MCDONALD v. CHICAGO
Several suits were filed against Chicago and Oak Park in Illinois challenging their gun bans after the Supreme Court issued its opinion in District of Columbia v. Heller. In that case, the Supreme Court held that a District of Columbia handgun ban violated the Second Amendment. There, the Court reasoned that the law in question was enacted under the authority of the federal government and, thus, the Second Amendment was applicable. Here, plaintiffs argued that the Second Amendment should also apply to the states. The district court dismissed the suits. On appeal, the U.S. Court of Appeals for the Seventh Circuit affirmed.
- Brief for the National Shooting Sports Foundation, Inc. as Amicus Curiae In Support of Petitioners
- Brief Amicus Curiae of the Heartland Institute In Support of Petitioners
- Brief of Amicus Curiae Institute for Justice In Support of Petitioners
- Brief of Amicus Curiae Jews for the Preservation of Firearms Ownership In Support of Petitioners
- Brief of the Paragon Foundation, Inc. as Amicus Curiae In Support of Petitioners
- Brief of Professors of Philosophy, Criminology, Law And Other Fields as Amici Curiae In Support of Petitioners
- Amicus Curiae Brief of Rocky Mountain Gun Owners And National Association for Gun Rights In Support of Petitioners
- Brief for State Firearm Associations as Amici Curiae In Support of Petitioners
- Brief of Amici Curiae State Legislators In Support of Petitioners
- Brief of Amicae Curiae Women State Legislators And Academics In Support of Petitioners
- Brief for Respondents the National
- Brief of Thirty-four California District Attorneys; Eight Nevada District Attorneys; Graham County, Arizona, Former Sheriff Richard Mack; Mendocino County, California, Sheriff Thomas D. Allman; Tehama County, California, Sheriff Clay D. Parker; California
- Brief of Amici Curiae American Cities, Cook County, Illinois And Police Chiefs In Support of Respondents
- Brief of Historians On Early American Legal, Constitutional And Pennsylvania History as Amici Curiae In Support of Respondent City of Chicago
- Brief for English/early American Historians as Amici Curiae In Support of Respondents
- Brief of Law Professor And Students as Amici Curiae In Support of Respondents
- Brief for Organizations Committed To Protecting the Public’s Health, Safety, And Well-being as Amici Curiae In Support of Respondents
- Brief of the States of Texas, Ohio, Arkansas, Georgia, Alabama, Alaska, Arizona, Colorado, Florida, Idaho, Indiana, Kansas, Kentucky, Louisiana, Maine, Michigan, Minnesota, Mississippi, Missouri, Montana, Nebraska, Nevada, New Hampshire, New Mexico, North
- Amicus Curiae Brief of the American Center for Law And Justice In Support of Petitioners
- Brief of Arms Keepers as Amicus Curiae In Support of Petitioners
- Brief of Buckeye Firearms Foundation Inc. And United States Concealed Carry Association as Amici Curiae Supporting Petitioners
- Brief for the Calguns Foundation, Inc. as Amicus Curiae In Support of Petitioners
- Brief of Amicus Curiae Foundation for Moral Law, In Support of Petitioners
- Brief for the Goldwater Institute, Scharf-norton Center for Constitutional Government, And Wyoming Liberty Group as Amici Curiae Supporting Petitioners
Does the Second Amendment apply to the states because it is incorporated by the Fourteenth Amendment's Privileges and Immunities or Due Process clauses and thereby made applicable to the states?
Legal provision: U.S. Constitution, Amendment 2
The Supreme Court reversed the Seventh Circuit, holding that the Fourteenth Amendment makes the Second Amendment right to keep and bear arms for the purpose of self-defense applicable to the states. With Justice Samuel A. Alito writing for the majority, the Court reasoned that rights that are "fundamental to the Nation's scheme of ordered liberty" or that are "deeply rooted in this Nation's history and tradition" are appropriately applied to the states through the Fourteenth Amendment. The Court recognized in Heller that the right to self-defense was one such "fundamental" and "deeply rooted" right. The Court reasoned that because of its holding in Heller, the Second Amendment applied to the states. Here, the Court remanded the case to the Seventh Circuit to determine whether Chicago's handgun ban violated an individual's right to keep and bear arms for self-defense.
Justice Alito, writing in the plurality, specified that the Due Process Clause of the Fourteenth Amendment incorporates the Second Amendment right recognized in Heller. He rejected Justice Clarence Thomas's separate claim that the Privileges or Immunities Clause of the Fourteenth Amendment more appropriately incorporates the Second Amendment against the states. Alito stated that the Court's decision in the Slaughterhouse Cases -- rejecting the use of the Privileges or Immunities Clause for the purpose of incorporation -- was long since decided and the appropriate avenue for incorporating rights was through the Due Process Clause.
Justice Antonin Scalia concurred. He agreed with the Court's opinion, but wrote separately to disagree with Justice John Paul Stevens' dissent. Justice Clarence Thomas concurred and concurred in the judgment. He agreed that the Fourteenth Amendment incorporates the Second Amendment against the states, but disagreed that the Due Process Clause was the appropriate mechanism. Instead, Justice Thomas advocated that the Privileges or Immunities Clause was the more appropriate avenue for rights incorporation. Justice John Paul Stevens dissented. He disagreed that the Fourteenth Amendment incorporates the Second Amendment against the states. He argued that owning a personal firearm was not a "liberty" interest protected by the Due Process Clause. Justice Stephen G. Breyer, joined by Justices Ruth Bader Ginsburg and Sonia Sotomayor, also dissented. He argued that there is nothing in the Second Amendment's "text, history, or underlying rationale" that characterizes it as a "fundamental right" warranting incorporation through the Fourteenth Amendment.
ORAL ARGUMENT OF ALAN GURA ON BEHALF OF THE PETITIONERS
Chief Justice John G. Roberts: We'll hear argument first this morning in Case 08-1521, McDonald v. The City of Chicago.
Mr. Gura: Mr. Chief Justice, and may it please the Court: Although Chicago's ordinances cannot survive the faithful application of due process doctrines, there is an even simpler, more essential reason for reversing the lower court's judgment.
The Constitution's plain text, as understood by the people that ratified it, mandates this result.
In 1868, our nation made a promise to the McDonald family; they and their descendants would henceforth be American citizens, and with American citizenship came the guarantee enshrined in our Constitution that no State could make or enforce any law which shall abridge the privileges or immunities of American citizenship.
The rights so guaranteed were not trivial.
The Civil War was not fought because States were attacking people on the high seas or blocking access to the Bureau of Engraving and Printing.
The rights secured by the Fourteenth Amendment were understood to include the fundamental rights honored by any free government and the personal guarantees of the--
Chief Justice John G. Roberts: Of course, this argument is contrary to the Slaughter-House Cases, which have been the law for 140 years.
It might be simpler, but it's a big -- it's a heavy burden for you to carry to suggest that we ought to overrule that decision.
Mr. Gura: --Your Honor, the Slaughter-House Cases should not have any stare decisis effect before the Court.
The Court has always found that when a case is extremely wrong, when there is a great consensus that it was simply not decided correctly, especially in a constitutional matter, it has less force.
Justice Sonia Sotomayor: What injustice has -- has been caused by it that we have to remedy?
Meaning States have relied on having no grand juries; States have relied on not having civil trials in certain money cases; they have relied on regulating the use of firearms based on us, the Court, not incorporating the Privileges and Immunities Clause in the way that you identify it.
Mr. Gura: State--
Justice Sonia Sotomayor: What -- in which ways has ordered liberty been badly affected?
Mr. Gura: --Justice Sotomayor, States may have grown accustomed to violating the rights of American citizens, but that does not bootstrap those violations into something that is constitutional.
Justice Ruth Bader Ginsburg: Are you saying that the rights -- if you could clarify your conception of privileges and immunities.
Am I right in thinking that to keep and bear arms would be included even if we had no Second Amendment, as you envision privileges and immunities?
Mr. Gura: Justice Ginsburg, that is correct.
The framers and the public understood the term--
Justice Ruth Bader Ginsburg: But -- just tell us the dimensions of what it is.
I mean, we have the eight amendments, so I know you say that's included.
Keep and bear arms would be included even absent the Second Amendment.
What unenumerated rights would we be declaring privileges and immunities under your conception of it?
Mr. Gura: --Although it's impossible to give a full list of all the unenumerated rights that might be protected by the Privileges and Immunities Clause, just as it's impossible to do so under the Due Process Clause, at least with respect to the Privileges and Immunities Clause we have wonderful historical guideposts.
Justice Antonin Scalia: Mr. Gura, do you think it's at all easier to bring the Second Amendment under the Privileges and Immunities Clause than it is to bring it under our established law of substantive due process?
Mr. Gura: --It's--
Justice Antonin Scalia: Is it easier to do it under privileges and immunities than it is under substantive due process?
Mr. Gura: --It's easier in terms, perhaps, of -- of the text and history, the original public understanding of--
Justice Antonin Scalia: No, no.
I'm not talking about whether -- whether the Slaughter-House Cases were right or wrong.
I'm saying, assuming we give, you know, the Privileges and Immunities Clause your definition, does that make it any easier to get the Second Amendment adopted with respect to the States?
Mr. Gura: --Justice Scalia, I suppose the answer to that would be no, because--
Justice Antonin Scalia: And if the answer is no, why are you asking us to overrule 150, 140 years of prior law, when -- when you can reach your result under substantive due -- I mean, you know, unless you're bucking for a -- a place on some law school faculty--
Mr. Gura: --No.
I have left law school some time ago, and this is not an attempt to -- to return.
Justice Antonin Scalia: Well, I mean, what you argue is the darling of the professoriate, for sure, but it's also contrary to 140 years of our jurisprudence.
Why do you want to undertake that burden instead of just arguing substantive due process?
Which, as much as I think it's wrong, I have -- even I have acquiesced in it.
Mr. Gura: Justice Scalia, we would be extremely happy if the Court reverses the lower court based on the substantive due process theory that we argued in the Seventh Circuit.
And, indeed, had the Seventh Circuit accepted our substantive due process theory, which was our primary theory in the court below, we might not be here, or perhaps we would be here in a different posture.
Justice Ruth Bader Ginsburg: But that -- that court does not have the prerogative to overturn any of this Court's decisions, and I think it said -- said as much.
So it was kind of a pass-through in the court of appeals.
