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742 OCTOBER TERM, 2009
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. 570, 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 District of Co lumbia law that banned the possession of handguns in the home. Chi cago (hereinafter City) and the village of Oak Park, a Chicago 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 actions, alleging that the City’s handgun ban has left them vulnerable to criminals. They sought a declaration that the ban and several related City ordinances violate the Second and Fourteenth Amendments. Rejecting petitioners’ argu ment that the ordinances are unconstitutional, 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 established 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, and III, concluding that the Fourteenth Amendment incorporates the Second Amendment right, recognized in Heller, to keep and bear arms for the purpose of self-defense. Pp. 753–758, 759–780. (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
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Syllabus
Amendment right. Chicago and Oak Park (municipal respondents) maintain that a right set out in the Bill of Rights applies to the States only when it is an indispensable attribute of any “ ‘civilized’ ” legal sys tem. If it is possible to imagine a civilized country that does not recog nize 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 handguns, they maintain that due process does not preclude such measures. P. 753. (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 Federal Gov ernment were not protected by the Clause, id., at 76. Under this nar row reading, the Court held that the Privileges or Immunities Clause protects only very limited rights. Id., at 79–80. Subsequently, the Court held that the Second Amendment applies only to the Federal Gov ernment in Cruikshank, supra, Presser, supra, and Miller, supra, the decisions on which the Seventh Circuit relied in this case. Pp. 754–758. (c) Whether the Second Amendment right to keep and bear arms ap plies to the States is considered in light of the Court’s precedents apply ing the Bill of Rights’ protections to the States. Pp. 759–766. (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 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 included 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 protection” 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 free dom of speech and press qualified, Gitlow v. New York, 268 U. S. 652,
Cite as: 561 U. S. 742 (2010) 745
Syllabus
628–629. It thus concluded that citizens must be permitted “to use [handguns] for the core lawful purpose of self-defense.” Id., at 630. Heller also clarifies that this right is “deeply rooted in this Nation’s history and tradition, ” Glucksberg, supra, at 721. Heller explored the right’s origins in English law and noted the esteem with which the right was regarded 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 understanding persisted in the years immediately following the Bill of Rights’ ratifica tion and is confirmed by the state constitutions of that era, which pro tected the right to keep and bear arms. Pp. 767–770. (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 neces sary to the Nation’s system of ordered liberty. Pp. 770–780. (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 authors 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 614–615. 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 reme dies 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 Contractors Assn., Inc. v. Pennsylvania, 458 U. S. 375, 389. In congressional debates on the proposed Amend ment, its legislative proponents in the 39th Congress referred to the right to keep and bear arms as a fundamental right deserving of protec tion. Evidence from the period immediately following the Amend ment’s ratification confirms that that right was considered fundamen tal. Pp. 770–778. (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 discrimi nation. If what municipal respondents mean is that the Second Amend ment should be singled out for special—and specially unfavorable—
746 McDONALD v. CHICAGO
Syllabus
