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(Slip Opinion) OCTOBER TERM, 2009
Syllabus
NOTE: Where it is feasible, a syllabus (headnote) will be released, as isbeing 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 beenprepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.
SUPREME COURT OF THE UNITED STATES
Syllabus
MCDONALD ET AL. v. CITY OF CHICAGO, ILLINOIS,
ET AL.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT
No. 08–1521. Argued March 2, 2010—Decided June 28, 2010
Two years ago, in District of Columbia v. Heller, 554 U. S. ___, this Court held that the Second Amendment protects the right to keep and bear arms for the purpose of self-defense and struck down a Dis-trict of Columbia law that banned the possession of handguns in thehome. Chicago (hereinafter City) and the village of Oak Park, a Chi-cago suburb, have laws effectively banning handgun possession byalmost all private citizens. After Heller, petitioners filed this federalsuit 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 previouslyhad 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 theFourteenth 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 toParts I, II–A, II–B, II–D, III–A, and III–B, concluding that the Four-
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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, theyargue that the right to keep and bear arms is protected by the Privi-leges or Immunities Clause of the Fourteenth Amendment and thatthe Slaughter-House Cases’ narrow interpretation of the Clause should now be rejected. As a secondary argument, they contend thatthe Fourteenth Amendment’s Due Process Clause incorporates theSecond Amendment right. Chicago and Oak Park (municipal respon-dents) maintain that a right set out in the Bill of Rights applies tothe 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 aftermathfundamentally 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 ImmunitiesClause 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 armsapplies 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 DueProcess 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
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citizenship. See Twining v. New Jersey, 211 U. S. 78, 99. Second, the Court explained that the only rights due process protected against state infringement were those “of such a nature that they are in-cluded in the conception of due process of law.” Ibid. Third, some cases during this era “can be seen as having asked . . . if a civilizedsystem could be imagined that would not accord the particular pro-tection” asserted therein. Duncan v. Louisiana, 391 U. S. 145, 149,
n.
14. Fourth, the Court did not hesitate to hold that a Bill of Rights guarantee failed to meet the test for Due Process Clause protection, finding, e.g., that freedom of speech and press qualified, Gitlow v. New York, 268 U. S. 652, 666; Near v. Minnesota ex rel. Olson, 283
U.
S. 697, but the grand jury indictment requirement did not, Hur-tado, supra. Finally, even when such a right was held to fall withinthe conception of due process, the protection or remedies affordedagainst state infringement sometimes differed from those providedagainst abridgment by the Federal Government. Pp. 11–13.
(2)
Justice Black championed the alternative theory that §1 ofthe Fourteenth Amendment totally incorporated all of the Bill ofRights’ provisions, see, e.g., Adamson v. California, 332 U. S. 46, 71– 72 (Black, J., dissenting), but the Court never has embraced that the-ory. Pp. 13–15.
(3)
The Court eventually moved in the direction advocated byJustice Black, by adopting a theory of selective incorporation bywhich the Due Process Clause incorporates particular rights con-tained in the first eight Amendments. See, e.g., Gideon v. Wainright, 372 U. S. 335, 341. These decisions abandoned three of the charac-teristics of the earlier period. The Court clarified that the governingstandard is whether a particular Bill of Rights protection is funda-mental to our Nation’s particular scheme of ordered liberty and sys-tem of justice. Duncan, supra, at 149, n. 14. The Court eventuallyheld that almost all of the Bill of Rights’ guarantees met the re-quirements for protection under the Due Process Clause. The Court also held that Bill of Rights protections must “all . . . be enforced against the States under the Fourteenth Amendment according to the same standards that protect those personal rights against federal encroachment.” Malloy v. Hogan, 378 U. S. 1, 10. Under this ap-proach, the Court overruled earlier decisions holding that particular Bill of Rights guarantees or remedies did not apply to the States.See, e.g., Gideon, supra, which overruled Betts v. Brady, 316 U. S.
455. Pp. 15–19.
(d)
The Fourteenth Amendment makes the Second Amendment right to keep and bear arms fully applicable to the States. Pp. 19–33.
