McDonald v. City of Chicago , 130 S. Ct. 3020 ( 2010 )


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  • (Slip Opinion)              OCTOBER TERM, 2009                                       1
    Syllabus
    NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
    being done in connection with this case, at the time the opinion is issued.
    The syllabus constitutes no part of the opinion of the Court but has been
    prepared by the Reporter of Decisions for the convenience of the reader.
    See United States v. Detroit Timber & Lumber Co., 
    200 U. S. 321
    , 337.
    SUPREME COURT OF THE UNITED STATES
    Syllabus
    MCDONALD ET AL. v. CITY OF CHICAGO, ILLINOIS,
    ET AL.
    CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
    THE SEVENTH CIRCUIT
    No. 08–1521. Argued March 2, 2010—Decided June 28, 2010
    Two years ago, in District of Columbia v. Heller, 554 U. S. ___, this
    Court held that the Second Amendment protects the right to keep
    and bear arms for the purpose of self-defense and struck down a Dis
    trict of Columbia law that banned the possession of handguns in the
    home. Chicago (hereinafter City) and the village of Oak Park, a Chi
    cago suburb, have laws effectively banning handgun possession by
    almost all private citizens. After Heller, petitioners filed this federal
    suit against the City, which was consolidated with two related ac
    tions, alleging that the City’s handgun ban has left them vulnerable
    to criminals. They sought a declaration that the ban and several re
    lated City ordinances violate the Second and Fourteenth Amend
    ments. Rejecting petitioners’ argument that the ordinances are un
    constitutional, the court noted that the Seventh Circuit previously
    had upheld the constitutionality of a handgun ban, that Heller had
    explicitly refrained from opining on whether the Second Amendment
    applied to the States, and that the court had a duty to follow estab
    lished Circuit precedent. The Seventh Circuit affirmed, relying on
    three 19th-century cases—United States v. Cruikshank, 
    92 U. S. 542
    ,
    Presser v. Illinois, 
    116 U. S. 252
    , and Miller v. Texas, 
    153 U. S. 535
    —
    which were decided in the wake of this Court’s interpretation of the
    Fourteenth Amendment’s Privileges or Immunities Clause in the
    Slaughter-House Cases, 
    16 Wall. 36
    .
    Held: The judgment is reversed, and the case is remanded.
    
    567 F. 3d 856
    , reversed and remanded.
    JUSTICE ALITO delivered the opinion of the Court with respect to
    Parts I, II–A, II–B, II–D, III–A, and III–B, concluding that the Four
    2                        MCDONALD v. CHICAGO
    Syllabus
    teenth Amendment incorporates the Second Amendment right, rec
    ognized in Heller, to keep and bear arms for the purpose of self
    defense. Pp. 5–9, 11–19, 19–33.
    (a) Petitioners base their case on two submissions. Primarily, they
    argue that the right to keep and bear arms is protected by the Privi
    leges or Immunities Clause of the Fourteenth Amendment and that
    the Slaughter-House Cases’ narrow interpretation of the Clause
    should now be rejected. As a secondary argument, they contend that
    the Fourteenth Amendment’s Due Process Clause incorporates the
    Second Amendment right. Chicago and Oak Park (municipal respon
    dents) maintain that a right set out in the Bill of Rights applies to
    the States only when it is an indispensable attribute of any “ ‘civi
    lized’ ” legal system. If it is possible to imagine a civilized country
    that does not recognize the right, municipal respondents assert, that
    right is not protected by due process. And since there are civilized
    countries that ban or strictly regulate the private possession of hand
    guns, they maintain that due process does not preclude such meas
    ures. Pp. 4–5.
    (b) The Bill of Rights, including the Second Amendment, originally
    applied only to the Federal Government, not to the States, see, e.g.,
    Barron ex rel. Tiernan v. Mayor of Baltimore, 
    7 Pet. 243
    , 247, but the
    constitutional Amendments adopted in the Civil War’s aftermath
    fundamentally altered the federal system. Four years after the adop
    tion of the Fourteenth Amendment, this Court held in the Slaughter-
    House Cases, that the Privileges or Immunities Clause protects only
    those rights “which owe their existence to the Federal government,
    its National character, its Constitution, or its laws,” 
    16 Wall., at 79
    ,
    and that the fundamental rights predating the creation of the Fed
    eral Government were not protected by the Clause, 
    id., at 76
    . Under
    this narrow reading, the Court held that the Privileges or Immunities
    Clause protects only very limited rights. 
    Id.,
     at 79–80. Subse
    quently, the Court held that the Second Amendment applies only to
    the Federal Government in Cruikshank, 
    92 U. S. 542
    , Presser, 
    116 U. S. 252
    , and Miller, 
    153 U. S. 535
    , the decisions on which the Sev
    enth Circuit relied in this case. Pp. 5–9.
    (c) Whether the Second Amendment right to keep and bear arms
    applies to the States is considered in light of the Court’s precedents
    applying the Bill of Rights’ protections to the States. Pp. 11–19.
    (1) In the late 19th century, the Court began to hold that the Due
    Process Clause prohibits the States from infringing Bill of Rights pro
    tections. See, e.g., Hurtado v. California, 
    110 U. S. 516
    . Five fea
    tures of the approach taken during the ensuing era are noted. First,
    the Court viewed the due process question as entirely separate from
    the question whether a right was a privilege or immunity of national
    Cite as: 561 U. S. ____ (2010)                    3
    Syllabus
    citizenship. See Twining v. New Jersey, 
    211 U. S. 78
    , 99. Second, the
    Court explained that the only rights due process protected against
    state infringement were those “of such a nature that they are in
    cluded in the conception of due process of law.” 
    Ibid.
     Third, some
    cases during this era “can be seen as having asked . . . if a civilized
    system could be imagined that would not accord the particular pro
    tection” asserted therein. Duncan v. Louisiana, 
    391 U. S. 145
    , 149,
    n. 14. Fourth, the Court did not hesitate to hold that a Bill of Rights
    guarantee failed to meet the test for Due Process Clause protection,
    finding, e.g., that freedom of speech and press qualified, Gitlow v.
    New York, 
    268 U. S. 652
    , 666; Near v. Minnesota ex rel. Olson, 
    283 U. S. 697
    , but the grand jury indictment requirement did not, Hur
    tado, supra. Finally, even when such a right was held to fall within
    the conception of due process, the protection or remedies afforded
    against state infringement sometimes differed from those provided
    against abridgment by the Federal Government. Pp. 11–13.
    (2) Justice Black championed the alternative theory that §1 of
    the Fourteenth Amendment totally incorporated all of the Bill of
    Rights’ provisions, see, e.g., Adamson v. California, 
    332 U. S. 46
    , 71–
    72 (Black, J., dissenting), but the Court never has embraced that the
    ory. Pp. 13–15.
    (3) The Court eventually moved in the direction advocated by
    Justice Black, by adopting a theory of selective incorporation by
    which the Due Process Clause incorporates particular rights con
    tained in the first eight Amendments. See, e.g., Gideon v. Wainwright,
    
    372 U. S. 335
    , 341. These decisions abandoned three of the charac
    teristics of the earlier period. The Court clarified that the governing
    standard is whether a particular Bill of Rights protection is funda
    mental to our Nation’s particular scheme of ordered liberty and sys
    tem of justice. Duncan, 
    supra, at 149, n. 14
    . The Court eventually
    held that almost all of the Bill of Rights’ guarantees met the re
    quirements for protection under the Due Process Clause. The Court
    also held that Bill of Rights protections must “all . . . be enforced
    against the States under the Fourteenth Amendment according to
    the same standards that protect those personal rights against federal
    encroachment.” Malloy v. Hogan, 
    378 U. S. 1
    , 10. Under this ap
    proach, the Court overruled earlier decisions holding that particular
    Bill of Rights guarantees or remedies did not apply to the States.
    See, e.g., Gideon, 
    supra,
     which overruled Betts v. Brady, 
    316 U. S. 455
    . Pp. 15–19.
    (d) The Fourteenth Amendment makes the Second Amendment
    right to keep and bear arms fully applicable to the States. Pp. 19–33.
    (1) The Court must decide whether that right is fundamental to
    the Nation’s scheme of ordered liberty, Duncan v. Louisiana, 391
    4                        MCDONALD v. CHICAGO
    Syllabus
    U. S. 145, 149, or, as the Court has said in a related context, whether
    it is “deeply rooted in this Nation’s history and tradition,” Washing
    ton v. Glucksberg, 
    521 U. S. 702
    , 721. Heller points unmistakably to
    the answer. Self-defense is a basic right, recognized by many legal
    systems from ancient times to the present, and the Heller Court held
    that individual self-defense is “the central component” of the Second
    Amendment right. 554 U. S., at ___, ___. Explaining that “the need
    for defense of self, family, and property is most acute” in the home,
    ibid., the Court found that this right applies to handguns because
    they are “the most preferred firearm in the nation to ‘keep’ and use
    for protection of one’s home and family,” 
    id.,
     at ___, ___–___. It thus
    concluded that citizens must be permitted “to use [handguns] for the
    core lawful purpose of self-defense.” 
    Id.,
     at ___. Heller also clarifies
    that this right is “deeply rooted in this Nation’s history and tradi
    tions,” Glucksberg, 
    supra, at 721
    . Heller explored the right’s origins
    in English law and noted the esteem with which the right was re
    garded during the colonial era and at the time of the ratification of
    the Bill of Rights. This is powerful evidence that the right was re
    garded as fundamental in the sense relevant here. That understand
    ing persisted in the years immediately following the Bill of Rights’
    ratification and is confirmed by the state constitutions of that era,
    which protected the right to keep and bear arms. Pp. 19–22.
    (2) A survey of the contemporaneous history also demonstrates
    clearly that the Fourteenth Amendment’s Framers and ratifiers
    counted the right to keep and bear arms among those fundamental
    rights necessary to the Nation’s system of ordered liberty. Pp. 22–33.
    (i) By the 1850’s, the fear that the National Government would
    disarm the universal militia had largely faded, but the right to keep
    and bear arms was highly valued for self-defense. Abolitionist au
    thors wrote in support of the right, and attempts to disarm “Free-
    Soilers” in “Bloody Kansas,” met with outrage that the constitutional
    right to keep and bear arms had been taken from the people. After
    the Civil War, the Southern States engaged in systematic efforts to
    disarm and injure African Americans, see Heller, supra, at ___.
    These injustices prompted the 39th Congress to pass the Freedmen’s
    Bureau Act of 1866 and the Civil Rights Act of 1866 to protect the
    right to keep and bear arms. Congress, however, ultimately deemed
    these legislative remedies insufficient, and approved the Fourteenth
    Amendment. Today, it is generally accepted that that Amendment
    was understood to provide a constitutional basis for protecting the
    rights set out in the Civil Rights Act. See General Building Contrac
    tors Assn., Inc. v. Pennsylvania, 
    458 U. S. 375
    , 389. In Congressional
    debates on the proposed Amendment, its legislative proponents in the
    39th Congress referred to the right to keep and bear arms as a fun
    Cite as: 561 U. S. ____ (2010)                     5
    Syllabus
    damental right deserving of protection. Evidence from the period
    immediately following the Amendment’s ratification confirms that
    that right was considered fundamental. Pp. 22–31.
    (ii) Despite all this evidence, municipal respondents argue that
    Members of Congress overwhelmingly viewed §1 of the Fourteenth
    Amendment as purely an antidiscrimination rule. But while §1 does
    contain an antidiscrimination rule, i.e., the Equal Protection Clause,
    it can hardly be said that the section does no more than prohibit dis
    crimination. If what municipal respondents mean is that the Second
    Amendment should be singled out for special—and specially unfavor
    able—treatment, the Court rejects the suggestion. The right to keep
    and bear arms must be regarded as a substantive guarantee, not a
    prohibition that could be ignored so long as the States legislated in
    an evenhanded manner. Pp. 30–33.
    JUSTICE ALITO, joined by THE CHIEF JUSTICE, JUSTICE SCALIA, and
    JUSTICE KENNEDY, concluded, in Parts II–C, IV, and V, that the Four
    teenth Amendment’s Due Process Clause incorporates the Second
    Amendment right recognized in Heller. Pp. 10–11, 33–44.
    (a) Petitioners argue that that the Second Amendment right is one
    of the “privileges or immunities of citizens of the United States.”
    There is no need to reconsider the Court’s interpretation of the Privi
    leges or Immunities Clause in the Slaughter-House Cases because,
    for many decades, the Court has analyzed the question whether par
    ticular rights are protected against state infringement under the
    Fourteenth Amendment’s Due Process Clause. Pp. 10–11.
    (b) Municipal respondents’ remaining arguments are rejected be
    cause they are at war with Heller’s central holding. In effect, they
    ask the Court to hold the right to keep and bear arms as subject to a
    different body of rules for incorporation than the other Bill of Rights
    guarantees. Pp. 33–40.
    (c) The dissents’ objections are addressed and rejected. Pp. 41–44.
    JUSTICE THOMAS agreed that the Fourteenth Amendment makes
    the Second Amendment right to keep and bear arms that was recog
    nized in District of Columbia v. Heller, 554 U. S. ___, fully applicable
    to the States. However, he asserted, there is a path to this conclusion
    that is more straightforward and more faithful to the Second
    Amendment’s text and history. The Court is correct in describing the
    Second Amendment right as “fundamental” to the American scheme
    of ordered liberty, Duncan v. Louisiana, 
    391 U. S. 145
    , 149, and
    “deeply rooted in this Nation’s history and traditions,” Washington v.
    Glucksberg, 
    521 U. S. 702
    , 721. But the Fourteenth Amendment’s
    Due Process Clause, which speaks only to “process,” cannot impose
    the type of substantive restraint on state legislation that the Court
    asserts. Rather, the right to keep and bear arms is enforceable
    6                        MCDONALD v. CHICAGO
    Syllabus
    against the States because it is a privilege of American citizenship
    recognized by §1 of the Fourteenth Amendment, which provides, inter
    alia: “No State shall make or enforce any law which shall abridge the
    privileges or immunities of citizens of the United States.” In inter
    preting this language, it is important to recall that constitutional
    provisions are “ ‘written to be understood by the voters.’ ” Heller, 554
    U. S., at ___. The objective of this inquiry is to discern what “ordi
    nary citizens” at the time of the Fourteenth Amendment’s ratification
    would have understood that Amendment's Privileges or Immunities
    Clause to mean. Ibid. A survey of contemporary legal authorities
    plainly shows that, at that time, the ratifying public understood the
    Clause to protect constitutionally enumerated rights, including the
    right to keep and bear arms. Pp. 1–34.
    ALITO, J., announced the judgment of the Court and delivered the
    opinion of the Court with respect to Parts I, II–A, II–B, II–D, III–A, and
    III–B, in which ROBERTS, C. J., and SCALIA, KENNEDY, and THOMAS, JJ.,
    joined, and an opinion with respect to Parts II–C, IV, and V, in which
    ROBERTS, C. J., and SCALIA and KENNEDY, JJ., join. SCALIA, J., filed a
    concurring opinion. THOMAS, J., filed an opinion concurring in part and
    concurring in the judgment. STEVENS, J., filed a dissenting opinion.
    BREYER, J., filed a dissenting opinion, in which GINSBURG and SO-
    TOMAYOR, JJ., joined.
    Cite as: 561 U. S. ____ (2010)                              1
    Opinion of the Court
    NOTICE: This opinion is subject to formal revision before publication in the
    preliminary print of the United States Reports. Readers are requested to
    notify the Reporter of Decisions, Supreme Court of the United States, Wash
    ington, D. C. 20543, of any typographical or other formal errors, in order
    that corrections may be made before the preliminary print goes to press.
    SUPREME COURT OF THE UNITED STATES
    _________________
    No. 08–1521
    _________________
    OTIS MCDONALD, ET AL., PETITIONERS v. CITY OF
    CHICAGO, ILLINOIS, ET AL.
    ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
    APPEALS FOR THE SEVENTH CIRCUIT
    [June 28, 2010]
    JUSTICE ALITO announced the judgment of the Court
    and delivered the opinion of the Court with respect to
    Parts I, II–A, II–B, II–D, III–A, and III–B, in which THE
    CHIEF JUSTICE, JUSTICE SCALIA, JUSTICE KENNEDY, and
    JUSTICE THOMAS join, and an opinion with respect to
    Parts II–C, IV, and V, in which THE CHIEF JUSTICE,
    JUSTICE SCALIA, and JUSTICE KENNEDY join.
    Two years ago, in District of Columbia v. Heller, 554
    U. S. ___ (2008), we held that the Second Amendment
    protects the right to keep and bear arms for the purpose of
    self-defense, and we struck down a District of Columbia
    law that banned the possession of handguns in the home.
    The city of Chicago (City) and the village of Oak Park, a
    Chicago suburb, have laws that are similar to the District
    of Columbia’s, but Chicago and Oak Park argue that their
    laws are constitutional because the Second Amendment
    has no application to the States. We have previously held
    that most of the provisions of the Bill of Rights apply with
    full force to both the Federal Government and the States.
    Applying the standard that is well established in our case
    law, we hold that the Second Amendment right is fully
    2                     MCDONALD v. CHICAGO
    Opinion of the Court
    applicable to the States.
    I
    Otis McDonald, Adam Orlov, Colleen Lawson, and
    David Lawson (Chicago petitioners) are Chicago residents
    who would like to keep handguns in their homes for self
    defense but are prohibited from doing so by Chicago’s
    firearms laws. A City ordinance provides that “[n]o person
    shall . . . possess . . . any firearm unless such person is the
    holder of a valid registration certificate for such firearm.”
    Chicago, Ill., Municipal Code §8–20–040(a) (2009). The
    Code then prohibits registration of most handguns, thus
    effectively banning handgun possession by almost all
    private citizens who reside in the City. §8–20–050(c).
    Like Chicago, Oak Park makes it “unlawful for any person
    to possess . . . any firearm,” a term that includes “pistols,
    revolvers, guns and small arms . . . commonly known as
    handguns.” Oak Park, Ill., Municipal Code §§27–2–1
    (2007), 27–1–1 (2009).
    Chicago enacted its handgun ban to protect its residents
    “from the loss of property and injury or death from fire
    arms.” See Chicago, Ill., Journal of Proceedings of the
    City Council, p. 10049 (Mar. 19, 1982). The Chicago peti
    tioners and their amici, however, argue that the handgun
    ban has left them vulnerable to criminals. Chicago Police
    Department statistics, we are told, reveal that the City’s
    handgun murder rate has actually increased since the ban
    was enacted1 and that Chicago residents now face one of
    the highest murder rates in the country and rates of other
    violent crimes that exceed the average in comparable
    cities.2
    ——————
    1 See Brief for Heartland Institute as Amicus Curiae 6–7 (noting that
    handgun murder rate was 9.65 in 1983 and 13.88 in 2008).
    2 Brief for Buckeye Firearms Foundation, Inc., et al. as Amici Curiae
    8–9 (“In 2002 and again in 2008, Chicago had more murders than any
    other city in the U. S., including the much larger Los Angeles and New
    Cite as: 561 U. S. ____ (2010)                   3
    Opinion of the Court
    Several of the Chicago petitioners have been the targets
    of threats and violence. For instance, Otis McDonald, who
    is in his late seventies, lives in a high-crime neighborhood.
    He is a community activist involved with alternative
    policing strategies, and his efforts to improve his
    neighborhood have subjected him to violent threats from
    drug dealers. App. 16–17; Brief for State Firearm Associa
    tions as Amici Curiae 20–21; Brief for State of Texas et al.
    as Amici Curiae 7–8. Colleen Lawson is a Chicago resi
    dent whose home has been targeted by burglars. “In Mrs.
    Lawson’s judgment, possessing a handgun in Chicago
    would decrease her chances of suffering serious injury or
    death should she ever be threatened again in her home.”3
    McDonald, Lawson, and the other Chicago petitioners own
    handguns that they store outside of the city limits, but
    they would like to keep their handguns in their homes for
    protection. See App. 16–19, 43–44 (McDonald), 20–24 (C.
    Lawson), 19, 36 (Orlov), 20–21, 40 (D. Lawson).
    After our decision in Heller, the Chicago petitioners and
    two groups4 filed suit against the City in the United States
    District Court for the Northern District of Illinois. They
    sought a declaration that the handgun ban and several
    related Chicago ordinances violate the Second and Four
    teenth Amendments to the United States Constitution.
    Another action challenging the Oak Park law was filed in
    the same District Court by the National Rifle Association
    (NRA) and two Oak Park residents. In addition, the NRA
    and others filed a third action challenging the Chicago
    ——————
    York” (internal quotation marks omitted)); see also Brief for Interna
    tional Law Enforcement Educators and Trainers Association et al. as
    Amici Curiae 17–21, and App. A (providing comparisons of Chicago’s
    rates of assault, murder, and robbery to average crime rates in 24 other
    large cities).
    3 Brief for Women State Legislators et al. as Amici Curiae 2.
    4 The Illinois State Rifle Association and the Second Amendment
    Foundation, Inc.
    4                  MCDONALD v. CHICAGO
    Opinion of the Court
    ordinances. All three cases were assigned to the same
    District Judge.
    The District Court rejected plaintiffs’ argument that the
    Chicago and Oak Park laws are unconstitutional. See
    App. 83–84; NRA, Inc. v. Oak Park, 
    617 F. Supp. 2d 752
    ,
    754 (ND Ill. 2008). The court noted that the Seventh
    Circuit had “squarely upheld the constitutionality of a ban
    on handguns a quarter century ago,” 
    id.,
     at 753 (citing
    Quilici v. Morton Grove, 
    695 F. 2d 261
     (CA7 1982)), and
    that Heller had explicitly refrained from “opin[ing] on the
    subject of incorporation vel non of the Second Amend
    ment,” NRA, 
    617 F. Supp. 2d, at 754
    . The court observed
    that a district judge has a “duty to follow established
    precedent in the Court of Appeals to which he or she is
    beholden, even though the logic of more recent caselaw
    may point in a different direction.” 
    Id., at 753
    .
    The Seventh Circuit affirmed, relying on three 19th
    century cases—United States v. Cruikshank, 
    92 U. S. 542
    (1876), Presser v. Illinois, 
    116 U. S. 252
     (1886), and Miller
    v. Texas, 
    153 U. S. 535
     (1894)—that were decided in the
    wake of this Court’s interpretation of the Privileges or
    Immunities Clause of the Fourteenth Amendment in the
    Slaughter-House Cases, 
    16 Wall. 36
     (1873). The Seventh
    Circuit described the rationale of those cases as “defunct”
    and recognized that they did not consider the question
    whether the Fourteenth Amendment’s Due Process Clause
    incorporates the Second Amendment right to keep and
    bear arms. NRA, Inc. v. Chicago, 
    567 F. 3d 856
    , 857, 858
    (2009). Nevertheless, the Seventh Circuit observed that it
    was obligated to follow Supreme Court precedents that
    have “direct application,” and it declined to predict how
    the Second Amendment would fare under this Court’s
    modern “selective incorporation” approach. 
    Id.,
     at 857–
    858 (internal quotation marks omitted).
    We granted certiorari. 557 U. S. ___ (2009).
    Cite as: 561 U. S. ____ (2010)            5
    Opinion of the Court
    II
    A
    Petitioners argue that the Chicago and Oak Park laws
    violate the right to keep and bear arms for two reasons.
    Petitioners’ primary submission is that this right is among
    the “privileges or immunities of citizens of the United
    States” and that the narrow interpretation of the Privi
    leges or Immunities Clause adopted in the Slaughter-
    House Cases, 
    supra,
     should now be rejected. As a secon
    dary argument, petitioners contend that the Fourteenth
    Amendment’s Due Process Clause “incorporates” the
    Second Amendment right.
    Chicago and Oak Park (municipal respondents) main
    tain that a right set out in the Bill of Rights applies to the
    States only if that right is an indispensable attribute of
    any “ ‘civilized’ ” legal system. Brief for Municipal Respon
    dents 9. If it is possible to imagine a civilized country that
    does not recognize the right, the municipal respondents
    tell us, then that right is not protected by due process.
    
