McDonald v. City of Chicago

(Slip Opinion) OCTOBER TERM, 2009 1

Syllabus

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is

being done in connection with this case, at the time the opinion is issued.

The syllabus constitutes no part of the opinion of the Court but has been

prepared by the Reporter of Decisions for the convenience of the reader.

See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.

SUPREME COURT OF THE UNITED STATES

Syllabus

MCDONALD ET AL. v. CITY OF CHICAGO, ILLINOIS,

ET AL.

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR

THE SEVENTH CIRCUIT

No. 08–1521. Argued March 2, 2010—Decided June 28, 2010

Two years ago, in District of Columbia v. Heller, 554 U. S. ___, this

Court held that the Second Amendment protects the right to keep

and bear arms for the purpose of self-defense and struck down a Dis

trict of Columbia law that banned the possession of handguns in the

home. Chicago (hereinafter City) and the village of Oak Park, a Chi

cago suburb, have laws effectively banning handgun possession by

almost all private citizens. After Heller, petitioners filed this federal

suit against the City, which was consolidated with two related ac

tions, alleging that the City’s handgun ban has left them vulnerable

to criminals. They sought a declaration that the ban and several re

lated City ordinances violate the Second and Fourteenth Amend

ments. Rejecting petitioners’ argument that the ordinances are un

constitutional, the court noted that the Seventh Circuit previously

had upheld the constitutionality of a handgun ban, that Heller had

explicitly refrained from opining on whether the Second Amendment

applied to the States, and that the court had a duty to follow estab

lished Circuit precedent. The Seventh Circuit affirmed, relying on

three 19th-century cases—United States v. Cruikshank, 92 U. S. 542,

Presser v. Illinois, 116 U. S. 252, and Miller v. Texas, 153 U. S. 535—

which were decided in the wake of this Court’s interpretation of the

Fourteenth Amendment’s Privileges or Immunities Clause in the

Slaughter-House Cases, 16 Wall. 36.

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

567 F. 3d 856, reversed and remanded.

JUSTICE ALITO delivered the opinion of the Court with respect to

Parts I, II–A, II–B, II–D, III–A, and III–B, concluding that the Four

2 MCDONALD v. CHICAGO

Syllabus

teenth Amendment incorporates the Second Amendment right, rec

ognized in Heller, to keep and bear arms for the purpose of self

defense. Pp. 5–9, 11–19, 19–33.

(a) Petitioners base their case on two submissions. Primarily, they

argue that the right to keep and bear arms is protected by the Privi

leges or Immunities Clause of the Fourteenth Amendment and that

the Slaughter-House Cases’ narrow interpretation of the Clause

should now be rejected. As a secondary argument, they contend that

the Fourteenth Amendment’s Due Process Clause incorporates the

Second Amendment right. Chicago and Oak Park (municipal respon

dents) maintain that a right set out in the Bill of Rights applies to

the States only when it is an indispensable attribute of any “ ‘civi

lized’ ” legal system. If it is possible to imagine a civilized country

that does not recognize the right, municipal respondents assert, that

right is not protected by due process. And since there are civilized

countries that ban or strictly regulate the private possession of hand

guns, they maintain that due process does not preclude such meas

ures. Pp. 4–5.

(b) The Bill of Rights, including the Second Amendment, originally

applied only to the Federal Government, not to the States, see, e.g.,

Barron ex rel. Tiernan v. Mayor of Baltimore, 7 Pet. 243, 247, but the

constitutional Amendments adopted in the Civil War’s aftermath

fundamentally altered the federal system. Four years after the adop

tion of the Fourteenth Amendment, this Court held in the Slaughter-

House Cases, 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,” 16 Wall., at 79,

and that the fundamental rights predating the creation of the Fed

eral Government were not protected by the Clause, id., at 76. Under

this narrow reading, the Court held that the Privileges or Immunities

Clause protects only very limited rights. Id., at 79–80. Subse

quently, the Court held that the Second Amendment applies only to

the Federal Government in Cruikshank, 92 U. S. 542, Presser, 116

U. S. 252, and Miller, 153 U. S. 535, the decisions on which the Sev

enth Circuit relied in this case. Pp. 5–9.

(c) Whether the Second Amendment right to keep and bear arms

applies to the States is considered in light of the Court’s precedents

applying the Bill of Rights’ protections to the States. Pp. 11–19.

(1) In the late 19th century, the Court began to hold that the Due

Process Clause prohibits the States from infringing Bill of Rights pro

tections. See, e.g., Hurtado v. California, 110 U. S. 516. Five fea

tures of the approach taken during the ensuing era are 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

Cite as: 561 U. S. ____ (2010) 3

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citizenship. See Twining v. New Jersey, 211 U. S. 78, 99. Second, the

Court explained that the only rights due process protected against

state infringement were those “of such a nature that they are in

cluded in the conception of due process of law.” Ibid. Third, some

cases during this era “can be seen as having asked . . . if a civilized

system could be imagined that would not accord the particular pro

tection” asserted therein. Duncan v. Louisiana, 391 U. S. 145, 149,

n. 14. Fourth, the Court did not hesitate to hold that a Bill of Rights

guarantee failed to meet the test for Due Process Clause protection,

finding, e.g., that freedom of speech and press qualified, Gitlow v.

New York, 268 U. S. 652, 666; Near v. Minnesota ex rel. Olson, 283

U. S. 697, but the grand jury indictment requirement did not, Hur

tado, supra. Finally, even when such a right was held to fall within

the conception of due process, the protection or remedies afforded

against state infringement sometimes differed from those provided

against abridgment by the Federal Government. Pp. 11–13.

(2) Justice Black championed the alternative theory that §1 of

the Fourteenth Amendment totally incorporated all of the Bill of

Rights’ provisions, see, e.g., Adamson v. California, 332 U. S. 46, 71–

72 (Black, J., dissenting), but the Court never has embraced that the

ory. Pp. 13–15.

(3) The Court eventually moved in the direction advocated by

Justice Black, by adopting a theory of selective incorporation by

which the Due Process Clause incorporates particular rights con

tained in the first eight Amendments. See, e.g., Gideon v. Wainwright,

372 U. S. 335, 341. These decisions abandoned three of the charac

teristics of the earlier period. The Court clarified that the governing

standard is whether a particular Bill of Rights protection is funda

mental to our Nation’s particular scheme of ordered liberty and sys

tem of justice. Duncan, supra, at 149, n. 14. The Court eventually

held that almost all of the Bill of Rights’ guarantees met the re

quirements for protection under the Due Process Clause. The Court

also held that Bill of Rights protections must “all . . . be enforced

against the States under the Fourteenth Amendment according to

the same standards that protect those personal rights against federal

encroachment.” Malloy v. Hogan, 378 U. S. 1, 10. Under this ap

proach, the Court overruled earlier decisions holding that particular

Bill of Rights guarantees or remedies did not apply to the States.

See, e.g., Gideon, supra, which overruled Betts v. Brady, 316 U. S.

455. Pp. 15–19.

(d) The Fourteenth Amendment makes the Second Amendment

right to keep and bear arms fully applicable to the States. Pp. 19–33.

(1) The Court must decide whether that right is fundamental to

the Nation’s scheme of ordered liberty, Duncan v. Louisiana, 391

4 MCDONALD v. CHICAGO

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U. S. 145, 149, or, as the Court has said in a related context, whether

it is “deeply rooted in this Nation’s history and tradition,” Washing

ton v. Glucksberg, 521 U. S. 702, 721. Heller points unmistakably to

the answer. Self-defense is a basic right, recognized by many legal

systems from ancient times to the present, and the Heller Court held

that individual self-defense is “the central component” of the Second

Amendment right. 554 U. S., at ___, ___. Explaining that “the need

for defense of self, family, and property is most acute” in the home,

ibid., the Court found that this right applies to handguns because

they are “the most preferred firearm in the nation to ‘keep’ and use

for protection of one’s home and family,” id., at ___, ___–___. It thus

concluded that citizens must be permitted “to use [handguns] for the

core lawful purpose of self-defense.” Id., at ___. Heller also clarifies

that this right is “deeply rooted in this Nation’s history and tradi

tions,” Glucksberg, supra, at 721. Heller explored the right’s origins

in English law and noted the esteem with which the right was re

garded during the colonial era and at the time of the ratification of

the Bill of Rights. This is powerful evidence that the right was re

garded as fundamental in the sense relevant here. That understand

ing persisted in the years immediately following the Bill of Rights’

ratification and is confirmed by the state constitutions of that era,

which protected the right to keep and bear arms. Pp. 19–22.

(2) A survey of the contemporaneous history also demonstrates

clearly that the Fourteenth Amendment’s Framers and ratifiers

counted the right to keep and bear arms among those fundamental

rights necessary to the Nation’s system of ordered liberty. Pp. 22–33.

(i) By the 1850’s, the fear that the National Government would

disarm the universal militia had largely faded, but the right to keep

and bear arms was highly valued for self-defense. Abolitionist au

thors wrote in support of the right, and attempts to disarm “Free-

Soilers” in “Bloody Kansas,” met with outrage that the constitutional

right to keep and bear arms had been taken from the people. After

the Civil War, the Southern States engaged in systematic efforts to

disarm and injure African Americans, see Heller, supra, at ___.

These injustices prompted the 39th Congress to pass the Freedmen’s

Bureau Act of 1866 and the Civil Rights Act of 1866 to protect the

right to keep and bear arms. Congress, however, ultimately deemed

these legislative remedies insufficient, and approved the Fourteenth

Amendment. Today, it is generally accepted that that Amendment

was understood to provide a constitutional basis for protecting the

rights set out in the Civil Rights Act. See General Building Contrac

tors Assn., Inc. v. Pennsylvania, 458 U. S. 375, 389. In Congressional

debates on the proposed Amendment, its legislative proponents in the

39th Congress referred to the right to keep and bear arms as a fun

Cite as: 561 U. S. ____ (2010) 5

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damental right deserving of protection. Evidence from the period

immediately following the Amendment’s ratification confirms that

that right was considered fundamental. Pp. 22–31.

(ii) Despite all this evidence, municipal respondents argue that

Members of Congress overwhelmingly viewed §1 of the Fourteenth

Amendment as purely an antidiscrimination rule. But while §1 does

contain an antidiscrimination rule, i.e., the Equal Protection Clause,

it can hardly be said that the section does no more than prohibit dis

crimination. If what municipal respondents mean is that the Second

Amendment should be singled out for special—and specially unfavor

able—treatment, the Court rejects the suggestion. The right to keep

and bear arms must be regarded as a substantive guarantee, not a

prohibition that could be ignored so long as the States legislated in

an evenhanded manner. Pp. 30–33.

JUSTICE ALITO, joined by THE CHIEF JUSTICE, JUSTICE SCALIA, and

JUSTICE KENNEDY, concluded, in Parts II–C, IV, and V, that the Four

teenth Amendment’s Due Process Clause incorporates the Second

Amendment right recognized in Heller. Pp. 10–11, 33–44.

(a) Petitioners argue that that the Second Amendment right is one

of the “privileges or immunities of citizens of the United States.”

There is no need to reconsider the Court’s interpretation of the Privi

leges or Immunities Clause in the Slaughter-House Cases because,

for many decades, the Court has analyzed the question whether par

ticular rights are protected against state infringement under the

Fourteenth Amendment’s Due Process Clause. Pp. 10–11.

(b) Municipal respondents’ remaining arguments are rejected be

cause they are at war with Heller’s central holding. In effect, they

ask the Court to hold the right to keep and bear arms as subject to a

different body of rules for incorporation than the other Bill of Rights

guarantees. Pp. 33–40.

(c) The dissents’ objections are addressed and rejected. Pp. 41–44.

JUSTICE THOMAS agreed that the Fourteenth Amendment makes

the Second Amendment right to keep and bear arms that was recog

nized in District of Columbia v. Heller, 554 U. S. ___, fully applicable

to the States. However, he asserted, there is a path to this conclusion

that is more straightforward and more faithful to the Second

Amendment’s text and history. The Court is correct in describing the

Second Amendment right as “fundamental” to the American scheme

of ordered liberty, Duncan v. Louisiana, 391 U. S. 145, 149, and

“deeply rooted in this Nation’s history and traditions,” Washington v.

Glucksberg, 521 U. S. 702, 721. But the Fourteenth Amendment’s

Due Process Clause, which speaks only to “process,” cannot impose

the type of substantive restraint on state legislation that the Court

asserts. Rather, the right to keep and bear arms is enforceable

6 MCDONALD v. CHICAGO

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against the States because it is a privilege of American citizenship

recognized by §1 of the Fourteenth Amendment, which provides, inter

alia: “No State shall make or enforce any law which shall abridge the

privileges or immunities of citizens of the United States.” In inter

preting this language, it is important to recall that constitutional

provisions are “ ‘written to be understood by the voters.’ ” Heller, 554

U. S., at ___. The objective of this inquiry is to discern what “ordi

nary citizens” at the time of the Fourteenth Amendment’s ratification

would have understood that Amendment's Privileges or Immunities

Clause to mean. Ibid. A survey of contemporary legal authorities

plainly shows that, at that time, the ratifying public understood the

Clause to protect constitutionally enumerated rights, including the

right to keep and bear arms. Pp. 1–34.

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, III–A, and

III–B, 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., join. SCALIA, J., filed a

concurring opinion. THOMAS, J., filed an opinion concurring in part and

concurring in the judgment. STEVENS, J., filed a dissenting opinion.

BREYER, J., filed a dissenting opinion, in which GINSBURG and SO-

TOMAYOR, JJ., joined.

Cite as: 561 U. S. ____ (2010) 1

Opinion of the Court

NOTICE: This opinion is subject to formal revision before publication in the

preliminary print of the United States Reports. Readers are requested to

notify the Reporter of Decisions, Supreme Court of the United States, Wash

ington, D. C. 20543, of any typographical or other formal errors, in order

that corrections may be made before the preliminary print goes to press.

SUPREME COURT OF THE UNITED STATES

_________________

No. 08–1521

_________________

OTIS MCDONALD, ET AL., PETITIONERS v. CITY OF

CHICAGO, ILLINOIS, ET AL.

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE SEVENTH CIRCUIT

[June 28, 2010]

JUSTICE ALITO announced the judgment of the Court

and delivered the opinion of the Court with respect to

Parts I, II–A, II–B, II–D, III–A, and III–B, in which THE

CHIEF JUSTICE, JUSTICE SCALIA, JUSTICE KENNEDY, and

JUSTICE THOMAS join, and an opinion with respect to

Parts II–C, IV, and V, in which THE CHIEF JUSTICE,

JUSTICE SCALIA, and JUSTICE KENNEDY join.

Two years ago, in District of Columbia v. Heller, 554

U. S. ___ (2008), we held that the Second Amendment

protects the right to keep and bear arms for the purpose of

self-defense, and we struck down a District of Columbia

law that banned the possession of handguns in the home.

The city of Chicago (City) and the village of Oak Park, a

Chicago suburb, have laws that are similar to the District

of Columbia’s, but Chicago and Oak Park argue that their

laws are constitutional because the Second Amendment

has no application to the States. We have previously held

that most of the provisions of the Bill of Rights apply with

full force to both the Federal Government and the States.

Applying the standard that is well established in our case

law, we hold that the Second Amendment right is fully

2 MCDONALD v. CHICAGO

Opinion of the Court

applicable to the States.

I

Otis McDonald, Adam Orlov, Colleen Lawson, and

David Lawson (Chicago petitioners) are Chicago residents

who would like to keep handguns in their homes for self

defense but are prohibited from doing so by Chicago’s

firearms laws. A City ordinance provides that “[n]o person

shall . . . possess . . . any firearm unless such person is the

holder of a valid registration certificate for such firearm.”