(1)
The Court must decide whether that right is fundamental tothe Nation’s scheme of ordered liberty, Duncan v. Louisiana, 391
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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 SecondAmendment right. 554 U. S., at ___, ___. Explaining that “the needfor 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 ofthe 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 demonstratesclearly that the Fourteenth Amendment’s Framers and ratifiers counted the right to keep and bear arms among those fundamentalrights 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 keepand 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 constitutionalright to keep and bear arms had been taken from the people. After the Civil War, the Southern States engaged in systematic efforts todisarm 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 theright to keep and bear arms. Congress, however, ultimately deemedthese 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 Congressionaldebates on the proposed Amendment, its legislative proponents in the 39th Congress referred to the right to keep and bear arms as a fun-
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damental right deserving of protection. Evidence from the periodimmediately following the Amendment’s ratification confirms thatthat right was considered fundamental. Pp. 22–31.
(ii)
Despite all this evidence, municipal respondents argue thatMembers 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 inan evenhanded manner. Pp. 30–33.
JUSTICE ALITO, joined by THE CHIEF JUSTICE, JUSTICE SCALIA, and JUSTICE KENNEDY, concluded, in Parts II–C, IV, and V, that the Four-teenth Amendment’s Due Process Clause incorporates the SecondAmendment right recognized in Heller. Pp. 10–11, 33–44.
(a)
Petitioners argue that that the Second Amendment right is oneof 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 theFourteenth 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, theyask the Court to hold the right to keep and bear arms as subject to adifferent 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 imposethe type of substantive restraint on state legislation that the Court asserts. Rather, the right to keep and bear arms is enforceable
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against the States because it is a privilege of American citizenship recognized by §1 of the Fourteenth Amendment, which provides, inter alia: “No State shall make or enforce any law which shall abridge theprivileges or immunities of citizens of the United States.” In inter-preting this language, it is important to recall that constitutionalprovisions are “ ‘written to be understood by the voters.’ ” Heller, 554
U. S., at ___. The objective of this inquiry is to discern what “ordi-nary citizens” at the time of the Fourteenth Amendment’s ratificationwould have understood that Amendment's Privileges or ImmunitiesClause to mean. Ibid. A survey of contemporary legal authorities plainly shows that, at that time, the ratifying public understood the Clause to protect constitutionally enumerated rights, including the right to keep and bear arms. Pp. 1–34.
ALITO, J., announced the judgment of the Court and delivered theopinion of the Court with respect to Parts I, II–A, II–B, II–D, III–A, andIII–B, in which ROBERTS, C. J., and SCALIA, KENNEDY, and THOMAS, JJ., joined, and an opinion with respect to Parts II–C, IV, and V, in which ROBERTS, C. J., and SCALIA and KENNEDY, JJ., join. SCALIA, J., filed a concurring opinion. THOMAS, J., filed an opinion concurring in part andconcurring in the judgment. STEVENS, J., filed a dissenting opinion. BREYER, J., filed a dissenting opinion, in which GINSBURG and SO-TOMAYOR, JJ., joined.
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Opinion of the Court
NOTICE: This opinion is subject to formal revision before publication in thepreliminary print of the United States Reports. Readers are requested tonotify the Reporter of Decisions, Supreme Court of the United States, Wash-ington, D. C. 20543, of any typographical or other formal errors, in orderthat corrections may be made before the preliminary print goes to press.
SUPREME COURT OF THE UNITED STATES
No. 08–1521
OTIS MCDONALD, ET AL., PETITIONERS v. CITY OF
CHICAGO, ILLINOIS, ET AL.
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE SEVENTH CIRCUIT
[June 28, 2010]
JUSTICE ALITO announced the judgment of the Court and delivered the opinion of the Court with respect toParts I, II–A, II–B, II–D, III–A, and III–B, in which THE CHIEF JUSTICE, JUSTICE SCALIA, JUSTICE KENNEDY, and JUSTICE THOMAS join, and an opinion with respect to Parts II–C, IV, and V, in which THE CHIEF JUSTICE, JUSTICE SCALIA, and JUSTICE KENNEDY join.
Two years ago, in District of Columbia v. Heller, 554
U. S. ___ (2008), we held that the Second Amendment protects the right to keep and bear arms for the purpose of self-defense, and we struck down a District of Columbia law that banned the possession of handguns in the home.The city of Chicago (City) and the village of Oak Park, a Chicago suburb, have laws that are similar to the District of Columbia’s, but Chicago and Oak Park argue that their laws are constitutional because the Second Amendment has no application to the States. We have previously heldthat most of the provisions of the Bill of Rights apply with full force to both the Federal Government and the States. Applying the standard that is well established in our caselaw, we hold that the Second Amendment right is fully
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applicable to the States.