    Ibid.
     And since there are civilized countries that ban or
    strictly regulate the private possession of handguns, the
    municipal respondents maintain that due process does not
    preclude such measures. 
    Id.,
     at 21–23. In light of the
    parties’ far-reaching arguments, we begin by recounting
    this Court’s analysis over the years of the relationship
    between the provisions of the Bill of Rights and the States.
    B
    The Bill of Rights, including the Second Amendment,
    originally applied only to the Federal Government. In
    Barron ex rel. Tiernan v. Mayor of Baltimore, 
    7 Pet. 243
    (1833), the Court, in an opinion by Chief Justice Marshall,
    explained that this question was “of great importance” but
    “not of much difficulty.” 
    Id., at 247
    . In less than four
    pages, the Court firmly rejected the proposition that the
    first eight Amendments operate as limitations on the
    6                 MCDONALD v. CHICAGO
    Opinion of the Court
    States, holding that they apply only to the Federal Gov
    ernment. See also Lessee of Livingston v. Moore, 
    7 Pet. 469
    , 551–552 (1833) (“[I]t is now settled that those amend
    ments [in the Bill of Rights] do not extend to the states”).
    The constitutional Amendments adopted in the after
    math of the Civil War fundamentally altered our country’s
    federal system. The provision at issue in this case, §1 of
    the Fourteenth Amendment, provides, among other
    things, that a State may not abridge “the privileges or
    immunities of citizens of the United States” or deprive
    “any person of life, liberty, or property, without due proc
    ess of law.”
    Four years after the adoption of the Fourteenth
    Amendment, this Court was asked to interpret the
    Amendment’s reference to “the privileges or immunities of
    citizens of the United States.” The Slaughter-House
    Cases, supra, involved challenges to a Louisiana law per
    mitting the creation of a state-sanctioned monopoly on the
    butchering of animals within the city of New Orleans.
    Justice Samuel Miller’s opinion for the Court concluded
    that the Privileges or Immunities Clause protects only
    those rights “which owe their existence to the Federal
    government, its National character, its Constitution, or its
    laws.” Id., at 79. The Court held that other fundamental
    rights—rights that predated the creation of the Federal
    Government and that “the State governments were cre
    ated to establish and secure”—were not protected by the
    Clause. Id., at 76.
    In drawing a sharp distinction between the rights of
    federal and state citizenship, the Court relied on two
    principal arguments. First, the Court emphasized that
    the Fourteenth Amendment’s Privileges or Immunities
    Clause spoke of “the privileges or immunities of citizens of
    the United States,” and the Court contrasted this phrasing
    with the wording in the first sentence of the Fourteenth
    Amendment and in the Privileges and Immunities Clause
    Cite as: 561 U. S. ____ (2010)                      7
    Opinion of the Court
    of Article IV, both of which refer to state citizenship.5
    (Emphasis added.) Second, the Court stated that a con
    trary reading would “radically chang[e] the whole theory
    of the relations of the State and Federal governments to
    each other and of both these governments to the people,”
    and the Court refused to conclude that such a change had
    been made “in the absence of language which expresses
    such a purpose too clearly to admit of doubt.” Id., at 78.
    Finding the phrase “privileges or immunities of citizens of
    the United States” lacking by this high standard, the
    Court reasoned that the phrase must mean something
    more limited.
    Under the Court’s narrow reading, the Privileges or
    Immunities Clause protects such things as the right
    “to come to the seat of government to assert any claim
    [a citizen] may have upon that government, to trans
    act any business he may have with it, to seek its pro
    tection, to share its offices, to engage in administering
    its functions . . . [and to] become a citizen of any State
    of the Union by a bonâ fide residence therein, with the
    same rights as other citizens of that State.” Id., at
    79–80 (internal quotation marks omitted).
    Finding no constitutional protection against state intru
    sion of the kind envisioned by the Louisiana statute, the
    Court upheld the statute. Four Justices dissented. Jus
    tice Field, joined by Chief Justice Chase and Justices
    Swayne and Bradley, criticized the majority for reducing
    the Fourteenth Amendment’s Privileges or Immunities
    ——————
    5 The first sentence of the Fourteenth Amendment makes “[a]ll per
    sons born or naturalized in the United States and subject to the juris
    diction thereof . . . citizens of the United States and of the State wherein
    they reside.” (Emphasis added.) The Privileges and Immunities Clause
    of Article IV provides that “[t]he Citizens of each State shall be entitled
    to all Privileges and Immunities of Citizens in the several States.”
    (Emphasis added.)
    8                  MCDONALD v. CHICAGO
    Opinion of the Court
    Clause to “a vain and idle enactment, which accomplished
    nothing, and most unnecessarily excited Congress and the
    people on its passage.” Id., at 96; see also id., at 104.
    Justice Field opined that the Privileges or Immunities
    Clause protects rights that are “in their nature . . . funda
    mental,” including the right of every man to pursue his
    profession without the imposition of unequal or discrimi
    natory restrictions. Id., at 96–97. Justice Bradley’s dis
    sent observed that “we are not bound to resort to implica
    tion . . . to find an authoritative declaration of some of the
    most important privileges and immunities of citizens of
    the United States. It is in the Constitution itself.” Id., at
    118. Justice Bradley would have construed the Privileges
    or Immunities Clause to include those rights enumerated
    in the Constitution as well as some unenumerated rights.
    Id., at 119. Justice Swayne described the majority’s nar
    row reading of the Privileges or Immunities Clause as
    “turn[ing] . . . what was meant for bread into a stone.” Id.,
    at 129 (dissenting opinion).
    Today, many legal scholars dispute the correctness of
    the narrow Slaughter-House interpretation. See, e.g.,
    Saenz v. Roe, 
    526 U. S. 489
    , 522, n. 1, 527 (1999) (THOMAS,
    J., dissenting) (scholars of the Fourteenth Amendment
    agree “that the Clause does not mean what the Court said
    it meant in 1873”); Amar, Substance and Method in the
    Year 2000, 28 Pepperdine L. Rev. 601, 631, n. 178 (2001)
    (“Virtually no serious modern scholar—left, right, and
    center—thinks that this [interpretation] is a plausible
    reading of the Amendment”); Brief for Constitutional Law
    Professors as Amici Curiae 33 (claiming an “overwhelming
    consensus among leading constitutional scholars” that the
    opinion is “egregiously wrong”); C. Black, A New Birth of
    Freedom 74–75 (1997).
    Three years after the decision in the Slaughter-House
    Cases, the Court decided Cruikshank, the first of the three
    19th-century cases on which the Seventh Circuit relied.
    Cite as: 561 U. S. ____ (2010)                    9
    Opinion of the Court
    
    92 U. S. 542
    . In that case, the Court reviewed convictions
    stemming from the infamous Colfax Massacre in Louisi
    ana on Easter Sunday 1873. Dozens of blacks, many
    unarmed, were slaughtered by a rival band of armed white
    men.6 Cruikshank himself allegedly marched unarmed
    African-American prisoners through the streets and then
    had them summarily executed.7 Ninety-seven men were
    indicted for participating in the massacre, but only nine
    went to trial. Six of the nine were acquitted of all charges;
    the remaining three were acquitted of murder but con
    victed under the Enforcement Act of 1870, 
    16 Stat. 140
    , for
    banding and conspiring together to deprive their victims of
    various constitutional rights, including the right to bear
    arms.8
    The Court reversed all of the convictions, including
    those relating to the deprivation of the victims’ right to
    bear arms. Cruikshank, 
    92 U. S., at 553, 559
    . The Court
    wrote that the right of bearing arms for a lawful purpose
    “is not a right granted by the Constitution” and is not “in
    any manner dependent upon that instrument for its exis
    tence.” 
    Id., at 553
    . “The second amendment,” the Court
    continued, “declares that it shall not be infringed; but this
    . . . means no more than that it shall not be infringed by
    Congress.” 
    Ibid.
     “Our later decisions in Presser v. Illinois,
    
    116 U. S. 252
    , 265 (1886), and Miller v. Texas, 
    153 U. S. 535
    , 538 (1894), reaffirmed that the Second Amendment
    applies only to the Federal Government.” Heller, 554
    U. S., at ___, n. 23 (slip op., at 48, n. 23).
    ——————
    6 See C. Lane, The Day Freedom Died 265–266 (2008); see also Brief
    for NAACP Legal Defense & Education Fund, Inc., as Amicus Curiae 3,
    and n. 2.
    7 See Lane, supra, at 106.
    8 United States v. Cruikshank, 
    92 U. S. 542
    , 544–545 (statement of
    the case), 548, 553 (opinion of the Court) (1875); Lawrence, Civil Rights
    and Criminal Wrongs: The Mens Rea of Federal Civil Rights Crimes, 67
    Tulane L. Rev. 2113, 2153 (1993).
    10                 MCDONALD v. CHICAGO
    Opinion of the Court
    Opinion of ALITO, J.
    C
    As previously noted, the Seventh Circuit concluded that
    Cruikshank, Presser, and Miller doomed petitioners’
    claims at the Court of Appeals level. Petitioners argue,
    however, that we should overrule those decisions and hold
    that the right to keep and bear arms is one of the “privi
    leges or immunities of citizens of the United States.” In
    petitioners’ view, the Privileges or Immunities Clause
    protects all of the rights set out in the Bill of Rights, as
    well as some others, see Brief for Petitioners 10, 14, 15–21,
    but petitioners are unable to identify the Clause’s full
    scope, Tr. of Oral Arg. 5–6, 8–11. Nor is there any consen
    sus on that question among the scholars who agree that
    the Slaughter-House Cases’ interpretation is flawed. See
    Saenz, 
    supra, at 522, n. 1
     (THOMAS, J., dissenting).
    We see no need to reconsider that interpretation here.
    For many decades, the question of the rights protected by
    the Fourteenth Amendment against state infringement
    has been analyzed under the Due Process Clause of that
    Amendment and not under the Privileges or Immunities
    Clause. We therefore decline to disturb the Slaughter-
    House holding.
    At the same time, however, this Court’s decisions in
    Cruikshank, Presser, and Miller do not preclude us from
    considering whether the Due Process Clause of the Four
    teenth Amendment makes the Second Amendment right
    binding on the States. See Heller, 554 U. S., at ___, n. 23
    (slip op., at 48, n. 23). None of those cases “engage[d] in
    the sort of Fourteenth Amendment inquiry required by
    our later cases.” 
    Ibid.
     As explained more fully below,
    Cruikshank, Presser, and Miller all preceded the era in
    which the Court began the process of “selective incorpo
    ration” under the Due Process Clause, and we have never
    previously addressed the question whether the right to
    keep and bear arms applies to the States under that
    theory.
    Cite as: 561 U. S. ____ (2010)           11
    Opinion of the Court
    Indeed, Cruikshank has not prevented us from holding
    that other rights that were at issue in that case are bind
    ing on the States through the Due Process Clause. In
    Cruikshank, the Court held that the general “right of the
    people peaceably to assemble for lawful purposes,” which
    is protected by the First Amendment, applied only against
    the Federal Government and not against the States. See
    
    92 U. S., at
    551–552. Nonetheless, over 60 years later the
    Court held that the right of peaceful assembly was a “fun
    damental righ[t] . . . safeguarded by the due process clause
    of the Fourteenth Amendment.” De Jonge v. Oregon, 
    299 U. S. 353
    , 364 (1937). We follow the same path here and
    thus consider whether the right to keep and bear arms
    applies to the States under the Due Process Clause.
    D
    1
    In the late 19th century, the Court began to consider
    whether the Due Process Clause prohibits the States from
    infringing rights set out in the Bill of Rights. See Hurtado
    v. California, 
    110 U. S. 516
     (1884) (due process does not
    require grand jury indictment); Chicago, B. & Q. R. Co. v.
    Chicago, 
    166 U. S. 226
     (1897) (due process prohibits
    States from taking of private property for public use with
    out just compensation). Five features of the approach
    taken during the ensuing era should be noted.
    First, the Court viewed the due process question as
    entirely separate from the question whether a right was a
    privilege or immunity of national citizenship. See Twin
    ing v. New Jersey, 
    211 U. S. 78
    , 99 (1908).
    Second, the Court explained that the only rights pro
    tected against state infringement by the Due Process
    Clause were those rights “of such a nature that they are
    included in the conception of due process of law.” 
    Ibid.
    See also, e.g., Adamson v. California, 
    332 U. S. 46
     (1947);
    Betts v. Brady, 
    316 U. S. 455
     (1942); Palko v. Connecticut,
    12                MCDONALD v. CHICAGO
    Opinion of the Court
    
    302 U. S. 319
     (1937); Grosjean v. American Press Co., 
    297 U. S. 233
     (1936); Powell v. Alabama, 
    287 U. S. 45
     (1932).
    While it was “possible that some of the personal rights
    safeguarded by the first eight Amendments against Na
    tional action [might] also be safeguarded against state
    action,” the Court stated, this was “not because those
    rights are enumerated in the first eight Amendments.”
    Twining, 
    supra, at 99
    .
    The Court used different formulations in describing the
    boundaries of due process. For example, in Twining, the
    Court referred to “immutable principles of justice which
    inhere in the very idea of free government which no mem
    ber of the Union may disregard.” 
    211 U. S., at 102
     (inter
    nal quotation marks omitted). In Snyder v. Massachu
    setts, 
    291 U. S. 97
    , 105 (1934), the Court spoke of rights
    that are “so rooted in the traditions and conscience of our
    people as to be ranked as fundamental.” And in Palko, the
    Court famously said that due process protects those rights
    that are “the very essence of a scheme of ordered liberty”
    and essential to “a fair and enlightened system of justice.”
    
    302 U. S., at 325
    .
    Third, in some cases decided during this era the Court
    “can be seen as having asked, when inquiring into
    whether some particular procedural safeguard was re
    quired of a State, if a civilized system could be imagined
    that would not accord the particular protection.” Duncan
    v. Louisiana, 
    391 U. S. 145
    , 149, n. 14 (1968). Thus, in
    holding that due process prohibits a State from taking
    private property without just compensation, the Court
    described the right as “a principle of natural equity, rec
    ognized by all temperate and civilized governments, from
    a deep and universal sense of its justice.” Chicago, B. &
    Q. R. Co., supra, at 238. Similarly, the Court found that
    due process did not provide a right against compelled
    incrimination in part because this right “has no place in
    the jurisprudence of civilized and free countries outside
    Cite as: 561 U. S. ____ (2010)           13
    Opinion of the Court
    the domain of the common law.” Twining, supra, at 113.
    Fourth, the Court during this era was not hesitant to
    hold that a right set out in the Bill of Rights failed to
    meet the test for inclusion within the protection of the
    Due Process Clause. The Court found that some such
    rights qualified. See, e.g., Gitlow v. New York, 
    268 U. S. 652
    , 666 (1925) (freedom of speech and press); Near v.
    Minnesota ex rel. Olson, 
    283 U. S. 697
     (1931) (same);
    Powell, 
    supra
     (assistance of counsel in capital cases); De
    Jonge, 
    supra
     (freedom of assembly); Cantwell v. Con
    necticut, 
    310 U. S. 296
     (1940) (free exercise of religion).
    But others did not. See, e.g., Hurtado, 
    supra
     (grand jury
    indictment requirement); Twining, 
    supra
     (privilege
    against self-incrimination).
    Finally, even when a right set out in the Bill of Rights
    was held to fall within the conception of due process, the
    protection or remedies afforded against state infringement
    sometimes differed from the protection or remedies pro
    vided against abridgment by the Federal Government. To
    give one example, in Betts the Court held that, although
    the Sixth Amendment required the appointment of coun
    sel in all federal criminal cases in which the defendant
    was unable to retain an attorney, the Due Process Clause
    required appointment of counsel in state criminal proceed
    ings only where “want of counsel in [the] particular case
    . . . result[ed] in a conviction lacking in . . . fundamental
    fairness.” 
    316 U. S., at 473
    . Similarly, in Wolf v. Colo
    rado, 
    338 U. S. 25
     (1949), the Court held that the “core of
    the Fourth Amendment” was implicit in the concept of
    ordered liberty and thus “enforceable against the States
    through the Due Process Clause” but that the exclusionary
    rule, which applied in federal cases, did not apply to the
    States. 
    Id.,
     at 27–28, 33.
    2
    An alternative theory regarding the relationship be
    14                    MCDONALD v. CHICAGO
    Opinion of the Court
    tween the Bill of Rights and §1 of the Fourteenth Amend
    ment was championed by Justice Black. This theory held
    that §1 of the Fourteenth Amendment totally incorporated
    all of the provisions of the Bill of Rights. See, e.g.,
    Adamson, 
    supra,
     at 71–72 (Black, J., dissenting); Duncan,
    
