McDonald v. Chicago

U. S. 233 (1936); Powell v. Alabama, 287 U. S. 45 (1932).While it was “possible that some of the personal rightssafeguarded by the first eight Amendments against National action [might] also be safeguarded against state action,” the Court stated, this was “not because those rights are enumerated in the first eight Amendments.” Twining, supra, at 99.

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

Third, in some cases decided during this era the Court“can be seen as having asked, when inquiring into whether some particular procedural safeguard was required of a State, if a civilized system could be imagined that would not accord the particular protection.” Duncan

v.

Louisiana, 391 U. S. 145, 149, n. 14 (1968). Thus, in holding that due process prohibits a State from taking private property without just compensation, the Courtdescribed the right as “a principle of natural equity, recognized by all temperate and civilized governments, from a deep and universal sense of its justice.” Chicago, B. &

Q.

R. Co., supra, at 238. Similarly, the Court found thatdue process did not provide a right against compelledincrimination in part because this right “has no place inthe jurisprudence of civilized and free countries outside

the domain of the common law.” Twining, supra, at 113.

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

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

2 An alternative theory regarding the relationship be

tween the Bill of Rights and §1 of the Fourteenth Amendment was championed by Justice Black. This theory heldthat §1 of the Fourteenth Amendment totally incorporatedall of the provisions of the Bill of Rights. See, e.g., Adamson, supra, at 71–72 (Black, J., dissenting); Duncan, supra, at 166 (Black, J., concurring). As Justice Black noted, the chief congressional proponents of the Fourteenth Amendment espoused the view that the Amendment made the Bill of Rights applicable to the States and, in so doing, overruled this Court’s decision in Barron.9 Adamson, 332 U. S., at 72 (dissenting opinion).10 None

—————— 9Senator Jacob Howard, who spoke on behalf of the Joint Committeeon Reconstruction and sponsored the Amendment in the Senate, statedthat the Amendment protected all of “the personal rights guarantiedand secured by the first eight amendments of the Constitution.” Cong. Globe, 39th Cong., 1st Sess., 2765 (1866) (hereinafter 39th Cong. Globe). Representative John Bingham, the principal author of the text of §1, said that the Amendment would “arm the Congress . . . with the power to enforce the bill of rights as it stands in the Constitution today.” Id., at 1088; see also id., at 1089–1090; A. Amar, The Bill of Rights: Creation and Reconstruction 183 (1998) (hereinafter Amar, Bill of Rights). After ratification of the Amendment, Bingham maintainedthe view that the rights guaranteed by §1 of the Fourteenth Amendment “are chiefly defined in the first eight amendments to the Constitution of the United States.” Cong. Globe, 42d Cong., 1st Sess., App. 84 (1871). Finally, Representative Thaddeus Stevens, the political leaderof the House and acting chairman of the Joint Committee on Reconstruction, stated during the debates on the Amendment that “the Constitution limits only the action of Congress, and is not a limitationon the States. This amendment supplies that defect, and allows Congress to correct the unjust legislation of the States.” 39th Cong. Globe2459; see also M. Curtis, No State Shall Abridge: The Fourteenth Amendment and the Bill of Rights 112 (1986) (counting at least 30statements during the debates in Congress interpreting §1 to incorporate the Bill of Rights); Brief for Constitutional Law Professors as Amici Curiae 20 (collecting authorities and stating that “[n]ot a singlesenator or representative disputed [the incorporationist] understanding” of the Fourteenth Amendment). 10The municipal respondents and some of their amici dispute thesignificance of these statements. They contend that the phrase “privi

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 initiatingwhat has been called a process of “selective incorporation,” i.e., the Court began to hold that the Due Process Clausefully incorporates particular rights contained in the firsteight 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 inthe first eight Amendments, see Brief for Historians et al. as Amici Curiae 13–16, and that “there is ‘support in the legislative history forno fewer than four interpretations of the . . . Privileges or Immunities Clause.’ ” Brief for Municipal Respondents 69 (quoting Currie, The Reconstruction Congress, 75 U. Chi. L. Rev. 383, 406 (2008); bracketsomitted). They question whether there is sound evidence of “ ‘any strong public awareness of nationalizing the entire Bill of Rights.’ ” Brief for Municipal Respondents 69 (quoting Wildenthal, Nationalizingthe Bill of Rights: Revisiting the Original Understanding of the Fourteenth Amendment in 1866–67, 68 Ohio St. L. J. 1509, 1600 (2007)).Scholars have also disputed the total incorporation theory. See, e.g., Fairman, Does the Fourteenth Amendment Incorporate the Bill ofRights? 2 Stan. L. Rev. 5 (1949); Berger, Incorporation of the Bill ofRights in the Fourteenth Amendment: A Nine-Lived Cat, 42 Ohio St.