But I really would like you to answer the question that you didn't have an opportunity to finish answering, and that is: What other enumerated rights?
What does the privileges and immunities of United States citizenship embrace?
Mr. Gura: Of the unenumerated rights, Justice Ginsburg?
Justice Ruth Bader Ginsburg: Yes.
Mr. Gura: Well, the framers clearly used language that to them meant rights beyond those guaranteed in the first eight amendments.
And whenever they spoke about those unenumerated rights, they gave some concrete examples.
So I think that there might be two categories of unenumerated rights if a claim were before the court under that provision.
If a right is, for example, the sort of right that was mentioned in the Civil Rights Act of 1866, the piece of legislation enacted by a supermajority of Congress, where the Congress said, over President Johnson's veto, here are the rights of American citizenship, and they are -- they listed: To make and enforce contracts; to sue, be parties, and give evidence; to inherit, purchase, lease, sell, hold, and convey real and personal property.
That's the sort of right that would be easy to find because there is a contemporaneous source for telling us--
Justice Ruth Bader Ginsburg: Even though -- even though a large portion of the population at that time didn't have those rights?
Mr. Gura: --The large -- the population at the time that did not have those rights needed their protection, primarily in the South, which is why the Civil Rights Act--
Justice Ruth Bader Ginsburg: No, throughout -- throughout the nation at the time.
Mr. Gura: --I'm sorry.
Justice Ruth Bader Ginsburg: Did married women at that time across the nation have the right to contract, to hold property, to sue and be sued?
Mr. Gura: Married women were considered citizens of the United States, just like children were considered citizens.
However, the law did not always protect people fully, and we've made great strides in this country giving a greater level of protection to -- to certain rights.
We understand certain rights better today than we did 140 years ago, and the fact that First Amendment rights weren't fully respected, Second Amendment rights weren't always respected, Fourth Amendment rights were not always understood well--
Justice Ruth Bader Ginsburg: Does it work just one way?
I mean, if the notion is that these are principles that any free society would adopt, well, a lot of free societies have rejected the right to keep and bear arms.
Mr. Gura: --As we mentioned -- as we mentioned in our brief, this Court in Benton v. Maryland decided that henceforth American history and tradition are important to consider what rights are protected in this country.
It's true that our friends overseas who have more or less civilized, free societies don't respect rights to the same level that we do.
For example, England, which is a free society, has a monarchy.
They have hereditary lords in parliament.
They don't have First Amendment protection.
Justice Ruth Bader Ginsburg: But this -- then it's not one expression of this unenumerated rights, natural rights, or the rights that any free society -- basic to a free society.
So you -- you have to trim your definition.
It's not basic to any free society.
Mr. Gura: As understood by the people who ratified the Fourteenth Amendment.
It's not a free-flowing license, necessarily, for judges to announce unenumerated rights.
However, to the extent that we have unenumerated rights which the framers and ratifiers didn't literally understand, they nonetheless left us guideposts that we can--
Justice Antonin Scalia: Well, what about rights rooted in the traditions and conscience of our people?
Would -- would that do the job?
Mr. Gura: --Yes.
Justice Antonin Scalia: That happens to be the test we have used under substantive due process.
Mr. Gura: That's correct and, as Judge O'Scannlain--
Justice Antonin Scalia: Yes.
Mr. Gura: --in the Ninth Circuit observed in the Nordyke decision, the Slaughter-House dissenters seemed to arrive at the same point, perhaps, that this Court did in the Glucksberg case.
Justice John Paul Stevens: Mr. Gura, can I ask you the same question Justice Ginsburg asked about: What if there were no Second Amendment?
You say the right would still be protected under the Privileges and Immunities Clause.
What about -- would it also be protected under substantive due process if there were no Second Amendment?
Mr. Gura: It would be, Your Honor.
Justice John Paul Stevens: Because of the -- the importance of the right to protection -- and would that apply to the entire scope of the Second Amendment or just the right to keep the gun, a homeowner's right to keep a gun for self-protection against intruders into the home, under the -- without the Second Amendment, just the Liberty Clause?
Mr. Gura: --The Second Amendment is not so limited and neither is the right to arms, even outside the Second--
Justice John Paul Stevens: I'm assuming we don't have a Second Amendment for purposes of the substantive due process analysis.
I'm asking you what is the scope of the right to own a gun that is protected by the Liberty Clause of the Fourteenth Amendment?
Is it just the right to have it at -- at home, or is the right to parade around the streets with guns?
Mr. Gura: --An unenumerated right to arms in the absence of the Second Amendment would be, perhaps -- probably identical to that secured by the Second Amendment, because the Second Amendment codified the understanding of that right that people have historically had in the country.
So there would not be a difference between the right to arms if it were a part of the Second Amendment or--
Justice Samuel Alito: Well, I thought your--
Chief Justice John G. Roberts: In -- in that context, is your position that the rights that are incorporated as essential to the concept of ordered liberty, do they bring all of our decisions with them?
When you say the First Amendment is covered, does that mean New York Times v. Sullivan is incorporated as well?
Or is it only some lesser version of the incorporated right?
Mr. Gura: --With respect to the substantive due process argument that we're making?
Chief Justice John G. Roberts: Yes.
Mr. Gura: We are not challenging -- we are not the party that's before the Court that is challenging anything that has gone on before in terms of substantive due process.
We believe that those cases were by and large decided appropriately, and if the Court wishes to reconsider any of them for some reason, it -- that has really nothing to do--
Justice Anthony Kennedy: No, I understood the Chief Justice's question -- maybe I misunderstood it, but my understanding of the question as important is this: Under incorporation by reference, the States are bound by the rights in all -- with all of the refinements and sophistication with which we interpret them for the Federal Government.
It's the same.
You don't just apply the core of the right.
You apply all of the right as it is elaborated by the cases.
Is -- is that same consequence -- does that same consequence follow if we adopt the privileges and immunities interpretation that you are urging upon us?
Mr. Gura: --Yes, Your Honor, because--
Justice Stephen G. Breyer: Okay.
How does that work?
I think that would be useful for either you or Mr. Clement, if you've thought this through.
Is this right different from others?
Mr. Gura: --Well--
Justice Stephen G. Breyer: There are two ways.
One is that -- look at -- all you have to do is look at the briefs.
Look at the statistics.
You know, one side says a million people killed by guns.
Chicago says that their -- their gun law has saved hundreds, including -- and they have statistics -- including lots of women in domestic cases.
And the other side disputes it.
This is a highly statistical matter.
Without incorporation, it's decided by State legislatures; with, it's decided by Federal judges.
Now, think of this, too: That when you have the First Amendment, or some of the other amendments, there's always a big area where it's free speech versus a whole lot of things, but not often free speech versus life.
When it's free speech versus life, we very often decide in favor of life.
Here every case will be on one side guns, on the other side human life.
Statistics, balancing life versus guns.
How are Federal judges in your opinion, rather than legislatures in the States in a Federal system -- how are Federal judges supposed to carry this out?
I want to see where we're going.
Mr. Gura: --Federal judges should carry this out in the same way that was announced in this Court's decision in Heller.
Justice Stephen G. Breyer: Heller, I didn't think, explained that with great -- I was dissenting, though.
I didn't think it explained it with total clarity, but that's a dissenter's view.
Mr. Gura: --Heller stood for the proposition that some activities are within the core boundaries of a right, and so long as people wish to do something that is literally understood to be a part of the boundaries of the right, it is to be protected, and--
Justice Stephen G. Breyer: Let me be specific, suppose Chicago says, look, by banning handguns not in the hills, not hunting, nothing like that, nothing outside the city -- in the city, we save several hundred human lives every year.
And the other side says, we don't think it is several hundred, and, moreover, that doesn't matter.
How do you decide the case?
Mr. Gura: --We decide that by looking, not to which side has the better statistics, but rather to what the framers said in the Constitution, because that policy choice was made for us in the Constitution.
Justice Stephen G. Breyer: You're saying they can have -- no matter what, that the City just can't have guns even if they're saving hundreds of lives -- they can't ban them.
Mr. Gura: --The City cannot ban guns that are within the common use as protected by the right to arms.
Justice Antonin Scalia: There's a lot of statistical disagreement on whether the Miranda rule saves lives or not, whether it results in the release of dangerous people who have confessed to their crime, but the confession can't be used.
We don't -- we don't resolve questions like that on the basis of statistics, do we?
Mr. Gura: That's correct, Justice Scalia, and as your opinion--
Justice Antonin Scalia: Well, why would this one be resolved on the basis of statistics?
If there's a constitutional right, we find what the minimum constitutional right is, and everything above that is up to the States.
Mr. Gura: --That--
Justice Antonin Scalia: If they want to have, you know -- I think we mentioned in Heller concealed carry laws.
I mean, those are -- those are matters that we didn't decide in Heller.
And you may have a great deal of divergence from State to State.
And on that, I suppose, you would do statistics, wouldn't you?
Or the legislature would.
Mr. Gura: --Well, Your Honor, we do agree that statistics are not important to determine whether or not a right--
Justice Antonin Scalia: For the judges.
For the judges.
Mr. Gura: --That's right.
Justice Antonin Scalia: But they would be for the legislatures.
Mr. Gura: A legislature should respect the fact that there is a constitutional right at issue, and this Court in footnote 27 in Heller explained that under the Carolene Products paradigm, footnote 4, rights enumerated in the Constitution are entitled to a greater measure of respect.
And if I may reserve the remainder of my time for rebuttal.
Chief Justice John G. Roberts: Thank you, counsel.
ORAL ARGUMENT OF PAUL D. CLEMENT ON BEHALF OF RESPONDENTS NATIONAL RIFLE ASSOCIATION, INC., ET AL., IN SUPPORT OF THE PETITIONERS
Mr. Clement: Mr. Chief Justice, and may it please the Court: Under this court's existing jurisprudence, the case for incorporating the Second Amendment through the Due Process Clause is remarkably straightforward.
The Second Amendment, like the First and the Fourth, protects a fundamental preexisting right that is guaranteed to the people--
Justice John Paul Stevens: Mr. Clement, would you comment on Justice Kennedy's question about whether that necessarily incorporates every jot and tittle of the Federal right into the Federal, keeping in mind that with regard to trial by jury in criminal cases, there's a difference.
It's nonunanimous juries.
Why does this incorporation have to be every bit as broad as the Second Amendment itself?