I Otis McDonald, Adam Orlov, Colleen Lawson, and David Lawson (Chicago petitioners) are Chicago residents who would like to keep handguns in their homes for self-defense but are prohibited from doing so by Chicago’s firearms laws. A City ordinance provides that “[n]o person shall . . . possess . . . any firearm unless such person is the holder of a valid registration certificate for such firearm.”Chicago, Ill., Municipal Code §8–20–040(a) (2009). The Code then prohibits registration of most handguns, thus effectively banning handgun possession by almost all private citizens who reside in the City. §8–20–050(c).Like Chicago, Oak Park makes it “unlawful for any personto possess . . . any firearm,” a term that includes “pistols, revolvers, guns and small arms . . . commonly known as handguns.” Oak Park, Ill., Municipal Code §§27–2–1 (2007), 27–1–1 (2009).Chicago enacted its handgun ban to protect its residents“from the loss of property and injury or death from fire-arms.” See Chicago, Ill., Journal of Proceedings of theCity Council, p. 10049 (Mar. 19, 1982). The Chicago peti-tioners and their amici, however, argue that the handgun ban has left them vulnerable to criminals. Chicago PoliceDepartment statistics, we are told, reveal that the City’s handgun murder rate has actually increased since the ban was enacted1 and that Chicago residents now face one of the highest murder rates in the country and rates of otherviolent crimes that exceed the average in comparable cities.2
—————— 1See Brief for Heartland Institute as Amicus Curiae 6–7 (noting thathandgun murder rate was 9.65 in 1983 and 13.88 in 2008). 2Brief for Buckeye Firearms Foundation, Inc., et al. as Amici Curiae 8–9 (“In 2002 and again in 2008, Chicago had more murders than anyother city in the U. S., including the much larger Los Angeles and New
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Several of the Chicago petitioners have been the targetsof 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 fromdrug dealers. App. 16–17; Brief for State Firearm Associa-tions as Amici Curiae 20–21; Brief for State of Texas et al. as Amici Curiae 7–8. Colleen Lawson is a Chicago resi-dent whose home has been targeted by burglars. “In Mrs. Lawson’s judgment, possessing a handgun in Chicago would decrease her chances of suffering serious injury ordeath should she ever be threatened again in her home.”3 McDonald, Lawson, and the other Chicago petitioners own handguns that they store outside of the city limits, but they would like to keep their handguns in their homes for protection. See App. 16–19, 43–44 (McDonald), 20–24 (C.Lawson), 19, 36 (Orlov), 20–21, 40 (D. Lawson).
After our decision in Heller, the Chicago petitioners and two groups4 filed suit against the City in the United StatesDistrict Court for the Northern District of Illinois. Theysought a declaration that the handgun ban and several related Chicago ordinances violate the Second and Four-teenth Amendments to the United States Constitution. Another action challenging the Oak Park law was filed in the same District Court by the National Rifle Association (NRA) and two Oak Park residents. In addition, the NRA and others filed a third action challenging the Chicago
—————— York” (internal quotation marks omitted)); see also Brief for Interna-tional Law Enforcement Educators and Trainers Association et al. as Amici Curiae 17–21, and App. A (providing comparisons of Chicago’srates of assault, murder, and robbery to average crime rates in 24 otherlarge cities). 3Brief for Women State Legislators et al. as Amici Curiae 2. 4The Illinois State Rifle Association and the Second Amendment Foundation, Inc.
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ordinances. All three cases were assigned to the sameDistrict Judge.
The District Court rejected plaintiffs’ argument that theChicago and Oak Park laws are unconstitutional. See App. 83–84; NRA, Inc. v. Oak Park, 617 F. Supp. 2d 752, 754 (ND Ill. 2008). The court noted that the Seventh Circuit had “squarely upheld the constitutionality of a ban on handguns a quarter century ago,” id., at 753 (citing Quilici v. Morton Grove, 695 F. 2d 261 (CA7 1982)), and that Heller had explicitly refrained from “opin[ing] on thesubject of incorporation vel non of the Second Amend-ment,” NRA, 617 F. Supp. 2d, at 754. The court observed that a district judge has a “duty to follow established precedent in the Court of Appeals to which he or she is beholden, even though the logic of more recent caselaw may point in a different direction.” Id., at 753.
