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(Bench Opinion) OCTOBER TERM, 2009 1
Syllabus
NOTE: Where it is feasible, a syllabus (headnote) will be released, as is being done in connection with this case, at the time the opinion is issued. The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.
SUPREME COURT OF THE UNITED STATES
Syllabus
M CDONALD ET AL. v. CITY OF CHICAGO, ILLINOIS,
ET AL.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE SEVENTH CIRCUIT
No. 08–1521. Argued March 2, 2010—Decided June 28, 2010
Two years ago, in District of Columbia v. Heller , 554 U. S. ___, this Court held that the Second Amendment protects the right to keep and bear arms for the purpose of self-defense and struck down a Dis- trict of Columbia law that banned the possession of handguns in the home. Chicago (hereinafter City) and the village of Oak Park, a Chi- cago suburb, have laws effectively banning handgun possession by almost all private citizens. After Heller , petitioners filed this federal suit against the City, which was consolidated with two related ac- tions, alleging that the City’s handgun ban has left them vulnerable to criminals. They sought a declaration that the ban and several re- lated City ordinances violate the Second and Fourteenth Amend- ments. Rejecting petitioners’ argument that the ordinances are un- constitutional, the court noted that the Seventh Circuit previously had upheld the constitutionality of a handgun ban, that Heller had explicitly refrained from opining on whether the Second Amendment applied to the States, and that the court had a duty to follow estab- lished Circuit precedent. The Seventh Circuit affirmed, relying on three 19th-century cases— United States v. Cruikshank , 92 U. S. 542, Presser v. Illinois , 116 U. S. 252, and Miller v. Texas , 153 U. S. 535— which were decided in the wake of this Court’s interpretation of the Fourteenth Amendment’s Privileges or Immunities Clause in the Slaughter-House Cases, 16 Wall. 36.
Held: The judgment is reversed, and the case is remanded.
567 F. 3d 856, reversed and remanded. JUSTICE ALITO delivered the opinion of the Court with respect to Parts I, II–A, II–B, II–D, III–A, and III–B, concluding that the Four-
2 M CDONALD v. CHICAGO
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teenth Amendment incorporates the Second Amendment right, rec- ognized in Heller, to keep and bear arms for the purpose of self- defense. Pp. 5–9, 11–19, 19–33. (a) Petitioners base their case on two submissions. Primarily, they argue that the right to keep and bear arms is protected by the Privi- leges or Immunities Clause of the Fourteenth Amendment and that the Slaughter-House Cases’ narrow interpretation of the Clause should now be rejected. As a secondary argument, they contend that the Fourteenth Amendment’s Due Process Clause incorporates the Second Amendment right. Chicago and Oak Park (municipal respon- dents) maintain that a right set out in the Bill of Rights applies to the States only when it is an indispensable attribute of any “ ‘civi- lized’ ” legal system. If it is possible to imagine a civilized country that does not recognize the right, municipal respondents assert, that right is not protected by due process. And since there are civilized countries that ban or strictly regulate the private possession of hand- guns, they maintain that due process does not preclude such meas- ures. Pp. 4–5. (b) The Bill of Rights, including the Second Amendment, originally applied only to the Federal Government, not to the States, see, e.g., Barron ex rel. Tiernan v. Mayor of Baltimore , 7 Pet. 243, 247, but the constitutional Amendments adopted in the Civil War’s aftermath fundamentally altered the federal system. Four years after the adop- tion of the Fourteenth Amendment, this Court held in the Slaughter- House Cases , that the Privileges or Immunities Clause protects only those rights “which owe their existence to the Federal government, its National character, its Constitution, or its laws,” 16 Wall., at 79, and that the fundamental rights predating the creation of the Fed- eral Government were not protected by the Clause, id. , at 76. Under this narrow reading, the Court held that the Privileges or Immunities Clause protects only very limited rights. Id., at 79–80. Subse- quently, the Court held that the Second Amendment applies only to the Federal Government in Cruikshank, 92 U. S. 542, Presser, 116 U. S. 252, and Miller, 153 U. S. 535, the decisions on which the Sev- enth Circuit relied in this case. Pp. 5–9. (c) Whether the Second Amendment right to keep and bear arms applies to the States is considered in light of the Court’s precedents applying the Bill of Rights’ protections to the States. Pp. 11–19. (1) In the late 19th century, the Court began to hold that the Due Process Clause prohibits the States from infringing Bill of Rights pro- tections. See, e.g., Hurtado v. California , 110 U. S. 516. Five fea- tures of the approach taken during the ensuing era are noted. First, the Court viewed the due process question as entirely separate from the question whether a right was a privilege or immunity of national
4 M CDONALD v. CHICAGO