Mr. Clement: --Well, Justice Stevens, I think in that respect the Sixth Amendment is a bit of an outlier.
For most of the provisions and as far as I know all of the substantive provisions of the Bill of Rights that have been incorporated against the States, this Court has incorporated basically all the jurisprudence that comes with that.
Justice John Paul Stevens: Well, what is the last case in which we incorporated a substantive provision?
Mr. Clement: Well, I guess maybe it's Mapp, is one way of thinking about it.
Justice John Paul Stevens: Mapp was a procedural case.
Mr. Clement: --I could quibble about that--
Justice John Paul Stevens: Mapp was a Fourth Amendment case.
I'm asking you cases involving incorporation of substantive rights, as opposed to procedural rights.
Mr. Clement: --Well--
Justice John Paul Stevens: The procedural cases come in under the due process language, but the substantive cases comes under the word "liberty", and "liberty" picks up the First Amendment and so forth.
And I take it it's the word "liberty" that picks up the Second Amendment.
And if it does, why does it have to be precisely the same scope as the Second Amendment?
Mr. Clement: --Well, sure.
We could quibble whether -- I think of the Fourth Amendment as more of a substantive guarantee.
But in any event, with respect to certainly like the First Amendment guarantees that this Court has incorporated through the liberty -- the liberty subclause, if you will, of the Due Process Clause, there too I think this Court -- certainly I understand this Court's jurisprudence as incorporating all of the cases that go along with that.
So New York Times v. Sullivan is the law of all 50 States, et cetera, et cetera.
And I think that in a sense the virtue of that approach is probably even more apparent with the Second Amendment than it might be with some other jurisprudence--
Justice Antonin Scalia: I guess we -- I guess we have applied substantive due process with regard to the necessity of permitting homosexual conduct and with respect to the necessity of permitting abortion on demand.
We have not adopted a more rigid rule for the Federal Government than we have adopted for the States in either of those instances, have we?
Mr. Clement: --That's also right, Your Honor, though I guess I would stress that I think that, whatever the debate's about substantive due process when it comes to unenumerated rights, I think the gist of this Court's incorporation doctrine is that the textual provisions of the Bill of Rights stand in a favored position with respect to incorporation.
And so Glucksberg has its discussion about the standard for unenumerated rights, but it starts that off by saying of course the Bill of Rights are different.
And, of course, the Bill of Rights, I think, as I read this Court's selective--
Justice John Paul Stevens: They stand in a favored position, but we've never said had to be literally all the way down the line, or we couldn't have done the criminal jury -- nonunanimous criminal jury case.
Mr. Clement: --Again, though, it's interesting that the one place that I -- that I see where the Court has not effectively translated all the case law is one of the procedural rights, the Sixth Amendment criminal jury right.
And I think with respect to the substantive rights -- and I think the alliance here or the similarity between the First and the Second Amendments are very stark in this respect -- this Court has incorporated essentially not just the amendment and not just the right, but all of the jurisprudence as well.
And, you know, I would -- just to dwell for a moment if I'd could on the -- on the First and the Second Amendment, I think it's striking, very striking, that if this Court's not going to reconsider its Privileges or Immunities Clause jurisprudence, the Cruikshank case actually stands as very good precedent for incorporating the Second Amendment, just as it was the precedent this Court relied on in incorporating the assembly and petition rights of the First Amendment in the De Jonge case.
And the reason is Cruikshank -- the whole reason that Cruikshank said the First and Second Amendments aren't privileges of national citizenship is because they were preexisting rights that didn't depend on the Constitution for their existence.
That seems to me to be a pretty good working definition of what a fundamental right is, one that is so fundamental and basic that it preexisted our very Constitution.
And so it's not surprising that De Jonge cited Cruikshank as favorable precedent for incorporation.
I think the exact same logic would apply to the Second Amendment here, and, as I say, I do think the consequence of that, certainly the most logical consequence, would be to carry over the jurisprudence under the Second Amendment.
Now, right now, that's not carrying over a lot, right?
That's carrying over the Heller case.
But I think in a way that points up to the fact that one of the virtues of incorporation is that, because the Miller decision of this Court sowed confusion, we don't have substantial Second Amendment jurisprudence.
And I would think that it's going to be difficult enough to develop the Second Amendment jurisprudence that you wouldn't want to make it more difficult by having to develop a Federal Second Amendment jurisprudence and then some sort of shadow version of that jurisprudence for the States.
And I think in the more recent incorporation cases, this Court was quite candid that it wasn't going to adopt sort of a shadow version of the Federal guarantee or some watered-down version of the Federal guarantee, but it really saw the virtue of incorporating not just the right but the jurisprudence that came with that right.
And so I do think that's in a sense something that counts in favor of incorporating the Second Amendment and doing so through the Due Process Clause, the same way this Court has dealt with the other substantive guarantees of the Bill of Rights.
And I think if you apply that jurisprudence, the case really is very straightforward.
In fact, I think if you compare the First Amendment and the Fourth Amendment to the Second Amendment, they have the same textual guarantee to the people, they trace their origins to preexisting rights back to the English Bill of Rights, back to even earlier constitutional history.
Justice John Paul Stevens: That's true of the criminal jury trial right, too, all of those things?
And yet we don't -- it's not exactly the same.
I just don't see why it has to be exactly the same.
I can understand your argument that it should be substantially the same, but I don't see that there's anything in the text of the Fourteenth Amendment that would justify saying it must be precisely the same, or of any of our cases.
Mr. Clement: Well -- and, again, Justice Stevens, you know, since I think that -- that the incorporation clause is -- I mean, the incorporation jurisprudence is, to put it lightly, a gloss on the text of the Due Process Clause--
Justice John Paul Stevens: Incorporation jurisprudence is -- we haven't had an incorporation case for 30 years or more.
Mr. Clement: --That's right.
That's right, Justice Stevens.
But I guess I would say is that, putting the Sixth Amendment to one side, which I think is a bit of an outlier in the jurisprudence here, I think the trend of all of this Court's incorporation jurisprudence has been more towards complete incorporation of the right and the jurisprudence.
So -- I mean, Mapp is a perfect illustration.
Chief Justice John G. Roberts: That still allows scope, once you determine that the right is incorporated, for recognizing that the States might have broader interests that the Federal Government doesn't have.
But I would suppose that would come up in the application of the right, rather than in an effort to determine whether parts of it are incorporated or not.
Mr. Clement: That's right, Mr. Chief Justice, and I think the same thing can be said for any other one of the other incorporated amendments.
So I think the same thing might be true in the First Amendment.
There are certainly going to be situations that the Federal government confronts that the State governments won't confront the exact analogue situation and vice versa.
Now, you know, there may be unique issues about national parks that the States aren't going to have to confront, and the jurisprudence can take that into account.
But I think that's far different from saying that we really are going to have this shadow jurisprudence for one of the provisions.
And I think, again, to go back to Mapp just as an illustration, when this Court first incorporated the Fourth Amendment and said, well, we'll talk about the exclusionary rule later; maybe we won't incorporate the Fourth -- the exclusionary rule.
We'll just incorporate the Fourth Amendment's basic guarantee.
And the trend of later cases was to say, no, kind of in for a penny, in for a pound--
Justice John Paul Stevens: You're -- you're dead right--
Mr. Clement: --let's bring the jurisprudence with--
Justice John Paul Stevens: --about the majority of the Court, but it's interesting that during this whole period, Justice Harlan staked out a separate position on whether it should be just the substance of the right or the -- every detail.
And we have followed Justice Harlan, rather than the majority in a number of cases in -- in the recent years.
Mr. Clement: --Well--
Justice John Paul Stevens: He is very much against you, and he's a very important member of our -- of our history.
Mr. Clement: --Justice Harlan was a terrific justice.
Justice Black was a terrific justice in--
Justice Samuel Alito: Maybe we should go back--
Mr. Clement: --in his total incorporation--
Justice Samuel Alito: --Well, Mr. Clement, why shouldn't we go back completely to Justice Harlan's view about the way in which the Bill of Rights applies to the States?
Mr. Clement: --Well, I think if we are going to go back, maybe we should go back to the first Justice Harlan, who actually had an -- an approach, I think, that would be much more similar to the approach--
Justice Stephen G. Breyer: But there is a difference.
Mr. Clement: --that we take in this case and that Mr. Gura takes in this case.
Justice Stephen G. Breyer: There is a difference here with the other amendments.
There is a difference, and the other amendments -- you have the First Amendment's, the First Amendment expression.
Here we have right in the amendment written a militia-related clause.
And the way that -- the way -- the way that the right might be incorporated in respect to that is light years different from the way it might be interpreted if you think what it is, is the right to have a gun to shoot a burglar.
They're just two separate things.
And as to the first, it's pretty hard for me to see why you'd incorporate it, for reasons I won't go into.
As to the second, I understand it.
So we're starting with a difference in purposes at the least.
And shouldn't that make a difference in how you incorporate?
Mr. Clement: Well, I mean, I guess what I -- what I don't understand is why, given the way that this Court wrestled in the Heller decision with how to basically apply the operative clause in light of the prefatory clause, why one would want to come to a different conclusion--
Justice Stephen G. Breyer: Because the -- one of the reasons--
Mr. Clement: --with respect to the States.
Justice Stephen G. Breyer: --at least, is that -- you've read, I'm sure, that all the law professors at Harvard, Yale, Princeton, London, et cetera, that say even Blackstone in the 17th century thought that this is primarily a right to raise an army through Parliament to -- well, I can't go on here.
I'm just saying think of that brief, and you'll see the differences, even accepting Heller.
Chief Justice John G. Roberts: You can respond if you want, briefly.
Mr. Clement: Thank you, Mr. Chief Justice.
I mean, obviously this Court was focused very much on Blackstone's writings in the Heller decision, and I think the majority read Blackstone actually as being primarily concerned with the self-defense right, which goes a long way to understand why the Heller decision came out the way that it came out.
And I would simply finish by noting that the one thing that I think we can come to a conclusion about Blackstone is the very fact that Blackstone dwelled on the right is good evidence that it's a fundamental right that should apply to the States.
Chief Justice John G. Roberts: Thank you, Mr. Clement.
ORAL ARGUMENT OF JAMES A. FELDMAN ON BEHALF OF THE RESPONDENTS
Mr. Feldman: Mr. Chief Justice, and may it please the Court: The Second Amendment should not be incorporated and applied to the States because the right it protects is not implicit in the concept of ordered liberty.