    supra, at 166
     (Black, J., concurring). As Justice Black
    noted, the chief congressional proponents of the Four
    teenth Amendment espoused the view that the Amend
    ment made the Bill of Rights applicable to the States and,
    in so doing, overruled this Court’s decision in Barron.9
    Adamson, 
    332 U. S., at 72
     (dissenting opinion).10 None
    ——————
    9 Senator Jacob Howard, who spoke on behalf of the Joint Committee
    on Reconstruction and sponsored the Amendment in the Senate, stated
    that the Amendment protected all of “the personal rights guarantied
    and secured by the first eight amendments of the Constitution.” Cong.
    Globe, 39th Cong., 1st Sess., 2765 (1866) (hereinafter 39th Cong.
    Globe). Representative John Bingham, the principal author of the text
    of §1, said that the Amendment would “arm the Congress . . . with the
    power to enforce the bill of rights as it stands in the Constitution
    today.” Id., at 1088; see also id., at 1089–1090; A. Amar, The Bill of
    Rights: Creation and Reconstruction 183 (1998) (hereinafter Amar, Bill
    of Rights). After ratification of the Amendment, Bingham maintained
    the view that the rights guaranteed by §1 of the Fourteenth Amend
    ment “are chiefly defined in the first eight amendments to the Consti
    tution of the United States.” Cong. Globe, 42d Cong., 1st Sess., App. 84
    (1871). Finally, Representative Thaddeus Stevens, the political leader
    of the House and acting chairman of the Joint Committee on Recon
    struction, stated during the debates on the Amendment that “the
    Constitution limits only the action of Congress, and is not a limitation
    on the States. This amendment supplies that defect, and allows Con
    gress to correct the unjust legislation of the States.” 39th Cong. Globe
    2459; see also M. Curtis, No State Shall Abridge: The Fourteenth
    Amendment and the Bill of Rights 112 (1986) (counting at least 30
    statements during the debates in Congress interpreting §1 to incorpo
    rate the Bill of Rights); Brief for Constitutional Law Professors as
    Amici Curiae 20 (collecting authorities and stating that “[n]ot a single
    senator or representative disputed [the incorporationist] understand
    ing” of the Fourteenth Amendment).
    10 The municipal respondents and some of their amici dispute the
    significance of these statements. They contend that the phrase “privi
    Cite as: 561 U. S. ____ (2010)                   15
    Opinion of the Court
    theless, the Court never has embraced Justice Black’s
    “total incorporation” theory.
    3
    While Justice Black’s theory was never adopted, the
    Court eventually moved in that direction by initiating
    what has been called a process of “selective incorporation,”
    i.e., the Court began to hold that the Due Process Clause
    fully incorporates particular rights contained in the first
    eight Amendments. See, e.g., Gideon v. Wainwright, 
    372 U. S. 335
    , 341 (1963); Malloy v. Hogan, 
    378 U. S. 1
    , 5–6
    ——————
    leges or immunities” is not naturally read to mean the rights set out in
    the first eight Amendments, see Brief for Historians et al. as Amici
    Curiae 13–16, and that “there is ‘support in the legislative history for
    no fewer than four interpretations of the . . . Privileges or Immunities
    Clause.’ ” Brief for Municipal Respondents 69 (quoting Currie, The
    Reconstruction Congress, 
    75 U. Chi. L. Rev. 383
    , 406 (2008); brackets
    omitted). They question whether there is sound evidence of “ ‘any
    strong public awareness of nationalizing the entire Bill of Rights.’ ”
    Brief for Municipal Respondents 69 (quoting Wildenthal, Nationalizing
    the Bill of Rights: Revisiting the Original Understanding of the Four
    teenth Amendment in 1866–67, 68 Ohio St. L. J. 1509, 1600 (2007)).
    Scholars have also disputed the total incorporation theory. See, e.g.,
    Fairman, Does the Fourteenth Amendment Incorporate the Bill of
    Rights? 
    2 Stan. L. Rev. 5
     (1949); Berger, Incorporation of the Bill of
    Rights in the Fourteenth Amendment: A Nine-Lived Cat, 42 Ohio St.
    L. J. 435 (1981).
    Proponents of the view that §1 of the Fourteenth Amendment makes
    all of the provisions of the Bill of Rights applicable to the States re
    spond that the terms privileges, immunities, and rights were used
    interchangeably at the time, see, e.g., Curtis, supra, at 64–65, and that
    the position taken by the leading congressional proponents of the
    Amendment was widely publicized and understood, see, e.g., Wilden
    thal, supra, at 1564–1565, 1590; Hardy, Original Popular Understand
    ing of the Fourteenth Amendment as Reflected in the Print Media of
    1866–1868, 
    30 Whittier L. Rev. 695
     (2009). A number of scholars have
    found support for the total incorporation of the Bill of Rights. See
    Curtis, supra, at 57–130; Aynes, On Misreading John Bingham and the
    Fourteenth Amendment, 103 Yale L. J. 57, 61 (1993); see also Amar,
    Bill of Rights 181–230. We take no position with respect to this aca
    demic debate.
    16                    MCDONALD v. CHICAGO
    Opinion of the Court
    (1964); Pointer v. Texas, 
    380 U. S. 400
    , 403–404 (1965);
    Washington v. Texas, 
    388 U. S. 14
    , 18 (1967); Duncan, 
    391 U. S., at
    147–148; Benton v. Maryland, 
    395 U. S. 784
    , 794
    (1969).
    The decisions during this time abandoned three of the
    previously noted characteristics of the earlier period.11
    The Court made it clear that the governing standard is not
    whether any “civilized system [can] be imagined that
    would not accord the particular protection.” Duncan, 
    391 U. S., at 149, n. 14
    . Instead, the Court inquired whether a
    particular Bill of Rights guarantee is fundamental to our
    scheme of ordered liberty and system of justice. 
    Id., at 149
    , and n. 14; see also 
    id., at 148
     (referring to those
    “fundamental principles of liberty and justice which lie at
    the base of all our civil and political institutions” (empha
    sis added; internal quotation marks omitted)).
    The Court also shed any reluctance to hold that rights
    guaranteed by the Bill of Rights met the requirements for
    protection under the Due Process Clause. The Court
    eventually incorporated almost all of the provisions of the
    Bill of Rights.12 Only a handful of the Bill of Rights pro
    ——————
    11 By contrast, the Court has never retreated from the proposition
    that the Privileges or Immunities Clause and the Due Process Clause
    present different questions. And in recent cases addressing unenumer
    ated rights, we have required that a right also be “implicit in the
    concept of ordered liberty.” See, e.g., Washington v. Glucksberg, 
    521 U. S. 702
    , 721 (1997) (internal quotation marks omitted).
    12 With respect to the First Amendment, see Everson v. Board of Ed.
    of Ewing, 
    330 U. S. 1
     (1947) (Establishment Clause); Cantwell v.
    Connecticut, 
    310 U. S. 296
     (1940) (Free Exercise Clause); De Jonge v.
    Oregon, 
    299 U. S. 353
     (1937) (freedom of assembly); Gitlow v. New
    York, 
    268 U. S. 652
     (1925) (free speech); Near v. Minnesota ex rel.
    Olson, 
    283 U. S. 697
     (1931) (freedom of the press).
    With respect to the Fourth Amendment, see Aguilar v. Texas, 
    378 U. S. 108
     (1964) (warrant requirement); Mapp v. Ohio, 
    367 U. S. 643
    (1961) (exclusionary rule); Wolf v. Colorado, 
    338 U. S. 25
     (1949) (free
    dom from unreasonable searches and seizures).
    With respect to the Fifth Amendment, see Benton v. Maryland, 395
    Cite as: 561 U. S. ____ (2010)                     17
    Opinion of the Court
    tections remain unincorporated.13
    Finally, the Court abandoned “the notion that the Four
    teenth Amendment applies to the States only a watered
    down, subjective version of the individual guarantees of
    the Bill of Rights,” stating that it would be “incongruous”
    to apply different standards “depending on whether the
    claim was asserted in a state or federal court.” Malloy,
    378 U. S., at 10–11 (internal quotation marks omitted).
    Instead, the Court decisively held that incorporated Bill of
    ——————
    U. S. 784 (1969) (Double Jeopardy Clause); Malloy v. Hogan, 
    378 U. S. 1
     (1964) (privilege against self-incrimination); Chicago, B. & Q. R. Co.
    v. Chicago, 
    166 U. S. 226
     (1897) (Just Compensation Clause).
    With respect to the Sixth Amendment, see Duncan v. Louisiana, 
    391 U. S. 145
     (1968) (trial by jury in criminal cases); Washington v. Texas,
    
    388 U. S. 14
     (1967) (compulsory process); Klopfer v. North Carolina,
    
    386 U. S. 213
     (1967) (speedy trial); Pointer v. Texas, 
    380 U. S. 400
    (1965) (right to confront adverse witness); Gideon v. Wainwright, 
    372 U. S. 335
     (1963) (assistance of counsel); In re Oliver, 
    333 U. S. 257
    (1948) (right to a public trial).
    With respect to the Eighth Amendment, see Robinson v. California,
    
    370 U. S. 660
     (1962) (cruel and unusual punishment); Schilb v. Kuebel,
    
    404 U. S. 357
     (1971) (prohibition against excessive bail).
    13 In addition to the right to keep and bear arms (and the Sixth
    Amendment right to a unanimous jury verdict, see n. 14, infra), the
    only rights not fully incorporated are (1) the Third Amendment’s
    protection against quartering of soldiers; (2) the Fifth Amendment’s
    grand jury indictment requirement; (3) the Seventh Amendment right
    to a jury trial in civil cases; and (4) the Eighth Amendment’s prohibi
    tion on excessive fines.
    We never have decided whether the Third Amendment or the Eighth
    Amendment’s prohibition of excessive fines applies to the States
    through the Due Process Clause. See Browning-Ferris Industries of Vt.,
    Inc. v. Kelco Disposal, Inc., 
    492 U. S. 257
    , 276, n. 22 (1989) (declining to
    decide whether the excessive-fines protection applies to the States); see
    also Engblom v. Carey, 
    677 F. 2d 957
    , 961 (CA2 1982) (holding as a
    matter of first impression that the “Third Amendment is incorporated
    into the Fourteenth Amendment for application to the states”).
    Our governing decisions regarding the Grand Jury Clause of the
    Fifth Amendment and the Seventh Amendment’s civil jury requirement
    long predate the era of selective incorporation.
    18                     MCDONALD v. CHICAGO
    Opinion of the Court
    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.” Id., at 10; see also Mapp v. Ohio,
    
    367 U. S. 643
    , 655–656 (1961); Ker v. California, 
    374 U. S. 23
    , 33–34 (1963); Aguilar v. Texas, 
    378 U. S. 108
    , 110
    (1964); Pointer, 
    380 U. S., at 406
    ; Duncan, 
    supra, at 149
    ,
    157–158; Benton, 
    395 U. S., at
    794–795; Wallace v. Jaffree,
    
    472 U. S. 38
    , 48–49 (1985).14
    Employing this approach, the Court overruled earlier
    decisions in which it had held that particular Bill of Rights
    ——————
    14 There is one exception to this general rule. The Court has held that
    although the Sixth Amendment right to trial by jury requires a unani
    mous jury verdict in federal criminal trials, it does not require a
    unanimous jury verdict in state criminal trials. See Apodaca v. Oregon,
    
    406 U. S. 404
     (1972); see also Johnson v. Louisiana, 
    406 U. S. 356
    (1972) (holding that the Due Process Clause does not require unani
    mous jury verdicts in state criminal trials). But that ruling was the
    result of an unusual division among the Justices, not an endorsement
    of the two-track approach to incorporation. In Apodaca, eight Justices
    agreed that the Sixth Amendment applies identically to both the
    Federal Government and the States. See Johnson, 
    supra, at 395
    (Brennan, J., dissenting). Nonetheless, among those eight, four Jus
    tices took the view that the Sixth Amendment does not require unani
    mous jury verdicts in either federal or state criminal trials, Apodaca,
    
    406 U. S., at 406
     (plurality opinion), and four other Justices took the
    view that the Sixth Amendment requires unanimous jury verdicts in
    federal and state criminal trials, 
    id.,
     at 414–415 (Stewart, J., dissent
    ing); Johnson, 
    supra,
     at 381–382 (Douglas, J., dissenting). Justice
    Powell’s concurrence in the judgment broke the tie, and he concluded
    that the Sixth Amendment requires juror unanimity in federal, but not
    state, cases.     Apodaca, therefore, does not undermine the well
    established rule that incorporated Bill of Rights protections apply
    identically to the States and the Federal Government. See Johnson,
    
    supra,
     at 395–396 (Brennan, J., dissenting) (footnote omitted) (“In any
    event, the affirmance must not obscure that the majority of the Court
    remains of the view that, as in the case of every specific of the Bill of
    Rights that extends to the States, the Sixth Amendment’s jury trial
    guarantee, however it is to be construed, has identical application
    against both State and Federal Governments”).
    Cite as: 561 U. S. ____ (2010)                   19
    Opinion of the Court
    guarantees or remedies did not apply to the States. See,
    e.g., Mapp, 
    supra
     (overruling in part Wolf, 
    338 U. S. 25
    );
    Gideon, 
    372 U. S. 335
     (overruling Betts, 
    316 U. S. 455
    );
    Malloy, 
    supra
     (overruling Adamson, 
    332 U. S. 46
    , and
    Twining, 
    211 U. S. 78
    ); Benton, 
    supra, at 794
     (overruling
    Palko, 
    302 U. S. 319
    ).
    III
    With this framework in mind, we now turn directly to
    the question whether the Second Amendment right to
    keep and bear arms is incorporated in the concept of due
    process. In answering that question, as just explained, we
    must decide whether the right to keep and bear arms is
    fundamental to our scheme of ordered liberty, Duncan,
    
