OPINION OF THE COURT MCDONALD V. CHICAGO 561 U. S. ____ (2010) SUPREME COURT OF THE UNITED STATES NO. 08-1521 OTIS McDONALD, et al., PETITIONERS v. CITY OF CHICAGO, ILLINOIS, et al.

															on writ of certiorari to the united states court of
appeals for the seventh circuit

															[June 28, 2010]

															   Justice Alito announced the
judgment of the Court and delivered the opinion of the Court with
respect to Parts I, II–A, II–B, II–D, III–A, and III–B, in which
The Chief Justice, Justice Scalia, Justice Kennedy, and Justice
Thomas join, and an opinion with respect to Parts II–C, IV, and V,
in which The Chief Justice, Justice Scalia, and Justice Kennedy
join.

															   Two years ago, in District of
Columbia v. Heller , 554 U. S. ___ (2008), we held
that the Second Amendment protects the right to keep and bear arms
for the purpose of self-defense, and we struck down a District of
Columbia law that banned the possession of handguns in the home.
The city of Chicago (City) and the village of Oak Park, a Chicago
suburb, have laws that are similar to the District of Columbia’s,
but Chicago and Oak Park argue that their laws are constitutional
because the Second Amendment has no application to the States. We
have previously held that most of the provisions of the Bill of
Rights apply with full force to both the Federal Government and the
States. Applying the standard that is well established in our case
law, we hold that the Second Amendment right is fully applicable to
the States.

															I

															   Otis McDonald, Adam Orlov,
Colleen Lawson, and David Lawson (Chicago petitioners) are Chicago
residents who would like to keep handguns in their homes for
self-defense but are prohibited from doing so by Chicago’s firearms
laws. A City ordinance provides that “[n]o person shall … possess …
any firearm unless such person is the holder of a valid
registration certificate for such firearm.” Chicago, Ill.,
Municipal Code §8–20–040(a) (2009). The Code then prohibits
registration of most handguns, thus effectively banning handgun
possession by almost all private citizens who reside in the City.
§8–20–050(c). Like Chicago, Oak Park makes it “unlawful for any
person to possess … any firearm,” a term that includes “pistols,
revolvers, guns and small arms … commonly known as handguns.” Oak
Park, Ill., Municipal Code §§27–2–1 (2007), 27–1–1 (2009).

															   Chicago enacted its handgun ban
to protect its residents “from the loss of property and injury or
death from firearms.” See Chicago, Ill., Journal of Proceedings of
the City Council, p. 10049 (Mar. 19, 1982). The Chicago petitioners
and their amici , however, argue that the handgun ban has
left them vulnerable to criminals. Chicago Police Department
statistics, we are told, reveal that the City’s handgun murder rate
has actually increased since the ban was enacted[ Footnote 1 ] and that 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.[ Footnote 2 ]

															   Several of the Chicago petitioners have been
the targets of threats and violence. For instance, Otis McDonald,
who is in his late seventies, lives in a high-crime neighborhood.
He is a community activist involved with alternative policing
strategies, and his efforts to improve his neighborhood have
subjected him to violent threats from drug dealers. App. 16–17;
Brief for State Firearm Associations as Amici Curiae 20–21; Brief for State of Texas et al. as Amici
Curiae 7–8. Colleen Lawson is a Chicago resident whose home
has been targeted by burglars. “In Mrs. Lawson’s judgment,
possessing a handgun in Chicago would decrease her chances of
suffering serious injury or death should she ever be threatened
again in her home.”[ Footnote 3 ]
McDonald, Lawson, and the other Chicago petitioners own handguns
that they store outside of the city limits, but they would like to
keep their handguns in their homes for protection. See App. 16–19,
43–44 (McDonald), 20–24 (C. Lawson), 19, 36 (Orlov), 20–21, 40 (D.
Lawson).

															   After our decision in Heller , the
Chicago petitioners and two groups[ Footnote 4 ] filed suit against the City in the United
States District Court for the Northern District of Illinois. They
sought a declaration that the handgun ban and several related
Chicago ordinances violate the Second and Fourteenth Amendments to
the United States Constitution. Another action challenging the Oak
Park law was filed in the same District Court by the National Rifle
Association (NRA) and two Oak Park residents. In addition, the NRA
and others filed a third action challenging the Chicago ordinances.
All three cases were assigned to the same District Judge.

															   The District Court rejected plaintiffs’
argument that the Chicago and Oak Park laws are unconstitutional.
See App. 83–84; NRA, Inc. v. Oak Park , 617
F. Supp. 2d 752, 754 (ND Ill. 2008). The court noted that the
Seventh Circuit had “squarely upheld the constitutionality of a ban
on handguns a quarter century ago,” id ., at 753 (citing Quilici v. Morton Grove , 695 F. 2d 261 (CA7
1982)), and that Heller had explicitly refrained from
“opin[ing] on the subject of incorporation vel non of the Second
Amendment,” NRA , 617 F. Supp. 2d, at 754. The court
observed that a district judge has a “duty to follow established
precedent in the Court of Appeals to which he or she is beholden,
even though the logic of more recent caselaw may point in a
different direction.” Id., at 753.

															   The Seventh Circuit affirmed, relying on three
19th-century cases— United States v. Cruikshank , 92 U.
S. 542 (1876), Presser v. Illinois , 116 U. S. 252 (1886), and Miller v. Texas , 153 U. S. 535 (1894)—that were decided
in the wake of this Court’s interpretation of the Privileges or
Immunities Clause of the Fourteenth Amendment in the Slaughter-House Cases, 16 Wall. 36 (1873) . The
Seventh Circuit described the rationale of those cases as “defunct”
and recognized that they did not consider the question whether the
Fourteenth Amendment’s Due Process Clause incorporates the Second
Amendment right to keep and bear arms. NRA, Inc. v. Chicago , 567 F. 3d 856, 857, 858 (2009).
Nevertheless, the Seventh Circuit observed that it was obligated to
follow Supreme Court precedents that have “direct application,” and
it declined to predict how the Second Amendment would fare under
this Court’s modern “selective incorporation” approach. Id., at 857–858 (internal quotation marks omitted).

															   We granted certiorari. 557 U. S. ___
(2009).

															II

															A

															   Petitioners argue that the
Chicago and Oak Park laws violate the right to keep and bear arms
for two reasons. Petitioners’ primary submission is that this right
is among the “privileges or immunities of citizens of the United
States” and that the narrow interpretation of the Privileges or
Immunities Clause adopted in the Slaughter-House Cases , supra , should now be rejected. As a secondary argument,
petitioners contend that the Fourteenth Amendment’s Due Process
Clause “incorporates” the Second Amendment right.

															   Chicago and Oak Park (municipal
respondents) maintain that a right set out in the Bill of Rights
applies to the States only if that right is an indispensable
attribute of any “ ‘civilized’ ” legal system.
Brief for Municipal Respondents 9. If it is possible to imagine a
civilized country that does not recognize the right, the municipal
respondents tell us, then that right is not protected by due
process. Ibid. And since there are civilized countries
that ban or strictly regulate the private possession of handguns,
the municipal respondents maintain that due process does not
preclude such measures. Id. , at 21–23. In light of the
parties’ far-reaching arguments, we begin by recounting this
Court’s analysis over the years of the relationship between the
provisions of the Bill of Rights and the States.

															B

															   The Bill of Rights, including the
Second Amendment, originally applied only to the Federal
Government. In Barron ex rel. Tiernan v. Mayor of
Baltimore , 7 Pet. 243 (1833), the Court, in an opinion by
Chief Justice Marshall, explained that this question was “of great
importance” but “not of much difficulty.” Id ., at 247. In
less than four pages, the Court firmly rejected the proposition
that the first eight Amendments operate as limitations on the
States, holding that they apply only to the Federal Government. See
also Lessee of Livingston v. Moore , 7 Pet. 469,
551–552 (1833) (“[I]t is now settled that those amendments [in the
Bill of Rights] do not extend to the states”).

															   The constitutional Amendments
adopted in the aftermath of the Civil War fundamentally altered our
country’s federal system. The provision at issue in this case, §1
of the Fourteenth Amendment, provides, among other things, that a
State may not abridge “the privileges or immunities of citizens of
the United States” or deprive “any person of life, liberty, or
property, without due process of law.”

															   Four years after the adoption of the
Fourteenth Amendment, this Court was asked to interpret the
Amendment’s reference to “the privileges or immunities of citizens
of the United States.” The Slaughter-House Cases , supra , involved challenges to a Louisiana law permitting
the creation of a state-sanctioned monopoly on the butchering of
animals within the city of New Orleans. Justice Samuel Miller’s
opinion for the Court concluded that the Privileges or Immunities
Clause protects only those rights “which owe their existence to the
Federal government, its National character, its Constitution, or
its laws.” Id. , at 79. The Court held that other
fundamental rights—rights that predated the creation of the Federal
Government and that “the State governments were created to
establish and secure”—were not protected by the Clause. Id. , at 76.

															   In drawing a sharp distinction between the
rights of federal and state citizenship, the Court relied on two
principal arguments. First, the Court emphasized that the
Fourteenth Amendment’s Privileges or Immunities Clause spoke of
“the privileges or immunities of citizens of the United
States ,” and the Court contrasted this phrasing with the
wording in the first sentence of the Fourteenth Amendment and in
the Privileges and Immunities Clause of Article IV, both of which
refer to state citizenship.[ Footnote 5 ] (Emphasis added.) Second, the Court stated
that a contrary reading would “radically chang[e] the whole theory
of the relations of the State and Federal governments to each other
and of both these governments to the people,” and the Court refused
to conclude that such a change had been made “in the absence of
language which expresses such a purpose too clearly to admit of
doubt.” Id. , at 78. Finding the phrase “privileges or
immunities of citizens of the United States” lacking by this high
standard, the Court reasoned that the phrase must mean something
more limited.

															   Under the Court’s narrow reading, the
Privileges or Immunities Clause protects such things as the
right

															“to come to the seat of government to assert any
claim [a citizen] may have upon that government, to transact any
business he may have with it, to seek its protection, to share its
offices, to engage in administering its functions … [and to]
become a citizen of any State of the Union by a bonâ fide residence therein, with the same rights as other citizens of that
State.” Id. , at 79–80 (internal quotation marks
omitted).

															   Finding no constitutional
protection against state intrusion of the kind envisioned by the
Louisiana statute, the Court upheld the statute. Four Justices
dissented. Justice Field, joined by Chief Justice Chase and
Justices Swayne and Bradley, criticized the majority for reducing
the Fourteenth Amendment’s Privileges or Immunities Clause to “a
vain and idle enactment, which accomplished nothing, and most
unnecessarily excited Congress and the people on its passage.” Id. , at 96; see also id. , at 104. Justice Field
opined that the Privileges or Immunities Clause protects rights
that are “in their nature … fundamental,” including the right of
every man to pursue his profession without the imposition of
unequal or discriminatory restrictions. Id. , at 96–97.
Justice Bradley’s dissent observed that “we are not bound to resort
to implication … to find an authoritative declaration of some of
the most important privileges and immunities of citizens of the
United States. It is in the Constitution itself.” Id ., at
118. Justice Bradley would have construed the Privileges or
Immunities Clause to include those rights enumerated in the
Constitution as well as some unenumerated rights. Id. , at
119. Justice Swayne described the majority’s narrow reading of the
Privileges or Immunities Clause as “turn[ing] … what was meant for
bread into a stone.” Id ., at 129 (dissenting opinion).

															   Today, many legal scholars dispute the
correctness of the narrow Slaughter-House interpretation.
See, e.g. , Saenz v. Roe , 526 U. S. 489 , 522,
n. 1, 527 (1999) (Thomas, J., dissenting) (scholars of the
Fourteenth Amendment agree “that the Clause does not mean what the
Court said it meant in 1873”); Amar, Substance and Method in the
Year 2000, 28 Pepperdine L. Rev. 601, 631, n. 178 (2001)
(“Virtually no serious modern scholar—left, right, and
center—thinks that this [interpretation] is a plausible reading of
the Amendment”); Brief for Constitutional Law Professors as Amici Curiae 33 (claiming an “overwhelming consensus among
leading constitutional scholars” that the opinion is “egregiously
wrong”); C. Black, A New Birth of Freedom 74–75 (1997).

															   Three years after the decision in the Slaughter-House Cases, the Court decided Cruikshank, the first of the three 19th-century cases on
which the Seventh Circuit relied. 92 U.
S. 542 . In that case, the Court reviewed convictions stemming
from the infamous Colfax Massacre in Louisiana on Easter Sunday
1873. Dozens of blacks, many unarmed, were slaughtered by a rival
band of armed white men.[ Footnote
6 ] Cruikshank himself allegedly marched unarmed
African-American prisoners through the streets and then had them
summarily executed.[ Footnote 7 ]
Ninety-seven men were indicted for participating in the massacre,
but only nine went to trial. Six of the nine were acquitted of all
charges; the remaining three were acquitted of murder but convicted
under the Enforcement Act of 1870, 16 Stat. 140, for banding and
conspiring together to deprive their victims of various
constitutional rights, including the right to bear arms.[ Footnote 8 ]

															   The Court reversed all of the convictions,
including those relating to the deprivation of the victims’ right
to bear arms. Cruikshank , 92 U. S., at 553, 559. The Court
wrote that the right of bearing arms for a lawful purpose “is not a
right granted by the Constitution” and is not “in any manner
dependent upon that instrument for its existence.” Id. , at
553. “The second amendment,” the Court continued, “declares that it
shall not be infringed; but this … means no more than that it shall
not be infringed by Congress.” Ibid. “Our later decisions
in Presser v. Illinois, 116 U. S. 252 , 265 (1886), and Miller v. Texas, 153 U. S. 535 , 538 (1894), reaffirmed
that the Second Amendment applies only to the Federal Government.” Heller , 554 U. S., at ___, n. 23 (slip op., at 48,
n. 23).

															C

															   As previously noted, the Seventh
Circuit concluded that Cruikshank , Presser , and Miller doomed petitioners’ claims at the Court of Appeals
level. Petitioners argue, however, that we should overrule those
decisions and hold that the right to keep and bear arms is one of
the “privileges or immunities of citizens of the United States.” In
petitioners’ view, the Privileges or Immunities Clause protects all
of the rights set out in the Bill of Rights, as well as some
others, see Brief for Petitioners 10, 14, 15–21, but petitioners
are unable to identify the Clause’s full scope, Tr. of Oral Arg.
5–6, 8–11. Nor is there any consensus on that question among the
scholars who agree that the Slaughter-House Cases’ interpretation is flawed. See Saenz , supra , at
522, n. 1 (Thomas, J., dissenting).

															   We see no need to reconsider that
interpretation here. For many decades, the question of the rights
protected by the Fourteenth Amendment against state infringement
has been analyzed under the Due Process Clause of that Amendment
and not under the Privileges or Immunities Clause. We therefore
decline to disturb the Slaughter-House holding.

															   At the same time, however, this Court’s
decisions in Cruikshank , Presser , and Miller do not preclude us from considering whether the Due
Process Clause of the Fourteenth Amendment makes the Second
Amendment right binding on the States. See Heller , 554 U.
S., at ___, n. 23 (slip op., at 48, n. 23). None of those
cases “engage[d] in the sort of Fourteenth Amendment inquiry
required by our later cases.” Ibid . As explained more
fully below, Cruikshank , Presser , and Miller all preceded the era in which the Court began the
process of “selective incorporation” under the Due Process Clause,
and we have never previously addressed the question whether the
right to keep and bear arms applies to the States under that
theory.

															   Indeed, Cruikshank has not prevented
us from holding that other rights that were at issue in that case
are binding on the States through the Due Process Clause. In Cruikshank , the Court held that the general “right of the
people peaceably to assemble for lawful purposes,” which is
protected by the First Amendment, applied only against the Federal
Government and not against the States. See 92 U. S., at 551–552.
Nonetheless, over 60 years later the Court held that the right of
peaceful assembly was a “fundamental righ[t] … safeguarded by the
due process clause of the Fourteenth Amendment.” De Jonge v. Oregon , 299 U. S. 353 , 364 (1937). We follow
the same path here and thus consider whether the right to keep and
bear arms applies to the States under the Due Process Clause.

															D

															1

															   In the late 19th century, the
Court began to consider whether the Due Process Clause prohibits
the States from infringing rights set out in the Bill of Rights.
See Hurtado v. California , 110 U. S. 516 (1884) (due process does
not require grand jury indictment); Chicago, B. & Q.
R. Co. v. Chicago , 166 U. S. 226 (1897) (due process
prohibits States from taking of private property for public use
without just compensation). Five features of the approach taken
during the ensuing era should be noted.

															   First, the Court viewed the due
process question as entirely separate from the question whether a
right was a privilege or immunity of national citizenship. See Twining v. New Jersey , 211 U. S. 78 , 99 (1908).

															   Second, the Court explained that the only
rights protected against state infringement by the Due Process
Clause were those rights “of such a nature that they are included
in the conception of due process of law.” Ibid . See also, e.g. , Adamson v. California , 332 U.
S. 46 (1947); Betts v. Brady , 316 U. S. 455 (1942); Palko v. Connecticut, 302 U. S. 319 (1937); Grosjean v. American Press Co. , 297 U. S. 233 (1936); Powell v. Alabama , 287 U. S. 45 (1932).
While it was “possible that some of the personal rights safeguarded
by the first eight Amendments against National action [might] also
be safeguarded against state action,” the Court stated, this was
“not because those rights are enumerated in the first eight
Amendments.” Twining, supra, at 99.

															   The Court used different formulations in
describing the boundaries of due process. For example, in Twining , the Court referred to “immutable principles of
justice which inhere in the very idea of free government which no
member of the Union may disregard.” 211 U. S., at 102 (internal
quotation marks omitted). In Snyder v. Massachusetts , 291 U. S. 97 , 105 (1934),
the Court spoke of rights that are “so rooted in the traditions and
conscience of our people as to be ranked as fundamental.” And in Palko , the Court famously said that due process protects
those rights that are “the very essence of a scheme of ordered
liberty” and essential to “a fair and enlightened system of
justice.” 302 U. S., at 325.

															   Third, in some cases decided during this era
the Court “can be seen as having asked, when inquiring into whether
some particular procedural safeguard was required of a State, if a
civilized system could be imagined that would not accord the
particular protection.” Duncan v. Louisiana , 391 U. S. 145 , 149, n. 14 (1968).
Thus, in holding that due process prohibits a State from taking
private property without just compensation, the Court described the
right as “a principle of natural equity, recognized by all
temperate and civilized governments, from a deep and universal
sense of its justice.” Chicago, B. & Q. R. Co.,
supra, at 238. Similarly, the Court found that due process did
not provide a right against compelled incrimination in part because
this right “has no place in the jurisprudence of civilized and free
countries outside the domain of the common law.” Twining,
supra , at 113.

															   Fourth, the Court during this era was not
hesitant to hold that a right set out in the Bill of Rights failed
to meet the test for inclusion within the protection of the Due
Process Clause. The Court found that some such rights qualified.
See, e.g. , Gitlow v. New York , 268 U. S. 652 , 666 (1925) (freedom of
speech and press); Near v. Minnesota ex rel.
Olson , 283 U. S. 697 (1931) (same); Powell , supra (assistance of counsel in capital
cases); De Jonge , supra (freedom of assembly); Cantwell v. Connecticut , 310 U. S. 296 (1940) (free exercise of
religion). But others did not. See, e.g. , Hurtado,
supra (grand jury indictment requirement); Twining , supra (privilege against self-incrimination).

															   Finally, even when a right set out in the Bill
of Rights was held to fall within the conception of due process,
the protection or remedies afforded against state infringement
sometimes differed from the protection or remedies provided against
abridgment by the Federal Government. To give one example, in Betts the Court held that, although the Sixth Amendment
required the appointment of counsel in all federal criminal cases
in which the defendant was unable to retain an attorney, the Due
Process Clause required appointment of counsel in state criminal
proceedings only where “want of counsel in [the] particular case …
result[ed] in a conviction lacking in … fundamental fairness.” 316
U. S., at 473. Similarly, in Wolf v. Colorado , 338 U.
S. 25 (1949), the Court held that the “core of the Fourth
Amendment” was implicit in the concept of ordered liberty and thus
“enforceable against the States through the Due Process Clause” but
that the exclusionary rule, which applied in federal cases, did not
apply to the States. Id ., at 27–28, 33.

															2

															   An alternative theory regarding
the relationship between the Bill of Rights and §1 of the
Fourteenth Amendment was championed by Justice Black. This theory
held that §1 of the Fourteenth Amendment totally incorporated all
of the provisions of the Bill of Rights. See, e.g. , Adamson , supra , at 71–72 (Black, J., dissenting); Duncan , supra , at 166 (Black, J., concurring). As
Justice Black noted, the chief congressional proponents of the
Fourteenth Amendment espoused the view that the Amendment made the
Bill of Rights applicable to the States and, in so doing, overruled
this Court’s decision in Barron .[ Footnote 9 ] Adamson , 332 U. S., at 72
(dissenting opinion).[ Footnote
10 ] Nonetheless, the Court never has embraced Justice Black’s
“total incorporation” theory.

															3

															   While Justice Black’s theory was
never adopted, the Court eventually moved in that direction by
initiating what has been called a process of “selective
incorporation,” i.e ., the Court began to hold that the Due
Process Clause fully incorporates particular rights contained in
the first eight Amendments. See, e.g. , Gideon v. Wainright , 372
U. S. 335 , 341 (1963); Malloy v. Hogan , 378 U. S. 1 , 5–6 (1964); Pointer v. Texas , 380 U. S. 400 , 403–404 (1965); Washington v. Texas , 388 U. S. 14 , 18 (1967); Duncan , 391 U. S., at 147–148; Benton v. Maryland , 395 U. S. 784 , 794 (1969).

															   The decisions during this time
abandoned three of the previously noted characteristics of the
earlier period.[ Footnote 11 ]
The Court made it clear that the governing standard is not whether any “civilized system [can] be imagined that would not
accord the particular protection.” Duncan , 391 U. S., at
149, n. 14. Instead, the Court inquired whether a particular
Bill of Rights guarantee is fundamental to our scheme of
ordered liberty and system of justice. Id ., at 149, and
n. 14; see also id., at 148 (referring to those
“fundamental principles of liberty and justice which lie at the
base of all our civil and political institutions”
(emphasis added; internal quotation marks omitted)).

															   The Court also shed any reluctance to hold
that rights guaranteed by the Bill of Rights met the requirements
for protection under the Due Process Clause. The Court eventually
incorporated almost all of the provisions of the Bill of
Rights.[ Footnote 12 ] Only a
handful of the Bill of Rights protections remain
unincorporated.[ Footnote
13 ]

															   Finally, the Court abandoned “the notion that
the Fourteenth Amendment applies to the States only a watered-down,
subjective version of the individual guarantees of the Bill of
Rights,” stating that it would be “incongruous” to apply different
standards “depending on whether the claim was asserted in a state
or federal court.” Malloy , 378 U. S., at 10–11 (internal
quotation marks omitted). Instead, the Court decisively held that
incorporated Bill of Rights protections “are all to be enforced
against the States under the Fourteenth Amendment according to the
same standards that protect those personal rights against federal
encroachment.” Id ., at 10; see also Mapp v. Ohio , 367 U. S. 643 , 655–656 (1961); Ker v. California , 374 U. S. 23 , 33–34
(1963); Aguilar v. Texas , 378 U. S. 1 08, 110 (1964); Pointer , 380 U. S., at 406; Duncan , supra , at 149, 157–158; Benton , 395 U. S., at
794–795; Wallace v. Jaffree , 472 U. S. 38 , 48–49
(1985).[ Footnote 14 ]

															   Employing this approach, the Court overruled
earlier decisions in which it had held that particular Bill of
Rights guarantees or remedies did not apply to the States. See, e.g. , Mapp , supra (overruling in part Wolf , 338 U.
S. 25 ); Gideon , 372
U. S. 335 (overruling Betts , 316 U. S. 455 ); Malloy , supra (overruling Adamson , 332 U.
S. 46 , and Twining , 211 U. S. 78 ); Benton , supra , at 794 (overruling Palko , 302 U. S. 319 ).

															III

															   With this framework in mind, we
now turn directly to the question whether the Second Amendment
right to keep and bear arms is incorporated in the concept of due
process. In answering that question, as just explained, we must
decide whether the right to keep and bear arms is fundamental to our scheme of ordered liberty, Duncan, 391 U. S.,
at 149, or as we have said in a related context, whether this right
is “deeply rooted in this Nation’s history and tradition,” Washington v. Glucksberg, 521 U. S. 702 , 721 (1997) (internal
quotation marks omitted).

															A

															   Our decision in Heller points unmistakably to the answer. Self-defense is a basic right,
recognized by many legal systems from ancient times to the present
day,[ Footnote 15 ] and in Heller, we held that individual self-defense is “the central component ” of the Second Amendment right. 554 U.
S., at ___ (slip op., at 26); see also id ., at ___ (slip
op., at 56) (stating that the “inherent right of self-defense has
been central to the Second Amendment right”). Explaining that “the
need for defense of self, family, and property is most acute” in
the home, ibid ., we found that this right applies to
handguns because they are “the most preferred firearm in the nation
to ‘keep’ and use for protection of one’s home and family,” id ., at ___ (slip op., at 57) (some internal quotation
marks omitted); see also id ., at ___ (slip op., at 56)
(noting that handguns are “overwhelmingly chosen by American
society for [the] lawful purpose” of self-defense); id .,
at ___ (slip op., at 57) (“[T]he American people have considered
the handgun to be the quintessential self-defense weapon”). Thus,
we concluded, citizens must be permitted “to use [handguns] for the
core lawful purpose of self-defense.” Id ., at ___ (slip
op., at 58). Heller makes it clear
that this right is “deeply rooted in this Nation’s history and
tradition. ” Glucksberg, supra, at 721 (internal
quotation marks omitted). Heller explored the right’s
origins, noting that the 1689 English Bill of Rights explicitly
protected a right to keep arms for self-defense, 554 U. S., at
___–___ (slip op., at 19–20), and that by 1765, Blackstone was able
to assert that the right to keep and bear arms was “one of the
fundamental rights of Englishmen,” id ., at ___ (slip op.,
at 20).

															   Blackstone’s assessment was shared by the
American colonists. As we noted in Heller , King George
III’s attempt to disarm the colonists in the 1760’s and 1770’s
“provoked polemical reactions by Americans invoking their rights as
Englishmen to keep arms.”[ Footnote 16 ] Id ., at ___ (slip op., at 21); see
also L. Levy, Origins of the Bill of Rights 137–143 (1999)
(hereinafter Levy).

															   The right to keep and bear arms was considered
no less fundamental by those who drafted and ratified the Bill of
Rights. “During the 1788 ratification debates, the fear that the
federal government would disarm the people in order to impose rule
through a standing army or select militia was pervasive in
Antifederalist rhetoric.” Heller , supra , at ___
(slip op., at 25) (citing Letters from the Federal Farmer III (Oct.
10, 1787), in 2 The Complete Anti-Federalist 234, 242 (H. Storing
ed. 1981)); see also Federal Farmer: An Additional Number of
Letters to the Republican, Letter XVIII (Jan. 25, 1788), in 17
Documentary History of the Ratification of the Constitution 360,
362–363 (J. Kaminski & G. Saladino eds. 1995); S. Halbrook, The
Founders’ Second Amendment 171–278 (2008). Federalists responded,
not by arguing that the right was insufficiently important to
warrant protection but by contending that the right was adequately
protected by the Constitution’s assignment of only limited powers
to the Federal Government. Heller , supra , at ___
(slip op., at 25–26); cf. The Federalist No. 46, p. 296 (C.
Rossiter ed. 1961) (J. Madison). Thus, Antifederalists and
Federalists alike agreed that the right to bear arms was
fundamental to the newly formed system of government. See Levy
143–149; J. Malcolm, To Keep and Bear Arms: The Origins of an
Anglo-American Right 155–164 (1994). But those who were fearful
that the new Federal Government would infringe traditional rights
such as the right to keep and bear arms insisted on the adoption of
the Bill of Rights as a condition for ratification of the
Constitution. See 1 J. Elliot, The Debates in the Several State
Conventions on the Adoption of the Federal Constitution 327–331 (2d
ed. 1854); 3 id. , at 657–661; 4 id. , at 242–246,
248–249; see also Levy 26–34; A. Kelly & W. Harbison, The
American Constitution: Its Origins and Development 110, 118 (7th
ed. 1991). This is surely powerful evidence that the right was
regarded as fundamental in the sense relevant here.

															   This understanding persisted in the years
immediately following the ratification of the Bill of Rights. In
addition to the four States that had adopted Second Amendment
analogues before ratification, nine more States adopted state
constitutional provisions protecting an individual right to keep
and bear arms between 1789 and 1820. Heller , supra , at ___ (slip op., at 27–30). Founding-era legal
commentators confirmed the importance of the right to early
Americans. St. George Tucker, for example, described the right to
keep and bear arms as “the true palladium of liberty” and explained
that prohibitions on the right would place liberty “on the brink of
destruction.” 1 Blackstone’s Commentaries, Editor’s App. 300 (S.
Tucker ed. 1803); see also W. Rawle, A View of the Constitution of
the United States of America, 125–126 (2d ed. 1829) (reprint 2009);
3 J. Story, Commentaries on the Constitution of the United States
§1890, p. 746 (1833) (“The right of the citizens to keep and
bear arms has justly been considered, as the palladium of the
liberties of a republic; since it offers a strong moral check
against the usurpation and arbitrary power of rulers; and will
generally, even if these are successful in the first instance,
enable the people to resist and triumph over them”).

															B

															1

															   By the 1850’s, 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. See M. Doubler, Civilian in Peace,
Soldier in War 87–90 (2003); Amar, Bill of Rights 258–259.
Abolitionist authors wrote in support of the right. See L. Spooner,
The Unconstitutionality of Slavery 66 (1860) (reprint 1965); J.
Tiffany, A Treatise on the Unconstitutionality of American Slavery
117–118 (1849) (reprint 1969). And when attempts were made to
disarm “Free-Soilers” in “Bloody Kansas,” Senator Charles Sumner,
who later played a leading role in the adoption of the Fourteenth
Amendment, proclaimed that “[n]ever was [the rifle] more needed in
just self-defense than now in Kansas.” The Crime Against Kansas:
The Apologies for the Crime: The True Remedy, Speech of Hon.
Charles Sumner in the Senate of the United States 64–65 (1856).
Indeed, the 1856 Republican Party Platform protested that in Kansas
the constitutional rights of the people had been “fraudulently and
violently taken from them” and the “right of the people to keep and
bear arms” had been “infringed.” National Party Platforms
1840–1972, p. 27 (5th ed. 1973).[ Footnote 17 ]

															   After the Civil War, many of the
over 180,000 African Americans who served in the Union Army
returned to the States of the old Confederacy, where systematic
efforts were made to disarm them and other blacks. See Heller , 554 U. S., at ___ (slip op., at 42); E. Foner,
Reconstruction: America’s Unfinished Revolution 1863–1877,
p. 8 (1988) (hereinafter Foner). The laws of some States
formally prohibited African Americans from possessing firearms. For
example, a Mississippi law provided that “no freedman, free negro
or mulatto, not in the military service of the United States
government, and not licensed so to do by the board of police of his
or her county, shall keep or carry fire-arms of any kind, or any
ammunition, dirk or bowie knife.” Certain Offenses of Freedmen,
1865 Miss. Laws p. 165, §1, in 1 Documentary History of
Reconstruction 289 (W. Fleming ed. 1950); see also Regulations for
Freedmen in Louisiana, in id ., at 279–280; H. R.
Exec. Doc. No. 70, 39th Cong., 1st Sess., 233, 236 (1866)
(describing a Kentucky law); E. McPherson, The Political History of
the United States of America During the Period of Reconstruction 40
(1871) (describing a Florida law); id ., at 33 (describing
an Alabama law).[ Footnote
18 ]

															   Throughout the South, armed parties, often
consisting of ex-Confederate soldiers serving in the state
militias, forcibly took firearms from newly freed slaves. In the
first session of the 39th Congress, Senator Wilson told his
colleagues: “In Mississippi rebel State forces, men who were in the
rebel armies, are traversing the State, visiting the freedmen,
disarming them, perpetrating murders and outrages upon them; and
the same things are done in other sections of the country.” 39th
Cong. Globe 40 (1865). The Report of the Joint Committee on
Reconstruction—which was widely reprinted in the press and
distributed by Members of the 39th Congress to their constituents
shortly after Congress approved the Fourteenth Amendment[ Footnote 19 ]—contained numerous
examples of such abuses. See, e.g. , Joint Committee on
Reconstruction, H. R. Rep. No. 30, 39th Cong., 1st Sess., pt.
2, pp. 219, 229, 272, pt. 3, pp. 46, 140, pt. 4,
pp. 49–50 (1866); see also S. Exec. Doc. No. 2, 39th Cong.,
1st Sess., 23–24, 26, 36 (1865). In one town, the “marshal [took]
all arms from returned colored soldiers, and [was] very prompt in
shooting the blacks whenever an opportunity occur[red].” H. R.
Exec. Doc. No. 70, at 238 (internal quotation marks omitted).
As Senator Wilson put it during the debate on a failed proposal to
disband Southern militias: “There is one unbroken chain of
testimony from all people that are loyal to this country, that the
greatest outrages are perpetrated by armed men who go up and down
the country searching houses, disarming people, committing outrages
of every kind and description.” 39th Cong. Globe 915
(1866).[ Footnote 20 ]

															   Union Army commanders took steps to secure the
right of all citizens to keep and bear arms,[ Footnote 21 ] but the 39th Congress concluded
that legislative action was necessary. Its efforts to safeguard the
right to keep and bear arms demonstrate that the right was still
recognized to be fundamental.

															   The most explicit evidence of Congress’ aim
appears in §14 of the Freedmen’s Bureau Act of 1866, which provided
that “the right … to have full and equal benefit of all laws and
proceedings concerning personal liberty, personal security, and the
acquisition, enjoyment, and disposition of estate, real and
personal, including the constitutional right to bear arms ,
shall be secured to and enjoyed by all the citizens … without
respect to race or color, or previous condition of slavery.” 14
Stat. 176–177 (emphasis added).[ Footnote 22 ] Section 14 thus explicitly guaranteed that
“all the citizens,” black and white, would have “the constitutional
right to bear arms.”

															   The Civil Rights Act of 1866, 14 Stat. 27,
which was considered at the same time as the Freedmen’s Bureau Act,
similarly sought to protect the right of all citizens to keep and
bear arms.[ Footnote 23 ]
Section 1 of the Civil Rights Act guaranteed the “full and equal
benefit of all laws and proceedings for the security of person and
property, as is enjoyed by white citizens.” Ibid . This
language was virtually identical to language in §14 of the
Freedmen’s Bureau Act, 14 Stat. 176–177 (“the right … to have full
and equal benefit of all laws and proceedings concerning personal
liberty, personal security, and the acquisition, enjoyment, and
disposition of estate, real and personal”). And as noted, the
latter provision went on to explain that one of the “laws and
proceedings concerning personal liberty, personal security, and the
acquisition, enjoyment, and disposition of estate, real and
personal” was “the constitutional right to bear arms.” Ibid. Representative Bingham believed that the Civil
Rights Act protected the same rights as enumerated in the
Freedmen’s Bureau bill, which of course explicitly mentioned the
right to keep and bear arms. 39th Cong. Globe 1292. The unavoidable
conclusion is that the Civil Rights Act, like the Freedmen’s Bureau
Act, aimed to protect “the constitutional right to bear arms” and
not simply to prohibit discrimination. See also Amar, Bill of
Rights 264–265 (noting that one of the “core purposes of the Civil
Rights Act of 1866 and of the Fourteenth Amendment was to redress
the grievances” of freedmen who had been stripped of their arms and
to “affirm the full and equal right of every citizen to
self-defense”).

															   Congress, however, ultimately deemed these
legislative remedies insufficient. Southern resistance,
Presidential vetoes, and this Court’s pre-Civil-War precedent
persuaded Congress that a constitutional amendment was necessary to
provide full protection for the rights of blacks.[ Footnote 24 ] Today, it is generally
accepted that the Fourteenth Amendment was understood to provide a
constitutional basis for protecting the rights set out in the Civil
Rights Act of 1866. See General Building Contractors Assn.,
Inc. v. Pennsylvania , 458 U. S. 375 , 389
(1982); see also Amar, Bill of Rights 187; Calabresi, Two Cheers
for Professor Balkin’s Originalism, 103 Nw. U. L. Rev. 663,
669–670 (2009).

															   In debating the Fourteenth Amendment, the 39th
Congress referred to the right to keep and bear arms as a
fundamental right deserving of protection. Senator Samuel Pomeroy
described three “indispensable” “safeguards of liberty under our
form of Government.” 39th Cong. Globe 1182. One of these, he said,
was the right to keep and bear arms:

															   “Every man … should have the
right to bear arms for the defense of himself and family and his
homestead. And if the cabin door of the freedman is broken open and
the intruder enters for purposes as vile as were known to slavery,
then should a well-loaded musket be in the hand of the occupant to
send the polluted wretch to another world, where his wretchedness
will forever remain complete.” Ibid .

															Even those who thought the Fourteenth Amendment
unnecessary believed that blacks, as citizens, “have equal right to
protection, and to keep and bear arms for self-defense.” Id ., at 1073 (Sen. James Nye); see also Foner
258–259.[ Footnote 25 ]

															   Evidence from the period immediately following
the ratification of the Fourteenth Amendment only confirms that the
right to keep and bear arms was considered fundamental. In an 1868
speech addressing the disarmament of freedmen, Representative
Stevens emphasized the necessity of the right: “Disarm a community
and you rob them of the means of defending life. Take away their
weapons of defense and you take away the inalienable right of
defending liberty.” “The fourteenth amendment, now so happily
adopted, settles the whole question.” Cong. Globe, 40th Cong., 2d
Sess., 1967. And in debating the Civil Rights Act of 1871, Congress
routinely referred to the right to keep and bear arms and decried
the continued disarmament of blacks in the South. See Halbrook,
Freedmen 120–131. Finally, legal commentators from the period
emphasized the fundamental nature of the right. See, e.g. ,
T. Farrar, Manual of the Constitution of the United States of
America §118, p. 145 (1867) (reprint 1993); J. Pomeroy, An
Introduction to the Constitutional Law of the United States §239,
pp. 152–153 (3d ed. 1875).

															   The right to keep and bear arms was also
widely protected by state constitutions at the time when the
Fourteenth Amendment was ratified. In 1868, 22 of the 37 States in
the Union had state constitutional provisions explicitly protecting
the right to keep and bear arms. See Calabresi & Agudo,
Individual Rights Under State Constitutions when the Fourteenth
Amendment was Ratified in 1868: What Rights Are Deeply Rooted in
American History and Tradition? 87 Texas L. Rev. 7, 50
(2008).[ Footnote 26 ] Quite a
few of these state constitutional guarantees, moreover, explicitly
protected the right to keep and bear arms as an individual right to
self-defense. See Ala. Const., Art. I, §28 (1868); Conn. Const.,
Art. I, §17 (1818); Ky. Const., Art. XIII, §25 (1850); Mich.
Const., Art. XVIII, §7 (1850); Miss. Const., Art. I, §15 (1868);
Mo. Const., Art. I, §8 (1865); Tex. Const., Art. I, §13 (1869); see
also Mont. Const., Art. III, §13 (1889); Wash. Const., Art. I, §24
(1889); Wyo. Const., Art. I, §24 (1889); see also State v. McAdams , 714 P. 2d 1236, 1238 (Wyo. 1986). What is
more, state constitutions adopted during the Reconstruction era by
former Confederate States included a right to keep and bear arms.
See, e.g. , Ark. Const., Art. I, §5 (1868); Miss. Const.,
Art. I, §15 (1868); Tex. Const., Art. I, §13 (1869). A clear
majority of the States in 1868, therefore, recognized the right to
keep and bear arms as being among the foundational rights necessary
to our system of Government.[ Footnote 27 ]

															   In sum, it is clear that the Framers and
ratifiers of the Fourteenth Amendment counted the right to keep and
bear arms among those fundamental rights necessary to our system of
ordered liberty.

															2

															   Despite all this evidence,
municipal respondents contend that Congress, in the years
immediately following the Civil War, merely sought to outlaw
“discriminatory measures taken against freedmen, which it addressed
by adopting a non-discrimination principle” and that even an
outright ban on the possession of firearms was regarded as
acceptable, “so long as it was not done in a discriminatory
manner.” Brief for Municipal Respondents 7. They argue that Members
of Congress overwhelmingly viewed §1 of the Fourteenth Amendment
“as an antidiscrimination rule,” and they cite statements to the
effect that the section would outlaw discriminatory measures. Id ., at 64. This argument is implausible.

															   First, while §1 of the Fourteenth
Amendment contains “an antidiscrimination rule,” namely, the Equal
Protection Clause, municipal respondents can hardly mean that §1
does no more than prohibit discrimination. If that were so, then
the First Amendment, as applied to the States, would not prohibit
nondiscriminatory abridgments of the rights to freedom of speech or
freedom of religion; the Fourth Amendment, as applied to the
States, would not prohibit all unreasonable searches and seizures
but only discriminatory searches and seizures—and so on. We assume
that this is not municipal respondents’ view, so what they must
mean is that the Second Amendment should be singled out for
special—and specially unfavorable—treatment. We reject that
suggestion.

															   Second, municipal respondents’ argument
ignores the clear terms of the Freedmen’s Bureau Act of 1866, which
acknowledged the existence of the right to bear arms. If that law
had used language such as “the equal benefit of laws concerning the
bearing of arms,” it would be possible to interpret it as simply a
prohibition of racial discrimination. But §14 speaks of and
protects “the constitutional right to bear arms,” an unmistakable
reference to the right protected by the Second Amendment. And it
protects the “full and equal benefit” of this right in the States.
14 Stat. 176–177. It would have been nonsensical for Congress to
guarantee the full and equal benefit of a constitutional right that
does not exist.

															   Third, if the 39th Congress had outlawed only
those laws that discriminate on the basis of race or previous
condition of servitude, African Americans in the South would likely
have remained vulnerable to attack by many of their worst abusers:
the state militia and state peace officers. In the years
immediately following the Civil War, a law banning the possession
of guns by all private citizens would have been nondiscriminatory
only in the formal sense. Any such law—like the Chicago and Oak
Park ordinances challenged here—presumably would have permitted the
possession of guns by those acting under the authority of the State
and would thus have left firearms in the hands of the militia and
local peace officers. And as the Report of the Joint Committee on
Reconstruction revealed, see supra , at 24–25, those groups
were widely involved in harassing blacks in the South.

															   Fourth, municipal respondents’ purely
antidiscrimination theory of the Fourteenth Amendment disregards
the plight of whites in the South who opposed the Black Codes. If
the 39th Congress and the ratifying public had simply prohibited
racial discrimination with respect to the bearing of arms,
opponents of the Black Codes would have been left without the means
of self-defense—as had abolitionists in Kansas in the 1850’s.

															   Fifth, the 39th Congress’ response to
proposals to disband and disarm the Southern militias is
instructive. Despite recognizing and deploring the abuses of these
militias, the 39th Congress balked at a proposal to disarm them.
See 39th Cong. Globe 914; Halbrook, Freedmen, supra ,
20–21. Disarmament, it was argued, would violate the members’ right
to bear arms, and it was ultimately decided to disband the militias
but not to disarm their members. See Act of Mar. 2, 1867, §6, 14
Stat. 485, 487; Halbrook, Freedmen 68–69; Cramer 858–861. It cannot
be doubted that the right to bear arms was regarded as a
substantive guarantee, not a prohibition that could be ignored so
long as the States legislated in an evenhanded manner.

															IV

															   Municipal respondents’ remaining
arguments are at war with our central holding in Heller :
that the Second Amendment protects a personal right to keep and
bear arms for lawful purposes, most notably for self-defense within
the home. Municipal respondents, in effect, ask us to treat the
right recognized in Heller as a second-class right,
subject to an entirely different body of rules than the other Bill
of Rights guarantees that we have held to be incorporated into the
Due Process Clause.

															   Municipal respondents’ main
argument is nothing less than a plea to disregard 50 years of
incorporation precedent and return (presumably for this case only)
to a bygone era. Municipal respondents submit that the Due Process
Clause protects only those rights “ ‘recognized by all
temperate and civilized governments, from a deep and universal
sense of [their] justice.’ ” Brief for Municipal Respondents 9
(quoting Chicago, B. & Q. R. Co. , 166 U. S., at
238). According to municipal respondents, if it is possible to
imagine any civilized legal system that does not recognize
a particular right, then the Due Process Clause does not make that
right binding on the States. Brief for Municipal Respondents 9.
Therefore, the municipal respondents continue, because such
countries as England, Canada, Australia, Japan, Denmark, Finland,
Luxembourg, and New Zealand either ban or severely limit handgun
ownership, it must follow that no right to possess such weapons is
protected by the Fourteenth Amendment. Id ., at 21–23.

															   This line of argument is, of course,
inconsistent with the long-established standard we apply in
incorporation cases. See Duncan , 391 U. S., at 149, and
n. 14. And the present-day implications of municipal
respondents’ argument are stunning. For example, many of the rights
that our Bill of Rights provides for persons accused of criminal
offenses are virtually unique to this country.[ Footnote 28 ] If our understanding of
the right to a jury trial, the right against self-incrimination,
and the right to counsel were necessary attributes of any civilized country, it would follow that the United States is the
only civilized Nation in the world.