States and local governments have been the primary locus of firearms regulation in this country for the last 220 years.
Firearms, unlike anything else that is the subject of a provision of the Bill of Rights, are designed to injure and kill.
And the very same features that make firearms valuable for self-defense as the Court noted in Heller also--
Justice Antonin Scalia: When is the last time an opinion of ours made that the test, implicit in the concept of ordered liberty?
It sounds very nice.
But when is the last time we used it?
I think it was 1937.
Mr. Feldman: --I don't believe it was, Your Honor.
Justice Antonin Scalia: Has it been the basis of our decision in any case since Palko?
Mr. Feldman: --I think the -- the Court has -- the Court has used the term in a number of cases.
Since then, it has used it in -- not in corporation cases as recently as the Glucksberg case.
It used it in Mapp.
It has used it in other cases, but I think--
Justice Anthony Kennedy: And it was also the Harlan view, although a separate opinion in the Griswold case and in Poe v. Ullman.
Do you think that it best describes the approach that the Court has used over the years?
Mr. Feldman: --Yes, I do.
Justice Anthony Kennedy: I was going to ask Mr. Clement what test he thought the Court used.
If you looked at all the cases, you think implicit in the concept of ordered liberty?
Mr. Feldman: Yes, I do, and here's the reason why.
In 1833, this Court has held in Barron v. Baltimore, in a -- in a ruling that Chief Justice Marshall said was not a difficult one, although important, that the Bill of Rights did not apply to the States.
As far as I know, no justice has ever disagreed with that -- with that ruling or suggested he was wrong in so ruling.
From -- it was -- the only reason -- and when the Fourteenth Amendment was passed and ratified in the late 1860s, again, the -- the framers did not directly apply the Bill of Rights to the States.
They gave us some generalities.
And the Court has always understood that when it's applying the Due Process Clause, what it asks is not just is something in the Constitution, but is this something that's so fundamental it's a necessary condition--
Justice Antonin Scalia: Is the right to trial by jury implicit in the concept of ordered liberty?
Mr. Feldman: --I--
Justice Antonin Scalia: My goodness--
Mr. Feldman: --I think that it--
Justice Antonin Scalia: --there are a lot of countries that don't give the right to trial by jury, even England does not give it in all criminal cases.
Mr. Feldman: --I think it is in the following sense: When you're talking about a procedural right that's embedded in a particular procedural system, you have to look at how that system operates and how the -- the right works within that particular system.
Chief Justice John G. Roberts: Well, I think that's exactly -- that's exactly right.
And that is what the Court elaborated on in Duncan.
I do think the focus is our system of ordered liberty, not any abstract system of ordered liberty.
You can say Japan is a free country, but it doesn't have the right to trial by -- by jury.
The -- the concept only makes sense, I think, if you limit it to our system.
Under our system, as you said, the -- the right to a jury is essential.
Mr. Feldman: I -- I agree -- I -- I think that's right.
I was just distinguishing between--
Chief Justice John G. Roberts: Well, if you think that's right, why wouldn't you think, for all the reasons given in Heller, that the Second Amendment right is essential to our system, whatever it may be with respect to France or England or anywhere else?
Mr. Feldman: --The question that the Court was addressing in Heller was not -- again, was not how important the Second Amendment right was, or how implicit it is in our system; it was what did it say and what did the -- what restrictions did the framers of the Second Amendment impose on the Federal Government.
Justice Anthony Kennedy: But I thought its rationale was that because of its fundamental character, the right to bear arms must be understood as separate from the qualifying phrase of the militia clause, all people, most people in the United States.
The public meaning of the Second Amendment was that there was an individual right to bear arms, and that's because it was fundamental.
If it's not fundamental, then Heller is wrong, it seems to me.
Mr. Feldman: No, I -- I -- I don't think that that's right.
The question is what right -- what did they impose upon the -- as restrictions upon the government when the Second Amendment was ratified.
And as to that, it's not a question of whether it's fundamental any more than with the Grand Jury Clause or with the civil jury trial right--
Chief Justice John G. Roberts: I don't see how you can read--
Mr. Feldman: --under the Seventh Amendment.
Chief Justice John G. Roberts: --I don't see how you can read Heller and not take away from it the notion that the Second Amendment, whether you'd want to label it fundamental or not, was extremely important to the framers in their view of what liberty meant.
Mr. Feldman: I -- it was important, but actually what Heller says is this: The Second Amendment preexisted the -- its inclusion -- or the right that's in the Second Amendment preexisted its inclusion in the Bill of Rights.
But the reason it was codified, the reason it -- the reason it was put into the Bill of Rights was because the framers were concerned about the Federal Government disarming the militia.
The right of self-defense, which had been previously recognized and highly valued, I would agree, was -- had -- according to Heller, quote,
"had little to do with its codification-- "
Justice Antonin Scalia: That may be--
Mr. Feldman: --with its inclusion in the Constitution.
Justice Antonin Scalia: --That may be the reason it was put there.
But it was put there.
Mr. Feldman: That's--
Justice Antonin Scalia: And that's the crucial fact.
It is either there or it is not there.
And if it's there, it doesn't seem to me to make any difference why they chose to put that one there as opposed to other ones that they didn't put there.
It's either there or not.
Mr. Feldman: --That -- I agree as far as the Federal Government goes.
But now there's a different question being asked, and the Second Amendment in this respect is unlike any of the other amendments that have been incorporated.
The same -- very same reason why the First -- the various rights in the First Amendment were put there in 1791 is exactly the reason why it was held -- why it was incorporated and applied to the States under the Fourteenth amendment.
Justice Stephen G. Breyer: So do we read the -- the clause at the beginning -- the militia clause -- we're supposed to read the words of the Constitution, aren't we?
Mr. Feldman: Yes.
Justice Stephen G. Breyer: --the answer to that's yes.
Justice Antonin Scalia: Yes.
Mr. Feldman: Yes.
Justice Stephen G. Breyer: Thank you.
Very well, and doesn't that suggest what the purpose of putting the right there is even under Heller or at least one purpose--
Mr. Feldman: Well, that -- that--
Justice Stephen G. Breyer: --And does that not give us a clue as to what they thought that--
Mr. Feldman: --That's what--
Justice Stephen G. Breyer: --the ordered liberty was?
That's your point?
Mr. Feldman: --That's what -- and that's what Heller said.
And here's the difference -- is, it is it is now urged that this right is fundamental because of its importance, the importance of firearms in self-defense.
That was true also in 1791, but it wouldn't have been in the Constitution for that.
That had little to do with putting it in the Constitution.
This is a right that has always been subject to the political process and--
Chief Justice John G. Roberts: Well, sure, and it's still going to be subject to the political process if the Court determines that it's incorporated in the Due Process Clause.
All the arguments you make against incorporation, it seems to me, are arguments you should make in favor of regulation under the Second Amendment.
We haven't said anything about what the content of the Second Amendment is beyond what was said in Heller.
Mr. Feldman: --That's -- that's--
Chief Justice John G. Roberts: And so the argument you make is, well, given this context, you should not be able to have concealed carry.
Well, maybe that's right, but that doesn't mean you don't incorporate the Second Amendment to allow you to enforce that type of regulation.
Mr. Feldman: --No, I don't think so.
I think -- the argument that I'm making is that States and local governments under the political process, which as far as we know, if the only issue had been self-defense, the framers would have been satisfied to leave this to the States and to leave this to the political process, and not to put it in the Constitution -- that -- that -- that as far as the right to self-defense goes, that's something that has always been effectively regulated through the political process and especially at the State and local level.
And through our history, as technology has changed, State and local regulation has altered to draw the balance that has to be drawn.
Justice Samuel Alito: And your position is that a -- a State or local government could completely ban all firearms?
Mr. Feldman: If the State and local government did that, I think would it raise two questions.
One question would be, there is always review under the Due Process Clause and under the Equal Protection Clause for provisions that are arbitrary.
And I'd want to know why a State had done that.
It's certainly relevant that in the last 220 years, no State has done that or even come close, and, in fact, as the briefs on the other side of the case from some of the States show, they are quite in the opposite direction.
But the second point would be--
Justice Antonin Scalia: I -- I don't understand.
Justice Anthony Kennedy: What is the due process liberty--
Justice Antonin Scalia: What basis would there be to -- to deny that?
Mr. Feldman: --Well, there's always--
Justice Antonin Scalia: Firearms kill people is what the States say, and -- and we ban it.
Mr. Feldman: --Right, and that has--
Justice Antonin Scalia: Other countries have done that.
Mr. Feldman: --It has not led to States doing it in -- in this country.
The second question--
Justice Antonin Scalia: But if they did do it, I think you'd have to say it's perfectly okay.
Mr. Feldman: --No, the second -- there would be two questions actually.
One would be was this arbitrary, or is that actually based on a reason that's -- a sound reason?
Justice Antonin Scalia: Yes.
The reason is guns are dangerous.
Mr. Feldman: The second argument would be, the Court at that point, if in the very unlikely event a that a State or local government tried to do that, then the Court might have to wrestle at that point with the question of the relationship between self-defense and the right to keep and bear arms.
In other words, this Court has never said--
Justice Anthony Kennedy: --But would self-defense be part of liberty under the Due -- substantive meaning of the Due Process Clause?
Mr. Feldman: --I mean, if by that is, do you have a substantive right to self-defense, the Court actually has never answered that question, but I'm willing to accept that there is such a right for--
Justice Anthony Kennedy: And you've given -- you said there were two reasons.
So you have given us both in your answer to Justice Alito's question?
Mr. Feldman: --Yes, and -- and what I'd say about the right to self-defense is, if -- if the challenge -- if a State or local government banned all firearms it might raise the question of, given that there -- if there is a constitutional right to self-defense, has the State prohibited you from reasonable means of exercising that right?
Justice Anthony Kennedy: Without repeating that and just so I understand your position, how could some member of the Court write the -- this opinion to say that this right is not fundamental, but that Heller was correct?
Mr. Feldman: --I -- the Court would just say that what Heller held was if you look at the meanings that the words in the Second Amendment had, the common meaning -- as the Court said in the Heller opinion -- the common meanings that the word had in 1791, it imposed limitation on the state.
It took a preexisting right that had not been -- it was not codified in the Constitution, and it said, this self-defense right we need in the Constitution in order -- in order to protect the militia against being disarmed by the Federal Government.