L. J. 435 (1981).

Proponents of the view that §1 of the Fourteenth Amendment makes all of the provisions of the Bill of Rights applicable to the States respond that the terms privileges, immunities, and rights were usedinterchangeably at the time, see, e.g., Curtis, supra, at 64–65, and that the position taken by the leading congressional proponents of theAmendment was widely publicized and understood, see, e.g., Wildenthal, supra, at 1564–1565, 1590; Hardy, Original Popular Understanding of the Fourteenth Amendment as Reflected in the Print Media of1866–1868, 30 Whittier L. Rev. 695 (2009). A number of scholars have found support for the total incorporation of the Bill of Rights. See Curtis, supra, at 57–130; Aynes, On Misreading John Bingham and theFourteenth Amendment, 103 Yale L. J. 57, 61 (1993); see also Amar, Bill of Rights 181–230. We take no position with respect to this academic debate.

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(1964); Pointer v. Texas, 380 U. S. 400, 403–404 (1965); Washington v. Texas, 388 U. S. 14, 18 (1967); Duncan, 391

U. S., at 147–148; Benton v. Maryland, 395 U. S. 784, 794 (1969).

The decisions during this time abandoned three of the previously noted characteristics of the earlier period.11 The Court made it clear that the governing standard is notwhether any “civilized system [can] be imagined thatwould not accord the particular protection.” Duncan, 391

U. S., at 149, n. 14. Instead, the Court inquired whether aparticular Bill of Rights guarantee is fundamental to our scheme of ordered liberty and system of justice. Id., at 149, and n. 14; see also id., at 148 (referring to those “fundamental principles of liberty and justice which lie atthe base of all our civil and political institutions” (emphasis added; internal quotation marks omitted)).

The Court also shed any reluctance to hold that rightsguaranteed by the Bill of Rights met the requirements forprotection under the Due Process Clause. The Court eventually incorporated almost all of the provisions of the Bill of Rights.12 Only a handful of the Bill of Rights pro

—————— 11By contrast, the Court has never retreated from the proposition that the Privileges or Immunities Clause and the Due Process Clausepresent different questions. And in recent cases addressing unenumerated rights, we have required that a right also be “implicit in theconcept of ordered liberty.” See, e.g., Washington v. Glucksberg, 521

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

12With 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) (freedom from unreasonable searches and seizures).

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

tections remain unincorporated.13

Finally, the Court abandoned “the notion that the Fourteenth Amendment applies to the States only a watereddown, subjective version of the individual guarantees of the Bill of Rights,” stating that it would be “incongruous” to apply different standards “depending on whether theclaim was asserted in a state or federal court.” Malloy, 378 U. S., at 10–11 (internal quotation marks omitted). Instead, the Court decisively held that incorporated Bill of

——————

U. S. 784 (1969) (Double Jeopardy Clause); Malloy v. Hogan, 378 U. S. 1 (1964) (privilege against self-incrimination); Chicago, B. & Q. R. Co.

v.

Chicago, 166 U. S. 226 (1897) (Just Compensation Clause). With respect to the Sixth Amendment, see Duncan v. Louisiana, 391

U.

S. 145 (1968) (trial by jury in criminal cases); Washington v. Texas, 388 U. S. 14 (1967) (compulsory process); Klopfer v. North Carolina, 386 U. S. 213 (1967) (speedy trial); Pointer v. Texas, 380 U. S. 400 (1965) (right to confront adverse witness); Gideon v. Wainwright, 372

U.

S. 335 (1963) (assistance of counsel); In re Oliver, 333 U. S. 257 (1948) (right to a public trial).

With respect to the Eighth Amendment, see Robinson v. California, 370 U. S. 660 (1962) (cruel and unusual punishment); Schilb v. Kuebel, 404 U. S. 357 (1971) (prohibition against excessive bail).

13In addition to the right to keep and bear arms (and the Sixth Amendment right to a unanimous jury verdict, see n. 14, infra), theonly rights not fully incorporated are (1) the Third Amendment’s protection against quartering of soldiers; (2) the Fifth Amendment’s grand jury indictment requirement; (3) the Seventh Amendment right to a jury trial in civil cases; and (4) the Eighth Amendment’s prohibition on excessive fines.

We never have decided whether the Third Amendment or the Eighth Amendment’s prohibition of excessive fines applies to the States through the Due Process Clause. See Browning-Ferris Industries of Vt., Inc. v. Kelco Disposal, Inc., 492 U. S. 257, 276, n. 22 (1989) (declining to decide whether the excessive-fines protection applies to the States); seealso Engblom v. Carey, 677 F. 2d 957, 961 (CA2 1982) (holding as amatter of first impression that the “Third Amendment is incorporatedinto the Fourteenth Amendment for application to the states”).

Our governing decisions regarding the Grand Jury Clause of the Fifth Amendment and the Seventh Amendment’s civil jury requirement long predate the era of selective incorporation.