															   Municipal respondents attempt to salvage their
position by suggesting that their argument applies only to
substantive as opposed to procedural rights. Brief for Municipal
Respondents 10, n. 3. But even in this trimmed form, municipal
respondents’ argument flies in the face of more than a half-century
of precedent. For example, in Everson v. Board of Ed.
of Ewing , 330 U. S. 1 , 8 (1947), the Court held
that the Fourteenth Amendment incorporates the Establishment Clause
of the First Amendment. Yet several of the countries that municipal
respondents recognize as civilized have established state
churches.[ Footnote 29 ] If we
were to adopt municipal respondents’ theory, all of this Court’s
Establishment Clause precedents involving actions taken by state
and local governments would go by the boards.

															   Municipal respondents maintain that the Second
Amendment differs from all of the other provisions of the Bill of
Rights because it concerns the right to possess a deadly implement
and thus has implications for public safety. Brief for Municipal
Respondents 11. And they note that there is intense disagreement on
the question whether the private possession of guns in the home
increases or decreases gun deaths and injuries. Id ., at
11, 13–17.

															   The right to keep and bear arms, however, is
not the only constitutional right that has controversial public
safety implications. All of the constitutional provisions that
impose restrictions on law enforcement and on the prosecution of
crimes fall into the same category. See, e.g ., Hudson v. Michigan , 547 U. S. 586 , 591
(2006) (“The exclusionary rule generates ‘substantial social
costs,’ United States v. Leon , 468 U. S. 897 , 907
(1984), which sometimes include setting the guilty free and the
dangerous at large”); Barker v. Wingo , 407 U. S. 514 , 522
(1972) (reflecting on the serious consequences of dismissal for a
speedy trial violation, which means “a defendant who may be guilty
of a serious crime will go free”); Miranda v. Arizona , 384 U. S. 436 , 517 (1966) (Harlan, J.,
dissenting); id. , at 542 (White, J., dissenting)
(objecting that the Court’s rule “[i]n some unknown number of cases
… will return a killer, a rapist or other criminal to the streets …
to repeat his crime”); Mapp , 367 U. S., at 659. Municipal
respondents cite no case in which we have 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.

															   We likewise reject municipal respondents’
argument that we should depart from our established incorporation
methodology on the ground that making the Second Amendment binding
on the States and their subdivisions is inconsistent with
principles of federalism and will stifle experimentation. Municipal
respondents point out—quite correctly—that conditions and problems
differ from locality to locality and that citizens in different
jurisdictions have divergent views on the issue of gun control.
Municipal respondents therefore urge us to allow state and local
governments to enact any gun control law that they deem to be
reasonable, including a complete ban on the possession of handguns
in the home for self-defense. Brief for Municipal Respondents
18–20, 23.

															   There is nothing new in the argument that, in
order to respect federalism and allow useful state experimentation,
a federal constitutional right should not be fully binding on the
States. This argument was made repeatedly and eloquently by Members
of this Court who rejected the concept of incorporation and urged
retention of the two-track approach to incorporation. Throughout
the era of “selective incorporation,” Justice Harlan in particular,
invoking the values of federalism and state experimentation, fought
a determined rearguard action to preserve the two-track approach.
See, e.g. , Roth v. United States , 354 U. S. 476 ,
500–503 (1957) (Harlan, J., concurring in result in part and
dissenting in part); Mapp , supra , at 678–680
(Harlan, J., dissenting); Gideon , 372 U. S., at 352
(Harlan, J., concurring); Malloy , 378 U. S., at 14–33
(Harlan, J., dissenting); Pointer , 380 U. S., at 408–409
(Harlan, J., concurring in result); Washington , 388 U. S.,
at 23–24 (Harlan, J., concurring in result); Duncan , 391
U. S., at 171–193 (Harlan, J., dissenting); Benton , 395 U.
S., at 808–809 (Harlan, J., dissenting); Williams v. Florida , 399
U. S. 78 , 117 (1970) (Harlan, J., dissenting in part and
concurring in result in part).

															   Time and again, however, those pleas failed.
Unless we turn back the clock or adopt a special incorporation test
applicable only to the Second Amendment, municipal respondents’
argument must be rejected. Under our precedents, if a Bill of
Rights guarantee is fundamental from an American perspective, then,
unless stare decisis counsels otherwise,[ Footnote 30 ] that guarantee is fully
binding on the States and thus limits (but by no means
eliminates) their ability to devise solutions to social problems
that suit local needs and values. As noted by the 38 States that
have appeared in this case as amici supporting
petitioners, “[s]tate and local experimentation with reasonable
firearms regulations will continue under the Second Amendment.”
Brief for State of Texas et al. as Amici Curiae 23.

															   Municipal respondents and their amici complain that incorporation of the Second Amendment right will lead
to extensive and costly litigation, but this argument applies with
even greater force to constitutional rights and remedies that have
already been held to be binding on the States. Consider the
exclusionary rule. Although the exclusionary rule “is not an
individual right,” Herring v. United States , 555
U. S. ___ (2009) (slip op., at 5), but a “judicially created rule,” id ., at ___ (slip op., at 4), this Court made the rule
applicable to the States. See Mapp , supra , at
660. The exclusionary rule is said to result in “tens of thousands
of contested suppression motions each year.” Stuntz, The Virtues
and Vices of the Exclusionary Rule, 20 Harv. J. Law & Pub.
Pol’y, 443, 444 (1997).

															   Municipal respondents assert that, although
most state constitutions protect firearms rights, state courts have
held that these rights are subject to “interest-balancing” and have
sustained a variety of restrictions. Brief for Municipal
Respondents 23–31. In Heller , however, we expressly
rejected the argument that the scope of the Second Amendment right
should be determined by judicial interest balancing, 554 U. S., at
___–___ (slip op., at 62–63), and this
Court decades ago abandoned “the notion that the Fourteenth
Amendment applies to the States only a watered-down, subjective
version of the individual guarantees of the Bill of Rights,” Malloy , supra , at 10–11 (internal quotation marks
omitted). As evidence that the
Fourteenth Amendment has not historically been understood to
restrict the authority of the States to regulate firearms,
municipal respondents and supporting amici cite a variety
of state and local firearms laws that courts have upheld. But what
is most striking about their research is the paucity of precedent
sustaining bans comparable to those at issue here and in Heller . Municipal respondents cite precisely one case
(from the late 20th century) in which such a ban was sustained. See
Brief for Municipal Respondents 26–27 (citing Kalodimos v. Morton Grove , 103 Ill. 2d 483, 470 N. E. 2d 266
(1984)); see also Reply Brief for Respondents NRA et al. 23,
n. 7 (asserting that no other court has ever upheld a complete ban
on the possession of handguns). It is important to keep in mind
that Heller , while striking down a law that prohibited the
possession of handguns in the home, recognized that the right to
keep and bear arms is not “a right to keep and carry any weapon
whatsoever in any manner whatsoever and for whatever purpose.” 554
U. S., at ___ (slip op., at 54). We made it clear in Heller that our holding did not cast doubt on such
longstanding regulatory measures as “prohibitions on the possession
of firearms by felons and the mentally ill,” “laws forbidding the
carrying of firearms in sensitive places such as schools and
government buildings, or laws imposing conditions and
qualifications on the commercial sale of arms.” Id ., at
___–___ (slip op., at 54–55). We repeat those assurances here.
Despite municipal respondents’ doomsday proclamations,
incorporation does not imperil every law regulating
firearms. Municipal respondents
argue, finally, that the right to keep and bear arms is unique
among the rights set out in the first eight Amendments “because the
reason for codifying the Second Amendment (to protect the militia)
differs from the purpose (primarily, to use firearms to engage in
self-defense) that is claimed to make the right implicit in the
concept of ordered liberty.” Brief for Municipal Respondents 36–37.
Municipal respondents suggest that the Second Amendment right
differs from the rights heretofore incorporated because the latter
were “valued for [their] own sake.” Id ., at 33. But we
have never previously suggested that incorporation of a right turns
on whether it has intrinsic as opposed to instrumental value, and
quite a few of the rights previously held to be incorporated—for
example the right to counsel and the right to confront and subpoena
witnesses—are clearly instrumental by any measure. Moreover, this
contention repackages one of the chief arguments that we rejected
in Heller , i.e. , that the scope of the Second
Amendment right is defined by the immediate threat that led to the
inclusion of that right in the Bill of Rights. In Heller ,
we recognized that the codification of this right was prompted by
fear that the Federal Government would disarm and thus disable the
militias, but we rejected the suggestion that the right was valued
only as a means of preserving the militias. 554 U. S., at ___ (slip
op., at 26). On the contrary, we stressed that the right was also
valued because the possession of firearms was thought to be
essential for self-defense. As we put it, self-defense was “the central component of the right itself.” Ibid . V A We turn,
finally, to the two dissenting opinions. Justice Stevens’ eloquent
opinion covers ground already addressed, and therefore little need
be added in response. Justice Stevens would “ ‘ground the
prohibitions against state action squarely on due process, without
intermediate reliance on any of the first eight Amendments.’ ” Post, at 8 (quoting Malloy , 378 U. S., at 24
(Harlan, J., dissenting)). The question presented in this case, in
his view, “is whether the particular right asserted by petitioners
applies to the States because of the Fourteenth Amendment itself,
standing on its own bottom.” Post , at 27. He would hold
that “[t]he rights protected against state infringement by the
Fourteenth Amendment’s Due Process Clause need not be identical in
shape or scope to the rights protected against Federal Government
infringement by the various provisions of the Bill of Rights.” Post , at 9. As we
have explained, the Court, for the past half-century, has moved
away from the two-track approach. If we were now to accept Justice
Stevens’ theory across the board, decades of decisions would be
undermined. We assume that this is not what is proposed. What is
urged instead, it appears, is that this theory be revived solely
for the individual right that Heller recognized, over
vigorous dissents. The relationship
between the Bill of Rights’ guarantees and the States must be
governed by a single, neutral principle. It is far too late to
exhume what Justice Brennan, writing for the Court 46 years ago,
derided as “the notion that the Fourteenth Amendment applies to the
States only a watered-down, subjective version of the individual
guarantees of the Bill of Rights.” Malloy , supra ,
at 10–11 (internal quotation marks omitted). B Justice
Breyer’s dissent makes several points to which we briefly respond.
To begin, while there is certainly room for disagreement about Heller ’s analysis of the history of the right to keep and
bear arms, nothing written since Heller persuades us to
reopen the question there decided. Few other questions of original
meaning have been as thoroughly explored. Justice
Breyer’s conclusion that the Fourteenth Amendment does not
incorporate the right to keep and bear arms appears to rest
primarily on four factors: First, “there is no popular consensus”
that the right is fundamental, post , at 9; second, the
right does not protect minorities or persons neglected by those
holding political power, post , at 10; third, incorporation
of the Second Amendment right would “amount to a significant
incursion on a traditional and important area of state concern,
altering the constitutional relationship between the States and the
Federal Government” and preventing local variations, post ,
at 11; and fourth, determining the scope of the Second Amendment
right in cases involving state and local laws will force judges to
answer difficult empirical questions regarding matters that are
outside their area of expertise, post , at 11–16. Even if
we believed that these factors were relevant to the incorporation
inquiry, none of these factors undermines the case for
incorporation of the right to keep and bear arms for
self-defense. First, we have never
held that a provision of the Bill of Rights applies to the States
only if there is a “popular consensus” that the right is
fundamental, and we see no basis for such a rule. But in this case,
as it turns out, there is evidence of such a consensus. An amicus brief submitted by 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. See Brief for Senator
Kay Bailey Hutchison et al . as Amici Curiae 4.
Another brief submitted by 38 States takes the same position. Brief
for State of Texas et al. as Amici Curiae 6. Second, petitioners
and many others who live in high-crime areas dispute the
proposition that the Second Amendment right does not protect
minorities and those lacking political clout. The plight of
Chicagoans living in high-crime areas was recently highlighted when
two Illinois legislators representing Chicago districts called on
the Governor to deploy the Illinois National Guard to patrol the
City’s streets.[ Footnote 31 ]
The legislators noted that the number of Chicago homicide victims
during the current year equaled the number of American soldiers
killed during that same period in Afghanistan and Iraq and that 80%
of the Chicago victims were black.[ Footnote 32 ] Amici supporting incorporation of
the right to keep and bear arms contend that the right is
especially important for women and members of other groups that may
be especially vulnerable to violent crime.[ Footnote 33 ] If, as petitioners believe, their
safety and the safety of other law-abiding members of the community
would be enhanced by the possession 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. Third, Justice Breyer
is correct that incorporation of the Second Amendment right will to
some extent limit the legislative freedom of the States, but this
is always true when a Bill of Rights provision is incorporated.
Incorporation always restricts experimentation and local
variations, but that has not stopped the Court from incorporating
virtually every other provision of the Bill of Rights. “[T]he
enshrinement of constitutional rights necessarily takes certain
policy choices off the table.” Heller , 554 U. S., at __
(slip op., at 64). This conclusion is no more remarkable with
respect to the Second Amendment than it is with respect to all the
other limitations on state power found in the
Constitution. Finally, Justice
Breyer is incorrect that incorporation will require judges to
assess the costs and benefits of firearms restrictions and thus to
make difficult empirical judgments in an area in which they lack
expertise. As we have noted, while his opinion in Heller recommended an interest-balancing test, the Court specifically
rejected that suggestion. See supr a, at 38–39. “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.” Heller , supra , at ___ (slip op.,
at 62–63). *  *  * In Heller , we held that the Second Amendment protects the
right to possess a handgun in the home for the purpose of
self-defense. Unless considerations of stare decisis counsel otherwise, a provision of the Bill of Rights that protects
a right that is fundamental from an American perspective applies
equally to the Federal Government and the States. See Duncan , 391 U. S., at 149, and n. 14. We therefore
hold that the Due Process Clause of the Fourteenth Amendment
incorporates the Second Amendment right recognized in Heller . The judgment of the Court of Appeals is reversed,
and the case is remanded for further proceedings. It is so
ordered. Footnote
1 See Brief for
Heartland Institute as Amicus Curiae 6–7 (noting that
handgun murder rate was 9.65 in 1983 and 13.88 in
2008). Footnote
2 Brief for Buckeye
Firearms Foundation, Inc., et al. as Amici Curiae 8–9
(“In 2002 and again in 2008, Chicago had more murders than any
other city in the U. S., including the much larger Los Angeles and
New York” (internal quotation marks omitted)); see also Brief for
International Law Enforcement Educators and Trainers Association et
al. as Amici Curiae 17–21, and App. A (providing
comparisons of Chicago’s rates of assault, murder, and robbery to
average crime rates in 24 other large cities). Footnote
3 Brief for Women State
Legislators et al. as Amici Curiae 2. Footnote
4 The Illinois State
Rifle Association and the Second Amendment Foundation,
Inc. Footnote
5 The first sentence of
the Fourteenth Amendment makes “[a]ll persons born or naturalized
in the United States and subject to the jurisdiction thereof …
citizens of the United States and of the State wherein they
reside .” (Emphasis added.) The Privileges and Immunities
Clause of Article IV provides that “[t]he Citizens of each State
shall be entitled to all Privileges and Immunities of Citizens
in the several States .” (Emphasis added.) Footnote
6 See C. Lane, The Day
Freedom Died 265–266 (2008); see also Brief for NAACP Legal Defense
& Education Fund, Inc., as Amicus Curiae 3, and
n. 2. Footnote
7 See Lane, supra , at 106. Footnote
8 United
States v. Cruikshank , 92 U.
S. 542 , 544–545 (statement of the case), 548, 553 (opinion of
the Court) (1875); Lawrence, Civil Rights and Criminal Wrongs: The
Mens Rea of Federal Civil Rights Crimes, 67 Tulane L. Rev.
2113, 2153 (1993). Footnote
9 Senator Jacob Howard,
who spoke on behalf of the Joint Committee on Reconstruction and
sponsored the Amendment in the Senate, stated that the Amendment
protected all of “the personal rights guarantied and secured by the
first eight amendments of the Constitution.” Cong. Globe, 39th
Cong., 1st Sess., 2765 (1866) (hereinafter 39th Cong. Globe).
Representative John Bingham, the principal author of the text of
§1, said that the Amendment would “arm the Congress … with the
power to enforce the bill of rights as it stands in the
Constitution today.” Id ., at 1088; see also id. ,
at 1089–1090; A. Amar, The Bill of Rights: Creation and
Reconstruction 183 (1998) (hereinafter Amar, Bill of Rights). After
ratification of the Amendment, Bingham maintained the view that the
rights guaranteed by §1 of the Fourteenth Amendment “are chiefly
defined in the first eight amendments to the Constitution of the
United States.” Cong. Globe, 42d Cong., 1st Sess., App. 84 (1871).
Finally, Representative Thaddeus Stevens, the political leader of
the House and acting chairman of the Joint Committee on
Reconstruction, stated during the debates on the Amendment that
“the Constitution limits only the action of Congress, and is not a
limitation on the States. This amendment supplies that defect, and
allows Congress to correct the unjust legislation of the States.”
39th Cong. Globe 2459; see also M. Curtis, No State Shall Abridge:
The Fourteenth Amendment and the Bill of Rights 112 (1986)
(counting at least 30 statements during the debates in Congress
interpreting §1 to incorporate the Bill of Rights); Brief for
Constitutional Law Professors as Amici Curiae 20
(collecting authorities and stating that “[n]ot a single senator or
representative disputed [the incorporationist] understanding” of
the Fourteenth Amendment). Footnote
10 The municipal
respondents and some of their amici dispute the
significance of these statements. They contend that the phrase
“privileges or immunities” is not naturally read to mean the rights
set out in the first eight Amendments, see Brief for Historians
et al. as Amici Curiae 13–16, and that “there is
‘support in the legislative history for no fewer than four
interpretations of the … Privileges or Immunities Clause.’ ”
Brief for Municipal Respondents 69 (quoting Currie, The
Reconstruction Congress, 75 U. Chi. L. Rev. 383, 406 (2008);
brackets omitted). They question whether there is sound evidence of
“ ‘any strong public awareness of nationalizing the entire Bill of Rights.’ ” Brief for Municipal
Respondents 69 (quoting Wildenthal, Nationalizing the Bill of
Rights: Revisiting the Original Understanding of the Fourteenth
Amendment in 1866–67, 68 Ohio St. L. J. 1509, 1600 (2007)).
Scholars have also disputed the total incorporation theory. See, e.g ., Fairman, Does the Fourteenth Amendment Incorporate
the Bill of Rights? 2 Stan. L. Rev. 5 (1949); Berger,
Incorporation of the Bill of Rights in the Fourteenth Amendment: A
Nine-Lived Cat, 42 Ohio St. L. J. 435
(1981). Proponents of the view
that §1 of the Fourteenth Amendment makes all of the provisions of
the Bill of Rights applicable to the States respond that the terms
privileges, immunities, and rights were used interchangeably at the
time, see, e.g. , Curtis, supra , at 64–65, and
that the position taken by the leading congressional proponents of
the Amendment was widely publicized and understood, see, e.g ., Wildenthal, supra , at 1564–1565, 1590;
Hardy, Original Popular Understanding of the Fourteenth Amendment
as Reflected in the Print Media of 1866–1868, 30 Whittier L. Rev.
695 (2009). A number of scholars have found support for the total
incorporation of the Bill of Rights. See Curtis, supra , at
57–130; Aynes, On Misreading John Bingham and the Fourteenth
Amendment, 103 Yale L. J. 57, 61 (1993); see also Amar, Bill
of Rights 181–230. We take no position with respect to this
academic debate. Footnote
11 By contrast, the
Court has never retreated from the proposition that the Privileges
or Immunities Clause and the Due Process Clause present different
questions. And in recent cases addressing unenumerated rights, we
have required that a right also be “implicit in the concept of
ordered liberty.” See, e.g ., Washington v. Glucksberg , 521 U. S. 702 , 721 (1997) (internal
quotation marks omitted). Footnote
12 With respect to the
First Amendment, see Everson v. Board of Ed. of
Ewing , 330 U. S. 1 (1947) (Establishment
Clause); Cantwell v. Connecticut , 310 U. S. 296 (1940) (Free Exercise
Clause); De Jonge v. Oregon , 299 U. S. 353 (1937) (freedom of
assembly); Gitlow v. New York , 268 U. S. 652 (1925) (free speech); Near v. Minnesota ex rel. Olson , 283 U. S. 697 (1931) (freedom of the
press). With respect to the
Fourth Amendment, see Aguilar v. Texas , 378 U. S. 1 08 (1964) (warrant
requirement); Mapp v. Ohio , 367 U. S. 643 (1961) (exclusionary
rule); Wolf v. Colorado , 338 U.
S. 25 (1949) (freedom from unreasonable searches and
seizures). With respect to the
Fifth Amendment, see Benton v. Maryland , 395 U. S. 784 (1969) (Double Jeopardy
Clause); Malloy v. Hogan , 378 U. S. 1 (1964) (privilege against
self-incrimination); Chicago, B. & Q. R. Co. v. Chicago , 166 U. S. 226 (1897) (Just
Compensation Clause). With respect to the
Sixth Amendment, see Duncan v. Louisiana , 391 U. S. 145 (1968) (trial by jury in
criminal cases); Washington v. Texas , 388 U. S. 14 (1967) (compulsory
process); Klopfer v. North Carolina , 386 U. S. 213 (1967)
(speedy trial); Pointer v. Texas , 380 U. S. 400 (1965) (right to
confront adverse witness); Gideon v. Wainwright , 372
U. S. 335 (1963) (assistance of counsel); In re
Oliver , 333 U.
S. 257 (1948) (right to a public trial). With respect to the
Eighth Amendment, see Robinson v. California , 370 U. S. 660 (1962) (cruel and unusual punishment); Schilb v. Kuebel , 404
U. S. 357 (1971) (prohibition against excessive
bail). Footnote
13 In addition to the
right to keep and bear arms (and the Sixth Amendment right to a
unanimous jury verdict, see n. 14, infra ), the only
rights not fully incorporated are (1) the Third Amendment’s
protection against quartering of soldiers; (2) the Fifth
Amendment’s grand jury indictment requirement; (3) the Seventh
Amendment right to a jury trial in civil cases; and (4) the Eighth
Amendment’s prohibition on excessive fines. We never have decided
whether the Third Amendment or the Eighth Amendment’s prohibition
of excessive fines applies to the States through the Due Process
Clause. See Browning-Ferris Industries of Vt., Inc. v. Kelco Disposal, Inc. , 492 U. S. 257 , 276, n.
22 (1989) (declining to decide whether the excessive-fines
protection applies to the States); see also Engblom v. Carey , 677 F. 2d 957, 961 (CA2 1982) (holding as a
matter of first impression that the “Third Amendment is
incorporated into the Fourteenth Amendment for application to the
states”). Our governing
decisions regarding the Grand Jury Clause of the Fifth Amendment
and the Seventh Amendment’s civil jury requirement long predate the
era of selective incorporation. Footnote
14 There is one
exception to this general rule. The Court has held that although
the Sixth Amendment right to trial by jury requires a unanimous
jury verdict in federal criminal trials, it does not require a
unanimous jury verdict in state criminal trials. See Apodaca v. Oregon , 406 U. S. 404 (1972);
see also Johnson v. Louisiana , 406 U. S. 356 (1972)
(holding that the Due Process Clause does not require unanimous
jury verdicts in state criminal trials). But that ruling was the
result of an unusual division among the Justices, not an
endorsement of the two-track approach to incorporation. In Apodaca , eight Justices agreed that the Sixth Amendment
applies identically to both the Federal Government and the States.
See Johnson , supra , at 395 (Brennan, J.,
dissenting). Nonetheless, among those eight, four Justices took the
view that the Sixth Amendment does not require unanimous jury
verdicts in either federal or state criminal trials, Apodaca , 406 U. S., at 406 (plurality opinion), and four
other Justices took the view that the Sixth Amendment requires
unanimous jury verdicts in federal and state criminal trials, id ., at 414–415 (Stewart, J., dissenting); Johnson , supra , at 381–382 (Douglas, J.,
dissenting). Justice Powell’s concurrence in the judgment broke the
tie, and he concluded that the Sixth Amendment requires juror
unanimity in federal, but not state, cases. Apodaca ,
therefore, does not undermine the well-established rule that
incorporated Bill of Rights protections apply identically to the
States and the Federal Government. See Johnson , supra , at 395–396 (Brennan, J., dissenting) (footnote
omitted) (“In any event, the affirmance must not obscure that the
majority of the Court remains of the view that, as in the case of
every specific of the Bill of Rights that extends to the States,
the Sixth Amendment’s jury trial guarantee, however it is to be
construed, has identical application against both State and Federal
Governments”). Footnote
15 Citing Jewish, Greek,
and Roman law, Blackstone wrote that if a person killed an
attacker, “the slayer is in no kind of fault whatsoever, not even
in the minutest degree; and is therefore to be totally acquitted
and discharged, with commendation rather than blame.” 4 W.
Blackstone, Commentaries on the Laws of England 182 (reprint
1992). Footnote
16 For example, an
article in the Boston Evening Post stated: “For it is certainly
beyond human art and sophistry, to prove the British subjects, to
whom the privilege of possessing arms is expressly recognized by
the Bill of Rights, and, who live in a province where the law
requires them to be equip’d with arms, &c. are guilty of an
illegal act, in calling upon one another to be provided with them,
as the law directs.” Boston Evening Post, Feb. 6, 1769, in Boston
Under Military Rule 1768–1769, p. 61 (1936) (emphasis
deleted). Footnote
17 Abolitionists and
Republicans were not alone in believing that the right to keep and
bear arms was a fundamental right. The 1864 Democratic Party
Platform complained that the confiscation of firearms by Union
troops occupying parts of the South constituted “the interference
with and denial of the right of the people to bear arms in their
defense.” National Party Platforms 1840–1972, at
34. Footnote
18 In South Carolina,
prominent black citizens held a convention to address the State’s
black code. They drafted a memorial to Congress, in which they
included a plea for protection of their constitutional right to
keep and bear arms: “ ‘We ask that, inasmuch as the
Constitution of the United States explicitly declares that the
right to keep and bear arms shall not be infringed … that the late
efforts of the Legislature of this State to pass an act to deprive
us [of] arms be forbidden, as a plain violation of the
Constitution.’ ” S. Halbrook, Freedmen, The Fourteenth
Amendment, and The Right to Bear Arms, 1866–1876, p. 9 (1998)
(hereinafter Halbrook, Freedmen) (quoting 2 Proceedings of the
Black State Conventions, 1840–1865, p. 302 (P. Foner & G.
Walker eds. 1980)). Senator Charles Sumner relayed the memorial to
the Senate and described the memorial as a request that black
citizens “have the constitutional protection in keeping arms.” 39th
Cong. Globe 337. Footnote
19 See B. Kendrick,
Journal of the Joint Committee of Fifteen on Reconstruction 265–266
(1914); Adamson v. California , 332 U.
S. 46 , 108–109 (1947) (appendix to dissenting opinion of Black,
J.). Footnote
20 Disarmament by bands
of former Confederate soldiers eventually gave way to attacks by
the Ku Klux Klan. In debates over the later enacted Enforcement Act
of 1870, Senator John Pool observed that the Klan would “order the
colored men to give up their arms; saying that everybody would be
Kukluxed in whose house fire-arms were found.” Cong. Globe, 41st
Cong., 2d Sess., 2719 (1870); see also H. R. Exec. Doc. No.
268, 42d Cong., 2d Sess., 2 (1872). Footnote
21 For example, the
occupying Union commander in South Carolina issued an order stating
that “[t]he constitutional rights of all loyal and well disposed
inhabitants to bear arms, will not be infringed.” General Order No.
1, Department of South Carolina, January 1, 1866, in 1 Documentary
History of Reconstruction 208 (W. Fleming ed. 1950). Union
officials in Georgia issued a similar order, declaring that
“ ‘[a]ll men, without the distinction of color, have the right
to keep arms to defend their homes, families or themselves.’ ”
Cramer, “This Right is Not Allowed by Governments That Are Afraid
of The People”: The Public Meaning of the Second Amendment When the
Fourteenth Amendment was Ratified, 17 Geo. Mason L. Rev. 823,
854 (2010) (hereinafter Cramer) (quoting Right to Bear Arms,
Christian Recorder, Feb. 24, 1866, pp. 1–2). In addition, when
made aware of attempts by armed parties to disarm blacks, the head
of the Freedmen’s Bureau in Alabama “made public [his]
determination to maintain the right of the negro to keep and to
bear arms, and [his] disposition to send an armed force into any
neighborhood in which that right should be systematically
interfered with.” Joint Committee on Reconstruction, H. R.
Rep. No. 30, 39th Cong., 1st Sess., pt. 3, p. 140
(1866). Footnote
22 The Freedmen’s Bureau
bill was amended to include an express reference to the right to
keep and bear arms, see 39th Cong. Globe 654 (Rep. Thomas Eliot),
even though at least some Members believed that the unamended
version alone would have protected the right, see id ., at
743 (Sen. Lyman Trumbull). Footnote
23 There can be do doubt
that the principal proponents of the Civil Rights Act of 1866 meant
to end the disarmament of African Americans in the South. In
introducing the bill, Senator Trumbull described its purpose as
securing to blacks the “privileges which are essential to freemen.” Id ., at 474. He then pointed to the previously described
Mississippi law that “prohibit[ed] any negro or mulatto from having
fire-arms” and explained that the bill would “destroy” such laws. Ibid . Similarly, Representative Sidney Clarke cited
disarmament of freedmen in Alabama and Mississippi as a reason to
support the Civil Rights Act and to continue to deny Alabama and
Mississippi representation in Congress: “I regret, sir, that
justice compels me to say, to the disgrace of the Federal
Government, that the ‘reconstructed’ State authorities of
Mississippi were allowed to rob and disarm our veteran soldiers and
arm the rebels fresh from the field of treasonable strife. Sir, the
disarmed loyalists of Alabama, Mississippi, and Louisiana are
powerless to-day, and oppressed by the pardoned and encouraged
rebels of those States. They appeal to the American Congress for
protection. In response to this appeal I shall vote for every just
measure of protection, for I do not intend to be among the
treacherous violators of the solemn pledge of the nation.” Id ., at 1838–1839. Footnote
24 For example, at least
one southern court had held the Civil Rights Act to be
unconstitutional. That court did so, moreover, in the course of
upholding the conviction of an African-American man for violating
Mississippi’s law against firearm possession by freedmen. See
Decision of Chief Justice Handy, Declaring the Civil Rights Bill
Unconstitutional, N. Y. Times, Oct. 26, 1866, p. 2, col.
3. Footnote
25 Other Members of the
39th Congress stressed the importance of the right to keep and bear
arms in discussing other measures. In speaking generally on
reconstruction, Representative Roswell Hart listed the
“ ‘right of the people to keep and bear arms’ ” as among
those rights necessary to a “republican form of government.” 39th
Cong. Globe 1629. Similarly, in objecting to a bill designed to
disarm southern militias, Senator Willard Saulsbury argued that
such a measure would violate the Second Amendment. Id ., at
914–915. Indeed, the bill “ultimately passed in a form that
disbanded militias but maintained the right of individuals to their
private firearms.” Cramer 858. Footnote
26 More generally worded
provisions in the constitutions of seven other States may also have
encompassed a right to bear arms. See Calabresi & Agudo, 87
Texas L. Rev., at 52. Footnote
27 These state
constitutional protections often reflected a lack of law
enforcement in many sections of the country. In the frontier towns
that did not have an effective police force, law enforcement often
could not pursue criminals beyond the town borders. See Brief for
Rocky Mountain Gun Owners et al. as Amici Curiae 15.
Settlers in the West and elsewhere, therefore, were left to
“repe[l] force by force when the intervention of society … [was]
too late to prevent an injury.” District of Columbia v. Heller , 554 U. S. ___ , ___ (2008) (slip op., at 21)
(internal quotation marks omitted). The settlers’ dependence on
game for food and economic livelihood, moreover, undoubtedly
undergirded these state constitutional guarantees. See id ., at ___, ___, ___ (slip. op, at 26, 36,
42). Footnote
28 For example, the
United States affords criminal jury trials far more broadly than
other countries. See, e.g. , Van Kessel, Adversary Excesses
in the American Criminal Trial, 67 Notre Dame L. Rev. 403
(1992); Leib, A Comparison of Criminal Jury Decision Rules in
Democratic Countries, 5 Ohio St. J. Crim. L. 629,
630 (2008); Henderson, The Wrongs of Victim’s Rights, 37 Stan.
L. Rev. 937, 1003, n. 296 (1985); see also Roper v. Simmons , 543 U. S. 551 , 624
(2005) (Scalia, J., dissenting) (“In many significant respects the
laws of most other countries differ from our law—including … such
explicit provisions of our Constitution as the right to jury
trial”). Similarly, our rules governing pretrial interrogation
differ from those in countries sharing a similar legal heritage.
See Dept. of Justice, Office of Legal Policy, Report to the
Attorney General on the Law of Pretrial Interrogation: Truth in
Criminal Justice Report No. 1 (Feb. 12, 1986), reprinted in 22 U.
Mich. J. L. Ref. 437, 534–542 (1989) (comparing the system
envisioned by Miranda v. Arizona , 384 U. S. 436 (1966), with rights
afforded by England, Scotland, Canada, India, France, and Germany).
And the “Court-pronounced exclusionary rule … is distinctively
American.” Roper , supra , at 624 (Scalia, J.,
dissenting) (citing Bivens v. Six Unknown Fed.
Narcotics Agents , 403 U. S. 388 , 415
(1971) (Burger, C. J., dissenting) (noting that exclusionary
rule was “unique to American jurisprudence” (internal quotation
marks omitted))); see also Sklansky, Anti-Inquisitorialism, 122
Harv. L. Rev. 1634, 1648–1656, 1689–1693 (2009) (discussing
the differences between American and European confrontation
rules). Footnote
29 England and Denmark
have state churches. See Torke, The English Religious
Establishment, 12 J. of Law & Religion 399, 417–427 (1995–1996)
(describing legal status of Church of England); Constitutional Act
of Denmark, pt. I, §4 (1953) (“The Evangelical Lutheran Church
shall be the Established Church of Denmark”). The Evangelical
Lutheran Church of Finland has attributes of a state church. See
Christensen, Is the Lutheran Church Still the State Church? An
Analysis of Church-State Relations in Finland, 1995 B. Y. U.
L. Rev. 585, 596–600 (describing status of church under
Finnish law). The Web site of the Evangelical Lutheran Church of
Finland states that the church may be usefully described as both a
“state church” and a “folk church.” See J. Seppo, The Current
Condition of Church-State Relations in Finland, online at
http://evl.fi/EVLen.nsf/Documents/838DDBEF
4A28712AC225730F001F7C67?OpenDocument&lang=EN (all Internet
materials as visited June 23, 2010, and available in Clerk of
Court’s case file). Footnote
30 As noted above, see
n. 13, supra , cases that predate the era of selective
incorporation held that the Grand Jury Clause of the Fifth
Amendment and the Seventh Amendment’s civil jury requirement do not
apply to the States. See Hurtado v. California , 110 U. S. 516 (1884) (indictment); Minneapolis & St. Louis R. Co. v. Bombolis , 241 U. S. 211 (1916) (civil jury). As a result of Hurtado , most States do not require a grand jury
indictment in all felony cases, and many have no grand juries. See
Dept. of Justice, Office of Justice Programs, Bureau of Justice
Statistics, State Court Organization 2004, pp. 213, 215–217 (2006)
(Table 38), online at
http://bjs.ojp.usdoj.gov/content/pub/pdf/sco04.pdf. As a result of Bombolis , cases that would otherwise fall within the
Seventh Amendment are now tried without a jury in state small
claims courts. See, e.g. , Cheung v. Eighth
Judicial Dist. Court , 121 Nev. 867, 124 P. 3d 550 (2005)
(no right to jury trial in small claims court under Nevada
Constitution). Footnote
31 See Mack &
Burnette, 2 Lawmakers to Quinn: Send the Guard to Chicago, Chicago
Tribune, Apr. 26, 2010, p. 6. Footnote
32 Janssen &
Knowles, Send in Troops? Chicago Sun-Times, Apr. 26, 2010,
p. 2; see also Brief for NAACP Legal Defense & Education
Fund, Inc., as Amicus Curiae 5, n. 4 (stating that in
2008, almost three out of every four homicide victims in Chicago
were African Americans); id. , at 5–6 (noting that “each
year [in Chicago], many times more African Americans are murdered
by assailants wielding guns than were killed during the Colfax
massacre” (footnote omitted)). Footnote
33 See Brief for Women
State Legislators et al. as Amici Curiae 9–10, 14–15;
Brief for Jews for the Preservation of Firearms Ownership as Amicus Curiae 3–4; see also Brief for Pink Pistols
et al. as Amici Curiae in District of
Columbia v. Heller , O. T. 2007, No. 07–290, pp.
5–11. OPINION OF THOMAS, J. MCDONALD V. CHICAGO 561 U. S. ____ (2010) SUPREME COURT OF THE UNITED STATES NO. 08-1521 OTIS McDONALD, et al., PETITIONERS v. CITY OF CHICAGO, ILLINOIS, et al.

															on writ of certiorari to the united states court of
appeals for the seventh circuit

															[June 28, 2010]