Chief Justice John G. Roberts: That sounds an awful lot to me like the argument we heard in Heller on the losing side.
Mr. Feldman: Well, it's actually what the Court said in its opinion.
What the Court said in its opinion is the reason it was codified was the concern that the framers had with the -- that the Federal Government might disarm the militia.
Self-defense according to the Court in Heller, quote,
"had little to do with the codification of the right. "
Justice Antonin Scalia: They said that is the reason it was codified.
They did not say that that is the function of what was codified.
The function of what was codified was to enforce the traditional right of the people to bear arms.
Mr. Feldman: And that -- that--
Justice Antonin Scalia: And to say that that wasn't the reason it was codified doesn't say anything about what it consists of.
Mr. Feldman: --That -- that's correct, and I'm not arguing today about what it consists of, but the point being that this was a right that had been -- that the framers as far as we know would have been satisfied to leave to the political process if it was just a question of the feature of it.
Justice Samuel Alito: Let me see if I understand your argument.
I thought you said a minute ago that if a State or local government were to ban firearms completely, this Court might hold that that violates substantive due process because the right to use a firearm for self-defense is -- might be held to be implicit in the concept of ordered liberty; is that right?
Mr. Feldman: --That's correct.
Justice Samuel Alito: And -- but I thought you began by saying that the right to keep and bear arms is not implicit in the concept of ordered liberty.
Mr. Feldman: The right to keep and bear arms that was recognized -- I don't think actually the right to keep and bear arms itself is.
Perhaps the right to self-defense is, and then like other rights, similar rights, if the Court were to hold that that is constitutionally protected, the question would be is the State now giving you sufficient means to exercise that right?
Not whatever means you want, but sufficient means so that you reasonably can exercise that right.
I would think that would be the only way that that kind of analysis could go, if you start off from self-defense.
Justice Stephen G. Breyer: But--
Justice Antonin Scalia: Mr. Feldman, let me take your argument at -- at its face value.
Let's assume that the only reason it is there and the only purpose it serves is the militia purpose.
Isn't that militia purpose just as much defeated by allowing the States to take away the militia's arms as it would be by allowing the Federal Government to take away the militia's arms?
Mr. Feldman: Yes, but I -- that--
Justice Antonin Scalia: Then so--
Mr. Feldman: --But that--
Justice Antonin Scalia: --even if you assume that the whole thing turns around the militia prologue, that prologue is just as -- just as important with respect to the State's depriving the people of arms.
Mr. Feldman: --Yes, but I don't think the argument -- the primary argument that's being made today, that this is implicit in the concept of ordered liberty or sufficiently fundamental or whichever other formulas--
Justice Antonin Scalia: You're switching horses now.
Mr. Feldman: --No, I'm not.
Justice Antonin Scalia: Let's just focus on your argument that -- that -- that deals with the prologue.
You say this is different because of that prologue.
But that prologue has just as much force if the States take away the militia's arms as if the Federal Government does.
Mr. Feldman: --I -- I think that few people today would say -- and in fact few people in 1868 would say that the concern to protect the State militias is something that's so fundamental or essential to a concept of ordered liberty or central to our system that it has to be--
Justice Stephen G. Breyer: --Well, suppose it is.
Mr. Feldman: --protected--
Justice Stephen G. Breyer: --Suppose it is.
Assume for argument's sake that it is.
Still, I take from what you are saying that -- let's make up an imaginary importance of ordered liberty chart, and we give it to James Madison and the other framers.
And he would say, insofar as that right to bear arms is important for the purpose of maintaining the militia, it's high on the ordered liberty chart.
Insofar as the right to bear arms is there to shoot burglars, it's low on the ordered liberty chart.
And if that's what they'd say, it's conceivable that part of this amendment would go through and be incorporated; namely, that part which would prevent a law that would disarm people to the extent they couldn't form militias.
But that part which would disarm people to the extent that they couldn't shoot burglars, that would not be incorporated.
Mr. Feldman: --It -- that would be -- that would be possible, but another -- another way to look at it is that the question that the Court had -- the Court has never answered the question, is this implicit in the concept of ordered liberty or should this be incorporated under any other test?
Justice Samuel Alito: But if we took the approach that--
Mr. Feldman: By just--
Justice Samuel Alito: --If we took the approach that Justice Breyer outlined, would -- why would we not do the same thing with respect to all the applications of all of the amendments that up to this point have been regarded as being completely incorporated, along with all of our decisions?
So why would we not look at all of our decisions under the First Amendment and the Fourth Amendment and the Fifth Amendment and the Sixth Amendment, and rank all of those interpretations on some scale of ordered liberty?
Mr. Feldman: --I -- I don't think -- I don't think the Court would.
And what I was really responding to Justice Breyer was, we understand that the Second Amendment is in the Constitution and binds the Federal Government, but it has always been understood, from 1868 on, that before an amendment applies to the States, you need something more than just finding that it's in the Constitution, and--
Chief Justice John G. Roberts: Well, to get back to Justice Breyer's point, which I'm not sure you answered, is your theory that you simply -- it's not a question of is it in or is it out?
But you're saying, well, what is in and what is out, are you?
Mr. Feldman: --No, I -- actually my -- excuse me.
My answer to the question would be it's -- I think it's out, because all that shows is the framers certainly had--
Chief Justice John G. Roberts: So you think it's in or out, right?
Mr. Feldman: --I think that -- I think the best argument is that it's out, for this reason: When the framers--
Chief Justice John G. Roberts: No, I -- I know your reasons.
Mr. Feldman: --Okay.
Chief Justice John G. Roberts: I'm trying to get you to take a position on whether or not you want us to not only pick and choose among which amendments are part of our abstract notion of ordered liberty, or if you want us also to take amendments that might be in and refine them and shave them off a little bit and say, well, this part of the amendment is in, and this part isn't.
Mr. Feldman: No, that's not the argument that we're making.
Chief Justice John G. Roberts: Okay.
So your argument is all in or all out.
Mr. Feldman: The argument that we're making -- yes.
Chief Justice John G. Roberts: Okay.
Mr. Feldman: The argument that we're--
Justice Stephen G. Breyer: Step one -- step one is make my chart.
Step two is look at what's high.
Step three is, even though that high part, even that high part, nobody could think was incorporated.
Mr. Feldman: --I -- in our view, the things that the framers -- the framers had their reasons for putting--
Chief Justice John G. Roberts: That's how you think Madison went about his job?
Mr. Feldman: --No.
No, I think that--
Justice Stephen G. Breyer: He did, actually.
That's how he went about it.
Chief Justice John G. Roberts: I'm asking counsel.
Do you think that's how Madison went about his job?
Mr. Feldman: --I think the framers had reasons to put everything in the Constitution that they put in it.
But the question about whether it should be incorporated against the States is a different question than whether they put it in the Constitution.
And what you have in the Second Amendment -- and it's right clear on the face of it from the prologue; it's clear -- it's clear from the opinion in Heller -- is the reason they put it in the Constitution is not the primary reason why people today are arguing that this is a right that -- that is so fundamental that it has to be applied against the States.
Justice Sonia Sotomayor: Mr. Feldman, our selective incorporation doctrine under the Due Process Clause does suggest that there are some rights that were fundamental enough to be incorporated and some that are fundamental, but not fundamental enough to be incorporated.
We've drawn a line.
Is it the ordered liberty concept alone in our jurisprudence that you are relying upon, or is it any other articulation of our incorporation doctrine that supports your view?
Mr. Feldman: I think that's the underlying standard, but the Court has certainly looked at our history and our traditions in answering this question, and I think they are relevant in this area, as they were--
Justice Sonia Sotomayor: The Chief says: Yes, if we look at it, we have to look at it in the context of our history, our structure.
So address his question as to why--
Mr. Feldman: --I would say that--
Justice Sonia Sotomayor: --in our structure or our history, it's not fundamental enough--
Mr. Feldman: --Yes.
Justice Sonia Sotomayor: --to incorporate.
Mr. Feldman: Yes, and I think it's -- I think it's not.
We have discussed already 1791, and the reasons why -- the reasons even that the framers thought that -- well, I've already discussed that.
I don't want to go into it again.
Justice Antonin Scalia: Eleven of the colonies had a guarantee at the time the Constitution was adopted, and I believe something like 44 States currently have in their constitutions protection of the right to bear arms.
Mr. Feldman: --I -- I--
Justice Antonin Scalia: Does that suggest anything about -- about how fundamental it is generally?
Mr. Feldman: --I -- what the Court actually said in Heller was that there were two States at the time, in 1791, that had a firearms right, and with -- there were possibly two more where the evidence was a little bit more ambiguous.
As far as today, it is true that 44 States have some kind of recognition of a right to keep and bear arms.
Now, some of those States -- a couple of them, at least, two to four -- recognize that only in connection with the militia, and it's really quite different from the right that this Court recognized in Heller.
Many other of the rights that are recognized in State constitutions include provisions that really would be unheard of, and that actually point to the reasons why this is not fundamental, like, say, freedom of speech or freedom of religion.
They have provisions that say: Subject to such regulation as the legislature may prescribe, or the like.
And that points out the other difference.
Because firearms are -- the same features that make them useful for self-defense make them also useful as instruments of violent crime, suicide, and accidental death.
Their -- regulation of these items has -- is a part of our tradition and--
Justice Antonin Scalia: "Subject to such regulation" certainly excludes banning them entirely, which is what you assert can be done.
Mr. Feldman: --No, I think that--
Justice Antonin Scalia: What's the purpose of a State constitutional guarantee which has at the end of it
"subject to such regulation as the legislature may proscribe. "
if that regulation includes banning it entirely?
Mr. Feldman: --With that--
Justice Antonin Scalia: --would make a nullity of the constitutional requirement.
Mr. Feldman: --The overwhelming consensus among the State courts in interpreting the wide variety of different types of provisions that they have is that it imposes a reasonable regulation standard that is not violated by banning a particular weapon or a particular class of weapons, as long as you are allowing some kind of firearm, and that is not the right that this Court--
Justice Antonin Scalia: And is that what you're asserting here--
Mr. Feldman: --recognized in Heller.
Justice Antonin Scalia: --that the States have to allow firearms?
Mr. Feldman: No.
Justice Antonin Scalia: Is that--
Mr. Feldman: I -- I didn't think I was.
Justice Antonin Scalia: --I didn't think so, either, so--
Mr. Feldman: No.