The Seventh Circuit affirmed, relying on three 19th-century cases—United States v. Cruikshank, 92 U. S. 542 (1876), Presser v. Illinois, 116 U. S. 252 (1886), and Miller
v. Texas, 153 U. S. 535 (1894)—that were decided in thewake of this Court’s interpretation of the Privileges orImmunities Clause of the Fourteenth Amendment in the Slaughter-House Cases, 16 Wall. 36 (1873). The Seventh Circuit described the rationale of those cases as “defunct” and recognized that they did not consider the question whether the Fourteenth Amendment’s Due Process Clause incorporates the Second Amendment right to keep andbear arms. NRA, Inc. v. Chicago, 567 F. 3d 856, 857, 858 (2009). Nevertheless, the Seventh Circuit observed that it was obligated to follow Supreme Court precedents that have “direct application,” and it declined to predict how the Second Amendment would fare under this Court’s modern “selective incorporation” approach. Id., at 857– 858 (internal quotation marks omitted).
We granted certiorari. 557 U. S. ___ (2009).
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II
A
Petitioners argue that the Chicago and Oak Park laws violate the right to keep and bear arms for two reasons.Petitioners’ primary submission is that this right is amongthe “privileges or immunities of citizens of the UnitedStates” and that the narrow interpretation of the Privi-leges or Immunities Clause adopted in the Slaughter-House Cases, supra, should now be rejected. As a secon-dary argument, petitioners contend that the FourteenthAmendment’s Due Process Clause “incorporates” theSecond Amendment right.
Chicago and Oak Park (municipal respondents) main-tain that a right set out in the Bill of Rights applies to theStates only if that right is an indispensable attribute of any “‘civilized’” legal system. Brief for Municipal Respon-dents 9. If it is possible to imagine a civilized country thatdoes not recognize the right, the municipal respondentstell us, then that right is not protected by due process. Ibid. And since there are civilized countries that ban or strictly regulate the private possession of handguns, the municipal respondents maintain that due process does not preclude such measures. Id., at 21–23. In light of theparties’ far-reaching arguments, we begin by recounting this Court’s analysis over the years of the relationship between the provisions of the Bill of Rights and the States.
B The Bill of Rights, including the Second Amendment, originally applied only to the Federal Government. In Barron ex rel. Tiernan v. Mayor of Baltimore, 7 Pet. 243 (1833), the Court, in an opinion by Chief Justice Marshall,explained that this question was “of great importance” but “not of much difficulty.” Id., at 247. In less than four pages, the Court firmly rejected the proposition that the first eight Amendments operate as limitations on the
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States, holding that they apply only to the Federal Gov-ernment. See also Lessee of Livingston v. Moore, 7 Pet. 469, 551–552 (1833) (“[I]t is now settled that those amend-ments [in the Bill of Rights] do not extend to the states”).
The constitutional Amendments adopted in the after-math of the Civil War fundamentally altered our country’sfederal system. The provision at issue in this case, §1 of the Fourteenth Amendment, provides, among other things, that a State may not abridge “the privileges or immunities of citizens of the United States” or deprive“any person of life, liberty, or property, without due proc-ess of law.”
Four years after the adoption of the Fourteenth Amendment, this Court was asked to interpret the Amendment’s reference to “the privileges or immunities of citizens of the United States.” The Slaughter-House Cases, supra, involved challenges to a Louisiana law per-mitting the creation of a state-sanctioned monopoly on the butchering of animals within the city of New Orleans.Justice Samuel Miller’s opinion for the Court concludedthat the Privileges or Immunities Clause protects only those rights “which owe their existence to the Federalgovernment, its National character, its Constitution, or its laws.” Id., at 79. The Court held that other fundamental rights—rights that predated the creation of the Federal Government and that “the State governments were cre-ated to establish and secure”—were not protected by the Clause. Id., at 76.
