised against of the argument that Chicago and
many lives will undoubtedly be saved, Oak Park should be allowed to ban
handguns because England bans
tor handguns, Luxembourg bans all
guns, and some other democracies,
such as Denmark, have repressive gun laws. Justice Alito pointed out that many
American constitutional protections are unique to our nation—such as the
widespread availability of jury trials, the Miranda rule or the ban on courtroom use
of evidence that the police seize illegally. Likewise, many nations, such as England
and Denmark, have established churches, but the First Amendment forbids the
establishment of religion by the Congress, and the 14th Amendment makes the

cHris W. cox,
executive director, nra institute for legislative action

“ironically, while crime in chicago runs
rampanT and lawmakers There call on
The naTional guard for help, mayor daley
Has insisted on leaving tHe residents of
His city defenseless.”


u.s. supreme court justice
samuel alito

nor did The courT Think much of The
argumenT ThaT chicago and oak park
should be allowed To ban handguns
because england bans Handguns,
luxembourg bans all guns, and some
otHer democracies, sucH as denmark,
Have repressive gun laWs.

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anti-establishment rule binding on the states.
Chicago and Oak Park had asserted that the Second Amendment should
be treated like a second-class right because guns are dangerous. But every
criminal procedure protection (such as the ban on coerced confessions)
sometimes means that dangerous criminals go free, Justice Alito retorted.
Yet the court has never “refrained from holding that a provision of the Bill
of Rights is binding on the States on the ground that the right at issue has
disputed public safety implications.”
As a fallback argument, some of the anti-gun amici had urged that the court
incorporate only a weak version of the Second Amendment. During the 1940s
and 1950s, the court had taken such an approach on some provisions of the Bill
of Rights—such as making applicable to the states only a weak version of the
Fourth Amendment protections against unreasonable or warrantless searches
and seizures. However, Justice Alito pointed out that partial incorporation has
been rejected since the 1960s, and the court has never wavered since then.
So the Second Amendment that now applies to the states is the full-strength
Second Amendment.
That does not mean every gun control law is unconstitutional. McDonald
reaffirmed the Heller court’s comment suggesting that bans on gun carrying in
“sensitive places” (such as schools or government buildings), laws against gun
possession by convicted felons or the mentally ill and “laws imposing conditions
and qualifications on the commercial sale of arms” would all be constitutional.
So despite Chicago’s and Oak Park’s “doomsday proclamations, incorporation
does not imperil every law regulating firearms.”
Finally, the Alito opinion addressed some arguments from Justice Breyer’s
dissent. Breyer claimed that “there is no popular consensus” that the Second
Amendment right is fundamental. Alito replied that the Supreme Court has
never demanded that there be a “popular consensus” in order for a right to
incorporated. Moreover, there is a consensus in this case: “An amicus brief from
58 members of the Senate and 251 members of the House of Representatives
urges us to hold that the right to keep and bear arms is fundamental”—as did an
amicus brief of 38 states, filed by the state attorneys general.
Breyer asserted that the Second Amendment does not deserve incorporation
because it does not help minorities and persons lacking political clout. Not so,
answered Alito: “If, as petitioners believe, their safety and the safety of other
law-abiding members of the community would be enhanced by the possession


making our country safer

joHn lott, author

A s gun-ban proponents trotted out
argument after argument against the Supreme
Court’s McDonald decision, economist and researcher John
Lott sees the decision in a different light—one that will
that city’s gun ban and
Comparing crimes com
through May 2010 to th
31 fewer murders—a 4
make us all safer. time period, Chicago, w
“Predictably, gun control advocates bemoaned the ruling,” murders drop by only fi
Lott, author of “More Guns, Less Crime,” wrote in a post- Lott also pointed out
announcement op-ed. “But the court’s decision is not just to an increase in violen
correct on constitutional grounds. It will help make the “Before the ban, Chic
country safer.” to other large cities, nea
Lott pointed out that after the Supreme Court’s ruling in whole,” Lott said. “After
the Heller case pertaining to d.c., Chicago’s mayor, Richard rate rose relative to all t
Daley, called it “a very frightening decision,” and said that you compare murder r
governments have “a compelling interest in reducing crime cities, Chicago’s murder
related to firearms.” average for the other ci
Yet, as Lott points out, d.c.’s murder and violent crime 32 percent in 1992 and
rates plummeted after the court’s decision to overturn Mark Chesnut, Editor