															   Justice Thomas, concurring in
part and concurring in the judgment. I agree with the
Court that the Fourteenth Amendment makes the right to keep and
bear arms set forth in the Second Amendment “fully applicable to
the States.” Ante , at 1. I write separately because I
believe there is a more straightforward path to this conclusion,
one that is more faithful to the Fourteenth Amendment’s text and
history. Applying what is now a
well-settled test, the plurality opinion concludes that the right
to keep and bear arms applies to the States through the Fourteenth
Amendment’s Due Process Clause because it is “fundamental” to the
American “scheme of ordered liberty,” ante , at 19 (citing Duncan v. Louisiana , 391 U. S. 145 , 149
(1968)), and “ ‘deeply rooted in this Nation’s history and
tradition,’ ” ante , at 19 (quoting Washington v. Glucksberg , 521 U. S. 702 , 721
(1997)). I agree with that description of the right. But I cannot
agree that it is enforceable against the States through a clause
that speaks only to “process.” Instead, the right to keep and bear
arms is a privilege of American citizenship that applies to the
States through the Fourteenth Amendment’s Privileges or Immunities
Clause. I In District of
Columbia v. Heller , 554 U. S. ___ (2008), this Court
held that the Second Amendment protects an individual right to keep
and bear arms for the purpose of self-defense, striking down a
District of Columbia ordinance that banned the possession of
handguns in the home. Id. , at __ (slip op., at 64). The
question in this case is whether the Constitution protects that
right against abridgment by the States. As the Court
explains, if this case were litigated before the Fourteenth
Amendment’s adoption in 1868, the answer to that question would be
simple. In Barron ex rel. Tiernan v. Mayor of
Baltimore , 7 Pet. 243 (1833), this Court held that the Bill of
Rights applied only to the Federal Government. Writing for the
Court, Chief Justice Marshall recalled that the founding generation
added the first eight Amendments to the Constitution in response to
Antifederalist concerns regarding the extent of federal—not
state—power, and held that if “the framers of these amendments
[had] intended them to be limitations on the powers of the state
governments,” “they would have declared this purpose in plain and
intelligible language.” Id. , at 250. Finding no such
language in the Bill, Chief Justice Marshall held that it did not
in any way restrict state authority. Id. , at 248–250; see Lessee of Livingston v. Moore , 7 Pet. 469,
551–552 (1833) (reaffirming Barron ’s holding); Permoli v. Municipality No. 1 of New Orleans , 3
How. 589, 609–610 (1845) (same). Nearly three decades after Barron , the Nation was splintered by a civil war fought
principally over the question of slavery. As was evident to many
throughout our Nation’s early history, slavery, and the measures
designed to protect it, were irreconcilable with the principles of
equality, government by consent, and inalienable rights proclaimed
by the Declaration of Independence and embedded in our
constitutional structure. See, e.g. , 3 Records of the
Federal Convention of 1787, p. 212 (M. Farrand ed. 1911) (remarks
of Luther Martin) (“[S]lavery is inconsistent with the genius of
republicanism, and has a tendency to destroy those principles on
which it is supported, as it lessens the sense of the equal rights
of mankind” (emphasis deleted)); A. Lincoln, Speech at Peoria, Ill.
(Oct. 16, 1854), reprinted in 2 The Collected Works of Abraham
Lincoln 266 (R. Basler ed. 1953) (“[N]o man is good enough to
govern another man, without that other’s consent . I say
this is the leading principle—the sheet anchor of American
republicanism. . . . Now the relation of masters and slaves is, pro tanto , a total violation of this
principle”). After the war, a series of
constitutional amendments were adopted to repair the Nation from
the damage slavery had caused. The provision at issue here, §1 of
the Fourteenth Amendment, significantly altered our system of
government. The first sentence of that section provides that “[a]ll
persons born or naturalized in the United States and subject to the
jurisdiction thereof, are citizens of the United States and of the
State wherein they reside.” This unambiguously overruled this
Court’s contrary holding in Dred Scott v. Sandford , 19 How. 393 (1857), that the Constitution did
not recognize black Americans as citizens of the United States or
their own State. Id. , at 405–406. The meaning of §1’s next
sentence has divided this Court for many years. That sentence
begins with the command that “[n]o State shall make or enforce any
law which shall abridge the privileges or immunities of citizens of
the United States.” On its face, this appears to grant the persons
just made United States citizens a certain collection of
rights— i.e. , privileges or immunities—attributable to that
status. This Court’s precedents accept
that point, but define the relevant collection of rights quite
narrowly. In the Slaughter-House Cases , 16 Wall. 36
(1873), decided just five years after the Fourteenth Amendment’s
adoption, the Court interpreted this text, now known as the
Privileges or Immunities Clause, for the first time. In a closely
divided decision, the Court drew a sharp distinction between the
privileges and immunities of state citizenship and those of federal
citizenship, and held that the Privileges or Immunities Clause
protected only the latter category of rights from state abridgment. Id. , at 78. The Court defined that category to include
only those rights “which owe their existence to the Federal
government, its National character, its Constitution, or its laws.” Id. , at 79. This arguably left open the possibility that
certain individual rights enumerated in the Constitution could be
considered privileges or immunities of federal citizenship. See ibid. (listing “[t]he right to peaceably assemble” and
“the privilege of the writ of habeas corpus ” as rights
potentially protected by the Privileges or Immunities Clause). But
the Court soon rejected that proposition, interpreting the
Privileges or Immunities Clause even more narrowly in its later
cases. Chief among those cases is United States v. Cruikshank , 92 U. S. 542 (1876). There, the Court
held that members of a white militia who had brutally murdered as
many as 165 black Louisianians congregating outside a courthouse
had not deprived the victims of their privileges as American
citizens to peaceably assemble or to keep and bear arms. Ibid.; see L. Keith, The Colfax Massacre 109 (2008).
According to the Court, the right to peaceably assemble codified in
the First Amendment was not a privilege of United States
citizenship because “[t]he right . . . existed long before the adoption of the Constitution.” 92 U. S., at 551 (emphasis
added). Similarly, the Court held that the right to keep and bear
arms was not a privilege of United States citizenship because it
was not “in any manner dependent upon that instrument for its
existence.” Id. , at 553. In other words, the reason the
Framers codified the right to bear arms in the Second Amendment—its
nature as an inalienable right that pre-existed the Constitution’s
adoption—was the very reason citizens could not enforce it against
States through the Fourteenth. That circular reasoning
effectively has been the Court’s last word on the Privileges or
Immunities Clause.[ Footnote 1 ]
In the intervening years, the Court has held that the Clause
prevents state abridgment of only a handful of rights, such as the
right to travel, see Saenz v. Roe , 526 U. S. 489 , 503
(1999), that are not readily described as essential to
liberty. As a consequence of this
Court’s marginalization of the Clause, litigants seeking federal
protection of fundamental rights turned to the remainder of §1 in
search of an alternative fount of such rights. They found one in a
most curious place—that section’s command that every State
guarantee “due process” to any person before depriving him of
“life, liberty, or property.” At first, litigants argued that this
Due Process Clause “incorporated” certain procedural rights
codified in the Bill of Rights against the States. The Court
generally rejected those claims, however, on the theory that the
rights in question were not sufficiently “fundamental” to warrant
such treatment. See, e.g. , Hurtado v. California , 110 U. S. 516 (1884)
(grand jury indictment requirement); Maxwell v. Dow , 176 U.
S. 581 (1900) (12-person jury requirement); Twining v. New Jersey , 211 U. S. 78 (1908)
(privilege against self-incrimination). That changed with
time. The Court came to conclude that certain Bill of Rights
guarantees were sufficiently fundamental to fall within
§1’s guarantee of “due process.” These included not only procedural
protections listed in the first eight Amendments, see, e.g. , Benton v. Maryland , 395 U. S. 784 (1969)
(protection against double jeopardy), but substantive rights as
well, see, e.g. , Gitlow v. New York , 268 U. S. 652 ,
666 (1925) (right to free speech); Near v. Minnesota
ex rel. Olson , 283 U. S. 697 , 707
(1931) (same). In the process of incorporating these rights against
the States, the Court often applied them differently against the
States than against the Federal Government on the theory that only
those “fundamental” aspects of the right required Due Process
Clause protection. See, e.g. , Betts v. Brady , 316
U. S. 455 , 473 (1942) (holding that the Sixth Amendment
required the appointment of counsel in all federal criminal cases
in which the defendant was unable to retain an attorney, but that
the Due Process Clause required appointment of counsel in state
criminal cases only where “want of counsel . . . result[ed] in a
conviction lacking in . . . fundamental fairness”). In more recent
years, this Court has “abandoned the notion” that the guarantees in
the Bill of Rights apply differently when incorporated against the
States than they do when applied to the Federal Government. Ante , at 17–18 (opinion of the Court) (internal quotation
marks omitted). But our cases continue to adhere to the view that a
right is incorporated through the Due Process Clause only if it is
sufficiently “fundamental,” ante , at 37, 42–44 (plurality
opinion)—a term the Court has long struggled to define. While this Court has at times
concluded that a right gains “fundamental” status only if it is
essential to the American “scheme of ordered liberty” or
“ ‘deeply rooted in this Nation’s history and
tradition,’ ” ante , at 19 (plurality opinion)
(quoting Glucksberg , 521 U. S., at 721), the Court has
just as often held that a right warrants Due Process Clause
protection if it satisfies a far less measurable range of criteria,
see Lawrence v. Texas , 539 U. S. 558 , 562
(2003) (concluding that the Due Process Clause protects “liberty of
the person both in its spatial and in its more transcendent
dimensions”). Using the latter approach, the Court has determined
that the Due Process Clause applies rights against the States that
are not mentioned in the Constitution at all, even without
seriously arguing that the Clause was originally understood to
protect such rights. See, e.g. , Lochner v. New York , 198 U. S. 45 (1905); Roe v. Wade , 410 U. S. 113 (1973); Lawrence , supra . All of this is a legal fiction.
The notion that a constitutional provision that guarantees only
“process” before a person is deprived of life, liberty, or property
could define the substance of those rights strains credulity for
even the most casual user of words. Moreover, this fiction is a
particularly dangerous one. The one theme that links the Court’s
substantive due process precedents together is their lack of a
guiding principle to distinguish “fundamental” rights that warrant
protection from nonfundamental rights that do not. Today’s decision
illustrates the point. Replaying a debate that has endured from the
inception of the Court’s substantive due process jurisprudence, the
dissents laud the “flexibility” in this Court’s substantive due
process doctrine, post , at 14 (Stevens, J., dissenting);
see post , at 6–8 (Breyer, J., dissenting), while the
plurality makes yet another effort to impose principled restraints
on its exercise, see ante , at 33–41. But neither side
argues that the meaning they attribute to the Due Process Clause
was consistent with public understanding at the time of its
ratification. To be sure, the plurality’s
effort to cabin the exercise of judicial discretion under the Due
Process Clause by focusing its inquiry on those rights deeply
rooted in American history and tradition invites less opportunity
for abuse than the alternatives. See post , at 7 (Breyer,
J., dissenting) (arguing that rights should be incorporated against
the States through the Due Process Clause if they are “well-suited
to the carrying out of . . . constitutional promises”); post , at 22 (Stevens, J., dissenting) (warning that there
is no “all-purpose, top-down, totalizing theory of ‘liberty’ ”
protected by the Due Process Clause). But any serious argument over
the scope of the Due Process Clause must acknowledge that neither
its text nor its history suggests that it protects the many
substantive rights this Court’s cases now claim it does. I cannot accept a theory of
constitutional interpretation that rests on such tenuous footing.
This Court’s substantive due process framework fails to account for
both the text of the Fourteenth Amendment and the history that led
to its adoption, filling that gap with a jurisprudence devoid of a
guiding principle. I believe the original meaning of the Fourteenth
Amendment offers a superior alternative, and that a return to that
meaning would allow this Court to enforce the rights the Fourteenth
Amendment is designed to protect with greater clarity and
predictability than the substantive due process framework has so
far managed. I acknowledge the volume of
precedents that have been built upon the substantive due process
framework, and I further acknowledge the importance of stare
decisis to the stability of our Nation’s legal system. But stare decisis is only an “adjunct” of our duty as judges
to decide by our best lights what the Constitution means. Planned Parenthood of Southeastern Pa. v. Casey , 505 U. S. 833 ,
963 (1992) (Rehnquist, C. J., concurring in judgment in part
and dissenting in part). It is not “an inexorable command.” Lawrence , supra , at 577. Moreover, as judges, we
interpret the Constitution one case or controversy at a time. The
question presented in this case is not whether our entire
Fourteenth Amendment jurisprudence must be preserved or revised,
but only whether, and to what extent, a particular clause in the
Constitution protects the particular right at issue here. With the
inquiry appropriately narrowed, I believe this case presents an
opportunity to reexamine, and begin the process of restoring, the
meaning of the Fourteenth Amendment agreed upon by those who
ratified it. II “It cannot be
presumed that any clause in the constitution is intended to be
without effect.” Marbury v. Madison , 1 Cranch
137, 174 (1803) (Marshall, C. J.). Because the Court’s Privileges
or Immunities Clause precedents have presumed just that, I set them
aside for the moment and begin with the text. The Privileges or
Immunities Clause of the Fourteenth Amendment declares that “[n]o
State . . . shall abridge the privileges or immunities of citizens
of the United States.” In interpreting this language, it is
important to recall that constitutional provisions are
“ ‘written to be understood by the voters.’ ” Heller , 554 U. S., at ___ (slip op., at 3) (quoting United States v. Sprague , 282 U. S. 716 , 731
(1931)). Thus, the objective of this inquiry is to discern what
“ordinary citizens” at the time of ratification would have
understood the Privileges or Immunities Clause to mean. 554 U. S.,
at ___ (slip op., at 3). A 1 At the time of
Reconstruction, the terms “privileges” and “immunities” had an
established meaning as synonyms for “rights.” The two words,
standing alone or paired together, were used interchangeably with
the words “rights,” “liberties,” and “freedoms,” and had been since
the time of Blackstone. See 1 W. Blackstone, Commentaries *129
(describing the “rights and liberties” of Englishmen as “private
immunities” and “civil privileges”). A number of antebellum
judicial decisions used the terms in this manner. See, e.g. , Magill v. Brown , 16 F. Cas. 408,
428 (No. 8,952) (CC ED Pa. 1833) (Baldwin, J.) (“The words
‘privileges and immunities’ relate to the rights of persons, place
or property; a privilege is a peculiar right, a private law,
conceded to particular persons or places”). In addition, dictionary
definitions confirm that the public shared this understanding. See, e.g. , N. Webster, An American Dictionary of the English
Language 1039 (C. Goodrich & N. Porter rev. 1865) (defining
“privilege” as “a right or immunity not enjoyed by others or by
all” and listing among its synonyms the words “immunity,”
“franchise,” “right,” and “liberty”); id. , at 661
(defining “immunity” as “[f]reedom from an obligation” or
“particular privilege”); id. , at 1140 (defining “right” as
“[p]rivilege or immunity granted by authority”).[ Footnote 2 ] The fact that a
particular interest was designated as a “privilege” or “immunity,”
rather than a “right,” “liberty,” or “freedom,” revealed little
about its substance. Blackstone, for example, used the terms
“privileges” and “immunities” to describe both the inalienable
rights of individuals and the positive-law rights of corporations.
See 1 Commentaries, at *129 (describing “private immunities” as a
“ residuum of natural liberty,” and “civil privileges” as
those “which society has engaged to provide, in lieu of the natural
liberties so given up by individuals” (footnote omitted)); id. , at *468 (stating that a corporate charter enables a
corporation to “establish rules and orders” that serve as “the
privileges and immunities . . . of the corporation”). Writers in
this country at the time of Reconstruction followed a similar
practice. See, e.g. , Racine & Mississippi R.
Co. v. Farmers’ Loan & Trust Co. , 49 Ill. 331,
334 (1868) (describing agreement between two railroad companies in
which they agreed “ ‘to fully merge and consolidate the[ir]
capital stock, powers, privileges, immunities and
franchises’ ”); Hathorn v. Calef , 53 Me.
471, 483–484 (1866) (concluding that a statute did not “modify any
power, privileges, or immunity, pertaining to the franchise of any
corporation”). The nature of a privilege or immunity thus varied
depending on the person, group, or entity to whom those rights were
assigned. See Lash, The Origins of the Privileges or Immunities
Clause, Part I: “Privileges and Immunities” as an Antebellum Term
of Art, 98 Geo. L. J. 1241, 1256–1257 (2010) (surveying
antebellum usages of these terms). 2 The group of
rights-bearers to whom the Privileges or Immunities Clause applies
is, of course, “citizens.” By the time of Reconstruction, it had
long been established that both the States and the Federal
Government existed to preserve their citizens’ inalienable rights,
and that these rights were considered “privileges” or “immunities”
of citizenship. This tradition
begins with our country’s English roots. Parliament declared the
basic liberties of English citizens in a series of documents
ranging from the Magna Carta to the Petition of Right and the
English Bill of Rights. See 1 B. Schwartz, The Bill of Rights: A
Documentary History 8–16, 19–21, 41–46 (1971) (hereinafter
Schwartz). These fundamental rights, according to the English
tradition, belonged to all people but became legally enforceable
only when recognized in legal texts, including acts of Parliament
and the decisions of common-law judges. See B. Bailyn, The
Ideological Origins of the American Revolution 77–79 (1967). These
rights included many that later would be set forth in our Federal
Bill of Rights, such as the right to petition for redress of
grievances, the right to a jury trial, and the right of
“Protestants” to “have arms for their defence.” English Bill of
Rights (1689), reprinted in 1 Schwartz 41, 43. As English subjects, the
colonists considered themselves to be vested with the same
fundamental rights as other Englishmen. They consistently claimed
the rights of English citizenship in their founding documents,
repeatedly referring to these rights as “privileges” and
“immunities.” For example, a Maryland law provided that “[A]ll the Inhabitants of this
Province being Christians (Slaves excepted) Shall have and enjoy
all such rights liberties immunities priviledges and free
customs within this Province as any naturall born subject of
England hath or ought to have or enjoy in the Realm of England . .
. .” Md. Act for the Liberties of the People (1639), in id., at 68 (emphasis added).[ Footnote 3 ] As tensions
between England and the Colonies increased, the colonists adopted
protest resolutions reasserting their claim to the inalienable
rights of Englishmen. Again, they used the terms “privileges” and
“immunities” to describe these rights. As the Massachusetts
Resolves declared: “ Resolved , That there are certain
essential Rights of the British Constitution of
Government, which are founded in the Law of God and Nature, and are
the common Rights of Mankind—Therefore… . . “Resolved, That no Man
can justly take the Property of another without his Consent: And
that upon this original Principle the Right of
Representation . . . is evidently founded… . Resolved , That this inherent Right, together with
all other, essential Rights, Liberties, Privileges and
Immunities of the People of Great Britain, have been fully confirmed to them by Magna Charta .” The
Massachusetts Resolves (Oct. 29, 1765), reprinted in Prologue to
Revolution: Sources and Documents on the Stamp Act Crisis,
1764–1766, p. 56 (E. Morgan ed. 1959) (some emphasis
added).[ Footnote 4 ] In keeping with
this practice, the First Continental Congress declared in 1774 that
the King had wrongfully denied the colonists “the rights,
liberties, and immunities of free and natural-born subjects …
within the realm of England.” 1 Journals of the Continental
Congress 1774–1789, p. 68 (1904). In an address delivered to the
inhabitants of Quebec that same year, the Congress described those
rights as including the “great” “right[s]” of “trial by jury,”
“Habeas Corpus,” and “freedom of the press.” Address of the
Continental Congress to the Inhabitants of Quebec (1774), reprinted
in 1 Schwartz 221–223. After declaring their
independence, the newly formed States replaced their colonial
charters with constitutions and state bills of rights, almost all
of which guaranteed the same fundamental rights that the former
colonists previously had claimed by virtue of their English
heritage. See, e. g. , Pa. Declaration of Rights
(1776), reprinted in 5 Thorpe 3081–3084 (declaring that “all men
are born equally free and independent, and have certain natural,
inherent and inalienable rights,” including the “right to worship
Almighty God according to the dictates of their own consciences”
and the “right to bear arms for the defence of themselves and the
state”).[ Footnote 5 ] Several years later, the
Founders amended the Constitution to expressly protect many of the
same fundamental rights against interference by the Federal
Government. Consistent with their English heritage, the founding
generation generally did not consider many of the rights identified
in these amendments as new entitlements, but as inalienable rights
of all men, given legal effect by their codification in the
Constitution’s text. See, e.g. , 1 Annals of Cong. 431–432,
436–437, 440–442 (1834) (statement of Rep. Madison) (proposing Bill
of Rights in the first Congress); The Federalist No. 84, pp.
531–533 (B. Wright ed. 1961) (A. Hamilton); see also Heller , 554 U. S., at ___ (slip op., at 19) (“[I]t has
always been widely understood that the Second Amendment, like the
First and Fourth Amendments, codified a pre-existing right”). The Court’s subsequent decision in Barron ,
however, made plain that the codification of these rights in the
Bill made them legally enforceable only against the Federal
Government, not the States. See 7 Pet., at 247. 3 Even though the
Bill of Rights did not apply to the States, other provisions of the
Constitution did limit state interference with individual rights.
Article IV, §2, cl. 1 provides that “[t]he Citizens of each
State shall be entitled to all Privileges and Immunities of
Citizens in the several States.” The text of this provision
resembles the Privileges or Immunities Clause, and it can be
assumed that the public’s understanding of the latter was informed
by its understanding of the former. Article IV, §2 was
derived from a similar clause in the Articles of Confederation, and
reflects the dual citizenship the Constitution provided to all
Americans after replacing that “league” of separate sovereign
States. Gibbons v. Ogden , 9 Wheat. 1, 187 (1824);
see 3 J. Story, Commentaries on the Constitution of the United
States §1800, p. 675 (1833). By virtue of a person’s citizenship in
a particular State, he was guaranteed whatever rights and liberties
that State’s constitution and laws made available. Article IV, §2
vested citizens of each State with an additional right: the
assurance that they would be afforded the “privileges and
immunities” of citizenship in any of the several States in the
Union to which they might travel. What were the “Privileges and
Immunities of Citizens in the several States”? That question was
answered perhaps most famously by Justice Bushrod Washington
sitting as Circuit Justice in Corfield v. Coryell , 6 F. Cas. 546, 551–552 (No. 3,230) (CC ED Pa.
1825). In that case, a Pennsylvania citizen claimed that a New
Jersey law prohibiting nonresidents from harvesting oysters from
the State’s waters violated Article IV, §2 because it deprived him,
as an out-of-state citizen, of a right New Jersey availed to its
own citizens. Id. , at 550. Justice Washington rejected
that argument, refusing to “accede to the proposition” that Article
IV, §2 entitled “citizens of the several states . . . to
participate in all the rights which belong exclusively to
the citizens of any other particular state.” Id. , at 552
(emphasis added). In his view, Article IV, §2 did not guarantee
equal access to all public benefits a State might choose to make
available to its citizens. See id., at 552. Instead, it
applied only to those rights “which are, in their nature, fundamental ; which belong, of right, to the citizens of
all free governments.” Id. , at 551 (emphasis added). Other
courts generally agreed with this principle. See, e.g. , Abbott v. Bayley , 23 Mass. 89, 92–93 (1827)
(noting that the “privileges and immunities” of citizens in the
several States protected by Article IV, §2 are “qualified and not
absolute” because they do not grant a traveling citizen the right
of “suffrage or of eligibility to office” in the State to which he
travels). When describing those
“fundamental” rights, Justice Washington thought it “would perhaps
be more tedious than difficult to enumerate” them all, but
suggested that they could “be all comprehended under” a broad list
of “general heads,” such as “[p]rotection by the government,” “the
enjoyment of life and liberty, with the right to acquire and
possess property of every kind,” “the benefit of the writ of habeas
corpus,” and the right of access to “the courts of the state,”
among others.[ Footnote 6 ] Corfield , supra , at 551–552. Notably, Justice Washington did
not indicate whether Article IV, §2 required States to
recognize these fundamental rights in their own citizens and thus
in sojourning citizens alike, or whether the Clause simply
prohibited the States from discriminating against sojourning
citizens with respect to whatever fundamental rights state law
happened to recognize. On this question, the weight of legal
authorities at the time of Reconstruction indicated that Article
IV, §2 prohibited States from discriminating against sojourning
citizens when recognizing fundamental rights, but did not require
States to recognize those rights and did not prescribe their
content. The highest courts of several States adopted this view,
see, e.g. , Livingston v. Van Ingen , 9
Johns. 507, 561 (N. Y. Sup. Ct. 1812) (Yates, J.); id. , at 577 (Kent, J.); Campbell v. Morris , 3 H. & McH. 535, 553–554 (Md. Gen. Ct. 1797)
(Chase, J.), as did several influential treatise-writers, see T.
Cooley, A Treatise on the Constitutional Limitations Which Rest
Upon the Legislative Power of the State of the American Union
15–16, and n. 3 (1868) (reprint 1972) (describing Article IV, §2 as
designed “to prevent discrimination by the several States against
the citizens and public proceedings of other States”); 2 J. Kent,
Commentaries on American Law 35 (11th ed. 1867) (stating that
Article IV, §2 entitles sojourning citizens “to the privileges that
persons of the same description are entitled to in the state to
which the removal is made, and to none other”). This Court adopted
the same conclusion in a unanimous opinion just one year after the
Fourteenth Amendment was ratified. See Paul v. Virginia , 8 Wall. 168, 180 (1869). *  *  * The text examined
so far demonstrates three points about the meaning of the
Privileges or Immunities Clause in §1. First, “privileges” and
“immunities” were synonyms for “rights.” Second, both the States
and the Federal Government had long recognized the inalienable
rights of their citizens. Third, Article IV, §2 of the Constitution
protected traveling citizens against state discrimination with
respect to the fundamental rights of state citizenship. Two questions
still remain, both provoked by the textual similarity between §1’s
Privileges or Immunities Clause and Article IV, §2. The first
involves the nature of the rights at stake: Are the privileges or
immunities of “citizens of the United States” recognized by §1 the
same as the privileges and immunities of “citizens in the several
States” to which Article IV, §2 refers? The second involves the
restriction imposed on the States: Does §1, like Article IV, §2,
prohibit only discrimination with respect to certain rights if the State chooses to recognize them, or does it require
States to recognize those rights? I address each question in
turn. B I start with the
nature of the rights that §1’s Privileges or Immunities Clause
protects. Section 1 overruled Dred Scott ’s holding that
blacks were not citizens of either the United States or their own
State and, thus, did not enjoy “the privileges and immunities of
citizens” embodied in the Constitution. 19 How., at 417. The Court
in Dred Scott did not distinguish between privileges and
immunities of citizens of the United States and citizens in the
several States, instead referring to the rights of citizens
generally. It did, however, give examples of what the rights of
citizens were—the constitutionally enumerated rights of “the full
liberty of speech” and the right “to keep and carry arms.” Ibid. Section 1
protects the rights of citizens “of the United States”
specifically. The evidence overwhelmingly demonstrates that the
privileges and immunities of such citizens included individual
rights enumerated in the Constitution, including the right to keep
and bear arms. 1 Nineteenth-century treaties through which
the United States acquired territory from other sovereigns
routinely promised inhabitants of the newly acquired territories
that they would enjoy all of the “rights,” “privileges,” and
“immunities” of United States citizens. See, e.g. , Treaty of
Amity, Settlement, and Limits, Art. 6, Feb. 22, 1819, 8 Stat.
256–258, T. S. No. 327 (entered into force Feb. 19, 1821) (cession
of Florida) (“The inhabitants of the territories which his Catholic
Majesty cedes to the United States, by this Treaty, shall be
incorporated in the Union of the United States, as soon as may be
consistent with the principles of the Federal Constitution, and
admitted to the enjoyment of all the privileges, rights, and
immunities, of the citizens of the United States ” (emphasis
added)).[ Footnote 7 ]
   Commentators of the time explained that the
rights and immunities of “citizens of the United States”
recognized in these treaties “undoubtedly mean[t] those privileges
that are common to all citizens of this republic.” Marcus, An
Examination of the Expediency and Constitutionality of Prohibiting
Slavery in the State of Missouri 17 (1819). It is therefore
altogether unsurprising that several of these treaties identify
liberties enumerated in the Constitution as privileges and
immunities common to all United States citizens. For example, the
Louisiana Cession Act of 1803, which codified a treaty between the
United States and France culminating in the Louisiana Purchase,
provided that “The inhabitants of the ceded
territory shall be incorporated in the Union of the United States,
and admitted as soon as possible, according to the principles of
the Federal constitution, to the enjoyments of all the rights,
advantages and immunities of citizens of the United States; and in the mean time they shall be maintained and protected in the free enjoyment of their liberty, property and the religion
which they profess .” Treaty Between the United States of
America and the French Republic, Art. III, Apr. 30, 1803, 8 Stat.
202, T. S. No. 86 (emphasis added).[ Footnote 8 ] The Louisiana
Cession Act reveals even more about the privileges and immunities
of United States citizenship because it provoked an extensive
public debate on the meaning of that term. In 1820, when the
Missouri Territory (which the United States acquired through the
Cession Act) sought to enter the Union as a new State, a debate
ensued over whether to prohibit slavery within Missouri as a
condition of its admission. Some congressmen argued that
prohibiting slavery in Missouri would deprive its inhabitants of
the “privileges and immunities” they had been promised by the
Cession Act. See, e.g. , 35 Annals of Cong. 1083 (1855)
(remarks of Kentucky Rep. Hardin). But those who opposed slavery in
Missouri argued that the right to hold slaves was merely a matter
of state property law, not one of the privileges and immunities of
United States citizenship guaranteed by the Act.[ Footnote 9 ] Daniel Webster was among the
leading proponents of the antislavery position. In his “Memorial to
Congress,” Webster argued that “[t]he rights, advantages and
immunities here spoken of [in the Cession Act] must . . . be such
as are recognized or communicated by the Constitution of the United
States,” not the “rights, advantages and immunities, derived
exclusively from the State governments . . . .” D.
Webster, A Memorial to the Congress of the United States on the
Subject of Restraining the Increase of Slavery in New States to be
Admitted into the Union 15 (Dec. 15, 1819) (emphasis added). “The
obvious meaning” of the Act, in Webster’s view, was that “ the
rights derived under the federal Constitution shall be enjoyed
by the inhabitants of [the territory].” Id. , at 15–16
(emphasis added). In other words, Webster articulated a distinction
between the rights of United States citizenship and the rights of
state citizenship, and argued that the former included those rights
“recognized or communicated by the Constitution.” Since the right
to hold slaves was not mentioned in the Constitution, it was not a
right of federal citizenship. Webster and his allies
ultimately lost the debate over slavery in Missouri and the
territory was admitted as a slave State as part of the now-famous
Missouri Compromise. Missouri Enabling Act of March 6, 1820, ch.
22, §8, 3 Stat. 548. But their arguments continued to inform public
understanding of the privileges and immunities of United States
citizenship. In 1854, Webster’s Memorial was republished in a
pamphlet discussing the Nation’s next major debate on slavery—the
proposed repeal of the Missouri Compromise through the
Kansas-Nebraska Act, see The Nebraska Question: Comprising Speeches
in the United States Senate: Together with the History of the
Missouri Compromise 9–12 (1854). It was published again in 1857 in
a collection of famous American speeches. See The Political
Text-Book, or Encyclopedia: Containing Everything Necessary for the
Reference of the Politicians and Statesmen of the United States
601–604 (M. Cluskey ed. 1857); see also Lash, 98 Geo. L. J.,
at 1294–1296 (describing Webster’s arguments and their
influence). 2 Evidence from the
political branches in the years leading to the Fourteenth
Amendment’s adoption demonstrates broad public understanding that
the privileges and immunities of United States citizenship included
rights set forth in the Constitution, just as Webster and his
allies had argued. In 1868, President Andrew Johnson issued a
proclamation granting amnesty to former Confederates, guaranteeing
“to all and to every person who directly or indirectly participated
in the late insurrection or rebellion, a full pardon and amnesty
for the offence of treason . . . with restoration of all
rights, privileges, and immunities under the Constitution and
the laws which have been made in pursuance thereof.” 15 Stat.
712. Records from the
39th Congress further support this understanding. a After the Civil
War, Congress established the Joint Committee on Reconstruction to
investigate circumstances in the Southern States and to determine
whether, and on what conditions, those States should be readmitted
to the Union. See Cong. Globe, 39th Cong., 1st Sess., 6, 30 (1865)
(hereinafter 39th Cong. Globe); M. Curtis, No State Shall Abridge:
The Fourteenth Amendment and the Bill of Rights 57 (1986)
(hereinafter Curtis). That Committee would ultimately recommend the
adoption of the Fourteenth Amendment, justifying its recommendation
by submitting a report to Congress that extensively catalogued the
abuses of civil rights in the former slave States and argued that
“adequate security for future peace and safety . . . can only be
found in such changes of the organic law as shall determine the
civil rights and privileges of all citizens in all parts of the
republic.” See Report of the Joint Committee on Reconstruction, S.
Rep. No. 112, 39th Cong., 1st Sess., p. 15 (1866); H. R. Rep. No.
30, 39th Cong., 1st Sess., p. XXI (1866). As the Court
notes, the Committee’s Report “was widely reprinted in the press
and distributed by members of the 39th Congress to their
constituents.” Ante , at 24; B. Kendrick, Journal of the
Joint Committee of Fifteen on Reconstruction 264–265 (1914) (noting
that 150,000 copies of the Report were printed and that it was
widely distributed as a campaign document in the election of 1866).
In addition, newspaper coverage suggests that the wider public was
aware of the Committee’s work even before the Report was issued.
For example, the Fort Wayne Daily Democrat (which appears to have
been unsupportive of the Committee’s work) paraphrased a motion
instructing the Committee to “enquire into [the] expediency of
amending the Constitution of the United States so as to declare
with greater certainty the power of Congress to enforce and
determine by appropriate legislation all the guarantees contained
in that instrument .” The Nigger Congress!, Fort Wayne
Daily Democrat, Feb. 1, 1866, p. 4 (emphasis added). b Statements made by
Members of Congress leading up to, and during, the debates on the
Fourteenth Amendment point in the same direction. The record of
these debates has been combed before. See Adamson v. California , 332 U. S. 46 , 92–110
(1947) (Appendix to dissenting opinion of Black, J.) (concluding
that the debates support the conclusion that §1 was understood to
incorporate the Bill of Rights against the States); ante ,
at 14, n. 9, 26–27, n. 23, (opinion of the Court)
(counting the debates among other evidence that §1 applies the
Second Amendment against the States). Before considering that
record here, it is important to clarify its relevance. When
interpreting constitutional text, the goal is to discern the most
likely public understanding of a particular provision at the time
it was adopted. Statements by legislators can assist in this
process to the extent they demonstrate the manner in which the
public used or understood a particular word or phrase. They can
further assist to the extent there is evidence that these
statements were disseminated to the public. In other words, this
evidence is useful not because it demonstrates what the draftsmen
of the text may have been thinking, but only insofar as it
illuminates what the public understood the words chosen by the
draftsmen to mean. (1) Three speeches
stand out as particularly significant. Representative John Bingham,
the principal draftsman of §1, delivered a speech on the floor of
the House in February 1866 introducing his first draft of the
provision. Bingham began by discussing Barron and its
holding that the Bill of Rights did not apply to the States. He
then argued that a constitutional amendment was necessary to
provide “an express grant of power in Congress to enforce by penal
enactment these great canons of the supreme law, securing to all
the citizens in every State all the privileges and immunities of
citizens, and to all the people all the sacred rights of person.”
39th Cong. Globe 1089–1090 (1866). Bingham emphasized that §1 was
designed “to arm the Congress of the United States, by the consent
of the people of the United States, with the power to enforce the
bill of rights as it stands in the Constitution today. It ‘hath
that extent—no more.’ ” Id ., at 1088. Bingham’s
speech was printed in pamphlet form and broadly distributed in 1866
under the title, “One Country, One Constitution, and One People,”
and the subtitle, “In Support of the Proposed Amendment to Enforce
the Bill of Rights.”[ Footnote
10 ] Newspapers also reported his proposal, with the New York
Times providing particularly extensive coverage, including a full
reproduction of Bingham’s first draft of §1 and his remarks that a
constitutional amendment to “enforc[e]” the “immortal bill of
rights” was “absolutely essential to American nationality.” N. Y.
Times, Feb. 27, 1866, p. 8. Bingham’s first draft of §1 was
different from the version ultimately adopted. Of particular
importance, the first draft granted Congress the “power to make all
laws … necessary and proper to secure” the “citizens of each State
all privileges and immunities of citizens in the several States,”
rather than restricting state power to “abridge” the privileges or
immunities of citizens of the United States.[ Footnote 11 ] 39th Cong. Globe 1088. That draft was met with
objections, which the Times covered extensively. A front-page
article hailed the “Clear and Forcible Speech” by Representative
Robert Hale against the draft, explaining—and endorsing—Hale’s view
that Bingham’s proposal would “confer upon Congress all the rights
and power of legislation now reserved to the States” and would “in
effect utterly obliterate State rights and State authority over
their own internal affairs.”[ Footnote 12 ] N. Y. Times, Feb. 28, 1866,
p. 1. Critically, Hale did not object to the draft insofar as it purported to protect
constitutional liberties against state interference. Indeed, Hale
stated that he believed (incorrectly in light of Barron )
that individual rights enumerated in the Constitution were already
enforceable against the States. See 39th Cong. Globe 1064 (“I have,
somehow or other, gone along with the impression that there is that
sort of protection thrown over us in some way, whether with or
without the sanction of a judicial decision that we are so
protected”); see N. Y. Times, Feb. 28, 1866, at 1. Hale’s
misperception was not uncommon among members of the Reconstruction
generation. See infra , at 38–40. But that is secondary to
the point that the Times’ coverage of this debate over §1’s meaning
suggests public awareness of its main contours— i.e. , that
§1 would, at a minimum, enforce constitutionally enumerated rights
of United States citizens against the States. Bingham’s draft was tabled for
several months. In the interim, he delivered a second
well-publicized speech, again arguing that a constitutional
amendment was required to give Congress the power to enforce the
Bill of Rights against the States. That speech was printed in
pamphlet form, see Speech of Hon. John A. Bingham, of Ohio, on the
Civil Rights Bill, Mar. 9, 1866 (Cong. Globe); see 39th Cong. Globe
1837 (remarks of Rep. Lawrence) (noting that the speech was
“extensively published”), and the New York Times covered the speech
on its front page. Thirty-Ninth Congress, N. Y. Times, Mar. 10,
1866, p. 1. By the time the debates on the
Fourteenth Amendment resumed, Bingham had amended his draft of §1
to include the text of the Privileges or Immunities Clause that was
ultimately adopted. Senator Jacob Howard introduced the new draft
on the floor of the Senate in the third speech relevant here.
Howard explained that the Constitution recognized “a mass of
privileges, immunities, and rights, some of them secured by the
second section of the fourth article of the Constitution, . . .
some by the first eight amendments of the Constitution,” and that
“there is no power given in the Constitution to enforce and to
carry out any of these guarantees” against the States. 39th Cong.
Globe 2765. Howard then stated that “the great object” of §1 was to
“restrain the power of the States and compel them at all times to
respect these great fundamental guarantees.” Id. , at 2766.
Section 1, he indicated, imposed “a general prohibition upon all
the States, as such, from abridging the privileges and immunities
of the citizens of the United States.” Id. , at
2765. In describing these rights,
Howard explained that they included “the privileges and immunities
spoken of” in Article IV, §2. Id., at 2765. Although he
did not catalogue the precise “nature” or “extent” of those rights,
he thought “Corfield v. Coryell” provided a useful
description. Howard then submitted that “[t]o these privileges and
immunities, whatever they may be— . . . should be added the
personal rights guarantied and secured by the first eight
amendments of the Constitution ; such as the freedom of speech
and of the press; the right of the people peaceably to assemble and
petition the Government for a redress of grievances, [and] . . . the right to keep and to bear arms .” Ibid. (emphasis added). News of Howard’s
speech was carried in major newspapers across the country,
including the New York Herald, see N. Y. Herald, May 24, 1866, p.
1, which was the best-selling paper in the Nation at that time, see
A. Amar, The Bill of Rights: Creation and Reconstruction 187 (1998)
(hereinafter Amar).[ Footnote
13 ] The New York Times carried the speech as well, reprinting a
lengthy excerpt of Howard’s remarks, including the statements
quoted above. N. Y. Times, May 24, 1866, p. 1. The following
day’s Times editorialized on Howard’s speech, predicting that “[t]o
this, the first section of the amendment, the Union party
throughout the country will yield a ready acquiescence, and the
South could offer no justifiable resistance,” suggesting that
Bingham’s narrower second draft had not been met with the same
objections that Hale had raised against the first. N. Y.
Times, May 25, 1866, p. 4. As a whole, these
well-circulated speeches indicate that §1 was understood to enforce
constitutionally declared rights against the States, and they
provide no suggestion that any language in the section other than
the Privileges or Immunities Clause would accomplish that task. (2) When read
against this backdrop, the civil rights legislation adopted by the
39th Congress in 1866 further supports this view. Between passing
the Thirteenth Amendment—which outlawed slavery alone—and the
Fourteenth Amendment, Congress passed two significant pieces of
legislation. The first was the Civil Rights Act of 1866, which
provided that “all persons born in the United States” were
“citizens of the United States” and that “such citizens, of every
race and color, . . . shall have the same right” to, among other
things, “full and equal benefit of all laws and proceedings for the
security of person and property, as is enjoyed by white citizens.”
Ch. 31, §1, 14 Stat. 27. Both proponents and
opponents of this Act described it as providing the “privileges” of
citizenship to freedmen, and defined those privileges to include
constitutional rights, such as the right to keep and bear arms. See
39th Cong. Globe 474 (remarks of Sen. Trumbull) (stating that the
“the late slaveholding States” had enacted laws “depriving persons
of African descent of privileges which are essential to freemen,”
including “prohibit[ing] any negro or mulatto from having
fire-arms” and stating that “[t]he purpose of the bill under
consideration is to destroy all these discriminations”); id. ,
at 1266–1267 (remarks of Rep. Raymond) (opposing the Act, but
recognizing that to “[m]ake a colored man a citizen of the United
States” would guarantee to him, inter alia , “a defined status . . . a right to defend himself and his wife and
children; a right to bear arms”). Three months later, Congress
passed the Freedmen’s Bureau Act, which also entitled all citizens
to the “full and equal benefit of all laws and proceedings
concerning personal liberty” and “personal security.” Act of July
16, 1866, ch. 200, §14, 14 Stat. 176. The Act stated expressly that
the rights of personal liberty and security protected by the Act
“includ[ed] the constitutional right to bear arms.” Ibid. (3) There is much
else in the legislative record. Many statements by Members of
Congress corroborate the view that the Privileges or Immunities
Clause enforced constitutionally enumerated rights against the
States. See Curtis 112 (collecting examples). I am not aware of any
statement that directly refutes that proposition. That said, the
record of the debates—like most legislative history—is less than
crystal clear. In particular, much ambiguity derives from the fact
that at least several Members described §1 as protecting the
privileges and immunities of citizens “in the several States,”
harkening back to Article IV, §2. See supra , at 28–29
(describing Sen. Howard’s speech). These statements can be read to
support the view that the Privileges or Immunities Clause protects
some or all the fundamental rights of “citizens” described in Corfield . They can also be read to support the view that
the Privileges or Immunities Clause, like Article IV, §2, prohibits
only state discrimination with respect to those rights it covers,
but does not deprive States of the power to deny those rights to
all citizens equally. I examine the rest
of the historical record with this understanding. But for purposes
of discerning what the public most likely thought the Privileges or
Immunities Clause to mean, it is significant that the most widely
publicized statements by the legislators who voted on §1—Bingham,
Howard, and even Hale—point unambiguously toward the conclusion
that the Privileges or Immunities Clause enforces at least those
fundamental rights enumerated in the Constitution against the
States, including the Second Amendment right to keep and bear
arms. 3 Interpretations of
the Fourteenth Amendment in the period immediately following its
ratification help to establish the public understanding of the text
at the time of its adoption. Some of these
interpretations come from Members of Congress. During an 1871
debate on a bill to enforce the Fourteenth Amendment,
Representative Henry Dawes listed the Constitution’s first eight
Amendments, including “the right to keep and bear arms,” before
explaining that after the Civil War, the country “gave the most
grand of all these rights, privileges, and immunities, by one
single amendment to the Constitution, to four millions of American
citizens” who formerly were slaves. Cong. Globe, 42d Cong., 1st
Sess., 475–476 (1871). “It is all these,” Dawes explained, “which
are comprehended in the words ‘American citizen.’ ” Ibid . ; see also id. , at 334 (remarks of
Rep. Hoar) (stating that the Privileges or Immunities Clause
referred to those rights “declared to belong to the citizen by the
Constitution itself”). Even opponents of Fourteenth Amendment
enforcement legislation acknowledged that the Privileges or
Immunities Clause protected constitutionally enumerated individual
rights. See 2 Cong. Rec. 384–385 (1874) (remarks of Rep. Mills)
(opposing enforcement law, but acknowledging, in referring to the
Bill of Rights, that “[t]hese first amendments and some provisions
of the Constitution of like import embrace the ‘privileges and
immunities’ of citizenship as set forth in article 4, section 2 of
the Constitution and in the fourteenth amendment ”
(emphasis added)); see Curtis 166–170 (collecting
examples). Legislation passed in
furtherance of the Fourteenth Amendment demonstrates even more
clearly this understanding. For example, Congress enacted the Civil
Rights Act of 1871, 17 Stat. 13, which was titled in pertinent part
“An Act to enforce the Provisions of the Fourteenth Amendment to
the Constitution of the United States,” and which is codified in
the still-existing 42 U. S. C. §1983. That statute prohibits
state officials from depriving citizens of “any rights, privileges,
or immunities secured by the Constitution .” Rev. Stat.
1979, 42 U. S. C. §1983 (emphasis added). Although the
Judiciary ignored this provision for decades after its enactment,
this Court has come to interpret the statute, unremarkably in light
of its text, as protecting constitutionally enumerated rights. Monroe v. Pape , 365 U. S. 167 , 171
(1961). A Federal Court of Appeals
decision written by a future Justice of this Court adopted the same
understanding of the Privileges or Immunities Clause. See, e.g. , United States v. Hall , 26
F. Cas. 79, 82 (No. 15,282) (CC SD Ala. 1871) (Woods, J.) (“We
think, therefore, that the . . . rights enumerated in the first
eight articles of amendment to the constitution of the United
States, are the privileges and immunities of citizens of the United
States”). In addition, two of the era’s major constitutional
treatises reflected the understanding that §1 would protect
constitutionally enumerated rights from state abridgment.[ Footnote 14 ] A third such treatise
unambiguously indicates that the Privileges or Immunities Clause
accomplished this task. G. Paschal, The Constitution of the United
States 290 (1868) (explaining that the rights listed in §1 had
“already been guarantied” by Article IV and the Bill of Rights, but
that “[t]he new feature declared” by §1 was that these rights,
“which had been construed to apply only to the national government,
are thus imposed upon the States”). Another example of public
understanding comes from United States Attorney Daniel Corbin’s
statement in an 1871 Ku Klux Klan prosecution. Corbin cited Barron and declared: “[T]he fourteenth amendment changes
all that theory, and lays the same restriction upon the States that
before lay upon the Congress of the United States—that, as Congress
heretofore could not interfere with the right of the citizen to
keep and bear arms, now, after the adoption of the fourteenth
amendment, the State cannot interfere with the right of the citizen
to keep and bear arms. The right to keep and bear arms is included
in the fourteenth amendment, under ‘privileges and
immunities.’ ” Proceedings in the Ku Klux Trials at Columbia,
S. C., in the United States Circuit Court, November Term,
1871, p. 147 (1872). *  *  * This evidence
plainly shows that the ratifying public understood the Privileges
or Immunities Clause to protect constitutionally enumerated rights,
including the right to keep and bear arms. As the Court
demonstrates, there can be no doubt that §1 was understood to
enforce the Second Amendment against the States. See ante ,
at 22–33. In my view, this is because the right to keep and bear
arms was understood to be a privilege of American citizenship
guaranteed by the Privileges or Immunities Clause. C The next question
is whether the Privileges or Immunities Clause merely prohibits
States from discriminating among citizens if they recognize the
Second Amendment’s right to keep and bear arms, or whether the
Clause requires States to recognize the right. The municipal
respondents, Chicago and Oak Park, argue for the former
interpretation. They contend that the Second Amendment, as applied
to the States through the Fourteenth, authorizes a State to impose
an outright ban on handgun possession such as the ones at issue
here so long as a State applies it to all citizens
equally.[ Footnote 15 ] The
Court explains why this antidiscrimination-only reading of §1 as a
whole is “implausible.” Ante , at 31 (citing Brief for
Municipal Respondents 64). I agree, but because I think it is the
Privileges or Immunities Clause that applies this right to the
States, I must explain why this Clause in particular protects
against more than just state discrimination, and in fact
establishes a minimum baseline of rights for all American
citizens. 1 I begin, again,
with the text. The Privileges or Immunities Clause opens with the
command that “ No State shall ” abridge the privileges or
immunities of citizens of the United States. Amdt. 14, §1 (emphasis
added). The very same phrase opens Article I, §10 of the
Constitution, which prohibits the States from “pass[ing] any Bill
of Attainder” or “ex post facto Law,” among other things. Article
I, §10 is one of the few constitutional provisions that limits
state authority. In Barron , when Chief Justice Marshall
interpreted the Bill of Rights as lacking “plain and intelligible
language” restricting state power to infringe upon individual
liberties, he pointed to Article I, §10 as an example of text that
would have accomplished that task. 7 Pet., at 250. Indeed, Chief
Justice Marshall would later describe Article I, §10 as “a bill of
rights for the people of each state.” Fletcher v. Peck , 6 Cranch 87, 138 (1810). Thus, the fact that the
Privileges or Immunities Clause uses the command “[n]o State
shall”—which Article IV, §2 does not—strongly suggests that the
former imposes a greater restriction on state power than the
latter. This interpretation is
strengthened when one considers that the Privileges or Immunities
Clause uses the verb “abridge,” rather than “discriminate,” to
describe the limit it imposes on state authority. The Webster’s
dictionary in use at the time of Reconstruction defines the word
“abridge” to mean “[t]o deprive; to cut off; . . . as, to abridge one of his rights.” Webster, An American
Dictionary of the English Language, at 6. The Clause is thus best
understood to impose a limitation on state power to infringe upon
pre-existing substantive rights. It raises no indication that the
Framers of the Clause used the word “abridge” to prohibit only
discrimination. This most natural
textual reading is underscored by a well-publicized revision to the
Fourteenth Amendment that the Reconstruction Congress rejected.
After several Southern States refused to ratify the Amendment,
President Johnson met with their Governors to draft a compromise.
N. Y. Times, Feb. 5, 1867, p. 5. Their proposal
eliminated Congress’ power to enforce the Amendment (granted in
§5), and replaced the Privileges or Immunities Clause in §1 with
the following: “All persons born or naturalized in
the United States, and subject to the jurisdiction thereof, are
citizens of the United States, and of the States in which they
reside, and the Citizens of each State shall be entitled to all the privileges and immunities of citizens in the several
States .” Draft reprinted in 1 Documentary History of
Reconstruction 240 (W. Fleming ed. 1950) (hereinafter
Fleming). Significantly,
this proposal removed the “[n]o State shall” directive and the verb
“abridge” from §1, and also changed the class of rights to be
protected from those belonging to “citizens of the United States”
to those of the “citizens in the several States.” This phrasing is
materially indistinguishable from Article IV, §2, which generally
was understood as an antidiscrimination provision alone. See supra , at 15–18. The proposal thus strongly indicates that
at least the President of the United States and several southern
Governors thought that the Privileges or Immunities Clause, which
they unsuccessfully tried to revise, prohibited more than just
state-sponsored discrimination. 2 The argument that
the Privileges or Immunities Clause prohibits no more than
discrimination often is followed by a claim that public discussion
of the Clause, and of §1 generally, was not extensive. Because of
this, the argument goes, §1 must not have been understood to
accomplish such a significant task as subjecting States to federal
enforcement of a minimum baseline of rights. That argument
overlooks critical aspects of the Nation’s history that underscored
the need for, and wide agreement upon, federal enforcement of
constitutionally enumerated rights against the States, including
the right to keep and bear arms. a I turn first to
public debate at the time of ratification. It is true that the
congressional debates over §1 were relatively brief. It is also
true that there is little evidence of extensive debate in the
States. Many state legislatures did not keep records of their
debates, and the few records that do exist reveal only modest
discussion. See Curtis 145. These facts are not
surprising. First, however
consequential we consider the question today, the nationalization
of constitutional rights was not the most controversial aspect of
the Fourteenth Amendment at the time of its ratification. The
Nation had just endured a tumultuous civil war, and §§2, 3, and
4—which reduced the representation of States that denied voting
rights to blacks, deprived most former Confederate officers of the
power to hold elective office, and required States to disavow
Confederate war debts—were far more polarizing and consumed far
more political attention. See Wildenthal 1600; Hardy, Original
Popular Understanding of the Fourteenth Amendment as Reflected in
the Print Media of 1866–1868, 30 Whittier L. Rev. 695, 699
(2009). Second, the
congressional debates on the Fourteenth Amendment reveal that many
representatives, and probably many citizens, believed that the
Thirteenth Amendment, the 1866 Civil Rights legislation, or some
combination of the two, had already enforced constitutional rights
against the States. Justice Black’s dissent in Adamson chronicles this point in detail. 332 U. S., at 107–108 (Appendix to
dissenting opinion). Regardless of whether that understanding was
accurate as a matter of constitutional law, it helps to explain why
Congressmen had little to say during the debates about §1. See ibid. Third, while Barron made plain that the Bill of Rights was not legally
enforceable against the States, see supra , at 2, the
significance of that holding should not be overstated. Like the
Framers, see supra , at 14–15, many 19th-century Americans
understood the Bill of Rights to declare inalienable rights that
pre-existed all government. Thus, even though the Bill of Rights
technically applied only to the Federal Government, many believed
that it declared rights that no legitimate government could
abridge. Chief Justice Henry
Lumpkin’s decision for the Georgia Supreme Court in Nunn v. State , 1 Ga. 243 (1846), illustrates this view. In
assessing state power to regulate firearm possession, Lumpkin wrote
that he was “aware that it has been decided, that [the Second
Amendment], like other amendments adopted at the same time, is a
restriction upon the government of the United States, and does not
extend to the individual States.” Id. , at 250. But he
still considered the right to keep and bear arms as “an unalienable
right, which lies at the bottom of every free government, ” and thus found the States bound to honor it. Ibid . Other
state courts adopted similar positions with respect to the right to
keep and bear arms and other enumerated rights.[ Footnote 16 ] Some courts even suggested that
the protections in the Bill of Rights were legally enforceable
against the States, Barron notwithstanding.[ Footnote 17 ] A prominent treatise of the
era took the same position. W. Rawle, A View of the Constitution of
the United States of America 124–125 (2d ed. 1829) (reprint 2009)
(arguing that certain of the first eight Amendments “appl[y] to the
state legislatures” because those Amendments “form parts of the
declared rights of the people, of which neither the state powers
nor those of the Union can ever deprive them”); id. , at
125–126 (describing the Second Amendment “right of the people to
keep and bear arms” as “a restraint on both” Congress and the
States); see also Heller , 554 U. S., at __ (slip op., at
34) (describing Rawle’s treatise as “influential”). Certain
abolitionist leaders adhered to this view as well. Lysander Spooner
championed the popular abolitionist argument that slavery was
inconsistent with constitutional principles, citing as evidence the
fact that it deprived black Americans of the “natural right of all
men ‘to keep and bear arms’ for their personal defence,” which he
believed the Constitution “prohibit[ed] both Congress and the State
governments from infringing.” L. Spooner, The Unconstitutionality
of Slavery 98 (1860). In sum, some appear
to have believed that the Bill of Rights did apply to the
States, even though this Court had squarely rejected that theory.
See, e.g. , supra , at 27–28 (recounting Rep.
Hale’s argument to this effect). Many others believed that the
liberties codified in the Bill of Rights were ones that no State should abridge, even though they understood that the Bill
technically did not apply to States. These beliefs, combined with
the fact that most state constitutions recognized many, if not all,
of the individual rights enumerated in the Bill of Rights, made the
need for federal enforcement of constitutional liberties against
the States an afterthought. See ante , at 29 (opinion of
the Court) (noting that, “[i]n 1868, 22 of the 37 States in the
Union had state constitutional provisions explicitly protecting the
right to keep and bear arms”). That changed with the national
conflict over slavery. b In the
contentious years leading up to the Civil War, those who sought to
retain the institution of slavery found that to do so, it was
necessary to eliminate more and more of the basic liberties of
slaves, free blacks, and white abolitionists. Congressman Tobias
Plants explained that slaveholders “could not hold [slaves] safely
where dissent was permitted,” so they decided that “all dissent
must be suppressed by the strong hand of power.” 39th Cong. Globe
1013. The measures they used were ruthless, repressed virtually
every right recognized in the Constitution, and demonstrated that
preventing only discriminatory state firearms restrictions would
have been a hollow assurance for liberty. Public reaction indicates
that the American people understood this point. The
overarching goal of pro-slavery forces was to repress the spread of
abolitionist thought and the concomitant risk of a slave rebellion.
Indeed, it is difficult to overstate the extent to which fear of a
slave uprising gripped slaveholders and dictated the acts of
Southern legislatures. Slaves and free blacks represented a
substantial percentage of the population and posed a severe threat
to Southern order if they were not kept in their place. According
to the 1860 Census, slaves represented one quarter or more of the
population in 11 of the 15 slave States, nearly half the population
in Alabama, Florida, Georgia, and Louisiana, and more than
50% of the population in Mississippi and South Carolina. Statistics
of the United States (Including Mortality, Property, &c.,) in
1860, The Eighth Census 336–350 (1866). The Southern fear
of slave rebellion was not unfounded. Although there were others,
two particularly notable slave uprisings heavily influenced
slaveholders in the South. In 1822, a group of free blacks and
slaves led by Denmark Vesey planned a rebellion in which they would
slay their masters and flee to Haiti. H. Aptheker, American Negro
Slave Revolts 268–270 (1983). The plan was foiled, leading to the
swift arrest of 130 blacks, and the execution of 37, including
Vesey. Id. , at 271. Still, slaveowners took notice—it was
reportedly feared that as many as 6,600 to 9,000 slaves and free
blacks were involved in the plot. Id. , at 272. A few years
later, the fear of rebellion was realized. An uprising led by Nat
Turner took the lives of at least 57 whites before it was
suppressed. Id. , at 300–302. The fear generated
by these and other rebellions led Southern legislatures to take
particularly vicious aim at the rights of free blacks and slaves to
speak or to keep and bear arms for their defense. Teaching slaves
to read (even the Bible) was a criminal offense punished severely
in some States. See K. Stampp, The Peculiar Institution: Slavery in
the Ante-bellum South 208, 211 (1956). Virginia made it a crime for
a member of an “abolition” society to enter the State and argue
“that the owners of slaves have no property in the same, or
advocate or advise the abolition of slavery.” 1835–1836 Va. Acts
ch. 66, p. 44. Other States prohibited the circulation of
literature denying a master’s right to property in his slaves and
passed laws requiring postmasters to inspect the mails in search of
such material. C. Eaton, The Freedom-of-Thought Struggle in the Old
South 118–143, 199–200 (1964). Many legislatures
amended their laws prohibiting slaves from carrying
firearms[ Footnote 18 ] to
apply the prohibition to free blacks as well. See, e.g. ,
Act of Dec. 23, 1833, §7, 1833 Ga. Acts pp. 226, 228
(declaring that “it shall not be lawful for any free person of
colour in this state, to own, use, or carry fire arms of any
description whatever”); H. Aptheker, Nat Turner’s Slave Rebellion
74–76, 83–94 (1966) (discussing similar Maryland and Virginia
statutes); see also Act of Mar. 15, 1852, ch. 206, 1852 Miss. Laws
p. 328 (repealing laws allowing free blacks to obtain firearms
licenses); Act of Jan. 31, 1831, 1831 Fla. Acts p. 30 (same).
Florida made it the “duty” of white citizen “patrol[s] to search
negro houses or other suspected places, for fire arms.” Act of Feb.
17, 1833, ch. 671, 1833 Fla. Acts pp. 26, 30. If they found
any firearms, the patrols were to take the offending slave or free
black “to the nearest justice of the peace,” whereupon he would be
“severely punished” by “whipping on the bare back, not exceeding
thirty-nine lashes,” unless he could give a “plain and
satisfactory” explanation of how he came to possess the gun. Ibid. Southern
blacks were not alone in facing threats to their personal liberty
and security during the antebellum era. Mob violence in many
Northern cities presented dangers as well. Cottrol & Diamond,
The Second Amendment: Toward an Afro-Americanist Reconsideration,
80 Geo. L. J. 309, 340 (1991) (hereinafter Cottrol) (recounting a
July 1834 mob attack against “churches, homes, and businesses of
white abolitionists and blacks” in New York that involved “upwards
of twenty thousand people and required the intervention of the
militia to suppress”); ibid. (noting an uprising in Boston
nine years later in which a confrontation between a group of white
sailors and four blacks led “a mob of several hundred
whites ” to “attac[k] and severely beat every black they
could find”). c After
the Civil War, Southern anxiety about an uprising among the newly
freed slaves peaked. As Representative Thaddeus Stevens is reported
to have said, “[w]hen 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.” K. Stampp, The Era of Reconstruction,
1865–1877, p. 104 (1965) (hereinafter Era of
Reconstruction). As the
Court explains, this fear led to “systematic efforts” in the “old
Confederacy” to disarm the more than 180,000 freedmen who had
served in the Union Army, as well as other free blacks. See ante , at 23. Some States formally prohibited blacks from
possessing firearms. Ante, at 23–24 (quoting 1865 Miss.
Laws p. 165, §1, reprinted in 1 Fleming 289). Others enacted
legislation prohibiting blacks from carrying firearms without a
license, a restriction not imposed on whites. See, e.g. ,
La. Statute of 1865, reprinted in id., at 280.
Additionally, “[t]hroughout the South, armed parties, often
consisting of ex-Confederate soldiers serving in the state
militias, forcibly took firearms from newly freed slaves.” Ante , at 24. As the Court makes
crystal clear, if the Fourteenth Amendment “had outlawed only those
laws that discriminate on the basis of race or previous condition
of servitude, African-Americans in the South would likely have
remained vulnerable to attack by many of their worst abusers: the
state militia and state peace officers.” Ante, at 32. In
the years following the Civil War, a law banning firearm possession
outright “would have been nondiscriminatory only in the formal
sense,” for it would have “left firearms in the hands of the
militia and local peace officers.” Ibid. Evidence suggests
that the public understood this at the time the Fourteenth
Amendment was ratified. The publicly circulated Report of the Joint
Committee on Reconstruction extensively detailed these abuses, see ante, at 23–24 (collecting examples), and statements by
citizens indicate that they looked to the Committee to provide a
federal solution to this problem, see, e.g. , 39th Cong.
Globe 337 (remarks of Rep. Sumner) (introducing “a memorial from
the colored citizens of the State of South Carolina” asking for, inter alia , “constitutional protection in keeping arms, in
holding public assemblies, and in complete liberty of speech and of
the press”). One way in which
the Federal Government responded was to issue military orders
countermanding Southern arms legislation. See, e.g. , Jan.
17, 1866, order from Major General D. E. Sickles, reprinted in E.
McPherson, The Political History of the United States of America
During the Period of Reconstruction 37 (1871) (“The constitutional
rights of all loyal and well-disposed inhabitants to bear arms will
not be infringed”). The significance of these steps was not lost on
those they were designed to protect. After one such order was
issued, The Christian Recorder, published by the African Methodist
Episcopal Church, published the following
editorial: “ ‘We have several times alluded to the
fact that the Constitution of the United States, guaranties to
every citizen the right to keep and bear arms. . . . All men,
without the distinction of color, have the right to keep arms to
defend their homes, families, or themselves.’ “We are glad to
learn that [the] Commissioner for this State . . . has given
freedmen to understand that they have as good a right to keep fire
arms as any other citizens. The Constitution of the United States
is the supreme law of the land, and we will be governed by that at
present.” Right to Bear Arms, Christian Recorder (Phila.), Feb. 24,
1866, pp. 29–30. The
same month, The Loyal Georgian carried a letter to the editor
asking “Have colored persons a right to own and carry fire arms?—A
Colored Citizen.” The editors responded as
follows: “Almost every day, we are asked questions
similar to the above. We answer certainly you have the same right to own and carry fire arms that other citizens have. You are not only free but citizens of the United
States and, as such, entitled to the same privileges granted to
other citizens by the Constitution of the United
States. .     .     .     .     . “. . . Article II, of the amendments
to the Constitution of the United States, gives the people the
right to bear arms and states that this right shall not be
infringed. . . . All men, without distinction of color, have the
right to keep arms to defend their homes, families or themselves.”
Letter to the Editor, Loyal Georgian (Augusta), Feb. 3, 1866,
p. 3. These
statements are consistent with the arguments of abolitionists
during the antebellum era that slavery, and the slave States’
efforts to retain it, violated the constitutional rights of
individuals—rights the abolitionists described as among the
privileges and immunities of citizenship. See, e.g. , J.
Tiffany, Treatise on the Unconstitutionality of American Slavery 56
(1849) (reprint 1969) (“pledg[ing] . . . to see that all the
rights, privileges, and immunities, granted by the constitution of
the United States, are extended to all”); id. , at 99
(describing the “right to keep and bear arms” as one of those
rights secured by “the constitution of the United States”). The
problem abolitionists sought to remedy was that, under Dred
Scott , blacks were not entitled to the privileges and
immunities of citizens under the Federal Constitution and that, in
many States, whatever inalienable rights state law recognized did
not apply to blacks. See, e.g. , Cooper v. Savannah , 4 Ga. 68, 72 (1848) (deciding, just two years
after Chief Justice Lumpkin’s opinion in Nunn recognizing
the right to keep and bear arms, see supra , at 39, that
“[f]ree persons of color have never been recognized here as
citizens; they are not entitled to bear arms”). Section 1
guaranteed the rights of citizenship in the United States and in
the several States without regard to race. But it was understood
that liberty would be assured little protection if §1 left each
State to decide which privileges or immunities of United States
citizenship it would protect. As Frederick Douglass explained
before §1’s adoption, “the Legislatures of the South can take from
him the right to keep and bear arms, as they can—they would not
allow a negro to walk with a cane where I came from, they would not
allow five of them to assemble together.” In What New Skin Will the
Old Snake Come Forth? An Address Delivered in New York, New York,
May 10, 1865, reprinted in 4 The Frederick Douglass Papers 79,
83–84 (J. Blassingame & J. McKivigan eds., 1991) (footnote
omitted). “Notwithstanding the provision in the Constitution of the
United States, that the right to keep and bear arms shall not be
abridged,” Douglass explained that “the black man has never had the
right either to keep or bear arms.” Id ., at 84. Absent a
constitutional amendment to enforce that right against the States,
he insisted that “the work of the Abolitionists [wa]s not
finished.” Ibid. This history
confirms what the text of the Privileges or Immunities Clause most
naturally suggests: Consistent with its command that “[n]o State
shall … abridge” the rights of United States citizens, the Clause
establishes a minimum baseline of federal rights, and the
constitutional right to keep and bear arms plainly was among
them.[ Footnote
19 ] III My
conclusion is contrary to this Court’s precedents, which hold that
the Second Amendment right to keep and bear arms is not a privilege
of United States citizenship. See Cruikshank , 92 U. S., at
548–549, 551–553. I must, therefore, consider whether stare decisis requires retention of those
precedents. As mentioned at the outset, my inquiry is limited to
the right at issue here. Thus, I do not endeavor to decide in this
case whether, or to what extent, the Privileges or Immunities
Clause applies any other rights enumerated in the Constitution
against the States.[ Footnote
20 ] Nor do I suggest that the stare decisis considerations surrounding the application of the right to keep and
bear arms against the States would be the same as those surrounding
another right protected by the Privileges or Immunities Clause. I
consider stare decisis only as it applies to the question
presented here. A This
inquiry begins with the Slaughter-House Cases . There, this
Court upheld a Louisiana statute granting a monopoly on livestock
butchering in and around the city of New Orleans to a newly
incorporated company. 16 Wall. 36. Butchers excluded by the
monopoly sued, claiming that the statute violated the Privileges or
Immunities Clause because it interfered with their right to pursue
and “exercise their trade.” Id. , at 60. This Court
rejected the butchers’ claim, holding that their asserted right was
not a privilege or immunity of American citizenship, but one
governed by the States alone. The Court held that the Privileges or
Immunities Clause protected only rights of federal citizenship—those “which owe their existence to the Federal
government, its National character, its Constitution, or its laws,” id. , at 79—and did not protect any of the rights
of state citizenship, id. , at 74. In other words, the
Court defined the two sets of rights as mutually
exclusive. After
separating these two sets of rights, the Court defined the rights
of state citizenship as “embrac[ing] nearly every civil right for
the establishment and protection of which organized government is
instituted”—that is, all those rights listed in Corfield .
16 Wall., at 76 (referring to “those rights” that “Judge
Washington” described). That left very few rights of federal
citizenship for the Privileges or Immunities Clause to protect. The
Court suggested a handful of possibilities, such as the “right of
free access to [federal] seaports,” protection of the Federal
Government while traveling “on the high seas,” and even two rights
listed in the Constitution. Id. , at 79 (noting “[t]he
right to peaceably assemble” and “the privilege of the writ of habeas corpus ”); see supra , at 4. But its
decision to interpret the rights of state and federal citizenship
as mutually exclusive led the Court in future cases to conclude
that constitutionally enumerated rights were excluded from the
Privileges or Immunities Clause’s scope. See Cruikshank , supra . I reject that
understanding. There was no reason to interpret the Privileges or
Immunities Clause as putting the Court to the extreme choice of
interpreting the “privileges and immunities” of federal citizenship
to mean either all those rights listed in Corfield , or
almost no rights at all. 16 Wall., at 76. The record is scant that
the public understood the Clause to make the Federal Government “a
perpetual censor upon all legislation of the States” as the Slaughter-House majority feared. Id. , at 78. For
one thing, Corfield listed the “elective franchise” as one
of the privileges and immunities of “citizens of the several
states,” 6 F. Cas., at 552, yet Congress and the States still found
it necessary to adopt the Fifteenth Amendment—which protects “[t]he
right of citizens of the United States to vote”—two years after the
Fourteenth Amendment’s passage. If the Privileges or Immunities
Clause were understood to protect every conceivable civil right
from state abridgment, the Fifteenth Amendment would have been
redundant. The better view, in
light of the States and Federal Government’s shared history of
recognizing certain inalienable rights in their citizens, is that
the privileges and immunities of state and federal citizenship
overlap. This is not to say that the privileges and immunities of
state and federal citizenship are the same. At the time of the
Fourteenth Amendment’s ratification, States performed many more
functions than the Federal Government, and it is unlikely that,
simply by referring to “privileges or immunities,” the Framers of
§1 meant to transfer every right mentioned in Corfield to
congressional oversight. As discussed, “privileges” and
“immunities” were understood only as synonyms for “rights.” See supra , at 9–11. It was their attachment to a particular
group that gave them content, and the text and history recounted
here indicate that the rights of United States citizens were not
perfectly identical to the rights of citizens “in the several
States.” Justice Swayne, one of the dissenters in Slaughter-House , made the point clear: “The citizen of a State
has the same fundamental rights as a citizen of the United
States, and also certain others , local in their character,
arising from his relation to the State, and in addition, those
which belong to the citizen of the United States, he being in that
relation also. There may thus be a double citizenship, each having
some rights peculiar to itself. It is only over those which belong
to the citizen of the United States that the category here in
question throws the shield of its protection.” 16 Wall., at 126
(emphasis added). Because the privileges
and immunities of American citizenship include rights enumerated in
the Constitution, they overlap to at least some extent with the
privileges and immunities traditionally recognized in citizens in
the several States. A separate question
is whether the privileges and immunities of American citizenship
include any rights besides those enumerated in the Constitution.
The four dissenting Justices in Slaughter-House would have
held that the Privileges or Immunities Clause protected the
unenumerated right that the butchers in that case asserted. See id. , at 83 (Field, J., dissenting); id. , at 111
(Bradley, J., dissenting); id. , at 124 (Swayne, J.,
dissenting). Because this case does not involve an unenumerated
right, it is not necessary to resolve the question whether the
Clause protects such rights, or whether the Court’s judgment in Slaughter-House was correct. Still, it is argued
that the mere possibility that the Privileges or Immunities Clause
may enforce unenumerated rights against the States creates
“ ‘special hazards’ ” that should prevent this Court from
returning to the original meaning of the Clause.[ Footnote 21 ] Post , at 3 (Stevens,
J., dissenting). Ironically, the same objection applies to the
Court’s substantive due process jurisprudence, which illustrates
the risks of granting judges broad discretion to recognize
individual constitutional rights in the absence of textual or
historical guideposts. But I see no reason to assume that such
hazards apply to the Privileges or Immunities Clause. The mere fact
that the Clause does not expressly list the rights it protects does
not render it incapable of principled judicial application. The
Constitution contains many provisions that require an examination
of more than just constitutional text to determine whether a
particular act is within Congress’ power or is otherwise
prohibited. See, e.g. , Art. I, §8, cl. 18 (Necessary
and Proper Clause); Amdt. 8 (Cruel and Unusual Punishments Clause).
When the inquiry focuses on what the ratifying era understood the
Privileges or Immunities Clause to mean, interpreting it should be
no more “hazardous” than interpreting these other constitutional
provisions by using the same approach. To be sure, interpreting the
Privileges or Immunities Clause may produce hard questions. But
they will have the advantage of being questions the Constitution
asks us to answer. I believe those questions are more worthy of
this Court’s attention—and far more likely to yield discernable
answers—than the substantive due process questions the Court has
for years created on its own, with neither textual nor historical
support. Finding these
impediments to returning to the original meaning overstated, I
reject Slaughter-House insofar as it precludes any overlap
between the privileges and immunities of state and federal
citizenship. I next proceed to the stare decisis considerations surrounding the precedent that expressly controls
the question presented here. B Three
years after Slaughter-House , the Court in Cruikshank squarely held that the right to keep and bear
arms was not a privilege of American citizenship, thereby
overturning the convictions of militia members responsible for the
brutal Colfax Massacre. See supra , at 4–5. Cruikshank is not a precedent entitled to any respect. The
flaws in its interpretation of the Privileges or Immunities Clause
are made evident by the preceding evidence of its original meaning,
and I would reject the holding on that basis alone. But, the
consequences of Cruikshank warrant mention as
well. Cruikshank ’s holding that blacks
could look only to state governments for protection of their right
to keep and bear arms enabled private forces, often with the
assistance of local governments, to subjugate the newly freed
slaves and their descendants through a wave of private violence
designed to drive blacks from the voting booth and force them into
peonage, an effective return to slavery. Without federal
enforcement of the inalienable right to keep and bear arms, these
militias and mobs were tragically successful in waging a campaign
of terror against the very people the Fourteenth Amendment had just
made citizens. Take, for example,
the Hamburg Massacre of 1876. There, a white citizen militia sought
out and murdered a troop of black militiamen for no other reason
than that they had dared to conduct a celebratory Fourth of July
parade through their mostly black town. The white militia
commander, “Pitchfork” Ben Tillman, later described this massacre
with pride: “[T]he leading white men of Edgefield” had decided “to
seize the first opportunity that the negroes might offer them to
provoke a riot and teach the negroes a lesson by having the whites
demonstrate their superiority by killing as many of them as was
justifiable.” S. Kantrowitz, Ben Tillman & the Reconstruction
of White Supremacy 67 (2000) (ellipsis, brackets, and internal
quotation marks omitted). None of the perpetrators of the Hamburg
murders was ever brought to justice.[ Footnote 22 ] Organized terrorism
like that perpetuated by Tillman and his cohorts proliferated in
the absence of federal enforcement of constitutional rights.
Militias such as the Ku Klux Klan, the Knights of the White
Camellia, the White Brotherhood, the Pale Faces, and the ’76
Association spread terror among blacks and white Republicans by
breaking up Republican meetings, threatening political leaders, and
whipping black militiamen. Era of Reconstruction, 199–200; Curtis
156. These groups raped, murdered, lynched, and robbed as a means
of intimidating, and instilling pervasive fear in, those whom they
despised. A. Trelease, White Terror: The Ku Klux Klan Conspiracy
and Southern Reconstruction 28–46 (1995). Although Congress
enacted legislation to suppress these activities,[ Footnote 23 ] Klan tactics remained a
constant presence in the lives of Southern blacks for decades.
Between 1882 and 1968, there were at least 3,446 reported lynchings
of blacks in the South. Cottrol 351–352. They were tortured and
killed for a wide array of alleged crimes, without even the
slightest hint of due process. Emmit Till, for example, was killed
in 1955 for allegedly whistling at a white woman. S. Whitfield, A
Death in the Delta: The Story of Emmett Till 15–31 (1988). The
fates of other targets of mob violence were equally depraved. See, e.g. , Lynched Negro and Wife Were First Mutilated,
Vicksburg (Miss.) Evening Post, Feb. 8, 1904, reprinted in R.
Ginzburg, 100 Years of Lynchings 63 (1988); Negro Shot Dead for
Kissing His White Girlfriend, Chi. Defender, Feb. 31, 1915, in id. , at 95 (reporting incident in Florida); La. Negro Is
Burned Alive Screaming “I Didn’t Do It,” Cleveland Gazette, Dec.
13, 1914, in id. , at 93 (reporting incident in
Louisiana). The use of firearms
for self-defense was often the only way black citizens could
protect themselves from mob violence. As Eli Cooper, one target of
such violence, is said to have explained, “ ‘[t]he Negro has
been run over for fifty years, but it must stop now, and pistols
and shotguns are the only weapons to stop a mob.’ ” Church
Burnings Follow Negro Agitator’s Lynching, Chicago Defender, Sept.
6, 1919, in id. , at 124. Sometimes, as in Cooper’s case,
self-defense did not succeed. He was dragged from his home by a mob
and killed as his wife looked on. Ibid. But at other
times, the use of firearms allowed targets of mob violence to
survive. One man recalled the night during his childhood when his
father stood armed at a jail until morning to ward off lynchers.
See Cottrol, 354. The experience left him with a sense, “not ‘of
powerlessness, but of the “possibilities of
salvation” ’ ” that came from standing up to
intimidation. Ibid. In my view, the
record makes plain that the Framers of the Privileges or Immunities
Clause and the ratifying-era public understood—just as the Framers
of the Second Amendment did—that the right to keep and bear arms
was essential to the preservation of liberty. The record makes
equally plain that they deemed this right necessary to include in
the minimum baseline of federal rights that the Privileges or
Immunities Clause established in the wake of the War over slavery.
There is nothing about Cruikshank ’s contrary holding that
warrants its retention. *  *  * I
agree with the Court that the Second Amendment is fully applicable
to the States. I do so because the right to keep and bear arms is
guaranteed by the Fourteenth Amendment as a privilege of American
citizenship. Footnote
1 In the two decades
after United States v. Cruikshank , 92 U. S. 542 (1876), was decided, this
Court twice reaffirmed its holding that the Privileges or
Immunities Clause does not apply the Second Amendment to the
States. Presser v. Illinois , 116 U. S. 252 , 266–267
(1886); Miller v. Texas , 153 U. S. 535 (1894). Footnote
2 See also 2 C.
Richardson, A New Dictionary of the English Language 1512 (1839)
(defining “privilege” as “an appropriate or peculiar law or rule or
right; a peculiar immunity, liberty, or franchise”); 1 id. , at 1056 (defining “immunity” as “[f]reedom or
exemption, (from duties,) liberty, privilege”); The Philadelphia
School Dictionary; or Expositor of the English Language 152 (3d ed.
1812) (defining “privilege” as a “peculiar advantage”); id. , at 105 (defining “immunity” as “privilege,
exemption”); Royal Standard English Dictionary 411 (1788) (defining
“privilege” as “public right; peculiar
advantage”). Footnote
3 See also, e.g. , Charter of Va. (1606), reprinted in 7 The Federal
and State Constitutions, Colonial Charters, and Other Organic Laws
3783, 3788 (F. Thorpe ed. 1909) (hereinafter Thorpe) (“Declar[ing]”
that “all and every the Persons being our Subjects, . . . shall
Have and enjoy all Liberties, Franchises, and Immunities . . .
as if they had been abiding and born, within this our Realm of England ” (emphasis in original)); Charter of New England
(1620), in 3 id., at 1827, 1839 (“[A]ll and every the
Persons, beinge our Subjects, . . . shall have and enjoy all
Liberties, and ffranchizes, and Immunities of free Denizens and
naturall subjects … as if they had been abidinge and born within
this our Kingdome of England”); Charter of Mass. Bay (1629), in id. at 1846, 1856–1857 (guaranteeing that “all and every
the Subjects of Us, … shall have and enjoy all liberties and
Immunities of free and naturall Subjects … as yf they and everie of
them were borne within the Realme of England”); Grant of the
Province of Me. (1639), in id., at 1625, 1635
(guaranteeing “Liberties Francheses and Immunityes of or belonging
to any the naturall borne subjects of this our Kingdome of
England”); Charter of Carolina (1663), in 5 id., at 2743,
2747 (guaranteeing to all subjects “all liberties franchises and
priviledges of this our kingdom of England”); Charter of R. I.
and Providence Plantations (1663), in 6 id., at 3211, 3220
(“[A]ll and every the subjects of us . . . shall have and enjoye
all libertyes and immunityes of ffree and naturall subjects within
any the dominions of us, our heires, or successours, . . . as if
they, and every of them, were borne within the realme of England”);
Charter of Ga. (1732), in 2 id., at 765, 773 (“[A]ll and
every the persons which shall happen to be born within the said
province … shall have and enjoy all liberties, franchises and
immunities of free denizens and natural born subjects, within any
of our dominions, to all intents and purposes, as if abiding and
born within this our kingdom of Great-Britain”). Footnote
4 See also, e.g., A. Howard, The Road from Runnymede: Magna Carta and
Constitutionalism in America 174 (1968) (quoting 1774 Georgia
resolution declaring that the colony’s inhabitants were entitled to
“ ‘the same rights, privileges, and immunities with their
fellow-subjects in Great Britain ’ ” (emphasis in
original)); The Virginia Resolves, The Resolutions as Printed in
the Journal of the House of Burgesses, reprinted in Prologue to
Revolution: Sources and Documents on the Stamp Act Crisis,
1764–1766, at 46, 48 (“[T]he Colonists aforesaid are declared
entitled to all Liberties, Privileges, and Immunities of Denizens
and natural Subjects, to all Intents and Purposes, as if they had
been abiding and born within the Realm of England ”
(emphasis in original)). Footnote
5 See also Va.
Declaration of Rights (1776), reprinted in 1 Schwartz 234–236; Pa.
Declaration of Rights (1776), in id ., at 263–275; Del.
Declaration of Rights (1776), in id ., at 276–278; Md.
Declaration of Rights (1776), in id ., at 280–285;
N. C. Declaration of Rights (1776), in id .,
286–288. Footnote
6 Justice
Washington’s complete list was as follows: “Protection by the government; the
enjoyment of life and liberty, with the right to acquire and
possess property of every kind, and to pursue and obtain happiness
and safety; subject nevertheless to such restraints as the
government may justly prescribe for the general good of the whole.
The right of a citizen of one state to pass through, or to reside
in any other state, for purposes of trade, agriculture,
professional pursuits, or otherwise; to claim the benefit of the
writ of habeas corpus; to institute and maintain actions of any
kind in the courts of the state; to take, hold and dispose of
property, either real or personal; and an exemption from higher
taxes or impositions than are paid by the other citizens of the
state; may be mentioned as some of the particular privileges and
immunities of citizens, which are clearly embraced by the general
description of privileges deemed to be fundamental: to which may be
added, the elective franchise, as regulated and established by the
laws or constitution of the state in which it is to be exercised.”
6 Fed. Cas., at 551–552. Footnote
7 See also Treaty
Between the United States of America and the Ottawa Indians of
Blanchard’s Fork and Roche De Boeuf, June 24, 1862, 12 Stat. 1237
(“The Ottawa Indians of the United Bands of Blanchard’s Fork and of
Roche de Boeuf, having become sufficiently advanced in
civilization, and being desirous of becoming citizens of the United
States . . . [after five years from the ratification of this
treaty] shall be deemed and declared to be citizens of the United
States, to all intents and purposes, and shall be entitled to all
the rights, privileges, and immunities of such citizens ”
(emphasis added)); Treaty Between the United States of America and
Different Tribes of Sioux Indians, Art. VI, April 29, 1868, 15
Stat. 637 (“[A]ny Indian or Indians receiving a patent for land
under the foregoing provisions, shall thereby and from thenceforth
become and be a citizen of the United States, and be entitled to
all the privileges and immunities of such citizens ”
(emphasis added)). Footnote
8 Subsequent
treaties contained similar guarantees that the inhabitants of the
newly acquired territories would enjoy the freedom to exercise
certain constitutional rights. See Treaty of Peace, Friendship,
Limits, and Settlement with the Republic of Mexico, Art. IX, Feb.
2, 1848, 9 Stat. 930, T. S. No. 207 (cession of Texas) (declaring
that inhabitants of the Territory were entitled “to the enjoyment
of all the rights of citizens of the United States, according to
the principles of the constitution; and in the mean time shall be
maintained and protected in the free enjoyment of their liberty and
property, and secured in the free exercise of their religion
without restriction”); Treaty concerning the Cession of the Russian
Possessions in North America by his Majesty the Emperor of all the
Russians to the United States of America, Art. III, Mar. 30, 1867,
15 Stat. 542, T. S. No. 301 (June 20, 1867) (cession of Alaska)
(“The inhabitants of the ceded territory, … if they should prefer
to remain in the ceded territory, they, with the exception of
uncivilized native tribes, shall be admitted to the enjoyment of
all the rights, advantages, and immunities of citizens of the
United States, and shall be maintained and protected in the free
enjoyment of their liberty, property, and
religion”). Footnote
9 See, e.g. , Speech of Mr. Joseph Hemphill (Pa.) on the Missouri
Question in the House of the Representatives 16 (1820), as
published in pamphlet form and reprinted in 22 Moore Pamphlets,
p. 16 (“If the right to hold slaves is a federal right and attached
merely to citizenship of the United States, [then slavery] could
maintain itself against state authority, and on this principle the
owner might take his slaves into any state he pleased, in defiance
of the state laws, but this would be contrary to the
constitution”); see also Lash, The Origins of the Privileges or
Immunities Clause, Part I: “Privileges and Immunities” as an
Antebellum Term of Art, 98 Geo. L. J. 1241, 1288–1290 (2010)
(collecting other examples). Footnote 10 One Country, One
Constitution, and One People: Speech of Hon. John A. Bingham, of
Ohio, In the House of Representatives, February 28, 1866, In
Support of the Proposed Amendment to Enforce the Bill of Rights
(Cong. Globe). The pamphlet was published by the official reporter
of congressional debates, and was distributed presumably pursuant
to the congressional franking privilege. See B. Wildenthal,
Nationalizing the Bill of Rights: Revisiting the Original
Understanding of the Fourteenth Amendment in 1866–67, 68 Ohio St.
L. J. 1509, 1558, n. 167 (2007) (hereinafter
Wildenthal). Footnote 11 The full text of
Bingham’s first draft of §1 provided as follows: “The Congress shall have power to
make all laws which shall be necessary and proper to secure to the
citizens of each State all privileges and immunities of citizens in
the several States, and to all persons in the several States equal
protection in the rights of life, liberty, and property.” 39th
Cong. Globe 1088. Footnote 12 In a separate
front-page article on the same day, the paper expounded upon Hale’s
arguments in even further detail, while omitting Bingham’s chief
rebuttals. N. Y. Times, Feb. 28, 1866, p. 1. The unbalanced
nature of The New York Times’ coverage is unsurprising. As scholars
have noted, “[m]ost papers” during the time of Reconstruction “had
a frank partisan slant . . . and the Times was no
exception.” Wildenthal 1559. In 1866, the paper “was still
defending” President Johnson’s resistance to Republican reform
measures, as exemplified by the fact that it “supported Johnson’s
veto of the Civil Rights Act of 1866.” Ibid. Footnote 13 Other papers
that covered Howard’s speech include the following: Baltimore
Gazette, May 24, 1866, p. 4; Boston Daily Journal, May 24, 1866, p.
4; Boston Daily Advertiser, May 24, 1866, p. 1; Daily National
Intelligencer, May 24, 1866, p. 3. Springfield Daily Republican,
May 24, 1866, p. 3; Charleston Daily Courier, May 28, 1866, p. 4;
Charleston Daily Courier, May 29, 1866, p. 1; Chicago Tribune, May
29, 1866, p. 2; Philadelphia Inquirer, May 24, 1866, p.
8. Footnote 14 See J.
Pomeroy, An Introduction to the Constitutional Law of the United
States 155–156 (E. Bennett ed. 1886) (describing §1, which the
country was then still considering, as a “needed” “remedy” for
Barron ex rel. Tiernan v. Mayor of
Baltimore, 7 Pet. 243 (1833), which held that the Bill of
Rights was not enforceable against the States); T. Farrar, Manual
of the Constitution of the United States of America 58–59, 145–146,
395–397 (1867) (reprint 1993); id. , at 546 (3d ed. 1872)
(describing the Fourteenth Amendment as having “swept away” the
“decisions of many courts” that “the popular rights guaranteed by
the Constitution are secured only against [the federal]
government”). Footnote 15 The municipal
respondents and Justice Breyer’s dissent raise a most unusual
argument that §1 prohibits discriminatory laws affecting only the
right to keep and bear arms, but offers substantive protection to
other rights enumerated in the Constitution, such as the freedom of
speech. See post , at 24. Others, however, have made the
more comprehensive—and internally consistent—argument that §1 bars
discrimination alone and does not afford protection to any
substantive rights. See, e.g. , R. Berger, Government By
Judiciary: The Transformation of the Fourteenth Amendment (1997). I
address the coverage of the Privileges or Immunities Clause only as
it applies to the Second Amendment right presented here, but I do
so with the understanding that my conclusion may have implications
for the broader argument. Footnote 16 See, e.g. , Raleigh & Gaston R. Co. v. Davis , 19 N. C. 451, 458–462 (1837) (right to just
compensation for government taking of property); Rohan v. Swain , 59 Mass. 281, 285 (1850) (right to be secure from
unreasonable government searches and seizures); State v. Buzzard , 4 Ark. 18, 28 (1842) (right to keep and bear
arms); State v. Jumel , 13 La. Ann. 399, 400
(1858) (same); Cockrum v. State , 24 Tex. 394,
401–404 (1859) (same). Footnote 17 See, e.g. , People v. Goodwin , 18 Johns. Cas.
187, 201 (N. Y. Sup. Ct. 1820); Rhinehart v. Schulyer , 7 Ill. 473, 522 (1845). Footnote 18 See, e.g. , Black Code, ch. 33, §19, 1806 La. Acts pp. 160,
162 (prohibiting slaves from using firearms unless they were
authorized by their master to hunt within the boundaries of his
plantation); Act of Dec. 18, 1819, 1819 S. C. Acts
pp. 29, 31 (same); An Act Concerning Slaves, §6, 1840 Tex.
Laws pp. 42–43 (making it unlawful for “any slave to own
firearms of any description”). Footnote 19 I conclude that
the right to keep and bear arms applies to the States through the
Privileges or Immunities Clause, which recognizes the rights of
United States “citizens.” The plurality concludes that the right
applies to the States through the Due Process Clause, which covers
all “person[s].” Because this case does not involve a claim brought
by a noncitizen, I express no view on the difference, if any,
between my conclusion and the plurality’s with respect to the
extent to which the States may regulate firearm possession by
noncitizens. Footnote 20 I note, however,
that I see no reason to assume that the constitutionally enumerated
rights protected by the Privileges or Immunities Clause should
consist of all the rights recognized in the Bill of Rights and no
others. Constitutional provisions outside the Bill of Rights
protect individual rights, see, e.g., Art. I, §9,
cl. 2 (granting the “Privilege of the Writ of Habeas Corpus”),
and there is no obvious evidence that the Framers of the Privileges
or Immunities Clause meant to exclude them. In addition, certain
Bill of Rights provisions prevent federal interference in state
affairs and are not readily construed as protecting rights that
belong to individuals. The Ninth and Tenth Amendments are obvious
examples, as is the First Amendment’s Establishment Clause, which
“does not purport to protect individual rights.” Elk Grove
Unified School Dist. v. Newdow , 542 U. S. 1 , 50 (2004)
(Thomas, J., concurring in judgment); see Amar
179–180. Footnote 21 To the extent
Justice Stevens is concerned that reliance on the Privileges or
Immunities Clause may invite judges to “write their personal views
of appropriate public policy into the Constitution,” post ,
at 3 (internal quotation marks omitted), his celebration of the
alternative—the “flexibility,” “transcend[ence],” and “dynamism” of
substantive due process—speaks for itself, post , at 14–15,
20. Footnote 22 Tillman went on to
a long career as South Carolina’s Governor and, later, United
States Senator. Tillman’s contributions to campaign finance law
have been discussed in our recent cases on that subject. See Citizens United v. Federal Election Comm’n , 558
U. S. ___, ___ (2010) (Stevens, J., dissenting) (slip. op., at 2,
42, 56, 87) (discussing at length the Tillman Act of 1907, 34 Stat.
864). His contributions to the culture of terrorism that grew in
the wake of Cruikshank had an even more dramatic and
tragic effect. Footnote 23 In an effort to
enforce the Fourteenth Amendment and halt this violence, Congress
enacted a series of civil rights statutes, including the Force
Acts, see Act of May 31, 1870, 16 Stat. 140; Act of Feb. 28, 1871,
16 Stat. 433, and the Ku Klux Klan Act, see Act of Apr. 20, 1871,
17 Stat. 13. SCALIA, J., CONCURRING MCDONALD V. CHICAGO 561 U. S. ____ (2010) SUPREME COURT OF THE UNITED STATES NO. 08-1521 OTIS McDONALD, et al., PETITIONERS v. CITY OF CHICAGO, ILLINOIS, et al.

