# McDonald v. City of Chicago > Supreme Court of the United States · June 28, 2010 · 561 U.S. 742 URL: https://www.frixlaw.com/law-library/cases/149702 ## Case - **Full name:** McDONALD Et Al. v. CITY OF CHICAGO, ILLINOIS, Et Al. - **Court:** Supreme Court of the United States - **Decided:** June 28, 2010 - **Citations:** 561 U.S. 742; 22 Fla. L. Weekly Fed. S 619; 78 U.S.L.W. 4844; 130 S. Ct. 3020; 177 L. Ed. 2d 894; 2010 U.S. LEXIS 5523 - **Precedential status:** Published - **Opinion:** Opinion - **Judges:** Alito, Ii-A, Ii-B, Ii-D, Roberts, Scalia, Kennedy, Thomas, Ii-C, Stevens, Breyer, Ginsburg, Sotomayor - **Cited by:** 1,915 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/149702 ## How later opinions describe it (automated extraction) - holding that the individual rights recognized in District of Columbia v. Heller, 554 US 570 , 128 S Ct 2783 , 171 L Ed 2d 637 (2008) are applicable to the states by virtue of the Due Process Clause of the Fourteenth Amendment to the United States Constitution - holding that the individual rights recognized in District of Columbia v. Heller, 554 US 570, 128 S Ct 2783, 171 L Ed 2d 637 (2008 - holding that the Second Amendment’s individual right to bear arms, recognized in Heller, is a right fundamental to our scheme of ordered liberty and fully applicable to the states through the Due Process Clause of the Fourteenth Amendment - holding that the Due Process Clause incorporates the Second Amendment right to keep and bear arms - holding that “the Second Amendment right is fully applicable to the States” (emphasis added) ## Opinion text (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 Syllabus 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 Syllabus 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 Syllabus 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 Syllabus 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). Cite as: 561 U. S. ____ (2010) 21 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 Opinion of the Court Opinion of ALITO, J. 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 Opinion of the Court Opinion of ALITO, J. 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 Opinion of the Court Opinion of ALITO, J. 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 Opinion of the Court Opinion of ALITO, J. 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 Opinion of the Court 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 Opinion of the Court 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 Opinion of the Court Opinion of ALITO, J. 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 Opinion of the Court 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 Opinion of the Court Opinion of ALITO, J. 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 Opinion of the Court 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 i [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/149702. Public record. Not legal advice.