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of handguns in the home for self-defense, then the Second Amendment right
protects the rights of minorities and other residents of high-crime areas whose
needs are not being met by elected public officials.”
That’s especially true in Chicago, where the number of Americans killed is
higher than the number of Americans killed in Iraq and Afghanistan combined
during comparable periods.
Justice Breyer also worried that incorporation would burden courts with
having to make cost-benefit analyses of various gun control laws. It was
Breyer himself in Heller who wanted to subject the Second Amendment to an
interest balancing test, and the Heller majority rejected that completely. Alito
quoted Heller: “The very enumeration of the right takes out of the hands of
government—even the Third Branch of Government—the power to decide on a
case-by-case basis whether the right is really worth insisting upon.”
The fifth vote against the Chicago handgun ban came from Justice Thomas.
His concurring opinion focused on the original meaning of the Privileges or
Immunities clause.
He quoted copiously from the
congressional debates on the
mandatory gunlock requirements. 14th Amendment, showing that
mmitted in d.c. from January it was widely understood that the
the same five months of 2008 shows Privileges or Immunities clause
43 percent drop. During that same would make all of the first eight
which had a gun ban in place, saw its amendments, including the Second
five percent. Amendment, applicable to the states.
t that Chicago’s gun ban led directly Section Five of the 14th Amendment
grants Congress power to enforce
nt crime when instituted.
the amendment by appropriate
cago’s murder rate was falling relative legislation. Justice Thomas showed
arby counties and the u.s. as a that early congressional exercises of
r the ban, however, Chicago’s murder this power explicitly aimed to protect
these other places. For example, if defensive arms under the banner of
rates among the 50 most populous Privileges or Immunities.
er rate went from equaling the He detailed the long and sorry
ities in 1982 to exceeding it by history of southern laws against
gun ownership by free blacks—both
d by 68 percent in 2002.”
before and after the Civil War. The
r


thought of black people owning guns terrified
many whites. As anti-slavery Rep. Thaddeus
Stevens, r-Penn., had put it: “When it was first
proposed to free the slaves, and arm the blacks,
did not half the nation tremble? The prim
conservatives, the snobs, and the male waiting-
maids in Congress, were in hysterics.”
Cruikshank should be overruled, wrote
Justice Thomas. It was wrong as a
“when iT was firsT proposed matter of law, and it led to horrible
To free The slaves, and arm consequences: “Without federal
enforcement of the inalienable
The blacks, did noT half The
right to keep and bear arms, these
naTion Tremble? tHe prim militias and mobs were tragically
conservatives, tHe snobs, successful in waging a campaign of
and tHe male Waiting- terror against the very people the
14th Amendment had just made
maids in congress, Were in
citizens.” Gangs of white terrorists,
Hysterics.” including the Ku Klux Klan,
practiced rape, murder, lynching and robbery
against the disarmed blacks.
Among the murderers was Ben “Pitchfork”
Tillman, who bragged about leading a massacre
of South Carolina blacks on July 4, 1876.
(Tillman was later elected to the u.s. Senate
from South Carolina. He is the father of federal
laws restricting campaign donations through
the 1907 Tillman Act, which is still in effect.)
So, wrote Justice Thomas, “The use of
firearms for self-defense was often the only
way black citizens could protect themselves
from mob violence.” Like the framers of the
Second Amendment, the framers of the
14th Amendment recognized that “the right
to keep and bear arms was essential to the
preservation of liberty.”

