Please E-mail suggested additions, comments and/or corrections to Kent@MoreLaw.Com.

Help support the publication of case reports on MoreLaw

Date: 06-28-2010

Case Style: McDonald, et al. v. City of Chicago

Case Number: 08–1521

Judge: Alito

Court: Supreme Court of the United States on appeal from the Northern District of Illinois (Cook County)

Plaintiff's Attorney: Alan Gura, Gura & Possessky, P.L.L.C., Alexandria, Virginia and David Sigale, Law Firm of David G. Sigale, P.C., Lisle, Illinois for Otis McDonald, et al.

Defendant's Attorney: Andrew W Worseck and Michael A. Forti, City of Chicago, Department of Law, Chicago, Illinois for the City of Chicago

Jacob Henry Karaca, Klein, Thorpe & Jenkins, Ltd., Chicago, Illinois for Village Of Oak Park

Description: 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 heldthat 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 caselaw, we hold that the applicable to the States.


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 personto 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 fire-arms.” See Chicago, Ill., Journal of Proceedings of theCity Council, p. 10049 (Mar. 19, 1982). The Chicago peti-tioners and their amici, however, argue that the handgun ban has left them vulnerable to criminals. Chicago PoliceDepartment statistics, we are told, reveal that the City’s handgun murder rate has actually increased since the ban was enacted1 and that Chicago residents now face one of the highest murder rates in the country and rates of otherviolent crimes that exceed the average in comparable cities.2

Several of the Chicago petitioners have been the targetsof 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 fromdrug dealers. App. 16–17; Brief for State Firearm Associa-tions as Amici Curiae 20–21; Brief for State of Texas et al. as Amici Curiae 7–8. Colleen Lawson is a Chicago resi-dent 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 ordeath should she ever be threatened again in her home.”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 groups4 filed suit against the City in the United StatesDistrict Court for the Northern District of Illinois. Theysought a declaration that the handgun ban and several related Chicago ordinances violate the Second and Four-teenth 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 sameDistrict Judge. The District Court rejected plaintiffs’ argument that theChicago 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 thesubject of incorporation vel non of the Second Amend-ment,” 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 thewake of this Court’s interpretation of the Privileges orImmunities 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 andbear 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).



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 amongthe “privileges or immunities of citizens of the UnitedStates” and that the narrow interpretation of the Privi-leges or Immunities Clause adopted in the Slaughter-House Cases, supra, should now be rejected. As a secon-dary argument, petitioners contend that the FourteenthAmendment’s Due Process Clause “incorporates” theSecond Amendment right.

Chicago and Oak Park (municipal respondents) main-tain that a right set out in the Bill of Rights applies to theStates only if that right is an indispensable attribute of any “‘civilized’” legal system. Brief for Municipal Respon-dents 9. If it is possible to imagine a civilized country thatdoes not recognize the right, the municipal respondentstell 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 theparties’ 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.


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 Gov-ernment. See also Lessee of Livingston v. Moore, 7 Pet. 469, 551–552 (1833) (“[I]t is now settled that those amend-ments [in the Bill of Rights] do not extend to the states”). The constitutional Amendments adopted in the after-math of the Civil War fundamentally altered our country’sfederal 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 proc-ess 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 per-mitting 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 concludedthat the Privileges or Immunities Clause protects only those rights “which owe their existence to the Federalgovernment, 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 cre-ated to establish and secure”—were not protected by the Clause. Id., at 76. In drawing a sharp distinction between the rights offederal 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 phrasingwith 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.5 (Emphasis added.) Second, the Court stated that a con-trary reading would “radically chang[e] the whole theory of the relations of the State and Federal governments toeach 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 somethingmore limited.