In drawing a sharp distinction between the rights offederal and state citizenship, the Court relied on two principal arguments. First, the Court emphasized that the Fourteenth Amendment’s Privileges or Immunities Clause spoke of “the privileges or immunities of citizens of the United States,” and the Court contrasted this phrasingwith the wording in the first sentence of the Fourteenth Amendment and in the Privileges and Immunities Clause
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of Article IV, both of which refer to state citizenship.5 (Emphasis added.) Second, the Court stated that a con-trary reading would “radically chang[e] the whole theory of the relations of the State and Federal governments toeach other and of both these governments to the people,”and the Court refused to conclude that such a change had been made “in the absence of language which expresses such a purpose too clearly to admit of doubt.” Id., at 78. Finding the phrase “privileges or immunities of citizens of the United States” lacking by this high standard, the Court reasoned that the phrase must mean somethingmore limited.
Under the Court’s narrow reading, the Privileges orImmunities Clause protects such things as the right
“to come to the seat of government to assert any claim
[a citizen] may have upon that government, to trans-
act any business he may have with it, to seek its pro-
tection, to share its offices, to engage in administering
its functions . . . [and to] become a citizen of any State
of the Union by a bonâ fide residence therein, with the
same rights as other citizens of that State.” Id., at
79–80 (internal quotation marks omitted).
Finding no constitutional protection against state intru-sion of the kind envisioned by the Louisiana statute, the Court upheld the statute. Four Justices dissented. Jus-tice Field, joined by Chief Justice Chase and JusticesSwayne and Bradley, criticized the majority for reducingthe Fourteenth Amendment’s Privileges or Immunities
—————— 5The first sentence of the Fourteenth Amendment makes “[a]ll per-sons born or naturalized in the United States and subject to the juris-diction thereof . . . citizens of the United States and of the State wherein they reside.” (Emphasis added.) The Privileges and Immunities Clause of Article IV provides that “[t]he Citizens of each State shall be entitledto all Privileges and Immunities of Citizens in the several States.” (Emphasis added.)
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Clause to “a vain and idle enactment, which accomplished nothing, and most unnecessarily excited Congress and thepeople on its passage.” Id., at 96; see also id., at 104. Justice Field opined that the Privileges or ImmunitiesClause protects rights that are “in their nature . . . funda-mental,” including the right of every man to pursue his profession without the imposition of unequal or discrimi-natory restrictions. Id., at 96–97. Justice Bradley’s dis-sent observed that “we are not bound to resort to implica-tion . . . to find an authoritative declaration of some of the most important privileges and immunities of citizens of the United States. It is in the Constitution itself.” Id., at
118. Justice Bradley would have construed the Privilegesor Immunities Clause to include those rights enumerated in the Constitution as well as some unenumerated rights. Id., at 119. Justice Swayne described the majority’s nar-row reading of the Privileges or Immunities Clause as“turn[ing] . . . what was meant for bread into a stone.” Id., at 129 (dissenting opinion).
Today, many legal scholars dispute the correctness ofthe narrow Slaughter-House interpretation. See, e.g., Saenz v. Roe, 526 U. S. 489, 522, n. 1, 527 (1999) (THOMAS, J., dissenting) (scholars of the Fourteenth Amendment agree “that the Clause does not mean what the Court saidit meant in 1873”); Amar, Substance and Method in theYear 2000, 28 Pepperdine L. Rev. 601, 631, n. 178 (2001)(“Virtually no serious modern scholar—left, right, andcenter—thinks that this [interpretation] is a plausible reading of the Amendment”); Brief for Constitutional Law Professors as Amici Curiae 33 (claiming an “overwhelming consensus among leading constitutional scholars” that the opinion is “egregiously wrong”); C. Black, A New Birth of Freedom 74–75 (1997).
Three years after the decision in the Slaughter-House Cases, the Court decided Cruikshank, the first of the three 19th-century cases on which the Seventh Circuit relied.
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92 U. S. 542. In that case, the Court reviewed convictions stemming from the infamous Colfax Massacre in Louisi-ana on Easter Sunday 1873. Dozens of blacks, many unarmed, were slaughtered by a rival band of armed white men.6 Cruikshank himself allegedly marched unarmedAfrican-American prisoners through the streets and then had them summarily executed.7 Ninety-seven men wereindicted for participating in the massacre, but only ninewent to trial. Six of the nine were acquitted of all charges;the remaining three were acquitted of murder but con-victed under the Enforcement Act of 1870, 16 Stat. 140, for banding and conspiring together to deprive their victims of various constitutional rights, including the right to bear arms.8
The Court reversed all of the convictions, includingthose relating to the deprivation of the victims’ right tobear 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 “inany manner dependent upon that instrument for its exis-tence.” Id., at 553. “The second amendment,” the Court continued, “declares that it shall not be infringed; but this. . . means no more than that it shall not be infringed byCongress.” Ibid. “Our later decisions in Presser v. Illinois, 116 U. S. 252, 265 (1886), and Miller v. Texas, 153 U. S. 535, 538 (1894), reaffirmed that the Second Amendment applies only to the Federal Government.” Heller, 554