															on writ of certiorari to the united states court of
appeals for the seventh circuit

															[June 28, 2010]

															   Justice Scalia, concurring.

															   I join the Court’s opinion.
Despite my misgivings about Substantive Due Process as an original
matter, I have acquiesced in the Court’s incorporation of certain
guarantees in the Bill of Rights “because it is both long
established and narrowly limited.” Albright v. Oliver , 510
U. S. 266 , 275 (1994) (Scalia, J., concurring). This case does
not require me to reconsider that view, since straightforward
application of settled doctrine suffices to decide it.

															   I write separately only to respond to some
aspects of Justice Stevens’ dissent. Not that aspect which
disagrees with the majority’s application of our precedents to this
case, which is fully covered by the Court’s opinion. But much of
what Justice Stevens writes is a broad condemnation of the theory
of interpretation which underlies the Court’s opinion, a theory
that makes the traditions of our people paramount. He proposes a
different theory, which he claims is more “cautiou[s]” and
respectful of proper limits on the judicial role. Post , at
57. It is that claim I wish to address.

															I

															A

															   After stressing the substantive
dimension of what he has renamed the “liberty clause,” post , at 4–7,[ Footnote
1 ] Justice Stevens proceeds to urge readoption of the theory of
incorporation articulated in Palko v. Connecticut , 302 U. S. 319 , 325
(1937), see post , at 14–20. But in fact he does not favor
application of that theory at all. For whether Palko requires only that “a fair and enlightened system of justice would
be impossible without” the right sought to be incorporated, 302 U.
S., at 325, or requires in addition that the right be rooted in the
“traditions and conscience of our people,” ibid. (internal
quotation marks omitted), many of the rights Justice Stevens thinks
are incorporated could not pass muster under either test: abortion, post , at 7 (citing Planned Parenthood of Southeastern
Pa. v. Casey , 505 U. S. 833 , 847 (1992)); homosexual
sodomy, post , at 16 (citing Lawrence v. Texas , 539 U. S. 558 , 572 (2003)); the right
to have excluded from criminal trials evidence obtained in
violation of the Fourth Amendment, post , at 18 (citing Mapp v. Ohio , 367 U. S. 643 , 650,
655–657 (1961)); and the right to teach one’s children foreign
languages, post , at 7 (citing Meyer v. Nebraska , 262 U. S. 390 , 399–403
(1923)), among others.

															   That Justice Stevens is not
applying any version of Palko is clear from comparing, on
the one hand, the rights he believes are covered, with, on
the other hand, his conclusion that the right to keep and bear arms
is not covered. Rights that pass his test include not just
those “relating to marriage, procreation, contraception, family
relationships, and child rearing and education,” but also rights
against “[g]overnment action that shocks the conscience,
pointlessly infringes settled expectations, trespasses into
sensitive private realms or life choices without adequate
justification, [or] perpetrates gross injustice.” Post , at
23 (internal quotation marks omitted). Not all such rights
are in, however, since only “ some fundamental aspects of
personhood, dignity, and the like” are protected, post , at
24 (emphasis added). Exactly what is covered is not clear. But
whatever else is in, he knows that the right to keep and
bear arms is out, despite its being as “deeply rooted in this
Nation’s history and tradition,” Washington v. Glucksberg , 521 U. S. 702 , 721
(1997) (internal quotation marks omitted), as a right can be, see District of Columbia v. Heller , 554 U. S. ___,
___–___, ___–___, ___–___ (2008) (slip op., at 20–21, 26–30,
41–44). I can find no other explanation for such certitude except
that Justice Stevens, despite his forswearing of “personal and
private notions,” post , at 21 (internal quotation marks
omitted), deeply believes it should be out.

															   The subjective nature of Justice Stevens’
standard is also apparent from his claim that it is the courts’
prerogative—indeed their duty —to update the Due Process
Clause so that it encompasses new freedoms the Framers were too
narrow-minded to imagine, post , at 19–20, and n. 21.
Courts, he proclaims, must “do justice to [the Clause’s] urgent
call and its open texture” by exercising the “interpretive
discretion the latter embodies.” Post , at 21. (Why the people are not up to the task of deciding what new rights
to protect, even though it is they who are authorized to
make changes, see U. S. Const., Art. V, is never
explained.[ Footnote 2 ]) And it
would be “judicial abdication” for a judge to “tur[n] his back” on his task of determining what the Fourteenth Amendment
covers by “outsourc[ing]” the job to “historical sentiment,” post , at 20—that is, by being guided by what the American
people throughout our history have thought. It is only we judges,
exercising our “own reasoned judgment,” post , at 15, who
can be entrusted with deciding the Due Process Clause’s scope—which
rights serve the Amendment’s “central values,” post , at
23—which basically means picking the rights we want to protect and
discarding those we do not.

															B

															   Justice Stevens resists this
description, insisting that his approach provides plenty of
“guideposts” and “constraints” to keep courts from “injecting
excessive subjectivity” into the process.[ Footnote 3 ] Post , at 21. Plenty indeed—and
that alone is a problem. The ability of omnidirectional guideposts
to constrain is inversely proportional to their number. But even
individually, each lodestar or limitation he lists either is
incapable of restraining judicial whimsy or cannot be squared with
the precedents he seeks to preserve.

