MCDONALD ET AL. v. CITY OF CHICAGO, ILLINOIS, ET AL.
No. 08-1521
Supreme Court of the United States
Argued March 2, 2010—Decided June 28, 2010
561 U.S. 742
ALITO, J., announced the judgment of the Court and delivered the opinion of the Court with respect to Parts I, II-A, II-B, II-D, and III, in which ROBERTS, C. J., and SCALIA, KENNEDY, and THOMAS, JJ., joined, and an opinion with respect to Parts II-C, IV, and V, in which ROBERTS, C. J., and SCALIA and KENNEDY, JJ., joined. SCALIA, J., filed a concurring opinion, post, p. 791. THOMAS, J., filed an opinion concurring in part and concurring in the judgment, post, p. 805. STEVENS, J., filed a dissenting opinion, post, p. 858. BREYER, J., filed a dissenting opinion, in which GINSBURG and SOTOMAYOR, JJ., joined, post, p. 912.
Alan Gura argued the cause for petitioners. With him on the briefs was David G. Sigale. Paul D. Clement argued the cause for the National Rifle Association of America, Inc., et al., respondents in support of petitioners. On the briefs were Stephen D. Poss, Kevin P. Martin, Scott B. Nardi, Joshua S. Lipshutz, and Stephen P. Halbrook.
James A. Feldman argued the cause for respondent City of Chicago et al. With him on the brief were Benna Ruth Solomon, Myriam Zreczny Kasper, Suzanne M. Loose, and Andrew W. Worseck.*
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, and III, in which THE CHIEF JUSTICE, JUS-TICE 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.
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., Village 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 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 enacted1 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.2
Several of the Chicago petitioners have been the targets of
After our decision in Heller, the Chicago petitioners and two groups4 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).
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,
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 (internal quotation marks omitted). 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,
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.6 Cruikshank himself allegedly marched unarmed African-American prisoners through the streets and then had them summarily executed.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.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 620, 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
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 620, 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. Nevertheless, 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., amson v. California” cite=“332 U.S. 46” court=“U.S.” date=“1947“>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, 211 U. S., at 99.
The
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
championed by Justice Black. This theory held that
theless, the Court never has embraced Justice Black‘s “total incorporation” theory.
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. Wainwright, 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.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.12
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. 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
III
With this framework in mind, we now turn directly to the question whether the
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,15 and in Heller, we held that individual self-defense is “the central component” of the
citizens must be permitted “to use [handguns] for the core lawful purpose of self-defense.” Id., at 630.
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 592-593, 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 594.
Blackstone‘s
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 598 (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 599; 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 Debates in the Several State Conventions on the Adoption of the Federal Constitution 327-331 (J. Elliot 2d ed. 1854); 3 id., at 657-661; 4 id., at 242-246, 248-249; see also Levy 26-34; 1 A. Kelly, W. Harbison, & H. Belz, 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
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
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 614; 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).18
Union Army commanders took steps to secure the right of all citizens to keep and bear arms,21 but the 39th Congress
The most explicit evidence of Congress’ aim appears in
The
and bear arms. 39th Cong. Globe 1292. The unavoidable conclusion is that the
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.24 Today, it is generally accepted that the
In debating the
“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.” Id., at 1182.
Even those who thought the
Evidence from the period immediately following the ratification of the
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
In sum, it is clear that the Framers and ratifiers of the
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
First, while
special—and specially unfavorable—treatment. We reject that suggestion.
Second, municipal respondents’ argument ignores the clear terms of the
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 772, those groups were widely involved in harassing blacks in the South.
Fourth, municipal respondents’ purely antidiscrimination theory of the
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 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
IV
Municipal respondents’ remaining arguments are at war with our central holding in Heller: that the
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 bind-
ing on the States. Brief for Municipal Respondents 9. Therefore, 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
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.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 maintain that the
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
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
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
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
As evidence that the
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
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 865 (quoting Malloy, 378 U. S., at 24 (Harlan, J., dissenting)). The question presented in this case, in his view, “is whether the par-ticular right asserted by petitioners applies to the States because of the
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
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
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. 4. Another brief submitted by 38 States takes the same position. Brief for State of Texas et al. 6.
Second, petitioners and many others who live in high-crime areas dispute the proposition that the
American soldiers killed during that same period in Afghanistan and Iraq and that 80% of the Chicago victims were black.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.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
Finally, JUSTICE BREYER is incorrect that incorporation will require judges to assess the costs and benefits of fire-arms 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 supra, at 785-786. “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 634.