U. S., at ___, n. 23 (slip op., at 48, n. 23).
—————— 6See C. Lane, The Day Freedom Died 265–266 (2008); see also Brieffor NAACP Legal Defense & Education Fund, Inc., as Amicus Curiae 3, and n. 2. 7See Lane, supra, at 106. 8 United States v. Cruikshank, 92 U. S. 542, 544–545 (statement ofthe case), 548, 553 (opinion of the Court) (1875); Lawrence, Civil Rightsand Criminal Wrongs: The Mens Rea of Federal Civil Rights Crimes, 67Tulane L. Rev. 2113, 2153 (1993).
Opinion of the Court
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Opinion of ALITO, J.
C As previously noted, the Seventh Circuit concluded that Cruikshank, Presser, and Miller doomed petitioners’claims at the Court of Appeals level. Petitioners argue,however, that we should overrule those decisions and hold that the right to keep and bear arms is one of the “privi-leges or immunities of citizens of the United States.” In petitioners’ view, the Privileges or Immunities Clause protects all of the rights set out in the Bill of Rights, as well as some others, see Brief for Petitioners 10, 14, 15–21, but petitioners are unable to identify the Clause’s fullscope, Tr. of Oral Arg. 5–6, 8–11. Nor is there any consen-sus on that question among the scholars who agree that the Slaughter-House Cases’ interpretation is flawed. See Saenz, supra, at 522, n. 1 (THOMAS, J., dissenting).We see no need to reconsider that interpretation here. For many decades, the question of the rights protected bythe Fourteenth Amendment against state infringement has been analyzed under the Due Process Clause of that Amendment and not under the Privileges or Immunities Clause. We therefore decline to disturb the Slaughter-House holding.At the same time, however, this Court’s decisions in Cruikshank, Presser, and Miller do not preclude us fromconsidering whether the Due Process Clause of the Four-teenth Amendment makes the Second Amendment rightbinding on the States. See Heller, 554 U. S., at ___, n. 23 (slip op., at 48, n. 23). None of those cases “engage[d] inthe sort of Fourteenth Amendment inquiry required by our later cases.” Ibid. As explained more fully below, Cruikshank, Presser, and Miller all preceded the era inwhich the Court began the process of “selective incorpo-ration” under the Due Process Clause, and we have never previously addressed the question whether the right tokeep and bear arms applies to the States under that theory.
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Indeed, Cruikshank has not prevented us from holdingthat other rights that were at issue in that case are bind-ing on the States through the Due Process Clause. In Cruikshank, the Court held that the general “right of the people peaceably to assemble for lawful purposes,” which is protected by the First Amendment, applied only against the Federal Government and not against the States. See 92 U. S., at 551–552. Nonetheless, over 60 years later the Court held that the right of peaceful assembly was a “fun-damental righ[t] . . . safeguarded by the due process clause of the Fourteenth Amendment.” De Jonge v. Oregon, 299
U. S. 353, 364 (1937). We follow the same path here andthus consider whether the right to keep and bear armsapplies to the States under the Due Process Clause.
D 1
In the late 19th century, the Court began to considerwhether the Due Process Clause prohibits the States frominfringing rights set out in the Bill of Rights. See Hurtado
v. California, 110 U. S. 516 (1884) (due process does not require grand jury indictment); Chicago, B. & Q. R. Co. v. Chicago, 166 U. S. 226 (1897) (due process prohibits States from taking of private property for public use with-out just compensation). Five features of the approach taken during the ensuing era should be noted.
First, the Court viewed the due process question as entirely separate from the question whether a right was aprivilege or immunity of national citizenship. See Twin-ing v. New Jersey, 211 U. S. 78, 99 (1908).