    391 U. S., at 149
    , or as we have said in a related context,
    whether this right is “deeply rooted in this Nation’s his
    tory and tradition,” Washington v. Glucksberg, 
    521 U. S. 702
    , 721 (1997) (internal quotation marks omitted).
    A
    Our decision in Heller points unmistakably to the an
    swer. Self-defense is a basic right, recognized by many
    legal systems from ancient times to the present day,15 and
    in Heller, we held that individual self-defense is “the
    central component” of the Second Amendment right. 554
    U. S., at ___ (slip op., at 26); see also 
    id.,
     at ___ (slip op., at
    56) (stating that the “inherent right of self-defense has
    been central to the Second Amendment right”). Explain
    ing that “the need for defense of self, family, and property
    is most acute” in the home, ibid., we found that this right
    applies to handguns because they are “the most preferred
    ——————
    15 Citing Jewish, Greek, and Roman law, Blackstone wrote that if a
    person killed an attacker, “the slayer is in no kind of fault whatsoever,
    not even in the minutest degree; and is therefore to be totally acquitted
    and discharged, with commendation rather than blame.” 4 W. Black
    stone, Commentaries on the Laws of England 182 (reprint 1992).
    20                     MCDONALD v. CHICAGO
    Opinion of the Court
    firearm in the nation to ‘keep’ and use for protection of
    one’s home and family,” 
    id.,
     at ___ (slip op., at 57) (some
    internal quotation marks omitted); see also 
    id.,
     at ___ (slip
    op., at 56) (noting that handguns are “overwhelmingly
    chosen by American society for [the] lawful purpose” of
    self-defense); 
    id.,
     at ___ (slip op., at 57) (“[T]he American
    people have considered the handgun to be the quintessen
    tial self-defense weapon”). Thus, we concluded, citizens
    must be permitted “to use [handguns] for the core lawful
    purpose of self-defense.” 
    Id.,
     at ___ (slip op., at 58).
    Heller makes it clear that this right is “deeply rooted in
    this Nation’s history and tradition.” Glucksberg, 
    supra, at 721
     (internal quotation marks omitted). Heller explored
    the right’s origins, noting that the 1689 English Bill of
    Rights explicitly protected a right to keep arms for self
    defense, 554 U. S., at ___–___ (slip op., at 19–20), and that
    by 1765, Blackstone was able to assert that the right to
    keep and bear arms was “one of the fundamental rights of
    Englishmen,” 
    id.,
     at ___ (slip op., at 20).
    Blackstone’s assessment was shared by the American
    colonists. As we noted in Heller, King George III’s attempt
    to disarm the colonists in the 1760’s and 1770’s “provoked
    polemical reactions by Americans invoking their rights as
    Englishmen to keep arms.”16 
    Id.,
     at ___ (slip op., at 21);
    see also L. Levy, Origins of the Bill of Rights 137–143
    (1999) (hereinafter Levy).
    The right to keep and bear arms was considered no less
    fundamental by those who drafted and ratified the Bill of
    ——————
    16 For example, an article in the Boston Evening Post stated: “For it is
    certainly beyond human art and sophistry, to prove the British sub
    jects, to whom the privilege of possessing arms is expressly recognized
    by the Bill of Rights, and, who live in a province where the law requires
    them to be equip’d with arms, &c. are guilty of an illegal act, in calling
    upon one another to be provided with them, as the law directs.” Boston
    Evening Post, Feb. 6, 1769, in Boston Under Military Rule 1768–1769,
    p. 61 (1936) (emphasis deleted).
    Cite as: 561 U. S. ____ (2010)           21
    Opinion of the Court
    Rights. “During the 1788 ratification debates, the fear
    that the federal government would disarm the people in
    order to impose rule through a standing army or select
    militia was pervasive in Antifederalist rhetoric.” Heller,
    supra, at ___ (slip op., at 25) (citing Letters from the Fed
    eral Farmer III (Oct. 10, 1787), in 2 The Complete Anti-
    Federalist 234, 242 (H. Storing ed. 1981)); see also Federal
    Farmer: An Additional Number of Letters to the Republi
    can, Letter XVIII (Jan. 25, 1788), in 17 Documentary
    History of the Ratification of the Constitution 360, 362–
    363 (J. Kaminski & G. Saladino eds. 1995); S. Halbrook,
    The Founders’ Second Amendment 171–278 (2008). Fed
    eralists responded, not by arguing that the right was
    insufficiently important to warrant protection but by
    contending that the right was adequately protected by the
    Constitution’s assignment of only limited powers to the
    Federal Government. Heller, supra, at ___ (slip op., at 25–
    26); cf. The Federalist No. 46, p. 296 (C. Rossiter ed. 1961)
    (J. Madison). Thus, Antifederalists and Federalists alike
    agreed that the right to bear arms was fundamental to the
    newly formed system of government. See Levy 143–149;
    J. Malcolm, To Keep and Bear Arms: The Origins of an
    Anglo-American Right 155–164 (1994). But those who
    were fearful that the new Federal Government would
    infringe traditional rights such as the right to keep and
    bear arms insisted on the adoption of the Bill of Rights as
    a condition for ratification of the Constitution. See 1 J.
    Elliot, The Debates in the Several State Conventions on
    the Adoption of the Federal Constitution 327–331 (2d ed.
    1854); 3 id., at 657–661; 4 id., at 242–246, 248–249; see
    also Levy 26–34; A. Kelly & W. Harbison, The American
    Constitution: Its Origins and Development 110, 118 (7th
    ed. 1991). This is surely powerful evidence that the right
    was regarded as fundamental in the sense relevant here.
    This understanding persisted in the years immediately
    following the ratification of the Bill of Rights. In addition
    22                MCDONALD v. CHICAGO
    Opinion of the Court
    to the four States that had adopted Second Amendment
    analogues before ratification, nine more States adopted
    state constitutional provisions protecting an individual
    right to keep and bear arms between 1789 and 1820.
    Heller, supra, at ___ (slip op., at 27–30). Founding-era
    legal commentators confirmed the importance of the right
    to early Americans. St. George Tucker, for example, de
    scribed the right to keep and bear arms as “the true palla
    dium of liberty” and explained that prohibitions on the
    right would place liberty “on the brink of destruction.” 1
    Blackstone’s Commentaries, Editor’s App. 300 (S. Tucker
    ed. 1803); see also W. Rawle, A View of the Constitution of
    the United States of America, 125–126 (2d ed. 1829) (re
    print 2009); 3 J. Story, Commentaries on the Constitution
    of the United States §1890, p. 746 (1833) (“The right of the
    citizens to keep and bear arms has justly been considered,
    as the palladium of the liberties of a republic; since it
    offers a strong moral check against the usurpation and
    arbitrary power of rulers; and will generally, even if these
    are successful in the first instance, enable the people to
    resist and triumph over them”).
    B
    1
    By the 1850’s, the perceived threat that had prompted
    the inclusion of the Second Amendment in the Bill of
    Rights—the fear that the National Government would
    disarm the universal militia—had largely faded as a popu
    lar concern, but the right to keep and bear arms was
    highly valued for purposes of self-defense. See M. Doub
    ler, Civilian in Peace, Soldier in War 87–90 (2003); Amar,
    Bill of Rights 258–259. Abolitionist authors wrote in
    support of the right. See L. Spooner, The Unconstitution
    ality of Slavery 66 (1860) (reprint 1965); J. Tiffany, A
    Treatise on the Unconstitutionality of American Slavery
    117–118 (1849) (reprint 1969). And when attempts were
    Cite as: 561 U. S. ____ (2010)                  23
    Opinion of the Court
    made to disarm “Free-Soilers” in “Bloody Kansas,” Senator
    Charles Sumner, who later played a leading role in the
    adoption of the Fourteenth Amendment, proclaimed that
    “[n]ever was [the rifle] more needed in just self-defense
    than now in Kansas.” The Crime Against Kansas: The
    Apologies for the Crime: The True Remedy, Speech of Hon.
    Charles Sumner in the Senate of the United States 64–65
    (1856). Indeed, the 1856 Republican Party Platform pro
    tested that in Kansas the constitutional rights of the
    people had been “fraudulently and violently taken from
    them” and the “right of the people to keep and bear arms”
    had been “infringed.” National Party Platforms 1840–
    1972, p. 27 (5th ed. 1973).17
    After the Civil War, many of the over 180,000 African
    Americans who served in the Union Army returned to the
    States of the old Confederacy, where systematic efforts
    were made to disarm them and other blacks. See Heller,
    554 U. S., at ___ (slip op., at 42); E. Foner, Reconstruction:
    America’s Unfinished Revolution 1863–1877, p. 8 (1988)
    (hereinafter Foner). The laws of some States formally
    prohibited African Americans from possessing firearms.
    For example, a Mississippi law provided that “no freed
    man, free negro or mulatto, not in the military service of
    the United States government, and not licensed so to do by
    the board of police of his or her county, shall keep or carry
    fire-arms of any kind, or any ammunition, dirk or bowie
    knife.” Certain Offenses of Freedmen, 1865 Miss. Laws
    p. 165, §1, in 1 Documentary History of Reconstruction
    289 (W. Fleming ed. 1950); see also Regulations for
    Freedmen in Louisiana, in id., at 279–280; H. R. Exec.
    ——————
    17 Abolitionists and Republicans were not alone in believing that the
    right to keep and bear arms was a fundamental right. The 1864
    Democratic Party Platform complained that the confiscation of firearms
    by Union troops occupying parts of the South constituted “the interfer
    ence with and denial of the right of the people to bear arms in their
    defense.” National Party Platforms 1840–1972, at 34.
    24                      MCDONALD v. CHICAGO
    Opinion of the Court
    Doc. No. 70, 39th Cong., 1st Sess., 233, 236 (1866) (de
    scribing a Kentucky law); E. McPherson, The Political
    History of the United States of America During the Period
    of Reconstruction 40 (1871) (describing a Florida law); id.,
    at 33 (describing an Alabama law).18
    Throughout the South, armed parties, often consisting
    of ex-Confederate soldiers serving in the state militias,
    forcibly took firearms from newly freed slaves. In the first
    session of the 39th Congress, Senator Wilson told his
    colleagues: “In Mississippi rebel State forces, men who
    were in the rebel armies, are traversing the State, visiting
    the freedmen, disarming them, perpetrating murders and
    outrages upon them; and the same things are done in
    other sections of the country.” 39th Cong. Globe 40 (1865).
    The Report of the Joint Committee on Reconstruction—
    which was widely reprinted in the press and distributed
    by Members of the 39th Congress to their constituents
    shortly after Congress approved the Fourteenth Amend
    ment19—contained numerous examples of such abuses.
    See, e.g., Joint Committee on Reconstruction, H. R. Rep.
    No. 30, 39th Cong., 1st Sess., pt. 2, pp. 219, 229, 272, pt. 3,
    ——————
    18 In South Carolina, prominent black citizens held a convention to
    address the State’s black code. They drafted a memorial to Congress,
    in which they included a plea for protection of their constitutional right
    to keep and bear arms: “ ‘We ask that, inasmuch as the Constitution of
    the United States explicitly declares that the right to keep and bear
    arms shall not be infringed . . . that the late efforts of the Legislature of
    this State to pass an act to deprive us [of] arms be forbidden, as a plain
    violation of the Constitution.’ ” S. Halbrook, Freedmen, The Fourteenth
    Amendment, and The Right to Bear Arms, 1866–1876, p. 9 (1998)
    (hereinafter Halbrook, Freedmen) (quoting 2 Proceedings of the Black
    State Conventions, 1840–1865, p. 302 (P. Foner & G. Walker eds.
    1980)). Senator Charles Sumner relayed the memorial to the Senate
    and described the memorial as a request that black citizens “have the
    constitutional protection in keeping arms.” 39th Cong. Globe 337.
    19 See B. Kendrick, Journal of the Joint Committee of Fifteen on
    Reconstruction 265–266 (1914); Adamson v. California, 
    332 U. S. 46
    ,
    108–109 (1947) (appendix to dissenting opinion of Black, J.).
    Cite as: 561 U. S. ____ (2010)                    25
    Opinion of the Court
    pp. 46, 140, pt. 4, pp. 49–50 (1866); see also S. Exec. Doc.
    No. 2, 39th Cong., 1st Sess., 23–24, 26, 36 (1865). In one
    town, the “marshal [took] all arms from returned colored
    soldiers, and [was] very prompt in shooting the blacks
    whenever an opportunity occur[red].” H. R. Exec. Doc.
    No. 70, at 238 (internal quotation marks omitted). As
    Senator Wilson put it during the debate on a failed pro
    posal to disband Southern militias: “There is one unbroken
    chain of testimony from all people that are loyal to this
    country, that the greatest outrages are perpetrated by
    armed men who go up and down the country searching
    houses, disarming people, committing outrages of every
    kind and description.” 39th Cong. Globe 915 (1866).20
    Union Army commanders took steps to secure the right
    of all citizens to keep and bear arms,21 but the 39th Con
    ——————
    20 Disarmament   by bands of former Confederate soldiers eventually
    gave way to attacks by the Ku Klux Klan. In debates over the later
    enacted Enforcement Act of 1870, Senator John Pool observed that the
    Klan would “order the colored men to give up their arms; saying that
    everybody would be Kukluxed in whose house fire-arms were found.”
    Cong. Globe, 41st Cong., 2d Sess., 2719 (1870); see also H. R. Exec. Doc.
    No. 268, 42d Cong., 2d Sess., 2 (1872).
    21 For example, the occupying Union commander in South Carolina
    issued an order stating that “[t]he constitutional rights of all loyal and
    well disposed inhabitants to bear arms, will not be infringed.” General
    Order No. 1, Department of South Carolina, January 1, 1866, in 1
    Documentary History of Reconstruction 208 (W. Fleming ed. 1950).
    Union officials in Georgia issued a similar order, declaring that “ ‘[a]ll
    men, without the distinction of color, have the right to keep arms to
    defend their homes, families or themselves.’ ” Cramer, “This Right is
    Not Allowed by Governments That Are Afraid of The People”: The
    Public Meaning of the Second Amendment When the Fourteenth
    Amendment was Ratified, 
    17 Geo. Mason L. Rev. 823
    , 854 (2010)
    (hereinafter Cramer) (quoting Right to Bear Arms, Christian Recorder,
    Feb. 24, 1866, pp. 1–2). In addition, when made aware of attempts by
    armed parties to disarm blacks, the head of the Freedmen’s Bureau in
    Alabama “made public [his] determination to maintain the right of the
    negro to keep and to bear arms, and [his] disposition to send an armed
    force into any neighborhood in which that right should be systemati
    26                    MCDONALD v. CHICAGO
    Opinion of the Court
    gress concluded that legislative action was necessary. Its
    efforts to safeguard the right to keep and bear arms
    demonstrate that the right was still recognized to be
    fundamental.
    The most explicit evidence of Congress’ aim appears in
    §14 of the Freedmen’s Bureau Act of 1866, which provided
    that “the right . . . to have full and equal benefit of all laws
    and proceedings concerning personal liberty, personal
    security, and the acquisition, enjoyment, and disposition of
    estate, real and personal, including the constitutional
    right to bear arms, shall be secured to and enjoyed by all
    the citizens . . . without respect to race or color, or previ
    ous condition of slavery.” 
    14 Stat. 176
    –177 (emphasis
    added).22 Section 14 thus explicitly guaranteed that “all
    the citizens,” black and white, would have “the constitu
    tional right to bear arms.”
    The Civil Rights Act of 1866, 
    14 Stat. 27
    , which was
    considered at the same time as the Freedmen’s Bureau
    Act, similarly sought to protect the right of all citizens to
    keep and bear arms.23 Section 1 of the Civil Rights Act
    ——————
    cally interfered with.” Joint Committee on Reconstruction, H. R. Rep.
    No. 30, 39th Cong., 1st Sess., pt. 3, p. 140 (1866).
    22 The Freedmen’s Bureau bill was amended to include an express
    reference to the right to keep and bear arms, see 39th Cong. Globe 654
    (Rep. Thomas Eliot), even though at least some Members believed that
    the unamended version alone would have protected the right, see id., at
    743 (Sen. Lyman Trumbull).
    23 There can be do doubt that the principal proponents of the Civil
    Rights Act of 1866 meant to end the disarmament of African Americans
    in the South. In introducing the bill, Senator Trumbull described its
    purpose as securing to blacks the “privileges which are essential to
    freemen.” Id., at 474. He then pointed to the previously described
    Mississippi law that “prohibit[ed] any negro or mulatto from having
    fire-arms” and explained that the bill would “destroy” such laws. Ibid.
    Similarly, Representative Sidney Clarke cited disarmament of freed
    men in Alabama and Mississippi as a reason to support the Civil Rights
    Act and to continue to deny Alabama and Mississippi representation in
    Congress: “I regret, sir, that justice compels me to say, to the disgrace
    Cite as: 561 U. S. ____ (2010)                    27
    Opinion of the Court
    guaranteed the “full and equal benefit of all laws and
    proceedings for the security of person and property, as is
    enjoyed by white citizens.” Ibid. This language was vir
    tually identical to language in §14 of the Freedmen’s
    Bureau Act, 
    14 Stat. 176
    –177 (“the right . . . to have full
    and equal benefit of all laws and proceedings concerning
    personal liberty, personal security, and the acquisition,
    enjoyment, and disposition of estate, real and personal”).
    And as noted, the latter provision went on to explain that
    one of the “laws and proceedings concerning personal
    liberty, personal security, and the acquisition, enjoyment,
    and disposition of estate, real and personal” was “the
    constitutional right to bear arms.” 
    Ibid.
     Representative
    Bingham believed that the Civil Rights Act protected the
    same rights as enumerated in the Freedmen’s Bureau bill,
    which of course explicitly mentioned the right to keep and
    bear arms. 39th Cong. Globe 1292. The unavoidable
    conclusion is that the Civil Rights Act, like the Freedmen’s
    Bureau Act, aimed to protect “the constitutional right to
    bear arms” and not simply to prohibit discrimination. See
    also Amar, Bill of Rights 264–265 (noting that one of the
    “core purposes of the Civil Rights Act of 1866 and of the
    Fourteenth Amendment was to redress the grievances” of
    freedmen who had been stripped of their arms and to
    “affirm the full and equal right of every citizen to self
    defense”).
    Congress, however, ultimately deemed these legislative
    ——————
    of the Federal Government, that the ‘reconstructed’ State authorities of
    Mississippi were allowed to rob and disarm our veteran soldiers and
    arm the rebels fresh from the field of treasonable strife. Sir, the dis
    armed loyalists of Alabama, Mississippi, and Louisiana are powerless
    to-day, and oppressed by the pardoned and encouraged rebels of those
    States. They appeal to the American Congress for protection. In
    response to this appeal I shall vote for every just measure of protection,
    for I do not intend to be among the treacherous violators of the solemn
    pledge of the nation.” 
    Id.,
     at 1838–1839.
    28                    MCDONALD v. CHICAGO
    Opinion of the Court
    remedies insufficient. Southern resistance, Presidential
    vetoes, and this Court’s pre-Civil-War precedent per
    suaded Congress that a constitutional amendment was
    necessary to provide full protection for the rights of
    blacks.24 Today, it is generally accepted that the Four
    teenth Amendment was understood to provide a constitu
    tional basis for protecting the rights set out in the Civil
    Rights Act of 1866. See General Building Contractors
    Assn., Inc. v. Pennsylvania, 
    458 U. S. 375
    , 389 (1982); see
    also Amar, Bill of Rights 187; Calabresi, Two Cheers for
    Professor Balkin’s Originalism, 
    103 Nw. U. L. Rev. 663
    ,
    669–670 (2009).
    In debating the Fourteenth Amendment, the 39th Con
    gress referred to the right to keep and bear arms as a
    fundamental right deserving of protection. Senator Sam
    uel Pomeroy described three “indispensable” “safeguards
    of liberty under our form of Government.” 39th Cong.
    Globe 1182. One of these, he said, was the right to keep
    and bear arms:
    “Every man . . . should have the right to bear arms
    for the defense of himself and family and his home
    stead. And if the cabin door of the freedman is broken
    open and the intruder enters for purposes as vile as
    were known to slavery, then should a well-loaded
    musket be in the hand of the occupant to send the pol
    luted wretch to another world, where his wretched
    ness will forever remain complete.” 
    Ibid.
    Even those who thought the Fourteenth Amendment
    unnecessary believed that blacks, as citizens, “have equal
    ——————
    24 For example, at least one southern court had held the Civil Rights
    Act to be unconstitutional. That court did so, moreover, in the course of
    upholding the conviction of an African-American man for violating
    Mississippi’s law against firearm possession by freedmen. See Decision
    of Chief Justice Handy, Declaring the Civil Rights Bill Unconstitu
    tional, N. Y. Times, Oct. 26, 1866, p. 2, col. 3.
    Cite as: 561 U. S. ____ (2010)                  29
    Opinion of the Court
    right to protection, and to keep and bear arms for self
    defense.” Id., at 1073 (Sen. James Nye); see also Foner
    258–259.25
    Evidence from the period immediately following the
    ratification of the Fourteenth Amendment only confirms
    that the right to keep and bear arms was considered fun
    damental. In an 1868 speech addressing the disarmament
    of freedmen, Representative Stevens emphasized the
    necessity of the right: “Disarm a community and you rob
    them of the means of defending life. Take away their
    weapons of defense and you take away the inalienable
    right of defending liberty.” “The fourteenth amendment,
    now so happily adopted, settles the whole question.”
    Cong. Globe, 40th Cong., 2d Sess., 1967. And in debating
    the Civil Rights Act of 1871, Congress routinely referred to
    the right to keep and bear arms and decried the continued
    disarmament of blacks in the South. See Halbrook,
    Freedmen 120–131. Finally, legal commentators from the
    period emphasized the fundamental nature of the right.
    See, e.g., T. Farrar, Manual of the Constitution of the
    United States of America §118, p. 145 (1867) (reprint
    1993); J. Pomeroy, An Introduction to the Constitutional
    Law of the United States §239, pp. 152–153 (3d ed. 1875).
    The right to keep and bear arms was also widely pro
    tected by state constitutions at the time when the Four
    teenth Amendment was ratified. In 1868, 22 of the 37
    States in the Union had state constitutional provisions
    ——————
    25 Other Members of the 39th Congress stressed the importance of the
    right to keep and bear arms in discussing other measures. In speaking
    generally on reconstruction, Representative Roswell Hart listed the
    “ ‘right of the people to keep and bear arms’ ” as among those rights
    necessary to a “republican form of government.” 39th Cong. Globe
    1629. Similarly, in objecting to a bill designed to disarm southern
    militias, Senator Willard Saulsbury argued that such a measure would
    violate the Second Amendment. Id., at 914–915. Indeed, the bill
    “ultimately passed in a form that disbanded militias but maintained
    the right of individuals to their private firearms.” Cramer 858.
    30                     MCDONALD v. CHICAGO
    Opinion of the Court
    explicitly protecting the right to keep and bear arms. See
    Calabresi & Agudo, Individual Rights Under State Consti
    tutions when the Fourteenth Amendment was Ratified in
    1868: What Rights Are Deeply Rooted in American His
    tory and Tradition? 87 Texas L. Rev. 7, 50 (2008).26 Quite
    a few of these state constitutional guarantees, moreover,
    explicitly protected the right to keep and bear arms as an
    individual right to self-defense. See Ala. Const., Art. I,
    §28 (1868); Conn. Const., Art. I, §17 (1818); Ky. Const.,
    Art. XIII, §25 (1850); Mich. Const., Art. XVIII, §7 (1850);
    Miss. Const., Art. I, §15 (1868); Mo. Const., Art. I, §8
    (1865); Tex. Const., Art. I, §13 (1869); see also Mont.
    Const., Art. III, §13 (1889); Wash. Const., Art. I, §24
    (1889); Wyo. Const., Art. I, §24 (1889); see also State v.
    McAdams, 
    714 P. 2d 1236
    , 1238 (Wyo. 1986). What is
    more, state constitutions adopted during the Reconstruc
    tion era by former Confederate States included a right to
    keep and bear arms. See, e.g., Ark. Const., Art. I, §5
    (1868); Miss. Const., Art. I, §15 (1868); Tex. Const., Art. I,
    §13 (1869). A clear majority of the States in 1868, there
    fore, recognized the right to keep and bear arms as being
    among the foundational rights necessary to our system of
    Government.27
    ——————
    26 More generally worded provisions in the constitutions of seven
    other States may also have encompassed a right to bear arms. See
    Calabresi & Agudo, 87 Texas L. Rev., at 52.
    27 These state constitutional protections often reflected a lack of law
    enforcement in many sections of the country. In the frontier towns that
    did not have an effective police force, law enforcement often could not
    pursue criminals beyond the town borders. See Brief for Rocky Moun
    tain Gun Owners et al. as Amici Curiae 15. Settlers in the West and
    elsewhere, therefore, were left to “repe[l] force by force when the
    intervention of society . . . [was] too late to prevent an injury.” District
    of Columbia v. Heller, 554 U. S. ___ , ___ (2008) (slip op., at 21) (inter
    nal quotation marks omitted). The settlers’ dependence on game for
    food and economic livelihood, moreover, undoubtedly undergirded these
    state constitutional guarantees. See id., at ___, ___, ___ (slip. op, at 26,
    Cite as: 561 U. S. ____ (2010)          31
    Opinion of the Court
    In sum, it is clear that the Framers and ratifiers of the
    Fourteenth Amendment counted the right to keep and
    bear arms among those fundamental rights necessary to
    our system of ordered liberty.
    2
    Despite all this evidence, municipal respondents con
    tend that Congress, in the years immediately following the
    Civil War, merely sought to outlaw “discriminatory meas
    ures taken against freedmen, which it addressed by adopt
    ing a non-discrimination principle” and that even an
    outright ban on the possession of firearms was regarded as
    acceptable, “so long as it was not done in a discriminatory
    manner.” Brief for Municipal Respondents 7. They argue
    that Members of Congress overwhelmingly viewed §1 of
    the Fourteenth Amendment “as an antidiscrimination
    rule,” and they cite statements to the effect that the sec
    tion would outlaw discriminatory measures. Id., at 64.
    This argument is implausible.
    First, while §1 of the Fourteenth Amendment contains
    “an antidiscrimination rule,” namely, the Equal Protection
    Clause, municipal respondents can hardly mean that §1
    does no more than prohibit discrimination. If that were
    so, then the First Amendment, as applied to the States,
    would not prohibit nondiscriminatory abridgments of the
    rights to freedom of speech or freedom of religion; the
    Fourth Amendment, as applied to the States, would not
    prohibit all unreasonable searches and seizures but only
    discriminatory searches and seizures—and so on. We
    assume that this is not municipal respondents’ view, so
    what they must mean is that the Second Amendment
    should be singled out for special—and specially unfavor
    able—treatment. We reject that suggestion.
    Second, municipal respondents’ argument ignores the
    ——————
    36, 42).
    32                 MCDONALD v. CHICAGO
    Opinion of the Court
    clear terms of the Freedmen’s Bureau Act of 1866, which
    acknowledged the existence of the right to bear arms. If
    that law had used language such as “the equal benefit of
    laws concerning the bearing of arms,” it would be possible
    to interpret it as simply a prohibition of racial discrimina
    tion. But §14 speaks of and protects “the constitutional
    right to bear arms,” an unmistakable reference to the
    right protected by the Second Amendment. And it pro
    tects the “full and equal benefit” of this right in the States.
    
    14 Stat. 176
    –177. It would have been nonsensical for
    Congress to guarantee the full and equal benefit of a
    constitutional right that does not exist.
    Third, if the 39th Congress had outlawed only those
    laws that discriminate on the basis of race or previous
    condition of servitude, African Americans in the South
    would likely have remained vulnerable to attack by many
    of their worst abusers: the state militia and state peace
    officers. In the years immediately following the Civil War,
    a law banning the possession of guns by all private citi
    zens would have been nondiscriminatory only in the for
    mal sense. Any such law—like the Chicago and Oak Park
    ordinances challenged here—presumably would have
    permitted the possession of guns by those acting under the
    authority of the State and would thus have left firearms in
    the hands of the militia and local peace officers. And as
    the Report of the Joint Committee on Reconstruction
    revealed, see supra, at 24–25, those groups were widely
    involved in harassing blacks in the South.
    Fourth, municipal respondents’ purely antidiscrimina
    tion theory of the Fourteenth Amendment disregards the
    plight of whites in the South who opposed the Black
    Codes. If the 39th Congress and the ratifying public had
    simply prohibited racial discrimination with respect to the
    bearing of arms, opponents of the Black Codes would have
    been left without the means of self-defense—as had aboli
    tionists in Kansas in the 1850’s.
    Cite as: 561 U. S. ____ (2010)          33
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    Opinion of ALITO, J.
    Fifth, the 39th Congress’ response to proposals to dis
    band and disarm the Southern militias is instructive.
    Despite recognizing and deploring the abuses of these
    militias, the 39th Congress balked at a proposal to disarm
    them. See 39th Cong. Globe 914; Halbrook, Freedmen,
    supra, 20–21. Disarmament, it was argued, would violate
    the members’ right to bear arms, and it was ultimately
    decided to disband the militias but not to disarm their
    members. See Act of Mar. 2, 1867, §6, 
    14 Stat. 485
    , 487;
    Halbrook, Freedmen 68–69; Cramer 858–861. It cannot
    be doubted that the right to bear arms was regarded as a
    substantive guarantee, not a prohibition that could be
    ignored so long as the States legislated in an evenhanded
    manner.
    IV
    Municipal respondents’ remaining arguments are at war
    with our central holding in Heller: that the Second
    Amendment protects a personal right to keep and bear
    arms for lawful purposes, most notably for self-defense
    within the home. Municipal respondents, in effect, ask us
    to treat the right recognized in Heller as a second-class
    right, subject to an entirely different body of rules than
    the other Bill of Rights guarantees that we have held to be
    incorporated into the Due Process Clause.
    Municipal respondents’ main argument is nothing less
    than a plea to disregard 50 years of incorporation prece
    dent and return (presumably for this case only) to a by
    gone era. Municipal respondents submit that the Due
    Process Clause protects only those rights “ ‘recognized by
    all temperate and civilized governments, from a deep and
    universal sense of [their] justice.’ ” Brief for Municipal
    Respondents 9 (quoting Chicago, B. & Q. R. Co., 
    166 U. S., at 238
    ). According to municipal respondents, if it is possi
    ble to imagine any civilized legal system that does not
    recognize a particular right, then the Due Process Clause
    34                     MCDONALD v. CHICAGO
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    Opinion of ALITO, J.
    does not make that right binding on the States. Brief for
    Municipal Respondents 9. Therefore, the municipal re
    spondents continue, because such countries as England,
    Canada, Australia, Japan, Denmark, Finland, Luxem
    bourg, and New Zealand either ban or severely limit
    handgun ownership, it must follow that no right to possess
    such weapons is protected by the Fourteenth Amendment.
    