Chicago, Ill., Municipal Code §8–20–040(a) (2009). The

Code then prohibits registration of most handguns, thus

effectively banning handgun possession by almost all

private citizens who reside in the City. §8–20–050(c).

Like Chicago, Oak Park makes it “unlawful for any person

to possess . . . any firearm,” a term that includes “pistols,

revolvers, guns and small arms . . . commonly known as

handguns.” Oak Park, Ill., Municipal Code §§27–2–1

(2007), 27–1–1 (2009).

Chicago enacted its handgun ban to protect its residents

“from the loss of property and injury or death from fire

arms.” See Chicago, Ill., Journal of Proceedings of the

City Council, p. 10049 (Mar. 19, 1982). The Chicago peti

tioners and their amici, however, argue that the handgun

ban has left them vulnerable to criminals. Chicago 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

——————

1 See Brief for Heartland Institute as Amicus Curiae 6–7 (noting that

handgun murder rate was 9.65 in 1983 and 13.88 in 2008).

2 Brief for Buckeye Firearms Foundation, Inc., et al. as Amici Curiae

8–9 (“In 2002 and again in 2008, Chicago had more murders than any

other city in the U. S., including the much larger Los Angeles and New

Cite as: 561 U. S. ____ (2010) 3

Opinion of the Court

Several of the Chicago petitioners have been the targets

of threats and violence. For instance, Otis McDonald, who

is in his late seventies, lives in a high-crime neighborhood.

He is a community activist involved with alternative

policing strategies, and his efforts to improve his

neighborhood have subjected him to violent threats from

drug dealers. App. 16–17; Brief for State Firearm Associa

tions as Amici Curiae 20–21; Brief for State of Texas et al.

as Amici Curiae 7–8. Colleen Lawson is a Chicago resi

dent whose home has been targeted by burglars. “In Mrs.

Lawson’s judgment, possessing a handgun in Chicago

would decrease her chances of suffering serious injury or

death should she ever be threatened again in her home.”3

McDonald, Lawson, and the other Chicago petitioners own

handguns that they store outside of the city limits, but

they would like to keep their handguns in their homes for

protection. See App. 16–19, 43–44 (McDonald), 20–24 (C.

Lawson), 19, 36 (Orlov), 20–21, 40 (D. Lawson).

After our decision in Heller, the Chicago petitioners and

two groups4 filed suit against the City in the United 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 Four

teenth Amendments to the United States Constitution.

Another action challenging the Oak Park law was filed in

the same District Court by the National Rifle Association

(NRA) and two Oak Park residents. In addition, the NRA

and others filed a third action challenging the Chicago

——————

York” (internal quotation marks omitted)); see also Brief for Interna

tional Law Enforcement Educators and Trainers Association et al. as

Amici Curiae 17–21, and App. A (providing comparisons of Chicago’s

rates of assault, murder, and robbery to average crime rates in 24 other

large cities).

3 Brief for Women State Legislators et al. as Amici Curiae 2.

4 The Illinois State Rifle Association and the Second Amendment

Foundation, Inc.

4 MCDONALD v. CHICAGO

Opinion of the Court

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 Amend

ment,” NRA, 617 F. Supp. 2d, at 754. The court observed

that a district judge has a “duty to follow established

precedent in the Court of Appeals to which he or she is

beholden, even though the logic of more recent caselaw

may point in a different direction.” Id., at 753.

The Seventh Circuit affirmed, relying on three 19th

century cases—United States v. Cruikshank, 92 U. S. 542

(1876), Presser v. Illinois, 116 U. S. 252 (1886), and Miller

v. Texas, 153 U. S. 535 (1894)—that were decided in the

wake of this Court’s interpretation of the Privileges or

Immunities Clause of the Fourteenth Amendment in the

Slaughter-House Cases, 16 Wall. 36 (1873). The Seventh

Circuit described the rationale of those cases as “defunct”

and recognized that they did not consider the question

whether the Fourteenth Amendment’s Due Process Clause

incorporates the Second Amendment right to keep and

bear arms. NRA, Inc. v. Chicago, 567 F. 3d 856, 857, 858

(2009). Nevertheless, the Seventh Circuit observed that it

was obligated to follow Supreme Court precedents that

have “direct application,” and it declined to predict how

the Second Amendment would fare under this Court’s

modern “selective incorporation” approach. Id., at 857–

858 (internal quotation marks omitted).

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

Cite as: 561 U. S. ____ (2010) 5

Opinion of the Court

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 Privi

leges or Immunities Clause adopted in the Slaughter-

House Cases, supra, should now be rejected. As a secon

dary argument, petitioners contend that the Fourteenth

Amendment’s Due Process Clause “incorporates” the

Second Amendment right.

Chicago and Oak Park (municipal respondents) main

tain 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 Respon

dents 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

6 MCDONALD v. CHICAGO

Opinion of the Court

States, holding that they apply only to the Federal Gov

ernment. See also Lessee of Livingston v. Moore, 7 Pet.

469, 551–552 (1833) (“[I]t is now settled that those amend

ments [in the Bill of Rights] do not extend to the states”).

The constitutional Amendments adopted in the after

math of the Civil War fundamentally altered our country’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 proc

ess of law.”

Four years after the adoption of the Fourteenth

Amendment, this Court was asked to interpret the

Amendment’s reference to “the privileges or immunities of

citizens of the United States.” The Slaughter-House

Cases, supra, involved challenges to a Louisiana law per

mitting the creation of a state-sanctioned monopoly on the

butchering of animals within the city of New Orleans.

Justice Samuel Miller’s opinion for the Court 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 cre

ated to establish and secure”—were not protected by the

Clause. Id., at 76.

In drawing a sharp distinction between the rights of

federal and state citizenship, the Court relied on two

principal arguments. First, the Court emphasized that

the Fourteenth Amendment’s Privileges or Immunities

Clause spoke of “the privileges or immunities of citizens of

the United States,” and the Court contrasted this phrasing

with the wording in the first sentence of the Fourteenth

Amendment and in the Privileges and Immunities Clause

Cite as: 561 U. S. ____ (2010) 7

Opinion of the Court

of Article IV, both of which refer to state citizenship.5

(Emphasis added.) Second, the Court stated that a con

trary reading would “radically chang[e] the whole theory

of the relations of the State and Federal governments to

each other and of both these governments to the people,”

and the Court refused to conclude that such a change had

been made “in the absence of language which expresses

such a purpose too clearly to admit of doubt.” Id., at 78.

Finding the phrase “privileges or immunities of citizens of

the United States” lacking by this high standard, the

Court reasoned that the phrase must mean something

more limited.

Under the Court’s narrow reading, the Privileges or

Immunities Clause protects such things as the right

“to come to the seat of government to assert any claim

[a citizen] may have upon that government, to trans

act any business he may have with it, to seek its pro

tection, to share its offices, to engage in administering

its functions . . . [and to] become a citizen of any State

of the Union by a bonâ fide residence therein, with the

same rights as other citizens of that State.” Id., at

79–80 (internal quotation marks omitted).

Finding no constitutional protection against state intru

sion of the kind envisioned by the Louisiana statute, the

Court upheld the statute. Four Justices dissented. Jus

tice Field, joined by Chief Justice Chase and Justices

Swayne and Bradley, criticized the majority for reducing

the Fourteenth Amendment’s Privileges or Immunities

——————

5 The first sentence of the Fourteenth Amendment makes “[a]ll per

sons born or naturalized in the United States and subject to the juris

diction thereof . . . citizens of the United States and of the State wherein

they reside.” (Emphasis added.) The Privileges and Immunities Clause

of Article IV provides that “[t]he Citizens of each State shall be entitled

to all Privileges and Immunities of Citizens in the several States.”

(Emphasis added.)

8 MCDONALD v. CHICAGO

Opinion of the Court

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 . . . funda

mental,” including the right of every man to pursue his

profession without the imposition of unequal or discrimi

natory restrictions. Id., at 96–97. Justice Bradley’s dis

sent observed that “we are not bound to resort to implica

tion . . . to find an authoritative declaration of some of the

most important privileges and immunities of citizens of

the United States. It is in the Constitution itself.” Id., at

118. Justice Bradley would have construed the 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 nar

row reading of the Privileges or Immunities Clause as

“turn[ing] . . . what was meant for bread into a stone.” Id.,

at 129 (dissenting opinion).

Today, many legal scholars dispute the correctness of

the narrow Slaughter-House interpretation. See, e.g.,

Saenz v. Roe, 526 U. S. 489, 522, n. 1, 527 (1999) (THOMAS,

J., dissenting) (scholars of the Fourteenth Amendment

agree “that the Clause does not mean what the Court said

it meant in 1873”); Amar, Substance and Method in the

Year 2000, 28 Pepperdine L. Rev. 601, 631, n. 178 (2001)

(“Virtually no serious modern scholar—left, right, and

center—thinks that this [interpretation] is a plausible

reading of the Amendment”); Brief for Constitutional Law

Professors as Amici Curiae 33 (claiming an “overwhelming

consensus among leading constitutional scholars” that the

opinion is “egregiously wrong”); C. Black, A New Birth of

Freedom 74–75 (1997).

Three years after the decision in the Slaughter-House

Cases, the Court decided Cruikshank, the first of the three

19th-century cases on which the Seventh Circuit relied.

Cite as: 561 U. S. ____ (2010) 9

Opinion of the Court

92 U. S. 542. In that case, the Court reviewed convictions

stemming from the infamous Colfax Massacre in Louisi

ana on Easter Sunday 1873. Dozens of blacks, many

unarmed, were slaughtered by a rival band of armed white

men.6 Cruikshank himself allegedly marched 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 con

victed under the Enforcement Act of 1870, 16 Stat. 140, for

banding and conspiring together to deprive their victims of

various constitutional rights, including the right to bear

arms.8

The Court reversed all of the convictions, 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 exis

tence.” Id., at 553. “The second amendment,” the Court

continued, “declares that it shall not be infringed; but this

. . . means no more than that it shall not be infringed by

Congress.” Ibid. “Our later decisions in Presser v. Illinois,

116 U. S. 252, 265 (1886), and Miller v. Texas, 153 U. S.

535, 538 (1894), reaffirmed that the Second Amendment

applies only to the Federal Government.” Heller, 554

U. S., at ___, n. 23 (slip op., at 48, n. 23).

——————

6 See C. Lane, The Day Freedom Died 265–266 (2008); see also Brief

for NAACP Legal Defense & Education Fund, Inc., as Amicus Curiae 3,

and n. 2.

7 See Lane, supra, at 106.

8 United States v. Cruikshank, 92 U. S. 542, 544–545 (statement of

the case), 548, 553 (opinion of the Court) (1875); Lawrence, Civil Rights

and Criminal Wrongs: The Mens Rea of Federal Civil Rights Crimes, 67

Tulane L. Rev. 2113, 2153 (1993).

10 MCDONALD v. CHICAGO

Opinion of the Court

Opinion of ALITO, J.

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 “privi

leges or immunities of citizens of the United States.” In

petitioners’ view, the Privileges or Immunities Clause

protects all of the rights set out in the Bill of Rights, as

well as some others, see Brief for Petitioners 10, 14, 15–21,

but petitioners are unable to identify the Clause’s full

scope, Tr. of Oral Arg. 5–6, 8–11. Nor is there any consen

sus on that question among the scholars who agree that

the Slaughter-House Cases’ interpretation is flawed. See

Saenz, supra, at 522, n. 1 (THOMAS, J., dissenting).

We see no need to reconsider that interpretation here.

For many decades, the question of the rights protected by

the Fourteenth Amendment against state infringement

has been analyzed under the Due Process Clause of that

Amendment and not under the Privileges or Immunities

Clause. We therefore decline to disturb the Slaughter-

House holding.

At the same time, however, this Court’s decisions in

Cruikshank, Presser, and Miller do not preclude us from

considering whether the Due Process Clause of the Four

teenth Amendment makes the Second Amendment right

binding on the States. See Heller, 554 U. S., at ___, n. 23

(slip op., at 48, n. 23). None of those cases “engage[d] in

the sort of Fourteenth Amendment inquiry required by

our later cases.” Ibid. As explained more fully below,

Cruikshank, Presser, and Miller all preceded the era in

which the Court began the process of “selective incorpo

ration” 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.

Cite as: 561 U. S. ____ (2010) 11

Opinion of the Court

Indeed, Cruikshank has not prevented us from holding

that other rights that were at issue in that case are bind

ing on the States through the Due Process Clause. In

Cruikshank, the Court held that the general “right of the

people peaceably to assemble for lawful purposes,” which

is protected by the First Amendment, applied only against

the Federal Government and not against the States. See

92 U. S., at 551–552. Nonetheless, over 60 years later the

Court held that the right of peaceful assembly was a “fun

damental righ[t] . . . safeguarded by the due process clause

of the Fourteenth Amendment.” De Jonge v. Oregon, 299

U. S. 353, 364 (1937). We follow the same path here 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 with

out just compensation). Five features of the approach

taken during the ensuing era should be noted.

First, the Court viewed the due process question as

entirely separate from the question whether a right was a

privilege or immunity of national citizenship. See Twin

ing v. New Jersey, 211 U. S. 78, 99 (1908).

Second, the Court explained that the only rights pro

tected against state infringement by the Due Process

Clause were those rights “of such a nature that they are

included in the conception of due process of law.” Ibid.

See also, e.g., Adamson v. California, 332 U. S. 46 (1947);

Betts v. Brady, 316 U. S. 455 (1942); Palko v. Connecticut,

12 MCDONALD v. CHICAGO

Opinion of the Court

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 Na

tional action [might] also be safeguarded against state

action,” the Court stated, this was “not because those

rights are enumerated in the first eight Amendments.”

Twining, supra, at 99.

The Court used different formulations in describing the

boundaries of due process. For example, in Twining, the

Court referred to “immutable principles of justice which

inhere in the very idea of free government which no mem

ber of the Union may disregard.” 211 U. S., at 102 (inter

nal quotation marks omitted). In Snyder v. Massachu

setts, 291 U. S. 97, 105 (1934), the Court spoke of rights

that are “so rooted in the traditions and conscience of our

people as to be ranked as fundamental.” And in Palko, the

Court famously said that due process protects those rights

that are “the very essence of a scheme of ordered liberty”

and essential to “a fair and enlightened system of justice.”

302 U. S., at 325.

Third, in some cases decided during this era the Court

“can be seen as having asked, when inquiring into

whether some particular procedural safeguard was re

quired of a State, if a civilized system could be imagined

that would not accord the particular protection.” Duncan

v. Louisiana, 391 U. S. 145, 149, n. 14 (1968). Thus, in

holding that due process prohibits a State from taking

private property without just compensation, the Court

described the right as “a principle of natural equity, rec

ognized by all temperate and civilized governments, from

a deep and universal sense of its justice.” Chicago, B. &

Q. R. Co., supra, at 238. Similarly, the Court found 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

Cite as: 561 U. S. ____ (2010) 13

Opinion of the Court

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. Con

necticut, 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 pro

vided against abridgment by the Federal Government. To

give one example, in Betts the Court held that, although

the Sixth Amendment required the appointment of coun

sel in all federal criminal cases in which the defendant

was unable to retain an attorney, the Due Process Clause

required appointment of counsel in state criminal proceed

ings only where “want of counsel in [the] particular case

. . . result[ed] in a conviction lacking in . . . fundamental

fairness.” 316 U. S., at 473. Similarly, in Wolf v. Colo

rado, 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 be

14 MCDONALD v. CHICAGO

Opinion of the Court

tween the Bill of Rights and §1 of the Fourteenth Amend

ment was championed by Justice Black. This theory held

that §1 of the Fourteenth Amendment totally incorporated

all of the provisions of the Bill of Rights. See, e.g.,

Adamson, supra, at 71–72 (Black, J., dissenting); Duncan,

supra, at 166 (Black, J., concurring). As Justice Black

noted, the chief congressional proponents of the Four

teenth Amendment espoused the view that the Amend

ment made the Bill of Rights applicable to the States and,

in so doing, overruled this Court’s decision in Barron.9

Adamson, 332 U. S., at 72 (dissenting opinion).10 None

——————

9 Senator Jacob Howard, who spoke on behalf of the Joint Committee

on Reconstruction and sponsored the Amendment in the Senate, stated

that the Amendment protected all of “the personal rights guarantied

and secured by the first eight amendments of the Constitution.” Cong.