Second, the Court explained that the only rights pro-tected against state infringement by the Due Process Clause were those rights “of such a nature that they are included in the conception of due process of law.” Ibid. See also, e.g., Adamson v. California, 332 U. S. 46 (1947); Betts v. Brady, 316 U. S. 455 (1942); Palko v. Connecticut,
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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 rightssafeguarded by the first eight Amendments against Na-tional action [might] also be safeguarded against state action,” the Court stated, this was “not because those rights are enumerated in the first eight Amendments.” Twining, supra, at 99.
The Court used different formulations in describing 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 mem-ber of the Union may disregard.” 211 U. S., at 102 (inter-nal quotation marks omitted). In Snyder v. Massachu-setts, 291 U. S. 97, 105 (1934), the Court spoke of rights that are “so rooted in the traditions and conscience of our people as to be ranked as fundamental.” And in Palko, the Court famously said that due process protects those rights that are “the very essence of a scheme of ordered liberty” and essential to “a fair and enlightened system of justice.” 302 U. S., at 325.
Third, in some cases decided during this era the Court“can be seen as having asked, when inquiring into whether some particular procedural safeguard was re-quired of a State, if a civilized system could be imagined that would not accord the particular protection.” Duncan
v.
Louisiana, 391 U. S. 145, 149, n. 14 (1968). Thus, in holding that due process prohibits a State from taking private property without just compensation, the Courtdescribed the right as “a principle of natural equity, rec-ognized by all temperate and civilized governments, from a deep and universal sense of its justice.” Chicago, B. &
Q.
R. Co., supra, at 238. Similarly, the Court found 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
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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. Con-necticut, 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 pro-vided against abridgment by the Federal Government. To give one example, in Betts the Court held that, althoughthe Sixth Amendment required the appointment of coun-sel in all federal criminal cases in which the defendant was unable to retain an attorney, the Due Process Clause required appointment of counsel in state criminal proceed-ings only where “want of counsel in [the] particular case. . . result[ed] in a conviction lacking in . . . fundamentalfairness.” 316 U. S., at 473. Similarly, in Wolf v. Colo-rado, 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-
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tween the Bill of Rights and §1 of the Fourteenth Amend-ment 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 Four-teenth Amendment espoused the view that the Amend-ment made the Bill of Rights applicable to the States and, in so doing, overruled this Court’s decision in Barron.9 Adamson, 332 U. S., at 72 (dissenting opinion).10 None-
—————— 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 Amend-ment “are chiefly defined in the first eight amendments to the Consti-tution of the United States.” Cong. Globe, 42d Cong., 1st Sess., App. 84 (1871). Finally, Representative Thaddeus Stevens, the political leaderof the House and acting chairman of the Joint Committee on Recon-struction, stated during the debates on the Amendment that “the Constitution limits only the action of Congress, and is not a limitationon the States. This amendment supplies that defect, and allows Con-gress 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 incorpo-rate 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] understand-ing” of the Fourteenth Amendment). 10The municipal respondents and some of their amici dispute thesignificance of these statements. They contend that the phrase “privi-
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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. Wainright, 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 Four-teenth Amendment in 1866–67, 68 Ohio St. L. J. 1509, 1600 (2007)).Scholars have also disputed the total incorporation theory. See, e.g., Fairman, Does the Fourteenth Amendment Incorporate the Bill 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 re-spond 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., Wilden-thal, supra, at 1564–1565, 1590; Hardy, Original Popular Understand-ing 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 aca-demic 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” (empha-sis 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 unenumer-ated 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) (free-dom from unreasonable searches and seizures).
With respect to the Fifth Amendment, see Benton v. Maryland, 395
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tections remain unincorporated.13
Finally, the Court abandoned “the notion that the Four-teenth Amendment applies to the States only a watered-down, subjective version of the individual guarantees of the Bill of Rights,” stating that it would be “incongruous” to apply different standards “depending on whether 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 prohibi-tion on excessive fines.
We never have decided whether the Third Amendment or the Eighth Amendment’s prohibition of excessive fines applies to the States through the Due Process Clause. See Browning-Ferris Industries of Vt., Inc. v. Kelco Disposal, Inc., 492 U. S. 257, 276, n. 22 (1989) (declining to decide whether the excessive-fines protection applies to the States); 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.