Under the Court’s narrow reading, the Privileges orImmunities 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 trans- act any business he may have with it, to seek its pro- tection, 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 intru-sion of the kind envisioned by the Louisiana statute, the Court upheld the statute. Four Justices dissented. Jus-tice Field, joined by Chief Justice Chase and JusticesSwayne and Bradley, criticized the majority for reducingthe Fourteenth Amendment’s Privileges or Immunities Clause to “a vain and idle enactment, which accomplished nothing, and most unnecessarily excited Congress and thepeople on its passage.” Id., at 96; see also id., at 104. Justice Field opined that the Privileges or ImmunitiesClause protects rights that are “in their nature . . . funda-mental,” including the right of every man to pursue his profession without the imposition of unequal or discrimi-natory restrictions. Id., at 96–97. Justice Bradley’s dis-sent observed that “we are not bound to resort to implica-tion . . . 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 Privilegesor 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 nar-row 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 ofthe 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 saidit meant in 1873”); Amar, Substance and Method in theYear 2000, 28 Pepperdine L. Rev. 601, 631, n. 178 (2001)(“Virtually no serious modern scholar—left, right, andcenter—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 Louisi-ana on Easter Sunday 1873. Dozens of blacks, many unarmed, were slaughtered by a rival band of armed white men.6 Cruikshank himself allegedly marched unarmedAfrican-American prisoners through the streets and then had them summarily executed.7 Ninety-seven men wereindicted for participating in the massacre, but only ninewent to trial. Six of the nine were acquitted of all charges;the remaining three were acquitted of murder but con-victed 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.8

The Court reversed all of the convictions, includingthose relating to the deprivation of the victims’ right tobear 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 “inany manner dependent upon that instrument for its exis-tence.” 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 byCongress.” 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).


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 “privi-leges 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 fullscope, Tr. of Oral Arg. 5–6, 8–11. Nor is there any consen-sus 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 bythe 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 fromconsidering whether the Due Process Clause of the Four-teenth Amendment makes the Second Amendment rightbinding on the States. See Heller, 554 U. S., at ___, n. 23 (slip op., at 48, n. 23). None of those cases “engage[d] inthe sort of Fourteenth Amendment inquiry required by our later cases.” Ibid. As explained more fully below, Cruikshank, Presser, and Miller all preceded the era inwhich the Court began the process of “selective incorpo-ration” under the Due Process Clause, and we have never previously addressed the question whether the right tokeep and bear arms applies to the States under that theory.

Indeed, Cruikshank has not prevented us from holdingthat other rights that were at issue in that case are bind-ing 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 “fun-damental 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 andthus consider whether the right to keep and bear armsapplies to the States under the Due Process Clause.



In the late 19th century, the Court began to considerwhether the Due Process Clause prohibits the States frominfringing 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 with-out 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 aprivilege or immunity of national citizenship. See Twin-ing v. New Jersey, 211 U. S. 78, 99 (1908).

Second, the Court explained that the only rights pro-tected 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 rightssafeguarded by the first eight Amendments against Na-tional 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 theboundaries of due process. For example, in Twining, the Court referred to “immutable principles of justice whichinhere in the very idea of free government which no mem-ber of the Union may disregard.” 211 U. S., at 102 (inter-nal quotation marks omitted). In Snyder v. Massachu-setts, 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 re-quired 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 Courtdescribed the right as “a principle of natural equity, rec-ognized 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 thatdue process did not provide a right against compelledincrimination in part because this right “has no place inthe 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 tomeet the test for inclusion within the protection of theDue 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. Con-necticut, 310 U. S. 296 (1940) (free exercise of religion). But others did not. See, e.g., Hurtado, supra (grand juryindictment requirement); Twining, supra (privilegeagainst self-incrimination).

Finally, even when a right set out in the Bill of Rights was held to fall within the conception of due process, theprotection or remedies afforded against state infringement sometimes differed from the protection or remedies pro-vided against abridgment by the Federal Government. To give one example, in Betts the Court held that, althoughthe Sixth Amendment required the appointment of coun-sel 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 proceed-ings only where “want of counsel in [the] particular case. . . result[ed] in a conviction lacking in . . . fundamentalfairness.” 316 U. S., at 473. Similarly, in Wolf v. Colo-rado, 338 U. S. 25 (1949), the Court held that the “core ofthe Fourth Amendment” was implicit in the concept of ordered liberty and thus “enforceable against the Statesthrough the Due Process Clause” but that the exclusionary rule, which applied in federal cases, did not apply to theStates. Id., at 27–28, 33.