treatment, the Court rejects the suggestion. The right to keep and bear arms must be regarded as a substantive guarantee, not a prohibi tion that could be ignored so long as the States legislated in an even handed manner. Pp. 778–780. 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. 758–759, 780–791. (a) Petitioners argue 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 Privileges or Immunities Clause in the Slaughter-House Cases because, for many dec ades, the Court has analyzed the question whether particular rights are protected against state infringement under the Fourteenth Amend ment’s Due Process Clause. Pp. 758–759. (b) Municipal respondents’ remaining arguments are rejected because 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 guaran tees. Pp. 780–787. (c) The dissents’ objections are addressed and rejected. Pp. 787–791. Justice Thomas agreed that the Fourteenth Amendment makes the Second Amendment right to keep and bear arms that was recognized in District of Columbia v. Heller, 554 U. S. 570, 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, Dun can v. Louisiana, 391 U. S. 145, 149, and “deeply rooted in this Nation’s history and tradition,” 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 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 interpreting this language, it is important to recall that constitutional provisions are “ ‘written to be understood by the voters.’ ” Heller, 554 U. S., at 576. The objective of this inquiry is to discern what “ordinary citizens” at the time of the Fourteenth Amendment’s ratification would have understood that Amendment’s Privileges or Im munities Clause to mean. Id., at 577. A survey of contemporary legal
748 McDONALD v. CHICAGO
Opinion of the Court
Justice Alito announced the judgment of the Court and
delivered the opinion of the Court with respect to Parts I,
II–A, II–B, II–D, and III, in which The Chief Justice, Jus-
Edmondson of Oklahoma, Thomas W. Corbett, Jr., of Pennsylvania, Pat rick C. Lynch of Rhode Island, Henry McMaster of South Carolina, Marty J. Jackley of South Dakota, Robert E. Cooper, Jr., of Tennessee, Mark L. Shurtleff of Utah, William C. Mims of Virginia, Robert M. McKenna of Washington, Darrell V. McGraw, Jr., of West Virginia, J. B. Van Hollen of Wisconsin, and Bruce A. Salzburg of Wyoming; for Academics for the Second Amendment by Joseph Edward Olson and David T. Hardy; for the American Center for Law and Justice by Jay Alan Sekulow, Stuart J. Roth, Colby M. May, James M. Henderson, Sr., and John P. Tuskey; for the American Civil Rights Union et al. by Peter J. Ferrara; for the Ameri can Legislative Exchange Council by Rick A. Haberman and K. Scott Hamilton; for Appellants from the Ninth Circuit Incorporation Case of Nordyke v. King et al. by Donald E. J. Kilmer, Jr., and Jason A. Davis; for Arms Keepers by Andrew T. Hyman; for the Buckeye Firearms Foun dation, Inc., et al. by L. Kenneth Hanson III; for the Calguns Foundation, Inc., by Erik S. Jaffe; for the Cato Institute et al. by M. Reed Hopper, Timothy Sandefur, Robert A. Levy, and Ilya Shapiro; for Constitutional Law Professors by Douglas T. Kendall, Elizabeth B. Wydra, and David H. Gans; for the Foundation for Moral Law by John A. Eidsmoe and Ben jamin D. DuPre´; for Gun Owners of America, Inc., et al. by William J. Olson, Herbert W. Titus, and John S. Miles; for the Heartland Institute by Nancy Lee Carlson; for the International Law Enforcement Educators and Trainers Association et al. by David B. Kopel; for Jews for the Preser vation of Firearms Ownership by Daniel L. Schmutter; for the Maryland Arms Collectors’ Association, Inc., by Don B. Kates; for the National Shooting Sports Foundation, Inc., by Lawrence G. Keane, Christopher P. Johnson, and Laurin B. Grollman; for the Paragon Foundation, Inc., by Paul M. Kienzle III; for Professors of Philosophy et al. by Marc James Ayers and Mr. Kates; for Rocky Mountain Gun Owners et al. by Steven J. Lechner; for Safari Club International by Douglas S. Burdin and Anna M. Seidman; for State Firearm Associations by James W. Hryekewicz; for State Legislators by John Parker Sweeney and T. Sky Woodward; for Thirty-Four California District Attorneys et al. by C. D. Michel, Glenn S. McRoberts, and Hillary J. Green; for Women State Legislators et al. by Sarah Anne Gervase and M. Carol Bambery; and for Senator Kay Bailey Hutchison et al. by Mr. Clement, Jeffrey S. Bucholtz, and Adam Conrad. Briefs of amici curiae urging affirmance were filed for the State of Illinois et al. by Lisa Madigan, Attorney General of Illinois, Michael A.
Cite as: 561 U. S. 742 (2010) 749
Opinion of the Court
tice Scalia, Justice Kennedy, and Justice Thomas join,
and an opinion with respect to Parts II–C, IV, and V, in
which The Chief Justice, Justice Scalia, and Justice
Kennedy join.
Two years ago, in District of Columbia v. Heller, 554 U. S.