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The Thomas concurrence and Alito opinion both tell the history of the racist
roots of gun control—a story that has been told in this magazine and other nra
publications for decades. Now, thanks to McDonald, every law student will learn
this history.
Both are replete with citations to great Second Amendment scholars such
as David Hardy, Clayton Cramer and Robert Cottrol, along with the original
sources those writers presented in their articles and Supreme Court briefs.
The most prominent scholar of all is Stephen Halbrook, who is cited five times.
At least some of the justices and their clerks seem to have read Halbrook’s briefs
and his book on the 14th Amendment carefully and have gleaned many original
sources from those writings.
In the honor roll of scholars who have safeguarded the Second Amendment,
Halbrook ranks first on the list. When he began writing about the Second
Amendment in the late 1970s, the history of the Second Amendment had been
forgotten. The Second Amendment was jeered by academics and treated with
contempt by the courts.
Thanks, however, in significant part to the tremendous scholarly research
by Halbrook on the original meaning of the Second and 14th Amendments,
the Second Amendment now occupies its proper position in American law: a
fundamental protection of individual rights that must be respected by every level
of government in the United States.
The dissenting opinion by Justice Stevens argued that the court’s whole
approach to incorporation should be scrapped, and that, in essence, justices
should be free to make the 14th Amendment mean whatever they want,
based on their own values. While he put it a bit more elegantly, that was the
bottom line.
Justice Scalia wrote a concurrence explaining why the Stevens approach was
lawless and internally inconsistent. Scalia argued that reliance on original intent,
while having flaws of its own, was far superior to the unbounded willfulness
favored by Stevens. Scalia derided Stevens for wanting to give “We The Court”
uncontrolled power over “They The People’s” decisions.
Under the Stevens approach, wrote Scalia, “whatever the Constitution and
laws may say, the list of protected rights will be whatever courts wish it to be.” To
Justice Scalia, this is simply “usurpation.”
Justice Stevens acknowledged that many Americans own firearms because they
believe in “the supreme human dignity of being master of one’s fate rather than


McDonalD v. chicago is noT The end of our
preserve The second amendmenT. iT is mere
of The beginning. the battles against infr
second amendment rights Will continue t
mainly in the legislatures and in the poll

otis mcdonal
of the u.s. sup

I N F O R M A T I O N
I S P O W E R
The nra is dedicated to keeping our comments to elected officials. And a1fd
members informed about developments has been redesigned for the Web with
that affect gun owners. This timely special bigger type, more pages, animations,
edition of America’s 1st Freedom Digital audio effects, slideshows and galleries,
is only the latest way nra uses digital enhanced navigation tools and zoom/
publishing to arm our members with the search capabilities.
most up-to-date news and info about their To ensure that you receive the very
Second Amendment rights. latest news on events that affect your
Every month, America’s 1st Freedom Second Amendment rights, click here to
Digital (a1fd) features hundreds of videos add America’s 1st Freedom Digital to your
and hyperlinks with expanded content. current nra magazine service each month.
Readers can also share a1fd through Arm yourself for the fight
dozens of social media outlets and e-mail for firearm freedom with
the tools of the digital age.
V ID E O S
H Y P E R L IN
SOUND DE KS PRODUCT
SIGN LEGISLATO L IN K S
R CONTAC M U S IC

a
ZOOM TS BIGGER TY
SPECIAL E PE
E M A IL DITIONS
S O C IA L
M E D IA
IN T E R A C T
IV E

www.nranews.c
om August 2010

T H E D A W N
O F T H E

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r sTruggle To
ely The end
ringements of
to be Waged
ling booths.
of ways: By electing the presidents who appointed the
five pro-Second Amendment justices and the senators
who confirmed them. By winning victories in state
legislatures and city councils so that the United States
never developed a tradition of handgun bans being
anything other than unusual and rare. By keeping the
right to arms and the right to self-defense alive and
ld on the steps
vibrant in the hearts and minds of the American people,
preme court so that the majority justices could see that the Second
Amendment is just as important to the American
people today as it was in 1866 or 1791.
As long as Second Amendment activists stay active,
McDonald can be the starting point—the first steps—in
rescuing the people of our most anti-gun states from
our worst and most oppressive anti-gun laws. In the
long run, McDonald will help raise awareness of gun
owners’ rights among the public, leading to legislators
and courts being more protective of rights, and thereby
increasing public awareness even further.
We have come a long way from 1983, when the new
Chicago handgun ban was hailed as the first big step
towards using the d.c. handgun ban as a model for
nationwide prohibition.
June 28, 2010, will go down in history as a great day
for American liberty.