*
*
*
In Heller, we held that the
It is so ordered.
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 912. It is that claim I wish to address.
I
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After stressing the substantive dimension of what he has renamed the “liberty
children foreign languages, post, at 864 (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 879 (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 880 (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. 570, 593-595, 599, 603, 614-616 (2008). I can find no other explanation for such certitude except that JUSTICE STEVENS, despite his forswearing of “personal and private notions,” post, at 878 (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 narrowminded to imagine, post, at 875-877, 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 877. (Why the
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.3 Post, at 877, 878. 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 877-878, but as he has just made clear, he thinks historical inquiry unavailing, post, at 874-877. Moreover, trusting the meaning of the Due Process Clause to what has historically been protected is circular, see post, at 875-876, 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 878. 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 naive, 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
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 880. 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.” Post, at 881. 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 881. 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 873, 909, 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 868, 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 869.
JUSTICE STEVENS also relies on the requirement of a “careful description of the asserted fundamental liberty interest” to limit judicial discretion. Post, at 882 (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 879, 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
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
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 891. The source of the
JUSTICE STEVENS next suggests that the
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.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 895-896. 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
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 897 (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 897, 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 899 (internal quotation marks omitted).
But this too is true of other rights we have held incorporated. No fundamental right—not even the
JUSTICE STEVENS’ final reason for rejecting incorporation of the
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 904. 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 896, than confining courts’ focus to our own national heritage.
III
JUSTICE STEVENS’ response to this concurrence, post, at 906-911, 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.8 Historical analysis can be difficult; it sometimes requires resolving threshold questions, and making nu-anced judgments about which evidence to consult and how to interpret it.
I will stipulate to that.9 But the question to be decided is not whether the historically focused method is a perfect
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 910, 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 911, 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 908—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.
JUSTICE THOMAS, concurring in part and concurring in the judgment.
I agree with the Court that the
Applying what is now a well-settled test, the Court concludes that the right to keep and bear arms applies to the States through the
I
In District of Columbia v. Heller, 554 U. S. 570 (2008), this Court held that the
As the Court explains, if this case were litigated before the
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
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,
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
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
That circular reasoning effectively has been the Court‘s last word on the Privileges
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
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,‘”
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 871 (opinion of STEVENS, J.); see post, at 918-919 (opinion of BREYER, J.), while the plurality makes yet another effort to impose principled restraints on its exercise, see ante, at 780-787. 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 918 (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 878 (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
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.
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) (opinion for the Court by 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
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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., 2 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“); 1 id., at 661 (defining “immunity” as “[f]reedom from an obligation” or “particular privilege“); 2 id., at 1140 (defining “right” as “[p]rivilege or immunity granted by authority“).2
The fact that a particular interest was designated as a “privilege” or “immunity,”
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:
“[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).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).4
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“).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 (1789) (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 592 (“[I]t has always been widely understood that the
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.
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 Cir-cuit Justice in Corfield v. Coryell, 6 F. Cas. 546 (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
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. Corfield, supra, at 551-552.6
Notably, Justice Washington did not indicate whether
just one year after the
*
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*
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,
Two questions still remain, both provoked by the textual similarity between § 1‘s Privileges or Immunities Clause and
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
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 the 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:
“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 enjoyment 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).8
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 Mar. 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 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).
Evidence from the political branches in the years leading to the
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
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 772; 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
(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.”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.11 39th Cong. Globe 1088.
That draft was met with objections, which the Times covered extensively. A
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 842-843. 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
In describing these rights, Howard explained that they included “the privileges
“[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).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
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 late slave-holding 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
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, § 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
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
3
Interpretations of the
Some of these interpretations come from Members of Congress. During an 1871 debate on a bill to enforce the
Legislation passed in furtherance of the
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.14 A third such treatise unambigu- ously 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
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
C
The next question is whether the Privileges or Immunities Clause merely prohibits States from discriminating among citizens if they recognize the
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.
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.” 1 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
“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) (emphasis added).
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
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
Second, the congressional debates on the
Congressmen had little to say during the debates about
Third, while Barron made plain that the Bill of Rights was not legally enforceable against the States, see supra, at 806-807, the significance of that holding should not be overstated. Like the Framers, see supra, at 818-819, 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
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 830-831 (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 777 (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 proslavery 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
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 firearms18 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,
As the Court makes crystal clear, if the
Evidence suggests that the public understood this at the time the
One way in which the Federal Government responded was to issue military orders countermanding Southern arms leg-islation. 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, Phila., Pa., Christian Recorder, 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
“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, Augusta, Ga., Loyal Georgian, 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) (“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 842, that “[f]ree persons of color have never been recognized here as citizens; they are not entitled to bear arms“).