570 (2008), we held that the Second Amendment protects the
Scodro, Solicitor General, Jane Elinor Notz, Deputy Solicitor General, and David A. Simpson, Assistant Attorney General, and by the Attorneys General for their respective States as follows: Douglas F. Gansler of Maryland and Anne Milgram of New Jersey; for American Cities et al. by Henry C. Su, Jerrold J. Ganzfried, Anita Alvarez, Paul A. Castiglione, Dennis J. Herrera, Jean Boler, Linda Meng, George A. Nilson, William R. Phelan, Jr., Randy Riddle, and Matthew D. Ruyak; for the Anti- Defamation League by Leonard M. Niehoff, Martin E. Karlinsky, Mark S. Finkelstein, Steven M. Freeman, and Steven C. Sheinberg; for the Asso ciation of Prosecuting Attorneys et al. by Clifford M. Sloan and Geoffrey M. Wyatt; for Historians on Early American Legal, Constitutional, and Pennsylvania History by Roderick M. Thompson; for the Oak Park Citi zens Committee for Handgun Control by Robert N. Hochman, Carter G. Phillips, Jeffrey T. Green, and Christopher G. Walsh, Jr.; for Professors of Criminal Justice by Elizabeth A. Ritvo, Amanda Buck Varella, and Albert W. Wallis; for Thirty-Four Professional Historians and Legal Histo rians by Matthew M. Shors; for the United States Conference of Mayors by Lawrence Rosenthal and John Daniel Reaves; for the Villages of Win netka and Skokie, Illinois, et al. by David T. Goldberg, Sean H. Donahue, Charles W. Thompson, Jr., and Katherine S. Janega; and for Representa tive Carolyn McCarthy et al. by Jennifer Milici and Christopher L. Hayes. Briefs of amici curiae were filed for the American Public Health Associ ation et al. by Julie D. Cantor and H. Philip Grossman; for the Board of Education of the City of Chicago et al. by Charles M. Dyke; for the Brady Center to Prevent Gun Violence et al. by A. Stephen Hut, Jr., Paul R. Q. Wolfson, D. Hien Tran, Jonathan E. Lowy, and Daniel R. Vice; for the Center for Constitutional Jurisprudence by Anthony T. Caso, John C. Eastman, and Edwin Meese III; for the Eagle Forum Education and Legal Defense Fund by Andrew L. Schlafly; for the Educational Fund to Stop Gun Violence by John E. Schreiber; for English/Early American Historians by Robert A. Goodin and Francine T. Radford; for the Goldwater Institute et al. by Clint Bolick, Nicholas C. Dranias, and Benjamin Barr; for His torians and Legal Scholars by Linda T. Coberly; for the Institute for Jus
Cite as: 561 U. S. 742 (2010) 751
Opinion of the Court
arms.” See Chicago, Ill., Journal of Proceedings of the City
Council, p. 10049 (Mar. 19, 1982). The Chicago petitioners
and their amici, however, argue that the handgun ban has
left them vulnerable to criminals. Chicago Police Depart
ment statistics, we are told, reveal that the City’s handgun
murder rate has actually increased since the ban was en
acted 1 and that Chicago residents now face one of the high
est murder rates in the country and rates of other violent
crimes that exceed the average in comparable cities.^2
Several of the Chicago petitioners have been the targets
of 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 Associations as Amici Curiae
20–21; Brief for State of Texas et al. as Amici Curiae 7–8.
Colleen Lawson is a Chicago resident whose home has been
targeted by burglars. “In Mrs. Lawson’s judgment, pos
sessing a handgun in Chicago would decrease her chances of
suffering serious injury or death should she ever be threat
ened again in her home.” 3 McDonald, Lawson, and the
other Chicago petitioners own handguns that they store out
side of the city limits, but they would like to keep their hand
guns in their homes for protection. See App. 16–19, 43–
(McDonald), 20–24 (C. Lawson), 19, 36 (Orlov), 20–21, 40
(D. Lawson).
(^1) See Brief for Heartland Institute as Amicus Curiae 6–7 (noting that
handgun murder rate per 100,000 persons 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 York” (internal quotation marks omitted)); see also Brief for International 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.
752 McDONALD v. CHICAGO
Opinion of the Court
After our decision in Heller, the Chicago petitioners and
two groups 4 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 re
lated Chicago ordinances violate the Second and Fourteenth
Amendments to the United States Constitution. Another
action challenging the Oak Park law was filed in the same
District Court by the National Rifle Association (NRA) and
two Oak Park residents. In addition, the NRA and others
filed a third action challenging the Chicago ordinances. All
three cases were assigned to the same District Judge.
The District Court rejected plaintiffs’ argument that the
Chicago and Oak Park laws are unconstitutional. See App.
83–84; NRA, Inc. v. Oak Park, 617 F. Supp. 2d 752, 754 (ND
Ill. 2008). The court noted that the Seventh Circuit had
“squarely upheld the constitutionality of a ban on handguns
a quarter century ago,” id., at 753 (citing Quilici v. Morton
Grove, 695 F. 2d 261 (CA7 1982)), and that Heller had explic
itly refrained from “opin[ing] on the subject of incorporation
vel non of the Second Amendment,” NRA, 617 F. Supp. 2d,
at 754. The court observed that a district judge has a “duty
to follow established precedent in the Court of Appeals to
which he or she is beholden, even though the logic of more
recent caselaw may point in a different direction.” Id.,
at 753.
The Seventh Circuit affirmed, relying on three 19th
century cases— United States v. Cruikshank, 92 U. S. 542
(1876), Presser v. Illinois, 116 U. S. 252 (1886), and Miller v.