Globe, 39th Cong., 1st Sess., 2765 (1866) (hereinafter 39th Cong.

Globe). Representative John Bingham, the principal author of the text

of §1, said that the Amendment would “arm the Congress . . . with the

power to enforce the bill of rights as it stands in the Constitution

today.” Id., at 1088; see also id., at 1089–1090; A. Amar, The Bill of

Rights: Creation and Reconstruction 183 (1998) (hereinafter Amar, Bill

of Rights). After ratification of the Amendment, Bingham maintained

the view that the rights guaranteed by §1 of the Fourteenth Amend

ment “are chiefly defined in the first eight amendments to the Consti

tution of the United States.” Cong. Globe, 42d Cong., 1st Sess., App. 84

(1871). Finally, Representative Thaddeus Stevens, the political leader

of the House and acting chairman of the Joint Committee on Recon

struction, stated during the debates on the Amendment that “the

Constitution limits only the action of Congress, and is not a limitation

on the States. This amendment supplies that defect, and allows Con

gress to correct the unjust legislation of the States.” 39th Cong. Globe

2459; see also M. Curtis, No State Shall Abridge: The Fourteenth

Amendment and the Bill of Rights 112 (1986) (counting at least 30

statements during the debates in Congress interpreting §1 to incorpo

rate the Bill of Rights); Brief for Constitutional Law Professors as

Amici Curiae 20 (collecting authorities and stating that “[n]ot a single

senator or representative disputed [the incorporationist] understand

ing” of the Fourteenth Amendment).

10 The municipal respondents and some of their amici dispute the

significance of these statements. They contend that the phrase “privi

Cite as: 561 U. S. ____ (2010) 15

Opinion of the Court

theless, the Court never has embraced Justice Black’s

“total incorporation” theory.

3

While Justice Black’s theory was never adopted, the

Court eventually moved in that direction by initiating

what has been called a process of “selective incorporation,”

i.e., the Court began to hold that the Due Process Clause

fully incorporates particular rights contained in the first

eight Amendments. See, e.g., Gideon v. Wainwright, 372

U. S. 335, 341 (1963); Malloy v. Hogan, 378 U. S. 1, 5–6

——————

leges or immunities” is not naturally read to mean the rights set out in

the first eight Amendments, see Brief for Historians et al. as Amici

Curiae 13–16, and that “there is ‘support in the legislative history for

no fewer than four interpretations of the . . . Privileges or Immunities

Clause.’ ” Brief for Municipal Respondents 69 (quoting Currie, The

Reconstruction Congress, 75 U. Chi. L. Rev. 383, 406 (2008); brackets

omitted). They question whether there is sound evidence of “ ‘any

strong public awareness of nationalizing the entire Bill of Rights.’ ”

Brief for Municipal Respondents 69 (quoting Wildenthal, Nationalizing

the Bill of Rights: Revisiting the Original Understanding of the Four

teenth Amendment in 1866–67, 68 Ohio St. L. J. 1509, 1600 (2007)).

Scholars have also disputed the total incorporation theory. See, e.g.,

Fairman, Does the Fourteenth Amendment Incorporate the Bill of

Rights? 2 Stan. L. Rev. 5 (1949); Berger, Incorporation of the Bill of

Rights in the Fourteenth Amendment: A Nine-Lived Cat, 42 Ohio St.

L. J. 435 (1981).

Proponents of the view that §1 of the Fourteenth Amendment makes

all of the provisions of the Bill of Rights applicable to the States re

spond 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., Wilden

thal, supra, at 1564–1565, 1590; Hardy, Original Popular Understand

ing 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 aca

demic debate.

16 MCDONALD v. CHICAGO

Opinion of the Court

(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” (empha

sis 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 Only a handful of the Bill of Rights pro

——————

11 By contrast, the Court has never retreated from the proposition

that the Privileges or Immunities Clause and the Due Process Clause

present different questions. And in recent cases addressing unenumer

ated rights, we have required that a right also be “implicit in the

concept of ordered liberty.” See, e.g., Washington v. Glucksberg, 521

U. S. 702, 721 (1997) (internal quotation marks omitted).

12 With respect to the First Amendment, see Everson v. Board of Ed.

of Ewing, 330 U. S. 1 (1947) (Establishment Clause); Cantwell v.

Connecticut, 310 U. S. 296 (1940) (Free Exercise Clause); De Jonge v.

Oregon, 299 U. S. 353 (1937) (freedom of assembly); Gitlow v. New

York, 268 U. S. 652 (1925) (free speech); Near v. Minnesota ex rel.

Olson, 283 U. S. 697 (1931) (freedom of the press).

With respect to the Fourth Amendment, see Aguilar v. Texas, 378

U. S. 108 (1964) (warrant requirement); Mapp v. Ohio, 367 U. S. 643

(1961) (exclusionary rule); Wolf v. Colorado, 338 U. S. 25 (1949) (free

dom from unreasonable searches and seizures).

With respect to the Fifth Amendment, see Benton v. Maryland, 395

Cite as: 561 U. S. ____ (2010) 17

Opinion of the Court

tections remain unincorporated.13

Finally, the Court abandoned “the notion that the Four

teenth 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

——————

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).

13 In addition to the right to keep and bear arms (and the Sixth

Amendment right to a unanimous jury verdict, see n. 14, infra), the

only rights not fully incorporated are (1) the Third Amendment’s

protection against quartering of soldiers; (2) the Fifth Amendment’s

grand jury indictment requirement; (3) the Seventh Amendment right

to a jury trial in civil cases; and (4) the Eighth Amendment’s prohibi

tion on excessive fines.

We never have decided whether the Third Amendment or the Eighth

Amendment’s prohibition of excessive fines applies to the States

through the Due Process Clause. See Browning-Ferris Industries of Vt.,

Inc. v. Kelco Disposal, Inc., 492 U. S. 257, 276, n. 22 (1989) (declining to

decide whether the excessive-fines protection applies to the States); 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.

18 MCDONALD v. CHICAGO

Opinion of the Court

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

Employing this approach, the Court overruled earlier

decisions in which it had held that particular Bill of Rights

——————

14 There is one exception to this general rule. The Court has held that

although the Sixth Amendment right to trial by jury requires a unani

mous jury verdict in federal criminal trials, it does not require a

unanimous jury verdict in state criminal trials. See Apodaca v. Oregon,

406 U. S. 404 (1972); see also Johnson v. Louisiana, 406 U. S. 356

(1972) (holding that the Due Process Clause does not require unani

mous jury verdicts in state criminal trials). But that ruling was the

result of an unusual division among the Justices, not an endorsement

of the two-track approach to incorporation. In Apodaca, eight Justices

agreed that the Sixth Amendment applies identically to both the

Federal Government and the States. See Johnson, supra, at 395

(Brennan, J., dissenting). Nonetheless, among those eight, four Jus

tices took the view that the Sixth Amendment does not require unani

mous jury verdicts in either federal or state criminal trials, Apodaca,

406 U. S., at 406 (plurality opinion), and four other Justices took the

view that the Sixth Amendment requires unanimous jury verdicts in

federal and state criminal trials, id., at 414–415 (Stewart, J., dissent

ing); Johnson, supra, at 381–382 (Douglas, J., dissenting). Justice

Powell’s concurrence in the judgment broke the tie, and he concluded

that the Sixth Amendment requires juror unanimity in federal, but not

state, cases. Apodaca, therefore, does not undermine the well

established rule that incorporated Bill of Rights protections apply

identically to the States and the Federal Government. See Johnson,

supra, at 395–396 (Brennan, J., dissenting) (footnote omitted) (“In any

event, the affirmance must not obscure that the majority of the Court

remains of the view that, as in the case of every specific of the Bill of

Rights that extends to the States, the Sixth Amendment’s jury trial

guarantee, however it is to be construed, has identical application

against both State and Federal Governments”).

Cite as: 561 U. S. ____ (2010) 19

Opinion of the Court

guarantees or remedies did not apply to the States. See,

e.g., Mapp, supra (overruling in part Wolf, 338 U. S. 25);

Gideon, 372 U. S. 335 (overruling Betts, 316 U. S. 455);

Malloy, supra (overruling Adamson, 332 U. S. 46, and

Twining, 211 U. S. 78); Benton, supra, at 794 (overruling

Palko, 302 U. S. 319).

III

With this framework in mind, we now turn directly to

the question whether the Second Amendment right to

keep and bear arms is incorporated in the concept of due

process. In answering that question, as just explained, we

must decide whether the right to keep and bear arms is

fundamental to our scheme of ordered liberty, Duncan,

391 U. S., at 149, or as we have said in a related context,

whether this right is “deeply rooted in this Nation’s his

tory and tradition,” Washington v. Glucksberg, 521 U. S.

702, 721 (1997) (internal quotation marks omitted).

A

Our decision in Heller points unmistakably to the an

swer. Self-defense is a basic right, recognized by many

legal systems from ancient times to the present day,15 and

in Heller, we held that individual self-defense is “the

central component” of the Second Amendment right. 554

U. S., at ___ (slip op., at 26); see also id., at ___ (slip op., at

56) (stating that the “inherent right of self-defense has

been central to the Second Amendment right”). Explain

ing that “the need for defense of self, family, and property

is most acute” in the home, ibid., we found that this right

applies to handguns because they are “the most preferred

——————

15 Citing Jewish, Greek, and Roman law, Blackstone wrote that if a

person killed an attacker, “the slayer is in no kind of fault whatsoever,

not even in the minutest degree; and is therefore to be totally acquitted

and discharged, with commendation rather than blame.” 4 W. Black

stone, Commentaries on the Laws of England 182 (reprint 1992).

20 MCDONALD v. CHICAGO

Opinion of the Court

firearm in the nation to ‘keep’ and use for protection of

one’s home and family,” id., at ___ (slip op., at 57) (some

internal quotation marks omitted); see also id., at ___ (slip

op., at 56) (noting that handguns are “overwhelmingly

chosen by American society for [the] lawful purpose” of

self-defense); id., at ___ (slip op., at 57) (“[T]he American

people have considered the handgun to be the quintessen

tial self-defense weapon”). Thus, we concluded, citizens

must be permitted “to use [handguns] for the core lawful

purpose of self-defense.” Id., at ___ (slip op., at 58).

Heller makes it clear that this right is “deeply rooted in

this Nation’s history and tradition.” Glucksberg, supra, at

721 (internal quotation marks omitted). Heller explored

the right’s origins, noting that the 1689 English Bill of

Rights explicitly protected a right to keep arms for self

defense, 554 U. S., at ___–___ (slip op., at 19–20), and that

by 1765, Blackstone was able to assert that the right to

keep and bear arms was “one of the fundamental rights of

Englishmen,” id., at ___ (slip op., at 20).

Blackstone’s assessment was shared by the American

colonists. As we noted in Heller, King George III’s attempt

to disarm the colonists in the 1760’s and 1770’s “provoked

polemical reactions by Americans invoking their rights as

Englishmen to keep arms.”16 Id., at ___ (slip op., at 21);

see also L. Levy, Origins of the Bill of Rights 137–143

(1999) (hereinafter Levy).

The right to keep and bear arms was considered no less

fundamental by those who drafted and ratified the Bill of

——————

16 For example, an article in the Boston Evening Post stated: “For it is

certainly beyond human art and sophistry, to prove the British sub

jects, to whom the privilege of possessing arms is expressly recognized

by the Bill of Rights, and, who live in a province where the law requires

them to be equip’d with arms, &c. are guilty of an illegal act, in calling

upon one another to be provided with them, as the law directs.” Boston

Evening Post, Feb. 6, 1769, in Boston Under Military Rule 1768–1769,

p. 61 (1936) (emphasis deleted).

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Opinion of the Court

Rights. “During the 1788 ratification debates, the fear

that the federal government would disarm the people in

order to impose rule through a standing army or select

militia was pervasive in Antifederalist rhetoric.” Heller,

supra, at ___ (slip op., at 25) (citing Letters from the Fed

eral Farmer III (Oct. 10, 1787), in 2 The Complete Anti-

Federalist 234, 242 (H. Storing ed. 1981)); see also Federal

Farmer: An Additional Number of Letters to the Republi

can, Letter XVIII (Jan. 25, 1788), in 17 Documentary

History of the Ratification of the Constitution 360, 362–

363 (J. Kaminski & G. Saladino eds. 1995); S. Halbrook,

The Founders’ Second Amendment 171–278 (2008). Fed

eralists responded, not by arguing that the right was

insufficiently important to warrant protection but by

contending that the right was adequately protected by the

Constitution’s assignment of only limited powers to the

Federal Government. Heller, supra, at ___ (slip op., at 25–

26); cf. The Federalist No. 46, p. 296 (C. Rossiter ed. 1961)

(J. Madison). Thus, Antifederalists and Federalists alike

agreed that the right to bear arms was fundamental to the

newly formed system of government. See Levy 143–149;

J. Malcolm, To Keep and Bear Arms: The Origins of an

Anglo-American Right 155–164 (1994). But those who

were fearful that the new Federal Government would

infringe traditional rights such as the right to keep and

bear arms insisted on the adoption of the Bill of Rights as

a condition for ratification of the Constitution. See 1 J.

Elliot, The Debates in the Several State Conventions on

the Adoption of the Federal Constitution 327–331 (2d ed.

1854); 3 id., at 657–661; 4 id., at 242–246, 248–249; see

also Levy 26–34; A. Kelly & W. Harbison, The American

Constitution: Its Origins and Development 110, 118 (7th

ed. 1991). This is surely powerful evidence that the right

was regarded as fundamental in the sense relevant here.

This understanding persisted in the years immediately

following the ratification of the Bill of Rights. In addition

22 MCDONALD v. CHICAGO

Opinion of the Court

to the four States that had adopted Second Amendment

analogues before ratification, nine more States adopted

state constitutional provisions protecting an individual

right to keep and bear arms between 1789 and 1820.

Heller, supra, at ___ (slip op., at 27–30). Founding-era

legal commentators confirmed the importance of the right

to early Americans. St. George Tucker, for example, de

scribed the right to keep and bear arms as “the true palla

dium of liberty” and explained that prohibitions on the

right would place liberty “on the brink of destruction.” 1

Blackstone’s Commentaries, Editor’s App. 300 (S. Tucker

ed. 1803); see also W. Rawle, A View of the Constitution of

the United States of America, 125–126 (2d ed. 1829) (re

print 2009); 3 J. Story, Commentaries on the Constitution

of the United States §1890, p. 746 (1833) (“The right of the

citizens to keep and bear arms has justly been considered,

as the palladium of the liberties of a republic; since it

offers a strong moral check against the usurpation and

arbitrary power of rulers; and will generally, even if these

are successful in the first instance, enable the people to

resist and triumph over them”).