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.19
My conclusion is contrary to this Court s precedents, which hold that the
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
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
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
“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
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.21 Post, at 860 (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.,
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 discernible 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 808-809. 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
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.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,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
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
* * *
I agree with the Court that the
JUSTICE STEVENS, dissenting.
In District of Columbia v. Heller, 554 U. S. 570, 573 (2008), the Court answered the question whether a federal enclave s “prohibition on the possession of usable handguns in the home violates the
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
I agree with the plurality s refusal to accept petitioners primary submission. Ante, at 758. 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 suggest2 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.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.”4
I further agree with the plurality that there are weighty arguments supporting petitioners second submission, insofar as
This is a substantive due process case.
I
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.5 This understanding is
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) (plurality 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
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.”9
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. 126, 153 (2010) (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.11
It is true, as the Court emphasizes, ante, at 763-766, that we have made numerous provisions of the Bill of Rights fully applicable to the States. It is settled, for
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 764, 765 (majority opinion), 786 (plurality opinion), a “two-track approach to incorporation,” ante, at 784 (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;
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.13
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).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,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
Nor, as the Court intimates, see ante, at 764, 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) (opinion of SCALIA, J.) (garnering only two votes for history-driven methodology that “consult[s] the most specific tradition available“); see also post, at 917-918 (BREYER, J., dissenting) (explaining that post-Duncan “incorporation” cases continued to rely on more than history).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 principal opinion suggests that only interests that have proved “fundamental from an American perspective,” ante, at 784-791 (plurality opinion), or “‘deeply rooted in this Nation‘s history and tradition,‘” ante, at 767 (majority opinion) (quoting Glucksberg, 521 U. S., at 721), to the Court‘s satisfaction, may qualify for incorporation into the Fourteenth Amendment. To the extent the principal 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
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).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.19 Cf. Duncan, 391 U. S., at 183 (Harlan, J., dissenting) (critiquing “circular[ity]” of historicized test for in-
corporation). 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
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 (1992). 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 Texas L. Rev. 693, 694 (1976). “The task of giving concrete meaning to the term ‘liberty,‘” I have elsewhere explained at some length, “was apart of the work assigned to future generations.” Stevens, The Third Branch of Liberty, 41 U.
Miami L. Rev. 277, 291 (1986).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.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
The most basic is that we have eschewed attempts to provide any all-purpose, top-down, totalizing theory of “liberty.”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,
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 919.
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
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.25 It means, simply, that we must pay close attention to the precise liberty interest the litigants have asked us to vindicate.
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
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 ¶ 84, 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, machineguns, and short-barreled rifles. See
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 592. But the Heller plaintiff sought only dispensation to keep an operable firearm in his home for lawful self-defense, see id., at 576, and n. 2, and the Court‘s opinion was bookended by reminders that its holding was limited to that one issue, id., at 573, 635; accord, ante, at 791 (plurality opinion). The distinction between the liberty right these petitioners have asserted and the
Understood as a plea to keep their preferred type of firearm in the home, petitioners’ argument has real force.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.29
Bolstering petitioners’ claim, our law has long recognized that the home provides a kind of special sanctuary in modern life. See, e. g.,
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 626 (noting that “the majority of the 19th-century courts to consider the question held that prohibitions on carrying concealed weapons were lawful under the
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,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.