Justice Antonin Scalia: --why does your last argument make any sense?
Mr. Feldman: --No, what I'm saying -- I'm sorry.
What I'm saying is that the right that is embodied in the wide variety of different State constitutions -- the overwhelming consensus is that what the States have determined as a result of their own processes and in light of their own conditions is that you can't ban all kinds of firearms, but you can ban some kinds of firearms.
Justice Antonin Scalia: That's fine.
Mr. Feldman: And that is -- and the kinds of firearms that have traditionally been banned--
Justice Antonin Scalia: We said as much in Heller.
Mr. Feldman: --Right.
Well -- and the kinds of firearms that have traditionally been banned by the States and that actually the period around the time of the Fourteenth Amendment is a good period to look.
At or around that time, there are numerous States that had regulations barring the carrying and even that go up to the point of possession of pistols and Bowie knives, which are not firearms, but are also arms under the Second Amendment, and so on.
Chief Justice John G. Roberts: Well, all those may be perfectly valid today, or -- if the Court incorporates the Second Amendment.
Incorporation doesn't say anything by itself about whether those types of regulations, which you think are reasonable and your friends think may not be reasonable, are valid or not.
Mr. Feldman: I think the Court in Heller did hold that a ban on -- a ban on handguns is invalid.
That was the holding of the case.
And these are -- these were laws that were passed that are very close to that.
In the 1860s and the 1870s, in Texas, in Wyoming, places that -- not necessarily for the whole State--
Justice Antonin Scalia: Handguns in the home?
Mr. Feldman: --They--
Justice Antonin Scalia: Handguns in the home?
That's what Heller addressed.
Mr. Feldman: --They banned -- I -- well, not -- I can't say that they banned handguns in the home per--
Justice Antonin Scalia: No, you can't, because they didn't.
Mr. Feldman: --But if you look at the decision -- no, if you look at -- actually, if you look at the decisions, some of them banned the sale; they banned carrying them anywhere in the jurisdiction, and in such a way that -- and some of the judicial decisions even say: This was intended to eliminate these weapons from our jurisdiction.
And they were generally upheld at that time.
Now, those were responding to local conditions at the time, and generally, the history of firearms regulation, because of the risk that firearms pose, has been that in this country, it has been widely recognized that in many places it's appropriate to carry firearms.
And many jurisdictions have found, and reasonably found, that allowing broad use, carriage, and whatever of firearms is appropriate, but there are some jurisdictions that have found that's not to be the case, throughout our history.
And that has been a State and local decision that has worked through the political process in those jurisdictions.
And that political process here is another distinction between the Second Amendment and some of the other amendments that have been incorporated -- is that one basis, I think, for incorporating the other amendments and for applying them against the States has been that there is a concern about a discrete minority or a highly unpopular view that's not going to get a fair shake in the political process.
I don't think that has ever been the case here.
And as far as I know, the framers didn't think that was the case with respect to the right to keep and bear arms.
It's a right that gets controlled in accordance with local conditions, with local cultures, and with local views about the necessarily difficult questions about how best to protect public safety.
That is -- that has been a part of our -- of our history since 1860, since--
Justice Anthony Kennedy: But there -- but there are provisions of the Constitution, of the Bill of Rights, that have been incorporated against the States, where the States have substantial latitude and ample authority to impose reasonable regulations, rights respecting -- rights respecting property, the Cruel and Unusual Punishment Clause.
We look to see what the political process does.
We look to see -- why can't we do the same thing with firearms?
Mr. Feldman: --Well, it's just that the end -- I have really two points I'd like to make about that.
One is the analysis the Court used in Heller.
In Heller, what the Court said is: This is not the time to balance things; you cannot ban handguns.
Now, there may be local -- there have been local jurisdictions before and there are now ones where they feel allowing some firearms, but banning handguns, is the best way to achieve public safety and to increase the zone of ordered liberty for their people.
And those things would be apparently impermissible under Heller.
But even more than that, Heller construed the Second Amendment's "bear" -- the word "bear", "to keep and bear arms" -- to mean the same thing as "carry" in this Court's case in Muscarello, much later.
And to carry -- generally to carry.
Many -- there's a long history of regulation of not just concealed carry, as the Court did recognize in Heller, but of banning open carry in a variety of jurisdictions.
Again, generally, it's someplace that is -- it has a particular problem; it's a city or something like that.
Justice Anthony Kennedy: Do you think there is existing authority with reference to other provisions of the Bill of Rights that would allow us to incorporate just the core of Heller with respect to the States?
Just the core of the Second Amendment with respect to the States, along the lines to this question Justice Stevens was asking earlier?
Mr. Feldman: Well, I think that there would be--
Justice Anthony Kennedy: And if so, what's -- what case do we look to for that proposition?
Mr. Feldman: --I think really this -- I cannot offhand think of a case that would lead you to that -- would lead to that.
Justice John Paul Stevens: If you look to Justice Harlan's dissent in Griswold, where he says the Fourteenth Amendment stands on its own bottom and it can be either more or less than the provisions of the Bill of Rights, and there's no reason in the world why this Court could not adopt the same position here and say: Insofar it's incorporated, it applies only within the home.
The Court had ample precedent for that.
Mr. Feldman: And actually the other point I make is if you approach it from the other point of view, the case has not been made here -- it hasn't even been brought -- that the City of Chicago is denying people the -- the right to have any kind of firearm or the right to have any kind of reasonable means of self-defense.
Chief Justice John G. Roberts: I'm sorry.
Is it the position of the City of Chicago that we should rely on Justice Harlan's dissent in Griswold?
Mr. Feldman: No.
Chief Justice John G. Roberts: Well, then your answer to Justice Stevens is no, you're not going to follow that approach, right?
Mr. Feldman: No, what I would say is that -- what I would say is that if the Court -- what I was saying is that if the Court approaches it from the standpoint of perhaps if there is -- if the Court chooses in an appropriate case to recognize a fundamental right to self-defense, it would then raise those kinds of questions.
And someone could make the case that they are being denied any right to self-defense or any reasonable right to exercise self-defense because of a jurisdiction's firearms regulations; the Court could address that.
That's not a claim that has been made in this case; that's not a claim that could be made in this case because--
Justice Antonin Scalia: See, the right to keep and bear arms is right there.
It's right there in the Bill of Rights.
Where do you find the right to self-defense?
Mr. Feldman: --Well, I--
Justice Antonin Scalia: You -- you want us to impose that one on the States but not -- not the explicit guarantee of the right to keep and bear arms.
That seems very strange.
Mr. Feldman: --No, actually I -- I don't want to impose that on the States.
I think it's very unlikely that the Court would ever be called upon to, because our history for the last 200 years -- 220 years had been of reasonable State and local regulation of firearms that responds to local conditions, to local threats of violence, and so on that occur.
And I don't see any reason to think that there will be a jurisdiction that would try to sufficiently ban firearms that people wouldn't have a reasonable means of self-defense.
Justice Antonin Scalia: The District of Columbia did.
That's what Heller said.
Mr. Feldman: Well, the District of Columbia in any event is controlled by Second Amendment as it -- as it's written.
That's not the question in this case.
Justice Sonia Sotomayor: Would you be happy if we incorporated it and said reasonable regulation is part of the incorporation?
And how do we do that?
Mr. Feldman: Well, there is the reasonable regulation standard.
There's an article by Professor Winkler that we cite in our brief, that goes very extensively through the ways that State courts have dealt with their own rights to keep and bear arms and have adopted, really by overwhelming consensus, that kind of a reasonable regulation standard, which generally recognizes--
Justice Ruth Bader Ginsburg: I thought that Heller -- Heller allowed for reasonable regulation.
Mr. Feldman: --Excuse me.
Justice Ruth Bader Ginsburg: I thought that the Heller decision allowed for reasonable regulation, and it gave a few examples, as Justice Scalia mentioned.
Mr. Feldman: Right.
Well, it's just our view would be that what Chicago has done here, which is permit you to have a -- permit you to have long guns but ban handguns, is the kind of regulation that throughout our history jurisdictions in their own -- that are most familiar with their own particular needs, their own particular problems, and in a position to balance the -- the need for self-defense with the risks to the use of firearms -- for violence, for accidental death, and for suicide -- that the City of Chicago has come up with something that is well within our tradition.
Justice Antonin Scalia: What you're urging is really a mixed blessing for gun control advocates.
To the extent we sever the Federal guarantee from what the States are obliged to comport with, we encourage a stricter Federal Second Amendment, one that forbids all sorts of regulations that the Federal Government might otherwise be allowed to do, because it doesn't matter -- the States can take care of it.
I mean, you know, if -- if you sever the two, you're encouraging a broader prohibition at the Federal level, and that's what -- Heller was very careful not to impose such a broad prohibition precisely because it realized that -- that this is a national problem.
Mr. Feldman: --I -- I think that, if I may -- that the restriction that the Second Amendment imposes on the Federal Government should be and is controlled by what the meaning of that Second Amendment was in 1791.
It shouldn't vary one way or the other with whether there's incorporation against the States.
Chief Justice John G. Roberts: Thank you, counsel.
Mr. Gura, you have 3 minutes remaining.
REBUTTAL ARGUMENT OF ALAN GURA ON BEHALF OF THE PETITIONERS
Mr. Gura: Sure.
Justice Anthony Kennedy: Counsel, at the -- at the very outset of your argument, Justice Sotomayor asked the question which, as I understood it, essentially said what are examples of privileges and immunities that are being denied by the States that -- which denial would be remedied by following your proposal to overrule the Slaughter-House case?
And let's leave the Second Amendment out.
Let's assume the Second Amendment is a wash; it's either going to be incorporated or not going to be incorporated the same -- to the same extent under either the Privileges or Immunities Clause or the Due Process Clause.
Leaving the Due Process -- the Second Amendment out of it, what privileges and immunities are now being denied citizens of -- of the United States?
Mr. Gura: Well, apart from the Second Amendment right, which is being denied to people in the United States by Chicago at least, there are other rights -- other rights enumerated in the first eight amendments that were thought to be the personal guarantees as well as certain unenumerated rights which were understood to be part of--
Justice Anthony Kennedy: What are examples of those?
The jury trial in civil cases?
Mr. Gura: --The jury trial--
Justice Anthony Kennedy: And grand jury.
Mr. Gura: --There's not much left, Your Honor.