B

1

By the 1850’s, the perceived threat that had prompted

the inclusion of the Second Amendment in the Bill of

Rights—the fear that the National Government would

disarm the universal militia—had largely faded as a popu

lar concern, but the right to keep and bear arms was

highly valued for purposes of self-defense. See M. Doub

ler, Civilian in Peace, Soldier in War 87–90 (2003); Amar,

Bill of Rights 258–259. Abolitionist authors wrote in

support of the right. See L. Spooner, The Unconstitution

ality of Slavery 66 (1860) (reprint 1965); J. Tiffany, A

Treatise on the Unconstitutionality of American Slavery

117–118 (1849) (reprint 1969). And when attempts were

Cite as: 561 U. S. ____ (2010) 23

Opinion of the Court

made to disarm “Free-Soilers” in “Bloody Kansas,” Senator

Charles Sumner, who later played a leading role in the

adoption of the Fourteenth Amendment, proclaimed that

“[n]ever was [the rifle] more needed in just self-defense

than now in Kansas.” The Crime Against Kansas: The

Apologies for the Crime: The True Remedy, Speech of Hon.

Charles Sumner in the Senate of the United States 64–65

(1856). Indeed, the 1856 Republican Party Platform pro

tested that in Kansas the constitutional rights of the

people had been “fraudulently and violently taken from

them” and the “right of the people to keep and bear arms”

had been “infringed.” National Party Platforms 1840–

1972, p. 27 (5th ed. 1973).17

After the Civil War, many of the over 180,000 African

Americans who served in the Union Army returned to the

States of the old Confederacy, where systematic efforts

were made to disarm them and other blacks. See Heller,

554 U. S., at ___ (slip op., at 42); E. Foner, Reconstruction:

America’s Unfinished Revolution 1863–1877, p. 8 (1988)

(hereinafter Foner). The laws of some States formally

prohibited African Americans from possessing firearms.

For example, a Mississippi law provided that “no freed

man, free negro or mulatto, not in the military service 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.

——————

17 Abolitionists and Republicans were not alone in believing that the

right to keep and bear arms was a fundamental right. The 1864

Democratic Party Platform complained that the confiscation of firearms

by Union troops occupying parts of the South constituted “the interfer

ence with and denial of the right of the people to bear arms in their

defense.” National Party Platforms 1840–1972, at 34.

24 MCDONALD v. CHICAGO

Opinion of the Court

Doc. No. 70, 39th Cong., 1st Sess., 233, 236 (1866) (de

scribing a Kentucky law); E. McPherson, The Political

History of the United States of America During the Period

of Reconstruction 40 (1871) (describing a Florida law); id.,

at 33 (describing an Alabama law).18

Throughout the South, armed parties, often consisting

of ex-Confederate soldiers serving in the state militias,

forcibly took firearms from newly freed slaves. In the first

session of the 39th Congress, Senator Wilson told his

colleagues: “In Mississippi rebel State forces, men who

were in the rebel armies, are traversing the State, visiting

the freedmen, disarming them, perpetrating murders and

outrages upon them; and the same things are done in

other sections of the country.” 39th Cong. Globe 40 (1865).

The Report of the Joint Committee on Reconstruction—

which was widely reprinted in the press and distributed

by Members of the 39th Congress to their constituents

shortly after Congress approved the Fourteenth Amend

ment19—contained numerous examples of such abuses.

See, e.g., Joint Committee on Reconstruction, H. R. Rep.

No. 30, 39th Cong., 1st Sess., pt. 2, pp. 219, 229, 272, pt. 3,

——————

18 In South Carolina, prominent black citizens held a convention to

address the State’s black code. They drafted a memorial to Congress,

in which they included a plea for protection of their constitutional right

to keep and bear arms: “ ‘We ask that, inasmuch as the Constitution of

the United States explicitly declares that the right to keep and bear

arms shall not be infringed . . . that the late efforts of the Legislature of

this State to pass an act to deprive us [of] arms be forbidden, as a plain

violation of the Constitution.’ ” S. Halbrook, Freedmen, The Fourteenth

Amendment, and The Right to Bear Arms, 1866–1876, p. 9 (1998)

(hereinafter Halbrook, Freedmen) (quoting 2 Proceedings of the Black

State Conventions, 1840–1865, p. 302 (P. Foner & G. Walker eds.

1980)). Senator Charles Sumner relayed the memorial to the Senate

and described the memorial as a request that black citizens “have the

constitutional protection in keeping arms.” 39th Cong. Globe 337.

19 See B. Kendrick, Journal of the Joint Committee of Fifteen on

Reconstruction 265–266 (1914); Adamson v. California, 332 U. S. 46,

108–109 (1947) (appendix to dissenting opinion of Black, J.).

Cite as: 561 U. S. ____ (2010) 25

Opinion of the Court

pp. 46, 140, pt. 4, pp. 49–50 (1866); see also S. Exec. Doc.

No. 2, 39th Cong., 1st Sess., 23–24, 26, 36 (1865). In one

town, the “marshal [took] all arms from returned colored

soldiers, and [was] very prompt in shooting the blacks

whenever an opportunity occur[red].” H. R. Exec. Doc.

No. 70, at 238 (internal quotation marks omitted). As

Senator Wilson put it during the debate on a failed pro

posal to disband Southern militias: “There is one unbroken

chain of testimony from all people that are loyal to this

country, that the greatest outrages are perpetrated by

armed men who go up and down the country searching

houses, disarming people, committing outrages of every

kind and description.” 39th Cong. Globe 915 (1866).20

Union Army commanders took steps to secure the right

of all citizens to keep and bear arms,21 but the 39th Con

——————

20 Disarmament by bands of former Confederate soldiers eventually

gave way to attacks by the Ku Klux Klan. In debates over the later

enacted Enforcement Act of 1870, Senator John Pool observed that the

Klan would “order the colored men to give up their arms; saying that

everybody would be Kukluxed in whose house fire-arms were found.”

Cong. Globe, 41st Cong., 2d Sess., 2719 (1870); see also H. R. Exec. Doc.

No. 268, 42d Cong., 2d Sess., 2 (1872).

21 For example, the occupying Union commander in South Carolina

issued an order stating that “[t]he constitutional rights of all loyal and

well disposed inhabitants to bear arms, will not be infringed.” General

Order No. 1, Department of South Carolina, January 1, 1866, in 1

Documentary History of Reconstruction 208 (W. Fleming ed. 1950).

Union officials in Georgia issued a similar order, declaring that “ ‘[a]ll

men, without the distinction of color, have the right to keep arms to

defend their homes, families or themselves.’ ” Cramer, “This Right is

Not Allowed by Governments That Are Afraid of The People”: The

Public Meaning of the Second Amendment When the Fourteenth

Amendment was Ratified, 17 Geo. Mason L. Rev. 823, 854 (2010)

(hereinafter Cramer) (quoting Right to Bear Arms, Christian Recorder,

Feb. 24, 1866, pp. 1–2). In addition, when made aware of attempts by

armed parties to disarm blacks, the head of the Freedmen’s Bureau in

Alabama “made public [his] determination to maintain the right of the

negro to keep and to bear arms, and [his] disposition to send an armed

force into any neighborhood in which that right should be systemati

26 MCDONALD v. CHICAGO

Opinion of the Court

gress concluded that legislative action was necessary. Its

efforts to safeguard the right to keep and bear arms

demonstrate that the right was still recognized to be

fundamental.

The most explicit evidence of Congress’ aim appears in

§14 of the Freedmen’s Bureau Act of 1866, which provided

that “the right . . . to have full and equal benefit of all laws

and proceedings concerning personal liberty, personal

security, and the acquisition, enjoyment, and disposition of

estate, real and personal, including the constitutional

right to bear arms, shall be secured to and enjoyed by all

the citizens . . . without respect to race or color, or previ

ous condition of slavery.” 14 Stat. 176–177 (emphasis

added).22 Section 14 thus explicitly guaranteed that “all

the citizens,” black and white, would have “the constitu

tional right to bear arms.”

The Civil Rights Act of 1866, 14 Stat. 27, which was

considered at the same time as the Freedmen’s Bureau

Act, similarly sought to protect the right of all citizens to

keep and bear arms.23 Section 1 of the Civil Rights Act

——————

cally interfered with.” Joint Committee on Reconstruction, H. R. Rep.

No. 30, 39th Cong., 1st Sess., pt. 3, p. 140 (1866).

22 The Freedmen’s Bureau bill was amended to include an express

reference to the right to keep and bear arms, see 39th Cong. Globe 654

(Rep. Thomas Eliot), even though at least some Members believed that

the unamended version alone would have protected the right, see id., at

743 (Sen. Lyman Trumbull).

23 There can be do doubt that the principal proponents of the Civil

Rights Act of 1866 meant to end the disarmament of African Americans

in the South. In introducing the bill, Senator Trumbull described its

purpose as securing to blacks the “privileges which are essential to

freemen.” Id., at 474. He then pointed to the previously described

Mississippi law that “prohibit[ed] any negro or mulatto from having

fire-arms” and explained that the bill would “destroy” such laws. Ibid.

Similarly, Representative Sidney Clarke cited disarmament of freed

men in Alabama and Mississippi as a reason to support the Civil Rights

Act and to continue to deny Alabama and Mississippi representation in

Congress: “I regret, sir, that justice compels me to say, to the disgrace

Cite as: 561 U. S. ____ (2010) 27

Opinion of the Court

guaranteed the “full and equal benefit of all laws and

proceedings for the security of person and property, as is

enjoyed by white citizens.” Ibid. This language was vir

tually identical to language in §14 of the Freedmen’s

Bureau Act, 14 Stat. 176–177 (“the right . . . to have full

and equal benefit of all laws and proceedings concerning

personal liberty, personal security, and the acquisition,

enjoyment, and disposition of estate, real and personal”).

And as noted, the latter provision went on to explain that

one of the “laws and proceedings concerning personal

liberty, personal security, and the acquisition, enjoyment,

and disposition of estate, real and personal” was “the

constitutional right to bear arms.” Ibid. Representative

Bingham believed that the Civil Rights Act protected the

same rights as enumerated in the Freedmen’s Bureau bill,

which of course explicitly mentioned the right to keep and

bear arms. 39th Cong. Globe 1292. The unavoidable

conclusion is that the Civil Rights Act, like the Freedmen’s

Bureau Act, aimed to protect “the constitutional right to

bear arms” and not simply to prohibit discrimination. See

also Amar, Bill of Rights 264–265 (noting that one of the

“core purposes of the Civil Rights Act of 1866 and of the

Fourteenth Amendment was to redress the grievances” of

freedmen who had been stripped of their arms and to

“affirm the full and equal right of every citizen to self

defense”).

Congress, however, ultimately deemed these legislative

——————

of the Federal Government, that the ‘reconstructed’ State authorities of

Mississippi were allowed to rob and disarm our veteran soldiers and

arm the rebels fresh from the field of treasonable strife. Sir, the dis

armed loyalists of Alabama, Mississippi, and Louisiana are powerless

to-day, and oppressed by the pardoned and encouraged rebels of those

States. They appeal to the American Congress for protection. In

response to this appeal I shall vote for every just measure of protection,

for I do not intend to be among the treacherous violators of the solemn

pledge of the nation.” Id., at 1838–1839.

28 MCDONALD v. CHICAGO

Opinion of the Court

remedies insufficient. Southern resistance, Presidential

vetoes, and this Court’s pre-Civil-War precedent per

suaded Congress that a constitutional amendment was

necessary to provide full protection for the rights of

blacks.24 Today, it is generally accepted that the Four

teenth Amendment was understood to provide a constitu

tional basis for protecting the rights set out in the Civil

Rights Act of 1866. See General Building Contractors

Assn., Inc. v. Pennsylvania, 458 U. S. 375, 389 (1982); see

also Amar, Bill of Rights 187; Calabresi, Two Cheers for

Professor Balkin’s Originalism, 103 Nw. U. L. Rev. 663,

669–670 (2009).

In debating the Fourteenth Amendment, the 39th Con

gress referred to the right to keep and bear arms as a

fundamental right deserving of protection. Senator Sam

uel Pomeroy described three “indispensable” “safeguards

of liberty under our form of Government.” 39th Cong.

Globe 1182. One of these, he said, was the right to keep

and bear arms:

“Every man . . . should have the right to bear arms

for the defense of himself and family and his home

stead. And if the cabin door of the freedman is broken

open and the intruder enters for purposes as vile as

were known to slavery, then should a well-loaded

musket be in the hand of the occupant to send the pol

luted wretch to another world, where his wretched

ness will forever remain complete.” Ibid.

Even those who thought the Fourteenth Amendment

unnecessary believed that blacks, as citizens, “have equal

——————

24 For example, at least one southern court had held the Civil Rights

Act to be unconstitutional. That court did so, moreover, in the course of

upholding the conviction of an African-American man for violating

Mississippi’s law against firearm possession by freedmen. See Decision

of Chief Justice Handy, Declaring the Civil Rights Bill Unconstitu

tional, N. Y. Times, Oct. 26, 1866, p. 2, col. 3.

Cite as: 561 U. S. ____ (2010) 29

Opinion of the Court

right to protection, and to keep and bear arms for self

defense.” Id., at 1073 (Sen. James Nye); see also Foner

258–259.25

Evidence from the period immediately following the

ratification of the Fourteenth Amendment only confirms

that the right to keep and bear arms was considered fun

damental. In an 1868 speech addressing the disarmament

of freedmen, Representative Stevens emphasized the

necessity of the right: “Disarm a community and you rob

them of the means of defending life. Take away their

weapons of defense and you take away the inalienable

right of defending liberty.” “The fourteenth amendment,

now so happily adopted, settles the whole question.”

Cong. Globe, 40th Cong., 2d Sess., 1967. And in debating

the Civil Rights Act of 1871, Congress routinely referred to

the right to keep and bear arms and decried the continued

disarmament of blacks in the South. See Halbrook,

Freedmen 120–131. Finally, legal commentators from the

period emphasized the fundamental nature of the right.

See, e.g., T. Farrar, Manual of the Constitution of the

United States of America §118, p. 145 (1867) (reprint

1993); J. Pomeroy, An Introduction to the Constitutional

Law of the United States §239, pp. 152–153 (3d ed. 1875).

The right to keep and bear arms was also widely pro

tected by state constitutions at the time when the Four

teenth Amendment was ratified. In 1868, 22 of the 37

States in the Union had state constitutional provisions

——————

25 Other Members of the 39th Congress stressed the importance of the

right to keep and bear arms in discussing other measures. In speaking

generally on reconstruction, Representative Roswell Hart listed the

“ ‘right of the people to keep and bear arms’ ” as among those rights

necessary to a “republican form of government.” 39th Cong. Globe

1629. Similarly, in objecting to a bill designed to disarm southern

militias, Senator Willard Saulsbury argued that such a measure would

violate the Second Amendment. Id., at 914–915. Indeed, the bill

“ultimately passed in a form that disbanded militias but maintained

the right of individuals to their private firearms.” Cramer 858.

30 MCDONALD v. CHICAGO

Opinion of the Court

explicitly protecting the right to keep and bear arms. See

Calabresi & Agudo, Individual Rights Under State Consti

tutions when the Fourteenth Amendment was Ratified in

1868: What Rights Are Deeply Rooted in American His

tory and Tradition? 87 Texas L. Rev. 7, 50 (2008).26 Quite

a few of these state constitutional guarantees, moreover,

explicitly protected the right to keep and bear arms as an

individual right to self-defense. See Ala. Const., Art. I,

§28 (1868); Conn. Const., Art. I, §17 (1818); Ky. Const.,

Art. XIII, §25 (1850); Mich. Const., Art. XVIII, §7 (1850);

Miss. Const., Art. I, §15 (1868); Mo. Const., Art. I, §8

(1865); Tex. Const., Art. I, §13 (1869); see also Mont.