Rights protections “are all to be enforced against theStates under the Fourteenth Amendment according to the same standards that protect those personal rights againstfederal encroachment.” Id., at 10; see also Mapp v. Ohio, 367 U. S. 643, 655–656 (1961); Ker v. California, 374 U. S. 23, 33–34 (1963); Aguilar v. Texas, 378 U. S. 108, 110 (1964); Pointer, 380 U. S., at 406; Duncan, supra, at 149, 157–158; Benton, 395 U. S., at 794–795; Wallace v. Jaffree, 472 U. S. 38, 48–49 (1985).14

Employing this approach, the Court overruled earlier decisions in which it had held that particular Bill of Rights

—————— 14There is one exception to this general rule. The Court has held that although the Sixth Amendment right to trial by jury requires a unanimous jury verdict in federal criminal trials, it does not require aunanimous jury verdict in state criminal trials. See Apodaca v. Oregon, 406 U. S. 404 (1972); see also Johnson v. Louisiana, 406 U. S. 356 (1972) (holding that the Due Process Clause does not require unanimous jury verdicts in state criminal trials). But that ruling was the result of an unusual division among the Justices, not an endorsement of the two-track approach to incorporation. In Apodaca, eight Justicesagreed that the Sixth Amendment applies identically to both theFederal Government and the States. See Johnson, supra, at 395 (Brennan, J., dissenting). Nonetheless, among those eight, four Justices took the view that the Sixth Amendment does not require unanimous jury verdicts in either federal or state criminal trials, Apodaca, 406 U. S., at 406 (plurality opinion), and four other Justices took theview that the Sixth Amendment requires unanimous jury verdicts in federal and state criminal trials, id., at 414–415 (Stewart, J., dissenting); Johnson, supra, at 381–382 (Douglas, J., dissenting). Justice Powell’s concurrence in the judgment broke the tie, and he concludedthat the Sixth Amendment requires juror unanimity in federal, but not state, cases. Apodaca, therefore, does not undermine the wellestablished 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 anyevent, 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 ofRights that extends to the States, the Sixth Amendment’s jury trialguarantee, however it is to be construed, has identical application against both State and Federal Governments”).

guarantees or remedies did not apply to the States. See, e.g., Mapp, supra (overruling in part Wolf, 338 U. S. 25); Gideon, 372 U. S. 335 (overruling Betts, 316 U. S. 455); Malloy, supra (overruling Adamson, 332 U. S. 46, and Twining, 211 U. S. 78); Benton, supra, at 794 (overruling Palko, 302 U. S. 319).

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

A Our decision in Heller points unmistakably to the answer. Self-defense is a basic right, recognized by many legal systems from ancient times to the present day,15 and in Heller, we held that individual self-defense is “the central component” of the Second Amendment right. 554

U. S., at ___ (slip op., at 26); see also id., at ___ (slip op., at56) (stating that the “inherent right of self-defense has been central to the Second Amendment right”). Explaining that “the need for defense of self, family, and property is most acute” in the home, ibid., we found that this right applies to handguns because they are “the most preferred

—————— 15Citing 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 acquittedand discharged, with commendation rather than blame.” 4 W. Blackstone, Commentaries on the Laws of England 182 (reprint 1992).

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) (someinternal quotation marks omitted); see also id., at ___ (slip op., at 56) (noting that handguns are “overwhelmingly chosen by American society for [the] lawful purpose” ofself-defense); id., at ___ (slip op., at 57) (“[T]he American people have considered the handgun to be the quintessential self-defense weapon”). Thus, we concluded, citizens must be permitted “to use [handguns] for the core lawful purpose of self-defense.” Id., at ___ (slip op., at 58).

Heller makes it clear that this right is “deeply rooted inthis Nation’s history and tradition.” Glucksberg, supra, at 721 (internal quotation marks omitted). Heller exploredthe right’s origins, noting that the 1689 English Bill of Rights explicitly protected a right to keep arms for selfdefense, 554 U. S., at ___–___ (slip op., at 19–20), and that by 1765, Blackstone was able to assert that the right to keep and bear arms was “one of the fundamental rights of Englishmen,” id., at ___ (slip op., at 20).

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

The right to keep and bear arms was considered no lessfundamental by those who drafted and ratified the Bill of

—————— 16For example, an article in the Boston Evening Post stated: “For it is certainly beyond human art and sophistry, to prove the British subjects, to whom the privilege of possessing arms is expressly recognized by the Bill of Rights, and, who live in a province where the law requiresthem to be equip’d with arms, &c. are guilty of an illegal act, in calling upon one another to be provided with them, as the law directs.” Boston Evening Post, Feb. 6, 1769, in Boston Under Military Rule 1768–1769,

p. 61 (1936) (emphasis deleted).

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Rights. “During the 1788 ratification debates, the fearthat the federal government would disarm the people inorder to impose rule through a standing army or selectmilitia was pervasive in Antifederalist rhetoric.” Heller, supra, at ___ (slip op., at 25) (citing Letters from the Federal Farmer III (Oct. 10, 1787), in 2 The Complete Anti-Federalist 234, 242 (H. Storing ed. 1981)); see also Federal Farmer: An Additional Number of Letters to the Republican, Letter XVIII (Jan. 25, 1788), in 17 Documentary History of the Ratification of the Constitution 360, 362–363 (J. Kaminski & G. Saladino eds. 1995); S. Halbrook, The Founders’ Second Amendment 171–278 (2008). Federalists responded, not by arguing that the right was insufficiently important to warrant protection but bycontending that the right was adequately protected by the Constitution’s assignment of only limited powers to the Federal Government. Heller, supra, at ___ (slip op., at 25–26); cf. The Federalist No. 46, p. 296 (C. Rossiter ed. 1961)

(J.

Madison). Thus, Antifederalists and Federalists alike agreed that the right to bear arms was fundamental to the newly formed system of government. See Levy 143–149;

J.