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
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 assumptions33
about the likely effects of making that type of firearm more broadly available. It is a very long way from the proposition that the
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
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 firearm 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 1 million Americans have been wounded or killed by gunfire in the last decade.35 Urban areas such as Chicago
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, 560 U. S. 272, 282-283 (2010) (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,
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.37
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. 702, 707 (2010) (opinion for the Court by SCALIA, J.) (“Generally speaking, state law defines property interests“). Under that tradition, Chicago‘s ordinance is unexceptional.38
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.40 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 781-782 (plurality opinion); ante, at 800-801 (opinion of SCALIA, J.). The fact that our oldest allies have almost uniformly found it appropriate to regulate firearms extensively
Fourth, the
The
The Court is surely correct that Americans’ conceptions of the
I accept that the evolution in Americans’ understanding of the
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 767 (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,”
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 683-687 (BREYER, J., dissenting) (reviewing colonial laws); Cornell & DeDino, A Well Regulated Right: The Early American Origins of Gun Control, 73 Ford. L. Rev. 487, 502-516 (2004) (reviewing pre-Civil War laws); Brief for Thirty-four Professional Historians and Legal Historians as Amici Curiae 4-22 (reviewing Reconstruction-era laws); Winkler, Scrutinizing the
This history of intrusive regulation is not surprising given that the very text of the
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 analy- sis, a method “that makes the traditions of our people para- mount,” ante, at 792, is both more restrained and more fa- cilitative 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 pro- found difficulties. Although JUSTICE SCALIA aspires to an “objective,” “neu- tral” method of substantive due process analysis, ante, at 800, his actual method is nothing of the sort. Under the “histori- cally focused” approach he advocates, ante, at 803, numerous threshold questions arise before one ever gets to the history. At what level of generality should one frame the liberty in- terest 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 793 (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 beVII
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 FourteenthJUSTICE 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 896-899 (dissenting opinion). Unlike other forms of substantive liberty, the carrying of arms for that purpose often puts others’ lives at risk. See ante, at 891-893. And the use of arms for private self- defense does not warrant federal constitutional protection from state regulation. See ante, at 899-905. 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 759-766. I shall therefore separately consider the question of “in- corporation.” I can find nothing in the Second Amend- ment‘s text, history, or underlying rationale that could war- rant 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 inter- preting the Constitution as transferring ultimate regulatory authority over the private uses of firearms from democrati- cally 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 conse- quently 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. 570 (2008), the Court rejected the pre-existing judicial con- sensus that the Second Amendment was primarily concerned with the need to maintain a “well regulated Militia.” See id., at 638, and n. 2 (STEVENS, J., dissenting); id., at 672-679. United States v. Miller, 307 U. S. 174, 178 (1939). Although the Court acknowledged that “the threat that the new Fed- eral Government would destroy the citizens’ militia by tak- ing away their arms was the reason that right... was codi- fied in a written Constitution,” the Court asserted that “individual self-defense... was the central component of the right itself.” Heller, 554 U. S., at 599 (some emphasis added). The Court went on to hold that the Second Amend- ment 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 635. 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 contin- ued 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 An- tonin Scalia‘s Perverse Sense of Originalism, 13 Lewis & Clark L. Rev. 349 (2009); Kozuskanich, Originalism in a Digi- tal 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 Methodol- ogy: A Critical Comment, 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 misunder- stood a key historical point. See Brief for English/Early American Historians as Amici Curiae (hereinafter English Historians’ Brief) (filed by 21 professors at leading universi- ties 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 Amend- ment “codified a pre-existing right” that had “nothing what- ever to do with service in a militia.” 554 U. S., at 599, 592- 593. That view in turn rested in significant part upon Blackstone having described the right as “‘the right of hav- ing 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 593-594 (quot- ing 1 W. Blackstone, Commentaries on the Laws of England 140 (1765) (hereinafter Blackstone), and 1 W. & M., ch. 2, §7, in 3 Eng. Stat. at Large 441 (1689)). The Framers, said the majority, understood that right “‘as permittingII
A
In my view, taking Heller as a given, the Fourteenth Amendment does not incorporate the Second Amendment right to keepB
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 regula- tion, not to protect individuals from militia-related regula- tion. Heller, 554 U. S., at 599; 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 addition- ally 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 incor- poration through the Fourteenth Amendment. Ante, at 770. 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 599 (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 equiv- alent of a claim that water runs uphill. See Part I, supra. But, taking it as valid, the Framers’ basic reasons for includ- ing language in the Constitution would nonetheless seem more pertinent (in deciding about the contemporary impor- tance 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, Consti- tutional, 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 789, but, of course, numerous amici briefs have been filed opposing incorpora- tion as well. Moreover, every State regulates firearms ex- tensively, and public opinion is sharply divided on the appro- priate level of regulation. Much ofStates 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
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) (
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 semiautomatic? 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?
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. Brief for Association of Prosecuting Attorneys et al. as Amici Curiae 13-16, 20.
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 counterstudies?
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 790-791. 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 930 (describing state approaches). But the Court has not yet done so. Cf. Heller, 554 U. S., at 634-635 (rejecting an “‘interest-balancing’ approach” similar to that employed by the States); ante, at 790-791 (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, supra, at 626-627; ante, at 786 (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.