Const., Art. III, §13 (1889); Wash. Const., Art. I, §24

(1889); Wyo. Const., Art. I, §24 (1889); see also State v.

McAdams, 714 P. 2d 1236, 1238 (Wyo. 1986). What is

more, state constitutions adopted during the Reconstruc

tion era by former Confederate States included a right to

keep and bear arms. See, e.g., Ark. Const., Art. I, §5

(1868); Miss. Const., Art. I, §15 (1868); Tex. Const., Art. I,

§13 (1869). A clear majority of the States in 1868, there

fore, recognized the right to keep and bear arms as being

among the foundational rights necessary to our system of

Government.27

——————

26 More generally worded provisions in the constitutions of seven

other States may also have encompassed a right to bear arms. See

Calabresi & Agudo, 87 Texas L. Rev., at 52.

27 These state constitutional protections often reflected a lack of law

enforcement in many sections of the country. In the frontier towns that

did not have an effective police force, law enforcement often could not

pursue criminals beyond the town borders. See Brief for Rocky Moun

tain Gun Owners et al. as Amici Curiae 15. Settlers in the West and

elsewhere, therefore, were left to “repe[l] force by force when the

intervention of society . . . [was] too late to prevent an injury.” District

of Columbia v. Heller, 554 U. S. ___ , ___ (2008) (slip op., at 21) (inter

nal quotation marks omitted). The settlers’ dependence on game for

food and economic livelihood, moreover, undoubtedly undergirded these

state constitutional guarantees. See id., at ___, ___, ___ (slip. op, at 26,

Cite as: 561 U. S. ____ (2010) 31

Opinion of the Court

In sum, it is clear that the Framers and ratifiers of the

Fourteenth Amendment counted the right to keep and

bear arms among those fundamental rights necessary to

our system of ordered liberty.

2

Despite all this evidence, municipal respondents con

tend that Congress, in the years immediately following the

Civil War, merely sought to outlaw “discriminatory meas

ures taken against freedmen, which it addressed by adopt

ing a non-discrimination principle” and that even an

outright ban on the possession of firearms was regarded as

acceptable, “so long as it was not done in a discriminatory

manner.” Brief for Municipal Respondents 7. They argue

that Members of Congress overwhelmingly viewed §1 of

the Fourteenth Amendment “as an antidiscrimination

rule,” and they cite statements to the effect that the sec

tion would outlaw discriminatory measures. Id., at 64.

This argument is implausible.

First, while §1 of the Fourteenth Amendment contains

“an antidiscrimination rule,” namely, the Equal Protection

Clause, municipal respondents can hardly mean that §1

does no more than prohibit discrimination. If that were

so, then the First Amendment, as applied to the States,

would not prohibit nondiscriminatory abridgments of the

rights to freedom of speech or freedom of religion; the

Fourth Amendment, as applied to the States, would not

prohibit all unreasonable searches and seizures but only

discriminatory searches and seizures—and so on. We

assume that this is not municipal respondents’ view, so

what they must mean is that the Second Amendment

should be singled out for special—and specially unfavor

able—treatment. We reject that suggestion.

Second, municipal respondents’ argument ignores the

——————

36, 42).

32 MCDONALD v. CHICAGO

Opinion of the Court

clear terms of the Freedmen’s Bureau Act of 1866, which

acknowledged the existence of the right to bear arms. If

that law had used language such as “the equal benefit of

laws concerning the bearing of arms,” it would be possible

to interpret it as simply a prohibition of racial discrimina

tion. But §14 speaks of and protects “the constitutional

right to bear arms,” an unmistakable reference to the

right protected by the Second Amendment. And it pro

tects the “full and equal benefit” of this right in the States.

14 Stat. 176–177. It would have been nonsensical for

Congress to guarantee the full and equal benefit of a

constitutional right that does not exist.

Third, if the 39th Congress had outlawed only 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 citi

zens would have been nondiscriminatory only in the for

mal sense. Any such law—like the Chicago and Oak Park

ordinances challenged here—presumably would have

permitted the possession of guns by those acting under the

authority of the State and would thus have left firearms in

the hands of the militia and local peace officers. And as

the Report of the Joint Committee on Reconstruction

revealed, see supra, at 24–25, those groups were widely

involved in harassing blacks in the South.

Fourth, municipal respondents’ purely antidiscrimina

tion theory of the Fourteenth Amendment disregards the

plight of whites in the South who opposed the Black

Codes. If the 39th Congress and the ratifying public had

simply prohibited racial discrimination with respect to the

bearing of arms, opponents of the Black Codes would have

been left without the means of self-defense—as had aboli

tionists in Kansas in the 1850’s.

Cite as: 561 U. S. ____ (2010) 33

Opinion of the Court

Opinion of ALITO, J.

Fifth, the 39th Congress’ response to proposals to dis

band and disarm the Southern militias is instructive.

Despite recognizing and deploring the abuses of these

militias, the 39th Congress balked at a proposal to disarm

them. See 39th Cong. Globe 914; Halbrook, Freedmen,

supra, 20–21. Disarmament, it was argued, would violate

the members’ right to bear arms, and it was ultimately

decided to disband the militias but not to disarm their

members. See Act of Mar. 2, 1867, §6, 14 Stat. 485, 487;

Halbrook, Freedmen 68–69; Cramer 858–861. It cannot

be doubted that the right to bear arms was regarded as a

substantive guarantee, not a prohibition that could be

ignored so long as the States legislated in an evenhanded

manner.

IV

Municipal respondents’ remaining arguments are at war

with our central holding in Heller: that the Second

Amendment protects a personal right to keep and bear

arms for lawful purposes, most notably for self-defense

within the home. Municipal respondents, in effect, ask us

to treat the right recognized in Heller as a second-class

right, subject to an entirely different body of rules than

the other Bill of Rights guarantees that we have held to be

incorporated into the Due Process Clause.

Municipal respondents’ main argument is nothing less

than a plea to disregard 50 years of incorporation prece

dent and return (presumably for this case only) to a by

gone era. Municipal respondents submit that the Due

Process Clause protects only those rights “ ‘recognized by

all temperate and civilized governments, from a deep and

universal sense of [their] justice.’ ” Brief for Municipal

Respondents 9 (quoting Chicago, B. & Q. R. Co., 166 U. S.,

at 238). According to municipal respondents, if it is possi

ble to imagine any civilized legal system that does not

recognize a particular right, then the Due Process Clause

34 MCDONALD v. CHICAGO

Opinion of the Court

Opinion of ALITO, J.

does not make that right binding on the States. Brief for

Municipal Respondents 9. Therefore, the municipal re

spondents continue, because such countries as England,

Canada, Australia, Japan, Denmark, Finland, Luxem

bourg, and New Zealand either ban or severely limit

handgun ownership, it must follow that no right to possess

such weapons is protected by the Fourteenth Amendment.

Id., at 21–23.

This line of argument is, of course, inconsistent with the

long-established standard we apply in incorporation cases.

See Duncan, 391 U. S., at 149, and n. 14. And the pre

sent-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

——————

28 For example, the United States affords criminal jury trials far more

broadly than other countries. See, e.g., Van Kessel, Adversary Excesses

in the American Criminal Trial, 67 Notre Dame L. Rev. 403 (1992);

Leib, A Comparison of Criminal Jury Decision Rules in Democratic

Countries, 5 Ohio St. J. Crim. L. 629, 630 (2008); Henderson, The

Wrongs of Victim’s Rights, 37 Stan. L. Rev. 937, 1003, n. 296 (1985); see

also Roper v. Simmons, 543 U. S. 551, 624 (2005) (SCALIA, J., dissent

ing) (“In many significant respects the laws of most other countries

differ from our law—including . . . such explicit provisions of our

Constitution as the right to jury trial”). Similarly, our rules governing

pretrial interrogation differ from those in countries sharing a similar

legal heritage. See Dept. of Justice, Office of Legal Policy, Report to the

Attorney General on the Law of Pretrial Interrogation: Truth in Crimi

nal Justice Report No. 1 (Feb. 12, 1986), reprinted in 22 U. Mich. J. L.

Ref. 437, 534–542 (1989) (comparing the system envisioned by Miranda

v. Arizona, 384 U. S. 436 (1966), with rights afforded by England,

Scotland, Canada, India, France, and Germany). And the “Court

pronounced exclusionary rule . . . is distinctively American.” Roper,

supra, at 624 (SCALIA, J., dissenting) (citing Bivens v. Six Unknown

Fed. Narcotics Agents, 403 U. S. 388, 415 (1971) (Burger, C. J., dissent

ing) (noting that exclusionary rule was “unique to American jurispru

dence” (internal quotation marks omitted))); see also Sklansky, Anti-

Inquisitorialism, 122 Harv. L. Rev. 1634, 1648–1656, 1689–1693 (2009)

(discussing the differences between American and European confronta

Cite as: 561 U. S. ____ (2010) 35

Opinion of the Court

Opinion of ALITO, J.

understanding of the right to a jury trial, the right against

self-incrimination, and the right to counsel were necessary

attributes of any civilized country, it would follow that the

United States is the only civilized Nation in the world.

Municipal respondents attempt to salvage their position

by suggesting that their argument applies only to substan

tive as opposed to procedural rights. Brief for Municipal

Respondents 10, n. 3. But even in this trimmed form,

municipal respondents’ argument flies in the face of more

than a half-century of precedent. For example, in Everson

v. Board of Ed. of Ewing, 330 U. S. 1, 8 (1947), the Court

held that the Fourteenth Amendment incorporates the

Establishment Clause of the First Amendment. Yet sev

eral of the countries that municipal respondents recognize

as civilized have established state churches.29 If we were

to adopt municipal respondents’ theory, all of this Court’s

Establishment Clause precedents involving actions taken

by state and local governments would go by the boards.

Municipal respondents maintain that the Second

Amendment differs from all of the other provisions of the

Bill of Rights because it concerns the right to possess a

——————

tion rules).

29 England and Denmark have state churches. See Torke, The Eng

lish Religious Establishment, 12 J. of Law & Religion 399, 417–427

(1995–1996) (describing legal status of Church of England); Constitu

tional Act of Denmark, pt. I, §4 (1953) (“The Evangelical Lutheran

Church shall be the Established Church of Denmark”). The Evangeli

cal Lutheran Church of Finland has attributes of a state church. See

Christensen, Is the Lutheran Church Still the State Church? An

Analysis of Church-State Relations in Finland, 1995 B. Y. U. L. Rev.

585, 596–600 (describing status of church under Finnish law). The Web

site of the Evangelical Lutheran Church of Finland states that the

church may be usefully described as both a “state church” and a “folk

church.” See J. Seppo, The Current Condition of Church-State Rela

tions in Finland, online at http://evl.fi/EVLen.nsf/Documents/838DDBEF

4A28712AC225730F001F7C67?OpenDocument&lang=EN (all Internet

materials as visited June 23, 2010, and available in Clerk of Court’s

case file).

36 MCDONALD v. CHICAGO

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deadly implement and thus has implications for public

safety. Brief for Municipal Respondents 11. And they

note that there is intense disagreement on the question

whether the private possession of guns in the home in

creases or decreases gun deaths and injuries. Id., at 11,

13–17.

The right to keep and bear arms, however, is not the

only constitutional right that has controversial public

safety implications. All of the constitutional provisions

that impose restrictions on law enforcement and on the

prosecution of crimes fall into the same category. See, e.g.,

Hudson v. Michigan, 547 U. S. 586, 591 (2006) (“The

exclusionary rule generates ‘substantial social costs,’

United States v. Leon, 468 U. S. 897, 907 (1984), which

sometimes include setting the guilty free and the danger

ous at large”); Barker v. Wingo, 407 U. S. 514, 522 (1972)

(reflecting on the serious consequences of dismissal for a

speedy trial violation, which means “a defendant who may

be guilty of a serious crime will go free”); Miranda v.

Arizona, 384 U. S. 436, 517 (1966) (Harlan, J., dissenting);

id., at 542 (White, J., dissenting) (objecting that 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 dis

puted public safety implications.

We likewise reject municipal respondents’ argument

that we should depart from our established incorporation

methodology on the ground that making the Second

Amendment binding on the States and their subdivisions

is inconsistent with principles of federalism and will stifle

experimentation. Municipal respondents point out—quite

correctly—that conditions and problems differ from local

ity to locality and that citizens in different jurisdictions

Cite as: 561 U. S. ____ (2010) 37

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have divergent views on the issue of gun control. Munici

pal respondents therefore urge us to allow state and local

governments to enact any gun control law that they deem

to be reasonable, including a complete ban on the posses

sion of handguns in the home for self-defense. Brief for

Municipal Respondents 18–20, 23.

There is nothing new in the argument that, in order 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 experimenta

tion, fought a determined rearguard action to preserve the

two-track approach. See, e.g., Roth v. United States, 354

U. S. 476, 500–503 (1957) (Harlan, J., concurring in result

in part and dissenting in part); Mapp, supra, at 678–680

(Harlan, J., dissenting); Gideon, 372 U. S., at 352 (Harlan,

J., concurring); Malloy, 378 U. S., at 14–33 (Harlan, J.,

dissenting); Pointer, 380 U. S., at 408–409 (Harlan, J.,

concurring in result); Washington, 388 U. S., at 23–24

(Harlan, J., concurring in result); Duncan, 391 U. S., at

171–193 (Harlan, J., dissenting); Benton, 395 U. S., at

808–809 (Harlan, J., dissenting); Williams v. Florida, 399

U. S. 78, 117 (1970) (Harlan, J., dissenting in part and

concurring in result in part).

Time and again, however, those pleas failed. Unless we

turn back the clock or adopt a special incorporation test

applicable only to the Second Amendment, municipal

respondents’ argument must be rejected. Under our prece

dents, if a Bill of Rights guarantee is fundamental from an

American perspective, then, unless stare decisis counsels

38 MCDONALD v. CHICAGO

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otherwise,30 that guarantee is fully binding on the States

and thus limits (but by no means eliminates) their ability

to devise solutions to social problems that suit local needs

and values. As noted by the 38 States that have appeared

in this case as amici supporting petitioners, “[s]tate and

local experimentation with reasonable firearms regula

tions will continue under the Second Amendment.” Brief

for State of Texas et al. as Amici Curiae 23.

Municipal respondents and their amici complain that

incorporation of the Second Amendment right will lead to

extensive and costly litigation, but this argument applies

with even greater force to constitutional rights and reme

dies that have already been held to be binding on the

States. Consider the exclusionary rule. Although the

exclusionary rule “is not an individual right,” Herring v.

United States, 555 U. S. ___ (2009) (slip op., at 5), but a

“judicially created rule,” id., at ___ (slip op., at 4), this

Court made the rule applicable to the States. See Mapp,

supra, at 660. The exclusionary rule is said to result in

“tens of thousands of contested suppression motions each

year.” Stuntz, The Virtues and Vices of the Exclusionary

Rule, 20 Harv. J. Law & Pub. Pol’y, 443, 444 (1997).

——————

30 As noted above, see n. 13, supra, cases that predate the era of selec

tive incorporation held that the Grand Jury Clause of the Fifth

Amendment and the Seventh Amendment’s civil jury requirement do

not apply to the States. See Hurtado v. California, 110 U. S. 516 (1884)

(indictment); Minneapolis & St. Louis R. Co. v. Bombolis, 241 U. S. 211

(1916) (civil jury).