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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 unani-mous 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 unani-mous jury verdicts in state criminal trials). But that ruling was the result of an unusual division among the Justices, not an endorsement of the two-track approach to incorporation. In Apodaca, eight 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 Jus-tices took the view that the Sixth Amendment does not require unani-mous jury verdicts in either federal or state criminal trials, Apodaca, 406 U. S., at 406 (plurality opinion), and four other Justices took theview that the Sixth Amendment requires unanimous jury verdicts in federal and state criminal trials, id., at 414–415 (Stewart, J., dissent-ing); Johnson, supra, at 381–382 (Douglas, J., dissenting). Justice Powell’s concurrence in the judgment broke the tie, and he concludedthat the Sixth Amendment requires juror unanimity in federal, but not state, cases. Apodaca, therefore, does not undermine the well-established rule that incorporated Bill of Rights protections apply identically to the States and the Federal Government. See Johnson, supra, at 395–396 (Brennan, J., dissenting) (footnote omitted) (“In 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”).
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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 his-tory and tradition,” Washington v. Glucksberg, 521 U. S. 702, 721 (1997) (internal quotation marks omitted).
A Our decision in Heller points unmistakably to the an-swer. Self-defense is a basic right, recognized by many legal systems from ancient times to the present day,15 and in Heller, we held that individual self-defense is “the central component” of the Second Amendment right. 554
U. S., at ___ (slip op., at 26); see also id., at ___ (slip op., at56) (stating that the “inherent right of self-defense has been central to the Second Amendment right”). Explain-ing that “the need for defense of self, family, and property is most acute” in the home, ibid., we found that this right applies to handguns because they are “the most preferred
—————— 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. Black-stone, Commentaries on the Laws of England 182 (reprint 1992).
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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 quintessen-tial self-defense weapon”). Thus, we concluded, citizens must be permitted “to use [handguns] for the core lawful purpose of self-defense.” Id., at ___ (slip op., at 58).
Heller makes it clear that this right is “deeply rooted 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 self-defense, 554 U. S., at ___–___ (slip op., at 19–20), and that by 1765, Blackstone was able to assert that the right to keep and bear arms was “one of the fundamental rights of Englishmen,” id., at ___ (slip op., at 20).
Blackstone’s assessment was shared by the 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 sub-jects, to whom the privilege of possessing arms is expressly recognized by the Bill of Rights, and, who live in a province where the law 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 Fed-eral Farmer III (Oct. 10, 1787), in 2 The Complete Anti-Federalist 234, 242 (H. Storing ed. 1981)); see also Federal Farmer: An Additional Number of Letters to the Republi-can, Letter XVIII (Jan. 25, 1788), in 17 Documentary History of the Ratification of the Constitution 360, 362–363 (J. Kaminski & G. Saladino eds. 1995); S. Halbrook, The Founders’ Second Amendment 171–278 (2008). Fed-eralists responded, not by arguing that the right was insufficiently important to warrant protection but 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
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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, de-scribed the right to keep and bear arms as “the true palla-dium of liberty” and explained that prohibitions on the right would place liberty “on the brink of destruction.” 1 Blackstone’s Commentaries, Editor’s App. 300 (S. Tuckered. 1803); see also W. Rawle, A View of the Constitution of the United States of America, 125–126 (2d ed. 1829) (re-print 2009); 3 J. Story, Commentaries on the 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 popu-lar concern, but the right to keep and bear arms washighly valued for purposes of self-defense. See M. Doub-ler, Civilian in Peace, Soldier in War 87–90 (2003); Amar,Bill of Rights 258–259. Abolitionist authors wrote in support of the right. See L. Spooner, The Unconstitution-ality of Slavery 66 (1860) (reprint 1965); J. Tiffany, A Treatise on the Unconstitutionality of American Slavery 117–118 (1849) (reprint 1969). And when attempts were
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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 pro-tested 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 freed-man, 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 interfer-ence 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) (de-scribing a Kentucky law); E. McPherson, The Political History of the United States of America During the Period of Reconstruction 40 (1871) (describing a Florida law); id., at 33 (describing an Alabama law).18
Throughout the South, armed parties, often consisting of ex-Confederate soldiers serving in the state militias,forcibly took firearms from newly freed slaves. In the first session of the 39th Congress, Senator Wilson told his colleagues: “In Mississippi rebel State forces, men who were in the rebel armies, are traversing the State, 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 Amend-ment19—contained numerous examples of such abuses.See, e.g., Joint Committee on Reconstruction, H. R. Rep.No. 30, 39th Cong., 1st Sess., pt. 2, pp. 219, 229, 272, pt. 3,
—————— 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
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