I N F O R M A T I O N
I S P O W E R
Your nra is dedicated to keeping you comments to your elected officials. And
informed about developments that affect a1fd has been redesigned for the Web
gun owners. This timely special edition of with bigger type, more pages, animations,
America’s 1st Freedom Digital is only the audio effects, slideshows and galleries,
latest way nra uses digital publishing to enhanced navigation tools and zoom/
arm our members with the most up-to- search capabilities.
date news and info about their Second To ensure that you receive the very
Amendment rights. latest news on events that affect your
Every month, America’s 1st Freedom Second Amendment rights, click here to
Digital (a1fd) features hundreds of videos add America’s 1st Freedom Digital to your
and hyperlinks with expanded content. current nra magazine service each month.
You can also share a1fd through dozens of Arm yourself for the fight
social media outlets and email your for firearm freedom with
the tools of the digital age.
V ID E O S
H Y P E R L IN
SOUND DE KS PRODUCT
SIGN LEGISLATO L IN K S
R CONTAC M U S IC

a
ZOOM TS BIGGER TY
SPECIAL E PE
E M A IL DITIONS
S O C IA L
M E D IA
IN T E R A C T
IV E

www.nranews.c
om August 2010

T H E D A W N
O F T H E


u.S. Supreme court juStice
antonin scalia

scalia derided sTevens
for wanTing To give “we
The courT” uncontrolled
poWer over “tHey tHe
people’s” decisions.

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a ward of the State.” He added: “Members of my generation, at least, will recall
the many passionate statements of this view made by the distinguished actor,
Charlton Heston.”
However, Stevens argued that self-determination was outweighed by the
dangers of handguns: they are often used in crime, and thereby harm the liberty
of crime victims; because of the particular dangers of people carrying handguns,
a legislature could ban possession in the home, as a “prophylactic” measure.
Moreover, “it does not appear to be the case that the ability to own a handgun, or
any particular type of firearm, is critical to leading a life of autonomy, dignity, or
political equality: The marketplace offers many tools for self-defense, even if they
are imperfect substitutes. …”
Needless to say, Justice Stevens hardly addressed the mountain of evidence
presented by Justices Alito and Thomas that for free blacks and their white allies
in the South, firearms were essential to autonomy and political equality. To
defend one’s family against a mob of Klansmen, the “marketplace” offered no
effective substitute for a firearm.
Relying on historically inaccurate articles by writers such as Saul Cornell,
Stevens asserted that there was a long history of gun bans and repressive gun
controls in America. He claimed that this history of severe regulation proved that
the right to arms was not fundamental.
As for the brief filed by the 38 state attorneys general, Justice Stevens found
it “puzzling that so many state lawmakers have asked us to limit their option to
regulate a dangerous item.”
Here’s that puzzle’s solution: almost all state attorneys general are elected
by the people. They must be responsive to the people’s wishes on important
constitutional matters. The American people, along with most of the attorneys
general whom they have elected, consider it very dangerous to allow any
government the option of depriving law-abiding citizens of the best means of
self-defense.
The Breyer dissent, joined by Justices Ginsburg and Sotomayor, began by
arguing that Heller had been wrongly decided. Then, conceding for purposes
of argument that there is a right under Heller to own firearms for self-defense,
Breyer contended that the right is not fundamental and should not be
incorporated by the 14th Amendment.
First of all, Breyer wrote, there is a political debate about gun control, and much
disagreement about it. True enough, but if that’s the rule, then nothing would ever