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U. S. 145, 149, or, as the Court has said in a related context, whether it is “deeply rooted in this Nation’s history and tradition,” Washing- ton v. Glucksberg, 521 U. S. 702, 721. Heller points unmistakably to the answer. Self-defense is a basic right, recognized by many legal systems from ancient times to the present, and the Heller Court held that individual self-defense is “the central component” of the Second Amendment right. 554 U. S., at ___, ___. Explaining that “the need for defense of self, family, and property is most acute” in the home, ibid ., the Court found that this right applies to handguns because they are “the most preferred firearm in the nation to ‘keep’ and use for protection of one’s home and family,” id ., at ___, –. It thus concluded that citizens must be permitted “to use [handguns] for the core lawful purpose of self-defense.” Id ., at ___. Heller also clarifies that this right is “deeply rooted in this Nation’s history and tradi- tions, ” Glucksberg, supra, at 721. Heller explored the right’s origins in English law and noted the esteem with which the right was re- garded during the colonial era and at the time of the ratification of the Bill of Rights. This is powerful evidence that the right was re- garded as fundamental in the sense relevant here. That understand- ing persisted in the years immediately following the Bill of Rights’ ratification and is confirmed by the state constitutions of that era, which protected the right to keep and bear arms. Pp. 19–22. (2) A survey of the contemporaneous history also demonstrates clearly that the Fourteenth Amendment’s Framers and ratifiers counted the right to keep and bear arms among those fundamental rights necessary to the Nation’s system of ordered liberty. Pp. 22–33. (i) By the 1850’s, the fear that the National Government would disarm the universal militia had largely faded, but the right to keep and bear arms was highly valued for self-defense. Abolitionist au- thors wrote in support of the right, and attempts to disarm “Free- Soilers” in “Bloody Kansas,” met with outrage that the constitutional right to keep and bear arms had been taken from the people. After the Civil War, the Southern States engaged in systematic efforts to disarm and injure African Americans, see Heller , supra, at ___. These injustices prompted the 39th Congress to pass the Freedmen’s Bureau Act of 1866 and the Civil Rights Act of 1866 to protect the right to keep and bear arms. Congress, however, ultimately deemed these legislative remedies insufficient, and approved the Fourteenth Amendment. Today, it is generally accepted that that Amendment was understood to provide a constitutional basis for protecting the rights set out in the Civil Rights Act. See General Building Contrac- tors Assn., Inc. v. Pennsylvania , 458 U. S. 375, 389. In Congressional debates on the proposed Amendment, its legislative proponents in the 39th Congress referred to the right to keep and bear arms as a fun-
Cite as: 561 U. S. ____ (2010) 5
Syllabus
damental right deserving of protection. Evidence from the period immediately following the Amendment’s ratification confirms that that right was considered fundamental. Pp. 22–31. (ii) Despite all this evidence, municipal respondents argue that Members of Congress overwhelmingly viewed §1 of the Fourteenth Amendment as purely an antidiscrimination rule. But while §1 does contain an antidiscrimination rule, i.e., the Equal Protection Clause, it can hardly be said that the section does no more than prohibit dis- crimination. If what municipal respondents mean is that the Second Amendment should be singled out for special—and specially unfavor- able—treatment, the Court rejects the suggestion. The right to keep and bear arms must be regarded as a substantive guarantee, not a prohibition that could be ignored so long as the States legislated in an evenhanded manner. Pp. 30–33. JUSTICE ALITO, joined by THE CHIEF JUSTICE, JUSTICE SCALIA, and JUSTICE K ENNEDY, concluded, in Parts II–C, IV, and V, that the Four- teenth Amendment’s Due Process Clause incorporates the Second Amendment right recognized in Heller. Pp. 10–11, 33–44. (a) Petitioners argue that that the Second Amendment right is one of the “privileges or immunities of citizens of the United States.” There is no need to reconsider the Court’s interpretation of the Privi- leges or Immunities Clause in the Slaughter-House Cases because, for many decades, the Court has analyzed the question whether par- ticular rights are protected against state infringement under the Fourteenth Amendment’s Due Process Clause. Pp. 10–11. (b) Municipal respondents’ remaining arguments are rejected be- cause they are at war with Heller ’s central holding. In effect, they ask the Court to hold the right to keep and bear arms as subject to a different body of rules for incorporation than the other Bill of Rights guarantees. Pp. 33–40. (c) The dissents’ objections are addressed and rejected. Pp. 41–44. JUSTICE THOMAS agreed that the Fourteenth Amendment makes the Second Amendment right to keep and bear arms that was recog- nized in District of Columbia v. Heller , 554 U. S. ___, fully applicable to the States. However, he asserted, there is a path to this conclusion that is more straightforward and more faithful to the Second Amendment’s text and history. The Court is correct in describing the Second Amendment right as “fundamental” to the American scheme of ordered liberty, Duncan v. Louisiana , 391 U. S. 145, 149, and “deeply rooted in this Nation’s history and traditions,” Washington v. Glucksberg , 521 U. S. 702, 721. But the Fourteenth Amendment’s Due Process Clause, which speaks only to “process,” cannot impose the type of substantive restraint on state legislation that the Court asserts. Rather, the right to keep and bear arms is enforceable