    Id.,
     at 21–23.
    This line of argument is, of course, inconsistent with the
    long-established standard we apply in incorporation cases.
    See Duncan, 
    391 U. S., at 149
    , and n. 14. And the pre
    sent-day implications of municipal respondents’ argument
    are stunning. For example, many of the rights that our
    Bill of Rights provides for persons accused of criminal
    offenses are virtually unique to this country.28 If our
    ——————
    28 For example, the United States affords criminal jury trials far more
    broadly than other countries. See, e.g., Van Kessel, Adversary Excesses
    in the American Criminal Trial, 
    67 Notre Dame L. Rev. 403
     (1992);
    Leib, A Comparison of Criminal Jury Decision Rules in Democratic
    Countries, 
    5 Ohio St. J. Crim. L. 629
    , 630 (2008); Henderson, The
    Wrongs of Victim’s Rights, 
    37 Stan. L. Rev. 937
    , 1003, n. 296 (1985); see
    also Roper v. Simmons, 
    543 U. S. 551
    , 624 (2005) (SCALIA, J., dissent
    ing) (“In many significant respects the laws of most other countries
    differ from our law—including . . . such explicit provisions of our
    Constitution as the right to jury trial”). Similarly, our rules governing
    pretrial interrogation differ from those in countries sharing a similar
    legal heritage. See Dept. of Justice, Office of Legal Policy, Report to the
    Attorney General on the Law of Pretrial Interrogation: Truth in Crimi
    nal Justice Report No. 1 (Feb. 12, 1986), reprinted in 22 U. Mich. J. L.
    Ref. 437, 534–542 (1989) (comparing the system envisioned by Miranda
    v. Arizona, 
    384 U. S. 436
     (1966), with rights afforded by England,
    Scotland, Canada, India, France, and Germany). And the “Court
    pronounced exclusionary rule . . . is distinctively American.” Roper,
    
    supra, at 624
     (SCALIA, J., dissenting) (citing Bivens v. Six Unknown
    Fed. Narcotics Agents, 
    403 U. S. 388
    , 415 (1971) (Burger, C. J., dissent
    ing) (noting that exclusionary rule was “unique to American jurispru
    dence” (internal quotation marks omitted))); see also Sklansky, Anti-
    Inquisitorialism, 
    122 Harv. L. Rev. 1634
    , 1648–1656, 1689–1693 (2009)
    (discussing the differences between American and European confronta
    Cite as: 561 U. S. ____ (2010)                 35
    Opinion of the Court
    Opinion of ALITO, J.
    understanding of the right to a jury trial, the right against
    self-incrimination, and the right to counsel were necessary
    attributes of any civilized country, it would follow that the
    United States is the only civilized Nation in the world.
    Municipal respondents attempt to salvage their position
    by suggesting that their argument applies only to substan
    tive as opposed to procedural rights. Brief for Municipal
    Respondents 10, n. 3. But even in this trimmed form,
    municipal respondents’ argument flies in the face of more
    than a half-century of precedent. For example, in Everson
    v. Board of Ed. of Ewing, 
    330 U. S. 1
    , 8 (1947), the Court
    held that the Fourteenth Amendment incorporates the
    Establishment Clause of the First Amendment. Yet sev
    eral of the countries that municipal respondents recognize
    as civilized have established state churches.29 If we were
    to adopt municipal respondents’ theory, all of this Court’s
    Establishment Clause precedents involving actions taken
    by state and local governments would go by the boards.
    Municipal respondents maintain that the Second
    Amendment differs from all of the other provisions of the
    Bill of Rights because it concerns the right to possess a
    ——————
    tion rules).
    29 England and Denmark have state churches. See Torke, The Eng
    lish Religious Establishment, 12 J. of Law & Religion 399, 417–427
    (1995–1996) (describing legal status of Church of England); Constitu
    tional Act of Denmark, pt. I, §4 (1953) (“The Evangelical Lutheran
    Church shall be the Established Church of Denmark”). The Evangeli
    cal Lutheran Church of Finland has attributes of a state church. See
    Christensen, Is the Lutheran Church Still the State Church? An
    Analysis of Church-State Relations in Finland, 1995 B. Y. U. L. Rev.
    585, 596–600 (describing status of church under Finnish law). The Web
    site of the Evangelical Lutheran Church of Finland states that the
    church may be usefully described as both a “state church” and a “folk
    church.” See J. Seppo, The Current Condition of Church-State Rela
    tions in Finland, online at http://evl.fi/EVLen.nsf/Documents/838DDBEF
    4A28712AC225730F001F7C67?OpenDocument&lang=EN (all Internet
    materials as visited June 23, 2010, and available in Clerk of Court’s
    case file).
    36                  MCDONALD v. CHICAGO
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    Opinion of ALITO, J.
    deadly implement and thus has implications for public
    safety. Brief for Municipal Respondents 11. And they
    note that there is intense disagreement on the question
    whether the private possession of guns in the home in
    creases or decreases gun deaths and injuries. Id., at 11,
    13–17.
    The right to keep and bear arms, however, is not the
    only constitutional right that has controversial public
    safety implications. All of the constitutional provisions
    that impose restrictions on law enforcement and on the
    prosecution of crimes fall into the same category. See, e.g.,
    Hudson v. Michigan, 
    547 U. S. 586
    , 591 (2006) (“The
    exclusionary rule generates ‘substantial social costs,’
    United States v. Leon, 
    468 U. S. 897
    , 907 (1984), which
    sometimes include setting the guilty free and the danger
    ous at large”); Barker v. Wingo, 
    407 U. S. 514
    , 522 (1972)
    (reflecting on the serious consequences of dismissal for a
    speedy trial violation, which means “a defendant who may
    be guilty of a serious crime will go free”); Miranda v.
    Arizona, 
    384 U. S. 436
    , 517 (1966) (Harlan, J., dissenting);
    
    id., at 542
     (White, J., dissenting) (objecting that the
    Court’s rule “[i]n some unknown number of cases . . . will
    return a killer, a rapist or other criminal to the streets . . .
    to repeat his crime”); Mapp, 
    367 U. S., at 659
    . Municipal
    respondents cite no case in which we have refrained from
    holding that a provision of the Bill of Rights is binding on
    the States on the ground that the right at issue has dis
    puted public safety implications.
    We likewise reject municipal respondents’ argument
    that we should depart from our established incorporation
    methodology on the ground that making the Second
    Amendment binding on the States and their subdivisions
    is inconsistent with principles of federalism and will stifle
    experimentation. Municipal respondents point out—quite
    correctly—that conditions and problems differ from local
    ity to locality and that citizens in different jurisdictions
    Cite as: 561 U. S. ____ (2010)          37
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    have divergent views on the issue of gun control. Munici
    pal respondents therefore urge us to allow state and local
    governments to enact any gun control law that they deem
    to be reasonable, including a complete ban on the posses
    sion of handguns in the home for self-defense. Brief for
    Municipal Respondents 18–20, 23.
    There is nothing new in the argument that, in order to
    respect federalism and allow useful state experimentation,
    a federal constitutional right should not be fully binding
    on the States. This argument was made repeatedly and
    eloquently by Members of this Court who rejected the
    concept of incorporation and urged retention of the two
    track approach to incorporation. Throughout the era of
    “selective incorporation,” Justice Harlan in particular,
    invoking the values of federalism and state experimenta
    tion, fought a determined rearguard action to preserve the
    two-track approach. See, e.g., Roth v. United States, 
    354 U. S. 476
    , 500–503 (1957) (Harlan, J., concurring in result
    in part and dissenting in part); Mapp, 
    supra,
     at 678–680
    (Harlan, J., dissenting); Gideon, 
    372 U. S., at 352
     (Harlan,
    J., concurring); Malloy, 
    378 U. S., at
    14–33 (Harlan, J.,
    dissenting); Pointer, 
    380 U. S., at
    408–409 (Harlan, J.,
    concurring in result); Washington, 
    388 U. S., at
    23–24
    (Harlan, J., concurring in result); Duncan, 
    391 U. S., at
    171–193 (Harlan, J., dissenting); Benton, 
    395 U. S., at
    808–809 (Harlan, J., dissenting); Williams v. Florida, 
    399 U. S. 78
    , 117 (1970) (Harlan, J., dissenting in part and
    concurring in result in part).
    Time and again, however, those pleas failed. Unless we
    turn back the clock or adopt a special incorporation test
    applicable only to the Second Amendment, municipal
    respondents’ argument must be rejected. Under our prece
    dents, if a Bill of Rights guarantee is fundamental from an
    American perspective, then, unless stare decisis counsels
    38                     MCDONALD v. CHICAGO
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    Opinion of ALITO, J.
    otherwise,30 that guarantee is fully binding on the States
    and thus limits (but by no means eliminates) their ability
    to devise solutions to social problems that suit local needs
    and values. As noted by the 38 States that have appeared
    in this case as amici supporting petitioners, “[s]tate and
    local experimentation with reasonable firearms regula
    tions will continue under the Second Amendment.” Brief
    for State of Texas et al. as Amici Curiae 23.
    Municipal respondents and their amici complain that
    incorporation of the Second Amendment right will lead to
    extensive and costly litigation, but this argument applies
    with even greater force to constitutional rights and reme
    dies that have already been held to be binding on the
    States. Consider the exclusionary rule. Although the
    exclusionary rule “is not an individual right,” Herring v.
    United States, 555 U. S. ___ (2009) (slip op., at 5), but a
    “judicially created rule,” 
    id.,
     at ___ (slip op., at 4), this
    Court made the rule applicable to the States. See Mapp,
    
    supra, at 660
    . The exclusionary rule is said to result in
    “tens of thousands of contested suppression motions each
    year.” Stuntz, The Virtues and Vices of the Exclusionary
    Rule, 20 Harv. J. Law & Pub. Pol’y, 443, 444 (1997).
    ——————
    30 As noted above, see n. 13, supra, cases that predate the era of selec
    tive incorporation held that the Grand Jury Clause of the Fifth
    Amendment and the Seventh Amendment’s civil jury requirement do
    not apply to the States. See Hurtado v. California, 
    110 U. S. 516
     (1884)
    (indictment); Minneapolis & St. Louis R. Co. v. Bombolis, 
    241 U. S. 211
    (1916) (civil jury).
    As a result of Hurtado, most States do not require a grand jury
    indictment in all felony cases, and many have no grand juries. See
    Dept. of Justice, Office of Justice Programs, Bureau of Justice Statis
    tics, State Court Organization 2004, pp. 213, 215–217 (2006) (Table 38),
    online at http://bjs.ojp.usdoj.gov/content/pub/pdf/sco04.pdf.
    As a result of Bombolis, cases that would otherwise fall within the
    Seventh Amendment are now tried without a jury in state small claims
    courts. See, e.g., Cheung v. Eighth Judicial Dist. Court, 
    121 Nev. 867
    ,
    