Texas, 153 U. S. 535 (1894)—that were decided in the wake
of this Court’s interpretation of the Privileges or Immunities
Clause of the Fourteenth Amendment in the Slaughter-
House Cases, 16 Wall. 36 (1873). The Seventh Circuit de
scribed the rationale of those cases as “defunct” and recog
nized that they did not consider the question whether the
(^4) The Illinois State Rifle Association and the Second Amendment
Foundation, Inc.
754 McDONALD v. CHICAGO
Opinion of the Court
B
The Bill of Rights, including the Second Amendment, orig
inally applied only to the Federal Government. In Barron
ex rel. Tiernan v. Mayor of Baltimore, 7 Pet. 243 (1833), the
Court, in an opinion by Chief Justice Marshall, explained
that this question was “of great importance” but “not of
much difficulty.” Id., at 247. In less than four pages, the
Court firmly rejected the proposition that the first eight
Amendments operate as limitations on the States, holding
that they apply only to the Federal Government. See also
Lessee of Livingston v. Moore, 7 Pet. 469, 551–552 (1833)
(“[I]t is now settled that those amendments [in the Bill of
Rights] do not extend to the states”).
The constitutional Amendments adopted in the aftermath
of the Civil War fundamentally altered our country’s federal
system. The provision at issue in this case, § 1 of the Four
teenth Amendment, provides, among other things, that a
State may not abridge “the privileges or immunities of citi
zens of the United States” or deprive “any person of life,
liberty, or property, without due process of law.”
Four years after the adoption of the Fourteenth Amend
ment, 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, in
volved challenges to a Louisiana law permitting the creation
of a state-sanctioned monopoly on the butchering of animals
within the city of New Orleans. Justice Samuel Miller’s
opinion for the Court concluded that the Privileges or Im
munities 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 cre
ation of the Federal Government and that “the State govern
ments were created to establish and secure”—were not pro
tected by the Clause. Id., at 76.
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Opinion of the Court
In drawing a sharp distinction between the rights of fed
eral and state citizenship, the Court relied on two principal
arguments. First, the Court emphasized that the Four
teenth 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 of Article IV,
both of which refer to state citizenship.^5 (Emphasis added.)
Second, the Court stated that a contrary reading would “rad
ically 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 con
clude 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 Im
munities Clause protects such things as the right
“to come to the seat of government to assert any claim
[a citizen] may have upon that government, to transact
any business he may have with it, to seek its protection,
to share its offices, to engage in administering its func
tions... [and to] become a citizen of any State of the
Union by a bonaˆ fide residence therein, with the same
rights as other citizens of that State.” Id., at 79–80 (in
ternal quotation marks omitted).
(^5) The first sentence of the Fourteenth Amendment makes “[a]ll persons
born or naturalized in the United States and subject to the jurisdiction 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. ” (Empha sis added.)
Cite as: 561 U. S. 742 (2010) 757
Opinion of the Court
tutional scholars” that the opinion is “egregiously wrong”);
C. Black, A New Birth of Freedom 74–75 (1997).
Three years after the decision in the Slaughter-House
Cases, the Court decided Cruikshank, the first of the three
19th-century cases on which the Seventh Circuit relied. 92
U. S. 542. In that case, the Court reviewed convictions
stemming from the infamous Colfax Massacre in Louisiana
on Easter Sunday 1873. Dozens of blacks, many unarmed,
were slaughtered by a rival band of armed white men.^6
Cruikshank himself allegedly marched unarmed African-
American prisoners through the streets and then had them
summarily executed.^7 Ninety-seven men were indicted for
participating in the massacre, but only nine went to trial.
Six of the nine were acquitted of all charges; the remaining
three were acquitted of murder but convicted under the En
forcement Act of 1870, 16 Stat. 140, for banding and conspir
ing together to deprive their victims of various constitu
tional 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 de
pendent upon that instrument for its existence.” Id., at 553.
“The second amendment,” the Court continued, “declares
that it shall not be infringed; but this... means no more
than that it shall not be infringed by Congress.” Ibid.
“Our later decisions in Presser v. Illinois, 116 U. S. 252, 265
(^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) (1876); Lawrence, Civil Rights and Criminal Wrongs: The Mens Rea of Federal Civil Rights Crimes, 67 Tu lane L. Rev. 2113, 2153 (1993).
758 McDONALD v. CHICAGO
Opinion of Alito, J.