															   He begins with a brief nod to
history, post , at 21, but as he has just made clear, he
thinks historical inquiry unavailing, post , at 19–20.
Moreover, trusting the meaning of the Due Process Clause to what
has historically been protected is circular, see post , at
19, since that would mean no new rights could get in.

															   Justice Stevens moves on to the “most basic”
constraint on subjectivity his theory offers: that he would
“esche[w] attempts to provide any all-purpose, top-down, totalizing
theory of ‘liberty.’ ” Post , at 22. The notion that
the absence of a coherent theory of the Due Process Clause will
somehow curtail judicial caprice is at war with reason.
Indeterminacy means opportunity for courts to impose whatever rule
they like; it is the problem, not the solution. The idea that
interpretive pluralism would reduce courts’ ability to
impose their will on the ignorant masses is not merely naïve, but
absurd. If there are no right answers, there are no wrong answers
either.

															   Justice Stevens also argues that requiring
courts to show “respect for the democratic process” should serve as
a constraint. Post , at 23. That is true, but Justice
Stevens would have them show respect in an extraordinary manner. In
his view, if a right “is already being given careful consideration
in, and subjected to ongoing calibration by, the States, judicial
enforcement may not be appropriate.” Ibid. In other words,
a right, such as the right to keep and bear arms, that has long
been recognized but on which the States are considering
restrictions, apparently deserves less protection, while a
privilege the political branches (instruments of the democratic
process) have withheld entirely and continue to withhold, deserves more . That topsy-turvy approach conveniently accomplishes
the objective of ensuring that the rights this Court held protected
in Casey , Lawrence , and other such cases fit the
theory—but at the cost of insulting rather than respecting the
democratic process.

															   The next constraint Justice Stevens suggests
is harder to evaluate. He describes as “an important tool for
guiding judicial discretion” “sensitivity to the interaction
between the intrinsic aspects of liberty and the practical
realities of contemporary society.” Post , at 24. I cannot
say whether that sensitivity will really guide judges because I
have no idea what it is. Is it some sixth sense instilled in judges
when they ascend to the bench? Or does it mean judges are more
constrained when they agonize about the cosmic conflict between
liberty and its potentially harmful consequences? Attempting to
give the concept more precision, Justice Stevens explains that
“sensitivity is an aspect of a deeper principle: the need to
approach our work with humility and caution.” Ibid. Both
traits are undeniably admirable, though what relation they bear to
sensitivity is a mystery. But it makes no difference, for the first
case Justice Stevens cites in support, see ibid. , Casey , 505 U. S., at 849, dispels any illusion that he has
a meaningful form of judicial modesty in mind.

															   Justice Stevens offers no examples to
illustrate the next constraint: stare decisis , post , at 25. But his view of it is surely not very
confining, since he holds out as a “canonical” exemplar of the
proper approach, see post , at 16, 54, Lawrence ,
which overruled a case decided a mere 17 years earlier, Bowers v. Hardwick , 478 U. S. 186 (1986),
see 539 U. S., at 578 (it “was not correct when it was decided, and
it is not correct today”). Moreover, Justice Stevens would apply
that constraint unevenly: He apparently approves those Warren Court
cases that adopted jot-for-jot incorporation of procedural
protections for criminal defendants, post , at 11, but
would abandon those Warren Court rulings that undercut his approach
to substantive rights, on the basis that we have “cut back” on
cases from that era before, post , at 12.

															   Justice Stevens also relies on the requirement
of a “careful description of the asserted fundamental liberty
interest” to limit judicial discretion. Post , at 25
(internal quotation marks omitted). I certainly agree with that
requirement, see Reno v. Flores , 507 U. S. 292 , 302
(1993), though some cases Justice Stevens approves have not applied
it seriously, see, e.g. , Lawrence , supra , at 562 (“The instant case involves liberty of the
person both in its spatial and in its more transcendent
dimensions”). But if the “careful description” requirement is used
in the manner we have hitherto employed, then the enterprise of
determining the Due Process Clause’s “conceptual core,” post , at 23, is a waste of time. In the cases he cites we
sought a careful, specific description of the right at issue in
order to determine whether that right, thus narrowly defined,
was fundamental . See, e.g. , Glucksberg , 521
U. S., at 722–728; Reno , supra , at 302–306; Collins v. Harker Heights , 503 U. S. 115 , 125–129
(1992); Cruzan v. Director, Mo. Dept. of Health , 497 U. S. 261 ,
269–279 (1990); see also Vacco v. Quill , 521 U. S. 793 , 801–808
(1997). The threshold step of defining the asserted right with
precision is entirely unnecessary, however, if (as Justice Stevens
maintains) the “conceptual core” of the “liberty clause,” post , at 23, includes a number of capacious, hazily
defined categories. There is no need to define the right with much
precision in order to conclude that it pertains to the plaintiff’s
“ability independently to define [his] identity,” his “right to
make certain unusually important decisions that will affect his
own, or his family’s, destiny,” or some aspect of his
“[s]elf-determination, bodily integrity, freedom of conscience,
intimate relationships, political equality, dignity [or] respect.” Ibid. (internal quotation marks omitted). Justice
Stevens must therefore have in mind some other use for the
careful-description requirement—perhaps just as a means of ensuring
that courts “procee[d] slowly and incrementally,” post , at
25. But that could be achieved just as well by having them draft
their opinions in longhand.[ Footnote 4 ]

															II

															   If Justice Stevens’ account of
the constraints of his approach did not demonstrate that they do
not exist, his application of that approach to the case before us
leaves no doubt. He offers several reasons for concluding that the
Second Amendment right to keep and bear arms is not fundamental
enough to be applied against the States.[ Footnote 5 ] None is persuasive, but more pertinent to
my purpose, each is either intrinsically indeterminate, would
preclude incorporation of rights we have already held incorporated,
or both. His approach therefore does nothing to stop a judge from
arriving at any conclusion he sets out to reach.

															   Justice Stevens begins with the
odd assertion that “firearms have a fundamentally ambivalent
relationship to liberty,” since sometimes they are used to cause
(or sometimes accidentally produce) injury to others. Post , at 35. The source of the rule that only
nonambivalent liberties deserve Due Process protection is never
explained—proof that judges applying Justice Stevens’ approach can
add new elements to the test as they see fit. The criterion,
moreover, is inherently manipulable. Surely Justice Stevens does
not mean that the Clause covers only rights that have zero harmful effect on anyone . Otherwise even the First
Amendment is out. Maybe what he means is that the right to keep and
bear arms imposes too great a risk to others’ physical
well-being. But as the plurality explains, ante , at 35–36,
other rights we have already held incorporated pose similarly
substantial risks to public safety. In all events, Justice Stevens
supplies neither a standard for how severe the impairment on
others’ liberty must be for a right to be disqualified, nor (of
course) any method of measuring the severity.

															   Justice Stevens next suggests that the Second
Amendment right is not fundamental because it is “different in
kind” from other rights we have recognized. Post , at 37.
In one respect, of course, the right to keep and bear arms is different from some other rights we have held the
Clause protects and he would recognize: It is deeply grounded in
our nation’s history and tradition. But Justice Stevens has a
different distinction in mind: Even though he does “not doubt for a
moment that many Americans . . . see [firearms] as critical to
their way of life as well as to their security,” he pronounces that
owning a handgun is not “critical to leading a life of autonomy,
dignity, or political equality.”[ Footnote 6 ] Post , at 37–38. Who says? Deciding
what is essential to an enlightened, liberty-filled life is an
inherently political, moral judgment—the antithesis of an objective
approach that reaches conclusions by applying neutral rules to
verifiable evidence.[ Footnote
7 ]

															   No determination of what rights the
Constitution of the United States covers would be complete, of
course, without a survey of what other countries do. Post , at 40–41. When it comes to guns, Justice Stevens
explains, our Nation is already an outlier among “advanced
democracies”; not even our “oldest allies” protect as robust a
right as we do, and we should not widen the gap. Ibid. Never mind that he explains neither which countries qualify as
“advanced democracies” nor why others are irrelevant. For there is
an even clearer indication that this criterion lets judges pick
which rights States must respect and those they can ignore: As the
plurality shows, ante , at 34–35, and nn. 28–29, this
follow-the-foreign-crowd requirement would foreclose rights that we
have held (and Justice Stevens accepts) are incorporated, but that
other “advanced” nations do not recognize—from the exclusionary
rule to the Establishment Clause. A judge applying Justice Stevens’
approach must either throw all of those rights overboard or, as
cases Justice Stevens approves have done in considering
unenumerated rights, simply ignore foreign law when it undermines
the desired conclusion, see, e.g. , Casey, 505 U. S. 833 (making no mention of
foreign law).

															   Justice Stevens also argues that since the
right to keep and bear arms was codified for the purpose
of “prevent[ing] elimination of the militia,” it should be viewed
as “ ‘a federalism provision’ ” logically incapable of
incorporation. Post , at 41–42 (quoting Elk Grove
Unified School Dist. v. Newdow , 542 U. S. 1 , 45 (2004)
(Thomas, J., concurring in judgment); some internal quotation marks
omitted). This criterion, too, evidently applies only when judges
want it to. The opinion Justice Stevens quotes for the “federalism
provision” principle, Justice Thomas’s concurrence in Newdow , argued that incorporation of the Establishment
Clause “makes little sense” because that Clause was originally
understood as a limit on congressional interference with state
establishments of religion. Id. , at 49–51. Justice
Stevens, of course, has no problem with applying the Establishment
Clause to the States. See, e.g. , id. , at 8,
n. 4 (opinion for the Court by Stevens, J.) (acknowledging
that the Establishment Clause “appl[ies] to the States by
incorporation into the Fourteenth Amendment”). While he insists that Clause is not a “federalism provision,” post , at 42, n. 40, he does not explain why it is
not, but the right to keep and bear arms is (even though
only the latter refers to a “right of the people”). The
“federalism” argument prevents the incorporation of only certain rights.

															   Justice Stevens next argues that even if the
right to keep and bear arms is “deeply rooted in some important
senses,” the roots of States’ efforts to regulate guns run just as
deep. Post , at 44 (internal quotation marks omitted). But
this too is true of other rights we have held incorporated. No
fundamental right—not even the First Amendment—is absolute. The
traditional restrictions go to show the scope of the right, not its
lack of fundamental character. At least that is what they show
(Justice Stevens would agree) for other rights. Once
again, principles are applied selectively.

															   Justice Stevens’ final reason for rejecting
incorporation of the Second Amendment reveals, more clearly than
any of the others, the game that is afoot. Assuming that there is a
“plausible constitutional basis” for holding that the right to keep
and bear arms is incorporated, he asserts that we ought not to do
so for prudential reasons . Post , at 47. Even if we had the authority to withhold
rights that are within the Constitution’s command (and we assuredly
do not), two of the reasons Justice Stevens gives for abstention
show just how much power he would hand to judges. The States’
“right to experiment” with solutions to the problem of gun
violence, he says, is at its apex here because “the best solution
is far from clear.” Post , at 47–48 (internal quotation
marks omitted). That is true of most serious social
problems—whether, for example, “the best solution” for rampant
crime is to admit confessions unless they are affirmatively shown
to have been coerced, but see Miranda v. Arizona , 384 U. S. 436 ,
444–445 (1966), or to permit jurors to impose the death penalty
without a requirement that they be free to consider “any relevant
mitigating factor,” see Eddings v. Oklahoma , 455 U. S. 104 ,
112 (1982), which in turn leads to the conclusion that defense
counsel has provided inadequate defense if he has not conducted a
“reasonable investigation” into potentially mitigating factors,
see, e.g. , Wiggins v. Smith , 539 U. S. 510 , 534
(2003), inquiry into which question tends to destroy any prospect
of prompt justice, see, e.g. , Wong v. Belmontes , 558 U. S. ___ (2009) (per curiam) (reversing grant of habeas relief for sentencing on a crime
committed in 1981). The obviousness of the optimal answer is in the
eye of the beholder. The implication of Justice Stevens’ call for
abstention is that if We The Court conclude that They The People’s
answers to a problem are silly, we are free to “interven[e],” post , at 47, but if we too are uncertain of the right
answer, or merely think the States may be on to something, we can
loosen the leash.

															   A second reason Justice Stevens says we should
abstain is that the States have shown they are “capable” of
protecting the right at issue, and if anything have protected it
too much. Post , at 49. That reflects an assumption that
judges can distinguish between a proper democratic
decision to leave things alone (which we should honor), and a case
of democratic market failure (which we should step in to correct).
I would not—and no judge should—presume to have that sort of
omniscience, which seems to me far more “arrogant,” post ,
at 41, than confining courts’ focus to our own national
heritage.

															III

															   Justice Stevens’ response to this
concurrence, post , at 51–56, makes the usual rejoinder of
“living Constitution” advocates to the criticism that it empowers
judges to eliminate or expand what the people have prescribed: The
traditional, historically focused method, he says, reposes
discretion in judges as well.[ Footnote 8 ] Historical analysis can be difficult; it
sometimes requires resolving threshold questions, and making
nuanced judgments about which evidence to consult and how to
interpret it.

															   I will stipulate to that.[ Footnote 9 ] But the question to be decided is not
whether the historically focused method is a perfect means of restraining aristocratic judicial
Constitution-writing; but whether it is the best means
available in an imperfect world. Or indeed, even more narrowly
than that: whether it is demonstrably much better than what Justice
Stevens proposes. I think it beyond all serious dispute that it is
much less subjective, and intrudes much less upon the democratic
process. It is less subjective because it depends upon a body of
evidence susceptible of reasoned analysis rather than a variety of
vague ethico-political First Principles whose combined conclusion
can be found to point in any direction the judges favor. In the
most controversial matters brought before this Court—for example,
the constitutionality of prohibiting abortion, assisted suicide, or
homosexual sodomy, or the constitutionality of the death
penalty— any historical methodology, under any plausible standard of proof, would lead to the same
conclusion.[ Footnote 10 ]
Moreover, the methodological differences that divide historians,
and the varying interpretive assumptions they bring to their work, post , at 52–54, are nothing compared to the differences
among the American people (though perhaps not among graduates of
prestigious law schools) with regard to the moral judgments Justice
Stevens would have courts pronounce. And whether or not special
expertise is needed to answer historical questions, judges most
certainly have no “comparative … advantage,” post , at 24 (internal quotation marks omitted), in
resolving moral disputes. What is more, his approach would not
eliminate, but multiply, the hard questions courts must confront,
since he would not replace history with moral philosophy,
but would have courts consider both .

															   And the Court’s approach intrudes less upon
the democratic process because the rights it acknowledges are those
established by a constitutional history formed by democratic
decisions; and the rights it fails to acknowledge are left to be
democratically adopted or rejected by the people, with the
assurance that their decision is not subject to judicial revision.
Justice Stevens’ approach, on the other hand, deprives the people
of that power, since whatever the Constitution and laws may say,
the list of protected rights will be whatever courts wish it to be.
After all, he notes, the people have been wrong before, post , at 55, and courts may conclude they are wrong in the
future. Justice Stevens abhors a system in which “majorities or
powerful interest groups always get their way,” post , at
56, but replaces it with a system in which unelected and
life-tenured judges always get their way. That such usurpation is
effected unabashedly, see post , at 53—with “the judge’s
cards … laid on the table,” ibid. —makes it even
worse. In a vibrant democracy, usurpation should have to be
accomplished in the dark. It is Justice Stevens’ approach, not the
Court’s, that puts democracy in peril. Footnote 1 I do not entirely understand Justice Stevens’
renaming of the Due Process Clause. What we call it, of course,
does not change what the Clause says, but shorthand should not
obscure what it says. Accepting for argument’s sake the shift in
emphasis—from avoiding certain deprivations without that “process”
which is “due,” to avoiding the deprivations themselves—the Clause
applies not just to deprivations of “liberty,” but also to
deprivations of “life” and even “property.” Footnote 2 Justice Stevens insists that he would not
make courts the sole interpreters of the “liberty clause”;
he graciously invites “[a]ll Americans” to ponder what the Clause
means to them today. Post , at 20, n. 22. The problem is
that in his approach the people’s ponderings do not matter, since
whatever the people decide, courts have the last word. Footnote 3 Justice Breyer is not worried by that
prospect. His interpretive approach applied to incorporation of the
Second Amendment includes consideration of such factors as “the
extent to which incorporation will further other, perhaps more
basic, constitutional aims; and the extent to which incorporation
will advance or hinder the Constitution’s structural aims”; whether
recognizing a particular right will “further the Constitution’s
effort to ensure that the government treats each individual with
equal respect” or will “help maintain the democratic form of
government”; whether it is “inconsistent … with the Constitution’s
efforts to create governmental institutions well suited to the
carrying out of its constitutional promises”; whether it fits with
“the Framers’ basic reason for believing the Court ought to have
the power of judicial review”; courts’ comparative advantage in
answering empirical questions that may be involved in applying the
right; and whether there is a “strong offsetting justification” for
removing a decision from the democratic process. Post , at
7, 11–17 (dissenting opinion). Footnote 4 After defending the careful-description
criterion, Justice Stevens quickly retreats and cautions courts not
to apply it too stringently. Post , at 26. Describing a
right too specifically risks robbing it of its “universal
valence and a moral force it might otherwise have,” ibid. ,
and “loads the dice against its recognition,” post , at 26,
n. 25 (internal quotation marks omitted). That must be
avoided, since it endangers rights Justice Stevens does like. See ibid. (discussing Lawrence v. Texas , 539 U. S. 558 (2003)). To make sure those rights get in, we must leave leeway in our
description, so that a right that has not itself been recognized as
fundamental can ride the coattails of one that has been. Footnote 5 Justice Stevens claims that I mischaracterize
his argument by referring to the Second Amendment right to keep and
bear arms, instead of “the interest in keeping a firearm of one’s
choosing in the home,” the right he says petitioners assert. Post , at 38, n. 36. But it is precisely the “Second
Amendment right to keep and bear arms” that petitioners argue is
incorporated by the Due Process Clause. See, e.g. , Pet.
for Cert. i. Under Justice Stevens’ own approach, that should end
the matter. See post , at 26 (“[W]e must pay close
attention to the precise liberty interest the litigants have asked
us to vindicate”). In any event, the demise of watered-down
incorporation, see ante , at 17–19, means that we no longer
subdivide Bill of Rights guarantees into their theoretical
components, only some of which apply to the States. The First
Amendment freedom of speech is incorporated—not the freedom to
speak on Fridays, or to speak about philosophy. Footnote 6 Justice Stevens goes a step farther
still, suggesting that the right to keep and bear arms is not
protected by the “liberty clause” because it is not really a
liberty at all, but a “property right.” Post , at 38. Never
mind that the right to bear arms sounds mighty like a liberty; and
never mind that the “liberty clause” is really a Due Process Clause
which explicitly protects “property,” see United States v. Carlton , 512
U. S. 26 , 41–42 (1994) (Scalia, J., concurring in judgment).
Justice Stevens’ theory cannot explain why the Takings Clause,
which unquestionably protects property, has been incorporated, see Chicago, B. & Q. R. Co. v. Chicago , 166 U. S. 226 , 241
(1897), in a decision he appears to accept, post , at 14,
n. 14. Footnote 7 As Justice Stevens notes, see post ,
at 51–52, I accept as a matter of stare decisis the
requirement that to be fundamental for purposes of the Due Process
Clause, a right must be “implicit in the concept of ordered
liberty,” Lawrence , supra , at 593, n. 3
(Scalia, J., dissenting) (internal quotation marks omitted). But
that inquiry provides infinitely less scope for judicial invention
when conducted under the Court’s approach, since the field of
candidates is immensely narrowed by the prior requirement
that a right be rooted in this country’s traditions. Justice
Stevens, on the other hand, is free to scan the universe for rights
that he thinks “implicit in the concept, etc.” The point Justice
Stevens makes here is merely one example of his demand that an
historical approach to the Constitution prove itself, not merely
much better than his in restraining judicial invention, but utterly
perfect in doing so. See Part III, infra. Footnote 8 Justice Stevens also asserts that
his approach is “more faithful to this Nation’s constitutional
history” and to “the values and commitments of the American people,
as they stand today,” post , at 54. But what he asserts to
be the proof of this is that his approach aligns (no surprise) with
those cases he approves (and dubs “canonical,” ibid. ).
Cases he disfavors are discarded as “hardly bind[ing]” “excesses,” post , at 12, or less “enduring,” post , at 17,
n. 16. Not proven. Moreover, whatever relevance Justice
Stevens ascribes to current “values and commitments of the American
people” (and that is unclear, see post , at 48–49, n. 47),
it is hard to see how it shows fidelity to them that he disapproves
a different subset of old cases than the Court does. Footnote 9 That is not to say that every historical
question on which there is room for debate is indeterminate, or
that every question on which historians disagree is equally
balanced. Cf. post , at 52–53. For example, the historical
analysis of the principal dissent in Heller is as valid as
the Court’s only in a two-dimensional world that conflates length
and depth. Footnote 10 By the way, Justice Stevens greatly magnifies the
difficulty of an historical approach by suggesting that it was my burden in Lawrence to show the “ancient roots
of proscriptions against sodomy,” post , at 53 (internal
quotation marks omitted). Au contraire , it was his burden (in the opinion he joined) to show the ancient
roots of the right of sodomy. STEVENS, J., DISSENTING MCDONALD V. CHICAGO 561 U. S. ____ (2010) SUPREME COURT OF THE UNITED STATES NO. 08-1521 OTIS McDONALD, et al., PETITIONERS v. CITY OF CHICAGO, ILLINOIS, et al.

															on writ of certiorari to the united states court of
appeals for the seventh circuit

															[June 28, 2010]

															   Justice Stevens, dissenting.

															   In District of Columbia v. Heller , 554 U. S. ___, ___ (2008) (slip op., at 1), the
Court answered the question whether a federal enclave’s
“prohibition on the possession of usable handguns in the home
violates the Second Amendment to the Constitution.” The question we
should be answering in this case is whether the Constitution
“guarantees individuals a fundamental right,” enforceable against
the States, “to possess a functional, personal firearm, including a
handgun, within the home.” Complaint ¶34, App. 23. That is a
different—and more difficult—inquiry than asking if the Fourteenth
Amendment “incorporates” the Second Amendment. The so-called
incorporation question was squarely and, in my view, correctly
resolved in the late 19th century.[ Footnote 1 ]

															   Before the District Court, petitioners focused
their pleadings on the special considerations raised by domestic
possession, which they identified as the core of their asserted
right. In support of their claim that the city of Chicago’s handgun
ban violates the Constitution, they now rely primarily on the
Privileges or Immunities Clause of the Fourteenth Amendment. See
Brief for Petitioners 9–65. They rely secondarily on the Due
Process Clause of that Amendment. See id., at 66–72.
Neither submission requires the Court to express an opinion on
whether the Fourteenth Amendment places any limit on the power of
States to regulate possession, use, or carriage of firearms outside
the home.

															   I agree with the plurality’s refusal to accept
petitioners’ primary submission. Ante , at 10. Their briefs
marshal an impressive amount of historical evidence for their
argument that the Court interpreted the Privileges or Immunities
Clause too narrowly in the Slaughter-House Cases , 16 Wall.
36 (1873). But the original meaning of the Clause is not as clear
as they suggest[ Footnote 2 ]—and
not nearly as clear as it would need to be to dislodge 137 years of
precedent. The burden is severe for those who seek radical change
in such an established body of constitutional doctrine.[ Footnote 3 ] Moreover, the suggestion
that invigorating the Privileges or Immunities Clause will reduce
judicial discretion, see Reply Brief for Petitioners 22, n. 8,
26; Tr. of Oral Arg. 64–65, strikes me as implausible, if not
exactly backwards. “For the very reason that it has so long
remained a clean slate, a revitalized Privileges or Immunities
Clause holds special hazards for judges who are mindful that their
proper task is not to write their personal views of appropriate
public policy into the Constitution.”[ Footnote 4 ]

															   I further agree with the plurality that there
are weighty arguments supporting petitioners’ second submission,
insofar as it concerns the possession of firearms for lawful
self-defense in the home. But these arguments are less compelling
than the plurality suggests; they are much less compelling when
applied outside the home; and their validity does not depend on the
Court’s holding in Heller . For that holding sheds no light
on the meaning of the Due Process Clause of the Fourteenth
Amendment. Our decisions construing that Clause to render various
procedural guarantees in the Bill of Rights enforceable against the
States likewise tell us little about the meaning of the word
“liberty” in the Clause or about the scope of its protection of
nonprocedural rights.

															   This is a substantive due process case.

															I

															   Section 1 of the Fourteenth
Amendment decrees that no State shall “deprive any person of life,
liberty, or property, without due process of law.” The Court has
filled thousands of pages expounding that spare text. As I read the
vast corpus of substantive due process opinions, they confirm
several important principles that ought to guide our resolution of
this case. The principal opinion’s lengthy summary of our
“incorporation” doctrine, see ante , at 5–9, 11–19
(majority opinion), 10–11 (plurality opinion), and its implicit
(and untenable) effort to wall off that doctrine from the rest of
our substantive due process jurisprudence, invite a fresh survey of
this old terrain. Substantive Content The first, and most basic, principle
established by our cases is that the rights protected by the Due
Process Clause are not merely procedural in nature. At first
glance, this proposition might seem surprising, given that the
Clause refers to “process.” But substance and procedure are often
deeply entwined. Upon closer inspection, the text can be read to
“impos[e] nothing less than an obligation to give substantive
content to the words ‘liberty’ and ‘due process of law,’ ” Washington v. Glucksberg , 521 U. S. 702 , 764 (1997) (Souter, J.,
concurring in judgment), lest superficially fair procedures be
permitted to “destroy the enjoyment” of life, liberty, and
property, Poe v. Ullman , 367 U. S. 497 , 541
(1961) (Harlan, J., dissenting), and the Clause’s prepositional
modifier be permitted to swallow its primary command. Procedural
guarantees are hollow unless linked to substantive interests; and
no amount of process can legitimize some deprivations.

															   I have yet to see a persuasive argument that
the Framers of the Fourteenth Amendment thought otherwise. To the
contrary, the historical evidence suggests that, at least by the
time of the Civil War if not much earlier, the phrase “due process
of law” had acquired substantive content as a term of art within
the legal community.[ Footnote
5 ] This understanding is consonant with the venerable “notion
that governmental authority has implied limits which preserve
private autonomy,”[ Footnote 6 ]
a notion which predates the founding and which finds reinforcement
in the Constitution’s Ninth Amendment, see Griswold v. Connecticut , 381 U. S. 479 , 486–493 (1965)
(Goldberg, J., concurring).[ Footnote 7 ] The Due Process Clause cannot claim to be the
source of our basic freedoms—no legal document ever could, see Meachum v. Fano , 427 U. S. 215 , 230
(1976) (Stevens, J., dissenting)—but it stands as one of their
foundational guarantors in our law.

															   If text and history are inconclusive on this
point, our precedent leaves no doubt: It has been “settled” for
well over a century that the Due Process Clause “applies to matters
of substantive law as well as to matters of procedure.” Whitney v. California , 274 U. S. 357 , 373
(1927) (Brandeis, J., concurring). Time and again, we have
recognized that in the Fourteenth Amendment as well as the Fifth,
the “Due Process Clause guarantees more than fair process, and the
‘liberty’ it protects includes more than the absence of physical
restraint.” Glucksberg , 521 U. S., at 719. “The Clause
also includes a substantive component that ‘provides heightened
protection against government interference with certain fundamental
rights and liberty interests.’ ” Troxel v. Granville , 530 U. S. 57 , 65 (2000)
(opinion of O’Connor, J., joined by Rehnquist, C. J., and
Ginsburg and Breyer, JJ.) (quoting Glucksberg , 521 U. S.,
at 720). Some of our most enduring precedents, accepted today by
virtually everyone, were substantive due process decisions. See, e.g., Loving v. Virginia , 388 U. S. 1 , 12 (1967) (recognizing
due-process- as well as equal-protection-based right to marry
person of another race); Bolling v. Sharpe , 347 U. S. 497 ,
499–500 (1954) (outlawing racial segregation in District of
Columbia public schools); Pierce v. Society of
Sisters , 268 U. S. 510 , 534–535 (1925)
(vindicating right of parents to direct upbringing and education of
their children); Meyer v. Nebraska , 262 U. S. 390 , 399–403 (1923)
(striking down prohibition on teaching of foreign languages). Liberty The second principle woven through our cases
is that substantive due process is fundamentally a matter of
personal liberty. For it is the liberty clause of the Fourteenth
Amendment that grounds our most important holdings in this field.
It is the liberty clause that enacts the Constitution’s “promise”
that a measure of dignity and self-rule will be afforded to all
persons. Planned Parenthood of Southeastern Pa. v. Casey , 505 U. S. 833 , 847 (1992). It is the
liberty clause that reflects and renews “the origins of the
American heritage of freedom [and] the abiding interest in
individual liberty that makes certain state intrusions on the
citizen’s right to decide how he will live his own life
intolerable.” Fitzgerald v. Porter Memorial
Hospital , 523 F. 2d 716, 720 (CA7 1975) (Stevens, J.).
Our substantive due process cases have episodically invoked values
such as privacy and equality as well, values that in certain
contexts may intersect with or complement a subject’s liberty
interests in profound ways. But as I have observed on numerous
occasions, “most of the significant [20th-century] cases raising
Bill of Rights issues have, in the final analysis, actually
interpreted the word ‘liberty’ in the Fourteenth
Amendment.”[ Footnote 8 ]

															   It follows that the term “incorporation,” like
the term “unenumerated rights,” is something of a misnomer. Whether
an asserted substantive due process interest is explicitly named in
one of the first eight Amendments to the Constitution or is not
mentioned, the underlying inquiry is the same: We must ask whether
the interest is “comprised within the term liberty.” Whitney , 274 U. S., at 373 (Brandeis, J., concurring). As
the second Justice Harlan has shown, ever since the Court began
considering the applicability of the Bill of Rights to the States,
“the Court’s usual approach has been to ground the prohibitions
against state action squarely on due process, without intermediate
reliance on any of the first eight Amendments.” Malloy v. Hogan , 378 U.
S. 1 , 24 (1964) (dissenting opinion); see also Frankfurter,
Memorandum on “Incorporation” of the Bill of Rights into the Due
Process Clause of the Fourteenth Amendment, 78 Harv. L. Rev.
746, 747–750 (1965). In the pathmarking case of Gitlow v. New York , 268 U. S. 652 , 666
(1925), for example, both the majority and dissent evaluated
petitioner’s free speech claim not under the First Amendment but as
an aspect of “the fundamental personal rights and ‘liberties’
protected by the due process clause of the Fourteenth Amendment
from impairment by the States.”[ Footnote 9 ]