Those are the only two provisions of the Bill of Rights that have not been held incorporated under due process, which informs us that perhaps we should have the Second Amendment incorporated.
There's no reason to treat it any differently.
With respect to the unenumerated rights that perhaps are not being--
Justice Ruth Bader Ginsburg: So you are saying that under -- under your view, every State would have to use a grand jury to bring criminal charges; no more information.
And that every State would have to have a civil jury, if any party in the case requested it.
Mr. Gura: --Yes -- well, it's not just what we're saying; it's what the framers of the Constitution said.
And as Justice Scalia noted in Apprendi, the right to a jury trial, for example, may not be efficient, but it is free.
Justice Ruth Bader Ginsburg: --That's a criminal case; that's quite different.
Mr. Gura: That's right.
We're talking about the Grand Jury Clause; we have 28 States right now out of the 50 that allow prosecutors to pursue felony charges without indictment by a grand jury, but the other 22 States do require it.
Justice Anthony Kennedy: Well, I'm -- we're using up your time.
Mr. Gura: Sure.
Justice Anthony Kennedy: --do you want me to leave the bench thinking grand jury indictment and civil trial and jury case -- that's it.
There's no other -- what are these other unenumerated rights?
Mr. Gura: We can't give a full description of all unenumerated rights that are going to be protected by the Fourteenth Amendment.
Justice Antonin Scalia: It doesn't trouble you.
Mr. Gura: --No, it does not, and it shouldn't trouble the Court because the Court addresses due process cases all the time without saying we're--
Justice Samuel Alito: Well, does it include the right to contract?
Mr. Gura: --The right to contract--
Justice Samuel Alito: Isn't that an unenumerated right?
Mr. Gura: --That is literally understood by the framers to be an unenumerated right under the privileged immunities.
We know that because in the Civil Rights Act of 1866, that's the very first right that they mentioned as something that people in the South should be enjoying, because they were not allowed to pursue a livelihood.
Chief Justice John G. Roberts: Your approach -- your original approach would give judges a lot more power and flexibility in determining what rights they think are a good idea than they have now with the constraints of the Due Process Clause.
Mr. Gura: No, Your Honor; our approach might actually provide judges with perhaps no more than what they have now, perhaps even less, because our approach is rooted in text and history.
It's not a license for judges to make up unenumerated rights that they believe--
Chief Justice John G. Roberts: Privileges and immunities give you a lot more flexibility than due process, because it's not limited to procedural -- where you don't have to deal with the hurdle that it's limited to procedural by the text.
Mr. Gura: --Sure.
If I may?
Chief Justice John G. Roberts: Yes, you may.
Mr. Gura: Thanks.
We believe that it's more limited because that -- that text had a specific understanding and that there are guideposts left behind in texts and history that tell us how to apply it, unlike the due process.
But at least we know one thing, which is that, in 1868, the right to keep and bear arms was understood to be a privilege or immunity of citizenship, and if the Court is considering watering down the Second Amendment, perhaps it should look to text and history.
Chief Justice John G. Roberts: Thank you, counsel.
The case is submitted.
Chief Justice John G. Roberts, Jr.: Justice Alito has our opinion this morning, in case 08-1521, McDonald versus the City of Chicago.
Justice Samuel Alito, Jr.: Two years ago in District of Columbia versus Heller, we held that the Second Amendment protects an individual right to keep and bear arms in the home for purposes of self-defense.
The Heller case did not involve a law enacted by a state or by any subdivision of a state, and therefore, Heller did not decide whether the Second Amendment applies to the states.
This case requires us to address that question.
This litigation began when several Chicago residents brought suit, challenging Chicago ordinances that effectively ban handgun possession by virtually all private persons in the city.
Chicago has high rates of violent crime and the Chicago residents who brought suit, fear for their safety and want to keep handguns in their homes for self-protection.
The litigation against Chicago and similar litigation against the Chicago suburb of Oak Park were dismissed by the district court and the Seventh Circuit affirmed, relying primarily on several cases decided by this case -- this Court in the late 19th Century.
We granted certiorari.
In order to explain the question, we must decide, it's helpful to review very briefly some basic constitutional history.
The provisions of the Bill of Rights originally applied only to the Federal Government and that is how things stood until after the Civil War.
After the Civil War, the ratification of the Thirteenth, Fourteenth and Fifteenth Amendments changed the relationship between the Federal Government and the states.
Two provisions of the Fourteenth Amendment figure in the present case.
The first is the Privileges or Immunities Clause which prohibits a state from abridging "the privileges or immunities of citizens of the United States.”
The second is the Due Process Clause of the Fourteenth Amendment which prohibits a state from depriving any person of life, liberty or property without due process of law.
At the time of the ratification of the Fourteenth Amendment, there were those who thought that the phrase "Privileges or Immunities of citizens of the United States" protected all of the rights guaranteed by the Bill of Rights and there are prominent scholars today who continue to hold that view.
The meaning of the Privileges or Immunities Clause came before the Court in the Slaughter-House Cases in 1873.
In that case, in a sharply divided decision, the Court gave the Privileges or Immunities Clause of their own very narrow interpretation and the late 19th Century cases on which the Seventh Circuit relied have generally been interpreted as holding that the right to keep and bear arms does not qualify as one of the privileges or immunities of national citizenship.
While the Slaughter-House Cases meant that the right set out in the Bill of Rights would not be protected by the Privileges or Immunities Clause against infringement by the states, the Court beginning around the turn of the Century began to consider whether those rights were protected against abridgment by the states under the Due Process Clause of the Fourteenth Amendment.
The Court's decisions on this question fall into two distinct errors.
The first runs from around to the end of the 19th Century until roughly the middle of the 20th Century.
The second one is from the end of the prior era to the present day and has featured what has often been called the process of “selective incorporation.”
Now let me return to the pre-selective incorporation era.
The three characteristics of the cases that were handed down during that period should be noted.
First, some of the Court's cases during this era said that the Due Process Clause protects only those rights that are indispensable characteristics of any civilized society.
Second, the Court during that time was not hesitant to hold that a right set out in the Bill of Rights was not protected by the Due Process Clause.
And third, even when a right set out in the Bill of Rights was held to fall within the conception of due process, the protection or the remedies that were available against the states often differed from the protection or remedies that were available against the Federal Government.
During this pre-selective incorporation era, there was viable theory concerning the relationship between the Bill of Rights and the states and that has often been called the theory of "total incorporation" which as the name suggests meant that the Due Process Clause would be totally incorporated -- would totally incorporate all of the provisions of the Bill of Rights.
The Court never accepted that theory, but eventually it moved in that direction by beginning the process of selective incorporation.
And selective incorporation meant that the Court incorporated provisions of the Bill of Rights one-by-one rather than all at once.
The Court abandoned the three characteristics of the earlier era that I have previously noted.
First, the Court made it clear that the governing standard is not whether a right is an essential feature of any civilized nation.
Instead, the Court considered whether or right it's fundamental from a distinctly American perspective.
Second, the Court shed any reluctance to hold that rights protected by the Bill of Rights met the requirements for protection under the Due Process Clause.
Indeed the Court eventually incorporated virtually all of the rights in the Bill of Rights under the Due Process Clause.
And third, the Court emphatically rejected what it called, "The notion that the Fourteenth Amendment applies to the states only a watered-down, subjective version of the individual guarantees of the Bill of Rights.”
Instead, the Court took the position that incorporated Bill of Rights protections "are all to be enforced against the states under the Fourteenth Amendment according to the same standards that protect those personal rights against federal encroachment."
I now turn directly to the question before us in this case, does the Second Amendment right recognized in Heller apply to the states and if so, does it apply to the states to the same extent as it applies to the Federal Government.
The Court holds that it does.
I have filed an opinion setting out the judgment of the Court.
Justice Thomas joins that opinion in part, but he has also filed a concurring opinion explaining that he would hold that the right to keep and bear arms is one of the privileges or immunities of national citizenship.
I will now describe the remainder of the opinion that I have filed and that is joined by the Chief Justice, Justice Scalia and Justice Kennedy.
We analyzed the question presented here under the Due Process Clause, that is the practice that the Court has followed now for more than a century and we continue on that path and we hold that the Heller right easily meets the standard that the Court has used during the last half century.
The right to keep and bear arms is implicit in our understanding of ordered liberty and is deeply rooted in the traditions of our country.
Heller thoroughly explored the origins of the right and show that it was considered fundamental by those who drafted and ratified the Bill of Rights.
This understanding continued during the early years of the Republic when many states adopted constitutional provisions, protecting the right to keep and bear arms.
Evidence from the Civil War period is particularly instructive.
When the Civil War ended, soldiers in the Union Army were allowed to keep their rifles when they returned home.
More than 180,000 African-Americans served in the Union Army and when they returned home often to the states of the old Confederacy, systematic efforts were made to disarm them and other blacks.
Armed parties often consisting of ex-Confederate soldiers serving in the state militias forcibly took firearms from newly freed slaves and other blacks.
The Reconstruction era Congress was alarmed by these practices.
A document that was published by Congress at that time recounted the following story which is representative.
In one town the marshal took all arms from the returning black soldiers and then was "very prompt in shooting the blacks whenever an opportunity occurred."
Union Army Commanders tried to stop these abuses by issuing orders, securing the right of all people to keep and bear arms, but Congress decided that more was needed.
It first turned to ordinary legislation.
It enacted the Freedmen’s Bureau Act of 1866 which explicitly guaranteed the right of all citizens "to have the full and equal benefit of the constitutional right to bear arms."
The Civil Rights Act 1866 had a similar aim, but Congress feared that these Civil Rights Laws would be held to exceed Congress' power and Congress then proposed the Fourteenth Amendment which was ratified.
In the face of this evidence, Chicago and Oak Park contend that the Reconstruction era Congress did not want to protect the right of all persons to keep and bear arms, but solely sought to outlaw discriminatory laws and practices.
This argument is implausible.
It is inconsistent with the clear terms of the Freedmen's Bureau Act of 1866 and outlawing the private possession of firearms in the South would have left blacks vulnerable to their worst abusers, the local peace officers and the state militias.
Chicago, Oak Park and the dissenting opinions in this case make many other arguments against incorporation of the Heller right.
I will comment on only three.
The first, -- the first set of these arguments basically disputes Heller's interpretation of the original meaning of the Second Amendment in light of recent scholarship.
It is hard to think of a question of original meaning that has now been explored more thoroughly than the right to keep and bear arms and we reaffirm Heller's analysis of that issue.