As a result of Hurtado, most States do not require a grand jury

indictment in all felony cases, and many have no grand juries. See

Dept. of Justice, Office of Justice Programs, Bureau of Justice Statis

tics, State Court Organization 2004, pp. 213, 215–217 (2006) (Table 38),

online at http://bjs.ojp.usdoj.gov/content/pub/pdf/sco04.pdf.

As a result of Bombolis, cases that would otherwise fall within the

Seventh Amendment are now tried without a jury in state small claims

courts. See, e.g., Cheung v. Eighth Judicial Dist. Court, 121 Nev. 867,

124 P. 3d 550 (2005) (no right to jury trial in small claims court under

Nevada Constitution).

Cite as: 561 U. S. ____ (2010) 39

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Municipal respondents assert that, although most state

constitutions protect firearms rights, state courts have

held that these rights are subject to “interest-balancing”

and have sustained a variety of restrictions. Brief for

Municipal Respondents 23–31. In Heller, however, we

expressly rejected the argument that the scope of the

Second Amendment right should be determined by judicial

interest balancing, 554 U. S., at ___–___ (slip op., at 62–

63), and this Court decades ago abandoned “the notion

that the Fourteenth Amendment applies to the States only

a watered-down, subjective version of the individual guar

antees of the Bill of Rights,” Malloy, supra, at 10–11 (in

ternal quotation marks omitted).

As evidence that the Fourteenth Amendment has not

historically been understood to restrict the authority of the

States to regulate firearms, municipal respondents and

supporting amici cite a variety of state and local firearms

laws that courts have upheld. But what is most striking

about their research is the paucity of precedent sustaining

bans comparable to those at issue here and in Heller.

Municipal respondents cite precisely one case (from the

late 20th century) in which such a ban was sustained. See

Brief for Municipal Respondents 26–27 (citing Kalodimos

v. Morton Grove, 103 Ill. 2d 483, 470 N. E. 2d 266 (1984));

see also Reply Brief for Respondents NRA et al. 23, n. 7

(asserting that no other court has ever upheld a complete

ban on the possession of handguns). It is important to

keep in mind that Heller, while striking down a law that

prohibited the possession of handguns in the home, recog

nized that the right to keep and bear arms is not “a right

to keep and carry any weapon whatsoever in any manner

whatsoever and for whatever purpose.” 554 U. S., at ___

(slip op., at 54). We made it clear in Heller that our hold

ing did not cast doubt on such longstanding regulatory

measures as “prohibitions on the possession of firearms by

felons and the mentally ill,” “laws forbidding the carrying

40 MCDONALD v. CHICAGO

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Opinion of ALITO, J.

of firearms in sensitive places such as schools and gov

ernment buildings, or laws imposing conditions and quali

fications on the commercial sale of arms.” Id., at ___–___

(slip op., at 54–55). We repeat those assurances here.

Despite municipal respondents’ doomsday proclamations,

incorporation does not imperil every law regulating

firearms.

Municipal respondents argue, finally, that the right to

keep and bear arms is unique among the rights set out in

the first eight Amendments “because the reason for codify

ing the Second Amendment (to protect the militia) differs

from the purpose (primarily, to use firearms to engage in

self-defense) that is claimed to make the right implicit in

the concept of ordered liberty.” Brief for Municipal Re

spondents 36–37. Municipal respondents suggest that the

Second Amendment right differs from the rights hereto

fore incorporated because the latter were “valued for

[their] own sake.” Id., at 33. But we have never previ

ously suggested that incorporation of a right turns on

whether it has intrinsic as opposed to instrumental value,

and quite a few of the rights previously held to be incorpo

rated—for example the right to counsel and the right to

confront and subpoena witnesses—are clearly instrumen

tal by any measure. Moreover, this contention repackages

one of the chief arguments that we rejected in Heller, i.e.,

that the scope of the Second Amendment right is defined

by the immediate threat that led to the inclusion of that

right in the Bill of Rights. In Heller, we recognized that

the codification of this right was prompted by fear that the

Federal Government would disarm and thus disable the

militias, but we rejected the suggestion that the right was

valued only as a means of preserving the militias. 554

U. S., at ___ (slip op., at 26). On the contrary, we stressed

that the right was also valued because the possession of

firearms was thought to be essential for self-defense. As

we put it, self-defense was “the central component of the

Cite as: 561 U. S. ____ (2010) 41

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Opinion of ALITO, J.

right itself.” Ibid.

V

A

We turn, finally, to the two dissenting opinions.

JUSTICE STEVENS’ eloquent opinion covers ground already

addressed, and therefore little need be added in response.

JUSTICE STEVENS would “ ‘ground the prohibitions against

state action squarely on due process, without intermediate

reliance on any of the first eight Amendments.’ ” Post, at 8

(quoting Malloy, 378 U. S., at 24 (Harlan, J., dissenting)).

The question presented in this case, in his view, “is

whether the particular right asserted by petitioners ap

plies to the States because of the Fourteenth Amendment

itself, standing on its own bottom.” Post, at 27. He would

hold that “[t]he rights protected against state infringe

ment by the Fourteenth Amendment’s Due Process Clause

need not be identical in shape or scope to the rights pro

tected against Federal Government infringement by the

various provisions of the Bill of Rights.” Post, at 9.

As we have explained, the Court, for the past half

century, has moved away from the two-track approach. If

we were now to accept JUSTICE STEVENS’ theory across the

board, decades of decisions would be undermined. We

assume that this is not what is proposed. What is 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 Bren

nan, writing for the Court 46 years ago, derided as “the

notion that the Fourteenth Amendment applies to the

States only a watered-down, subjective version of the

individual guarantees of the Bill of Rights.” Malloy,

supra, at 10–11 (internal quotation marks omitted).

42 MCDONALD v. CHICAGO

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B

JUSTICE BREYER’s dissent makes several points to which

we briefly respond. To begin, while there is certainly room

for disagreement about Heller’s analysis of the history of

the right to keep and bear arms, nothing written since

Heller persuades us to reopen the question there decided.

Few other questions of original meaning have been as

thoroughly explored.

JUSTICE BREYER’s conclusion that the Fourteenth

Amendment does not incorporate the right to keep and

bear arms appears to rest primarily on four factors: First,

“there is no popular consensus” that the right is funda

mental, post, at 9; second, the right does not protect mi

norities or persons neglected by those holding political

power, post, at 10; third, incorporation of the Second

Amendment right would “amount to a significant incur

sion on a traditional and important area of state concern,

altering the constitutional relationship between the States

and the Federal Government” and preventing local varia

tions, post, at 11; and fourth, determining the scope of the

Second Amendment right in cases involving state and

local laws will force judges to answer difficult empirical

questions regarding matters that are outside their area of

expertise, post, at 11–16. Even if we believed that these

factors were relevant to the incorporation inquiry, none of

these factors undermines the case for incorporation of the

right to keep and bear arms for self-defense.

First, we have never held that a provision of the Bill of

Rights applies to the States only if there is a “popular

consensus” that the right is fundamental, and we see no

basis for such a rule. But in this case, as it turns out,

there is evidence of such a consensus. An amicus brief

submitted by 58 Members of the Senate and 251 Members

of the House of Representatives urges us to hold that the

right to keep and bear arms is fundamental. See Brief for

Senator Kay Bailey Hutchison et al. as Amici Curiae 4.

Cite as: 561 U. S. ____ (2010) 43

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Opinion of ALITO, J.

Another brief submitted by 38 States takes the same

position. Brief for State of Texas et al. as Amici Curiae 6.

Second, petitioners and many others who live in high

crime areas dispute the proposition that the Second

Amendment right does not protect minorities and those

lacking political clout. The plight of Chicagoans living in

high-crime areas was recently highlighted when two Illi

nois legislators representing Chicago districts called on

the Governor to deploy the Illinois National Guard to

patrol the City’s streets.31 The legislators noted that the

number of Chicago homicide victims during the current

year equaled the number of American soldiers killed dur

ing 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 vulner

able 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 hand

guns in the home for self-defense, then the Second

Amendment right protects the rights of minorities and

other residents of high-crime areas whose needs are not

being met by elected public officials.

——————

31 See Mack & Burnette, 2 Lawmakers to Quinn: Send the Guard to

Chicago, Chicago Tribune, Apr. 26, 2010, p. 6.

32 Janssen & Knowles, Send in Troops? Chicago Sun-Times, Apr. 26,

2010, p. 2; see also Brief for NAACP Legal Defense & Education Fund,

Inc., as Amicus Curiae 5, n. 4 (stating that in 2008, almost three out of

every four homicide victims in Chicago were African Americans); id., at

5–6 (noting that “each year [in Chicago], many times more African

Americans are murdered by assailants wielding guns than were killed

during the Colfax massacre” (footnote omitted)).

33 See Brief for Women State Legislators et al. as Amici Curiae 9–10,

14–15; Brief for Jews for the Preservation of Firearms Ownership as

Amicus Curiae 3–4; see also Brief for Pink Pistols et al. as Amici Curiae

in District of Columbia v. Heller, O. T. 2007, No. 07–290, pp. 5–11.

44 MCDONALD v. CHICAGO

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Third, JUSTICE BREYER is correct that incorporation of

the Second Amendment right will to some extent limit the

legislative freedom of the States, but this is always true

when a Bill of Rights provision is incorporated. Incorpora

tion always restricts experimentation and local variations,

but that has not stopped the Court from incorporating

virtually every other provision of the Bill of Rights. “[T]he

enshrinement of constitutional rights necessarily takes

certain policy choices off the table.” Heller, 554 U. S., at __

(slip op., at 64). This conclusion is no more remarkable

with respect to the Second Amendment than it is with

respect to all the other limitations on state power found in

the Constitution.

Finally, JUSTICE BREYER is incorrect that incorporation

will require judges to assess the costs and benefits of

firearms restrictions and thus to make difficult empirical

judgments in an area in which they lack expertise. As we

have noted, while his opinion in Heller recommended an

interest-balancing test, the Court specifically rejected that

suggestion. See supra, at 38–39. “The very enumeration

of the right takes out of the hands of government—even

the Third Branch of Government—the power to decide on

a case-by-case basis whether the right is really worth

insisting upon.” Heller, supra, at ___ (slip op., at 62–63).

* * *

In Heller, we held that the Second Amendment protects

the right to possess a handgun in the home for the purpose

of self-defense. Unless considerations of stare decisis

counsel otherwise, a provision of the Bill of Rights that

protects a right that is fundamental from an American

perspective applies equally to the Federal Government

and the States. See Duncan, 391 U. S., at 149, and n. 14.

We therefore hold that the Due Process Clause of the

Fourteenth Amendment incorporates the Second Amend

ment right recognized in Heller. The judgment of the

Cite as: 561 U. S. ____ (2010) 45

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Opinion of ALITO, J.

Court of Appeals is reversed, and the case is remanded for

further proceedings.

It is so ordered.

Cite as: 561 U. S. ____ (2010) 1

SCALIA, J., concurring

SUPREME COURT OF THE UNITED STATES

_________________

No. 08–1521

_________________

OTIS MCDONALD, ET AL., PETITIONERS v. CITY OF

CHICAGO, ILLINOIS, ET AL.

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE SEVENTH CIRCUIT

[June 28, 2010]

JUSTICE SCALIA, concurring.

I join the Court’s opinion. Despite my misgivings about

Substantive Due Process as an original matter, I have

acquiesced in the Court’s incorporation of certain guaran­

tees in the Bill of Rights “because it is both long estab­

lished 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 straightfor­

ward 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 dis­

agrees 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 under­

lies the Court’s opinion, a theory that makes the traditions

of our people paramount. He proposes a different theory,

which he claims is more “cautiou[s]” and respectful of

proper limits on the judicial role. Post, at 57. It is that

claim I wish to address.

I

A

After stressing the substantive dimension of what he

2 MCDONALD v. CHICAGO

SCALIA, J., concurring

has renamed the “liberty clause,” post, at 4–7,1 JUSTICE

STEVENS proceeds to urge readoption of the theory of

incorporation articulated in Palko v. Connecticut, 302

U. S. 319, 325 (1937), see post, at 14–20. But in fact he

does not favor application of that theory at all. For

whether Palko requires only that “a fair and enlightened

system of justice would be impossible without” the right

sought to be incorporated, 302 U. S., at 325, or requires in

addition that the right be rooted in the “traditions and

conscience of our people,” ibid. (internal quotation marks

omitted), many of the rights JUSTICE STEVENS thinks are

incorporated could not pass muster under either test:

abortion, post, at 7 (citing Planned Parenthood of South

eastern Pa. v. Casey, 505 U. S. 833, 847 (1992)); homosex­

ual sodomy, post, at 16 (citing Lawrence v. Texas, 539

U. S. 558, 572 (2003)); the right to have excluded from

criminal trials evidence obtained in violation of the Fourth

Amendment, post, at 18 (citing Mapp v. Ohio, 367 U. S.

643, 650, 655–657 (1961)); and the right to teach one’s

children foreign languages, post, at 7 (citing Meyer v.

Nebraska, 262 U. S. 390, 399–403 (1923)), among others.

That JUSTICE STEVENS is not applying any version of

Palko is clear from comparing, on the one hand, the rights

he believes are covered, with, on the other hand, his con­

clusion that the right to keep and bear arms is not cov­

ered. 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 con­

——————

1 I do not entirely understand JUSTICE STEVENS’ renaming of the Due

Process Clause. What we call it, of course, does not change what the

Clause says, but shorthand should not obscure what it says. Accepting

for argument’s sake the shift in emphasis—from avoiding certain

deprivations without that “process” which is “due,” to avoiding the

deprivations themselves—the Clause applies not just to deprivations of

“liberty,” but also to deprivations of “life” and even “property.”

Cite as: 561 U. S. ____ (2010) 3

SCALIA, J., concurring

science, pointlessly infringes settled expectations, tres­

passes into sensitive private realms or life choices without

adequate justification, [or] perpetrates gross injustice.”

Post, at 23 (internal quotation marks omitted). Not all

such rights are in, however, since only “some fundamental

aspects of personhood, dignity, and the like” are protected,

post, at 24 (emphasis added). Exactly what is covered is

not clear. But whatever else is in, he knows that the right

to keep and bear arms is out, despite its being as “deeply

rooted in this Nation’s history and tradition,” Washington

v. Glucksberg, 521 U. S. 702, 721 (1997) (internal quota­

tion marks omitted), as a right can be, see District of

Columbia v. Heller, 554 U. S. ___, ___–___, ___–___, ___–

___ (2008) (slip op., at 20–21, 26–30, 41–44). I can find no

other explanation for such certitude except that JUSTICE

STEVENS, despite his forswearing of “personal and private

notions,” post, at 21 (internal quotation marks omitted),

deeply believes it should be out.

The subjective nature of JUSTICE STEVENS’ standard is

also apparent from his claim that it is the courts’ preroga­

tive—indeed their duty—to update the Due Process Clause

so that it encompasses new freedoms the Framers were

too narrow-minded to imagine, post, at 19–20, and n. 21.

Courts, he proclaims, must “do justice to [the Clause’s]

urgent call and its open texture” by exercising the “inter­

pretive discretion the latter embodies.” Post, at 21. (Why

the people are not up to the task of deciding what new

rights to protect, even though it is they who are authorized

to make changes, see U. S. Const., Art. V, is never ex­

plained.2) And it would be “judicial abdication” for a judge

to “tur[n] his back” on his task of determining what the

——————

2 JUSTICE STEVENS insists that he would not make courts the sole

interpreters of the “liberty clause”; he graciously invites “[a]ll Ameri­

cans” to ponder what the Clause means to them today. Post, at 20, n.