An alternative theory regarding the relationship between the Bill of Rights and §1 of the Fourteenth Amend-ment was championed by Justice Black. This theory heldthat §1 of the Fourteenth Amendment totally incorporatedall 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 Four-teenth Amendment espoused the view that the Amend-ment made the Bill of Rights applicable to the States and, in so doing, overruled this Court’s decision in Barron.9 Adamson, 332 U. S., at 72 (dissenting opinion).10 None- —————— 9Senator Jacob Howard, who spoke on behalf of the Joint Committeeon Reconstruction and sponsored the Amendment in the Senate, statedthat the Amendment protected all of “the personal rights guarantiedand 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 maintainedthe view that the rights guaranteed by §1 of the Fourteenth Amend-ment “are chiefly defined in the first eight amendments to the Consti-tution of the United States.” Cong. Globe, 42d Cong., 1st Sess., App. 84 (1871). Finally, Representative Thaddeus Stevens, the political leaderof the House and acting chairman of the Joint Committee on Recon-struction, stated during the debates on the Amendment that “the Constitution limits only the action of Congress, and is not a limitationon the States. This amendment supplies that defect, and allows Con-gress to correct the unjust legislation of the States.” 39th Cong. Globe2459; see also M. Curtis, No State Shall Abridge: The Fourteenth Amendment and the Bill of Rights 112 (1986) (counting at least 30statements during the debates in Congress interpreting §1 to incorpo-rate the Bill of Rights); Brief for Constitutional Law Professors as Amici Curiae 20 (collecting authorities and stating that “[n]ot a singlesenator or representative disputed [the incorporationist] understand-ing” of the Fourteenth Amendment). 10The municipal respondents and some of their amici dispute thesignificance of these statements. They contend that the phrase “privileges or immunities” is not naturally read to mean the rights set out inthe first eight Amendments, see Brief for Historians et al. as Amici Curiae 13–16, and that “there is ‘support in the legislative history forno 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); bracketsomitted). 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, Nationalizingthe Bill of Rights: Revisiting the Original Understanding of the Four-teenth 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 ofRights 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 re-spond that the terms privileges, immunities, and rights were usedinterchangeably at the time, see, e.g., Curtis, supra, at 64–65, and that the position taken by the leading congressional proponents of theAmendment was widely publicized and understood, see, e.g., Wilden-thal, supra, at 1564–1565, 1590; Hardy, Original Popular Understand-ing of the Fourteenth Amendment as Reflected in the Print Media of1866–1868, 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.

(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.11 The Court made it clear that the governing standard is notwhether any “civilized system [can] be imagined thatwould not accord the particular protection.” Duncan, 391 U. S., at 149, n. 14. Instead, the Court inquired whether aparticular 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 atthe base of all our civil and political institutions” (emphasis added; internal quotation marks omitted)).

The Court also shed any reluctance to hold that rightsguaranteed by the Bill of Rights met the requirements forprotection under the Due Process Clause. The Court eventually incorporated almost all of the provisions of the Bill of Rights.12 Only a handful of the Bill of Rights protections remain unincorporated.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 theclaim 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 theStates under the Fourteenth Amendment according to the same standards that protect those personal rights againstfederal 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. 108, 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).14

—————— 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). 13In addition to the right to keep and bear arms (and the Sixth Amendment right to a unanimous jury verdict, see n. 14, infra), theonly 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 prohibi-tion 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); seealso Engblom v. Carey, 677 F. 2d 957, 961 (CA2 1982) (holding as amatter of first impression that the “Third Amendment is incorporatedinto 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.

Rights protections “are all to be enforced against theStates under the Fourteenth Amendment according to the same standards that protect those personal rights againstfederal 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. 108, 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).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 tothe question whether the Second Amendment right tokeep and bear arms is incorporated in the concept of due process. In answering that question, as just explained, wemust 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 his-tory and tradition,” Washington v. Glucksberg, 521 U. S. 702, 721 (1997) (internal quotation marks omitted).