    124 P. 3d 550
     (2005) (no right to jury trial in small claims court under
    Nevada Constitution).
    Cite as: 561 U. S. ____ (2010)           39
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    Opinion of ALITO, J.
    Municipal respondents assert that, although most state
    constitutions protect firearms rights, state courts have
    held that these rights are subject to “interest-balancing”
    and have sustained a variety of restrictions. Brief for
    Municipal Respondents 23–31. In Heller, however, we
    expressly rejected the argument that the scope of the
    Second Amendment right should be determined by judicial
    interest balancing, 554 U. S., at ___–___ (slip op., at 62–
    63), and this Court decades ago abandoned “the notion
    that the Fourteenth Amendment applies to the States only
    a watered-down, subjective version of the individual guar
    antees of the Bill of Rights,” Malloy, supra, at 10–11 (in
    ternal quotation marks omitted).
    As evidence that the Fourteenth Amendment has not
    historically been understood to restrict the authority of the
    States to regulate firearms, municipal respondents and
    supporting amici cite a variety of state and local firearms
    laws that courts have upheld. But what is most striking
    about their research is the paucity of precedent sustaining
    bans comparable to those at issue here and in Heller.
    Municipal respondents cite precisely one case (from the
    late 20th century) in which such a ban was sustained. See
    Brief for Municipal Respondents 26–27 (citing Kalodimos
    v. Morton Grove, 
    103 Ill. 2d 483
    , 
    470 N. E. 2d 266
     (1984));
    see also Reply Brief for Respondents NRA et al. 23, n. 7
    (asserting that no other court has ever upheld a complete
    ban on the possession of handguns). It is important to
    keep in mind that Heller, while striking down a law that
    prohibited the possession of handguns in the home, recog
    nized that the right to keep and bear arms is not “a right
    to keep and carry any weapon whatsoever in any manner
    whatsoever and for whatever purpose.” 554 U. S., at ___
    (slip op., at 54). We made it clear in Heller that our hold
    ing did not cast doubt on such longstanding regulatory
    measures as “prohibitions on the possession of firearms by
    felons and the mentally ill,” “laws forbidding the carrying
    40                 MCDONALD v. CHICAGO
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    Opinion of ALITO, J.
    of firearms in sensitive places such as schools and gov
    ernment buildings, or laws imposing conditions and quali
    fications on the commercial sale of arms.” 
    Id.,
     at ___–___
    (slip op., at 54–55). We repeat those assurances here.
    Despite municipal respondents’ doomsday proclamations,
    incorporation does not imperil every law regulating
    firearms.
    Municipal respondents argue, finally, that the right to
    keep and bear arms is unique among the rights set out in
    the first eight Amendments “because the reason for codify
    ing the Second Amendment (to protect the militia) differs
    from the purpose (primarily, to use firearms to engage in
    self-defense) that is claimed to make the right implicit in
    the concept of ordered liberty.” Brief for Municipal Re
    spondents 36–37. Municipal respondents suggest that the
    Second Amendment right differs from the rights hereto
    fore incorporated because the latter were “valued for
    [their] own sake.” Id., at 33. But we have never previ
    ously suggested that incorporation of a right turns on
    whether it has intrinsic as opposed to instrumental value,
    and quite a few of the rights previously held to be incorpo
    rated—for example the right to counsel and the right to
    confront and subpoena witnesses—are clearly instrumen
    tal by any measure. Moreover, this contention repackages
    one of the chief arguments that we rejected in Heller, i.e.,
    that the scope of the Second Amendment right is defined
    by the immediate threat that led to the inclusion of that
    right in the Bill of Rights. In Heller, we recognized that
    the codification of this right was prompted by fear that the
    Federal Government would disarm and thus disable the
    militias, but we rejected the suggestion that the right was
    valued only as a means of preserving the militias. 554
    U. S., at ___ (slip op., at 26). On the contrary, we stressed
    that the right was also valued because the possession of
    firearms was thought to be essential for self-defense. As
    we put it, self-defense was “the central component of the
    Cite as: 561 U. S. ____ (2010)          41
    Opinion of the Court
    Opinion of ALITO, J.
    right itself.” Ibid.
    V
    A
    We turn, finally, to the two dissenting opinions.
    JUSTICE STEVENS’ eloquent opinion covers ground already
    addressed, and therefore little need be added in response.
    JUSTICE STEVENS would “ ‘ground the prohibitions against
    state action squarely on due process, without intermediate
    reliance on any of the first eight Amendments.’ ” Post, at 8
    (quoting Malloy, 378 U. S., at 24 (Harlan, J., dissenting)).
    The question presented in this case, in his view, “is
    whether the particular right asserted by petitioners ap
    plies to the States because of the Fourteenth Amendment
    itself, standing on its own bottom.” Post, at 27. He would
    hold that “[t]he rights protected against state infringe
    ment by the Fourteenth Amendment’s Due Process Clause
    need not be identical in shape or scope to the rights pro
    tected against Federal Government infringement by the
    various provisions of the Bill of Rights.” Post, at 9.
    As we have explained, the Court, for the past half
    century, has moved away from the two-track approach. If
    we were now to accept JUSTICE STEVENS’ theory across the
    board, decades of decisions would be undermined. We
    assume that this is not what is proposed. What is urged
    instead, it appears, is that this theory be revived solely for
    the individual right that Heller recognized, over vigorous
    dissents.
    The relationship between the Bill of Rights’ guarantees
    and the States must be governed by a single, neutral
    principle. It is far too late to exhume what Justice Bren
    nan, writing for the Court 46 years ago, derided as “the
    notion that the Fourteenth Amendment applies to the
    States only a watered-down, subjective version of the
    individual guarantees of the Bill of Rights.” Malloy,
    supra, at 10–11 (internal quotation marks omitted).
    42                MCDONALD v. CHICAGO
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    B
    JUSTICE BREYER’s dissent makes several points to which
    we briefly respond. To begin, while there is certainly room
    for disagreement about Heller’s analysis of the history of
    the right to keep and bear arms, nothing written since
    Heller persuades us to reopen the question there decided.
    Few other questions of original meaning have been as
    thoroughly explored.
    JUSTICE BREYER’s conclusion that the Fourteenth
    Amendment does not incorporate the right to keep and
    bear arms appears to rest primarily on four factors: First,
    “there is no popular consensus” that the right is funda
    mental, post, at 9; second, the right does not protect mi
    norities or persons neglected by those holding political
    power, post, at 10; third, incorporation of the Second
    Amendment right would “amount to a significant incur
    sion on a traditional and important area of state concern,
    altering the constitutional relationship between the States
    and the Federal Government” and preventing local varia
    tions, post, at 11; and fourth, determining the scope of the
    Second Amendment right in cases involving state and
    local laws will force judges to answer difficult empirical
    questions regarding matters that are outside their area of
    expertise, post, at 11–16. Even if we believed that these
    factors were relevant to the incorporation inquiry, none of
    these factors undermines the case for incorporation of the
    right to keep and bear arms for self-defense.
    First, we have never held that a provision of the Bill of
    Rights applies to the States only if there is a “popular
    consensus” that the right is fundamental, and we see no
    basis for such a rule. But in this case, as it turns out,
    there is evidence of such a consensus. An amicus brief
    submitted by 58 Members of the Senate and 251 Members
    of the House of Representatives urges us to hold that the
    right to keep and bear arms is fundamental. See Brief for
    Senator Kay Bailey Hutchison et al. as Amici Curiae 4.
    Cite as: 561 U. S. ____ (2010)                   43
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    Another brief submitted by 38 States takes the same
    position. Brief for State of Texas et al. as Amici Curiae 6.
    Second, petitioners and many others who live in high
    crime areas dispute the proposition that the Second
    Amendment right does not protect minorities and those
    lacking political clout. The plight of Chicagoans living in
    high-crime areas was recently highlighted when two Illi
    nois legislators representing Chicago districts called on
    the Governor to deploy the Illinois National Guard to
    patrol the City’s streets.31 The legislators noted that the
    number of Chicago homicide victims during the current
    year equaled the number of American soldiers killed dur
    ing that same period in Afghanistan and Iraq and that
    80% of the Chicago victims were black.32 Amici supporting
    incorporation of the right to keep and bear arms contend
    that the right is especially important for women and
    members of other groups that may be especially vulner
    able to violent crime.33 If, as petitioners believe, their
    safety and the safety of other law-abiding members of the
    community would be enhanced by the possession of hand
    guns in the home for self-defense, then the Second
    Amendment right protects the rights of minorities and
    other residents of high-crime areas whose needs are not
    being met by elected public officials.
    ——————
    31 See Mack & Burnette, 2 Lawmakers to Quinn: Send the Guard to
    Chicago, Chicago Tribune, Apr. 26, 2010, p. 6.
    32 Janssen & Knowles, Send in Troops? Chicago Sun-Times, Apr. 26,
    2010, p. 2; see also Brief for NAACP Legal Defense & Education Fund,
    Inc., as Amicus Curiae 5, n. 4 (stating that in 2008, almost three out of
    every four homicide victims in Chicago were African Americans); id., at
    5–6 (noting that “each year [in Chicago], many times more African
    Americans are murdered by assailants wielding guns than were killed
    during the Colfax massacre” (footnote omitted)).
    33 See Brief for Women State Legislators et al. as Amici Curiae 9–10,
    14–15; Brief for Jews for the Preservation of Firearms Ownership as
    Amicus Curiae 3–4; see also Brief for Pink Pistols et al. as Amici Curiae
    in District of Columbia v. Heller, O. T. 2007, No. 07–290, pp. 5–11.
    44                 MCDONALD v. CHICAGO
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    Third, JUSTICE BREYER is correct that incorporation of
    the Second Amendment right will to some extent limit the
    legislative freedom of the States, but this is always true
    when a Bill of Rights provision is incorporated. Incorpora
    tion always restricts experimentation and local variations,
    but that has not stopped the Court from incorporating
    virtually every other provision of the Bill of Rights. “[T]he
    enshrinement of constitutional rights necessarily takes
    certain policy choices off the table.” Heller, 554 U. S., at __
    (slip op., at 64). This conclusion is no more remarkable
    with respect to the Second Amendment than it is with
    respect to all the other limitations on state power found in
    the Constitution.
    Finally, JUSTICE BREYER is incorrect that incorporation
    will require judges to assess the costs and benefits of
    firearms restrictions and thus to make difficult empirical
    judgments in an area in which they lack expertise. As we
    have noted, while his opinion in Heller recommended an
    interest-balancing test, the Court specifically rejected that
    suggestion. See supra, at 38–39. “The very enumeration
    of the right takes out of the hands of government—even
    the Third Branch of Government—the power to decide on
    a case-by-case basis whether the right is really worth
    insisting upon.” Heller, supra, at ___ (slip op., at 62–63).
    *    *    *
    In Heller, we held that the Second Amendment protects
    the right to possess a handgun in the home for the purpose
    of self-defense. Unless considerations of stare decisis
    counsel otherwise, a provision of the Bill of Rights that
    protects a right that is fundamental from an American
    perspective applies equally to the Federal Government
    and the States. See Duncan, 
    391 U. S., at 149
    , and n. 14.
    We therefore hold that the Due Process Clause of the
    Fourteenth Amendment incorporates the Second Amend
    ment right recognized in Heller. The judgment of the
    Cite as: 561 U. S. ____ (2010)           45
    Opinion of the Court
    Opinion of ALITO, J.
    Court of Appeals is reversed, and the case is remanded for
    further proceedings.
    It is so ordered.
    Cite as: 561 U. S. ____ (2010)            1
    SCALIA, J., concurring
    SUPREME COURT OF THE UNITED STATES
    _________________
    No. 08–1521
    _________________
    OTIS MCDONALD, ET AL., PETITIONERS v. CITY OF
    CHICAGO, ILLINOIS, ET AL.
    ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
    APPEALS FOR THE SEVENTH CIRCUIT
    [June 28, 2010]
    JUSTICE SCALIA, concurring.
    I join the Court’s opinion. Despite my misgivings about
    Substantive Due Process as an original matter, I have
    acquiesced in the Court’s incorporation of certain guaran­
    tees in the Bill of Rights “because it is both long estab­
    lished and narrowly limited.” Albright v. Oliver, 
    510 U. S. 266
    , 275 (1994) (SCALIA, J., concurring). This case does
    not require me to reconsider that view, since straightfor­
    ward application of settled doctrine suffices to decide it.
    I write separately only to respond to some aspects of
    JUSTICE STEVENS’ dissent. Not that aspect which dis­
    agrees with the majority’s application of our precedents to
    this case, which is fully covered by the Court’s opinion.
    But much of what JUSTICE STEVENS writes is a broad
    condemnation of the theory of interpretation which under­
    lies the Court’s opinion, a theory that makes the traditions
    of our people paramount. He proposes a different theory,
    which he claims is more “cautiou[s]” and respectful of
    proper limits on the judicial role. Post, at 57. It is that
    claim I wish to address.
    I
    A
    After stressing the substantive dimension of what he
    2                    MCDONALD v. CHICAGO
    SCALIA, J., concurring
    has renamed the “liberty clause,” post, at 4–7,1 JUSTICE
    STEVENS proceeds to urge readoption of the theory of
    incorporation articulated in Palko v. Connecticut, 
    302 U. S. 319
    , 325 (1937), see post, at 14–20. But in fact he
    does not favor application of that theory at all. For
    whether Palko requires only that “a fair and enlightened
    system of justice would be impossible without” the right
    sought to be incorporated, 
    302 U. S., at 325
    , or requires in
    addition that the right be rooted in the “traditions and
    conscience of our people,” 
    ibid.
     (internal quotation marks
    omitted), many of the rights JUSTICE STEVENS thinks are
    incorporated could not pass muster under either test:
    abortion, post, at 7 (citing Planned Parenthood of South
    eastern Pa. v. Casey, 
    505 U. S. 833
    , 847 (1992)); homosex­
    ual sodomy, post, at 16 (citing Lawrence v. Texas, 
    539 U. S. 558
    , 572 (2003)); the right to have excluded from
    criminal trials evidence obtained in violation of the Fourth
    Amendment, post, at 18 (citing Mapp v. Ohio, 
    367 U. S. 643
    , 650, 655–657 (1961)); and the right to teach one’s
    children foreign languages, post, at 7 (citing Meyer v.
    Nebraska, 
    262 U. S. 390
    , 399–403 (1923)), among others.
    That JUSTICE STEVENS is not applying any version of
    Palko is clear from comparing, on the one hand, the rights
    he believes are covered, with, on the other hand, his con­
    clusion that the right to keep and bear arms is not cov­
    ered. Rights that pass his test include not just those
    “relating to marriage, procreation, contraception, family
    relationships, and child rearing and education,” but also
    rights against “[g]overnment action that shocks the con­
    ——————
    1 I do not entirely understand JUSTICE STEVENS’ renaming of the Due
    Process Clause. What we call it, of course, does not change what the
    Clause says, but shorthand should not obscure what it says. Accepting
    for argument’s sake the shift in emphasis—from avoiding certain
    deprivations without that “process” which is “due,” to avoiding the
    deprivations themselves—the Clause applies not just to deprivations of
    “liberty,” but also to deprivations of “life” and even “property.”
    Cite as: 561 U. S. ____ (2010)                    3
    SCALIA, J., concurring
    science, pointlessly infringes settled expectations, tres­
    passes into sensitive private realms or life choices without
    adequate justification, [or] perpetrates gross injustice.”
    Post, at 23 (internal quotation marks omitted). Not all
    such rights are in, however, since only “some fundamental
    aspects of personhood, dignity, and the like” are protected,
    post, at 24 (emphasis added). Exactly what is covered is
    not clear. But whatever else is in, he knows that the right
    to keep and bear arms is out, despite its being as “deeply
    rooted in this Nation’s history and tradition,” Washington
    v. Glucksberg, 
    521 U. S. 702
    , 721 (1997) (internal quota­
    tion marks omitted), as a right can be, see District of
    Columbia v. Heller, 554 U. S. ___, ___–___, ___–___, ___–
    ___ (2008) (slip op., at 20–21, 26–30, 41–44). I can find no
    other explanation for such certitude except that JUSTICE
    STEVENS, despite his forswearing of “personal and private
    notions,” post, at 21 (internal quotation marks omitted),
    deeply believes it should be out.
    The subjective nature of JUSTICE STEVENS’ standard is
    also apparent from his claim that it is the courts’ preroga­
    tive—indeed their duty—to update the Due Process Clause
    so that it encompasses new freedoms the Framers were
    too narrow-minded to imagine, post, at 19–20, and n. 21.
    Courts, he proclaims, must “do justice to [the Clause’s]
    urgent call and its open texture” by exercising the “inter­
    pretive discretion the latter embodies.” Post, at 21. (Why
    the people are not up to the task of deciding what new
    rights to protect, even though it is they who are authorized
    to make changes, see U. S. Const., Art. V, is never ex­
    plained.2) And it would be “judicial abdication” for a judge
    to “tur[n] his back” on his task of determining what the
    ——————
    2 JUSTICE STEVENS insists that he would not make courts the sole
    interpreters of the “liberty clause”; he graciously invites “[a]ll Ameri­
    cans” to ponder what the Clause means to them today. Post, at 20, n.
    22. The problem is that in his approach the people’s ponderings do not
    matter, since whatever the people decide, courts have the last word.
    4                     MCDONALD v. CHICAGO
    SCALIA, J., concurring
    Fourteenth Amendment covers by “outsourc[ing]” the job
    to “historical sentiment,” post, at 20—that is, by being
    guided by what the American people throughout our his­
    tory have thought. It is only we judges, exercising our
    “own reasoned judgment,” post, at 15, who can be en­
    trusted with deciding the Due Process Clause’s scope—
    which rights serve the Amendment’s “central values,” post,
    at 23—which basically means picking the rights we want
    to protect and discarding those we do not.
    B
    JUSTICE STEVENS resists this description, insisting that
    his approach provides plenty of “guideposts” and “con­
    straints” to keep courts from “injecting excessive subjectiv­
    ity” into the process.3 Post, at 21. Plenty indeed—and
    that alone is a problem. The ability of omnidirectional
    guideposts to constrain is inversely proportional to their
    number. But even individually, each lodestar or limitation
    he lists either is incapable of restraining judicial whimsy
    or cannot be squared with the precedents he seeks to
    preserve.
    He begins with a brief nod to history, post, at 21, but as
    ——————
    3 JUSTICE BREYER is not worried by that prospect. His interpretive
    approach applied to incorporation of the Second Amendment includes
    consideration of such factors as “the extent to which incorporation will
    further other, perhaps more basic, constitutional aims; and the extent
    to which incorporation will advance or hinder the Constitution’s struc­
    tural aims”; whether recognizing a particular right will “further the
    Constitution’s effort to ensure that the government treats each individ­
    ual with equal respect” or will “help maintain the democratic form of
    government”; whether it is “inconsistent . . . with the Constitution’s
    efforts to create governmental institutions well suited to the carrying
    out of its constitutional promises”; whether it fits with “the Framers’
    basic reason for believing the Court ought to have the power of judicial
    review”; courts’ comparative advantage in answering empirical ques­
    tions that may be involved in applying the right; and whether there is a
    “strong offsetting justification” for removing a decision from the democ­
    ratic process. Post, at 7, 11–17 (dissenting opinion).
    Cite as: 561 U. S. ____ (2010)            5
    SCALIA, J., concurring
    he has just made clear, he thinks historical inquiry un­
    availing, post, at 19–20. Moreover, trusting the meaning
    of the Due Process Clause to what has historically been
    protected is circular, see post, at 19, since that would
    mean no new rights could get in.
    JUSTICE STEVENS moves on to the “most basic” con­
    straint on subjectivity his theory offers: that he would
    “esche[w] attempts to provide any all-purpose, top-down,
    totalizing theory of ‘liberty.’ ” Post, at 22. The notion that
    the absence of a coherent theory of the Due Process Clause
    will somehow curtail judicial caprice is at war with reason.
    Indeterminacy means opportunity for courts to impose
    whatever rule they like; it is the problem, not the solution.
    The idea that interpretive pluralism would reduce courts’
    ability to impose their will on the ignorant masses is not
    merely naïve, but absurd. If there are no right answers,
    there are no wrong answers either.
    JUSTICE STEVENS also argues that requiring courts to
    show “respect for the democratic process” should serve as
    a constraint. Post, at 23. That is true, but JUSTICE
    STEVENS would have them show respect in an extraordi­
    nary manner. In his view, if a right “is already being
    given careful consideration in, and subjected to ongoing
    calibration by, the States, judicial enforcement may not be
    appropriate.” 
    Ibid.
     In other words, a right, such as the
    right to keep and bear arms, that has long been recognized
    but on which the States are considering restrictions, ap­
    parently deserves less protection, while a privilege the
    political branches (instruments of the democratic process)
    have withheld entirely and continue to withhold, deserves
    more. That topsy-turvy approach conveniently accom­
    plishes the objective of ensuring that the rights this Court
    held protected in Casey, Lawrence, and other such cases fit
    the theory—but at the cost of insulting rather than re­
    specting the democratic process.
    The next constraint JUSTICE STEVENS suggests is harder
    6                  MCDONALD v. CHICAGO
    SCALIA, J., concurring
    to evaluate. He describes as “an important tool for guiding
    judicial discretion” “sensitivity to the interaction between
    the intrinsic aspects of liberty and the practical realities of
    contemporary society.” Post, at 24. I cannot say whether
    that sensitivity will really guide judges because I have no
    idea what it is. Is it some sixth sense instilled in judges
    when they ascend to the bench? Or does it mean judges
    are more constrained when they agonize about the cosmic
    conflict between liberty and its potentially harmful conse­
    quences? Attempting to give the concept more precision,
    JUSTICE STEVENS explains that “sensitivity is an aspect of
    a deeper principle: the need to approach our work with
    humility and caution.” 
    Ibid.
     Both traits are undeniably
    admirable, though what relation they bear to sensitivity is
    a mystery. But it makes no difference, for the first case
    JUSTICE STEVENS cites in support, see ibid., Casey, 
    505 U. S., at 849
    , dispels any illusion that he has a meaningful
    form of judicial modesty in mind.
    JUSTICE STEVENS offers no examples to illustrate the
    next constraint: stare decisis, post, at 25. But his view of it
    is surely not very confining, since he holds out as a “ca­
    nonical” exemplar of the proper approach, see post, at 16,
    54, Lawrence, which overruled a case decided a mere 17
    years earlier, Bowers v. Hardwick, 
    478 U. S. 186
     (1986),
    see 
    539 U. S., at 578
     (it “was not correct when it was
    decided, and it is not correct today”). Moreover, JUSTICE
    STEVENS would apply that constraint unevenly: He appar­
    ently approves those Warren Court cases that adopted jot­
    for-jot incorporation of procedural protections for criminal
    defendants, post, at 11, but would abandon those Warren
    Court rulings that undercut his approach to substantive
    rights, on the basis that we have “cut back” on cases from
    that era before, post, at 12.
    JUSTICE STEVENS also relies on the requirement of a
    “careful description of the asserted fundamental liberty
    interest” to limit judicial discretion. Post, at 25 (internal
    Cite as: 561 U. S. ____ (2010)            7
    SCALIA, J., concurring
    quotation marks omitted). I certainly agree with that
    requirement, see Reno v. Flores, 
    507 U. S. 292
    , 302 (1993),
    though some cases JUSTICE STEVENS approves have not
    applied it seriously, see, e.g., Lawrence, 
    supra, at 562
    (“The instant case involves liberty of the person both in its
    spatial and in its more transcendent dimensions”). But if
    the “careful description” requirement is used in the man­
    ner we have hitherto employed, then the enterprise of
    determining the Due Process Clause’s “conceptual core,”
    post, at 23, is a waste of time. In the cases he cites we
    sought a careful, specific description of the right at issue
    in order to determine whether that right, thus narrowly
    defined, was fundamental. See, e.g., Glucksberg, 
    521 U. S., at
    722–728; Reno, 
    supra,
     at 302–306; Collins v.
    Harker Heights, 
    503 U. S. 115
    , 125–129 (1992); Cruzan v.
    Director, Mo. Dept. of Health, 
    497 U. S. 261
    , 269–279
    (1990); see also Vacco v. Quill, 
    521 U. S. 793
    , 801–808
    (1997). The threshold step of defining the asserted right
    with precision is entirely unnecessary, however, if (as
    JUSTICE STEVENS maintains) the “conceptual core” of the
    “liberty clause,” post, at 23, includes a number of capa­
    cious, hazily defined categories. There is no need to define
    the right with much precision in order to conclude that it
    pertains to the plaintiff’s “ability independently to define
    [his] identity,” his “right to make certain unusually impor­
    tant decisions that will affect his own, or his family’s,
    destiny,” or some aspect of his “[s]elf-determination, bodily
    integrity, freedom of conscience, intimate relationships,
    political equality, dignity [or] respect.” 
    Ibid.
     (internal
    quotation marks omitted). JUSTICE STEVENS must there­
    fore have in mind some other use for the careful­
    description requirement—perhaps just as a means of
    ensuring that courts “procee[d] slowly and incrementally,”
    post, at 25. But that could be achieved just as well by
    8                      MCDONALD v. CHICAGO
    SCALIA, J., concurring
    having them draft their opinions in longhand.4
    II
    If JUSTICE STEVENS’ account of the constraints of his
    approach did not demonstrate that they do not exist, his
    application of that approach to the case before us leaves no
    doubt. He offers several reasons for concluding that the
    Second Amendment right to keep and bear arms is not
    fundamental enough to be applied against the States.5
    None is persuasive, but more pertinent to my purpose,
    each is either intrinsically indeterminate, would preclude
    incorporation of rights we have already held incorporated,
    or both. His approach therefore does nothing to stop a
    judge from arriving at any conclusion he sets out to reach.
    JUSTICE STEVENS begins with the odd assertion that
    ——————
    4 After
    defending the careful-description criterion, JUSTICE STEVENS
    quickly retreats and cautions courts not to apply it too stringently.
    Post, at 26. Describing a right too specifically risks robbing it of its
    “universal valence and a moral force it might otherwise have,” ibid.,
    and “loads the dice against its recognition,” post, at 26, n. 25 (internal
    quotation marks omitted). That must be avoided, since it endangers
    rights JUSTICE STEVENS does like. See 
    ibid.
     (discussing Lawrence v.
    Texas, 
    539 U. S. 558
     (2003)). To make sure those rights get in, we must
    leave leeway in our description, so that a right that has not itself been
    recognized as fundamental can ride the coattails of one that has been.
    5 JUSTICE STEVENS claims that I mischaracterize his argument by
    referring to the Second Amendment right to keep and bear arms,
    instead of “the interest in keeping a firearm of one’s choosing in the
    home,” the right he says petitioners assert. Post, at 38, n. 36. But it is
    precisely the “Second Amendment right to keep and bear arms” that
    petitioners argue is incorporated by the Due Process Clause. See, e.g.,
    Pet. for Cert. i. Under JUSTICE STEVENS’ own approach, that should end
    the matter. See post, at 26 (“[W]e must pay close attention to the
    precise liberty interest the litigants have asked us to vindicate”). In
    any event, the demise of watered-down incorporation, see ante, at 17–
    19, means that we no longer subdivide Bill of Rights guarantees into
    their theoretical components, only some of which apply to the States.
    The First Amendment freedom of speech is incorporated—not the
    freedom to speak on Fridays, or to speak about philosophy.
    Cite as: 561 U. S. ____ (2010)                     9
    SCALIA, J., concurring
    “firearms have a fundamentally ambivalent relationship
    to liberty,” since sometimes they are used to cause (or
    sometimes accidentally produce) injury to others. Post, at
    35. The source of the rule that only nonambivalent liber­
    ties deserve Due Process protection is never explained—
    proof that judges applying JUSTICE STEVENS’ approach can
    add new elements to the test as they see fit. The criterion,
    moreover, is inherently manipulable. Surely JUSTICE
    STEVENS does not mean that the Clause covers only rights
    that have zero harmful effect on anyone. Otherwise even
    the First Amendment is out. Maybe what he means is
    that the right to keep and bear arms imposes too great a
    risk to others’ physical well-being. But as the plurality
    explains, ante, at 35–36, other rights we have already held
    incorporated pose similarly substantial risks to public
    safety. In all events, JUSTICE STEVENS supplies neither a
    standard for how severe the impairment on others’ liberty
    must be for a right to be disqualified, nor (of course) any
    method of measuring the severity.
    JUSTICE STEVENS next suggests that the Second
    Amendment right is not fundamental because it is “differ­
    ent in kind” from other rights we have recognized. Post, at
    37. In one respect, of course, the right to keep and bear
    arms is different from some other rights we have held the
    Clause protects and he would recognize: It is deeply
    grounded in our nation’s history and tradition. But
    JUSTICE STEVENS has a different distinction in mind:
    Even though he does “not doubt for a moment that many
    Americans . . . see [firearms] as critical to their way of life
    as well as to their security,” he pronounces that owning a
    handgun is not “critical to leading a life of autonomy,
    dignity, or political equality.”6 Post, at 37–38. Who says?
    ——————
    6 JUSTICE STEVENS goes a step farther still, suggesting that the right
    to keep and bear arms is not protected by the “liberty clause” because it
    is not really a liberty at all, but a “property right.” Post, at 38. Never
    10                     MCDONALD v. CHICAGO
    SCALIA, J., concurring
    Deciding what is essential to an enlightened, liberty-filled
    life is an inherently political, moral judgment—the an­
    tithesis of an objective approach that reaches conclusions
    by applying neutral rules to verifiable evidence.7
    No determination of what rights the Constitution of the
    United States covers would be complete, of course, without
    a survey of what other countries do. Post, at 40–41. When
    it comes to guns, JUSTICE STEVENS explains, our Nation is
    already an outlier among “advanced democracies”; not
    even our “oldest allies” protect as robust a right as we do,
    and we should not widen the gap. 
    Ibid.
     Never mind that
    he explains neither which countries qualify as “advanced
    democracies” nor why others are irrelevant. For there is
    an even clearer indication that this criterion lets judges
    pick which rights States must respect and those they can
    ignore: As the plurality shows, ante, at 34–35, and nn. 28–
    29, this follow-the-foreign-crowd requirement would fore­
    ——————
    mind that the right to bear arms sounds mighty like a liberty; and
    never mind that the “liberty clause” is really a Due Process Clause
    which explicitly protects “property,” see United States v. Carlton, 
    512 U. S. 26
    , 41–42 (1994) (SCALIA, J., concurring in judgment). JUSTICE
    STEVENS’ theory cannot explain why the Takings Clause, which unques­
    tionably protects property, has been incorporated, see Chicago, B. & Q.
    R. Co. v. Chicago, 
    166 U. S. 226
    , 241 (1897), in a decision he appears to
    accept, post, at 14, n. 14.
    7 As JUSTICE STEVENS notes, see post, at 51–52, I accept as a matter of
    stare decisis the requirement that to be fundamental for purposes of the
    Due Process Clause, a right must be “implicit in the concept of ordered
    liberty,” Lawrence, 
    supra, at 593, n. 3
     (SCALIA, J., dissenting) (internal
    quotation marks omitted). But that inquiry provides infinitely less
    scope for judicial invention when conducted under the Court’s ap­
    proach, since the field of candidates is immensely narrowed by the prior
    requirement that a right be rooted in this country’s traditions. JUSTICE
    STEVENS, on the other hand, is free to scan the universe for rights that
    he thinks “implicit in the concept, etc.” The point JUSTICE STEVENS
    makes here is merely one example of his demand that an historical
    approach to the Constitution prove itself, not merely much better than
    his in restraining judicial invention, but utterly perfect in doing so. See
    Part III, infra.
    Cite as: 561 U. S. ____ (2010)           11
    SCALIA, J., concurring
    close rights that we have held (and JUSTICE STEVENS
    accepts) are incorporated, but that other “advanced” na­
    tions do not recognize—from the exclusionary rule to the
    Establishment Clause.           A judge applying JUSTICE
    STEVENS’ approach must either throw all of those rights
    overboard or, as cases JUSTICE STEVENS approves have
    done in considering unenumerated rights, simply ignore
    foreign law when it undermines the desired conclusion,
    see, e.g., Casey, 
    505 U. S. 833
     (making no mention of
    foreign law).
    JUSTICE STEVENS also argues that since the right to
    keep and bear arms was codified for the purpose of “pre­
    vent[ing] elimination of the militia,” it should be viewed as
    “ ‘a federalism provision’ ” logically incapable of incorpora­
    tion. Post, at 41–42 (quoting Elk Grove Unified School
    Dist. v. Newdow, 
    542 U. S. 1
    , 45 (2004) (THOMAS, J., con­
    curring in judgment); some internal quotation marks
    omitted). This criterion, too, evidently applies only when
    judges want it to. The opinion JUSTICE STEVENS quotes
    for the “federalism provision” principle, JUSTICE THOMAS’s
    concurrence in Newdow, argued that incorporation of the
    Establishment Clause “makes little sense” because that
    Clause was originally understood as a limit on congres­
    sional interference with state establishments of religion.
    