22. The problem is that in his approach the people’s ponderings do not

matter, since whatever the people decide, courts have the last word.

4 MCDONALD v. CHICAGO

SCALIA, J., concurring

Fourteenth Amendment covers by “outsourc[ing]” the job

to “historical sentiment,” post, at 20—that is, by being

guided by what the American people throughout our his­

tory have thought. It is only we judges, exercising our

“own reasoned judgment,” post, at 15, who can be en­

trusted with deciding the Due Process Clause’s scope—

which rights serve the Amendment’s “central values,” post,

at 23—which basically means picking the rights we want

to protect and discarding those we do not.

B

JUSTICE STEVENS resists this description, insisting that

his approach provides plenty of “guideposts” and “con­

straints” to keep courts from “injecting excessive subjectiv­

ity” into the process.3 Post, at 21. Plenty indeed—and

that alone is a problem. The ability of omnidirectional

guideposts to constrain is inversely proportional to their

number. But even individually, each lodestar or limitation

he lists either is incapable of restraining judicial whimsy

or cannot be squared with the precedents he seeks to

preserve.

He begins with a brief nod to history, post, at 21, but as

——————

3 JUSTICE BREYER is not worried by that prospect. His interpretive

approach applied to incorporation of the Second Amendment includes

consideration of such factors as “the extent to which incorporation will

further other, perhaps more basic, constitutional aims; and the extent

to which incorporation will advance or hinder the Constitution’s struc­

tural aims”; whether recognizing a particular right will “further the

Constitution’s effort to ensure that the government treats each individ­

ual with equal respect” or will “help maintain the democratic form of

government”; whether it is “inconsistent . . . with the Constitution’s

efforts to create governmental institutions well suited to the carrying

out of its constitutional promises”; whether it fits with “the Framers’

basic reason for believing the Court ought to have the power of judicial

review”; courts’ comparative advantage in answering empirical ques­

tions that may be involved in applying the right; and whether there is a

“strong offsetting justification” for removing a decision from the democ­

ratic process. Post, at 7, 11–17 (dissenting opinion).

Cite as: 561 U. S. ____ (2010) 5

SCALIA, J., concurring

he has just made clear, he thinks historical inquiry un­

availing, post, at 19–20. Moreover, trusting the meaning

of the Due Process Clause to what has historically been

protected is circular, see post, at 19, since that would

mean no new rights could get in.

JUSTICE STEVENS moves on to the “most basic” con­

straint on subjectivity his theory offers: that he would

“esche[w] attempts to provide any all-purpose, top-down,

totalizing theory of ‘liberty.’ ” Post, at 22. The notion that

the absence of a coherent theory of the Due Process Clause

will somehow curtail judicial caprice is at war with reason.

Indeterminacy means opportunity for courts to impose

whatever rule they like; it is the problem, not the solution.

The idea that interpretive pluralism would reduce courts’

ability to impose their will on the ignorant masses is not

merely naïve, but absurd. If there are no right answers,

there are no wrong answers either.

JUSTICE STEVENS also argues that requiring courts to

show “respect for the democratic process” should serve as

a constraint. Post, at 23. That is true, but JUSTICE

STEVENS would have them show respect in an extraordi­

nary manner. In his view, if a right “is already being

given careful consideration in, and subjected to ongoing

calibration by, the States, judicial enforcement may not be

appropriate.” Ibid. In other words, a right, such as the

right to keep and bear arms, that has long been recognized

but on which the States are considering restrictions, ap­

parently deserves less protection, while a privilege the

political branches (instruments of the democratic process)

have withheld entirely and continue to withhold, deserves

more. That topsy-turvy approach conveniently accom­

plishes the objective of ensuring that the rights this Court

held protected in Casey, Lawrence, and other such cases fit

the theory—but at the cost of insulting rather than re­

specting the democratic process.

The next constraint JUSTICE STEVENS suggests is harder

6 MCDONALD v. CHICAGO

SCALIA, J., concurring

to evaluate. He describes as “an important tool for guiding

judicial discretion” “sensitivity to the interaction between

the intrinsic aspects of liberty and the practical realities of

contemporary society.” Post, at 24. I cannot say whether

that sensitivity will really guide judges because I have no

idea what it is. Is it some sixth sense instilled in judges

when they ascend to the bench? Or does it mean judges

are more constrained when they agonize about the cosmic

conflict between liberty and its potentially harmful conse­

quences? Attempting to give the concept more precision,

JUSTICE STEVENS explains that “sensitivity is an aspect of

a deeper principle: the need to approach our work with

humility and caution.” Ibid. Both traits are undeniably

admirable, though what relation they bear to sensitivity is

a mystery. But it makes no difference, for the first case

JUSTICE STEVENS cites in support, see ibid., Casey, 505

U. S., at 849, dispels any illusion that he has a meaningful

form of judicial modesty in mind.

JUSTICE STEVENS offers no examples to illustrate the

next constraint: stare decisis, post, at 25. But his view of it

is surely not very confining, since he holds out as a “ca­

nonical” exemplar of the proper approach, see post, at 16,

54, Lawrence, which overruled a case decided a mere 17

years earlier, Bowers v. Hardwick, 478 U. S. 186 (1986),

see 539 U. S., at 578 (it “was not correct when it was

decided, and it is not correct today”). Moreover, JUSTICE

STEVENS would apply that constraint unevenly: He appar­

ently approves those Warren Court cases that adopted jot­

for-jot incorporation of procedural protections for criminal

defendants, post, at 11, but would abandon those Warren

Court rulings that undercut his approach to substantive

rights, on the basis that we have “cut back” on cases from

that era before, post, at 12.

JUSTICE STEVENS also relies on the requirement of a

“careful description of the asserted fundamental liberty

interest” to limit judicial discretion. Post, at 25 (internal

Cite as: 561 U. S. ____ (2010) 7

SCALIA, J., concurring

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 man­

ner we have hitherto employed, then the enterprise of

determining the Due Process Clause’s “conceptual core,”

post, at 23, is a waste of time. In the cases he cites we

sought a careful, specific description of the right at issue

in order to determine whether that right, thus narrowly

defined, was fundamental. See, e.g., Glucksberg, 521

U. S., at 722–728; Reno, supra, at 302–306; Collins v.

Harker Heights, 503 U. S. 115, 125–129 (1992); Cruzan v.

Director, Mo. Dept. of Health, 497 U. S. 261, 269–279

(1990); see also Vacco v. Quill, 521 U. S. 793, 801–808

(1997). The threshold step of defining the asserted right

with precision is entirely unnecessary, however, if (as

JUSTICE STEVENS maintains) the “conceptual core” of the

“liberty clause,” post, at 23, includes a number of capa­

cious, hazily defined categories. There is no need to define

the right with much precision in order to conclude that it

pertains to the plaintiff’s “ability independently to define

[his] identity,” his “right to make certain unusually impor­

tant decisions that will affect his own, or his family’s,

destiny,” or some aspect of his “[s]elf-determination, bodily

integrity, freedom of conscience, intimate relationships,

political equality, dignity [or] respect.” Ibid. (internal

quotation marks omitted). JUSTICE STEVENS must there­

fore have in mind some other use for the careful­

description requirement—perhaps just as a means of

ensuring that courts “procee[d] slowly and incrementally,”

post, at 25. But that could be achieved just as well by

8 MCDONALD v. CHICAGO

SCALIA, J., concurring

having them draft their opinions in longhand.4

II

If JUSTICE STEVENS’ account of the constraints of his

approach did not demonstrate that they do not exist, his

application of that approach to the case before us leaves no

doubt. He offers several reasons for concluding that the

Second Amendment right to keep and bear arms is not

fundamental enough to be applied against the States.5

None is persuasive, but more pertinent to my purpose,

each is either intrinsically indeterminate, would preclude

incorporation of rights we have already held incorporated,

or both. His approach therefore does nothing to stop a

judge from arriving at any conclusion he sets out to reach.

JUSTICE STEVENS begins with the odd assertion that

——————

4 After

defending the careful-description criterion, JUSTICE STEVENS

quickly retreats and cautions courts not to apply it too stringently.

Post, at 26. Describing a right too specifically risks robbing it of its

“universal valence and a moral force it might otherwise have,” ibid.,

and “loads the dice against its recognition,” post, at 26, n. 25 (internal

quotation marks omitted). That must be avoided, since it endangers

rights JUSTICE STEVENS does like. See ibid. (discussing Lawrence v.

Texas, 539 U. S. 558 (2003)). To make sure those rights get in, we must

leave leeway in our description, so that a right that has not itself been

recognized as fundamental can ride the coattails of one that has been.

5 JUSTICE STEVENS claims that I mischaracterize his argument by

referring to the Second Amendment right to keep and bear arms,

instead of “the interest in keeping a firearm of one’s choosing in the

home,” the right he says petitioners assert. Post, at 38, n. 36. But it is

precisely the “Second Amendment right to keep and bear arms” that

petitioners argue is incorporated by the Due Process Clause. See, e.g.,

Pet. for Cert. i. Under JUSTICE STEVENS’ own approach, that should end

the matter. See post, at 26 (“[W]e must pay close attention to the

precise liberty interest the litigants have asked us to vindicate”). In

any event, the demise of watered-down incorporation, see ante, at 17–

19, means that we no longer subdivide Bill of Rights guarantees into

their theoretical components, only some of which apply to the States.

The First Amendment freedom of speech is incorporated—not the

freedom to speak on Fridays, or to speak about philosophy.

Cite as: 561 U. S. ____ (2010) 9

SCALIA, J., concurring

“firearms have a fundamentally ambivalent relationship

to liberty,” since sometimes they are used to cause (or

sometimes accidentally produce) injury to others. Post, at

35. The source of the rule that only nonambivalent liber­

ties deserve Due Process protection is never explained—

proof that judges applying JUSTICE STEVENS’ approach can

add new elements to the test as they see fit. The criterion,

moreover, is inherently manipulable. Surely JUSTICE

STEVENS does not mean that the Clause covers only rights

that have zero harmful effect on anyone. Otherwise even

the First Amendment is out. Maybe what he means is

that the right to keep and bear arms imposes too great a

risk to others’ physical well-being. But as the plurality

explains, ante, at 35–36, other rights we have already held

incorporated pose similarly substantial risks to public

safety. In all events, JUSTICE STEVENS supplies neither a

standard for how severe the impairment on others’ liberty

must be for a right to be disqualified, nor (of course) any

method of measuring the severity.

JUSTICE STEVENS next suggests that the Second

Amendment right is not fundamental because it is “differ­

ent in kind” from other rights we have recognized. Post, at

37. In one respect, of course, the right to keep and bear

arms is different from some other rights we have held the

Clause protects and he would recognize: It is deeply

grounded in our nation’s history and tradition. But

JUSTICE STEVENS has a different distinction in mind:

Even though he does “not doubt for a moment that many

Americans . . . see [firearms] as critical to their way of life

as well as to their security,” he pronounces that owning a

handgun is not “critical to leading a life of autonomy,

dignity, or political equality.”6 Post, at 37–38. Who says?

——————

6 JUSTICE STEVENS goes a step farther still, suggesting that the right

to keep and bear arms is not protected by the “liberty clause” because it

is not really a liberty at all, but a “property right.” Post, at 38. Never

10 MCDONALD v. CHICAGO

SCALIA, J., concurring

Deciding what is essential to an enlightened, liberty-filled

life is an inherently political, moral judgment—the an­

tithesis 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 40–41. When

it comes to guns, JUSTICE STEVENS explains, our Nation is

already an outlier among “advanced democracies”; not

even our “oldest allies” protect as robust a right as we do,

and we should not widen the gap. Ibid. Never mind that

he explains neither which countries qualify as “advanced

democracies” nor why others are irrelevant. For there is

an even clearer indication that this criterion lets judges

pick which rights States must respect and those they can

ignore: As the plurality shows, ante, at 34–35, and nn. 28–

29, this follow-the-foreign-crowd requirement would fore­

——————

mind that the right to bear arms sounds mighty like a liberty; and

never mind that the “liberty clause” is really a Due Process Clause

which explicitly protects “property,” see United States v. Carlton, 512

U. S. 26, 41–42 (1994) (SCALIA, J., concurring in judgment). JUSTICE

STEVENS’ theory cannot explain why the Takings Clause, which unques­

tionably protects property, has been incorporated, see Chicago, B. & Q.

R. Co. v. Chicago, 166 U. S. 226, 241 (1897), in a decision he appears to

accept, post, at 14, n. 14.

7 As JUSTICE STEVENS notes, see post, at 51–52, I accept as a matter of

stare decisis the requirement that to be fundamental for purposes of the

Due Process Clause, a right must be “implicit in the concept of ordered

liberty,” Lawrence, supra, at 593, n. 3 (SCALIA, J., dissenting) (internal

quotation marks omitted). But that inquiry provides infinitely less

scope for judicial invention when conducted under the Court’s ap­

proach, since the field of candidates is immensely narrowed by the prior

requirement that a right be rooted in this country’s traditions. JUSTICE

STEVENS, on the other hand, is free to scan the universe for rights that

he thinks “implicit in the concept, etc.” The point JUSTICE STEVENS

makes here is merely one example of his demand that an historical

approach to the Constitution prove itself, not merely much better than

his in restraining judicial invention, but utterly perfect in doing so. See

Part III, infra.

Cite as: 561 U. S. ____ (2010) 11

SCALIA, J., concurring

close rights that we have held (and JUSTICE STEVENS

accepts) are incorporated, but that other “advanced” na­

tions 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 “pre­

vent[ing] elimination of the militia,” it should be viewed as

“ ‘a federalism provision’ ” logically incapable of incorpora­

tion. Post, at 41–42 (quoting Elk Grove Unified School

Dist. v. Newdow, 542 U. S. 1, 45 (2004) (THOMAS, J., con­

curring 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 congres­

sional 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 Four­

teenth Amendment”). While he insists that Clause is not a

“federalism provision,” post, at 42, n. 40, he does not ex­

plain why it is not, but the right to keep and bear arms is

(even though only the latter refers to a “right of the peo­

ple”). The “federalism” argument prevents the incorpora­

tion of only certain rights.

JUSTICE STEVENS next argues that even if the right to

12 MCDONALD v. CHICAGO

SCALIA, J., concurring

keep and bear arms is “deeply rooted in some important

senses,” the roots of States’ efforts to regulate guns run

just as deep. Post, at 44 (internal quotation marks omit­

ted). But this too is true of other rights we have held

incorporated. No fundamental right—not even the First

Amendment—is absolute. The traditional restrictions go

to show the scope of the right, not its lack of fundamental

character. At least that is what they show (JUSTICE

STEVENS would agree) for other rights. Once again, prin­

ciples are applied selectively.

JUSTICE STEVENS’ final reason for rejecting incorpora­

tion of the Second Amendment reveals, more clearly than

any of the others, the game that is afoot. Assuming that

there is a “plausible constitutional basis” for holding that

the right to keep and bear arms is incorporated, he asserts

that we ought not to do so for prudential reasons. Post, at

47. Even if we had the authority to withhold rights that

are within the Constitution’s command (and we assuredly

do not), two of the reasons JUSTICE STEVENS gives for

abstention show just how much power he would hand to

judges. The States’ “right to experiment” with solutions to

the problem of gun violence, he says, is at its apex here

because “the best solution is far from clear.” Post, at 47–

48 (internal quotation marks omitted). That is true of

most serious social problems—whether, for example, “the

best solution” for rampant crime is to admit confessions

unless they are affirmatively shown to have been coerced,

but see Miranda v. Arizona, 384 U. S. 436, 444–445

(1966), or to permit jurors to impose the death penalty

without a requirement that they be free to consider “any

relevant mitigating factor,” see Eddings v. Oklahoma, 455

U. S. 104, 112 (1982), which in turn leads to the conclusion

that defense counsel has provided inadequate defense if he

has not conducted a “reasonable investigation” into poten­

tially mitigating factors, see, e.g., Wiggins v. Smith, 539

U. S. 510, 534 (2003), inquiry into which question tends to

Cite as: 561 U. S. ____ (2010) 13

SCALIA, J., concurring

destroy any prospect of prompt justice, see, e.g., Wong v.