A Our decision in Heller points unmistakably to the an-swer. Self-defense is a basic right, recognized by many legal systems from ancient times to the present day,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., at56) (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) (someinternal quotation marks omitted); see also id., at ___ (slip op., at 56) (noting that handguns are “overwhelmingly chosen by American society for [the] lawful purpose” ofself-defense); id., at ___ (slip op., at 57) (“[T]he American people have considered the handgun to be the quintessen-tial 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 inthis Nation’s history and tradition.” Glucksberg, supra, at 721 (internal quotation marks omitted). Heller exploredthe 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 Americancolonists. As we noted in Heller, King George III’s attemptto disarm the colonists in the 1760’s and 1770’s “provoked polemical reactions by Americans invoking their rights as Englishmen to keep arms.”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 lessfundamental by those who drafted and ratified the Bill of Rights. “During the 1788 ratification debates, the fearthat the federal government would disarm the people inorder to impose rule through a standing army or selectmilitia was pervasive in Antifederalist rhetoric.” Heller, supra, at ___ (slip op., at 25) (citing Letters from the Fed-eral 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 Republi-can, 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). Fed-eralists responded, not by arguing that the right was insufficiently important to warrant protection but bycontending 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 andbear arms insisted on the adoption of the Bill of Rights asa 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 (7thed. 1991). This is surely powerful evidence that the right was regarded as fundamental in the sense relevant here.

This understanding persisted in the years immediatelyfollowing 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-eralegal commentators confirmed the importance of the rightto early Americans. St. George Tucker, for example, de-scribed 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. Tuckered. 1803); see also W. Rawle, A View of the Constitution of the United States of America, 125–126 (2d ed. 1829) (re-print 2009); 3 J. Story, Commentaries on the Constitutionof 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 andarbitrary power of rulers; and will generally, even if these are successful in the first instance, enable the people to resist and triumph over them”).



By the 1850’s, the perceived threat that had promptedthe 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 popu-lar concern, but the right to keep and bear arms washighly valued for purposes of self-defense. See M. Doub-ler, 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 Unconstitution-ality 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-defensethan 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 pro-tested that in Kansas the constitutional rights of thepeople had been “fraudulently and violently taken fromthem” and the “right of the people to keep and bear arms”had been “infringed.” National Party Platforms 1840–1972, p. 27 (5th ed. 1973).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 freed-man, free negro or mulatto, not in the military service ofthe 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 bowieknife.” Certain Offenses of Freedmen, 1865 Miss. Laws p. 165, §1, in 1 Documentary History of Reconstruction289 (W. Fleming ed. 1950); see also Regulations forFreedmen in Louisiana, in id., at 279–280; H. R. Exec. Doc. No. 70, 39th Cong., 1st Sess., 233, 236 (1866) (de-scribing 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).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, visitingthe 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 distributedby Members of the 39th Congress to their constituents shortly after Congress approved the Fourteenth Amend-ment19—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 blackswhenever 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 pro-posal 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 byarmed men who go up and down the country searching houses, disarming people, committing outrages of every kind and description.” 39th Cong. Globe 915 (1866).20

Union Army commanders took steps to secure the right of all citizens to keep and bear arms,21 but the 39th Congress concluded that legislative action was necessary. Its efforts to safeguard the right to keep and bear armsdemonstrate 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 lawsand 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 previ-ous condition of slavery.” 14 Stat. 176–177 (emphasisadded).22 Section 14 thus explicitly guaranteed that “all the citizens,” black and white, would have “the constitu-tional right to bear arms.”

The Civil Rights Act of 1866, 14 Stat. 27, which wasconsidered at the same time as the Freedmen’s Bureau Act, similarly sought to protect the right of all citizens to keep and bear arms.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 isenjoyed by white citizens.” Ibid. This language was vir-tually identical to language in §14 of the Freedmen’sBureau 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 personalliberty, personal security, and the acquisition, enjoyment, and disposition of estate, real and personal” was “the constitutional right to bear arms.” Ibid. RepresentativeBingham believed that the Civil Rights Act protected thesame 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’sBureau 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” offreedmen 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 per-suaded Congress that a constitutional amendment wasnecessary to provide full protection for the rights of blacks.24 Today, it is generally accepted that the Four-teenth Amendment was understood to provide a constitu-tional 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 forProfessor Balkin’s Originalism, 103 Nw. U. L. Rev. 663, 669–670 (2009).

In debating the Fourteenth Amendment, the 39th Con-gress referred to the right to keep and bear arms as afundamental right deserving of protection. Senator Sam-uel 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 armsfor the defense of himself and family and his home-stead. 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 pol-luted wretch to another world, where his wretched-ness will forever remain complete.” Ibid.