    Id.,
     at 49–51. JUSTICE STEVENS, of course, has no problem
    with applying the Establishment Clause to the States.
    See, e.g., 
    id., at 8, n. 4
     (opinion for the Court by STEVENS,
    J.) (acknowledging that the Establishment Clause
    “appl[ies] to the States by incorporation into the Four­
    teenth Amendment”). While he insists that Clause is not a
    “federalism provision,” post, at 42, n. 40, he does not ex­
    plain why it is not, but the right to keep and bear arms is
    (even though only the latter refers to a “right of the peo­
    ple”). The “federalism” argument prevents the incorpora­
    tion of only certain rights.
    JUSTICE STEVENS next argues that even if the right to
    12                MCDONALD v. CHICAGO
    SCALIA, J., concurring
    keep and bear arms is “deeply rooted in some important
    senses,” the roots of States’ efforts to regulate guns run
    just as deep. Post, at 44 (internal quotation marks omit­
    ted). But this too is true of other rights we have held
    incorporated. No fundamental right—not even the First
    Amendment—is absolute. The traditional restrictions go
    to show the scope of the right, not its lack of fundamental
    character. At least that is what they show (JUSTICE
    STEVENS would agree) for other rights. Once again, prin­
    ciples are applied selectively.
    JUSTICE STEVENS’ final reason for rejecting incorpora­
    tion of the Second Amendment reveals, more clearly than
    any of the others, the game that is afoot. Assuming that
    there is a “plausible constitutional basis” for holding that
    the right to keep and bear arms is incorporated, he asserts
    that we ought not to do so for prudential reasons. Post, at
    47. Even if we had the authority to withhold rights that
    are within the Constitution’s command (and we assuredly
    do not), two of the reasons JUSTICE STEVENS gives for
    abstention show just how much power he would hand to
    judges. The States’ “right to experiment” with solutions to
    the problem of gun violence, he says, is at its apex here
    because “the best solution is far from clear.” Post, at 47–
    48 (internal quotation marks omitted). That is true of
    most serious social problems—whether, for example, “the
    best solution” for rampant crime is to admit confessions
    unless they are affirmatively shown to have been coerced,
    but see Miranda v. Arizona, 
    384 U. S. 436
    , 444–445
    (1966), or to permit jurors to impose the death penalty
    without a requirement that they be free to consider “any
    relevant mitigating factor,” see Eddings v. Oklahoma, 
    455 U. S. 104
    , 112 (1982), which in turn leads to the conclusion
    that defense counsel has provided inadequate defense if he
    has not conducted a “reasonable investigation” into poten­
    tially mitigating factors, see, e.g., Wiggins v. Smith, 
    539 U. S. 510
    , 534 (2003), inquiry into which question tends to
    Cite as: 561 U. S. ____ (2010)                  13
    SCALIA, J., concurring
    destroy any prospect of prompt justice, see, e.g., Wong v.
    Belmontes, 558 U. S. ___ (2009) (per curiam) (reversing
    grant of habeas relief for sentencing on a crime committed
    in 1981). The obviousness of the optimal answer is in the
    eye of the beholder. The implication of JUSTICE STEVENS’
    call for abstention is that if We The Court conclude that
    They The People’s answers to a problem are silly, we are
    free to “interven[e],” post, at 47, but if we too are uncertain
    of the right answer, or merely think the States may be on
    to something, we can loosen the leash.
    A second reason JUSTICE STEVENS says we should ab­
    stain is that the States have shown they are “capable” of
    protecting the right at issue, and if anything have pro­
    tected it too much. Post, at 49. That reflects an assump­
    tion that judges can distinguish between a proper democ­
    ratic decision to leave things alone (which we should
    honor), and a case of democratic market failure (which we
    should step in to correct). I would not—and no judge
    should—presume to have that sort of omniscience, which
    seems to me far more “arrogant,” post, at 41, than confin­
    ing courts’ focus to our own national heritage.
    III
    JUSTICE STEVENS’ response to this concurrence, post, at
    51–56, makes the usual rejoinder of “living Constitution”
    advocates to the criticism that it empowers judges to
    eliminate or expand what the people have prescribed: The
    traditional, historically focused method, he says, reposes
    discretion in judges as well.8 Historical analysis can be
    ——————
    8 JUSTICE STEVENS also asserts that his approach is “more faithful to
    this Nation’s constitutional history” and to “the values and commit­
    ments of the American people, as they stand today,” post, at 54. But
    what he asserts to be the proof of this is that his approach aligns (no
    surprise) with those cases he approves (and dubs “canonical,” ibid.).
    Cases he disfavors are discarded as “hardly bind[ing]” “excesses,” post,
    at 12, or less “enduring,” post, at 17, n. 16. Not proven. Moreover,
    whatever relevance JUSTICE STEVENS ascribes to current “values and
    14                     MCDONALD v. CHICAGO
    SCALIA, J., concurring
    difficult; it sometimes requires resolving threshold ques­
    tions, and making nuanced judgments about which evi­
    dence to consult and how to interpret it.
    I will stipulate to that.9 But the question to be decided
    is not whether the historically focused method is a perfect
    means of restraining aristocratic judicial Constitution­
    writing; but whether it is the best means available in an
    imperfect world. Or indeed, even more narrowly than
    that: whether it is demonstrably much better than what
    JUSTICE STEVENS proposes. I think it beyond all serious
    dispute that it is much less subjective, and intrudes much
    less upon the democratic process. It is less subjective
    because it depends upon a body of evidence susceptible of
    reasoned analysis rather than a variety of vague ethico­
    political First Principles whose combined conclusion can
    be found to point in any direction the judges favor. In the
    most controversial matters brought before this Court—for
    example, the constitutionality of prohibiting abortion,
    assisted suicide, or homosexual sodomy, or the constitu­
    tionality of the death penalty—any historical methodology,
    under any plausible standard of proof, would lead to the
    same conclusion.10 Moreover, the methodological differ­
    ences that divide historians, and the varying interpretive
    ——————
    commitments of the American people” (and that is unclear, see post, at
    48–49, n. 47), it is hard to see how it shows fidelity to them that he
    disapproves a different subset of old cases than the Court does.
    9 That is not to say that every historical question on which there is
    room for debate is indeterminate, or that every question on which
    historians disagree is equally balanced. Cf. post, at 52–53. For exam­
    ple, the historical analysis of the principal dissent in Heller is as valid
    as the Court’s only in a two-dimensional world that conflates length
    and depth.
    10 By the way, JUSTICE STEVENS greatly magnifies the difficulty of an
    historical approach by suggesting that it was my burden in Lawrence to
    show the “ancient roots of proscriptions against sodomy,” post, at 53
    (internal quotation marks omitted). Au contraire, it was his burden (in
    the opinion he joined) to show the ancient roots of the right of sodomy.
    Cite as: 561 U. S. ____ (2010)           15
    SCALIA, J., concurring
    assumptions they bring to their work, post, at 52–54, are
    nothing compared to the differences among the American
    people (though perhaps not among graduates of prestig­
    ious law schools) with regard to the moral judgments
    JUSTICE STEVENS would have courts pronounce. And
    whether or not special expertise is needed to answer his­
    torical questions, judges most certainly have no “compara­
    tive . . . advantage,” post, at 24 (internal quotation marks
    omitted), in resolving moral disputes. What is more, his
    approach would not eliminate, but multiply, the hard
    questions courts must confront, since he would not replace
    history with moral philosophy, but would have courts
    consider both.
    And the Court’s approach intrudes less upon the democ­
    ratic process because the rights it acknowledges are those
    established by a constitutional history formed by democ­
    ratic decisions; and the rights it fails to acknowledge are
    left to be democratically adopted or rejected by the people,
    with the assurance that their decision is not subject to
    judicial revision. JUSTICE STEVENS’ approach, on the
    other hand, deprives the people of that power, since what­
    ever the Constitution and laws may say, the list of pro­
    tected rights will be whatever courts wish it to be. After
    all, he notes, the people have been wrong before, post, at
    55, and courts may conclude they are wrong in the future.
    JUSTICE STEVENS abhors a system in which “majorities or
    powerful interest groups always get their way,” post, at 56,
    but replaces it with a system in which unelected and life­
    tenured judges always get their way. That such usurpa­
    tion is effected unabashedly, see post, at 53—with “the
    judge’s cards . . . laid on the table,” ibid.—makes it even
    worse. In a vibrant democracy, usurpation should have to
    be accomplished in the dark. It is JUSTICE STEVENS’ ap­
    proach, not the Court’s, that puts democracy in peril.
    Cite as: 561 U. S. ____ (2010)           1
    Opinion of THOMAS, J.
    SUPREME COURT OF THE UNITED STATES
    _________________
    No. 08–1521
    _________________
    OTIS MCDONALD, ET AL., PETITIONERS v. CITY OF
    CHICAGO, ILLINOIS, ET AL.
    ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
    APPEALS FOR THE SEVENTH CIRCUIT
    [June 28, 2010]
    JUSTICE THOMAS, concurring in part and concurring in
    the judgment.
    I agree with the Court that the Fourteenth Amendment
    makes the right to keep and bear arms set forth in the
    Second Amendment “fully applicable to the States.” Ante,
    at 1. I write separately because I believe there is a more
    straightforward path to this conclusion, one that is more
    faithful to the Fourteenth Amendment’s text and history.
    Applying what is now a well-settled test, the plurality
    opinion concludes that the right to keep and bear arms
    applies to the States through the Fourteenth Amend
    ment’s Due Process Clause because it is “fundamental” to
    the American “scheme of ordered liberty,” ante, at 19
    (citing Duncan v. Louisiana, 
    391 U. S. 145
    , 149 (1968)),
    and “ ‘deeply rooted in this Nation’s history and tradi
    tion,’ ” ante, at 19 (quoting Washington v. Glucksberg, 
    521 U. S. 702
    , 721 (1997)). I agree with that description of the
    right. But I cannot agree that it is enforceable against the
    States through a clause that speaks only to “process.”
    Instead, the right to keep and bear arms is a privilege of
    American citizenship that applies to the States through
    the Fourteenth Amendment’s Privileges or Immunities
    Clause.
    2                  MCDONALD v. CHICAGO
    Opinion of THOMAS, J.
    I
    In District of Columbia v. Heller, 554 U. S. ___ (2008),
    this Court held that the Second Amendment protects an
    individual right to keep and bear arms for the purpose of
    self-defense, striking down a District of Columbia ordi
    nance that banned the possession of handguns in the
    home. 
    Id.,
     at __ (slip op., at 64). The question in this case
    is whether the Constitution protects that right against
    abridgment by the States.
    As the Court explains, if this case were litigated before
    the Fourteenth Amendment’s adoption in 1868, the an
    swer to that question would be simple. In Barron ex rel.
    Tiernan v. Mayor of Baltimore, 
    7 Pet. 243
     (1833), this
    Court held that the Bill of Rights applied only to the Fed
    eral Government. Writing for the Court, Chief Justice
    Marshall recalled that the founding generation added the
    first eight Amendments to the Constitution in response to
    Antifederalist concerns regarding the extent of federal—
    not state—power, and held that if “the framers of these
    amendments [had] intended them to be limitations on the
    powers of the state governments,” “they would have de
    clared this purpose in plain and intelligible language.”
    
    Id., at 250
    . Finding no such language in the Bill, Chief
    Justice Marshall held that it did not in any way restrict
    state authority. 
    Id.,
     at 248–250; see Lessee of Livingston
    v. Moore, 
    7 Pet. 469
    , 551–552 (1833) (reaffirming Barron’s
    holding); Permoli v. Municipality No. 1 of New Orleans, 
    3 How. 589
    , 609–610 (1845) (same).
    Nearly three decades after Barron, the Nation was
    splintered by a civil war fought principally over the ques
    tion of slavery. As was evident to many throughout our
    Nation’s early history, slavery, and the measures designed
    to protect it, were irreconcilable with the principles of
    equality, government by consent, and inalienable rights
    proclaimed by the Declaration of Independence and em
    bedded in our constitutional structure. See, e.g., 3 Records
    Cite as: 561 U. S. ____ (2010)            3
    Opinion of THOMAS, J.
    of the Federal Convention of 1787, p. 212 (M. Farrand ed.
    1911) (remarks of Luther Martin) (“[S]lavery is inconsis
    tent with the genius of republicanism, and has a tendency
    to destroy those principles on which it is supported, as it
    lessens the sense of the equal rights of mankind” (empha
    sis deleted)); A. Lincoln, Speech at Peoria, Ill. (Oct. 16,
    1854), reprinted in 2 The Collected Works of Abraham
    Lincoln 266 (R. Basler ed. 1953) (“[N]o man is good enough
    to govern another man, without that other’s consent. I say
    this is the leading principle—the sheet anchor of American
    republicanism. . . . Now the relation of masters and slaves
    is, pro tanto, a total violation of this principle”).
    After the war, a series of constitutional amendments
    were adopted to repair the Nation from the damage slav
    ery had caused. The provision at issue here, §1 of the
    Fourteenth Amendment, significantly altered our system
    of government. The first sentence of that section provides
    that “[a]ll persons born or naturalized in the United States
    and subject to the jurisdiction thereof, are citizens of the
    United States and of the State wherein they reside.” This
    unambiguously overruled this Court’s contrary holding in
    Dred Scott v. Sandford, 
    19 How. 393
     (1857), that the
    Constitution did not recognize black Americans as citizens
    of the United States or their own State. 
    Id.,
     at 405–406.
    The meaning of §1’s next sentence has divided this
    Court for many years. That sentence begins with the
    command that “[n]o State shall make or enforce any law
    which shall abridge the privileges or immunities of citi
    zens of the United States.” On its face, this appears to
    grant the persons just made United States citizens a
    certain collection of rights—i.e., privileges or immunities—
    attributable to that status.
    This Court’s precedents accept that point, but define the
    relevant collection of rights quite narrowly.         In the
    Slaughter-House Cases, 
    16 Wall. 36
     (1873), decided just
    five years after the Fourteenth Amendment’s adoption, the
    4                 MCDONALD v. CHICAGO
    Opinion of THOMAS, J.
    Court interpreted this text, now known as the Privileges
    or Immunities Clause, for the first time. In a closely
    divided decision, the Court drew a sharp distinction be
    tween the privileges and immunities of state citizenship
    and those of federal citizenship, and held that the Privi
    leges or Immunities Clause protected only the latter cate
    gory of rights from state abridgment. 
    Id., at 78
    . The
    Court defined that category to include only those rights
    “which owe their existence to the Federal government, its
    National character, its Constitution, or its laws.” 
    Id., at 79
    . This arguably left open the possibility that certain
    individual rights enumerated in the Constitution could be
    considered privileges or immunities of federal citizenship.
    See 
    ibid.
     (listing “[t]he right to peaceably assemble” and
    “the privilege of the writ of habeas corpus” as rights poten
    tially protected by the Privileges or Immunities Clause).
    But the Court soon rejected that proposition, interpreting
    the Privileges or Immunities Clause even more narrowly
    in its later cases.
    Chief among those cases is United States v. Cruikshank,
    
    92 U. S. 542
     (1876). There, the Court held that members
    of a white militia who had brutally murdered as many as
    165 black Louisianians congregating outside a courthouse
    had not deprived the victims of their privileges as Ameri
    can citizens to peaceably assemble or to keep and bear
    arms. Ibid.; see L. Keith, The Colfax Massacre 109 (2008).
    According to the Court, the right to peaceably assemble
    codified in the First Amendment was not a privilege of
    United States citizenship because “[t]he right . . . existed
    long before the adoption of the Constitution.” 
    92 U. S., at 551
     (emphasis added). Similarly, the Court held that the
    right to keep and bear arms was not a privilege of United
    States citizenship because it was not “in any manner
    dependent upon that instrument for its existence.” 
    Id., at 553
    . In other words, the reason the Framers codified the
    right to bear arms in the Second Amendment—its nature
    Cite as: 561 U. S. ____ (2010)                    5
    Opinion of THOMAS, J.
    as an inalienable right that pre-existed the Constitution’s
    adoption—was the very reason citizens could not enforce it
    against States through the Fourteenth.
    That circular reasoning effectively has been the Court’s
    last word on the Privileges or Immunities Clause.1 In the
    intervening years, the Court has held that the Clause
    prevents state abridgment of only a handful of rights, such
    as the right to travel, see Saenz v. Roe, 
    526 U. S. 489
    , 503
    (1999), that are not readily described as essential to
    liberty.
    As a consequence of this Court’s marginalization of the
    Clause, litigants seeking federal protection of fundamental
    rights turned to the remainder of §1 in search of an alter
    native fount of such rights. They found one in a most
    curious place—that section’s command that every State
    guarantee “due process” to any person before depriving
    him of “life, liberty, or property.” At first, litigants argued
    that this Due Process Clause “incorporated” certain proce
    dural rights codified in the Bill of Rights against the
    States. The Court generally rejected those claims, how
    ever, on the theory that the rights in question were not
    sufficiently “fundamental” to warrant such treatment.
    See, e.g., Hurtado v. California, 
    110 U. S. 516
     (1884)
    (grand jury indictment requirement); Maxwell v. Dow, 
    176 U. S. 581
     (1900) (12-person jury requirement); Twining v.
    New Jersey, 
    211 U. S. 78
     (1908) (privilege against self
    incrimination).
    That changed with time. The Court came to conclude
    that certain Bill of Rights guarantees were sufficiently
    fundamental to fall within §1’s guarantee of “due process.”
    These included not only procedural protections listed in
    ——————
    1 In the two decades after United States v. Cruikshank, 
    92 U. S. 542
    (1876), was decided, this Court twice reaffirmed its holding that the
    Privileges or Immunities Clause does not apply the Second Amendment
    to the States. Presser v. Illinois, 
    116 U. S. 252
    , 266–267 (1886); Miller
    v. Texas, 
    153 U. S. 535
     (1894).
    6                  MCDONALD v. CHICAGO
    Opinion of THOMAS, J.
    the first eight Amendments, see, e.g., Benton v. Maryland,
    