Malcolm, To Keep and Bear Arms: The Origins of an Anglo-American Right 155–164 (1994). But those who were fearful that the new Federal Government would infringe traditional rights such as the right to keep andbear arms insisted on the adoption of the Bill of Rights asa condition for ratification of the Constitution. See 1 J. Elliot, The Debates in the Several State Conventions on the Adoption of the Federal Constitution 327–331 (2d ed.1854); 3 id., at 657–661; 4 id., at 242–246, 248–249; see also Levy 26–34; A. Kelly & W. Harbison, The American Constitution: Its Origins and Development 110, 118 (7thed. 1991). This is surely powerful evidence that the right was regarded as fundamental in the sense relevant here.

This understanding persisted in the years immediatelyfollowing the ratification of the Bill of Rights. In addition

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 individualright to keep and bear arms between 1789 and 1820. Heller, supra, at ___ (slip op., at 27–30). Founding-eralegal commentators confirmed the importance of the rightto early Americans. St. George Tucker, for example, described the right to keep and bear arms as “the true palladium of liberty” and explained that prohibitions on the right would place liberty “on the brink of destruction.” 1 Blackstone’s Commentaries, Editor’s App. 300 (S. Tuckered. 1803); see also W. Rawle, A View of the Constitution of the United States of America, 125–126 (2d ed. 1829) (reprint 2009); 3 J. Story, Commentaries on the Constitutionof the United States §1890, p. 746 (1833) (“The right of the citizens to keep and bear arms has justly been considered,as the palladium of the liberties of a republic; since it offers a strong moral check against the usurpation andarbitrary power of rulers; and will generally, even if these are successful in the first instance, enable the people to resist and triumph over them”).

B 1

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

After the Civil War, many of the over 180,000 AfricanAmericans who served in the Union Army returned to the States of the old Confederacy, where systematic efforts were made to disarm them and other blacks. See Heller, 554 U. S., at ___ (slip op., at 42); E. Foner, Reconstruction: America’s Unfinished Revolution 1863–1877, p. 8 (1988) (hereinafter Foner). The laws of some States formally prohibited African Americans from possessing firearms. For example, a Mississippi law provided that “no freedman, free negro or mulatto, not in the military service ofthe United States government, and not licensed so to do by the board of police of his or her county, shall keep or carry fire-arms of any kind, or any ammunition, dirk or bowieknife.” Certain Offenses of Freedmen, 1865 Miss. Laws

p. 165, §1, in 1 Documentary History of Reconstruction289 (W. Fleming ed. 1950); see also Regulations forFreedmen in Louisiana, in id., at 279–280; H. R. Exec.

—————— 17Abolitionists 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 firearmsby Union troops occupying parts of the South constituted “the interference with and denial of the right of the people to bear arms in theirdefense.” National Party Platforms 1840–1972, at 34.

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Doc. No. 70, 39th Cong., 1st Sess., 233, 236 (1866) (describing a Kentucky law); E. McPherson, The Political History of the United States of America During the Period of Reconstruction 40 (1871) (describing a Florida law); id., at 33 (describing an Alabama law).18

Throughout the South, armed parties, often consisting of ex-Confederate soldiers serving in the state militias,forcibly took firearms from newly freed slaves. In the first session of the 39th Congress, Senator Wilson told his colleagues: “In Mississippi rebel State forces, men who were in the rebel armies, are traversing the State, visitingthe freedmen, disarming them, perpetrating murders and outrages upon them; and the same things are done in other sections of the country.” 39th Cong. Globe 40 (1865). The Report of the Joint Committee on Reconstruction—which was widely reprinted in the press and distributedby Members of the 39th Congress to their constituents shortly after Congress approved the Fourteenth Amendment19—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,

—————— 18In South Carolina, prominent black citizens held a convention toaddress the State’s black code. They drafted a memorial to Congress, in which they included a plea for protection of their constitutional rightto keep and bear arms: “ ‘We ask that, inasmuch as the Constitution of the United States explicitly declares that the right to keep and beararms shall not be infringed . . . that the late efforts of the Legislature ofthis State to pass an act to deprive us [of] arms be forbidden, as a plainviolation 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 Senateand described the memorial as a request that black citizens “have the constitutional protection in keeping arms.” 39th Cong. Globe 337. 19See 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.).

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 coloredsoldiers, and [was] very prompt in shooting the blackswhenever an opportunity occur[red].” H. R. Exec. Doc. No. 70, at 238 (internal quotation marks omitted). As Senator Wilson put it during the debate on a failed proposal to disband Southern militias: “There is one unbroken chain of testimony from all people that are loyal to this country, that the greatest outrages are perpetrated byarmed men who go up and down the country searching houses, disarming people, committing outrages of every kind and description.” 39th Cong. Globe 915 (1866).20

Union Army commanders took steps to secure the right of all citizens to keep and bear arms,21 but the 39th Con

—————— 20Disarmament 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 thateverybody 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). 21For example, the occupying Union commander in South Carolina issued an order stating that “[t]he constitutional rights of all loyal andwell disposed inhabitants to bear arms, will not be infringed.” General Order No. 1, Department of South Carolina, January 1, 1866, in 1Documentary 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 todefend their homes, families or themselves.’ ” Cramer, “This Right isNot Allowed by Governments That Are Afraid of The People”: ThePublic Meaning of the Second Amendment When the FourteenthAmendment 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 byarmed parties to disarm blacks, the head of the Freedmen’s Bureau inAlabama “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

Opinion of the Court

gress concluded that legislative action was necessary. Its efforts to safeguard the right to keep and bear armsdemonstrate that the right was still recognized to be fundamental.