The second argument is basically a plea that we return to the pre-incorporation era case law at least for this one case.
It is argued that conditions vary from state-to-state and from city-to-city and that each state and city should be free to enact the firearm laws that are most consistent with its interests and the values of its citizens.
It's also argued that it is beneficial to allow states and cities to experiment with a variety of different approaches.
These arguments are not new.
They are precisely the arguments that would -- were made by dissenters, most notably by Justice Harlan when the Court began the process of “selective incorporation.”
It was argued that the entire county should not be bound by a single rule regarding searches and seizures, the privilege against self-incrimination, double jeopardy, the right to counsel and so on, but the Court disagreed.
Those who proposed that we return to the old approach in this case are presumably not asking that we undo all the incorporation cases decided during the past half century.
What is proposed instead, it seems, is a return to the old rules for the Second Amendment right only.
We refuse to take that approach.
Incorporation must be governed by neutral principles.
The other argument that I will comment on is this.
It is argued that the Second Amendment right should not be incorporated because it has controversial public safety implications.
The argument goes as follows.
Some people think that the proliferation of handguns leads to increased crime.
Other people think that allowing private citizens to own handguns and keep them in their homes for self-defense will promote public safety.
It is argued that because it is unclear which view is correct, the right to keep and bear arms should not be made binding on the states.
This argument like the one just discussed is inconsistent with our “selective incorporation” cases.
The Second Amendment right is not the only provision in the Bill of Rights that has controversial public safety implications.
The provisions of the Bill of Rights to governed law enforcement practices, the prosecution of cases, criminal cases and the punishment of offenders all have disputed public safety implications, but the Court has never refused to incorporate any provision of the Bill of Rights on that ground.
Accordingly it is the judgment of the Court that the right recognized in Heller is fully applicable to the states.
As Heller notes it, this right is not unlimited.
Heller held that the particular ordinances at issue in that case violated the Second Amendment, but the holding went no further.
The decision on the Second Circuit -- of the Seventh Circuit is reversed, the case is remanded for further proceedings consistent with this opinion.
Justice Scalia has filed a concurring opinion.
Justice Thomas has filed an opinion concurring in part and concurring in the judgment.
Justice Stevens has filed a dissenting opinion.
Justice Breyer has filed a dissenting opinion in which Justices Ginsburg and Sotomayor have joined.
Justice Stephen Breyer: Justice Alito said Justice Stevens has written a separate dissenting opinion that discusses why the Fourteenth Amendment's guarantee of the substantive due process does not include a right to possess a firearm in the home for the purpose of private self-defense and I agree with the conclusion of that opinion, but in addition I have a written a dissenting opinion in which Justices Ginsburg and Sotomayor joined and that separate opinion directly address the incorporation question that you’ve just heard about and particularly the majority's conclusion that the Fourteenth Amendment incorporates and applies against the states the right to keep and bear arms for the purpose of private self-defense.
The opinion explains why we disagree with that conclusion.
Now the opinion has three parts, not short. [Laughter]
In the first part, it returns to Heller.
The Court then there concluded and I quote, "That individual self-defense was the central component of the Second Amendment's right to keep and bear arms."
Four Justices, I was one, disagreed with that conclusion.
Since Heller was decided, numerous historians and scholars have expressed the view that the Court got its history wrong and I like to think by implication that the dissenters got it right.
So given the shakiness of the historical foundations, why should the Court now go on to extend in a very broad way Heller's applicability.
But, Heller has been decided and majority of the Court does not wish to revisit that case, so we go on to the second part of the opinion which accepts Heller as a given and explains why even on that assumption, the majority's incorporation conclusion is wrong.
Well, why is it wrong?
Why is this right to keep and bear arms for purposes of personal self-defense?
Why is it not fundamental enough to warrant incorporation and application to the states?
First, as the Court conceded in Heller and here I quote Heller again, "The threat that the new Federal Government would destroy the citizen's militia,” that’s the militia part of this, “by taking away their arms was the reason.
That right was codified in a written constitution."
Thus the protection of the different part of it, the right to private self-defense was from a framer's perspective at best a secondary motive.
Second, there is no consensus in America that the right to private armed self-defense is fundamental.
Rather there are opposing points of view, each held by many Americans.
Some believe that the right is necessary to protect their lives, of those attacked in their homes.
Others believe that regulation of the right is necessary in order to save the lives of those attacked with guns.
And therefore the appropriate level of gun regulation has long been and continues to be a hotly contested matter of political debate.
Third, unlike other rights, and I think every other right that the Court has found to be incorporated, incorporating the private self-defense right will not further some important, broader, additional constitutional objective.
Unlike the First Amendment's rights of free speech, free press, assembly and petition, the private self-defense right is not part, an essential part of a democratic process.
Unlike those others, no one claims this is.
Unlike the First Amendment's religious protections, the Fourth Amendment's protection of criminal suspects, the Fifth and Sixth Amendment's insistence upon fair criminal procedure or the Eighth Amendment's protection against cruel and unusual punishment, the private self-defense right does not significantly protect individuals, I might say quite often unpopular individuals, who would otherwise suffer very unfair or inhumane treatment at the hands of a majority.
Unlike the Fifth Amendment's insistence on just compensation for government takings, it does not protect the property rights of what is likely a minority of individuals from the unfair acts of a majority.
Unlike the protections offered by almost all of these same amendments, the right at issue here does not involve as to which judge, a matter, as to which judge is, when you compare them to legislatures, seem to have the greater expertise of application.
We have no reason here to think that the political process is not perfectly capable of safeguarding the interests that the Second Amendment protects.
Fourth, to the contrary of what I have just said, we do have strong reason to believe that incorporation of this private right of self-defense will significantly interfere with other basic constitutional objectives, particularly those related to the Constitution's assignment of different tasks to different institutions, to legislatures and to courts, to states and to the Federal Government.
For one thing, consider the effect of incorporation on the relationship between courts and legislatures.
Every state and many local communities have highly detailed and complicated regulatory schemes governing nearly every aspect of firearm ownership.
Who can sell guns, how?
Who can purchase guns, how?
Where they can be possessed, what kinds and so forth.
Each of these regulations is now a potential subject of a federal constitutional challenge and how our federal judges suppose to decide all this issues.
Certainly, the stakes are high.
In nearly every case, the Government is going to argue that those regulations are necessary to help prevent death and injury.
We are told that firearms cause well over 60,000 deaths and injuries in the United States each year.
An amicus brief in the Chicago case says that that handgun ban there may have saved close to a thousand lives since its enactment, but just as they have here, challengers to regulations are going to argue to the contrary.
Well, who is right and how are judges supposed to answer these questions?
Legal reasoning is not just going to somehow mechanically find the answer and you can quote as much as you like Blackstone's saying that, a man's home is his castle or whatever, but that will not give you the answer and courts can't simply ignore the fact that these answers to these kinds of questions will rest on matters of empirical fact.
How can they decide how important the State's regulatory interest is without addressing the consequences of the gun regulation in question?
How can they decide if there is some less restrictive way to further than interest unless they try to figure out what's actually going to happen if those other ways are implemented.
The point is that empirical matters are bound in all these questions and judges just do not know answers to the sorts of questions that they will have to evaluate in order to decide the need for particular kinds of gun regulation, say the extent to which a ban on loaded handguns will help save the lives of homeowners or of children.
Nor do we judges have readily available tools for finding the answers.
I’m not saying they can never do it.
I’m just saying it's not their natural forte.
But at the same time, legislatures do have the ability to do just this kind of thing; to uncover facts, to evaluate the facts, to work out how those evaluations of facts are to given legislative meaning, given the desires of people in their community, they understand facts, they have the tools, they understand the relevance, and legislatures, unlike Article III judges, can be held democratically responsible for their empirically based and (Inaudible) conclusions, that’s their job.
For another thing, consider the effect of incorporation on the constitutional relationship between the states and the Federal Government.
Since the framing, the states have had plenary authority to regulate private use of firearms.
Indeed, such regulation is the quintessential exercise of the police power which traditionally has included the power to protect the lives and whims of all persons within the state.
The Court today substitutes federal regulation for state regulation in this area.
That makes it more difficult for the states to legislate in ways that reflect local preferences and conditions in an area where it is particularly important that they have the freedom to do so.
The incidents of gun ownership and gun violence very substantially, as between crowded cities and rural communities and among different regions of the country, different states and their local communities have historically differed about the need for gun regulation as well as about its proper level.
Federalism, traditionally, means that a, "Single courageous state can serve as a laboratory of democracy in search of the right level of regulations, the level that best balances its individual need to prevent gun violence with its citizens desires to encourage self-defense."
Democracy means that the people can continue to decide these matters by vote.
By way of contrast, incorporation means that a single national standard will be imposed on the people of every state by unelected federal judges.
In some, the police power, the need for local decision making, the superiority of legislative decision making, the lack of manageable judicial standards, the comparative desirability of democratic decision making and the life threatening harm that may flow from setting regulations aside all argue here against incorporation.
Where the incorporation of other rights has been at issue, and Justice Alito's completely right about this, some of these problems have arisen.
But in this instance, all of these problems are present, all at the same time and all likely present in most, perhaps nearly all of the cases in which the constitutionality of a gun regulation is at issue.
And at the same time the general factors present in other cases that had favored incorporation here are absent.
The Court does not examine at great length the factors I have mentioned, but rather it rests review, primarily not exclusively, upon its view of history.
The third part of the dissent explains why that history cannot justify incorporation.
In our view, the Civil War history really shows something about discrimination and why it's wrong, not about possessing guns, these are special rights, but that’s debatable.
But we conclude the historical records shows that states and localities have consistently enacted firearms regulations, including regulations similar to those at issue here throughout our nation's history.
Conclusion, one, the framers did not write the Second Amendment in order to protect a private right of armed self-defense.
Two, there is no consensus if the right is or was fundamental.
Three, no broader constitutional interest or principle supports legal treatment of that right as fundamental.
Four, incorporation is difficult to reconcile with the constitution's allocation of responsibilities between States and the Federal Government, between courts and legislatures.
And five, nothing in 18th, 19th, 20th or 21st Century history shows an unambiguous historical consensus that the right is sufficiently fundamental as to warrant incorporation.
In our view, Heller or no Heller, the Fourteenth Amendment does not incorporate a private right of arm self-defense and apply that right against the states.