(1886), and Miller v. Texas, 153 U. S. 535, 538 (1894), reaf
firmed that the Second Amendment applies only to the Fed
eral Government.” Heller, 554 U. S., at 620, n. 23.
C
As previously noted, the Seventh Circuit concluded that
Cruikshank, Presser, and Miller doomed petitioners’ claims
at the Court of Appeals level. Petitioners argue, however,
that we should overrule those decisions and hold that the
right to keep and bear arms is one of the “privileges or im
munities of citizens of the United States.” In petitioners’
view, the Privileges or Immunities Clause protects all of the
rights set out in the Bill of Rights, as well as some others,
see Brief for Petitioners 10, 14, 15–21, but petitioners are
unable to identify the Clause’s full scope, Tr. of Oral Arg.
5–6, 8–11. Nor is there any consensus on that question
among the scholars who agree that the Slaughter-House
Cases’ interpretation is flawed. See Saenz, supra, at 522,
n. 1 (Thomas, J., dissenting).
We see no need to reconsider that interpretation here.
For many decades, the question of the rights protected by
the Fourteenth Amendment against state infringement has
been analyzed under the Due Process Clause of that Amend
ment 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 Cruik
shank, Presser, and Miller do not preclude us from consid
ering whether the Due Process Clause of the Fourteenth
Amendment makes the Second Amendment right binding on
the States. See Heller, 554 U. S., at 620, n. 23. None of
those cases “engage[d] in the sort of Fourteenth Amendment
inquiry required by our later cases.” Ibid. As explained
more fully below, Cruikshank, Presser, and Miller all pre
ceded the era in which the Court began the process of “selec
tive incorporation” under the Due Process Clause, and we
have never previously addressed the question whether the
760 McDONALD v. CHICAGO
Opinion of the Court
amson v. California, 332 U. S. 46 (1947); Betts v. Brady, 316
U. S. 455 (1942); Palko v. Connecticut, 302 U. S. 319 (1937);
Grosjean v. American Press Co., 297 U. S. 233 (1936); Powell
v. Alabama, 287 U. S. 45 (1932). While it was “possible that
some of the personal rights safeguarded by the first eight
Amendments against National action [might] also be safe
guarded against state action,” the Court stated, this was
“not because those rights are enumerated in the first eight
Amendments.” Twining, 211 U. S., at 99.
The Court used different formulations in describing the
boundaries of due process. For example, in Twining, the
Court referred to “immutable principles of justice which in
here in the very idea of free government which no member
of the Union may disregard.” Id., at 102 (internal quota
tion 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 with
out just compensation, the Court described the right as
“a principle of natural equity, recognized by all temperate
and civilized governments, from a deep and universal sense
of its justice.” Chicago, B. & Q. R. Co., supra, at 238. Simi
larly, 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
Cite as: 561 U. S. 742 (2010) 761
Opinion of the Court
countries outside the domain of the common law.” Twining,
supra, at 113.
Fourth, the Court during this era was not hesitant to hold
that a right set out in the Bill of Rights failed to meet the
test for inclusion within the protection of the Due Process
Clause. The Court found that some such rights qualified.
See, e. g., Gitlow v. New York, 268 U. S. 652, 666 (1925) (free
dom of speech and press); Near v. Minnesota ex rel. Olson,
283 U. S. 697 (1931) (same); Powell, supra (assistance of coun
sel in capital cases); De Jonge, supra (freedom of assembly);
Cantwell v. Connecticut, 310 U. S. 296 (1940) (free exercise
of religion). But others did not. See, e. g., Hurtado, supra
(grand jury indictment requirement); Twining, supra (privi
lege 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 protec
tion or remedies afforded against state infringement some
times differed from the protection or remedies provided
against abridgment by the Federal Government. To give
one example, in Betts the Court held that, although the Sixth
Amendment required the appointment of counsel in all fed
eral criminal cases in which the defendant was unable to re
tain an attorney, the Due Process Clause required appoint
ment of counsel in state criminal proceedings only where
“want of counsel in [the] particular case... result[ed] in a
conviction lacking in... fundamental fairness.” 316 U. S.,
at 473. Similarly, in Wolf v. Colorado, 338 U. S. 25 (1949),
the Court held that the “core of the Fourth Amendment”
was implicit in the concept of ordered liberty and thus
“enforceable against the States through the Due Process
Clause” but that the exclusionary rule, which applied in fed
eral cases, did not apply to the States. Id., at 27–28, 33.
An alternative theory regarding the relationship between
the Bill of Rights and § 1 of the Fourteenth Amendment was