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

The Civil Rights Act of 1866, 14 Stat. 27, which wasconsidered at the same time as the Freedmen’s Bureau Act, similarly sought to protect the right of all citizens to keep and bear arms.23 Section 1 of the Civil Rights Act

—————— cally interfered with.” Joint Committee on Reconstruction, H. R. Rep.No. 30, 39th Cong., 1st Sess., pt. 3, p. 140 (1866). 22The 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 thatthe unamended version alone would have protected the right, see id., at 743 (Sen. Lyman Trumbull). 23There 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 itspurpose as securing to blacks the “privileges which are essential tofreemen.” Id., at 474. He then pointed to the previously described Mississippi law that “prohibit[ed] any negro or mulatto from having fire-arms” and explained that the bill would “destroy” such laws. Ibid. Similarly, Representative Sidney Clarke cited disarmament of freedmen in Alabama and Mississippi as a reason to support the Civil RightsAct and to continue to deny Alabama and Mississippi representation inCongress: “I regret, sir, that justice compels me to say, to the disgrace

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

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 disarmed loyalists of Alabama, Mississippi, and Louisiana are powerless to-day, and oppressed by the pardoned and encouraged rebels of thoseStates. 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.

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

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

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

Even those who thought the Fourteenth Amendmentunnecessary believed that blacks, as citizens, “have equal

—————— 24For example, at least one southern court had held the Civil Rights Act to be unconstitutional. That court did so, moreover, in the course of upholding the conviction of an African-American man for violating Mississippi’s law against firearm possession by freedmen. See Decision of Chief Justice Handy, Declaring the Civil Rights Bill Unconstitutional, N. Y. Times, Oct. 26, 1866, p. 2, col. 3.

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right to protection, and to keep and bear arms for selfdefense.” Id., at 1073 (Sen. James Nye); see also Foner258–259.25

Evidence from the period immediately following theratification of the Fourteenth Amendment only confirmsthat the right to keep and bear arms was considered fundamental. In an 1868 speech addressing the disarmament of freedmen, Representative Stevens emphasized the necessity of the right: “Disarm a community and you rob them of the means of defending life. Take away their weapons of defense and you take away the inalienable right of defending liberty.” “The fourteenth amendment, now so happily adopted, settles the whole question.”Cong. Globe, 40th Cong., 2d Sess., 1967. And in debatingthe Civil Rights Act of 1871, Congress routinely referred to the right to keep and bear arms and decried the continued disarmament of blacks in the South. See Halbrook, Freedmen 120–131. Finally, legal commentators from the period emphasized the fundamental nature of the right. See, e.g., T. Farrar, Manual of the Constitution of the United States of America §118, p. 145 (1867) (reprint1993); J. Pomeroy, An Introduction to the Constitutional Law of the United States §239, pp. 152–153 (3d ed. 1875).

The right to keep and bear arms was also widely protected by state constitutions at the time when the Fourteenth Amendment was ratified. In 1868, 22 of the 37 States in the Union had state constitutional provisions

—————— 25Other Members of the 39th Congress stressed the importance of theright to keep and bear arms in discussing other measures. In speakinggenerally 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 southernmilitias, 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 maintainedthe right of individuals to their private firearms.” Cramer 858.

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

—————— 26More 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. 27These 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 notpursue criminals beyond the town borders. See Brief for Rocky Mountain Gun Owners et al. as Amici Curiae 15. Settlers in the West and elsewhere, therefore, were left to “repe[l] force by force when the intervention of society . . . [was] too late to prevent an injury.” District of Columbia v. Heller, 554 U. S. ___ , ___ (2008) (slip op., at 21) (internal quotation marks omitted). The settlers’ dependence on game for food and economic livelihood, moreover, undoubtedly undergirded these state constitutional guarantees. See id., at ___, ___, ___ (slip. op, at 26,

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

2 Despite all this evidence, municipal respondents contend that Congress, in the years immediately following the Civil War, merely sought to outlaw “discriminatory measures taken against freedmen, which it addressed by adopting a non-discrimination principle” and that even anoutright ban on the possession of firearms was regarded as acceptable, “so long as it was not done in a discriminatorymanner.” Brief for Municipal Respondents 7. They arguethat Members of Congress overwhelmingly viewed §1 of the Fourteenth Amendment “as an antidiscrimination rule,” and they cite statements to the effect that the section would outlaw discriminatory measures. Id., at 64. This argument is implausible. First, while §1 of the Fourteenth Amendment contains“an antidiscrimination rule,” namely, the Equal Protection Clause, municipal respondents can hardly mean that §1 does no more than prohibit discrimination. If that were so, then the First Amendment, as applied to the States,would not prohibit nondiscriminatory abridgments of the rights to freedom of speech or freedom of religion; the Fourth Amendment, as applied to the States, would not prohibit all unreasonable searches and seizures but onlydiscriminatory searches and seizures—and so on. We assume that this is not municipal respondents’ view, sowhat they must mean is that the Second Amendment should be singled out for special—and specially unfavorable—treatment. We reject that suggestion. Second, municipal respondents’ argument ignores the

—————— 36, 42).

