This is a Cato special podcast. I'm Kayla Brown. The Chicago Gun Ban is no more.

But the McDonald gun case challenging the Second city's virtual ban on private handgun

ownership was about more than just incorporation. The details here matter.

I'llia Shapiro, editor of the Cato Supreme Court Review, comments.

Five justices voted for the position that the individual right to keep and bear arms,

as spelled out in the Second Amendment applies to

the states. The question was open after Heller because Heller of course only

applied to the District of Columbia and other federally controlled territories.

Four of the justices led by an opinion by Justice Alito, joined by the Chief Justice and

Justice Scalia and Kennedy, held that the Due Process Clause of the 14th Amendment

through a procedure called incorporation via substantive due process, that that right to keep bare arms is extended to the

states. Like many rights have been extended over the last century. First Amendment

right to free speech, Fourth Amendment right to be free from search and seizure without a warrant or probable cause, these sorts of things.

The original Bill of Rights didn't protect you against state tyranny and oppressions but the 14th Amendment

after the Civil War did and and those four justices said that it was because of

the due process clause. Justice Thomas, the fifth vote, the deciding vote,

the key vote to extend this right to the states,

said no, that's all legal fiction.

He literally called it legal fiction and tenuous jurisprudence, tenuous

argument. That's very interesting. His opinion is actually about 15 pages longer than

Alito's, his concurrence.

He uses the privileges or immunities clause, which of course is what I and many of my colleagues

...