Even those who thought the Fourteenth Amendmentunnecessary 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 Foner258–259.25

Evidence from the period immediately following theratification of the Fourteenth Amendment only confirmsthat the right to keep and bear arms was considered fun-damental. 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 debatingthe 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) (reprint1993); 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 Four-teenth 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 Consti-tutions when the Fourteenth Amendment was Ratified in 1868: What Rights Are Deeply Rooted in American His-tory and Tradition? 87 Texas L. Rev. 7, 50 (2008).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 Reconstruc-tion 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, there-fore, recognized the right to keep and bear arms as being among the foundational rights necessary to our system ofGovernment.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 toour system of ordered liberty. (Emphasis Added by MoreLaw)


Despite all this evidence, municipal respondents contend that Congress, in the years immediately following the Civil War, merely sought to outlaw “discriminatory meas-ures taken against freedmen, which it addressed by adopt-ing a non-discrimination principle” and that even anoutright ban on the possession of firearms was regarded as acceptable, “so long as it was not done in a discriminatorymanner.” Brief for Municipal Respondents 7. They arguethat Members of Congress overwhelmingly viewed §1 of the Fourteenth Amendment “as an antidiscrimination rule,” and they cite statements to the effect that the sec-tion 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 onlydiscriminatory searches and seizures—and so on. We assume that this is not municipal respondents’ view, sowhat they must mean is that the Second Amendment should be singled out for special—and specially unfavor-able—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 discrimina-tion. 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 pro-tects 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 thoselaws 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 manyof 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 citi-zens would have been nondiscriminatory only in the for-mal 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 theauthority 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 Reconstructionrevealed, see supra, at 24–25, those groups were widely involved in harassing blacks in the South.

Fourth, municipal respondents’ purely antidiscrimina-tion 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 thebearing of arms, opponents of the Black Codes would have been left without the means of self-defense—as had aboli-tionists in Kansas in the 1850’s.

Fifth, the 39th Congress’ response to proposals to dis-band and disarm the Southern militias is instructive. Despite recognizing and deploring the abuses of thesemilitias, 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 ultimatelydecided 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.


Municipal respondents’ remaining arguments are at war with our central holding in Heller: that the Second Amendment protects a personal right to keep and beararms for lawful purposes, most notably for self-defensewithin 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 beincorporated into the Due Process Clause.

Municipal respondents’ main argument is nothing less than a plea to disregard 50 years of incorporation prece-dent and return (presumably for this case only) to a by-gone 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 possi-ble to imagine any civilized legal system that does notrecognize 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 re-spondents continue, because such countries as England,Canada, Australia, Japan, Denmark, Finland, Luxem-bourg, and New Zealand either ban or severely limit handgun ownership, it must follow that no right to possesssuch 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 pre-sent-day implications of municipal respondents’ argumentare stunning. For example, many of the rights that our Bill of Rights provides for persons accused of criminaloffenses are virtually unique to this country.28 If our understanding of the right to a jury trial, the right against self-incrimination, and the right to counsel were necessaryattributes of any civilized country, it would follow that theUnited States is the only civilized Nation in the world.

Municipal respondents attempt to salvage their position by suggesting that their argument applies only to substan-tive 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 theEstablishment Clause of the First Amendment. Yet several of the countries that municipal respondents recognize as civilized have established state churches.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 theBill 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 theynote that there is intense disagreement on the question whether the private possession of guns in the home in-creases or decreases gun deaths and injuries. Id., at 11, 13–17.

The right to keep and bear arms, however, is not theonly constitutional right that has controversial public safety implications. All of the constitutional provisionsthat impose restrictions on law enforcement and on theprosecution of crimes fall into the same category. See, e.g., Hudson v. Michigan, 547 U. S. 586, 591 (2006) (“Theexclusionary rule generates ‘substantial social costs,’ United States v. Leon, 468 U. S. 897, 907 (1984), whichsometimes include setting the guilty free and the danger-ous 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 theCourt’s rule “[i]n some unknown number of cases . . . willreturn a killer, a rapist or other criminal to the streets . . . to repeat his crime”); Mapp, 367 U. S., at 659. Municipalrespondents cite no case in which we have refrained from holding that a provision of the Bill of Rights is binding onthe States on the ground that the right at issue has dis-puted public safety implications.