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

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

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

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

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 beararms for lawful purposes, most notably for self-defensewithin the home. Municipal respondents, in effect, ask us to treat the right recognized in Heller as a second-class right, subject to an entirely different body of rules than the other Bill of Rights guarantees that we have held to beincorporated into the Due Process Clause.Municipal respondents’ main argument is nothing less than a plea to disregard 50 years of incorporation precedent and return (presumably for this case only) to a bygone era. Municipal respondents submit that the Due Process Clause protects only those rights “‘recognized by all temperate and civilized governments, from a deep and universal sense of [their] justice.’” Brief for Municipal Respondents 9 (quoting Chicago, B. & Q. R. Co., 166 U. S., at 238). According to municipal respondents, if it is possible to imagine any civilized legal system that does notrecognize a particular right, then the Due Process Clause

does not make that right binding on the States. Brief for Municipal Respondents 9. Therefore, the municipal respondents continue, because such countries as England,Canada, Australia, Japan, Denmark, Finland, Luxembourg, and New Zealand either ban or severely limit handgun ownership, it must follow that no right to possesssuch weapons is protected by the Fourteenth Amendment. Id., at 21–23.

This line of argument is, of course, inconsistent with the long-established standard we apply in incorporation cases.See Duncan, 391 U. S., at 149, and n. 14. And the present-day implications of municipal respondents’ argumentare stunning. For example, many of the rights that our Bill of Rights provides for persons accused of criminaloffenses are virtually unique to this country.28 If our

—————— 28For example, the United States affords criminal jury trials far more broadly than other countries. See, e.g., Van Kessel, Adversary Excessesin 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); seealso Roper v. Simmons, 543 U. S. 551, 624 (2005) (SCALIA, J., dissenting) (“In many significant respects the laws of most other countries differ from our law—including . . . such explicit provisions of our Constitution as the right to jury trial”). Similarly, our rules governing pretrial interrogation differ from those in countries sharing a similarlegal heritage. See Dept. of Justice, Office of Legal Policy, Report to theAttorney General on the Law of Pretrial Interrogation: Truth in Criminal Justice Report No. 1 (Feb. 12, 1986), reprinted in 22 U. Mich. J. L. Ref. 437, 534–542 (1989) (comparing the system envisioned by Miranda

v. Arizona, 384 U. S. 436 (1966), with rights afforded by England,Scotland, Canada, India, France, and Germany). And the “Courtpronounced exclusionary rule . . . is distinctively American.” Roper, supra, at 624 (SCALIA, J., dissenting) (citing Bivens v. Six Unknown Fed. Narcotics Agents, 403 U. S. 388, 415 (1971) (Burger, C. J., dissenting) (noting that exclusionary rule was “unique to American jurisprudence” (internal quotation marks omitted))); see also Sklansky, Anti-Inquisitorialism, 122 Harv. L. Rev. 1634, 1648–1656, 1689–1693 (2009)(discussing the differences between American and European confronta

understanding of the right to a jury trial, the right against self-incrimination, and the right to counsel were necessaryattributes of any civilized country, it would follow that theUnited States is the only civilized Nation in the world.

Municipal respondents attempt to salvage their position by suggesting that their argument applies only to substantive as opposed to procedural rights. Brief for Municipal Respondents 10, n. 3. But even in this trimmed form, municipal respondents’ argument flies in the face of more than a half-century of precedent. For example, in Everson

v. Board of Ed. of Ewing, 330 U. S. 1, 8 (1947), the Court held that the Fourteenth Amendment incorporates theEstablishment Clause of the First Amendment. Yet several of the countries that municipal respondents recognize as civilized have established state churches.29 If we were to adopt municipal respondents’ theory, all of this Court’s Establishment Clause precedents involving actions taken by state and local governments would go by the boards.

Municipal respondents maintain that the Second Amendment differs from all of the other provisions of theBill of Rights because it concerns the right to possess a

—————— tion rules). 29England and Denmark have state churches. See Torke, The English Religious Establishment, 12 J. of Law & Religion 399, 417–427(1995–1996) (describing legal status of Church of England); Constitutional Act of Denmark, pt. I, §4 (1953) (“The Evangelical LutheranChurch shall be the Established Church of Denmark”). The Evangelical Lutheran Church of Finland has attributes of a state church. See Christensen, Is the Lutheran Church Still the State Church? An Analysis of Church-State Relations in Finland, 1995 B. Y. U. L. Rev. 585, 596–600 (describing status of church under Finnish law). The Web site of the Evangelical Lutheran Church of Finland states that the church may be usefully described as both a “state church” and a “folkchurch.” See J. Seppo, The Current Condition of Church-State Relations in Finland, online at http://evl.fi/EVLen.nsf/Documents/838DDBEF 4A28712AC225730F001F7C67?OpenDocument&lang=EN (all Internet materials as visited June 23, 2010, and available in Clerk of Court’s case file).

deadly implement and thus has implications for public safety. Brief for Municipal Respondents 11. And theynote that there is intense disagreement on the question whether the private possession of guns in the home increases or decreases gun deaths and injuries. Id., at 11, 13–17.