															   In his own classic opinion in Griswold , 381 U. S., at 500 (concurring in judgment),
Justice Harlan memorably distilled these precedents’ lesson: “While the relevant inquiry may be aided by resort to
one or more of the provisions of the Bill of Rights, it is not
dependent on them or any of their radiations. The Due Process
Clause of the Fourteenth Amendment stands … on its own
bottom.”[ Footnote 10 ]
Inclusion in the Bill of Rights is neither necessary nor sufficient
for an interest to be judicially enforceable under the Fourteenth
Amendment. This Court’s “ ‘selective incorporation’ ”
doctrine, ante , at 15, is not simply “related” to
substantive due process, ante , at 19; it is a subset
thereof. Federal/State Divergence The third precept to emerge from
our case law flows from the second: The rights protected against
state infringement by the Fourteenth Amendment’s Due Process Clause
need not be identical in shape or scope to the rights protected
against Federal Government infringement by the various provisions
of the Bill of Rights. As drafted, the Bill of Rights directly
constrained only the Federal Government. See Barron ex rel.
Tiernan v. Mayor of Baltimore , 7 Pet. 243 (1833).
Although the enactment of the Fourteenth Amendment profoundly
altered our legal order, it “did not unstitch the basic federalist
pattern woven into our constitutional fabric.” Williams v. Florida , 399 U.
S. 78 , 133 (1970) (Harlan, J., concurring in result). Nor, for
that matter, did it expressly alter the Bill of Rights. The
Constitution still envisions a system of divided sovereignty, still
“establishes a federal republic where local differences are to be
cherished as elements of liberty” in the vast run of cases, National Rifle Assn. of Am. Inc. v. Chicago , 567
F. 3d 856, 860 (CA7 2009) (Easterbrook, C. J.), still
allocates a general “police power … to the States and the States
alone,” United States v. Comstock , 560 U. S. ___,
___ (2010) (slip op., at 4) (Kennedy, J., concurring in judgment).
Elementary considerations of constitutional text and structure
suggest there may be legitimate reasons to hold state governments
to different standards than the Federal Government in certain
areas.[ Footnote
11 ] It is true, as the Court
emphasizes, ante , at 15–19, that we have made numerous
provisions of the Bill of Rights fully applicable to the States. It
is settled, for instance, that the Governor of Alabama has no more
power than the President of the United States to authorize
unreasonable searches and seizures. Ker v. California , 374 U. S. 23 (1963). But
we have never accepted a “total incorporation” theory of the
Fourteenth Amendment, whereby the Amendment is deemed to subsume
the provisions of the Bill of Rights en masse. See ante ,
at 15. And we have declined to apply several provisions to the
States in any measure. See, e.g., Minneapolis &
St. Louis R. Co. v. Bombolis , 241 U. S. 211 (1916)
(Seventh Amendment); Hurtado v. California , 110 U. S. 516 (1884) (Grand Jury Clause). We have, moreover, resisted a uniform
approach to the Sixth Amendment’s criminal jury guarantee,
demanding 12-member panels and unanimous verdicts in federal
trials, yet not in state trials. See Apodaca v. Oregon , 406
U. S. 404 (1972) (plurality opinion); Williams , 399 U.
S. 78 . In recent years, the Court has repeatedly declined to
grant certiorari to review that disparity.[ Footnote 12 ] While those denials have no
precedential significance, they confirm the proposition that the
“incorporation” of a provision of the Bill of Rights into the
Fourteenth Amendment does not, in itself, mean the provision must
have precisely the same meaning in both contexts. It is true, as well, that during
the 1960’s the Court decided a number of cases involving procedural
rights in which it treated the Due Process Clause as if it
transplanted language from the Bill of Rights into the Fourteenth
Amendment. See, e.g., Benton v. Maryland , 395 U. S. 784 ,
795 (1969) (Double Jeopardy Clause); Pointer v. Texas , 380
U. S. 400 , 406 (1965) (Confrontation Clause). “Jot-for-jot”
incorporation was the norm in this expansionary era. Yet at least
one subsequent opinion suggests that these precedents require
perfect state/federal congruence only on matters “ ‘at the
core’ ” of the relevant constitutional guarantee. Crist v. Bretz , 437 U. S. 28 , 37 (1978);
see also id., at 52–53 (Powell, J., dissenting). In my
judgment, this line of cases is best understood as having concluded
that, to ensure a criminal trial satisfies essential standards of
fairness, some procedures should be the same in state and federal
courts: The need for certainty and uniformity is more pressing, and
the margin for error slimmer, when criminal justice is at issue.
That principle has little relevance to the question whether a non procedural rule set forth in the Bill of Rights
qualifies as an aspect of the liberty protected by the Fourteenth
Amendment. Notwithstanding some overheated
dicta in Malloy , 378 U. S., at 10–11, it is therefore an
overstatement to say that the Court has “abandoned,” ante ,
at 16, 17 (majority opinion), 39 (plurality opinion), a “two-track
approach to incorporation,” ante , at 37 (plurality
opinion). The Court moved away from that approach in the area of
criminal procedure. But the Second Amendment differs in fundamental
respects from its neighboring provisions in the Bill of Rights, as
I shall explain in Part V, infra; and if some 1960’s
opinions purported to establish a general method of incorporation,
that hardly binds us in this case. The Court has not hesitated to
cut back on perceived Warren Court excesses in more areas than I
can count. I do not mean to deny that there
can be significant practical, as well as esthetic, benefits from
treating rights symmetrically with regard to the State and Federal
Governments. Jot-for-jot incorporation of a provision may entail
greater protection of the right at issue and therefore greater
freedom for those who hold it; jot-for-jot incorporation may also
yield greater clarity about the contours of the legal rule. See Johnson v. Louisiana , 406 U. S. 356 , 384–388
(1972) (Douglas, J., dissenting); Pointer , 380 U. S., at
413–414 (Goldberg, J., concurring). In a federalist system such as
ours, however, this approach can carry substantial costs. When a
federal court insists that state and local authorities follow its
dictates on a matter not critical to personal liberty or procedural
justice, the latter may be prevented from engaging in the kind of
beneficent “experimentation in things social and economic” that
ultimately redounds to the benefit of all Americans. New State
Ice Co. v. Liebmann , 285 U. S. 262 , 311
(1932) (Brandeis, J., dissenting). The costs of federal courts’
imposing a uniform national standard may be especially high when
the relevant regulatory interests vary significantly across
localities, and when the ruling implicates the States’ core police
powers. Furthermore, there is a real risk
that, by demanding the provisions of the Bill of Rights apply
identically to the States, federal courts will cause those
provisions to “be watered down in the needless pursuit of
uniformity.” Duncan v. Louisiana , 391 U. S. 145 , 182,
n. 21 (1968) (Harlan, J., dissenting). When one legal standard
must prevail across dozens of jurisdictions with disparate needs
and customs, courts will often settle on a relaxed standard. This
watering-down risk is particularly acute when we move beyond the
narrow realm of criminal procedure and into the relatively vast
domain of substantive rights. So long as the requirements of
fundamental fairness are always and everywhere respected, it is not
clear that greater liberty results from the jot-for-jot application
of a provision of the Bill of Rights to the States. Indeed, it is
far from clear that proponents of an individual right to keep and
bear arms ought to celebrate today’s decision.[ Footnote 13 ] II So far, I have
explained that substantive due process analysis generally requires
us to consider the term “liberty” in the Fourteenth Amendment, and
that this inquiry may be informed by but does not depend upon the
content of the Bill of Rights. How should a court go about the
analysis, then? Our precedents have established, not an exact
methodology, but rather a framework for decisionmaking. In this
respect, too, the Court’s narrative fails to capture the continuity
and flexibility in our doctrine. The basic inquiry was
described by Justice Cardozo more than 70 years ago. When
confronted with a substantive due process claim, we must ask
whether the allegedly unlawful practice violates values “implicit
in the concept of ordered liberty.” Palko v. Connecticut , 302 U. S. 319 , 325 (1937).[ Footnote 14 ] If the practice in
question lacks any “oppressive and arbitrary” character, if
judicial enforcement of the asserted right would not materially
contribute to “a fair and enlightened system of justice,” then the
claim is unsuitable for substantive due process protection. Id., at 327, 325. Implicit in Justice Cardozo’s test is a
recognition that the postulates of liberty have a universal
character. Liberty claims that are inseparable from the customs
that prevail in a certain region, the idiosyncratic expectations of
a certain group, or the personal preferences of their champions,
may be valid claims in some sense; but they are not of
constitutional stature. Whether conceptualized as a “rational
continuum” of legal precepts, Poe , 367 U. S., at 543
(Harlan, J., dissenting), or a seamless web of moral commitments,
the rights embraced by the liberty clause transcend the local and
the particular. Justice Cardozo’s test undeniably
requires judges to apply their own reasoned judgment, but that does
not mean it involves an exercise in abstract philosophy. In
addition to other constraints I will soon discuss, see Part III, infra , historical and empirical data of various kinds
ground the analysis. Textual commitments laid down elsewhere in the
Constitution, judicial precedents, English common law, legislative
and social facts, scientific and professional developments,
practices of other civilized societies,[ Footnote 15 ] and, above all else, the
“ ‘traditions and conscience of our people,’ ” Palko , 302 U. S., at 325 (quoting Snyder v. Massachusetts , 291 U. S. 97 , 105
(1934)), are critical variables. They can provide evidence about
which rights really are vital to ordered liberty, as well as a spur
to judicial action. The Court errs both in its
interpretation of Palko and in its suggestion that later
cases rendered Palko ’s methodology defunct. Echoing Duncan , the Court advises that Justice Cardozo’s test will
not be satisfied “ ‘if a civilized system could be imagined
that would not accord the particular protection.’ ” Ante , at 12 (quoting 391 U. S., at 149, n. 14). Palko does contain some language that could be read to set
an inordinate bar to substantive due process recognition, reserving
it for practices without which “neither liberty nor justice would
exist.” 302 U. S., at 326. But in view of Justice Cardozo’s broader
analysis, as well as the numerous cases that have upheld liberty
claims under the Palko standard, such readings are plainly
overreadings. We have never applied Palko in such a
draconian manner. Nor, as the Court intimates, see ante , at 16, did Duncan mark an irreparable break
from Palko , swapping out liberty for history. Duncan limited its discussion to “particular procedural
safeguard[s]” in the Bill of Rights relating to “criminal
processes,” 391 U. S., at 149, n. 14; it did not purport to
set a standard for other types of liberty interests. Even with
regard to procedural safeguards, Duncan did not jettison
the Palko test so much as refine it: The judge is still
tasked with evaluating whether a practice “is fundamental … to
ordered liberty,” within the context of the “Anglo-American”
system. Duncan , 391 U. S., at 149–150, n. 14. Several
of our most important recent decisions confirm the proposition that
substantive due process analysis—from which, once again,
“incorporation” analysis derives—must not be wholly backward
looking. See, e.g., Lawrence v. Texas , 539
U. S. 558 , 572 (2003) (“[H]istory and tradition are the
starting point but not in all cases the ending point of the
substantive due process inquiry” (internal quotation marks
omitted)); Michael H. v. Gerald D. , 491 U. S. 110 , 127–128, n. 6
(1989) (garnering only two votes for history-driven methodology
that “consult[s] the most specific tradition available”); see also post , at 6–7 (Breyer, J., dissenting) (explaining that
post- Duncan “incorporation” cases continued to rely on
more than history).[ Footnote
16 ] The Court’s flight from Palko leaves its analysis, careful and scholarly though it
is, much too narrow to provide a satisfying answer to this case.
The Court hinges its entire decision on one mode of intellectual
history, culling selected pronouncements and enactments from the
18th and 19th centuries to ascertain what Americans thought about
firearms. Relying on Duncan and Glucksberg , the
plurality suggests that only interests that have proved
“fundamental from an American perspective,” ante , at 37,
44, or “ ‘deeply rooted in this Nation’s history and
tradition,’ ” ante , at 19 (quoting Glucksberg , 521 U. S., at 721), to the Court’s
satisfaction, may qualify for incorporation into the Fourteenth
Amendment. To the extent the Court’s opinion could be read to imply
that the historical pedigree of a right is the exclusive or
dispositive determinant of its status under the Due Process Clause,
the opinion is seriously mistaken. A rigid historical test is
inappropriate in this case, most basically, because our substantive
due process doctrine has never evaluated substantive rights in
purely, or even predominantly, historical terms. When the Court
applied many of the procedural guarantees in the Bill of
Rights to the States in the 1960’s, it often asked whether the
guarantee in question was “fundamental in the context of the
criminal processes maintained by the American States.”[ Footnote 17 ] Duncan , 391 U.
S., at 150, n. 14. That inquiry could extend back through
time, but it was focused not so much on historical conceptions of
the guarantee as on its functional significance within the States’
regimes. This contextualized approach made sense, as the choice to
employ any given trial-type procedure means little in the abstract.
It is only by inquiring into how that procedure intermeshes with
other procedures and practices in a criminal justice system that
its relationship to “liberty” and “due process” can be
determined. Yet when the Court has used the
Due Process Clause to recognize rights distinct from the trial
context—rights relating to the primary conduct of free
individuals—Justice Cardozo’s test has been our guide. The right to
free speech, for instance, has been safeguarded from state
infringement not because the States have always honored it, but
because it is “essential to free government” and “to the
maintenance of democratic institutions”—that is, because the right
to free speech is implicit in the concept of ordered liberty. Thornhill v. Alabama , 310 U. S. 88 , 95, 96 (1940); see also, e.g., Loving , 388 U. S., at 12 (discussing right to marry
person of another race); Mapp v. Ohio , 367 U. S. 643 , 650, 655–657 (1961)
(discussing right to be free from arbitrary intrusion by police); Schneider v. State (Town of Irvington) , 308 U. S. 147 , 161
(1939) (discussing right to distribute printed matter).[ Footnote 18 ] While the verbal
formula has varied, the Court has largely been consistent in its
liberty-based approach to substantive interests outside of the
adjudicatory system. As the question before us indisputably
concerns such an interest, the answer cannot be found in a granular
inspection of state constitutions or congressional
debates. More fundamentally, a rigid
historical methodology is unfaithful to the Constitution’s command.
For if it were really the case that the Fourteenth Amendment’s
guarantee of liberty embraces only those rights “so rooted in our
history, tradition, and practice as to require special protection,” Glucksberg , 521 U. S., at 721, n. 17, then the
guarantee would serve little function, save to ratify those rights
that state actors have already been according the most
extensive protection.[ Footnote
19 ] Cf. Duncan , 391 U. S., at 183 (Harlan, J.,
dissenting) (critiquing “circular[ity]” of historicized test for
incorporation). That approach is unfaithful to the expansive
principle Americans laid down when they ratified the Fourteenth
Amendment and to the level of generality they chose when they
crafted its language; it promises an objectivity it cannot deliver
and masks the value judgments that pervade any analysis of what
customs, defined in what manner, are sufficiently
“ ‘rooted’ ”; it countenances the most revolting
injustices in the name of continuity,[ Footnote 20 ] for we must never forget that not only
slavery but also the subjugation of women and other rank forms of
discrimination are part of our history; and it effaces this Court’s
distinctive role in saying what the law is, leaving the development
and safekeeping of liberty to majoritarian political processes. It
is judicial abdication in the guise of judicial modesty. No, the liberty safeguarded by the
Fourteenth Amendment is not merely preservative in nature but
rather is a “dynamic concept.” Stevens, The Bill of Rights: A
Century of Progress, 59 U. Chi. L. Rev. 13, 38 (1972). Its
dynamism provides a central means through which the Framers enabled
the Constitution to “endure for ages to come,” McCulloch v. Maryland , 4 Wheat. 316, 415 (1819), a central example
of how they “wisely spoke in general language and left to
succeeding generations the task of applying that language to the
unceasingly changing environment in which they would live,”
Rehnquist, The Notion of a Living Constitution, 54 Tex.
L. Rev. 693, 694 (1976). “The task of giving concrete meaning
to the term ‘liberty,’ ” I have elsewhere explained at some
length, “was a part of the work assigned to future generations.”
Stevens, The Third Branch of Liberty, 41 U. Miami L. Rev. 277,
291 (1986).[ Footnote 21 ] The
judge who would outsource the interpretation of “liberty” to
historical sentiment has turned his back on a task the Constitution
assigned to him and drained the document of its intended
vitality.[ Footnote
22 ] III At this point a
difficult question arises. In considering such a majestic term as
“liberty” and applying it to present circumstances, how are we to
do justice to its urgent call and its open texture—and to the grant
of interpretive discretion the latter embodies—without injecting
excessive subjectivity or unduly restricting the States’ “broad
latitude in experimenting with possible solutions to problems of
vital local concern,” Whalen v. Roe , 429 U. S. 589 , 597
(1977)? One part of the answer, already discussed, is that we must
ground the analysis in historical experience and reasoned judgment,
and never on “merely personal and private notions.” Rochin v. California , 342 U. S. 165 , 170
(1952). Our precedents place a number of additional constraints on
the decisional process. Although “guideposts for responsible
decisionmaking in this unchartered area are scarce and open-ended,” Collins v. Harker Heights , 503 U. S. 115 , 125
(1992), significant guideposts do exist.[ Footnote 23 ] The most basic is
that we have eschewed attempts to provide any all-purpose,
top-down, totalizing theory of “liberty.”[ Footnote 24 ] That project is bound to end in failure
or worse. The Framers did not express a clear understanding of the
term to guide us, and the now-repudiated Lochner line of
cases attests to the dangers of judicial overconfidence in using
substantive due process to advance a broad theory of the right or
the good. See, e.g., Lochner v. New
York , 198 U. S.
45 (1905). In its most durable precedents, the Court “has not
attempted to define with exactness the liberty … guaranteed” by the
Fourteenth Amendment. Meyer , 262 U. S., at 399; see also, e.g., Bolling , 347 U. S. at 499. By its very
nature, the meaning of liberty cannot be “reduced to any formula;
its content cannot be determined by reference to any code.” Poe , 367 U. S., at 542 (Harlan, J.,
dissenting). Yet while “the ‘liberty’ specially
protected by the Fourteenth Amendment” is “perhaps not capable of
being fully clarified,” Glucksberg , 521 U. S., at 722, it
is capable of being refined and delimited. We have insisted that
only certain types of especially significant personal interests may
qualify for especially heightened protection. Ever since “the
deviant economic due process cases [were] repudiated,” id., at 761 (Souter, J., concurring in judgment), our
doctrine has steered away from “laws that touch economic problems,
business affairs, or social conditions,” Griswold , 381 U.
S., at 482, and has instead centered on “matters relating to
marriage, procreation, contraception, family relationships, and
child rearing and education,” Paul v. Davis , 424 U. S. 693 ,
713 (1976). These categories are not exclusive. Government action
that shocks the conscience, pointlessly infringes settled
expectations, trespasses into sensitive private realms or life
choices without adequate justification, perpetrates gross
injustice, or simply lacks a rational basis will always be
vulnerable to judicial invalidation. Nor does the fact that an
asserted right falls within one of these categories end the
inquiry. More fundamental rights may receive more robust judicial
protection, but the strength of the individual’s liberty interests
and the State’s regulatory interests must always be assessed and
compared. No right is absolute. Rather than seek a categorical
understanding of the liberty clause, our precedents have thus
elucidated a conceptual core. The clause safeguards, most
basically, “the ability independently to define one’s identity,” Roberts v. United States Jaycees , 468 U. S. 609 , 619
(1984), “the individual’s right to make certain unusually important
decisions that will affect his own, or his family’s, destiny,” Fitzgerald , 523 F. 2d, at 719, and the right to be
respected as a human being. Self-determination, bodily integrity,
freedom of conscience, intimate relationships, political equality,
dignity and respect—these are the central values we have found
implicit in the concept of ordered liberty. Another key constraint on
substantive due process analysis is respect for the democratic
process. If a particular liberty interest is already being given
careful consideration in, and subjected to ongoing calibration by,
the States, judicial enforcement may not be appropriate. When the
Court declined to establish a general right to physician-assisted
suicide, for example, it did so in part because “the States [were]
currently engaged in serious, thoughtful examinations of
physician-assisted suicide and other similar issues,” rendering
judicial intervention both less necessary and potentially more
disruptive. Glucksberg , 521 U. S., at 719, 735.
Conversely, we have long appreciated that more “searching” judicial
review may be justified when the rights of “discrete and insular
minorities”—groups that may face systematic barriers in the
political system—are at stake. United States v. Carolene Products Co. , 304 U. S. 144 , 153,
n. 4 (1938). Courts have a “comparative … advantage” over the
elected branches on a limited, but significant, range of legal
matters. Post , at 8. Recognizing a new liberty right is
a momentous step. It takes that right, to a considerable extent,
“outside the arena of public debate and legislative action.” Glucksberg , 521 U. S., at 720. Sometimes that momentous
step must be taken; some fundamental aspects of personhood,
dignity, and the like do not vary from State to State, and demand a
baseline level of protection. But sensitivity to the interaction
between the intrinsic aspects of liberty and the practical
realities of contemporary society provides an important tool for
guiding judicial discretion. This sensitivity is an aspect of a
deeper principle: the need to approach our work with humility and
caution. Because the relevant constitutional language is so
“spacious,” Duncan , 391 U. S., at 148, I have emphasized
that “[t]he doctrine of judicial self-restraint requires us to
exercise the utmost care whenever we are asked to break new ground
in this field.” Collins , 503 U. S., at 125. Many of my
colleagues and predecessors have stressed the same point, some with
great eloquence. See, e.g., Casey , 505 U. S., at
849; Moore v. East Cleveland , 431 U. S. 494 , 502–503 (1977)
(plurality opinion); Poe , 367 U. S., at 542–545 (Harlan,
J., dissenting); Adamson v. California , 332 U. S. 46 , 68 (1947) (Frankfurter,
J., concurring). Historical study may discipline as well as enrich
the analysis. But the inescapable reality is that no serious theory
of Section 1 of the Fourteenth Amendment yields clear answers in
every case, and “[n]o formula could serve as a substitute, in this
area, for judgment and restraint.” Poe , 367 U. S., at 542
(Harlan, J., dissenting). Several rules of the judicial
process help enforce such restraint. In the substantive due process
field as in others, the Court has applied both the doctrine of stare decisis —adhering to precedents, respecting reliance
interests, prizing stability and order in the law—and the
common-law method—taking cases and controversies as they present
themselves, proceeding slowly and incrementally, building on what
came before. This restrained methodology was evident even in the
heyday of “incorporation” during the 1960’s. Although it would have
been much easier for the Court simply to declare certain Amendments
in the Bill of Rights applicable to the States in toto ,
the Court took care to parse each Amendment into its component
guarantees, evaluating them one by one. This piecemeal approach
allowed the Court to scrutinize more closely the right at issue in
any given dispute, reducing both the risk and the cost of
error. Relatedly, rather than evaluate
liberty claims on an abstract plane, the Court has “required in
substantive-due-process cases a ‘careful description’ of the
asserted fundamental liberty interest.” Glucksberg , 521 U.
S., at 721 (quoting Reno v. Flores , 507 U. S. 292 , 302
(1993); Collins , 503 U. S., at 125; Cruzan v. Director, Mo. Dept. of Health , 497 U. S. 261 , 277–278
(1990)). And just as we have required such careful description from
the litigants, we have required of ourselves that we “focus on the
allegations in the complaint to determine how petitioner describes
the constitutional right at stake.” Collins , 503 U. S., at
125; see also Stevens, Judicial Restraint, 22 San Diego
L. Rev. 437, 446–448 (1985). This does not mean that we must
define the asserted right at the most specific level, thereby
sapping it of a universal valence and a moral force it might
otherwise have.[ Footnote 25 ]
It means, simply, that we must pay close attention to the precise
liberty interest the litigants have asked us to
vindicate. Our holdings should be similarly
tailored. Even if the most expansive formulation of a claim does
not qualify for substantive due process recognition, particular
components of the claim might. Just because there may not be a
categorical right to physician-assisted suicide, for example, does
not “ ‘foreclose the possibility that an individual plaintiff
seeking to hasten her death, or a doctor whose assistance was
sought, could prevail in a more particularized challenge.’ ” Glucksberg , 521 U. S., at 735, n. 24 (quoting id., at 750 (Stevens, J., concurring in judgments)); see
also Vacco v. Quill , 521 U. S. 793 , 809,
n. 13 (1997) (leaving open “ ‘the possibility that some
applications of the [New York prohibition on assisted suicide] may
impose an intolerable intrusion on the patient’s freedom’ ”).
Even if a State’s interest in regulating a certain matter must be
permitted, in the general course, to trump the individual’s
countervailing liberty interest, there may still be situations in
which the latter “is entitled to constitutional protection.” Glucksberg , 521 U. S., at 742 (Stevens, J., concurring in
judgments). As this discussion reflects, to
acknowledge that the task of construing the liberty clause requires
judgment is not to say that it is a license for unbridled judicial
lawmaking. To the contrary, only an honest reckoning with our
discretion allows for honest argumentation and meaningful
accountability. IV The question in this
case, then, is not whether the Second Amendment right to keep and
bear arms (whatever that right’s precise contours) applies to the
States because the Amendment has been incorporated into the
Fourteenth Amendment. It has not been. The question, rather, is
whether the particular right asserted by petitioners applies to the
States because of the Fourteenth Amendment itself, standing on its
own bottom. And to answer that question, we need to determine,
first, the nature of the right that has been asserted and, second,
whether that right is an aspect of Fourteenth Amendment “liberty.”
Even accepting the Court’s holding in Heller , it remains
entirely possible that the right to keep and bear arms identified
in that opinion is not judicially enforceable against the States,
or that only part of the right is so enforceable.[ Footnote 26 ] It is likewise possible for
the Court to find in this case that some part of the Heller right applies to the States, and then to find in
later cases that other parts of the right also apply, or apply on
different terms. As noted at the
outset, the liberty interest petitioners have asserted is the
“right to possess a functional, personal firearm, including a
handgun, within the home.” Complaint ¶34, App. 23. The city of
Chicago allows residents to keep functional firearms, so long as
they are registered, but it generally prohibits the possession of
handguns, sawed-off shotguns, machine guns, and short-barreled
rifles. See Chicago, Ill., Municipal Code §8–20–050
(2009).[ Footnote 27 ]
Petitioners’ complaint centered on their desire to keep a handgun
at their domicile—it references the “home” in nearly every
paragraph, see Complaint ¶¶3–4, 11–30, 32, 34, 37, 42, 44, 46, App.
17, 19–26—as did their supporting declarations, see, e.g., App. 34, 36, 40, 43, 49–52, 54–56. Petitioners now frame the
question that confronts us as “[w]hether 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.” Brief for Petitioners, p. i. But it is our duty “to
focus on the allegations in the complaint to determine how
petitioner describes the constitutional right at stake,” Collins , 503 U. S., at 125, and the gravamen of this
complaint is plainly an appeal to keep a handgun or other firearm
of one’s choosing in the home. Petitioners’ framing of their
complaint tracks the Court’s ruling in Heller . The
majority opinion contained some dicta suggesting the possibility of
a more expansive arms-bearing right, one that would travel with the
individual to an extent into public places, as “in case of
confrontation.” 554 U. S., at ___ (slip op., at 19). But the Heller plaintiff sought only dispensation to keep an
operable firearm in his home for lawful self-defense, see id., at ___ (slip op., at 2, and n. 2), and the
Court’s opinion was bookended by reminders that its holding was
limited to that one issue, id., at ___, ___ (slip op., at
1, 64); accord, ante , at 44 (plurality opinion). The
distinction between the liberty right these petitioners have
asserted and the Second Amendment right identified in Heller is therefore evanescent. Both are rooted to the
home. Moreover, even if both rights have the logical potential to
extend further, upon “future evaluation,” Heller , 554 U.
S., at ___ (slip op., at 63), it is incumbent upon us, as federal
judges contemplating a novel rule that would bind all 50 States, to
proceed cautiously and to decide only what must be
decided. Understood as a plea to keep their
preferred type of firearm in the home, petitioners’ argument has
real force.[ Footnote 28 ] The
decision to keep a loaded handgun in the house is often motivated
by the desire to protect life, liberty, and property. It is
comparable, in some ways, to decisions about the education and
upbringing of one’s children. For it is the kind of decision that
may have profound consequences for every member of the family, and
for the world beyond. In considering whether to keep a handgun,
heads of households must ask themselves whether the desired safety
benefits outweigh the risks of deliberate or accidental misuse that
may result in death or serious injury, not only to residents of the
home but to others as well. Millions of Americans have answered
this question in the affirmative, not infrequently because they
believe they have an inalienable right to do so—because they
consider it an aspect of “the supreme human dignity of being master
of one’s fate rather than a ward of the State,” Indiana v. Edwards , 554 U. S. 164 , 186
(2008) (Scalia, J., dissenting). Many such decisions have been
based, in part, on family traditions and deeply held beliefs that
are an aspect of individual autonomy the government may not
control.[ Footnote
29 ] Bolstering petitioners’ claim, our
law has long recognized that the home provides a kind of special
sanctuary in modern life. See, e.g., U. S. Const., Amdts.
3, 4; Lawrence , 539 U. S., at 562, 567; Payton v. New York , 445 U. S. 573 , 585–590
(1980); Stanley v. Georgia , 394 U. S. 557 , 565–568
(1969); Griswold , 381 U. S., at 484–485. Consequently, we
have long accorded special deference to the privacy of the home,
whether a humble cottage or a magnificent manse. This veneration of
the domestic harkens back to the common law. William Blackstone
recognized a “right of habitation,” 4 Commentaries *223, and opined
that “every man’s house is looked upon by the law to be his castle
of defence and asylum,” 3 id., at *288. Heller carried forward this legacy, observing that “the need for defense
of self, family, and property is most acute” in one’s abode, and
celebrating “the right of law-abiding, responsible citizens to use
arms in defense of hearth and home.” 554 U. S., at ___, ___ (slip
op., at 56, 63). While the individual’s interest in
firearm possession is thus heightened in the home, the State’s
corresponding interest in regulation is somewhat weaker. The State
generally has a lesser basis for regulating private as compared to
public acts, and firearms kept inside the home generally pose a
lesser threat to public welfare as compared to firearms taken
outside. The historical case for regulation is likewise stronger
outside the home, as many States have for many years imposed
stricter, and less controversial, restrictions on the carriage of
arms than on their domestic possession. See, e.g., id., at ___ (slip op., at 54) (noting that “the majority
of the 19th-century courts to consider the question held that
prohibitions on carrying concealed weapons were lawful under the
Second Amendment or state analogues”); English v. State , 35 Tex. 473, 478–479 (1871) (observing that
“almost, if not every one of the States of this Union have [a
prohibition on the carrying of deadly weapons] upon their statute
books,” and lambasting claims of a right to carry such weapons as
“little short of ridiculous”); Miller, Guns as Smut: Defending the
Home-Bound Second Amendment, 109 Colum. L. Rev. 1278,
1321–1336 (2009). It is significant, as well, that a
rule limiting the federal constitutional right to keep and bear
arms to the home would be less intrusive on state prerogatives and
easier to administer. Having unleashed in Heller a tsunami
of legal uncertainty, and thus litigation,[ Footnote 30 ] and now on the cusp of imposing a
national rule on the States in this area for the first time in
United States history, the Court could at least moderate the
confusion, upheaval, and burden on the States by adopting a rule
that is clearly and tightly bounded in scope. In their briefs to this Court,
several amici have sought to bolster petitioners’ claim
still further by invoking a right to individual
self-defense.[ Footnote 31 ]
As petitioners note, the Heller majority discussed this
subject extensively and remarked that “[t]he inherent right of
self-defense has been central to the Second Amendment right.” 554
U. S., at ___ (slip op., at 56). And it is true that if a State
were to try to deprive its residents of any reasonable means of
defending themselves from imminent physical threats, or to deny
persons any ability to assert self-defense in response to criminal
prosecution, that might pose a significant constitutional problem.
The argument that there is a substantive due process right to be
spared such untenable dilemmas is a serious one.[ Footnote 32 ] But that is not the case before
us. Petitioners have not asked that we establish a constitutional
right to individual self-defense; neither their pleadings in the
District Court nor their filings in this Court make any such
request. Nor do petitioners contend that the city of Chicago—which,
recall, allows its residents to keep most rifles and shotguns, and
to keep them loaded—has unduly burdened any such right. What
petitioners have asked is that we “incorporate” the Second
Amendment and thereby establish a constitutional entitlement,
enforceable against the States, to keep a handgun in the
home. Of course, owning a handgun may be
useful for practicing self-defense. But the right to take a certain
type of action is analytically distinct from the right to acquire
and utilize specific instrumentalities in furtherance of that
action. And while some might favor handguns, it is not clear that
they are a superior weapon for lawful self-defense, and nothing in
petitioners’ argument turns on that being the case. The notion that
a right of self-defense implies an auxiliary right to own
a certain type of firearm presupposes not only controversial
judgments about the strength and scope of the (posited)
self-defense right, but also controversial assumptions about the
likely effects of making that type of firearm more broadly
available. It is a very long way from the proposition that the
Fourteenth Amendment protects a basic individual right of
self-defense to the conclusion that a city may not ban
handguns.[ Footnote
33 ] In short, while the utility of
firearms, and handguns in particular, to the defense of hearth and
home is certainly relevant to an assessment of petitioners’
asserted right, there is no freestanding self-defense claim in this
case. The question we must decide is whether the interest in
keeping in the home a firearm of one’s choosing—a handgun, for
petitioners—is one that is “comprised within the term liberty” in
the Fourteenth Amendment. Whitney , 274 U. S., at 373
(Brandeis, J., concurring). V While I agree with
the Court that our substantive due process cases offer a principled
basis for holding that petitioners have a constitutional right to
possess a usable fiream in the home, I am ultimately persuaded that
a better reading of our case law supports the city of Chicago. I
would not foreclose the possibility that a particular
plaintiff—say, an elderly widow who lives in a dangerous
neighborhood and does not have the strength to operate a long
gun—may have a cognizable liberty interest in possessing a handgun.
But I cannot accept petitioners’ broader submission. A number of
factors, taken together, lead me to this conclusion. First, firearms have
a fundamentally ambivalent relationship to liberty. Just as they
can help homeowners defend their families and property from
intruders, they can help thugs and insurrectionists murder innocent
victims. The threat that firearms will be misused is far from
hypothetical, for gun crime has devastated many of our communities. Amici calculate that approximately one million Americans
have been wounded or killed by gunfire in the last decade.[ Footnote 34 ] Urban areas such as
Chicago suffer disproportionately from this epidemic of violence.
Handguns contribute disproportionately to it. Just as some
homeowners may prefer handguns because of their small size, light
weight, and ease of operation, some criminals will value them for
the same reasons. See Heller , 554 U. S., at ___ (Breyer,
J., dissenting) (slip op., at 32–33). In recent years, handguns
were reportedly used in more than four-fifths of firearm murders
and more than half of all murders nationwide.[ Footnote 35 ] Hence, in evaluating an asserted
right to be free from particular gun-control regulations, liberty
is on both sides of the equation. Guns may be useful for
self-defense, as well as for hunting and sport, but they also have
a unique potential to facilitate death and destruction and thereby
to destabilize ordered liberty. Your interest in keeping
and bearing a certain firearm may diminish my interest in
being and feeling safe from armed violence. And while granting you
the right to own a handgun might make you safer on any given
day—assuming the handgun’s marginal contribution to self-defense
outweighs its marginal contribution to the risk of accident,
suicide, and criminal mischief—it may make you and the community
you live in less safe overall, owing to the increased number of
handguns in circulation. It is at least reasonable for a
democratically elected legislature to take such concerns into
account in considering what sorts of regulations would best serve
the public welfare. The practical impact of various
gun-control measures may be highly controversial, but this basic
insight should not be. The idea that deadly weapons pose a
distinctive threat to the social order—and that reasonable
restrictions on their usage therefore impose an acceptable burden
on one’s personal liberty—is as old as the Republic. As The Chief
Justice observed just the other day, it is a foundational premise
of modern government that the State holds a monopoly on legitimate
violence: “A basic step in organizing a civilized society is to
take [the] sword out of private hands and turn it over to an
organized government, acting on behalf of all the people.” Robertson v. United States ex rel. Watson , ante , at ___ (slip op., at 11) (dissenting opinion). The
same holds true for the handgun. The power a man has in the state
of nature “of doing whatsoever he thought fit for the preservation
of himself and the rest of mankind, he gives up,” to a significant
extent, “to be regulated by laws made by the society.”
J. Locke, Second Treatise of Civil Government §129, p. 64
(J. Gough ed. 1947). Limiting the federal
constitutional right to keep and bear arms to the home complicates
the analysis but does not dislodge this conclusion. Even though the
Court has long afforded special solicitude for the privacy of the
home, we have never understood that principle to “infring[e] upon”
the authority of the States to proscribe certain inherently
dangerous items, for “[i]n such cases, compelling reasons may exist
for overriding the right of the individual to possess those
materials.” Stanley , 394 U. S., at 568, n. 11. And,
of course, guns that start out in the home may not stay in the
home. Even if the government has a weaker basis for restricting
domestic possession of firearms as compared to public carriage—and
even if a blanket, statewide prohibition on domestic possession
might therefore be unconstitutional—the line between the two is a
porous one. A state or local legislature may determine that a
prophylactic ban on an especially portable weapon is necessary to
police that line. Second, the right to possess a
firearm of one’s choosing is different in kind from the liberty
interests we have recognized under the Due Process Clause. Despite
the plethora of substantive due process cases that have been
decided in the post- Lochner century, I have found none
that holds, states, or even suggests that the term “liberty”
encompasses either the common-law right of self-defense or a right
to keep and bear arms. I do not doubt for a moment that many
Americans feel deeply passionate about firearms, and see them as
critical to their way of life as well as to their security.
Nevertheless, 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, and neither petitioners nor their amici make such a contention. Petitioners’ claim is not
the kind of substantive interest, accordingly, on which a uniform,
judicially enforced national standard is presumptively
appropriate.[ Footnote
36 ] Indeed, in some respects the
substantive right at issue may be better viewed as a property
right. Petitioners wish to acquire certain types of
firearms, or to keep certain firearms they have previously
acquired. Interests in the possession of chattels have
traditionally been viewed as property interests subject to
definition and regulation by the States. Cf. Stop the Beach
Renourishment, Inc. v. Florida Dept. of Environmental
Protection , 560 U. S. ___, ___ (2010) (slip op., at 1)
(opinion of Scalia, J.) (“Generally speaking, state law defines
property interests”). Under that tradition, Chicago’s ordinance is
unexceptional.[ Footnote
37 ] The liberty interest asserted by
petitioners is also dissimilar from those we have recognized in its
capacity to undermine the security of others. To be sure, some of
the Bill of Rights’ procedural guarantees may place “restrictions
on law enforcement” that have “controversial public safety
implications.” Ante , at 36 (plurality opinion); see also ante , at 9 (opinion of Scalia, J.). But those implications
are generally quite attenuated. A defendant’s invocation of his
right to remain silent, to confront a witness, or to exclude
certain evidence cannot directly cause any threat. The defendant’s
liberty interest is constrained by (and is itself a constraint on)
the adjudicatory process. The link between handgun ownership and
public safety is much tighter. The handgun is itself a tool for
crime; the handgun’s bullets are the violence. Similarly, it is undeniable that
some may take profound offense at a remark made by the soapbox
speaker, the practices of another religion, or a gay couple’s
choice to have intimate relations. But that offense is moral,
psychological, or theological in nature; the actions taken by the
rights-bearers do not actually threaten the physical safety of any
other person.[ Footnote 38 ]
Firearms may be used to kill another person. If a legislature’s
response to dangerous weapons ends up impinging upon the liberty of
any individuals in pursuit of the greater good, it invariably does
so on the basis of more than the majority’s “ ‘own moral
code,’ ” Lawrence , 539 U. S., at 571 (quoting Casey , 505 U. S., at 850). While specific policies may of
course be misguided, gun control is an area in which it “is quite
wrong … to assume that regulation and liberty occupy mutually
exclusive zones—that as one expands, the other must contract.”
Stevens, 41 U. Miami L. Rev., at 280. Third, the experience of other
advanced democracies, including those that share our British
heritage, undercuts the notion that an expansive right to keep and
bear arms is intrinsic to ordered liberty. Many of these countries
place restrictions on the possession, use, and carriage of firearms
far more onerous than the restrictions found in this Nation. See
Municipal Respondents’ Brief 21–23 (discussing laws of England,
Canada, Australia, Japan, Denmark, Finland, Luxembourg, and New
Zealand). That the United States is an international outlier in the
permissiveness of its approach to guns does not suggest that our
laws are bad laws. It does suggest that this Court may not need to
assume responsibility for making our laws still more
permissive. Admittedly, these other countries
differ from ours in many relevant respects, including their
problems with violent crime and the traditional role that firearms
have played in their societies. But they are not so different from
the United States that we ought to dismiss their experience
entirely. Cf. ante , at 34–35 (plurality opinion); ante , at 10–11 (opinion of Scalia, J.). The fact that our
oldest allies have almost uniformly found it appropriate to
regulate firearms extensively tends to weaken petitioners’
submission that the right to possess a gun of one’s choosing is
fundamental to a life of liberty. While the “American perspective”
must always be our focus, ante , at 37, 44 (plurality
opinion), it is silly—indeed, arrogant—to think we have nothing to
learn about liberty from the billions of people beyond our
borders. Fourth, the Second Amendment
differs in kind from the Amendments that surround it, with the
consequence that its inclusion in the Bill of Rights is not merely
unhelpful but positively harmful to petitioners’ claim. Generally,
the inclusion of a liberty interest in the Bill of Rights points
toward the conclusion that it is of fundamental significance and
ought to be enforceable against the States. But the Second
Amendment plays a peculiar role within the Bill, as announced by
its peculiar opening clause.[ Footnote 39 ] Even accepting the Heller Court’s
view that the Amendment protects an individual right to keep and
bear arms disconnected from militia service, it remains undeniable
that “the purpose for which the right was codified” was “to prevent
elimination of the militia.” Heller , 554 U. S., at ___
(slip op., at 26); see also United States v. Miller , 307
U. S. 174 , 178 (1939) (Second Amendment was enacted “[w]ith
obvious purpose to assure the continuation and render possible the
effectiveness of [militia] forces”). It was the States, not private
persons, on whose immediate behalf the Second Amendment was
adopted. Notwithstanding the Heller Court’s efforts to
write the Second Amendment’s preamble out of the Constitution, the
Amendment still serves the structural function of protecting the
States from encroachment by an overreaching Federal
Government. The Second Amendment, in other
words, “is a federalism provision,” Elk Grove Unified School
Dist. v. Newdow , 542 U. S. 1 , 45 (2004) (Thomas, J.,
concurring in judgment). It is directed at preserving the autonomy
of the sovereign States, and its logic therefore “resists”
incorporation by a federal court against the States. Ibid. No one suggests that the Tenth Amendment, which
provides that powers not given to the Federal Government remain
with “the States,” applies to the States; such a reading would
border on incoherent, given that the Tenth Amendment exists (in
significant part) to safeguard the vitality of state governance.
The Second Amendment is no different.[ Footnote 40 ] The Court is surely correct that
Americans’ conceptions of the Second Amendment right evolved over
time in a more individualistic direction; that Members of the
Reconstruction Congress were urgently concerned about the safety of
the newly freed slaves; and that some Members believed that,
following ratification of the Fourteenth Amendment, the Second
Amendment would apply to the States. But it is a giant leap from
these data points to the conclusion that the Fourteenth Amendment
“incorporated” the Second Amendment as a matter of original meaning
or postenactment interpretation. Consider, for example, that the
text of the Fourteenth Amendment says nothing about the Second
Amendment or firearms; that there is substantial evidence to
suggest that, when the Reconstruction Congress enacted measures to
ensure newly freed slaves and Union sympathizers in the South
enjoyed the right to possess firearms, it was motivated by
antidiscrimination and equality concerns rather than arms-bearing
concerns per se;[ Footnote
41 ] that many contemporaneous courts and commentators did
not understand the Fourteenth Amendment to have had an
“incorporating” effect; and that the States heavily regulated the
right to keep and bear arms both before and after the Amendment’s
passage. The Court’s narrative largely elides these facts. The
complications they raise show why even the most dogged historical
inquiry into the “fundamentality” of the Second Amendment right (or
any other) necessarily entails judicial judgment—and therefore
judicial discretion—every step of the way. I accept that the evolution in
Americans’ understanding of the Second Amendment may help shed
light on the question whether a right to keep and bear arms is
comprised within Fourteenth Amendment “liberty.” But the reasons
that motivated the Framers to protect the ability of militiamen to
keep muskets available for military use when our Nation was in its
infancy, or that motivated the Reconstruction Congress to extend
full citizenship to the freedmen in the wake of the Civil War, have
only a limited bearing on the question that confronts the homeowner
in a crime-infested metropolis today. The many episodes of brutal
violence against African-Americans that blight our Nation’s
history, see ante , at 23–29 (majority opinion); ante , at 41–44, 53–55 (Thomas, J., concurring in part and
concurring in judgment), do not suggest that every American must be
allowed to own whatever type of firearm he or she desires—just that
no group of Americans should be systematically and discriminatorily
disarmed and left to the mercy of racial terrorists. And the fact
that some Americans may have thought or hoped that the Fourteenth
Amendment would nationalize the Second Amendment hardly suffices to
justify the conclusion that it did. Fifth, although it may be true
that Americans’ interest in firearm possession and state-law
recognition of that interest are “deeply rooted” in some important
senses, ante , at 19 (internal quotation marks omitted), it
is equally true that the States have a long and unbroken history of
regulating firearms. The idea that States may place substantial
restrictions on the right to keep and bear arms short of complete
disarmament is, in fact, far more entrenched than the notion that
the Federal Constitution protects any such right. Federalism is a
far “older and more deeply rooted tradition than is a right to
carry,” or to own, “any particular kind of weapon.” 567 F. 3d
856, 860 (CA7 2009) (Easterbrook, C. J.). From the early days of the
Republic, through the Reconstruction era, to the present day,
States and municipalities have placed extensive licensing
requirements on firearm acquisition, restricted the public carriage
of weapons, and banned altogether the possession of especially
dangerous weapons, including handguns. See Heller , 554 U.
S., at ___ (Breyer, J., dissenting) (slip op., at 4–7) (reviewing
colonial laws); Cornell & DeDino, A Well Regulated Right: The
Early American Origins of Gun Control, 73 Fordham L. Rev. 487,
502–516 (2004) (reviewing pre-Civil War laws); Brief for 34
Professional Historians and Legal Historians as Amici
Curiae 4–22 (reviewing Reconstruction-era laws); Winkler,
Scrutinizing the Second Amendment, 105 Mich. L. Rev. 683,
711–712, 716–726 (2007) (reviewing 20th-century laws); see
generally post , at 21–31.[ Footnote 42 ] After the 1860’s just as before, the state
courts almost uniformly upheld these measures: Apart from making
clear that all regulations had to be constructed and applied in a
nondiscriminatory manner, the Fourteenth Amendment hardly made a
dent. And let us not forget that this Court did not recognize any non-militia-related interests under the Second
Amendment until two Terms ago, in Heller . Petitioners do
not dispute the city of Chicago’s observation that “[n]o other
substantive Bill of Rights protection has been regulated nearly as
intrusively” as the right to keep and bear arms. Municipal
Respondents’ Brief 25.[ Footnote
43 ] This history of intrusive
regulation is not surprising given that the very text of the Second
Amendment calls out for regulation,[ Footnote 44 ] and the ability to respond to the social
ills associated with dangerous weapons goes to the very core of the
States’ police powers. Our precedent is crystal-clear on this
latter point. See, e.g., Gonzales v. Oregon , 546 U. S. 243 ,
270 (2006) (“[T]he structure and limitations of federalism … allow
the States great latitude under their police powers to legislate as
to the protection of the lives, limbs, health, comfort, and quiet
of all persons” (internal quotation marks omitted)); United
States v. Morrison , 529 U. S. 598 , 618
(2000) (“[W]e can think of no better example of the police power,
which the Founders denied the National Government and reposed in
the States, than the suppression of violent crime and vindication
of its victims”); Kelley v. Johnson , 425 U. S. 238 , 247
(1976) (“The promotion of safety of persons and property is
unquestionably at the core of the State’s police power”); Automobile Workers v. Wisconsin Employment Relations
Bd. , 351 U. S.
266 , 274 (1956) (“The dominant interest of the State in
preventing violence and property damage cannot be questioned. It is
a matter of genuine local concern”). Compared with today’s ruling,
most if not all of this Court’s decisions requiring the States to
comply with other provisions in the Bill of Rights did not exact
nearly so heavy a toll in terms of state sovereignty. Finally, even apart from the
States’ long history of firearms regulation and its location at the
core of their police powers, this is a quintessential area in which
federalism ought to be allowed to flourish without this Court’s
meddling. Whether or not we can assert a plausible
constitutional basis for intervening, there are powerful reasons
why we should not do so. Across the Nation, States and
localities vary significantly in the patterns and problems of gun
violence they face, as well as in the traditions and cultures of
lawful gun use they claim. Cf. post , at 16–17. The city of
Chicago, for example, faces a pressing challenge in combating
criminal street gangs. Most rural areas do not. The city of Chicago
has a high population density, which increases the potential for a
gunman to inflict mass terror and casualties. Most rural areas do
not.[ Footnote 45 ] The city
of Chicago offers little in the way of hunting opportunities.
Residents of rural communities are, one presumes, much more likely
to stock the dinner table with game they have personally
felled. Given that relevant background
conditions diverge so much across jurisdictions, the Court ought to
pay particular heed to state and local legislatures’ “right to
experiment.” New State Ice , 285 U. S., at 311 (Brandeis,
J., dissenting). So long as the regulatory measures they have
chosen are not “arbitrary, capricious, or unreasonable,” we should
be allowing them to “try novel social and economic” policies. Ibid. It “is more in keeping … with our status as a court
in a federal system,” under these circumstances, “to avoid imposing
a single solution … from the top down.” Smith v. Robbins , 528 U. S. 259 , 275
(2000). It is all the more unwise for this
Court to limit experimentation in an area “where the best solution
is far from clear.” United States v. Lopez , 514 U. S. 549 ,
581 (1995) (Kennedy, J., concurring). Few issues of public policy
are subject to such intensive and rapidly developing empirical
controversy as gun control. See Heller , 554 U. S., at ___
(slip op., at 20–25) (Breyer, J., dissenting). Chicago’s handgun
ban, in itself, has divided researchers. Compare Brief for
Professors of Criminal Justice as Amici Curiae (arguing
that ordinance has been effective at reducing gun violence), with
Brief for International Law Enforcement Educators and Trainers
Association et al. as Amici Curiae 17–26 (arguing
that ordinance has been a failure).[ Footnote 46 ] Of course, on some matters the Constitution
requires that we ignore such pragmatic considerations. But the
Constitution’s text, history, and structure are not so clear on the
matter before us—as evidenced by the groundbreaking nature of
today’s fractured decision—and this Court lacks both the technical
capacity and the localized expertise to assess “the wisdom, need,
and propriety” of most gun-control measures. Griswold , 381
U. S., at 482.[ Footnote
47 ] Nor will the Court’s intervention
bring any clarity to this enormously complex area of law. Quite to
the contrary, today’s decision invites an avalanche of litigation
that could mire the federal courts in fine-grained determinations
about which state and local regulations comport with the Heller right—the precise contours of which are far from
pellucid—under a standard of review we have not even established.
See post , at 12–15. The plurality’s “assuranc[e]” that
“incorporation does not imperil every law regulating firearms,” ante , at 40, provides only modest comfort. For it is also
an admission of just how many different types of regulations are
potentially implicated by today’s ruling, and of just how
ad hoc the Court’s initial attempt to draw distinctions among
them was in Heller . The practical significance of the
proposition that “the Second Amendment right is fully applicable to
the States,” ante , at 1 (majority opinion), remains to be
worked out by this Court over many, many years. Furthermore, and critically, the
Court’s imposition of a national standard is still more unwise
because the elected branches have shown themselves to be perfectly
capable of safeguarding the interest in keeping and bearing arms.
The strength of a liberty claim must be assessed in connection with
its status in the democratic process. And in this case, no one
disputes “that opponents of [gun] control have considerable
political power and do not seem to be at a systematic disadvantage
in the democratic process,” or that “the widespread commitment to
an individual right to own guns … operates as a safeguard against
excessive or unjustified gun control laws.”[ Footnote 48 ] Sunstein, Second Amendment
Minimalism: Heller as Griswold , 122 Harv.
L. Rev. 246, 260 (2008). Indeed, there is a good deal of
evidence to suggest that, if anything, American lawmakers tend to under regulate guns, relative to the policy views expressed
by majorities in opinion polls. See K. Goss, Disarmed: The Missing
Movement for Gun Control in America 6 (2006). If a particular State
or locality has enacted some “improvident” gun-control measures, as
petitioners believe Chicago has done, there is no apparent reason
to infer that the mistake will not “eventually be rectified by the
democratic process.” Vance v. Bradley , 440 U. S. 93 , 97
(1979). This is not a case, then, that
involves a “special condition” that “may call for a correspondingly
more searching judicial inquiry.” Carolene Products , 304
U. S., at 153, n. 4. Neither petitioners nor those most
zealously committed to their views represent a group or a claim
that is liable to receive unfair treatment at the hands of the
majority. On the contrary, petitioners’ views are supported by
powerful participants in the legislative process. Petitioners have
given us no reason to believe that the interest in keeping and
bearing arms entails any special need for judicial lawmaking, or
that federal judges are more qualified to craft appropriate rules
than the people’s elected representatives. Having failed to show
why their asserted interest is intrinsic to the concept of ordered
liberty or vulnerable to maltreatment in the political arena, they
have failed to show why “the word liberty in the Fourteenth
Amendment” should be “held to prevent the natural outcome of a
dominant opinion” about how to deal with the problem of handgun
violence in the city of Chicago. Lochner , 198 U. S., at 76
(Holmes, J., dissenting). VI The preceding sections have
already addressed many of the points made by Justice Scalia in his
concurrence. But in light of that opinion’s fixation on this one,
it is appropriate to say a few words about Justice Scalia’s broader
claim: that his preferred method of substantive due process
analysis, a method “that makes the traditions of our people
paramount,” ante , at 1, is both more restrained and more
facilitative of democracy than the method I have outlined. Colorful
as it is, Justice Scalia’s critique does not have nearly as much
force as does his rhetoric. His theory of substantive due process,
moreover, comes with its own profound difficulties. Although Justice Scalia aspires to
an “objective,” “neutral” method of substantive due process
analysis, ante , at 10, his actual method is nothing of the
sort. Under the “historically focused” approach he advocates, ante , at 13, numerous threshold questions arise before one
ever gets to the history. At what level of generality should one
frame the liberty interest in question? See n. 25, supra . What does it mean for a right to be “ ‘deeply
rooted in this Nation’s history and tradition,’ ” ante , at 3 (quoting Glucksberg , 521 U. S., at
721)? By what standard will that proposition be tested? Which types
of sources will count, and how will those sources be weighed and
aggregated? There is no objective, neutral answer to these
questions. There is not even a theory—at least, Justice Scalia
provides none—of how to go about answering them. Nor is there any escaping Palko , it seems. To qualify for substantive due process
protection, Justice Scalia has stated, an asserted liberty right
must be not only deeply rooted in American tradition, “but it must also be implicit in the concept of ordered liberty.” Lawrence , 539 U. S., at 593, n. 3 (dissenting
opinion) (internal quotation marks omitted). Applying the latter, Palko -derived half of that test requires precisely the
sort of reasoned judgment—the same multifaceted evaluation of the
right’s contours and consequences—that Justice Scalia mocks in his
concurrence today. So does applying the first half.
It is hardly a novel insight that history is not an objective
science, and that its use can therefore “point in any direction the
judges favor,” ante , at 14 (opinion of Scalia, J.). Yet 21
years after the point was brought to his attention by Justice
Brennan, Justice Scalia remains “oblivious to the fact that [the
concept of ‘tradition’] can be as malleable and elusive as
‘liberty’ itself.” Michael H. , 491 U. S., at 137
(dissenting opinion). Even when historical analysis is focused on a
discrete proposition, such as the original public meaning of the
Second Amendment, the evidence often points in different
directions. The historian must choose which pieces to credit and
which to discount, and then must try to assemble them into a
coherent whole. In Heller , Justice Scalia preferred to
rely on sources created much earlier and later in time than the
Second Amendment itself, see, e.g., 554 U. S., at ___
(slip op., at 4–5) (consulting late 19th-century treatises to
ascertain how Americans would have read the Amendment’s preamble in
1791); I focused more closely on sources contemporaneous with the
Amendment’s drafting and ratification.[ Footnote 49 ] No mechanical yardstick can measure which
of us was correct, either with respect to the materials we chose to
privilege or the insights we gleaned from them. The malleability and elusiveness
of history increase exponentially when we move from a pure question
of original meaning, as in Heller , to Justice Scalia’s
theory of substantive due process. At least with the former sort of
question, the judge can focus on a single legal provision; the
temporal scope of the inquiry is (or should be) relatively bounded;
and there is substantial agreement on what sorts of authorities
merit consideration. With Justice Scalia’s approach to substantive
due process, these guideposts all fall away. The judge must canvas
the entire landscape of American law as it has evolved through
time, and perhaps older laws as well, see, e.g., Lawrence , 539 U. S., at 596 (Scalia, J., dissenting)
(discussing “ ‘ancient roots’ ” of proscriptions against
sodomy (quoting Bowers v. Hardwick , 478 U. S. 186 , 192 (1986)), pursuant
to a standard (deeply rootedness) that has never been defined. In
conducting this rudderless, panoramic tour of American legal
history, the judge has more than ample opportunity to “look over
the heads of the crowd and pick out [his] friends,” Roper v. Simmons , 543 U. S. 551 , 617
(2005) (Scalia, J., dissenting). My point is not to criticize
judges’ use of history in general or to suggest that it always
generates indeterminate answers; I have already emphasized that
historical study can discipline as well as enrich substantive due
process analysis. My point is simply that Justice Scalia’s defense
of his method, which holds out objectivity and restraint as its
cardinal—and, it seems, only—virtues, is unsatisfying on its own
terms. For a limitless number of subjective judgments may be
smuggled into his historical analysis. Worse, they may be buried in the analysis. At least with my approach, the
judge’s cards are laid on the table for all to see, and to
critique. The judge must exercise judgment, to be sure. When
answering a constitutional question to which the text provides no
clear answer, there is always some amount of discretion; our
constitutional system has always depended on judges’ filling in the
document’s vast open spaces.[ Footnote 50 ] But there is also transparency. Justice Scalia’s approach is even
less restrained in another sense: It would effect a major break
from our case law outside of the “incorporation” area. Justice
Scalia does not seem troubled by the fact that his method is
largely inconsistent with the Court’s canonical substantive due
process decisions, ranging from Meyer , 262 U. S. 390 , and Pierce , 268 U. S. 510 , in the 1920’s, to Griswold , 381 U. S. 479 , in the 1960’s, to Lawrence , 539
U. S. 558 , in the 2000’s. To the contrary, he seems to embrace
this dissonance. My method seeks to synthesize dozens of cases on
which the American people have relied for decades. Justice Scalia’s
method seeks to vaporize them. So I am left to wonder, which of us
is more faithful to this Nation’s constitutional history? And which
of us is more faithful to the values and commitments of the
American people, as they stand today? In 1967, when the Court held
in Loving , 388 U. S. 1 , that adults have a
liberty-based as well as equality-based right to wed persons of
another race, interracial marriage was hardly “deeply rooted” in
American tradition. Racial segregation and subordination were
deeply rooted. The Court’s substantive due process holding was
nonetheless correct—and we should be wary of any interpretive
theory that implies, emphatically, that it was not. Which leads me to the final set of
points I wish to make: Justice Scalia’s method invites not only bad
history, but also bad constitutional law. As I have already
explained, in evaluating a claimed liberty interest (or any
constitutional claim for that matter), it makes perfect sense to
give history significant weight: Justice Scalia’s position is
closer to my own than he apparently feels comfortable
acknowledging. But it makes little sense to give history
dispositive weight in every case. And it makes especially little sense to answer questions like whether the right to bear
arms is “fundamental” by focusing only on the past, given that both
the practical significance and the public understandings of such a
right often change as society changes. What if the evidence had
shown that, whereas at one time firearm possession contributed
substantially to personal liberty and safety, nowadays it
contributes nothing, or even tends to undermine them? Would it
still have been reasonable to constitutionalize the
right? The concern runs still deeper. Not
only can historical views be less than completely clear or
informative, but they can also be wrong. Some notions that many
Americans deeply believed to be true, at one time, turned out not
to be true. Some practices that many Americans believed to be
consistent with the Constitution’s guarantees of liberty and
equality, at one time, turned out to be inconsistent with them. The
fact that we have a written Constitution does not consign this
Nation to a static legal existence. Although we should always
“pa[y] a decent regard to the opinions of former times,” it “is not
the glory of the people of America” to have “suffered a blind
veneration for antiquity.” The Federalist No. 14, p. 99, 104 (C.
Rossiter ed. 1961) (J. Madison). It is not the role of federal
judges to be amateur historians. And it is not fidelity to the
Constitution to ignore its use of deliberately capacious language,
in an effort to transform foundational legal commitments into
narrow rules of decision. As for “the democratic process,” ante , at 14, 15, a method that looks exclusively to
history can easily do more harm than good. Just consider this case.
The net result of Justice Scalia’s supposedly objective analysis is
to vest federal judges—ultimately a majority of the judges on this
Court—with unprecedented lawmaking powers in an area in which they
have no special qualifications, and in which the give-and-take of
the political process has functioned effectively for decades. Why
this “intrudes much less upon the democratic process,” ante , at 14, than an approach that would defer to the
democratic process on the regulation of firearms is, to say the
least, not self-evident. I cannot even tell what, under Justice
Scalia’s view, constitutes an “intrusion.” It is worth pondering,
furthermore, the vision of democracy that underlies Justice
Scalia’s critique. Because very few of us would welcome a system in
which majorities or powerful interest groups always get their way.
Under our constitutional scheme, I would have thought that a
judicial approach to liberty claims such as the one I have
outlined—an approach that investigates both the intrinsic nature of
the claimed interest and the practical significance of its judicial
enforcement, that is transparent in its reasoning and sincere in
its effort to incorporate constraints, that is guided by history
but not beholden to it, and that is willing to protect some rights
even if they have not already received uniform protection from the
elected branches—has the capacity to improve, rather than
“[im]peril,” ante , at 15, our democracy. It all depends on
judges’ exercising careful, reasoned judgment. As it always has,
and as it always will. VII The fact that the
right to keep and bear arms appears in the Constitution should not
obscure the novelty of the Court’s decision to enforce that right
against the States. By its terms, the Second Amendment does not
apply to the States; read properly, it does not even apply to
individuals outside of the militia context. The Second Amendment
was adopted to protect the States from federal
encroachment. And the Fourteenth Amendment has never been
understood by the Court to have “incorporated” the entire Bill of
Rights. There was nothing foreordained about today’s
outcome. Although the Court’s
decision in this case might be seen as a mere adjunct to its
decision in Heller , the consequences could prove far more
destructive—quite literally—to our Nation’s communities and to our
constitutional structure. Thankfully, the Second Amendment right
identified in Heller and its newly minted Fourteenth
Amendment analogue are limited, at least for now, to the home. But
neither the “assurances” provided by the plurality, ante ,
at 40, nor the many historical sources cited in its opinion should
obscure the reality that today’s ruling marks a dramatic change in
our law—or that the Justices who have joined it have brought to
bear an awesome amount of discretion in resolving the legal
question presented by this case. I would proceed more cautiously. For the reasons set out at length above, I cannot
accept either the methodology the Court employs or the conclusions
it draws. Although impressively argued, the majority’s decision to
overturn more than a century of Supreme Court precedent and to
unsettle a much longer tradition of state practice is not, in my
judgment, built “upon respect for the teachings of history, solid
recognition of the basic values that underlie our society, and wise
appreciation of the great roles that the doctrines of federalism
and separation of powers have played in establishing and preserving
American freedoms.” Griswold , 381 U. S., at 501 (Harlan,
J., concurring in judgment). Accordingly, I
respectfully dissent. Footnote
1 See United
States v. Cruikshank , 92 U. S. 542 , 553 (1876); Presser v. Illinois , 116 U. S. 252 , 265
(1886); Miller v. Texas , 153 U. S. 535 , 538
(1894). This is not to say that I agree with all other aspects of
these decisions. Footnote
2 Cf., e.g., Currie, The Reconstruction Congress, 75 U. Chi. L. Rev. 383,
406 (2008) (finding “some support in the legislative history for no
fewer than four interpretations” of the Privileges or Immunities
Clause, two of which contradict petitioners’ submission); Green,
The Original Sense of the (Equal) Protection Clause: Subsequent
Interpretation and Application, 19 Geo. Mason U. Civ. Rights
L. J. 219, 255–277 (2009) (providing evidence that the Clause
was originally conceived of as an antidiscrimination measure,
guaranteeing equal rights for black citizens); Rosenthal, The New
Originalism Meets the Fourteenth Amendment: Original Public Meaning
and the Problem of Incorporation, 18 J. Contemporary Legal Issues
361 (2009) (detailing reasons to doubt that the Clause was
originally understood to apply the Bill of Rights to the States);
Hamburger, Privileges or Immunities, 105 Nw. U. L. Rev.
(forthcoming 2011), online at http://ssrn.com/abstract=1557870 (as
visited June 25, 2010, and available in Clerk of Court’s case file)
(arguing that the Clause was meant to ensure freed slaves were
afforded “the Privileges and Immunities” specified in Article IV,
§2, cl. 1 of the Constitution). Although he urges its elevation in
our doctrine, Justice Thomas has acknowledged that, in seeking to
ascertain the original meaning of the Privileges or Immunities
Clause, “[l]egal scholars agree on little beyond the conclusion
that the Clause does not mean what the Court said it meant in
1873.” Saenz v. Roe , 526 U. S. 489 , 522,
n. 1 (1999) (dissenting opinion); accord, ante , at 10
(plurality opinion). Footnote
3 It is no secret that
the desire to “displace” major “portions of our equal protection
and substantive due process jurisprudence” animates some of the
passion that attends this interpretive issue. Saenz , 526
U. S., at 528 (Thomas, J., dissenting). Footnote
4 Wilkinson, The
Fourteenth Amendment Privileges or Immunities Clause, 12 Harv.
J. L. & Pub. Pol’y 43, 52 (1989). Judge Wilkinson’s point
is broader than the privileges or immunities debate. As he
observes, “there may be more structure imposed by provisions
subject to generations of elaboration and refinement than by a
provision in its pristine state. The fortuities of uneven
constitutional development must be respected, not cast aside in the
illusion of reordering the landscape anew.” Id., at 51–52;
see also Washington v. Glucksberg , 521 U. S. 702 , 759, n. 6 (1997)
(Souter, J., concurring in judgment) (acknowledging that, “[t]o a
degree,” the Slaughter-House “decision may have led the
Court to look to the Due Process Clause as a source of substantive
rights”). Footnote
5 See, e.g., Ely, The Oxymoron Reconsidered: Myth and Reality in the Origins of
Substantive Due Process, 16 Const. Commentary 315, 326–327 (1999)
(concluding that founding-era “American statesmen accustomed to
viewing due process through the lens of [Sir Edward] Coke and
[William] Blackstone could [not] have failed to understand due
process as encompassing substantive as well as procedural terms”);
Gedicks, An Originalist Defense of Substantive Due Process: Magna
Carta, Higher-Law Constitutionalism, and the Fifth Amendment, 58
Emory L. J. 585, 594 (2009) (arguing “that one widely shared
understanding of the Due Process Clause of the Fifth Amendment in
the late eighteenth century encompassed judicial recognition and
enforcement of unenumerated substantive rights”); Maltz, Fourteenth
Amendment Concepts in the Antebellum Era, 32 Am. J. Legal Hist.
305, 317–318 (1988) (explaining that in the antebellum era a
“substantial number of states,” as well as antislavery advocates,
“imbued their [constitutions’] respective due process clauses with
a substantive content”); Tribe, Taking Text and Structure
Seriously: Reflections on Free-Form Method in Constitutional
Interpretation, 108 Harv. L. Rev. 1221, 1297, n. 247
(1995) (“[T]he historical evidence points strongly toward
the conclusion that, at least by 1868 even if not in 1791, any
state legislature voting to ratify a constitutional rule banning
government deprivations of ‘life, liberty, or property, without due
process of law’ would have understood that ban as having
substantive as well as procedural content, given that era’s premise
that, to qualify as ‘law,’ an enactment would have to meet
substantive requirements of rationality, non-oppressiveness, and
evenhandedness”); see also Stevens, The Third Branch of Liberty, 41
U. Miami L. Rev. 277, 290 (1986) (“In view of the number of
cases that have given substantive content to the term liberty, the
burden of demonstrating that this consistent course of decision was
unfaithful to the intent of the Framers is surely a heavy
one”). Footnote
6 1 L. Tribe, American
Constitutional Law §8–1, p. 1335 (3d ed.
2000). Footnote
7 The Ninth Amendment
provides: “The enumeration in the Constitution, of certain rights,
shall not be construed to deny or disparage others retained by the
people.” Footnote
8 Stevens, The Bill of
Rights: A Century of Progress, 59 U. Chi. L. Rev. 13, 20
(1992); see Fitzgerald , 523 F. 2d, at 719–720;
Stevens, 41 U. Miami L. Rev., at 286–289; see also Greene, The
So-Called Right to Privacy, 43 U. C. D. L. Rev. 715,
725–731 (2010). Footnote
9 See also Gitlow , 268 U. S., at 672 (Holmes, J., dissenting) (“The
general principle of free speech, it seems to me, must be taken to
be included in the Fourteenth Amendment, in view of the scope that
has been given to the word ‘liberty’ as there used, although
perhaps it may be accepted with a somewhat larger latitude of
interpretation than is allowed to Congress by the sweeping language
that governs or ought to govern the laws of the United States”).
Subsequent decisions repeatedly reaffirmed that persons hold free
speech rights against the States on account of the Fourteenth
Amendment’s liberty clause, not the First Amendment per
se . See, e.g., NAACP v. Alabama ex rel.
Patterson , 357
U. S. 449 , 460, 466 (1958); Cantwell v. Connecticut , 310 U. S. 296 , 303
(1940); Thornhill v. Alabama , 310 U. S. 88 , 95, and n. 7 (1940);
see also McIntyre v. Ohio Elections Comm’n , 514 U. S. 334 ,
336, n. 1 (1995) (“The term ‘liberty’ in the Fourteenth
Amendment to the Constitution makes the First Amendment applicable
to the States”). Classic opinions written by Justice Cardozo and
Justice Frankfurter endorsed the same basic approach to
“incorporation,” with the Fourteenth Amendment taken as a distinct
source of rights independent from the first eight Amendments. Palko v. Connecticut , 302 U. S. 319 , 322–328 (1937) (opinion
for the Court by Cardozo, J.); Adamson v. California , 332 U. S. 46 , 59–68 (1947)
(Frankfurter, J., concurring). Footnote
10 See also Wolf v. Colorado , 338 U. S. 25 , 26 (1949)
(“The notion that the ‘due process of law’ guaranteed by the
Fourteenth Amendment is shorthand for the first eight amendments of
the Constitution … has been rejected by this Court again and again,
after impressive consideration. … The issue is closed”). Wolf ’s holding on the exclusionary rule was overruled by Mapp v. Ohio , 367 U. S. 643 (1961), but the
principle just quoted has never been disturbed. It is notable that Mapp , the case that launched the modern “doctrine of ad hoc ,” “ ‘jot-for-jot’ ” incorporation, Williams v. Florida , 399 U.
S. 78 , 130–131 (1970) (Harlan, J., concurring in result),
expressly held “that the exclusionary rule is an essential part of
both the Fourth and Fourteenth Amendments.” 367 U. S., at
657 (emphasis added). Footnote
11 I can hardly improve
upon the many passionate defenses of this position that Justice
Harlan penned during his tenure on the Court. See Williams , 399 U. S., at 131, n. 14 (opinion
concurring in result) (cataloguing opinions). Footnote
12 See, e.g., Pet. for Cert. in Bowen v. Oregon , O. T.
2009, No. 08–1117, p. i, cert. denied, 558 U. S. ___ (2009)
(request to overrule Apodaca ); Pet. for Cert. in Lee v. Louisiana , O. T. 2008, No. 07–1523,
p. i, cert. denied, 555 U. S. ___ (2008) (same); Pet. for Cert. in Logan v. Florida , O. T. 2007, No. 07–7264,
pp. 14–19, cert. denied, 552 U. S. 1189 (2008)
(request to overrule Williams ). Footnote
13 The vast majority of
States already recognize a right to keep and bear arms in their own
constitutions, see Volokh, State Constitutional Rights to Keep and
Bear Arms, 11 Tex. Rev. L. & Pol. 191 (2006) (cataloguing
provisions); Brief for Petitioners 69 (observing that “[t]hese
Second Amendment analogs are effective and consequential”), but the
States vary widely in their regulatory schemes, their traditions
and cultures of firearm use, and their problems relating to gun
violence. If federal and state courts must harmonize their review
of gun-control laws under the Second Amendment, the resulting
jurisprudence may prove significantly more deferential to those
laws than the status quo ante . Once it has been
established that a single legal standard must govern nationwide,
federal courts will face a profound pressure to reconcile that
standard with the diverse interests of the States and their long
history of regulating in this sensitive area. Cf. Williams , 399 U. S., at 129–130 (Harlan, J., concurring in
result) (noting “ ‘backlash’ ” potential of jot-for-jot
incorporation); Grant, Felix Frankfurter: A Dissenting Opinion, 12
UCLA L. Rev. 1013, 1038 (1965) (“If the Court will not reduce
the requirements of the fourteenth amendment below the federal
gloss that now overlays the Bill of Rights, then it will have to
reduce that gloss to the point where the states can live with it”). Amici argue persuasively that, post-“incorporation,”
federal courts will have little choice but to fix a highly flexible
standard of review if they are to avoid leaving federalism and the
separation of powers—not to mention gun policy—in shambles. See
Brief for Brady Center to Prevent Gun Violence et al. as Amici Curiae (hereinafter Brady Center
Brief). Footnote
14 Justice Cardozo’s
test itself built upon an older line of decisions. See, e.g., Chicago, B. & Q. R. Co. v. Chicago , 166 U. S. 226 , 237 (1897) (discussing
“limitations on [state] power, which grow out of the essential
nature of all free governments [and] implied reservations of
individual rights, . . . and which are respected by all
governments entitled to the name” (internal quotation marks
omitted)). Footnote
15 See Palko ,
302 U. S., at 326, n. 3; see also, e.g., Lawrence v. Texas , 539
U. S. 558 , 572–573, 576–577 (2003); Glucksberg , 521 U.
S., at 710–711, and n. 8. Footnote
16 I acknowledge that
some have read the Court’s opinion in Glucksberg as an
attempt to move substantive due process analysis, for all purposes,
toward an exclusively historical methodology—and thereby to
debilitate the doctrine. If that were ever Glucksberg ’s
aspiration, Lawrence plainly renounced it. As between Glucksberg and Lawrence , I have little doubt
which will prove the more enduring precedent. Footnote
17 The Court almost
never asked whether the guarantee in question was deeply rooted in
founding-era practice. See Brief for Respondent City of Chicago
et al. 31, n. 17 (hereinafter Municipal Respondents’
Brief) (noting that only two opinions extensively discussed such
history). Footnote
18 Cf. Robinson v. California , 370 U. S. 660 , 666–668
(1962) (invalidating state statute criminalizing narcotics
addiction as “cruel and unusual punishment in violation of the
Fourteenth Amendment” based on nature of the alleged
“ ‘crime,’ ” without historical analysis); Brief for
Respondent National Rifle Association of America, Inc., et al.
29 (noting that “lynchpin” of incorporation test has always been
“the importance of the right in question to … ‘liberty’ ” and
to our “system of government”). Footnote
19 I do not mean to
denigrate this function, or to imply that only “ new rights”—whatever one takes that term to mean—ought to “get in” the
substantive due process door. Ante , at 5 (Scalia, J.,
concurring). Footnote
20 See Bowers v. Hardwick , 478 U. S. 186 , 199 (1986) (Blackmun,
J., dissenting) (“Like Justice Holmes, I believe that ‘[i]t is
revolting to have no better reason for a rule of law than that so
it was laid down in the time of Henry IV. It is still more
revolting if the grounds upon which it was laid down have vanished
long since, and the rule simply persists from blind imitation of
the past’ ” (quoting Holmes, The Path of the Law, 10 Harv.
L. Rev. 457, 469 (1897))). Footnote
21 Justice Kennedy has
made the point movingly: “Had those who drew
and ratified the Due Process Clauses of the Fifth Amendment or the
Fourteenth Amendment known the components of liberty in its
manifold possibilities, they might have been more specific. They
did not presume to have this insight. They knew times can blind us
to certain truths and later generations can see that laws once
thought necessary and proper in fact serve only to oppress. As the
Constitution endures, persons in every generation can invoke its
principles in their own search for greater freedom.” Lawrence , 539 U. S., at 578–579. Footnote
22 Contrary to
Justice Scalia’s suggestion, I emphatically do not believe that
“only we judges” can interpret the Fourteenth Amendment, ante , at 4, or any other constitutional provision. All
Americans can; all Americans should. I emphatically do believe that
we judges must exercise—indeed, cannot help but exercise—our own
reasoned judgment in so doing. Justice Scalia and I are on common
ground in maintaining that courts should be “guided by what the
American people throughout our history have thought.” Ibid. Where we part ways is in his view that courts should
be guided only by historical
considerations. There is, moreover, a
tension between Justice Scalia’s concern that “courts have the last
word” on constitutional questions, ante , at 3, n. 2,
on the one hand, and his touting of the Constitution’s Article V
amendment process, ante , at 3, on the other. The American
people can of course reverse this Court’s rulings through that same
process. Footnote
23 In assessing concerns
about the “open-ended[ness]” of this area of law, Collins ,
503 U. S., at 125, one does well to keep in view the malleability
not only of the Court’s “deeply rooted”/fundamentality standard but
also of substantive due process’ constitutional cousin, “equal
protection” analysis. Substantive due process is sometimes accused
of entailing an insufficiently “restrained methodology.” Glucksberg , 521 U. S., at 721. Yet “the word ‘liberty’ in
the Due Process Clause seems to provide at least as much meaningful
guidance as does the word ‘equal’ in the Equal Protection Clause.”
Post, The Supreme Court 2002 Term—Foreword: Fashioning the Legal
Constitution: Culture, Courts, and Law, 117 Harv. L. Rev. 4,
94, n. 440 (2003). And “[i]f the objection is that the text of
the [Due Process] Clause warrants providing only protections of
process rather than protections of substance,” “it is striking that
even those Justices who are most theoretically opposed to
substantive due process, like Scalia and Rehnquist, are also
nonetheless enthusiastic about applying the equal protection
component of the Due Process Clause of the Fifth Amendment to the
federal government.” Ibid. (citing Adarand
Constructors, Inc. v. Peńa , 515 U. S. 200 , 213–231
(1995)). Footnote
24 That one eschews a
comprehensive theory of liberty does not, pace Justice
Scalia, mean that one lacks “a coherent theory of the Due Process
Clause,” ante , at 5. It means that one lacks the hubris to
adopt a rigid, context-independent definition of a constitutional
guarantee that was deliberately framed in open-ended
terms. Footnote
25 The notion that we
should define liberty claims at the most specific level available
is one of Justice Scalia’s signal contributions to the theory of
substantive due process. See, e.g., Michael H. v. Gerald D. , 491 U. S. 110 , 127–128, n. 6
(1989) (opinion of Scalia, J.); ante , at 7 (opinion of
Scalia, J.). By so narrowing the asserted right, this approach
“loads the dice” against its recognition, Roosevelt, Forget the
Fundamentals: Fixing Substantive Due Process, 8 U. Pa. J.
Const. L. 983, 1002, n. 73 (2006): When one defines the
liberty interest at issue in Lawrence as the freedom to
perform specific sex acts, ante , at 2, the interest starts
to look less compelling. The Court today does not follow Justice
Scalia’s “particularizing” method, Katzenbach v. Morgan , 384
U. S. 641 , 649 (1966), as it relies on general historical
references to keeping and bearing arms, without any close study of
the States’ practice of regulating especially dangerous
weapons. Footnote
26 In District of
Columbia v. Heller , 554 U. S. ___, ___ (slip op., at
22), the Court concluded, over my dissent, that the Second
Amendment confers “an individual right to keep and bear arms”
disconnected from militia service. If that conclusion were wrong,
then petitioners’ “incorporation” claim clearly would fail, as they
would hold no right against the Federal Government to be free from
regulations such as the ones they challenge. Cf. post , at
8. I do not understand petitioners or any of their amici to dispute this point. Yet even if Heller had never been
decided—indeed, even if the Second Amendment did not exist—we would
still have an obligation to address petitioners’ Fourteenth
Amendment claim. Footnote
27 The village of Oak
Park imposes more stringent restrictions that may raise additional
complications. See ante , at 2 (majority opinion) (quoting
Oak Park, Ill., Municipal Code §§27–2–1 (2007), 27–1–1 (2009)). The
Court, however, declined to grant certiorari on the National Rifle
Association’s challenge to the Oak Park restrictions. Chicago is
the only defendant in this case. Footnote
28 To the extent that
petitioners contend the city of Chicago’s registration requirements
for firearm possessors also, and separately, violate the
Constitution, that claim borders on the frivolous. Petitioners make
no effort to demonstrate that the requirements are unreasonable or
that they impose a severe burden on the underlying right they have
asserted. Footnote
29 Members of my
generation, at least, will recall the many passionate statements of
this view made by the distinguished actor, Charlton
Heston. Footnote
30 See Municipal
Respondents’ Brief 20, n. 11 (stating that at least 156 Second
Amendment challenges were brought in time between Heller ’s
issuance and brief’s filing); Brady Center Brief 3 (stating that
over 190 Second Amendment challenges were brought in first 18
months since Heller ); Brief for Villages of Winnetka and
Skokie, Illinois, et al. as Amici Curiae 15 (stating
that, in wake of Heller , municipalities have “repealed
longstanding handgun laws to avoid costly
litigation”). Footnote
31 See, e.g., Brief for Professors of Philosophy, Criminology, Law, and Other
Fields as Amici Curiae; Brief for International Law
Enforcement Educators and Trainers Association et al. as Amici Curiae 29–45; Brief for 34 California District
Attorneys et al. as Amici Curiae 12–31. Footnote
32 The argument that
this Court should establish any such right, however, faces steep
hurdles. All 50 States already recognize self-defense as a defense
to criminal prosecution, see 2 P. Robinson, Criminal Law Defenses
§132, p. 96 (1984 and Supp. 2009), so this is hardly an
interest to which the democratic process has been insensitive. And
the States have always diverged on how exactly to implement this
interest, so there is wide variety across the Nation in the types
and amounts of force that may be used, the necessity of retreat,
the rights of aggressors, the availability of the “castle
doctrine,” and so forth. See Brief for Oak Park Citizens Committee
for Handgun Control as Amicus Curiae 9–21; Brief for
American Cities et al. as Amici Curiae 17–19; 2 W.
LaFave, Substantive Criminal Law §10.4, pp. 142–160 (2d ed.
2003). Such variation is presumed to be a healthy part of our
federalist system, as the States and localities select different
rules in light of different priorities, customs, and
conditions. As a historical and
theoretical matter, moreover, the legal status of self-defense is
far more complicated than it might first appear. We have generally
understood Fourteenth Amendment “liberty” as something one holds
against direct state interference, whereas a personal right of
self-defense runs primarily against other individuals; absent
government tyranny, it is only when the state has failed to interfere with (violent) private conduct that self-help becomes
potentially necessary. Moreover, it was a basic tenet of
founding-era political philosophy that, in entering civil society
and gaining “the advantages of mutual commerce” and the protections
of the rule of law, one had to relinquish, to a significant degree,
“that wild and savage liberty” one possessed in the state of
nature. 1 W. Blackstone, Commentaries *125; see also, e.g., J. Locke, Second Treatise of Civil Government §128,
pp. 63–64 (J. Gough ed. 1947) (in state of nature man has
power “to do whatever he thinks fit for the preservation of himself
and others,” but this “he gives up when he joins in a … particular
political society”); Green v. Biddle , 8 Wheat. 1,
63 (1823) (“It is a trite maxim, that man gives up a part of his
natural liberty when he enters into civil society, as the price of
the blessings of that state: and it may be said, with truth, that
this liberty is well exchanged for the advantages which flow from
law and justice”). Some strains of founding-era thought took a very
narrow view of the right to armed self-defense. See, e.g., Brief of Historians on Early American Legal, Constitutional, and
Pennsylvania History as Amici Curiae 6–13 (discussing Whig
and Quaker theories). Just because there may be a natural or
common-law right to some measure of self-defense, it hardly follows
that States may not place substantial restrictions on its exercise
or that this Court should recognize a constitutional right to the
same. Footnote
33 The Second Amendment
right identified in Heller is likewise clearly distinct
from a right to protect oneself. In my view, the Court badly
misconstrued the Second Amendment in linking it to the value of
personal self-defense above and beyond the functioning of the state
militias; as enacted, the Second Amendment was concerned with
tyrants and invaders, and paradigmatically with the federal
military, not with criminals and intruders. But even still, the
Court made clear that self-defense plays a limited role in
determining the scope and substance of the Amendment’s guarantee.
The Court struck down the District of Columbia’s handgun ban not
because of the utility of handguns for lawful
self-defense, but rather because of their popularity for
that purpose. See 554 U. S., at ___ (slip op., at 57–58). And the
Court’s common-use gloss on the Second Amendment right, see id., at ___ (slip op., at 55), as well as its discussion
of permissible limitations on the right, id., at ___ (slip
op., at 54–55), had little to do with
self-defense. Footnote
34 Brady Center Brief 11
(extrapolating from Government statistics); see also Brief for
American Public Health Association et al. as Amici
Curiae 6–7 (reporting estimated social cost of firearm-related
violence of $100 billion per year). Footnote
35 Bogus, Gun Control
and America’s Cities: Public Policy and Politics, 1 Albany Govt.
L. Rev. 440, 447 (2008) (drawing on FBI data); see also Heller , 554 U. S., at ___ (slip op., at 18–19) (Breyer,
J., dissenting) (providing additional statistics on handgun
violence); Municipal Respondents’ Brief 13–14
(same). Footnote
36 Justice Scalia
worries that there is no “objective” way to decide what is
essential to a “liberty-filled” existence: Better, then, to ignore
such messy considerations as how an interest actually affects
people’s lives. Ante , at 10. Both the constitutional text
and our cases use the term “liberty,” however, and liberty is not a
purely objective concept. Substantive due process analysis does not
require any “political” judgment, ibid. It does require
some amount of practical and normative judgment. The only way to
assess what is essential to fulfilling the Constitution’s guarantee
of “liberty,” in the present day, is to provide reasons that apply
to the present day. I have provided many; Justice Scalia and the
Court have provided virtually none. Justice Scalia also
misstates my argument when he refers to “the right to keep and bear
arms,” without qualification. Ante , at 9. That is what the
Second Amendment protects against Federal Government infringement.
I have taken pains to show why the Fourteenth Amendment liberty
interest asserted by petitioners—the interest in keeping a firearm
of one’s choosing in the home—is not necessarily coextensive with
the Second Amendment right. Footnote
37 It has not escaped my
attention that the Due Process Clause refers to “property” as well
as “liberty.” Cf. ante , at 2, n. 1, 9–10, n. 6
(opinion of Scalia, J.). Indeed, in Moore v. East
Cleveland , 431 U. S. 494 (1977) (plurality
opinion), I alone viewed “the critical question” as “whether East
Cleveland’s housing ordinance [was] a permissible restriction on
appellant’s right to use her own property as she sees fit,” id., at 513 (opinion concurring in judgment). In that
case, unlike in this case, the asserted property right was
coextensive with a right to organize one’s family life, and I could
find “no precedent” for the ordinance at issue, which “exclude[d]
any of an owner’s relatives from the group of persons who may
occupy his residence on a permanent basis.” Id., at 520. I
am open to property claims under the Fourteenth Amendment. This
case just involves a weak one. And ever since the Court
“incorporated” the more specific property protections of the
Takings Clause in 1897, see Chicago, B. & Q. R. Co. , 166 U. S. 226 , substantive due process
doctrine has focused on liberty. Footnote
38 Cf. Planned
Parenthood of Southeastern Pa. v. Casey , 505 U. S. 833 , 913–914 (1992)
(Stevens, J., concurring in part and dissenting in
part). Footnote
39 The Second Amendment
provides: “A well regulated Militia, being necessary to the
security of a free State, the right of the people to keep and bear
Arms, shall not be infringed.” Footnote
40 Contrary to Justice
Scalia’s suggestion, this point is perfectly compatible with my
opinion for the Court in Elk Grove Unified School Dist. v. Newdow , 542 U. S. 1 (2004). Cf. ante ,
at 11. Like the Court itself, I have never agreed with Justice
Thomas’ view that the Establishment Clause is a federalism
provision. But I agree with his underlying logic: If a clause in
the Bill of Rights exists to safeguard federalism interests, then
it makes little sense to “incorporate” it. Justice Scalia’s further
suggestion that I ought to have revisited the Establishment Clause
debate in this opinion, ibid. , is simply
bizarre. Footnote
41 See post , at
24–25; Municipal Respondents’ Brief 62–69; Brief for 34
Professional Historians and Legal Historians as Amici
Curiae 22–26; Rosenthal, Second Amendment Plumbing After Heller: Of Standards of Scrutiny, Incorporation,
Well-Regulated Militias, and Criminal Street Gangs, 41 Urb. Law. 1,
73–75 (2009). The plurality insists that the Reconstruction-era
evidence shows the right to bear arms was regarded as “a
substantive guarantee, not a prohibition that could be ignored so
long as the States legislated in an evenhanded manner.” Ante , at 33. That may be so, but it does not resolve the
question whether the Fourteenth Amendment’s Due Process Clause was
originally understood to encompass a right to keep and bear arms,
or whether it ought to be so construed now. Footnote
42 I am unclear what the
plurality means when it refers to “the paucity of precedent
sustaining bans comparable to those at issue here.” Ante ,
at 39. There is only one ban at issue here—the city of Chicago’s
handgun prohibition—and the municipal respondents cite far more
than “one case,” ibid. , from the post-Reconstruction
period. See Municipal Respondents’ Brief 24–30. The evidence
adduced by respondents and their amici easily establishes
their contentions that the “consensus in States that recognize a
firearms right is that arms possession, even in the home, is …
subject to interest-balancing,” id., at 24; and that the
practice of “[b]anning weapons routinely used for self-defense,”
when deemed “necessary for the public welfare,” “has ample
historical pedigree,” id., at 28. Petitioners do not even
try to challenge these contentions. Footnote
43 I agree with Justice
Scalia that a history of regulation hardly proves a right is not
“of fundamental character.” Ante , at 12. An unbroken
history of extremely intensive, carefully considered regulation
does, however, tend to suggest that it is not. Footnote
44 The Heller majority asserted that “the adjective ‘well-regulated’ ” in
the Second Amendment’s preamble “implies nothing more than the
imposition of proper discipline and training.” 554 U. S., at ___
(slip op., at 23). It is far from clear that this assertion is
correct. See, e.g., U. S. Const., Art. 1, §4, cl. 1;
§8, cls. 3, 5, 14; §9, cl. 6; Art. 3, §2, cl. 2; Art. 4,
§2, cl. 3; §3, cl. 2 (using “regulate” or “Regulation” in
manner suggestive of broad, discretionary governmental authority);
Art. 1, §8, cl. 16 (invoking powers of “disciplining” and
“training” Militia in manner suggestive of narrower authority); Heller , 554 U. S., at ___ (slip op., at 6–7)
(investigating Constitution’s separate references to “people” as
clue to term’s meaning in Second Amendment); cf. Cornell &
DeDino, A Well Regulated Right: The Early American Origins of Gun
Control, 73 Fordham L. Rev. 487, 504 (2004) (“The authors of
this curious interpretation of the Second Amendment have
constructed a fantasy world where words mean their opposite, and
regulation is really anti-regulation”). But even if the assertion
were correct, the point would remain that the preamble envisions an
active state role in overseeing how the right to keep and bear arms
is utilized, and in ensuring that it is channeled toward productive
ends. Footnote
45 Cf. Heller ,
554 U. S., at ___ (slip op., at 19) (Breyer, J., dissenting)
(detailing evidence showing that a “disproportionate amount of
violent and property crimes occur in urban areas, and urban
criminals are more likely than other offenders to use a firearm
during the commission of a violent crime”). Footnote
46 The fact that
Chicago’s handgun murder rate may have “actually increased since
the ban was enacted,” ante , at 2 (majority opinion), means
virtually nothing in itself. Countless factors unrelated to the
policy may have contributed to that trend. Without a sophisticated
regression analysis, we cannot even begin to speculate as to the
efficacy or effects of the handgun ban. Even with such an analysis,
we could never be certain as to the determinants of the city’s
murder rate. Footnote
47 In some sense, it is
no doubt true that the “best” solution is elusive for many “serious
social problems.” Ante , at 12 (opinion of Scalia, J.). Yet
few social problems have raised such heated empirical controversy
as the problem of gun violence. And few, if any, of the liberty
interests we have recognized under the Due Process Clause have
raised as many complications for judicial oversight as the interest
that is recognized today. See post , at
11–16. I agree with the
plurality that for a right to be eligible for substantive due
process recognition, there need not be “a ‘popular consensus’ that
the right is fundamental.” Ante , at 42. In our remarkably
diverse, pluralistic society, there will almost never be such
uniformity of opinion. But to the extent that popular consensus is
relevant, I do not agree with the Court that the amicus brief filed in this case by numerous state attorneys general
constitutes evidence thereof. Ante , at 42–43. It is
puzzling that so many state lawmakers have asked us to limit their option to regulate a dangerous item. Cf. post , at
9–10. Footnote
48 Likewise, no one
contends that those interested in personal self-defense—every
American, presumably—face any particular disadvantage in the
political process. All 50 States recognize self-defense as a
defense to criminal prosecution. See n. 32, supra . Footnote
49 See Heller ,
554 U. S., at ___ (slip op., at 27) (Stevens, J., dissenting)
(“Although it gives short shrift to the drafting history of the
Second Amendment, the Court dwells at length on four other sources:
the 17th-century English Bill of Rights; Blackstone’s Commentaries
on the Laws of England; postenactment commentary on the Second
Amendment; and post-Civil War legislative history”); see also post , at 2–5 (discussing professional historians’
criticisms of Heller ). Footnote
50 Indeed, this is truly
one of our most deeply rooted legal traditions. BREYER, J., DISSENTING MCDONALD V. CHICAGO 561 U. S. ____ (2010) SUPREME COURT OF THE UNITED STATES NO. 08-1521 OTIS McDONALD, et al., PETITIONERS v. CITY OF CHICAGO, ILLINOIS, et al.