be incorporated. Indeed, public opinion polling shows that many of the unenumerated
rights that the court has found to exist and that Justice Breyer so zealously defends have
far less public support than does the Second Amendment.
Second, “We are aware of no argument that gun-control regulations target or are
passed with the purpose of targeting ‘discrete and insular minorities.’”
Yet Justice Alito’s opinion specifically cited some of the amicus briefs in McDonald
and Heller that showed that not only in 1865, but sometimes today, gun control laws
are aimed at racial minorities, or are enforced in a discriminatory way against women,
racial minorities or sexual minorities.
Further, “the private self-defense right does not significantly seek to protect
individuals who might otherwise suffer unfair or inhumane treatment at the hands
of a majority.” How about Otis McDonald? The city of Chicago government, which
theoretically represents “the majority,” denied him effective police protection, but
refused to allow him the appropriate means of protecting himself against the violent
criminals who were threatening to kill him. That certainly seems unfair and inhumane.

cHicago mayor ricHard daley

T
daley’s

he u
before
decision to kee
At an afterno
aimed at makin
“We’ll public
stand up … an
“We are a cou
Of course, th
the land that w
Mark Chesnu

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Justice Breyer predicted that incorporation would mean that judges would
have to answer questions such as:
“Does the right to possess weapons for self-defense extend outside the
home? To the car? To work? What sort of guns are necessary for self-defense?
Handguns? Rifles? Semi-automatic weapons? When is a gun semi-automatic?
Where are different kinds of weapons likely needed? Does time-of-day matter?
Does the presence of a child in the house matter? Does the presence of a
convicted felon in the house matter? Do police need special rules permitting
pat downs designed to find guns? When do registration requirements become
severe to the point that they amount to an unconstitutional ban? Who can
possess guns and of what kind? Aliens? Prior drug offenders? Prior alcohol
abusers? How would the right interact with a state or local government’s ability
to take special measures during, say, national security emergencies?”
He is right that courts will have to answer those questions, but they are
no more difficult to answer than the myriad questions that the courts have

defiance of tHe u.s. supreme court

u.s. Supreme Court’s opinion in the McDonald case was barely public
Chicago Mayor Richard Daley declared Chicago was trying to find ways around the
ep his residents disarmed and vulnerable to violent criminals.
oon press conference, Daley said the city would have in place a new ordinance
ng it difficult to purchase and own a gun in Chicago.
cly propose a new ordinance very soon,” Daley said. “As a city we must continue to
nd fight for a ban on assault weapons … as well as a crackdown on gun shops.
untry of laws, not a nation of guns.”
he McDonald decision dealt only with the city’s handgun ban. And it was the law of
was explored, and then decided, by the court.
ut, Editor


u.s. supreme court justice stepHen breyer

he (breyer) ciTed a Toledo law
for an example of a currenT
handgun ban. in facT, The Toledo
law banned only handguns ThaT
failed a safeTy TesT. moreover,
tHe laW Was eliminated in 2007 by
a preemption statute enacted by
tHe oHio legislature.