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

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

There is nothing new in the argument that, in order torespect federalism and allow useful state experimentation,a federal constitutional right should not be fully binding on the States. This argument was made repeatedly and eloquently by Members of this Court who rejected the concept of incorporation and urged retention of the twotrack approach to incorporation. Throughout the era of“selective incorporation,” Justice Harlan in particular,invoking the values of federalism and state experimentation, fought a determined rearguard action to preserve the two-track approach. See, e.g., Roth v. United States, 354

U. S. 476, 500–503 (1957) (Harlan, J., concurring in result in part and dissenting in part); Mapp, supra, at 678–680 (Harlan, J., dissenting); Gideon, 372 U. S., at 352 (Harlan, J., concurring); Malloy, 378 U. S., at 14–33 (Harlan, J., dissenting); Pointer, 380 U. S., at 408–409 (Harlan, J.,concurring in result); Washington, 388 U. S., at 23–24 (Harlan, J., concurring in result); Duncan, 391 U. S., at 171–193 (Harlan, J., dissenting); Benton, 395 U. S., at 808–809 (Harlan, J., dissenting); Williams v. Florida, 399

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

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

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

30As noted above, see n. 13, supra, cases that predate the era of selective incorporation held that the Grand Jury Clause of the Fifth Amendment and the Seventh Amendment’s civil jury requirement do not apply to the States. See Hurtado v. California, 110 U. S. 516 (1884) (indictment); Minneapolis & St. Louis R. Co. v. Bombolis, 241 U. S. 211 (1916) (civil jury).

As a result of Hurtado, most States do not require a grand juryindictment in all felony cases, and many have no grand juries. See Dept. of Justice, Office of Justice Programs, Bureau of Justice Statistics, State Court Organization 2004, pp. 213, 215–217 (2006) (Table 38),online at http://bjs.ojp.usdoj.gov/content/pub/pdf/sco04.pdf.

As a result of Bombolis, cases that would otherwise fall within the Seventh Amendment are now tried without a jury in state small claims courts. See, e.g., Cheung v. Eighth Judicial Dist. Court, 121 Nev. 867, 124 P. 3d 550 (2005) (no right to jury trial in small claims court underNevada Constitution).

Municipal respondents assert that, although most stateconstitutions protect firearms rights, state courts have held that these rights are subject to “interest-balancing” and have sustained a variety of restrictions. Brief for Municipal Respondents 23–31. In Heller, however, we expressly rejected the argument that the scope of the Second Amendment right should be determined by judicialinterest balancing, 554 U. S., at ___–___ (slip op., at 62–63), and this Court decades ago abandoned “the notion that the Fourteenth Amendment applies to the States only a watered-down, subjective version of the individual guarantees of the Bill of Rights,” Malloy, supra, at 10–11 (internal quotation marks omitted).

As evidence that the Fourteenth Amendment has not historically been understood to restrict the authority of the States to regulate firearms, municipal respondents andsupporting amici cite a variety of state and local firearmslaws that courts have upheld. But what is most strikingabout their research is the paucity of precedent sustainingbans comparable to those at issue here and in Heller. Municipal respondents cite precisely one case (from thelate 20th century) in which such a ban was sustained. See Brief for Municipal Respondents 26–27 (citing Kalodimos

v. Morton Grove, 103 Ill. 2d 483, 470 N. E. 2d 266 (1984));see also Reply Brief for Respondents NRA et al. 23, n. 7 (asserting that no other court has ever upheld a complete ban on the possession of handguns). It is important to keep in mind that Heller, while striking down a law that prohibited the possession of handguns in the home, recognized that the right to keep and bear arms is not “a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose.” 554 U. S., at ___ (slip op., at 54). We made it clear in Heller that our holding did not cast doubt on such longstanding regulatorymeasures as “prohibitions on the possession of firearms by felons and the mentally ill,” “laws forbidding the carrying

40 MCDONALD v. CHICAGO

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of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.” Id., at ___–___ (slip op., at 54–55). We repeat those assurances here.Despite municipal respondents’ doomsday proclamations, incorporation does not imperil every law regulating firearms.

