Nahmod Law

Gun Control, the Second Amendment and Section 1983 After McDonald v. Chicago


From a section 1983 perspective, here are some things to look for in the aftermath of the Supreme Court’s recent decision in McDonald v. Chicago, 130 S. Ct. 3020 (2010).

The Second Amendment and Section 1983

McDonald held that the Second Amendment right of a person to possess a gun in his home for self-defense, as announced in District of Columbia v. Heller, 128 S. Ct. 2783 (2008), is also protected against abridgment by state and local governments. That is, the Due Process Clause of the Fourteenth Amendment incorporates the Second Amendment and applies it to the states and local governments.

Consequently, individuals may use section 1983 to bring Second Amendment damages actions against state and local government officials and against local governments themselves (but not states–see Will v. Michigan Dept. of State Police, 491 U.S. 58 (1989)) that enact gun control laws.

Practical Hurdles

However, there are some practical hurdles for plaintiffs to consider if section 1983 Second Amendment-based damages actions are contemplated.

1. Where a local government enacts a gun control ordinance that allegedly violates the Second Amendment, that ordinance surely constitutes an official policy actionable under section 1983. Monell v. Dept. of Social Services, 436 U.S. 658 (1978). However, it will typically be difficult for plaintiffs who sue local governments, claiming that their Second Amendment rights were violated, to prove actual damages, and presumed damages are not permitted under section 1983. See Carey v. Piphus, 435 U.S. 247 (1978), and Memphis Community Schools v. Stachura, 477 U.S. 299 (1986). Moreover, punitive damages against local governments are not available. City of Newport v. Fact Concerts, 453 U.S. 247 (1981).

2. If the plaintiffs sue the local government’s officials or employees for damages in their individual capacities for allegedly violating plaintiffs’ Second Amendment rights in connection with the enforcement of the ordinance, then the plaintiffs face an additional obstacle: qualified immunity.

Given the current legal uncertainty about the scope of the Second Amendment right in the Supreme Court, the plaintiffs would probably be unable to show that the individual defendants violated clearly settled law when they acted in alleged violation of the Second Amendment. See Harlow v. Fitzgerald, 457 U.S. 800 (1982). It will take years of litigation in the circuits and the Supreme Court before Second Amendment law becomes settled.

Only where the violation of the Second Amendment is alleged to be at the very core of the right to possess a handgun in the home for self-defense would these individual defendants lose qualified immunity protection.

However, proving actual damages would still be a problem. And while punitive damages are theoretically available, the standard of culpability required–reckless or callous disregard of constitutional rights–is high. Smith v. Wade, 461 U.S. 30 (1983).


At least in the short term, then, most section 1983 litigation based on the Second Amendment will involve requests for declaratory and injunctive relief rather than damages.

Note, however, that when plaintiffs prevail in such prospective relief litigation, they will ordinarily be entitled to attorney’s fees under 42 U.S.C. sec. 1988, the Civil Rights Attorney’s Fees Awards Act of 1976.

Written by snahmod

August 8, 2010 at 9:07 pm

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