We likewise reject municipal respondents’ argumentthat we should depart from our established incorporationmethodology on the ground that making the Second Amendment binding on the States and their subdivisions is inconsistent with principles of federalism and will stifleexperimentation. Municipal respondents point out—quitecorrectly—that conditions and problems differ from local-ity to locality and that citizens in different jurisdictions have divergent views on the issue of gun control. Munici-pal respondents therefore urge us to allow state and localgovernments to enact any gun control law that they deemto be reasonable, including a complete ban on the posses-sion 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 torespect 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 experimenta-tion, 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 testapplicable only to the Second Amendment, municipalrespondents’ argument must be rejected. Under our prece-dents, if a Bill of Rights guarantee is fundamental from an American perspective, then, unless stare decisis counsels otherwise,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 andlocal experimentation with reasonable firearms regula-tions will continue under the Second Amendment.” Brief for State of Texas et al. as Amici Curiae 23.

Municipal respondents and their amici complain thatincorporation of the Second Amendment right will lead toextensive and costly litigation, but this argument applies with even greater force to constitutional rights and reme-dies that have already been held to be binding on theStates. Consider the exclusionary rule. Although theexclusionary 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 ExclusionaryRule, 20 Harv. J. Law & Pub. Pol’y, 443, 444 (1997). ——————

Municipal respondents assert that, although most stateconstitutions 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 judicialinterest 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 guar-antees of the Bill of Rights,” Malloy, supra, at 10–11 (in-ternal 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 andsupporting amici cite a variety of state and local firearmslaws that courts have upheld. But what is most strikingabout their research is the paucity of precedent sustainingbans comparable to those at issue here and in Heller. Municipal respondents cite precisely one case (from thelate 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, recog-nized 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 hold-ing did not cast doubt on such longstanding regulatorymeasures 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 gov-ernment buildings, or laws imposing conditions and quali-fications 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 tokeep and bear arms is unique among the rights set out inthe first eight Amendments “because the reason for codify-ing the Second Amendment (to protect the militia) differsfrom the purpose (primarily, to use firearms to engage inself-defense) that is claimed to make the right implicit in the concept of ordered liberty.” Brief for Municipal Re-spondents 36–37. Municipal respondents suggest that the Second Amendment right differs from the rights hereto-fore incorporated because the latter were “valued for[their] own sake.” Id., at 33. But we have never previ-ously 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 incorpo-rated—for example the right to counsel and the right to confront and subpoena witnesses—are clearly instrumen-tal 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 definedby the immediate threat that led to the inclusion of thatright in the Bill of Rights. In Heller, we recognized thatthe 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 stressedthat the right was also valued because the possession offirearms was thought to be essential for self-defense. As we put it, self-defense was “the central component of the right itself.” Ibid.



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 intermediatereliance 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 ap-plies 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 infringe-ment by the Fourteenth Amendment’s Due Process Clauseneed not be identical in shape or scope to the rights pro-tected 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 urgedinstead, it appears, is that this theory be revived solely forthe individual right that Heller recognized, over vigorous dissents.

The relationship between the Bill of Rights’ guaranteesand the States must be governed by a single, neutral principle. It is far too late to exhume what Justice Bren-nan, writing for the Court 46 years ago, derided as “the notion that the Fourteenth Amendment applies to theStates only a watered-down, subjective version of theindividual guarantees of the Bill of Rights.” Malloy, supra, at 10–11 (internal quotation marks omitted).

* * *


Outcome: The judgment is reversed, and the case is remanded.

Plaintiff's Experts:

Defendant's Experts:

Comments: Editor's Note: About 24,000 people are killed every year in the United States from gun shot wounds. If the current Supreme Court justices had been serving on the Court in 1970, the gun ordinances enacted by Dodge City was have been declared unconstitutional and Wyatt Earp, Wild Bill Hickock and other western sheriffs and marshals would have had additional problems to deal with when cattle herds arrived in their railroad towns.

Find a Lawyer


Find a Case