															on writ of certiorari to the united states court of
appeals for the seventh circuit

															[June 28, 2010]

															   Justice Breyer, with whom Justice
Ginsburg and Justice Sotomayor join, dissenting.

															   In my view, Justice Stevens has
demonstrated that the Fourteenth Amendment’s guarantee of
“substantive due process” does not include a general right to keep
and bear firearms for purposes of private self-defense. As he
argues, the Framers did not write the Second Amendment with this
objective in view. See ante, at 41–44 (dissenting
opinion). Unlike other forms of substantive liberty, the carrying
of arms for that purpose often puts others’ lives at risk. See ante, at 35–37. And the use of arms for private
self-defense does not warrant federal constitutional protection
from state regulation. See ante, at 44–51.

															   The Court, however, does not expressly rest
its opinion upon “substantive due process” concerns. Rather, it
directs its attention to this Court’s “incorporation” precedents
and asks whether the Second Amendment right to private self-defense
is “fundamental” so that it applies to the States through the
Fourteenth Amendment. See ante, at 11–19.

															   I shall therefore separately consider the
question of “incorporation.” I can find nothing in the Second
Amendment’s text, history, or underlying rationale that could
warrant characterizing it as “fundamental” insofar as it seeks to
protect the keeping and bearing of arms for private self-defense
purposes. Nor can I find any justification for interpreting the
Constitution as transferring ultimate regulatory authority over the
private uses of firearms from democratically elected legislatures
to courts or from the States to the Federal Government. I therefore
conclude that the Fourteenth Amendment does not “incorporate” the
Second Amendment’s right “to keep and bear Arms.” And I
consequently dissent.

															I

															   The Second Amendment says: “A
well regulated Militia, being necessary to the security of a free
State, the right of the people to keep and bear Arms, shall not be
infringed.” Two years ago, in District of Columbia v. Heller , 554 U. S. ___ (2008), the Court rejected the
pre-existing judicial consensus that the Second Amendment was
primarily concerned with the need to maintain a “well regulated
Militia.” See id., at ___ (Stevens, J., dissenting) (slip
op., at 2–3, and n. 2, 38–45); United States v. Miller , 307
U. S. 174 , 178 (1939). Although the Court acknowledged that
“the threat that the new Federal Government would destroy the
citizens’ militia by taking away their arms was the reason that right … was codified in a written Constitution,” the Court
asserted that “individual self defense … was the central
component of the right itself.” Heller, supra , at ___
(slip op., at 26) (first emphasis added). The Court went on to hold
that the Second Amendment restricted Congress’ power to regulate
handguns used for self-defense, and the Court found
unconstitutional the District of Columbia’s ban on the possession
of handguns in the home. Id. , at ___ (slip op., at
64).

															   The Court based its conclusions
almost exclusively upon its reading of history. But the relevant
history in Heller was far from clear: Four dissenting
Justices disagreed with the majority’s historical analysis. And
subsequent scholarly writing reveals why disputed history provides
treacherous ground on which to build decisions written by judges
who are not expert at history.

															   Since Heller, historians, scholars,
and judges have continued to express the view that the Court’s
historical account was flawed. See, e.g., Konig, Why the
Second Amendment Has a Preamble: Original Public Meaning and the
Political Culture of Written Constitutions in Revolutionary
America, 56 UCLA L. Rev. 1295 (2009); Finkelman, It Really Was
About a Well Regulated Militia, 59 Syracuse L. Rev. 267
(2008); P. Charles, The Second Amendment: The Intent and Its
Interpretation by the States and the Supreme Court (2009); Merkel, The District of Columbia v. Heller and
Antonin Scalia’s Perverse Sense of Originalism, 13 Lewis &
Clark L. Rev. 349 (2009); Kozuskanich, Originalism in a
Digital Age: An Inquiry into the Right to Bear Arms, 29 J. Early
Republic 585 (2009); Cornell, St. George Tucker’s Lecture Notes,
the Second Amendment, and Originalist Methodology, 103 Nw.
U. L. Rev. 1541 (2009); Posner, In Defense of Looseness:
The Supreme Court and Gun Control, New Republic, Aug. 27, 2008, pp.
32–35; see also Epstein, A Structural Interpretation of the Second
Amendment: Why Heller is (Probably) Wrong on Originalist
Grounds, 59 Syracuse L. Rev. 171 (2008).

															   Consider as an example of these critiques an amici brief filed in this case by historians who
specialize in the study of the English Civil Wars. They tell us
that Heller misunderstood a key historical point. See
Brief for English/Early American Historians as Amici
Curiae (hereinafter English Historians’ Brief) (filed by 21
professors at leading universities in the United States, United
Kingdom, and Australia). Heller ’s conclusion that
“individual self-defense” was “the central component ” of
the Second Amendment’s right “to keep and bear Arms” rested upon
its view that the Amendment “codified a pre-existing right” that had “nothing whatever to do with service in a militia.”
554 U. S., at ___ (slip op., at 26, 19–20). That view in turn
rested in significant part upon Blackstone having described the
right as “ ‘the right of having and using arms for
self-preservation and defence,’ ” which reflected the
provision in the English Declaration of Right of 1689 that gave the
King’s Protestant “ ‘subjects’ ” the right to
“ ‘have Arms for their defence suitable to their Conditions,
and as allowed by law.’ ” Id. , at ___ (slip op., at
19–20) (quoting 1 W. Blackstone, Commentaries on the Laws of
England 140 (1765) (hereinafter Blackstone) and 1 W. & M., c.
2, §7, in 3 Eng. Stat. at Large 441 (1689)). The Framers, said the
majority, understood that right “as permitting a citizen to
‘repe[l] force by force’ when ‘the intervention of society in his
behalf, may be too late to prevent an injury.’ ” 554 U. S., at
___ (slip op., at 21) (quoting St. George Tucker, 1 Blackstone’s
Commentaries 145–146, n. 42 (1803)).

															   The historians now tell us, however, that the
right to which Blackstone referred had, not nothing , but everything , to do with the militia. As properly understood
at the time of the English Civil Wars, the historians claim, the
right to bear arms “ensured that Parliament had the power”
to arm the citizenry: “to defend the realm” in the case of a
foreign enemy, and to “secure the right of
‘self-preservation,’ ” or “self-defense,” should “ the
sovereign usurp the English Constitution.” English Historians’
Brief 3, 8–13, 23–24 (emphasis added). Thus, the Declaration of
Right says that private persons can possess guns only “as allowed
by law.” See id., at 20–24. Moreover, when Blackstone
referred to “ ‘the right of having and using arms for
self-preservation and defence,’ ” he was referring to the
right of the people “ to take part in the militia to defend
their political liberties ,” and to the right of
Parliament (which represented the people) to raise a
militia even when the King sought to deny it that power. Id., at 4, 24–27 (emphasis added) (quoting 1 Blackstone
140). Nor can the historians find any convincing reason to believe
that the Framers had something different in mind than what
Blackstone himself meant. Compare Heller, supra, at ___
(slip op., at 21–22) with English Historians’ Brief 28–40. The
historians concede that at least one historian takes a different
position, see id., at 7, but the Court, they imply, would
lose a poll taken among professional historians of this period,
say, by a vote of 8 to 1.

															   If history, and history alone, is what
matters, why would the Court not now reconsider Heller in
light of these more recently published historical views? See Leegin Creative Leather Products, Inc. v. PSKS,
Inc. , 551 U. S.
877 , 923–924 (2007) (Breyer, J., dissenting) (noting that stare decisis interests are at their lowest with respect
to recent and erroneous constitutional decisions that create
unworkable legal regimes); Citizens United v. Federal
Election Comm’n , 558 U. S. ___, ___ (2010) (slip op., at 47)
(listing similar factors); see also Wallace v. Jaffree , 472
U. S. 38 , 99 (1985) (Rehnquist, J., dissenting) (“ [S]tare
decisis may bind courts as to matters of law, but it cannot
bind them as to matters of history”). At the least, where Heller ’s historical foundations are so uncertain, why
extend its applicability?

															   My aim in referring to this history is to
illustrate the reefs and shoals that lie in wait for those
nonexpert judges who place virtually determinative weight upon
historical considerations. In my own view, the Court should not
look to history alone but to other factors as well—above all, in
cases where the history is so unclear that the experts themselves
strongly disagree. It should, for example, consider the basic
values that underlie a constitutional provision and their
contemporary significance. And it should examine as well the
relevant consequences and practical justifications that might, or
might not, warrant removing an important question from the
democratic decisionmaking process. See ante , at 16–20
(Stevens, J., dissenting) (discussing shortcomings of an
exclusively historical approach).

															II

															A

															   In my view, taking Heller as a given, the Fourteenth Amendment does not
incorporate the Second Amendment right to keep and bear arms for
purposes of private self-defense. Under this Court’s precedents, to
incorporate the private self-defense right the majority must show
that the right is, e.g. , “fundamental to the American
scheme of justice,” Duncan v. Louisiana , 391 U. S. 145 , 149 (1968); see ibid. , n. 14; see also ante, at 44
(plurality opinion) (finding that the right is “fundamental” and
therefore incorporated). And this it fails to do.

															   The majority here, like that in Heller, relies almost exclusively upon history to make the
necessary showing. Ante, at 20–33. But to do so for
incorporation purposes is both wrong and dangerous. As Justice
Stevens points out, our society has historically made mistakes—for
example, when considering certain 18th- and 19th-century property
rights to be fundamental. Ante, at 19 (dissenting
opinion). And in the incorporation context, as elsewhere, history
often is unclear about the answers. See Part I, supra; Part III, infra. Accordingly, this Court, in
considering an incorporation question, has never stated that the
historical status of a right is the only relevant consideration.
Rather, the Court has either explicitly or implicitly made clear in
its opinions that the right in question has remained fundamental
over time. See, e.g., Apodaca v. Oregon , 406 U. S. 404 , 410
(1972) (plurality opinion) (stating that the incorporation “inquiry
must focus upon the function served” by the right in question in
“ contemporary society ” (emphasis added)); Duncan v. Louisiana , 391 U. S. 145 , 154 (1968) (noting that
the right in question “continues to receive strong support”); Klopfer v. North Carolina , 386 U. S. 213 , 226
(1967) (same). And, indeed, neither of the parties before us in
this case has asked us to employ the majority’s history-constrained
approach. See Brief for Petitioners 67–69 (arguing for
incorporation based on trends in contemporary support for the
right); Brief for Respondents City of Chicago et al. 23–31
(hereinafter Municipal Respondents) (looking to current state
practices with respect to the right).