Belmontes, 558 U. S. ___ (2009) (per curiam) (reversing

grant of habeas relief for sentencing on a crime committed

in 1981). The obviousness of the optimal answer is in the

eye of the beholder. The implication of JUSTICE STEVENS’

call for abstention is that if We The Court conclude that

They The People’s answers to a problem are silly, we are

free to “interven[e],” post, at 47, but if we too are uncertain

of the right answer, or merely think the States may be on

to something, we can loosen the leash.

A second reason JUSTICE STEVENS says we should ab­

stain is that the States have shown they are “capable” of

protecting the right at issue, and if anything have pro­

tected it too much. Post, at 49. That reflects an assump­

tion that judges can distinguish between a proper democ­

ratic decision to leave things alone (which we should

honor), and a case of democratic market failure (which we

should step in to correct). I would not—and no judge

should—presume to have that sort of omniscience, which

seems to me far more “arrogant,” post, at 41, than confin­

ing courts’ focus to our own national heritage.

III

JUSTICE STEVENS’ response to this concurrence, post, at

51–56, makes the usual rejoinder of “living Constitution”

advocates to the criticism that it empowers judges to

eliminate or expand what the people have prescribed: The

traditional, historically focused method, he says, reposes

discretion in judges as well.8 Historical analysis can be

——————

8 JUSTICE STEVENS also asserts that his approach is “more faithful to

this Nation’s constitutional history” and to “the values and commit­

ments of the American people, as they stand today,” post, at 54. But

what he asserts to be the proof of this is that his approach aligns (no

surprise) with those cases he approves (and dubs “canonical,” ibid.).

Cases he disfavors are discarded as “hardly bind[ing]” “excesses,” post,

at 12, or less “enduring,” post, at 17, n. 16. Not proven. Moreover,

whatever relevance JUSTICE STEVENS ascribes to current “values and

14 MCDONALD v. CHICAGO

SCALIA, J., concurring

difficult; it sometimes requires resolving threshold ques­

tions, and making nuanced judgments about which evi­

dence 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

means of restraining aristocratic judicial Constitution­

writing; but whether it is the best means available in an

imperfect world. Or indeed, even more narrowly than

that: whether it is demonstrably much better than what

JUSTICE STEVENS proposes. I think it beyond all serious

dispute that it is much less subjective, and intrudes much

less upon the democratic process. It is less subjective

because it depends upon a body of evidence susceptible of

reasoned analysis rather than a variety of vague ethico­

political First Principles whose combined conclusion can

be found to point in any direction the judges favor. In the

most controversial matters brought before this Court—for

example, the constitutionality of prohibiting abortion,

assisted suicide, or homosexual sodomy, or the constitu­

tionality of the death penalty—any historical methodology,

under any plausible standard of proof, would lead to the

same conclusion.10 Moreover, the methodological differ­

ences that divide historians, and the varying interpretive

——————

commitments of the American people” (and that is unclear, see post, at

48–49, n. 47), it is hard to see how it shows fidelity to them that he

disapproves a different subset of old cases than the Court does.

9 That is not to say that every historical question on which there is

room for debate is indeterminate, or that every question on which

historians disagree is equally balanced. Cf. post, at 52–53. For exam­

ple, the historical analysis of the principal dissent in Heller is as valid

as the Court’s only in a two-dimensional world that conflates length

and depth.

10 By the way, JUSTICE STEVENS greatly magnifies the difficulty of an

historical approach by suggesting that it was my burden in Lawrence to

show the “ancient roots of proscriptions against sodomy,” post, at 53

(internal quotation marks omitted). Au contraire, it was his burden (in

the opinion he joined) to show the ancient roots of the right of sodomy.

Cite as: 561 U. S. ____ (2010) 15

SCALIA, J., concurring

assumptions they bring to their work, post, at 52–54, are

nothing compared to the differences among the American

people (though perhaps not among graduates of prestig­

ious law schools) with regard to the moral judgments

JUSTICE STEVENS would have courts pronounce. And

whether or not special expertise is needed to answer his­

torical questions, judges most certainly have no “compara­

tive . . . advantage,” post, at 24 (internal quotation marks

omitted), in resolving moral disputes. What is more, his

approach would not eliminate, but multiply, the hard

questions courts must confront, since he would not replace

history with moral philosophy, but would have courts

consider both.

And the Court’s approach intrudes less upon the democ­

ratic process because the rights it acknowledges are those

established by a constitutional history formed by democ­

ratic 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 what­

ever the Constitution and laws may say, the list of pro­

tected rights will be whatever courts wish it to be. After

all, he notes, the people have been wrong before, post, at

55, and courts may conclude they are wrong in the future.

JUSTICE STEVENS abhors a system in which “majorities or

powerful interest groups always get their way,” post, at 56,

but replaces it with a system in which unelected and life­

tenured judges always get their way. That such usurpa­

tion is effected unabashedly, see post, at 53—with “the

judge’s cards . . . laid on the table,” ibid.—makes it even

worse. In a vibrant democracy, usurpation should have to

be accomplished in the dark. It is JUSTICE STEVENS’ ap­

proach, not the Court’s, that puts democracy in peril.

Cite as: 561 U. S. ____ (2010) 1

Opinion of THOMAS, J.

SUPREME COURT OF THE UNITED STATES

_________________

No. 08–1521

_________________

OTIS MCDONALD, ET AL., PETITIONERS v. CITY OF

CHICAGO, ILLINOIS, ET AL.

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE SEVENTH CIRCUIT

[June 28, 2010]

JUSTICE THOMAS, concurring in part and concurring in

the judgment.

I agree with the Court that the Fourteenth Amendment

makes the right to keep and bear arms set forth in the

Second Amendment “fully applicable to the States.” Ante,

at 1. I write separately because I believe there is a more

straightforward path to this conclusion, one that is more

faithful to the Fourteenth Amendment’s text and history.

Applying what is now a well-settled test, the plurality

opinion concludes that the right to keep and bear arms

applies to the States through the Fourteenth Amend

ment’s Due Process Clause because it is “fundamental” to

the American “scheme of ordered liberty,” ante, at 19

(citing Duncan v. Louisiana, 391 U. S. 145, 149 (1968)),

and “ ‘deeply rooted in this Nation’s history and tradi

tion,’ ” ante, at 19 (quoting Washington v. Glucksberg, 521

U. S. 702, 721 (1997)). I agree with that description of the

right. But I cannot agree that it is enforceable against the

States through a clause that speaks only to “process.”

Instead, the right to keep and bear arms is a privilege of

American citizenship that applies to the States through

the Fourteenth Amendment’s Privileges or Immunities

Clause.

2 MCDONALD v. CHICAGO

Opinion of THOMAS, J.

I

In District of Columbia v. Heller, 554 U. S. ___ (2008),

this Court held that the Second Amendment protects an

individual right to keep and bear arms for the purpose of

self-defense, striking down a District of Columbia ordi

nance that banned the possession of handguns in the

home. Id., at __ (slip op., at 64). The question in this case

is whether the Constitution protects that right against

abridgment by the States.

As the Court explains, if this case were litigated before

the Fourteenth Amendment’s adoption in 1868, the an

swer to that question would be simple. In Barron ex rel.

Tiernan v. Mayor of Baltimore, 7 Pet. 243 (1833), this

Court held that the Bill of Rights applied only to the Fed

eral Government. Writing for the Court, Chief Justice

Marshall recalled that the founding generation added the

first eight Amendments to the Constitution in response to

Antifederalist concerns regarding the extent of federal—

not state—power, and held that if “the framers of these

amendments [had] intended them to be limitations on the

powers of the state governments,” “they would have de

clared this purpose in plain and intelligible language.”

Id., at 250. Finding no such language in the Bill, Chief

Justice Marshall held that it did not in any way restrict

state authority. Id., at 248–250; see Lessee of Livingston

v. Moore, 7 Pet. 469, 551–552 (1833) (reaffirming Barron’s

holding); Permoli v. Municipality No. 1 of New Orleans, 3

How. 589, 609–610 (1845) (same).

Nearly three decades after Barron, the Nation was

splintered by a civil war fought principally over the ques

tion 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 em

bedded in our constitutional structure. See, e.g., 3 Records

Cite as: 561 U. S. ____ (2010) 3

Opinion of THOMAS, J.

of the Federal Convention of 1787, p. 212 (M. Farrand ed.

1911) (remarks of Luther Martin) (“[S]lavery is inconsis

tent 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” (empha

sis deleted)); A. Lincoln, Speech at Peoria, Ill. (Oct. 16,

1854), reprinted in 2 The Collected Works of Abraham

Lincoln 266 (R. Basler ed. 1953) (“[N]o man is good enough

to govern another man, without that other’s consent. I say

this is the leading principle—the sheet anchor of American

republicanism. . . . Now the relation of masters and slaves

is, pro tanto, a total violation of this principle”).

After the war, a series of constitutional amendments

were adopted to repair the Nation from the damage slav

ery had caused. The provision at issue here, §1 of the

Fourteenth Amendment, significantly altered our system

of government. The first sentence of that section provides

that “[a]ll persons born or naturalized in the United States

and subject to the jurisdiction thereof, are citizens of the

United States and of the State wherein they reside.” This

unambiguously overruled this Court’s contrary holding in

Dred Scott v. Sandford, 19 How. 393 (1857), that the

Constitution did not recognize black Americans as citizens

of the United States or their own State. Id., at 405–406.

The meaning of §1’s next sentence has divided this

Court for many years. That sentence begins with the

command that “[n]o State shall make or enforce any law

which shall abridge the privileges or immunities of citi

zens of the United States.” On its face, this appears to

grant the persons just made United States citizens a

certain collection of rights—i.e., privileges or immunities—

attributable to that status.

This Court’s precedents accept that point, but define the

relevant collection of rights quite narrowly. In the

Slaughter-House Cases, 16 Wall. 36 (1873), decided just

five years after the Fourteenth Amendment’s adoption, the

4 MCDONALD v. CHICAGO

Opinion of THOMAS, J.

Court interpreted this text, now known as the Privileges

or Immunities Clause, for the first time. In a closely

divided decision, the Court drew a sharp distinction be

tween the privileges and immunities of state citizenship

and those of federal citizenship, and held that the Privi

leges or Immunities Clause protected only the latter cate

gory of rights from state abridgment. Id., at 78. The

Court defined that category to include only those rights

“which owe their existence to the Federal government, its

National character, its Constitution, or its laws.” Id., at

79. This arguably left open the possibility that certain

individual rights enumerated in the Constitution could be

considered privileges or immunities of federal citizenship.

See ibid. (listing “[t]he right to peaceably assemble” and

“the privilege of the writ of habeas corpus” as rights poten

tially protected by the Privileges or Immunities Clause).

But the Court soon rejected that proposition, interpreting

the Privileges or Immunities Clause even more narrowly

in its later cases.

Chief among those cases is United States v. Cruikshank,

92 U. S. 542 (1876). There, the Court held that members

of a white militia who had brutally murdered as many as

165 black Louisianians congregating outside a courthouse

had not deprived the victims of their privileges as Ameri

can citizens to peaceably assemble or to keep and bear

arms. Ibid.; see L. Keith, The Colfax Massacre 109 (2008).

According to the Court, the right to peaceably assemble

codified in the First Amendment was not a privilege of

United States citizenship because “[t]he right . . . existed

long before the adoption of the Constitution.” 92 U. S., at

551 (emphasis added). Similarly, the Court held that the

right to keep and bear arms was not a privilege of United

States citizenship because it was not “in any manner

dependent upon that instrument for its existence.” Id., at

553. In other words, the reason the Framers codified the

right to bear arms in the Second Amendment—its nature

Cite as: 561 U. S. ____ (2010) 5

Opinion of THOMAS, J.

as an inalienable right that pre-existed the Constitution’s

adoption—was the very reason citizens could not enforce it

against States through the Fourteenth.

That circular reasoning effectively has been the Court’s

last word on the Privileges or Immunities Clause.1 In the

intervening years, the Court has held that the Clause

prevents state abridgment of only a handful of rights, such

as the right to travel, see Saenz v. Roe, 526 U. S. 489, 503

(1999), that are not readily described as essential to

liberty.

As a consequence of this Court’s marginalization of the

Clause, litigants seeking federal protection of fundamental

rights turned to the remainder of §1 in search of an alter

native 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 proce

dural rights codified in the Bill of Rights against the

States. The Court generally rejected those claims, how

ever, 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

——————

1 In the two decades after United States v. Cruikshank, 92 U. S. 542

(1876), was decided, this Court twice reaffirmed its holding that the

Privileges or Immunities Clause does not apply the Second Amendment

to the States. Presser v. Illinois, 116 U. S. 252, 266–267 (1886); Miller

v. Texas, 153 U. S. 535 (1894).

6 MCDONALD v. CHICAGO

Opinion of THOMAS, J.

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 differ

ently against the States than against the Federal Gov

ernment on the theory that only those “fundamental”

aspects of the right required Due Process Clause protec

tion. See, e.g., Betts v. Brady, 316 U. S. 455, 473 (1942)

(holding that the Sixth Amendment required the appoint

ment of counsel in all federal criminal cases in which the

defendant was unable to retain an attorney, but that the

Due Process Clause required appointment of counsel in

state criminal cases only where “want of counsel . . . re

sult[ed] in a conviction lacking in . . . fundamental fair

ness”). In more recent years, this Court has “abandoned

the notion” that the guarantees in the Bill of Rights apply

differently when incorporated against the States than they

do when applied to the Federal Government. Ante, at 17–

18 (opinion of the Court) (internal quotation marks omit

ted). But our cases continue to adhere to the view that a

right is incorporated through the Due Process Clause only

if it is sufficiently “fundamental,” ante, at 37, 42–44 (plu

rality opinion)—a term the Court has long struggled to

define.

While this Court has at times concluded that a right

gains “fundamental” status only if it is essential to the

American “scheme of ordered liberty” or “ ‘deeply rooted in

this Nation’s history and tradition,’ ” ante, at 19 (plurality

opinion) (quoting Glucksberg, 521 U. S., at 721), the Court

has just as often held that a right warrants Due Process

Clause protection if it satisfies a far less measurable range

of criteria, see Lawrence v. Texas, 539 U. S. 558, 562

(2003) (concluding that the Due Process Clause protects

Cite as: 561 U. S. ____ (2010) 7

Opinion of THOMAS, J.

“liberty of the person both in its spatial and in its more

transcendent dimensions”). Using the latter approach, the

Court has determined that the Due Process Clause applies

rights against the States that are not mentioned in the

Constitution at all, even without seriously arguing that

the Clause was originally understood to protect such

rights. See, e.g., Lochner v. New York, 198 U. S. 45 (1905);

Roe v. Wade, 410 U. S. 113 (1973); Lawrence, supra.

All of this is a legal fiction. The notion that a constitu

tional 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 “fundamen

tal” 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’

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