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
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 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. 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 Court, in seeking to justify incorporation, asks whether the interests the
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 770. 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 v. Oregon, 406 U. S. 404, 410 (1972) (plurality opinion) (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.
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) (hereinafter Winkler, Scrutinizing) (the “courts of every state to consider the question apply a deferential ‘reasonable regulation’ standard“); 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 628-635 (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 ques- tion, 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,
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 18th Century
The opinions in Heller collect much of the relevant 18th-century evidence. See 554 U. S., at 579-605; id., at 640-665 (STEVENS, J., dissenting); id., at 683-687 (BREYER, J., dissenting). 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, 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 914-916.
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 Bay, p. 208 (1746); 5 J. Mitchell & H. Flanders, Statutes at Large of Pennsylvania From 1682 to 1801,
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 684-686 (BREYER, J., dissenting); see also id., at 631-633. 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 19th 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.,
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
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 (1858); see also, e. g., State v. Jumel, 13 La. Ann. 399, 400 (1858) (upholding concealed weapon ban because it “prohib- it[ed] 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 19th Century
It is important to read the majority‘s account with the following considerations in mind:
First, the plurality today properly declines to revisit our interpretation of the
“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 Amend- ment: 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
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
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 779. 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
Moreover, four States largely banned the possession of all nonmilitary handguns during this period. See
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, 14 S. E. 9, 11 (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 proscribed by this statute. The object being to banish these weapons from the community by an absolute pro- hibition 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 20th and 21st Centuries
Although the majority does not discuss 20th- or 21st-century evidence concerning the
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), online 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
Thirteen municipalities do the same. See
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 and County of Denver, 874 P. 2d 325, 328 (Colo. 1994).
When determining reasonableness those courts have normally adopted a highly deferential attitude toward 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 —
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. Morton Grove, 103 Ill. 2d 483, 499-500, 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, 1977 WL 201393, *5 (Ohio 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 786. But which state courts have struck them down? The absence of supporting infor- mation 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
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
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, supra, at 920:
-
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, supra, at 924:
- Dept. of Justice, Bureau of Justice Statistics, M. Zawitz & K. Strom, Firearm Injury and Death From Crime, 1993-97, 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. 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 en- forcement officers feloniously killed in the line of duty between 1997 and 2006), online at http://www2.fbi.gov/ucr/killed/2006/table27.html.
- Dept. of Justice, Bureau of Justice Statistics, D. Duhart, Urban, Suburban, and Rural Victimization, 1993-98, 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, supra, at 924:
- 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 Amicus Curiae 4-13 (arguing that gun regulations have helped to lower New York‘s crime and homicide rates).
Please see the following sources referenced in the sentences discussing studies concerning handguns in the home, supra, at 924:
- Brief for American Public Health Association et al. as Amici Curiae 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).
- Kellermann 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, supra, at 927:
- 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 e370, e372 (2005) (presenting data on firearm ownership by State).
- Heller, 554 U. S., at 698-699 (BREYER, J., dissenting) (discussing various sources showing that gun violence varies by State, including Wintemute, supra.
- Heller, supra, at 698-699 (BREYER, J., dissenting) (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 (citing Branas, Nance, Elliott, Richmond, & Schwab, Urban-Rural Shifts in Intentional Firearm Death, 94 Am. J. Public Health 1750, 1752 (2004))).
- Dept. of Justice, Federal Bureau of Investigation, 2008 Crime in the United States (Table 6) (noting that murder rate is 40 times higher in New Orleans than it is in Lincoln, Nebraska).
Notes
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. By the way, JUSTICE STEVENS greatly magnifies the difficulty of a historical approach by suggesting that it was my burden in Lawrence to show the “ancient roots of proscriptions against sodomy,” post, at 908 (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. 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 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). 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).
With respect to the Fourth Amendment, see Aguilar v. Texas, 378 U. S. 108 (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 (assumed)). 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. See, e. g., Pet. for Cert. in Bowen v. Oregon, O. T. 2009, No. 08-1117, p. i, cert. denied, 558 U. S. 815 (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. 823 (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).
We never have decided whether the Third Amendment or the Eighth Amendment‘s prohibition on 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. 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. 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. & Politics 191 (2006) (cataloging 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. (hereinafter Brady Center Brief).
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
JUSTICE SCALIA also misstates my argument when he refers to “the right to keep and bear arms,” without qualification. Ante, at 799. That is what the