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answered in creating doctrines for the First Amendment and for many other
fields of constitutional law.
Much of the Breyer dissent consisted of a catalogue of past and present gun
controls, from which Justice Breyer concluded that any right that has been
subject to so much control must not be fundamental. Some of the items in his
litany of controls do not support his theory.
He cited early American cases upholding concealed-carry bans—yet those
courts said that concealed-carry bans were all right only because the right to
carry was preserved by the allowance of open carry.
He pointed to an 1876 Wyoming law against carrying guns in town, along
with an 1871 Texas law against carrying handguns except in response to an
immediate threat, as examples of laws that “largely banned the possession of
all nonmilitary handguns.” Not so. Wyoming and Texas seriously restricted
handgun carrying, without imposing any restrictions on what kinds of
handguns could be possessed.
He cited a Toledo law for an example of a current handgun ban. In fact, the
Toledo law banned only handguns that failed a safety test. Moreover, the law was
eliminated in 2007 by a preemption statute enacted by the Ohio legislature.
As for handgun bans, Breyer asked, “Which state courts have struck them
down?” That’s a tough question, since the only recent handgun bans that
stayed on the books very long were those in d.c., in Chicago and in a few of
Chicago’s suburbs. San Francisco twice tried a ban, but it was quickly declared
void each time on the basis of a state preemption law. And there’s one more: In
the 1846 case of Nunn v. State, the unanimous Georgia Supreme Court relied
on the Second Amendment to strike down a handgun ban. (Justice Thomas’s
concurrence cited Nunn as an example of the minority of antebellum cases that
considered the Bill of Rights applicable to the states.)
McDonald v. Chicago is not the end of our struggle to preserve our Second
Amendment. It’s merely the end of the beginning. The battles against
infringements of Second Amendment rights will continue to be waged mainly in
the legislatures and in the polling booths.
Ominously, the dissenting opinions in McDonald made it clear that there are
four Supreme Court justices who would overturn Heller and McDonald at the
first opportunity. And if President Obama gets to appoint the replacement for
any of the five pro-rights justices, that opportunity will come all too soon.
Pro-rights civic activism made the McDonald victory possible in a number


VictoriouS plaintiff
otis mcdonald

McDonalD can
be The sTarTing
poinT for a
brighT new era
for The second
amendmenT,
and for The
firsT sTeps in
rescuing tHe
people of our
most anti-gun
states from
our Worst
and most
oppressive
anti-gun laWs.

Comment

Email the Editor

get involved

of ways: By electing the presidents
who appointed the five pro-Second
Amendment justices and the senators
who confirmed them. By winning
victories in state legislatures and city
councils so that the United States never
developed a tradition of handgun bans
being anything other than unusual and
rare. By keeping the right to arms and the
right to self-defense alive and vibrant in
the hearts and minds of the American
people, so that the majority justices could
see that the Second Amendment is just as
important to the American people today
as it was in 1866 or 1791.
As long as Second Amendment
activists stay active, McDonald can be
the starting point for a bright new era
for the Second Amendment, and for the
first steps in rescuing the people of our
most anti-gun states from our worst
and most oppressive anti-gun laws.
In the long run, McDonald will help
raise awareness of gun owners’ rights
among the public, leading to legislators
and courts being more protective of
rights, and thereby increasing public
awareness even further.
We have come a long way from 1983,
when the new Chicago handgun ban was
hailed as the first big step towards using
the d.c. handgun ban as a model for
nationwide prohibition.
June 28, 2010, will go down in history
as a great day for American liberty.

PhotograPh by DaVID ZICKL

C O V E R S T O R Y

B y all accounts, Arizona
rancher and nra Life
member Robert Krentz was
a great guy—the kind of guy
you’d like to have as a friend and neighbor.
A quiet, humble man, Krentz lived his dream along the
Grand Canyon State’s southern border, raising kids and
ranching on the land that had been in his family for more
than a century.
“He was always kind and he was always fair,” said Krentz’s
son Frank, who is also an nra Life member. “It didn’t matter
what time of night it was, if you called him and said that
you needed five gallons of gas or a tire, or to come help on
a well. We drove in the middle of one night to pick up our
neighbors. Their truck broke down 400 miles north of where
we were. He and I loaded up and drove all night to pick
them up, and he didn’t even hesitate about anything like that.
“He always seemed to think about other people first.”
“Rob and I had three children,” said Susan Krentz, Robert’s
wife of 32 years, “and we felt that living on a ranch provided
opportunities to make the boys and our daughter the very
stable, hard-working people they are. We just enjoyed living
there [on the ranch]. I mean that’s what Rob and I knew. We
thought we were the luckiest people in the world because we
enjoyed going to work.”
All that ended on the morning of March 27, 2010.
Krentz, who was 58, was working on the ranch just like
nearly every other day of his adult life when he apparently
saw something out of order that took him off the beaten
path. He was ambushed and murdered by unknown
criminals who had crossed over from Mexico and fled back
across the border. An American family man shot down on

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