Municipal respondents argue, finally, that the right tokeep and bear arms is unique among the rights set out inthe first eight Amendments “because the reason for codifying the Second Amendment (to protect the militia) differsfrom the purpose (primarily, to use firearms to engage inself-defense) that is claimed to make the right implicit in the concept of ordered liberty.” Brief for Municipal Respondents 36–37. Municipal respondents suggest that the Second Amendment right differs from the rights heretofore incorporated because the latter were “valued for[their] own sake.” Id., at 33. But we have never previously suggested that incorporation of a right turns on whether it has intrinsic as opposed to instrumental value, and quite a few of the rights previously held to be incorporated—for example the right to counsel and the right to confront and subpoena witnesses—are clearly instrumental by any measure. Moreover, this contention repackages one of the chief arguments that we rejected in Heller, i.e., that the scope of the Second Amendment right is definedby the immediate threat that led to the inclusion of thatright in the Bill of Rights. In Heller, we recognized thatthe codification of this right was prompted by fear that the Federal Government would disarm and thus disable the militias, but we rejected the suggestion that the right was valued only as a means of preserving the militias. 554

U. S., at ___ (slip op., at 26). On the contrary, we stressedthat the right was also valued because the possession offirearms was thought to be essential for self-defense. As we put it, self-defense was “the central component of the

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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 intermediatereliance on any of the first eight Amendments.’” Post, at 8 (quoting Malloy, 378 U. S., at 24 (Harlan, J., dissenting)).The question presented in this case, in his view, “is whether the particular right asserted by petitioners applies to the States because of the Fourteenth Amendment itself, standing on its own bottom.” Post, at 27. He would hold that “[t]he rights protected against state infringement by the Fourteenth Amendment’s Due Process Clauseneed not be identical in shape or scope to the rights protected against Federal Government infringement by the various provisions of the Bill of Rights.” Post, at 9.

As we have explained, the Court, for the past halfcentury, has moved away from the two-track approach. If we were now to accept JUSTICE STEVENS’ theory across the board, decades of decisions would be undermined. We assume that this is not what is proposed. What is urgedinstead, it appears, is that this theory be revived solely forthe individual right that Heller recognized, over vigorousdissents.

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

MCDONALD v. CHICAGO
Opinion of ALITO, J.
B

JUSTICE BREYER’s dissent makes several points to whichwe briefly respond. To begin, while there is certainly roomfor disagreement about Heller’s analysis of the history ofthe 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 asthoroughly explored.

JUSTICE BREYER’s conclusion that the Fourteenth Amendment does not incorporate the right to keep andbear arms appears to rest primarily on four factors: First,“there is no popular consensus” that the right is fundamental, post, at 9; second, the right does not protect minorities or persons neglected by those holding political power, post, at 10; third, incorporation of the Second Amendment right would “amount to a significant incursion on a traditional and important area of state concern,altering the constitutional relationship between the Statesand the Federal Government” and preventing local variations, post, at 11; and fourth, determining the scope of the Second Amendment right in cases involving state andlocal laws will force judges to answer difficult empiricalquestions regarding matters that are outside their area ofexpertise, 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 ofRights 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 Membersof the House of Representatives urges us to hold that theright to keep and bear arms is fundamental. See Brief for Senator Kay Bailey Hutchison et al. as Amici Curiae 4.

Another brief submitted by 38 States takes the same position. Brief for State of Texas et al. as Amici Curiae 6.

Second, petitioners and many others who live in highcrime areas dispute the proposition that the SecondAmendment right does not protect minorities and those lacking political clout. The plight of Chicagoans living inhigh-crime areas was recently highlighted when two Illinois legislators representing Chicago districts called on the Governor to deploy the Illinois National Guard to patrol the City’s streets.31 The legislators noted that thenumber of Chicago homicide victims during the currentyear equaled the number of American soldiers killed during that same period in Afghanistan and Iraq and that80% of the Chicago victims were black.32 Amici supportingincorporation of the right to keep and bear arms contend that the right is especially important for women andmembers of other groups that may be especially vulnerable to violent crime.33 If, as petitioners believe, their safety and the safety of other law-abiding members of the community would be enhanced by the possession of handguns in the home for self-defense, then the Second Amendment right protects the rights of minorities andother residents of high-crime areas whose needs are notbeing met by elected public officials.

—————— 31See Mack & Burnette, 2 Lawmakers to Quinn: Send the Guard to Chicago, Chicago Tribune, Apr. 26, 2010, p. 6. 32Janssen & 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 ofevery four homicide victims in Chicago were African Americans); id., at 5–6 (noting that “each year [in Chicago], many times more AfricanAmericans are murdered by assailants wielding guns than were killed during the Colfax massacre” (footnote omitted)). 33See 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.

Third, JUSTICE BREYER is correct that incorporation ofthe Second Amendment right will to some extent limit the legislative freedom of the States, but this is always true when a Bill of Rights provision is incorporated. Incorporation always restricts experimentation and local variations, but that has not stopped the Court from incorporatingvirtually every other provision of the Bill of Rights. “[T]heenshrinement 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 withrespect to all the other limitations on state power found inthe Constitution.

Finally, JUSTICE BREYER is incorrect that incorporationwill require judges to assess the costs and benefits offirearms restrictions and thus to make difficult empiricaljudgments 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 thatsuggestion. See supra, at 38–39. “The very enumerationof the right takes out of the hands of government—even the Third Branch of Government—the power to decide ona 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 protectsthe 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 thatprotects a right that is fundamental from an American perspective applies equally to the Federal Governmentand the States. See Duncan, 391 U. S., at 149, and n. 14. We therefore hold that the Due Process Clause of the Fourteenth Amendment incorporates the Second Amendment right recognized in Heller. The judgment of the

Cite as: 561 U. S. ____ (2010) Opinion of ALITO, J. Court of Appeals is reversed, and the case is remanded forfurther proceedings.

It is so ordered.