															   I thus think it proper, above all where
history provides no clear answer, to look to other factors in
considering whether a right is sufficiently “fundamental” to remove
it from the political process in every State. I would include among
those factors the nature of the right; any contemporary
disagreement about whether the right is fundamental; the extent to
which incorporation will further other, perhaps more basic,
constitutional aims; and the extent to which incorporation will
advance or hinder the Constitution’s structural aims, including its
division of powers among different governmental institutions (and
the people as well). Is incorporation needed, for example, to
further the Constitution’s effort to ensure that the government
treats each individual with equal respect? Will it help maintain
the democratic form of government that the Constitution foresees?
In a word, will incorporation prove consistent, or inconsistent,
with the Constitution’s efforts to create governmental institutions
well suited to the carrying out of its constitutional promises?

															   Finally, I would take account of the Framers’
basic reason for believing the Court ought to have the power of
judicial review. Alexander Hamilton feared granting that power to
Congress alone, for he feared that Congress, acting as judges,
would not overturn as unconstitutional a popular statute that it
had recently enacted, as legislators. The Federalist No. 78, p. 405
(G. Carey & J. McClellan eds. 2001) (A. Hamilton) (“This
independence of the judges is equally requisite to guard the
constitution and the rights of individuals from the effects of
those ill humours, which” can, at times, lead to “serious
oppressions of the minor part in the community”). Judges, he
thought, may find it easier to resist popular pressure to suppress
the basic rights of an unpopular minority. See United
States v. Carolene Products Co. , 304 U. S. 144 , 152,
n. 4 (1938). That being so, it makes sense to ask whether that
particular comparative judicial advantage is relevant to the case
at hand. See, e.g., J. Ely, Democracy and Distrust
(1980).

															B How do these
considerations apply here? For one thing, I would apply them only
to the private self-defense right directly at issue. After all, the
Amendment’s militia-related purpose is primarily to protect States from federal regulation, not to protect
individuals from militia-related regulation. Heller , 554
U. S., at ___ (slip op., at 26); see also Miller , 307 U.
S., at 178. Moreover, the Civil War Amendments, the electoral
process, the courts, and numerous other institutions today help to
safeguard the States and the people from any serious threat of
federal tyranny. How are state militias additionally necessary? It
is difficult to see how a right that, as the majority concedes, has
“largely faded as a popular concern” could possibly be so
fundamental that it would warrant incorporation through the
Fourteenth Amendment. Ante , at 22. Hence, the
incorporation of the Second Amendment cannot be based on the
militia-related aspect of what Heller found to be more
extensive Second Amendment rights.

															   For another thing, as Heller concedes, the private self-defense right that the
Court would incorporate has nothing to do with “the reason ” the Framers “codified” the right to keep and bear
arms “in a written Constitution.” 554 U. S., at ___ (slip op., at
26) (emphasis added). Heller immediately adds that the
self-defense right was nonetheless “the central component of the right.” Ibid. In my view, this is the historical
equivalent of a claim that water runs uphill. See Part I, supra . But, taking it as valid, the Framers’ basic reasons for including language in the Constitution would
nonetheless seem more pertinent (in deciding about the contemporary importance of a right) than the particular scope 17th- or 18th-century listeners would have then assigned to the
words they used. And examination of the Framers’ motivation tells
us they did not think the private armed self-defense right was of
paramount importance. See Amar, The Bill of Rights as a
Constitution, 100 Yale L. J. 1131, 1164 (1991) (“[T]o see the
[Second] Amendment as primarily concerned with an individual right
to hunt, or protect one’s home,” would be “like viewing the heart
of the speech and assembly clauses as the right of persons to meet
to play bridge”); see also, e.g., Rakove, The Second
Amendment: The Highest Stage of Originalism, 76 Chi.-Kent
L. Rev. 103, 127–128 (2000); Brief for Historians on Early
American Legal, Constitutional, and Pennsylvania History as Amici Curiae 22–33.

															   Further, there is no popular consensus that
the private self-defense right described in Heller is
fundamental. The plurality suggests that two amici briefs
filed in the case show such a consensus, see ante , at
42–43, but, of course, numerous amici briefs have been
filed opposing incorporation as well. Moreover, every State
regulates firearms extensively, and public opinion is sharply
divided on the appropriate level of regulation. Much of this
disagreement rests upon empirical considerations. One side believes
the right essential to protect the lives of those attacked in the
home; the other side believes it essential to regulate the right in
order to protect the lives of others attacked with guns. It seems
unlikely that definitive evidence will develop one way or the
other. And the appropriate level of firearm regulation has thus
long been, and continues to be, a hotly contested matter of
political debate. See, e.g., Siegel, Dead or Alive:
Originalism as Popular Constitutionalism in Heller , 122
Harv. L. Rev. 191, 201–246 (2008). (Numerous sources
supporting arguments and data in Part II–B can be found in the
Appendix, infra. )

															   Moreover, there is no reason here to believe
that incorporation of the private self-defense right will further
any other or broader constitutional objective. We are aware of no
argument that gun-control regulations target or are passed with the
purpose of targeting “discrete and insular minorities.” Carolene Products Co. , supra , at 153, n. 4;
see, e.g., ante, at 49–51 (Stevens, J.,
dissenting). Nor will incorporation help to assure equal respect
for individuals. Unlike the First Amendment’s rights of free
speech, free press, assembly, and petition, the private
self-defense right does not comprise a necessary part of the
democratic process that the Constitution seeks to establish. See, e.g., Whitney v. California , 274 U. S. 357 , 377
(1927) (Brandeis, J., concurring). Unlike the First Amendment’s
religious protections, the Fourth Amendment’s protection against
unreasonable searches and seizures, the Fifth and Sixth Amendments’
insistence upon fair criminal procedure, and the Eighth Amendment’s
protection against cruel and unusual punishments, 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. Unlike the protections offered by many
of these same Amendments, it does not involve matters as to which
judges possess a comparative expertise, by virtue of their close
familiarity with the justice system and its operation. And, unlike
the Fifth Amendment’s insistence on just compensation, it does not
involve a matter where a majority might unfairly seize for itself
property belonging to a minority. Finally, incorporation of the right will work a significant disruption in the constitutional
allocation of decisionmaking authority, thereby interfering with
the Constitution’s ability to further its objectives. First, on any reasonable accounting,
the incorporation of the right recognized in Heller would
amount to a significant incursion on a traditional and important
area of state concern, altering the constitutional relationship
between the States and the Federal Government. Private gun
regulation is the quintessential exercise of a State’s “police
power”— i.e. , the power to “protec[t] … the lives, limbs,
health, comfort, and quiet of all persons, and the protection of
all property within the State,” by enacting “all kinds of
restraints and burdens” on both “persons and property.” Slaughter-House Cases , 16 Wall. 36, 62 (1873) (internal
quotation marks omitted). The Court has long recognized that the
Constitution grants the States special authority to enact laws
pursuant to this power. See, e.g., Medtronic, Inc. v. Lohr , 518
U. S. 470 , 475 (1996) (noting that States have “great latitude”
to use their police powers (internal quotation marks omitted)); Metropolitan Life Ins. Co. v. Massachusetts , 471 U. S. 724 ,
756 (1985). A decade ago, we wrote that there is “no better example
of the police power” than “the suppression of violent crime.” United States v. Morrison , 529 U. S. 598 , 618
(2000). And examples in which the Court has deferred to state
legislative judgments in respect to the exercise of the police
power are legion. See, e.g., Gonzales v. Oregon , 546
U. S. 243 , 270 (2006) (assisted suicide); Washington v. Glucksberg, 521 U. S. 702 , 721
(1997) (same); Berman v. Parker , 348 U. S. 26 , 32 (1954)
(“We deal, in other words, with what traditionally has been known
as the police power. An attempt to define its reach or trace its
outer limits is fruitless …”). Second, determining the
constitutionality of a particular state gun law requires finding
answers to complex empirically based questions of a kind that
legislatures are better able than courts to make. See, e.g., Los Angeles v. Alameda Books,
Inc. , 535 U. S.
425 , 440 (2002) (plurality opinion); Turner Broadcasting
System, Inc. v. FCC , 520 U. S. 180 , 195–196
(1997). And it may require this kind of analysis in virtually every
case.

															   Government regulation of the right to bear
arms normally embodies a judgment that the regulation will help
save lives. The determination whether a gun regulation is
constitutional would thus almost always require the weighing of the
constitutional right to bear arms against the “primary concern of
every government—a concern for the safety and indeed the lives of
its citizens.” United States v. Salerno , 481 U. S. 739 , 755
(1987). With respect to other incorporated rights, this sort of
inquiry is sometimes present. See, e.g., Brandenburg v. Ohio , 395 U. S. 444 , 447
(1969) (per curiam) (free speech); Sherbert v. Verner , 374
U. S. 398 , 403 (1963) (religion); Brigham City v. Stuart , 547
U. S. 398 , 403–404 (2006) (Fourth Amendment); New York v. Quarles , 467 U. S. 649 , 655
(1984) (Fifth Amendment); Salerno, supra , at 755 (bail).
But here, this inquiry—calling for the fine tuning of protective
rules—is likely to be part of a daily judicial diet.

															   Given the competing interests, courts will
have to try to answer empirical questions of a particularly
difficult kind. Suppose, for example, that after a gun regulation’s
adoption the murder rate went up. Without the gun regulation would
the murder rate have risen even faster? How is this conclusion
affected by the local recession which has left numerous people
unemployed? What about budget cuts that led to a downsizing of the
police force? How effective was that police force to begin with?
And did the regulation simply take guns from those who use them for
lawful purposes without affecting their possession by
criminals?

															   Consider too that countless gun regulations of
many shapes and sizes are in place in every State and in many local
communities. 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? Semiautomatic
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
patdowns 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? As the questions
suggest, state and local gun regulation can become highly complex,
and these “are only a few uncertainties that quickly come to mind.” Caperton v. A. T. Massey Coal Co. , 556 U. S. ___,
___ (2009) (Roberts, C. J., dissenting) (slip op., at 10).

															   The difficulty of finding answers to these
questions is exceeded only by the importance of doing so. Firearms
cause well over 60,000 deaths and injuries in the United States
each year. Those who live in urban areas, police officers, women,
and children, all may be particularly at risk. And gun regulation
may save their lives. Some experts have calculated, for example,
that Chicago’s handgun ban has saved several hundred lives, perhaps
close to 1,000, since it was enacted in 1983. Other experts argue
that stringent gun regulations “can help protect police officers
operating on the front lines against gun violence,” have reduced
homicide rates in Washington, D. C., and Baltimore, and have
helped to lower New York’s crime and homicide rates.

															   At the same time, the opponents of regulation
cast doubt on these studies. And who is right? Finding out may
require interpreting studies that are only indirectly related to a
particular regulatory statute, say one banning handguns in the
home. Suppose studies find more accidents and suicides where there
is a handgun in the home than where there is a long gun in the home
or no gun at all? To what extent do such studies justify a ban?
What if opponents of the ban put forth counter studies?

															   In answering such questions judges cannot
simply refer to judicial homilies, such as Blackstone’s
18th-century perception that a man’s home is his castle. See 4
Blackstone 223. Nor can the plurality so simply reject, by mere
assertion, the fact that “incorporation will require judges to
assess the costs and benefits of firearms restrictions.” Ante , at 44. How can the Court assess the strength of the
government’s regulatory interests without addressing issues of
empirical fact? How can the Court determine if a regulation is
appropriately tailored without considering its impact? And how can
the Court determine if there are less restrictive alternatives
without considering what will happen if those alternatives are
implemented?

															   Perhaps the Court could lessen the difficulty
of the mission it has created for itself by adopting a
jurisprudential approach similar to the many state courts that
administer a state constitutional right to bear arms. See infra , at 19–20 (describing state approaches). But the
Court has not yet done so. Cf. Heller, 544 U. S., at ___
(slip op., at 57–64) (rejecting an “ ‘interest-balancing’
approach” similar to that employed by the States); ante ,
at 44 (plurality opinion). Rather, the Court has haphazardly
created a few simple rules, such as that it will not touch
“prohibitions on the possession of firearms by felons and the
mentally ill,” “laws forbidding the carrying of firearms in
sensitive places such as schools and government buildings,” or
“laws imposing conditions and qualifications on the commercial sale
of arms.” Heller , 544 U. S., at ___ (slip op., at 54–55); Ante, at 39 (plurality opinion). But why these rules and
not others? Does the Court know that these regulations are
justified by some special gun-related risk of death? In fact, the
Court does not know. It has simply invented rules that sound
sensible without being able to explain why or how Chicago’s handgun
ban is different.

															   The fact is that judges do not know the
answers to the kinds of empirically based questions that will often
determine the need for particular forms of gun regulation. Nor do
they have readily available “tools” for finding and evaluating the
technical material submitted by others. District Attorney’s
Office for Third Judicial Dist. v. Osborne , 557 U. S.
___, ___ (2009) (slip op., at 21); see also Turner
Broadcasting , 520 U. S., at 195–196 . Judges cannot
easily make empirically based predictions; they have no way to
gather and evaluate the data required to see if such predictions
are accurate; and the nature of litigation and concerns about stare decisis further make it difficult for judges to
change course if predictions prove inaccurate. Nor can judges rely
upon local community views and values when reaching judgments in
circumstances where prediction is difficult because the basic facts
are unclear or unknown.

															   At the same time, there is no institutional
need to send judges off on this “mission-almost-impossible.”
Legislators are able to “amass the stuff of actual experience and
cull conclusions from it.” United States v. Gainey , 380
U. S. 63 , 67 (1965). They are far better suited than judges to
uncover facts and to understand their relevance. And legislators,
unlike Article III judges, can be held democratically responsible
for their empirically based and value-laden conclusions. We have
thus repeatedly affirmed our preference for “legislative not
judicial solutions” to this kind of problem, see, e.g., Patsy v. Board of Regents of Fla. , 457 U. S. 496 , 513
(1982), just as we have repeatedly affirmed the Constitution’s
preference for democratic solutions legislated by those whom the
people elect.

															   In New State Ice Co. v. Liebmann , 285 U. S. 262 , 310–311
(1932), Justice Brandeis stated in dissent:

															“Some people assert that our present plight is due,
in part, to the limitations set by courts upon experimentation in
the fields of social and economic science; and to the
discouragement to which proposals for betterment there have been
subjected otherwise. There must be power in the States and the
Nation to remould, through experimentation, our economic practices
and institutions to meet changing social and economic needs. I
cannot believe that the framers of the Fourteenth Amendment, or the
States which ratified it, intended to deprive us of the power to
correct [the social problems we face].”

															   There are 50 state legislatures.
The fact that this Court may already have refused to take this wise
advice with respect to Congress in Heller is no reason to
make matters worse here. Third, the ability of States to
reflect local preferences and conditions—both key virtues of
federalism—here has particular importance. The incidence of gun
ownership varies substantially as between crowded cities and
uncongested rural communities, as well as among the different
geographic regions of the country. Thus, approximately 60% of
adults who live in the relatively sparsely populated Western States
of Alaska, Montana, and Wyoming report that their household keeps a
gun, while fewer than 15% of adults in the densely populated
Eastern States of Rhode Island, New Jersey, and Massachusetts say
the same.

															   The nature of gun violence also varies as
between rural communities and cities. Urban centers face
significantly greater levels of firearm crime and homicide, while
rural communities have proportionately greater problems with
nonhomicide gun deaths, such as suicides and accidents. And
idiosyncratic local factors can lead to two cities finding
themselves in dramatically different circumstances: For example, in
2008, the murder rate was 40 times higher in New Orleans than it
was in Lincoln, Nebraska.

															   It is thus unsurprising that States and local
communities have historically differed about the need for gun
regulation as well as about its proper level. Nor is it surprising
that “primarily, and historically,” the law has treated the
exercise of police powers, including gun control, as “matter[s] of
local concern.” Medtronic, 518 U. S., at 475 (internal
quotation marks omitted). Fourth, although incorporation of any
right removes decisions from the democratic process, the
incorporation of this particular right does so without strong
offsetting justification—as the example of Oak Park’s handgun ban
helps to show. See Oak Park, Ill., Municipal Code, §27–2–1 (1995).
Oak Park decided to ban handguns in 1983, after a local attorney
was shot to death with a handgun that his assailant had smuggled
into a courtroom in a blanket. Brief for Oak Park Citizens
Committee for Handgun Control as Amicus Curiae 1, 21
(hereinafter Oak Park Brief). A citizens committee spent months
gathering information about handguns. Id., at 21. It
secured 6,000 signatures from community residents in support of a
ban. Id., at 21–22. And the village board enacted a ban
into law. Id., at 22.

															   Subsequently, at the urging of ban opponents
the Board held a community referendum on the matter. Ibid. The citizens committee argued strongly in favor of the ban. Id., at 22–23. It pointed out that most guns owned in Oak
Park were handguns and that handguns were misused more often than
citizens used them in self-defense. Id., at 23. The ban
opponents argued just as strongly to the contrary. Ibid .
The public decided to keep the ban by a vote of 8,031 to 6,368. Ibid. And since that time, Oak Park now tells us, crime
has decreased and the community has seen no accidental handgun
deaths. Id., at 2.

															   Given the empirical and local value-laden
nature of the questions that lie at the heart of the issue, why, in
a Nation whose Constitution foresees democratic decisionmaking, is
it so fundamental a matter as to require taking that power
from the people? What is it here that the people did not know? What
is it that a judge knows better?

															*  *  *

															   In sum, the police power, the
superiority of legislative decisionmaking, the need for local
decisionmaking, the comparative desirability of democratic
decisionmaking, the lack of a manageable judicial standard, and the
life-threatening harm that may flow from striking down regulations
all argue against incorporation. Where the incorporation of other
rights has been at issue, some of these problems have
arisen. But in this instance all these problems are
present, all at the same time, and all are likely
to be present in most, perhaps nearly all, of the cases in which
the constitutionality of a gun regulation is at issue. At the same
time, the important factors that favor incorporation in other
instances— e.g. , the protection of broader constitutional
objectives—are not present here. The upshot is that all factors
militate against incorporation—with the possible exception of
historical factors.

															III

															   I must, then, return to history.
The plurality, in seeking to justify incorporation, asks whether
the interests the Second Amendment protects are “ ‘deeply
rooted in this Nation’s history and tradition.’ ” Ante , at 19 (quoting Glucksberg , 521 U. S., at
721; internal quotation marks omitted). It looks to selected
portions of the Nation’s history for the answer. And it finds an
affirmative reply.

															   As I have made clear, I do not
believe history is the only pertinent consideration. Nor would I
read history as broadly as the majority does. In particular, since
we here are evaluating a more particular right—namely, the right to
bear arms for purposes of private self-defense—general historical
references to the “right to keep and bear arms” are not always
helpful. Depending upon context, early historical sources may mean
to refer to a militia-based right—a matter of considerable
importance 200 years ago—which has, as the majority points out,
“largely faded as a popular concern.” Ante , at 22. There
is no reason to believe that matters of such little contemporary
importance should play a significant role in answering the
incorporation question. See Apodaca , 406 U. S., at 410
(incorporation “inquiry must focus upon the function served” by the
right in question in “contemporary society”); Wolf v. Colorado , 338 U. S. 25 , 27 (1949)
(incorporation must take into account “the movements of a free
society” and “the gradual and empiric process of inclusion and
exclusion” (internal quotation marks omitted)); cf. U. S. Const.,
Art. I, §910 (prohibiting federal officeholders from accepting a
“Title, of any kind whatever, from [a] foreign State”—presumably a
matter of considerable importance 200 years ago).

															   That said, I can find much in the historical
record that shows that some Americans in some places at certain
times thought it important to keep and bear arms for private
self-defense. For instance, the reader will see that many States
have constitutional provisions protecting gun possession. But, as
far as I can tell, those provisions typically do no more than
guarantee that a gun regulation will be a reasonable police power regulation. See Winkler, Scrutinizing the Second
Amendment, 105 Mich. L. Rev. 683, 686, 716–717 (2007) (the
“courts of every state to consider the question apply a deferential
‘reasonable regulation’ standard”) (hereinafter Winkler,
Scrutinizing); see also id. , at 716–717 (explaining the
difference between that standard and ordinary rational-basis
review). It is thus altogether unclear whether such provisions
would prohibit cities such as Chicago from enacting laws, such as
the law before us, banning handguns. See id., at 723. The
majority, however, would incorporate a right that is likely inconsistent with Chicago’s law; and the majority would
almost certainly strike down that law. Cf. Heller, 554 U. S., at ___ (slip op., at 57–64) (striking
down the District of Columbia’s handgun ban).

															   Thus, the specific question before us is not
whether there are references to the right to bear arms for
self-defense throughout this Nation’s history—of course there
are—or even whether the Court should incorporate a simple
constitutional requirement that firearms regulations not
unreasonably burden the right to keep and bear arms, but rather
whether there is a consensus that so substantial a private
self-defense right as the one described in Heller applies
to the States. See, e.g., Glucksberg , supra, at 721 (requiring “a careful description” of the
right at issue when deciding whether it is “deeply rooted in this
Nation’s history and tradition” (internal quotation marks
omitted)). On this question, the reader will have to make up his or
her own mind about the historical record that I describe in part
below. In my view, that record is insufficient to say that the
right to bear arms for private self-defense, as explicated by Heller , is fundamental in the sense relevant to the
incorporation inquiry. As the evidence below shows, States and
localities have consistently enacted firearms regulations,
including regulations similar to those at issue here, throughout
our Nation’s history. Courts have repeatedly upheld such
regulations. And it is, at the very least, possible, and perhaps
likely, that incorporation will impose on every, or nearly every,
State a different right to bear arms than they currently
recognize—a right that threatens to destabilize settled state legal
principles. Cf. 554 U. S., at ___ (slip op., at 57–64) (rejecting
an “ ‘interest-balancing’ approach” similar to that employed
by the States).

															   I thus cannot find a historical consensus with
respect to whether the right described by Heller is
“fundamental” as our incorporation cases use that term. Nor can I
find sufficient historical support for the majority’s conclusion
that that right is “deeply rooted in this Nation’s history and
tradition.” Instead, I find no more than ambiguity and uncertainty
that perhaps even expert historians would find difficult to
penetrate. And a historical record that is so ambiguous cannot
itself provide an adequate basis for incorporating a private right
of self-defense and applying it against the States. The Eighteenth Century The opinions in Heller collect much
of the relevant 18th-century evidence. See 554 U. S., at ___ (slip
op., at 5–32); id. , at ___ (Stevens, J., dissenting) (slip
op., at 5–31); id., at ___ (Breyer, J., dissenting) (slip
op., at 4–7). In respect to the relevant question—the “deeply
rooted nature” of a right to keep and bear arms for purposes of
private self-defense—that evidence is inconclusive, particularly
when augmented as follows: First , as I have noted earlier in
this opinion, and Justice Stevens argued in dissent, the history
discussed in Heller shows that the Second Amendment was
enacted primarily for the purpose of protecting militia-related
rights. See supra , at 4; Heller, supra, at ___
(slip op., at 5–31). Many of the scholars and historians who have
written on the subject apparently agree. See supra , at
2–5. Second , historians now tell us that
the right to which Blackstone referred, an important link in the Heller majority’s historical argument, concerned the right
of Parliament (representing the people) to form a militia to oppose
a tyrant (the King) threatening to deprive the people of their
traditional liberties (which did not include an unregulated right
to possess guns). Thus, 18th-century language referring to a “right
to keep and bear arms” does not ipso facto refer to a
private right of self-defense—certainly not unambiguously so. See
English Historians’ Brief 3–27; see also supra , at
2–5. Third , scholarly articles indicate
that firearms were heavily regulated at the time of the
framing—perhaps more heavily regulated than the Court in Heller believed. For example, one scholar writes that
“[h]undreds of individual statutes regulated the possession and use
of guns in colonial and early national America.” Churchill, Gun
Regulation, the Police Power, and the Right to Keep Arms, 25 Law
& Hist. Rev. 139, 143 (2007). Among these statutes was a ban on
the private firing of weapons in Boston, as well as comprehensive
restrictions on similar conduct in Philadelphia and New York. See
Acts and Laws of Massachusetts, p. 208 (1746); 5 J. Mitchell, &
H. Flanders, Statutes at Large of Pennsylvania From 1682 to 1801,
pp. 108–109 (1898); 4 Colonial Laws of New York ch. 1233, p. 748
(1894); see also Churchill, supra , at 162–163 (discussing
bans on the shooting of guns in Pennsylvania and New York). Fourth , after the Constitution was
adopted, several States continued to regulate firearms possession
by, for example, adopting rules that would have prevented the
carrying of loaded firearms in the city, Heller , 554 U.
S., at ___ (slip op., at 5–7) (Breyer, J., dissenting); see also id. , at ___ (slip op., at 59–60). Scholars have thus
concluded that the primary Revolutionary era limitation on a
State’s police power to regulate guns appears to be only that
regulations were “aimed at a legitimate public purpose” and
“consistent with reason.” Cornell, Early American Gun Regulation
and the Second Amendment, 25 Law & Hist. Rev. 197, 198
(2007). The Pre-Civil War Nineteenth Century I would also augment the majority’s account of
this period as follows: First , additional States began to
regulate the discharge of firearms in public places. See, e.g., Act of Feb. 17, 1831, §6, reprinted in 3 Statutes of
Ohio and the Northwestern Territory 1740 (S. Chase ed. 1835); Act
of Dec. 3, 1825, ch. CCXCII, §3, 1825 Tenn. Priv. Acts 306. Second , States began to regulate the
possession of concealed weapons, which were both popular and
dangerous. See, e.g., C. Cramer, Concealed Weapon Laws of
the Early Republic 143–152 (1999) (collecting examples); see also
1837–1838 Tenn. Pub. Acts ch. 137, pp. 200–201 (banning the
wearing, sale, or giving of Bowie knives); 1847 Va. Acts ch. 7, §8,
p. 110, (“Any free person who shall habitually carry about his
person, hidden from common observation, any pistol, dirk, bowie
knife, or weapon of the like kind, from the use of which the death
of any person might probably ensue, shall for every offense be
punished by [a] fine not exceed fifty dollars”).

															   State courts repeatedly upheld the validity of
such laws, finding that, even when the state constitution granted a
right to bear arms, the legislature was permitted to, e.g. , “abolish” these small, inexpensive, “most dangerous
weapons entirely from use,” even in self-defense. Day v. State , 37 Tenn. 496, 500 (1857); see also, e.g. , State v. Jumel , 13 La. Ann. 399, 400 (1858)
(upholding concealed weapon ban because it “prohibited only a particular mode of bearing arms which is found dangerous
to the peace of society”); State v. Chandler , 5
La. Ann. 489, 489–490 (1850) (upholding concealed weapon ban and
describing the law as “absolutely necessary to counteract a vicious
state of society, growing out of the habit of carrying concealed
weapons”); State v. Reid , 1 Ala. 612, 616–617
(1840). The Post-Civil War Nineteenth Century It is important to read the majority’s account
with the following considerations in mind: First, the Court today properly
declines to revisit our interpretation of the Privileges or
Immunities Clause. See ante , at 10. The Court’s case for
incorporation must thus rest on the conclusion that the right to
bear arms is “fundamental.” But the very evidence that it advances
in support of the conclusion that Reconstruction-era Americans
strongly supported a private self-defense right shows with equal
force that Americans wanted African-American citizens to have the same rights to possess guns as did white citizens. Ante, at 22–33. Here, for example is what Congress said
when it enacted a Fourteenth Amendment predecessor, the Second
Freedman’s Bureau Act. It wrote that the statute, in order to
secure “the constitutional right to bear arms … for all citizens,”
would assure that each citizen:

															“shall have … full and equal benefit of
all laws and proceedings concerning personal liberty, personal
security, and the acquisition, enjoyment, and disposition of
estate, real and personal, including the constitutional right to
bear arms, [by securing] … to … all the citizens of [every] … State
or district without respect to race or color, or previous
condition of slavery.” §14, 14 Stat. 176–177 (emphasis
added).

															This sounds like an antidiscrimination provision. See Rosenthal, The New Originalism Meets the Fourteenth
Amendment: Original Public Meaning and the Problem of
Incorporation, 18 J. Contemp. Legal Issues 361, 383–384 (2009)
(discussing evidence that the Freedmen’s Bureau was focused on
discrimination).

															   Another Fourteenth Amendment predecessor, the
Civil Rights Act of 1866, also took aim at discrimination. See §1, 14 Stat. 27 (citizens of “every race and color, without
regard to any previous condition of slavery or involuntary
servitude . . . shall have the same right [to engage in various
activities] and to full and equal benefit of all laws … as is
enjoyed by white citizens”). And, of course, the Fourteenth
Amendment itself insists that all States guarantee their citizens
the “equal protection of the laws.”

															   There is thus every reason to believe that the fundamental concern of the Reconstruction Congress was the
eradication of discrimination, not the provision of a new
substantive right to bear arms free from reasonable state police
power regulation. See, e.g., Brief for Municipal
Respondents 62–69 (discussing congressional record evidence that
Reconstruction Congress was concerned about discrimination).
Indeed, why would those who wrote the Fourteenth Amendment have
wanted to give such a right to Southerners who had so recently
waged war against the North, and who continued to disarm and
oppress recently freed African-American citizens? Cf. Act of Mar.
2, 1867, §6, 14 Stat. 487 (disbanding Southern militias because
they were, inter alia , disarming the freedmen). Second, firearms regulation in the
later part of the 19th century was common. The majority is correct
that the Freedmen’s Bureau points to a right to bear arms, and it
stands to reason, as the majority points out, that “[i]t would have
been nonsensical for Congress to guarantee the … equal benefit of a
… right that does not exist.” Ante , at 32. But the
majority points to no evidence that there existed during this
period a fundamental right to bear arms for private self-defense
immune to the reasonable exercise of the state police power. See
Emberton, The Limits of Incorporation: Violence, Gun Rights, and
Gun Regulation in the Reconstruction South, 17 Stan. L. & Pol’y
Rev. 615, 621–622 (2006) (noting that history shows that
“nineteenth-century Americans” were “not opposed to the idea that
the state should be able to control the use of firearms”).

															   To the contrary, in the latter half of the
19th century, a number of state constitutions adopted or amended
after the Civil War explicitly recognized the legislature’s general
ability to limit the right to bear arms. See Tex. Const., Art. I,
§13 (1869) (protecting “the right to keep and bear arms,” “under
such regulations as the legislature may prescribe”); Idaho Const.,
Art. I, §11 (1889) (“The people have the right to bear arms …; but
the Legislature shall regulate the exercise of this right by law”);
Utah Const., Art. I, §6 (1896) (same). And numerous other state
constitutional provisions adopted during this period explicitly
granted the legislature various types of regulatory power over
firearms. See Brief for Thirty-Four Professional Historians
et al. as Amici Curiae 14–15 (hereinafter Legal
Historians’ Brief).

															   Moreover, four States largely banned the
possession of all nonmilitary handguns during this period. See 1879
Tenn. Pub. Acts ch. 186, §1 (prohibiting citizens from carrying
“publicly or privately, any … belt or pocket pistol, revolver, or
any kind of pistol, except the army or navy pistol, usually used in
warfare, which shall be carried openly in the hand”); 1876 Wyo.
Comp. Laws ch. 52, §1 (forbidding “concealed or ope[n]” bearing of
“any fire arm or other deadly weapon, within the limits of any
city, town or village”); Ark. Act of Apr. 1, 1881, ch. 96, §1
(prohibiting the “wear[ing] or carry[ng]” of “any pistol … except
such pistols as are used in the army or navy,” except while
traveling or at home); Tex. Act of Apr. 12, 1871, ch. 34
(prohibiting the carrying of pistols unless there are “immediate
and pressing” reasonable grounds to fear “immediate and pressing”
attack or for militia service). Fifteen States banned the concealed
carry of pistols and other deadly weapons. See Legal Historians’
Brief 16, n. 14. And individual municipalities enacted
stringent gun controls, often in response to local conditions—Dodge
City, Kansas, for example, joined many western cattle towns in
banning the carrying of pistols and other dangerous weapons in
response to violence accompanying western cattle drives. See Brief
for Municipal Respondents 30 (citing Dodge City, Kan., Ordinance
No. 16, §XI (Sept. 22, 1876)); D. Courtwright, The Cowboy
Subculture, in Guns in America: A Reader 96 (J. Dizard et al.
eds. 1999) (discussing how Western cattle towns required cowboys to
“check” their guns upon entering town).

															   Further, much as they had during the period
before the Civil War, state courts routinely upheld such
restrictions. See, e.g., English v. State , 35
Tex. 473 (1871); Hill v. State , 53 Ga. 472, 475
(1874); Fife v. State , 31 Ark. 455, 461 (1876); State v. Workman , 35 W. Va. 367, 373 (1891).
The Tennessee Supreme Court, in upholding a ban on possession of
nonmilitary handguns and certain other weapons, summarized the
Reconstruction understanding of the states’ police power to
regulate firearms:

															“Admitting the right of self-defense in its
broadest sense, still on sound principle every good citizen is
bound to yield his preference as to the means to be used, to the
demands of the public good; and where certain weapons are
forbidden to be kept or used by the law of the land , in order
to the prevention of [sic] crime—a great public end— no
man can be permitted to disregard this general end, and demand of
the community the right, in order to gratify his whim or willful
desire to use a particular weapon in his particular
self-defense . The law allows ample means of self-defense,
without the use of the weapons which we have held may be rightfully
prescribed by this statute. The object being to banish these
weapons from the community by an absolute prohibition for the
prevention of crime, no man’s particular safety, if such case could
exist, ought to be allowed to defeat this end.” Andrews v. State , 50 Tenn. 165, 188–189 (1871) (emphasis added). The Twentieth and Twenty-First
Centuries Although the majority does not discuss 20th-
or 21st-century evidence concerning the Second Amendment at any
length, I think that it is essential to consider the recent history
of the right to bear arms for private self-defense when considering
whether the right is “fundamental.” To that end, many States now
provide state constitutional protection for an individual’s right
to keep and bear arms. See Volokh, State Constitutional Rights to
Keep and Bear Arms, 11 Tex. Rev. L. & Pol. 191, 205 (2006)
(identifying over 40 States). In determining the importance of this
fact, we should keep the following considerations in mind: First , by the end of the 20th
century, in every State and many local communities, highly detailed
and complicated regulatory schemes governed (and continue to
govern) nearly every aspect of firearm ownership: Who may sell guns
and how they must be sold; who may purchase guns and what type of
guns may be purchased; how firearms must be stored and where they
may be used; and so on. See generally Legal Community Against
Violence, Regulating Guns In America (2008), available at http://
www.lcav.org/publications-briefs/regulating_guns. asp (all Internet
materials as visited June 24, 2010, and available in Clerk of
Court’s case file) (detailing various arms regulations in every
State).

															   Of particular relevance here, some
municipalities ban handguns, even in States that constitutionally
protect the right to bear arms. See Chicago, Ill., Municipal Code,
§8–20–050(c) (2009); Oak Park, Ill., Municipal Code, §§27–2–1,
27–1–1 (1995); Toledo, Ohio, Municipal Code, ch. 549.25 (2010).
Moreover, at least seven States and Puerto Rico ban assault weapons
or semiautomatic weapons. See Cal. Penal Code Ann. §12280(b) (West
Supp. 2009); Conn. Gen. Stat. Ann. §53–202c (2007); Haw. Rev. Stat.
§134–8 (1993); Md. Crim. Law Code Ann. §4–303(a) (Lexis 2002);
Mass. Gen. Laws, ch. 140, §131M (West 2006); N. J. Stat. Ann.
§2C:39-5 (West Supp. 2010); N. Y. Penal Law Ann. §265.02(7) (West
Supp. 2008); 25 Laws P. R. Ann. §456m (Supp. 2006); see also 18 U.
S. C. §922 (o) (federal machinegun ban).

															   Thirteen municipalities do the same. See
Albany, N. Y., City Code §193–16(A) (2005); Aurora, Ill., Code of
Ordinances §29–49(a) (2009); Buffalo, N. Y., City Code §180–1(F)
(2000); Chicago, Ill., Municipal Code §8–24–025(a) (2010);
Cincinnati, Ohio, Municipal Code §708–37(a) (2008); Cleveland,
Ohio, Codified Ordinances §628.03(a) (2008); Columbus, Ohio, City
Code §2323.31 (2007); Denver, Colo., Municipal Code §38–130(e)
(2008); Morton Grove, Ill., Village Code §6–2–3(A); N. Y. C. Admin.
Code §10–303.1 (2009); Oak Park, Ill., Village Code §27–2–1 (2009);
Rochester, N. Y., City Code §47–5(F) (2008); Toledo, Ohio,
Municipal Code §549.23(a). And two States, Maryland and Hawaii, ban
assault pistols. See Haw. Rev. Stat. Ann. §134–8; Md. Crim. Law
Code Ann. §4–303 (Lexis 2002). Second, as I stated earlier, state
courts in States with constitutions that provide gun rights have
almost uniformly interpreted those rights as providing protection
only against unreasonable regulation of guns. See, e.g., Winkler, Scrutinizing 686 (the “courts of every
state to consider” a gun regulation apply the “ ‘reasonable
regulation’ ” approach); State v. McAdams ,
714 P. 2d 1236, 1238 (Wyo. 1986); Robertson v. City & County of Denver , 874 P. 2d 325, 328
(Colo. 1994).

															   When determining reasonableness those courts
have normally adopted a highly deferential attitude towards
legislative determinations. See Winkler, Scrutinizing 723
(identifying only six cases in the 60 years before the article’s
publication striking down gun control laws: three that banned “the
transportation of any firearms for any purpose whatsoever,” a
single “permitting law,” and two as-applied challenges in “unusual
circumstances”). Hence, as evidenced by the breadth of existing
regulations, States and local governments maintain substantial
flexibility to regulate firearms—much as they seemingly have
throughout the Nation’s history—even in those States with an arms
right in their constitutions.

															    Although one scholar implies that state
courts are less willing to permit total gun prohibitions, see
Volokh, Implementing the Right to Keep and Bear Arms for
Self-Defense: An Analytical Framework and a Research Agenda, 56
UCLA L. Rev. 1443, 1458 (2009), I am aware of no instances in
the past 50 years in which a state court has struck down as
unconstitutional a law banning a particular class of firearms, see
Winkler, Scrutinizing 723.

															   Indeed, state courts have specifically upheld
as constitutional (under their state constitutions) firearms
regulations that have included handgun bans. See Kalodimos v. Village of Morton Grove , 103 Ill. 2d 483, 499, 470
N. E. 2d 266, 273 (1984) (upholding a handgun ban because the
arms right is merely a right “to possess some form of weapon
suitable for self-defense or recreation”); Cleveland v. Turner, No. 36126, 1977 WL 201393, *5 (Ohio Ct. App., Aug.
4, 1977) (handgun ban “does not absolutely interfere with the right
of the people to bear arms, but rather proscribes possession of a
specifically defined category of handguns”); State v. Bolin 378 S. C. 96, 99, 662 S. E. 2d 38, 39
(2008) (ban on handgun possession by persons under 21 did not
infringe arms right because they can “posses[s] other types of
guns”). Thus, the majority’s decision to incorporate the private
self-defense right recognized in Heller threatens to alter
state regulatory regimes, at least as they pertain to handguns. Third , the plurality correctly points
out that only a few state courts, a “paucity” of state
courts, have specifically upheld handgun bans. Ante, at
39. But which state courts have struck them down? The absence of
supporting information does not help the majority find support. Cf. United States v. Wells , 519 U. S. 482 , 496
(1997) (noting that it is “treacherous to find in congressional
silence alone the adoption of a controlling rule of law” (internal
quotation marks omitted)). Silence does not show or tend to show a
consensus that a private self-defense right (strong enough to
strike down a handgun ban) is “deeply rooted in this Nation’s
history and tradition.”

															*  *  *

															   In sum, the Framers did not write
the Second Amendment in order to protect a private right of armed
self-defense. There has been, and is, no consensus that the right
is, or was, “fundamental.” No broader constitutional interest or
principle supports legal treatment of that right as fundamental. To
the contrary, broader constitutional concerns of an institutional
nature argue strongly against that treatment.

															   Moreover, nothing in 18th-,
19th-, 20th-, or 21st-century history shows a consensus that the
right to private armed self-defense, as described in Heller , is “deeply rooted in this Nation’s history or
tradition” or is otherwise “fundamental.” Indeed, incorporating the
right recognized in Heller may change the law in many of
the 50 States. Read in the majority’s favor, the historical
evidence is at most ambiguous. And, in the absence of any other
support for its conclusion, ambiguous history cannot show that the
Fourteenth Amendment incorporates a private right of self-defense
against the States.

															   With respect, I dissent.

															APPENDIX

															Sources Supporting Data in Part II–B Popular Consensus Please see the following sources to support the paragraph on
popular opinion on pages 9–10:

															•Briefs filed in this case that argue against incorporation
include: Brief for United States Conference of Mayors as Amicus
Curiae 1, 17–33 (organization representing “all United States
cities with populations of 30,000 or more”); Brief for American
Cities et al. as Amici Curiae 1–3 (brief filed on
behalf of many cities, e.g. , Philadelphia, Seattle, San
Francisco, Oakland, Cleveland); Brief for Representative Carolyn
McCarthy et al. as Amici Curiae 5–10; Brief for State
of Illinois et al. as Amici Curiae 7–35.

															•Wilkinson, Of Guns, Abortions, and the Unraveling Rule of Law,
95 Va. L. Rev. 253, 301 (2009) (discussing divided public
opinion over the correct level of gun control). Data on Gun Violence Please see the following sources to support
the sentences concerning gun violence on page 13:

															•Dept. of Justice, Bureau of Justice Statistics, M. Zawitz &
K. Strom, Firearm Injury and Death from Crime, 1993–1997, p. 2
(Oct. 2000) (over 60,000 deaths and injuries caused by firearms
each year).

															•Campbell, et al., Risk Factors for Femicide in Abusive
Relationships: Results from a Multisite Case Control Study, 93 Am.
J. of Pub. Health 1089, 1092 (2003) (noting that an abusive
partner’s access to a firearm increases the risk of homicide
eightfold for women in physically abusive relationship).

															•American Academy of Pediatrics, Firearm-Related Injuries
Affecting the Pediatric Population, 105 Pediatrics 888 (2000)
(noting that in 1997 “firearm-related deaths accounted for 22.5% of
all injury deaths” for individuals between 1 and 19).

															•Dept. of Justice, Federal Bureau of Investigation, Law
Enforcement Officers Killed & Assaulted, 2006, (Table) 27
(noting that firearms killed 93% of the 562 law enforcement
officers feloniously killed in the line of duty between 1997 and
2006), online at http://www.fbi.gov/ucr/killed/2006/
table27.html.

															•Dept. of Justice, Bureau of Justice Statistics, D. Duhart,
Urban, Suburban, and Rural Victimization, 1993–1998, pp. 1, 9 (Oct.
2000) (those who live in urban areas particularly at risk of
firearm violence).

															•Wintemute, The Future of Firearm Violence Prevention, 281 JAMA
475 (1999) (“half of all homicides occurred in 63 cities with 16%
of the nation’s population”). Data on the Effectiveness of Regulation Please see the following sources to support
the sentences concerning the effectiveness of regulation on page
13:

															•See Brief for Professors of Criminal Justice as Amici
Curiae 13 (noting that Chicago’s handgun ban saved several
hundred lives, perhaps close to 1,000, since it was enacted in
1983).

															•Brief for Association of Prosecuting Attorneys et al. as Amici Curiae 13–16, 20 (arguing that stringent gun
regulations “can help protect police officers operating on the
front lines against gun violence,” and have reduced homicide rates
in Washington, D. C., and Baltimore).

															•Brief for United States Conference of Mayors as Amici
Curiae 4–13 (arguing that gun regulations have helped to lower
New York’s crime and homicide rates). Data on Handguns in the Home Please see the following sources referenced in
the sentences discussing studies concerning handguns in the
home on pages 13–14:

															•Brief for Organizations Committed to Protecting the Public’s
Health, Safety, and Well-Being as Amici Curiae in Support
of Respondents 13–16 (discussing studies that show handgun
ownership in the home is associated with increased risk of
homicide).

															•Wiebe, Firearms in US Homes as a Risk Factor for Unintentional
Gunshot Fatality, 35 Accident Analysis and Prevention 711, 713–714
(2003) (showing that those who die in firearms accidents are nearly
four times more likely than average to have a gun in their
home).

															•Kellerman et al., Suicide in the Home in Relation to Gun
Ownership, 327 New England J. Medicine 467, 470 (1992)
(demonstrating that “homes with one or more handguns were
associated with a risk of suicide almost twice as high as that in
homes containing only long guns”). Data on Regional Views and Conditions Please see the following sources referenced in
the section on the diversity of regional views and conditions on
page 16:

															•Okoro, et al., Prevalence of Household Firearms and
Firearm-Storage Practices in the 50 States and the District of
Columbia: Findings From the Behavioral Risk Factor Surveillance
System, 2002, 116 Pediatrics 370, 372 (2005) (presenting data on
firearm ownership by State).

															•Heller, 554 U. S., at ___ (Breyer, J., dissenting) (slip op.,
at 19–20) (discussing various sources showing that gun violence
varies by state, including Wintemute, The Future of Firearm
Violence Prevention, 281 JAMA 475 (1999)).

															•Heller, supra, at ___ (Breyer, J., dissenting) (slip op., at
19–20) (citing Branas, Nance, Elliott, Richmond, & Schwab,
Urban-Rural Shifts in Intentional Firearm Death, 94 Am. J. Public
Health 1750, 1752 (2004)) (discussing the fact that urban centers
face significantly greater levels of firearm crime and homicide,
while rural communities have proportionately greater problems with
nonhomicide gun deaths, such as suicides and accidents).

															•Dept. of Justice, Federal Bureau of Investigation, 2008 Crime
in the United States, tbl. 6 (noting that murder rate is 40 times
higher in New Orleans than it is in Lincoln, Nebraska).