    395 U. S. 784
     (1969) (protection against double jeopardy),
    but substantive rights as well, see, e.g., Gitlow v. New
    York, 
    268 U. S. 652
    , 666 (1925) (right to free speech); Near
    v. Minnesota ex rel. Olson, 
    283 U. S. 697
    , 707 (1931)
    (same). In the process of incorporating these rights
    against the States, the Court often applied them differ
    ently against the States than against the Federal Gov
    ernment on the theory that only those “fundamental”
    aspects of the right required Due Process Clause protec
    tion. See, e.g., Betts v. Brady, 
    316 U. S. 455
    , 473 (1942)
    (holding that the Sixth Amendment required the appoint
    ment of counsel in all federal criminal cases in which the
    defendant was unable to retain an attorney, but that the
    Due Process Clause required appointment of counsel in
    state criminal cases only where “want of counsel . . . re
    sult[ed] in a conviction lacking in . . . fundamental fair
    ness”). In more recent years, this Court has “abandoned
    the notion” that the guarantees in the Bill of Rights apply
    differently when incorporated against the States than they
    do when applied to the Federal Government. Ante, at 17–
    18 (opinion of the Court) (internal quotation marks omit
    ted). But our cases continue to adhere to the view that a
    right is incorporated through the Due Process Clause only
    if it is sufficiently “fundamental,” ante, at 37, 42–44 (plu
    rality opinion)—a term the Court has long struggled to
    define.
    While this Court has at times concluded that a right
    gains “fundamental” status only if it is essential to the
    American “scheme of ordered liberty” or “ ‘deeply rooted in
    this Nation’s history and tradition,’ ” ante, at 19 (plurality
    opinion) (quoting Glucksberg, 
    521 U. S., at 721
    ), the Court
    has just as often held that a right warrants Due Process
    Clause protection if it satisfies a far less measurable range
    of criteria, see Lawrence v. Texas, 
    539 U. S. 558
    , 562
    (2003) (concluding that the Due Process Clause protects
    Cite as: 561 U. S. ____ (2010)            7
    Opinion of THOMAS, J.
    “liberty of the person both in its spatial and in its more
    transcendent dimensions”). Using the latter approach, the
    Court has determined that the Due Process Clause applies
    rights against the States that are not mentioned in the
    Constitution at all, even without seriously arguing that
    the Clause was originally understood to protect such
    rights. See, e.g., Lochner v. New York, 
    198 U. S. 45
     (1905);
    Roe v. Wade, 
    410 U. S. 113
     (1973); Lawrence, 
    supra.
    All of this is a legal fiction. The notion that a constitu
    tional provision that guarantees only “process” before a
    person is deprived of life, liberty, or property could define
    the substance of those rights strains credulity for even the
    most casual user of words. Moreover, this fiction is a
    particularly dangerous one. The one theme that links the
    Court’s substantive due process precedents together is
    their lack of a guiding principle to distinguish “fundamen
    tal” rights that warrant protection from nonfundamental
    rights that do not. Today’s decision illustrates the point.
    Replaying a debate that has endured from the inception of
    the Court’s substantive due process jurisprudence, the
    dissents laud the “flexibility” in this Court’s substantive
    due process doctrine, post, at 14 (STEVENS, J., dissenting);
    see post, at 6–8 (BREYER, J., dissenting), while the plural
    ity makes yet another effort to impose principled re
    straints on its exercise, see ante, at 33–41. But neither
    side argues that the meaning they attribute to the Due
    Process Clause was consistent with public understanding
    at the time of its ratification.
    To be sure, the plurality’s effort to cabin the exercise of
    judicial discretion under the Due Process Clause by focus
    ing its inquiry on those rights deeply rooted in American
    history and tradition invites less opportunity for abuse
    than the alternatives. See post, at 7 (BREYER, J., dissent
    ing) (arguing that rights should be incorporated against
    the States through the Due Process Clause if they are
    “well-suited to the carrying out of . . . constitutional prom
    8                 MCDONALD v. CHICAGO
    Opinion of THOMAS, J.
    ises”); post, at 22 (STEVENS, J., dissenting) (warning that
    there is no “all-purpose, top-down, totalizing theory of
    ‘liberty’ ” protected by the Due Process Clause). But any
    serious argument over the scope of the Due Process Clause
    must acknowledge that neither its text nor its history
    suggests that it protects the many substantive rights this
    Court’s cases now claim it does.
    I cannot accept a theory of constitutional interpretation
    that rests on such tenuous footing. This Court’s substan
    tive due process framework fails to account for both the
    text of the Fourteenth Amendment and the history that
    led to its adoption, filling that gap with a jurisprudence
    devoid of a guiding principle. I believe the original mean
    ing of the Fourteenth Amendment offers a superior alter
    native, and that a return to that meaning would allow this
    Court to enforce the rights the Fourteenth Amendment is
    designed to protect with greater clarity and predictability
    than the substantive due process framework has so far
    managed.
    I acknowledge the volume of precedents that have been
    built upon the substantive due process framework, and I
    further acknowledge the importance of stare decisis to the
    stability of our Nation’s legal system. But stare decisis is
    only an “adjunct” of our duty as judges to decide by our
    best lights what the Constitution means. Planned Par
    enthood of Southeastern Pa. v. Casey, 
    505 U. S. 833
    , 963
    (1992) (Rehnquist, C. J., concurring in judgment in part
    and dissenting in part). It is not “an inexorable com
    mand.” Lawrence, 
    supra, at 577
    . Moreover, as judges, we
    interpret the Constitution one case or controversy at a
    time. The question presented in this case is not whether
    our entire Fourteenth Amendment jurisprudence must be
    preserved or revised, but only whether, and to what ex
    tent, a particular clause in the Constitution protects the
    particular right at issue here. With the inquiry appropri
    ately narrowed, I believe this case presents an opportunity
    Cite as: 561 U. S. ____ (2010)             9
    Opinion of THOMAS, J.
    to reexamine, and begin the process of restoring, the
    meaning of the Fourteenth Amendment agreed upon by
    those who ratified it.
    II
    “It cannot be presumed that any clause in the constitu
    tion is intended to be without effect.” Marbury v. Madi
    son, 
    1 Cranch 137
    , 174 (1803) (Marshall, C. J.). Because
    the Court’s Privileges or Immunities Clause precedents
    have presumed just that, I set them aside for the moment
    and begin with the text.
    The Privileges or Immunities Clause of the Fourteenth
    Amendment declares that “[n]o State . . . shall abridge the
    privileges or immunities of citizens of the United States.”
    In interpreting this language, it is important to recall that
    constitutional provisions are “ ‘written to be understood by
    the voters.’ ” Heller, 554 U. S., at ___ (slip op., at 3) (quot
    ing United States v. Sprague, 
    282 U. S. 716
    , 731 (1931)).
    Thus, the objective of this inquiry is to discern what “ordi
    nary citizens” at the time of ratification would have un
    derstood the Privileges or Immunities Clause to mean.
    554 U. S., at ___ (slip op., at 3).
    A
    1
    At the time of Reconstruction, the terms “privileges” and
    “immunities” had an established meaning as synonyms for
    “rights.” The two words, standing alone or paired to
    gether, were used interchangeably with the words “rights,”
    “liberties,” and “freedoms,” and had been since the time of
    Blackstone. See 1 W. Blackstone, Commentaries *129
    (describing the “rights and liberties” of Englishmen as
    “private immunities” and “civil privileges”). A number of
    antebellum judicial decisions used the terms in this man
    ner. See, e.g., Magill v. Brown, 
    16 F. Cas. 408
    , 428 (No.
    8,952) (CC ED Pa. 1833) (Baldwin, J.) (“The words ‘privi
    10                     MCDONALD v. CHICAGO
    Opinion of THOMAS, J.
    leges and immunities’ relate to the rights of persons, place
    or property; a privilege is a peculiar right, a private law,
    conceded to particular persons or places”). In addition,
    dictionary definitions confirm that the public shared this
    understanding. See, e.g., N. Webster, An American Dic
    tionary of the English Language 1039 (C. Goodrich & N.
    Porter rev. 1865) (defining “privilege” as “a right or immu
    nity not enjoyed by others or by all” and listing among its
    synonyms the words “immunity,” “franchise,” “right,” and
    “liberty”); id., at 661 (defining “immunity” as “[f]reedom
    from an obligation” or “particular privilege”); id., at 1140
    (defining “right” as “[p]rivilege or immunity granted by
    authority”).2
    The fact that a particular interest was designated as a
    “privilege” or “immunity,” rather than a “right,” “liberty,”
    or “freedom,” revealed little about its substance. Black
    stone, for example, used the terms “privileges” and “im
    munities” to describe both the inalienable rights of indi
    viduals and the positive-law rights of corporations. See 1
    Commentaries, at *129 (describing “private immunities”
    as a “residuum of natural liberty,” and “civil privileges” as
    those “which society has engaged to provide, in lieu of the
    natural liberties so given up by individuals” (footnote
    omitted)); id., at *468 (stating that a corporate charter
    enables a corporation to “establish rules and orders” that
    serve as “the privileges and immunities . . . of the corpora
    tion”). Writers in this country at the time of Reconstruc
    ——————
    2 See also 2 C. Richardson, A New Dictionary of the English Language
    1512 (1839) (defining “privilege” as “an appropriate or peculiar law or
    rule or right; a peculiar immunity, liberty, or franchise”); 1 id., at 1056
    (defining “immunity” as “[f]reedom or exemption, (from duties,) liberty,
    privilege”); The Philadelphia School Dictionary; or Expositor of the
    English Language 152 (3d ed. 1812) (defining “privilege” as a “peculiar
    advantage”); id., at 105 (defining “immunity” as “privilege, exemption”);
    Royal Standard English Dictionary 411 (1788) (defining “privilege” as
    “public right; peculiar advantage”).
    Cite as: 561 U. S. ____ (2010)          11
    Opinion of THOMAS, J.
    tion followed a similar practice. See, e.g., Racine & Mis
    sissippi R. Co. v. Farmers’ Loan & Trust Co., 
    49 Ill. 331
    ,
    334 (1868) (describing agreement between two railroad
    companies in which they agreed “ ‘to fully merge and
    consolidate the[ir] capital stock, powers, privileges, immu
    nities and franchises’ ”); Hathorn v. Calef, 
    53 Me. 471
    ,
    483–484 (1866) (concluding that a statute did not “modify
    any power, privileges, or immunity, pertaining to the
    franchise of any corporation”). The nature of a privilege or
    immunity thus varied depending on the person, group, or
    entity to whom those rights were assigned. See Lash, The
    Origins of the Privileges or Immunities Clause, Part I:
    “Privileges and Immunities” as an Antebellum Term of
    Art, 98 Geo. L. J. 1241, 1256–1257 (2010) (surveying
    antebellum usages of these terms).
    2
    The group of rights-bearers to whom the Privileges or
    Immunities Clause applies is, of course, “citizens.” By the
    time of Reconstruction, it had long been established that
    both the States and the Federal Government existed to
    preserve their citizens’ inalienable rights, and that these
    rights were considered “privileges” or “immunities” of
    citizenship.
    This tradition begins with our country’s English roots.
    Parliament declared the basic liberties of English citizens
    in a series of documents ranging from the Magna Carta to
    the Petition of Right and the English Bill of Rights. See 1
    B. Schwartz, The Bill of Rights: A Documentary History
    8−16, 19−21, 41−46 (1971) (hereinafter Schwartz). These
    fundamental rights, according to the English tradition,
    belonged to all people but became legally enforceable only
    when recognized in legal texts, including acts of Parlia
    ment and the decisions of common-law judges. See B.
    Bailyn, The Ideological Origins of the American Revolu
    tion 77−79 (1967). These rights included many that later
    12                     MCDONALD v. CHICAGO
    Opinion of THOMAS, J.
    would be set forth in our Federal Bill of Rights, such as
    the right to petition for redress of grievances, the right to
    a jury trial, and the right of “Protestants” to “have arms
    for their defence.” English Bill of Rights (1689), reprinted
    in 1 Schwartz 41, 43.
    As English subjects, the colonists considered themselves
    to be vested with the same fundamental rights as other
    Englishmen. They consistently claimed the rights of
    English citizenship in their founding documents, repeat
    edly referring to these rights as “privileges” and “immuni
    ties.” For example, a Maryland law provided that
    “[A]ll the Inhabitants of this Province being Chris
    tians (Slaves excepted) Shall have and enjoy all such
    rights liberties immunities priviledges and free cus
    toms within this Province as any naturall born subject
    of England hath or ought to have or enjoy in the
    Realm of England . . . .” Md. Act for the Liberties of
    the People (1639), in id., at 68 (emphasis added).3
    ——————
    3 See also, e.g., Charter of Va. (1606), reprinted in 7 The Federal and
    State Constitutions, Colonial Charters, and Other Organic Laws 3783,
    3788 (F. Thorpe ed. 1909) (hereinafter Thorpe) (“DECLAR[ING]” that “all
    and every the Persons being our Subjects, . . . shall HAVE and enjoy all
    Liberties, Franchises, and Immunities . . . as if they had been abiding
    and born, within this our Realm of England” (emphasis in original));
    Charter of New England (1620), in 3 id., at 1827, 1839 (“[A]ll and every
    the Persons, beinge our Subjects, . . . shall have and enjoy all Liberties,
    and ffranchizes, and Immunities of free Denizens and naturall subjects
    . . . as if they had been abidinge and born within this our Kingdome of
    England”); Charter of Mass. Bay (1629), in id. at 1846, 1856−1857
    (guaranteeing that “all and every the Subjects of Us, . . . shall have and
    enjoy all liberties and Immunities of free and naturall Subjects . . . as yf
    they and everie of them were borne within the Realme of England”);
    Grant of the Province of Me. (1639), in id., at 1625, 1635 (guaranteeing
    “Liberties Francheses and Immunityes of or belonging to any the
    naturall borne subjects of this our Kingdome of England”); Charter of
    Carolina (1663), in 5 id., at 2743, 2747 (guaranteeing to all subjects “all
    liberties franchises and priviledges of this our kingdom of England”);
    Charter of R. I. and Providence Plantations (1663), in 6 id., at 3211,
    Cite as: 561 U. S. ____ (2010)                    13
    Opinion of THOMAS, J.
    As tensions between England and the Colonies in
    creased, the colonists adopted protest resolutions reassert
    ing their claim to the inalienable rights of Englishmen.
    Again, they used the terms “privileges” and “immunities”
    to describe these rights. As the Massachusetts Resolves
    declared:
    “Resolved, That there are certain essential Rights of
    the British Constitution of Government, which are
    founded in the Law of God and Nature, and are the
    common Rights of Mankind—Therefore. . . . .
    “Resolved, That no Man can justly take the Property
    of another without his Consent: And that upon this
    original Principle the Right of Representation . . . is
    evidently founded. . . . Resolved, That this inherent
    Right, together with all other, essential Rights, Liber
    ties, Privileges and Immunities of the People of Great
    Britain, have been fully confirmed to them by Magna
    Charta.” The Massachusetts Resolves (Oct. 29, 1765),
    reprinted in Prologue to Revolution: Sources and
    Documents on the Stamp Act Crisis, 1764−1766, p. 56
    (E. Morgan ed. 1959) (some emphasis added).4
    ——————
    3220 (“[A]ll and every the subjects of us . . . shall have and enjoye all
    libertyes and immunityes of ffree and naturall subjects within any the
    dominions of us, our heires, or successours, . . . as if they, and every of
    them, were borne within the realme of England”); Charter of Ga.
    (1732), in 2 id., at 765, 773 (“[A]ll and every the persons which shall
    happen to be born within the said province . . . shall have and enjoy all
    liberties, franchises and immunities of free denizens and natural born
    subjects, within any of our dominions, to all intents and purposes, as if
    abiding and born within this our kingdom of Great-Britain”).
    4 See also, e.g., A. Howard, The Road from Runnymede: Magna Carta
    and Constitutionalism in America 174 (1968) (quoting 1774 Georgia
    resolution declaring that the colony’s inhabitants were entitled to “ ‘the
    same rights, privileges, and immunities with their fellow-subjects in
    Great Britain’ ” (emphasis in original)); The Virginia Resolves, The
    Resolutions as Printed in the Journal of the House of Burgesses,
    reprinted in Prologue to Revolution: Sources and Documents on the
    14                    MCDONALD v. CHICAGO
    Opinion of THOMAS, J.
    In keeping with this practice, the First Continental
    Congress declared in 1774 that the King had wrongfully
    denied the colonists “the rights, liberties, and immunities
    of free and natural-born subjects . . . within the realm of
    England.” 1 Journals of the Continental Congress 1774–
    1789, p. 68 (1904). In an address delivered to the inhabi
    tants of Quebec that same year, the Congress described
    those rights as including the “great” “right[s]” of “trial by
    jury,” “Habeas Corpus,” and “freedom of the press.” Ad
    dress of the Continental Congress to the Inhabitants of
    Quebec (1774), reprinted in 1 Schwartz 221–223.
    After declaring their independence, the newly formed
    States replaced their colonial charters with constitutions
    and state bills of rights, almost all of which guaranteed
    the same fundamental rights that the former colonists
    previously had claimed by virtue of their English heritage.
    See, e. g., Pa. Declaration of Rights (1776), reprinted in 5
    Thorpe 3081–3084 (declaring that “all men are born
    equally free and independent, and have certain natural,
    inherent and inalienable rights,” including the “right to
    worship Almighty God according to the dictates of their
    own consciences” and the “right to bear arms for the de
    fence of themselves and the state”).5
    Several years later, the Founders amended the Consti
    tution to expressly protect many of the same fundamental
    rights against interference by the Federal Government.
    Consistent with their English heritage, the founding
    ——————
    Stamp Act Crisis, 1764−1766, at 46, 48 (“[T]he Colonists aforesaid are
    declared entitled to all Liberties, Privileges, and Immunities of Deni
    zens and natural Subjects, to all Intents and Purposes, as if they had
    been abiding and born within the Realm of England” (emphasis in
    original)).
    5 See also Va. Declaration of Rights (1776), reprinted in 1 Schwartz
    234–236; Pa. Declaration of Rights (1776), in id., at 263–275; Del.
    Declaration of Rights (1776), in id., at 276–278; Md. Declaration of
    Rights (1776), in id., at 280–285; N. C. Declaration of Rights (1776), in
    id., 286–288.
    Cite as: 561 U. S. ____ (2010)           15
    Opinion of THOMAS, J.
    generation generally did not consider many of the rights
    identified in these amendments as new entitlements, but
    as inalienable rights of all men, given legal effect by their
    codification in the Constitution’s text. See, e.g., 1 Annals
    of Cong. 431−432, 436–437, 440–442 (1834) (statement of
    Rep. Madison) (proposing Bill of Rights in the first Con
    gress); The Federalist No. 84, pp. 531−533 (B. Wright ed.
    1961) (A. Hamilton); see also Heller, 554 U. S., at ___ (slip
    op., at 19) (“[I]t has always been widely understood that
    the Second Amendment, like the First and Fourth Amend
    ments, codified a pre-existing right”). The Court’s subse
    quent decision in Barron, however, made plain that the
    codification of these rights in the Bill made them legally
    enforceable only against the Federal Government, not the
    States. See 7 Pet., at 247.
    3
    Even though the Bill of Rights did not apply to the
    States, other provisions of the Constitution did limit state
    interference with individual rights. Article IV, §2, cl. 1
    provides that “[t]he Citizens of each State shall be entitled
    to all Privileges and Immunities of Citizens in the several
    States.” The text of this provision resembles the Privi
    leges or Immunities Clause, and it can be assumed that
    the public’s understanding of the latter was informed by
    its understanding of the former.
    Article IV, §2 was derived from a similar clause in the
    Articles of Confederation, and reflects the dual citizenship
    the Constitution provided to all Americans after replacing
    that “league” of separate sovereign States. Gibbons v.
    Ogden, 
    9 Wheat. 1
    , 187 (1824); see 3 J. Story, Commentar
    ies on the Constitution of the United States §1800, p. 675
    (1833). By virtue of a person’s citizenship in a particular
    State, he was guaranteed whatever rights and liberties
    that State’s constitution and laws made available. Article
    IV, §2 vested citizens of each State with an additional
    16                 MCDONALD v. CHICAGO
    Opinion of THOMAS, J.
    right: the assurance that they would be afforded the
    “privileges and immunities” of citizenship in any of the
    several States in the Union to which they might travel.
    What were the “Privileges and Immunities of Citizens in
    the several States”? That question was answered perhaps
    most famously by Justice Bushrod Washington sitting as
    Circuit Justice in Corfield v. Coryell, 
    6 F. Cas. 546
    ,
    551−552 (No. 3,230) (CC ED Pa. 1825). In that case, a
    Pennsylvania citizen claimed that a New Jersey law pro
    hibiting nonresidents from harvesting oysters from the
    State’s waters violated Article IV, §2 because it deprived
    him, as an out-of-state citizen, of a right New Jersey
    availed to its own citizens. Id., at 550. Justice Washing
    ton rejected that argument, refusing to “accede to the
    proposition” that Article IV, §2 entitled “citizens of the
    several states . . . to participate in all the rights which
    belong exclusively to the citizens of any other particular
    state.” Id., at 552 (emphasis added). In his view, Article
    IV, §2 did not guarantee equal access to all public benefits
    a State might choose to make available to its citizens. See
    id., at 552. Instead, it applied only to those rights “which
    are, in their nature, fundamental; which belong, of right,
    to the citizens of all free governments.” Id., at 551 (em
    phasis added). Other courts generally agreed with this
    principle. See, e.g., Abbott v. Bayley, 
    23 Mass. 89
    , 92–93
    (1827) (noting that the “privileges and immunities” of
    citizens in the several States protected by Article IV, §2
    are “qualified and not absolute” because they do not grant
    a traveling citizen the right of “suffrage or of eligibility to
    office” in the State to which he travels).
    When describing those “fundamental” rights, Justice
    Washington thought it “would perhaps be more tedious
    than difficult to enumerate” them all, but suggested that
    they could “be all comprehended under” a broad list of
    “general heads,” such as “[p]rotection by the government,”
    “the enjoyment of life and liberty, with the right to acquire
    Cite as: 561 U. S. ____ (2010)                    17
    Opinion of THOMAS, J.
    and possess property of every kind,” “the benefit of the
    writ of habeas corpus,” and the right of access to “the
    courts of the state,” among others.6 Corfield, supra, at
    551−552.
    Notably, Justice Washington did not indicate whether
    Article IV, §2 required States to recognize these funda
    mental rights in their own citizens and thus in sojourning
    citizens alike, or whether the Clause simply prohibited the
    States from discriminating against sojourning citizens
    with respect to whatever fundamental rights state law
    happened to recognize. On this question, the weight of
    legal authorities at the time of Reconstruction indicated
    that Article IV, §2 prohibited States from discriminating
    against sojourning citizens when recognizing fundamental
    rights, but did not require States to recognize those rights
    and did not prescribe their content. The highest courts of
    several States adopted this view, see, e.g., Livingston v.
    Van Ingen, 
    9 Johns. 507
    , 561 (N. Y. Sup. Ct. 1812) (Yates,
    J.); 
    id., at 577
     (Kent, J.); Campbell v. Morris, 
    3 H. & McH. 535
    , 553−554 (Md. Gen. Ct. 1797) (Chase, J.), as did sev
    eral influential treatise-writers, see T. Cooley, A Treatise
    ——————
    6 Justice Washington’s complete list was as follows:
    “Protection by the government; the enjoyment of life and liberty, with
    the right to acquire and possess property of every kind, and to pursue
    and obtain happiness and safety; subject nevertheless to such re
    straints as the government may justly prescribe for the general good of
    the whole. The right of a citizen of one state to pass through, or to
    reside in any other state, for purposes of trade, agriculture, professional
    pursuits, or otherwise; to claim the benefit of the writ of habeas corpus;
    to institute and maintain actions of any kind in the courts of the state;
    to take, hold and dispose of property, either real or personal; and an
    exemption from higher taxes or impositions than are paid by the other
    citizens of the state; may be mentioned as some of the particular
    privileges and immunities of citizens, which are clearly embraced by
    the general description of privileges deemed to be fundamental: to
    which may be added, the elective franchise, as regulated and estab
    lished by the laws or constitution of the state in which it is to be exer
    cised.” 6 Fed. Cas., at 551−552.
    18                 MCDONALD v. CHICAGO
    Opinion of THOMAS, J.
    on the Constitutional Limitations Which Rest Upon the
    Legislative Power of the State of the American Union 15–
    16, and n. 3 (1868) (reprint 1972) (describing Article IV,
    §2 as designed “to prevent discrimination by the several
    States against the citizens and public proceedings of other
    States”); 2 J. Kent, Commentaries on American Law 35
    (11th ed. 1867) (stating that Article IV, §2 entitles sojourn
    ing citizens “to the privileges that persons of the same
    description are entitled to in the state to which the re
    moval is made, and to none other”). This Court adopted
    the same conclusion in a unanimous opinion just one year
    after the Fourteenth Amendment was ratified. See Paul
    v. Virginia, 
    8 Wall. 168
    , 180 (1869).
    *    *     *
    The text examined so far demonstrates three points
    about the meaning of the Privileges or Immunities Clause
    in §1. First, “privileges” and “immunities” were synonyms
    for “rights.” Second, both the States and the Federal
    Government had long recognized the inalienable rights of
    their citizens. Third, Article IV, §2 of the Constitution
    protected traveling citizens against state discrimination
    with respect to the fundamental rights of state citizenship.
    Two questions still remain, both provoked by the textual
    similarity between §1’s Privileges or Immunities Clause
    and Article IV, §2. The first involves the nature of the
    rights at stake: Are the privileges or immunities of “citi
    zens of the United States” recognized by §1 the same as
    the privileges and immunities of “citizens in the several
    States” to which Article IV, §2 refers? The second involves
    the restriction imposed on the States: Does §1, like Article
    IV, §2, prohibit only discrimination with respect to certain
    rights if the State chooses to recognize them, or does it
    require States to recognize those rights? I address each
    question in turn.
    Cite as: 561 U. S. ____ (2010)
    19
    Opinion of THOMAS, J.
    B
    I start with the nature of the rights that §1’s Privileges
    or Immunities Clause protects. Section 1 overruled Dred
    Scott’s holding that blacks were not citizens of either the
    United States or their own State and, thus, did not enjoy
    “the privileges and immunities of citizens” embodied in the
    Constitution. 
    19 How., at 417
    . The Court in Dred Scott
    did not distinguish between privileges and immunities of
    citizens of the United States and citizens in the several
    States, instead referring to the rights of citizens generally.
    It did, however, give examples of what the rights of citi
    zens were—the constitutionally enumerated rights of “the
    full liberty of speech” and the right “to keep and carry
    arms.” 
    Ibid.
    Section 1 protects the rights of citizens “of the United
    States” specifically. The evidence overwhelmingly demon
    strates that the privileges and immunities of such citizens
    included individual rights enumerated in the Constitution,
    including the right to keep and bear arms.
    1
    Nineteenth-century treaties through which the United
    States acquired territory from other sovereigns routinely
    promised inhabitants of the newly acquired territories
    that they would enjoy all of the “rights,” “privileges,” and
    “immunities” of United States citizens. See, e.g., Treaty of
    Amity, Settlement, and Limits, Art. 6, Feb. 22, 1819, 
    8 Stat. 256
    −258, T. S. No. 327 (entered into force Feb. 19,
    1821) (cession of Florida) (“The inhabitants of the territo
    ries which his Catholic Majesty cedes to the United States,
    by this Treaty, shall be incorporated in the Union of the
    United States, as soon as may be consistent with the
    principles of the Federal Constitution, and admitted to the
    enjoyment of all the privileges, rights, and immunities, of
    20                      MCDONALD v. CHICAGO
    Opinion of THOMAS, J.
    the citizens of the United States” (emphasis added)).7
    Commentators of the time explained that the rights and
    immunities of “citizens of the United States” recognized in
    these treaties “undoubtedly mean[t] those privileges that
    are common to all citizens of this republic.” Marcus, An
    Examination of the Expediency and Constitutionality of
    Prohibiting Slavery in the State of Missouri 17 (1819). It
    is therefore altogether unsurprising that several of these
    treaties identify liberties enumerated in the Constitution
    as privileges and immunities common to all United States
    citizens.
    For example, the Louisiana Cession Act of 1803, which
    codified a treaty between the United States and France
    culminating in the Louisiana Purchase, provided that
    “The inhabitants of the ceded territory shall be incor
    porated in the Union of the United States, and admit
    ted as soon as possible, according to the principles of
    the Federal constitution, to the enjoyments of all the
    rights, advantages and immunities of citizens of the
    United States; and in the mean time they shall be
    maintained and protected in the free enjoyment of
    their liberty, property and the religion which they pro
    fess.” Treaty Between the United States of America
    ——————
    7 See  also Treaty Between the United States of America and the Ot
    tawa Indians of Blanchard’s Fork and Roche De Boeuf, June 24, 1862,
    
    12 Stat. 1237
     (“The Ottawa Indians of the United Bands of Blanchard’s
    Fork and of Roche de Boeuf, having become sufficiently advanced in
    civilization, and being desirous of becoming citizens of the United
    States . . . [after five years from the ratification of this treaty] shall be
    deemed and declared to be citizens of the United States, to all intents
    and purposes, and shall be entitled to all the rights, privileges, and
    immunities of such citizens” (emphasis added)); Treaty Between the
    United States of America and Different Tribes of Sioux Indians, Art. VI,
    April 29, 1868, 
    15 Stat. 637
     (“[A]ny Indian or Indians receiving a patent
    for land under the foregoing provisions, shall thereby and from thence
    forth become and be a citizen of the United States, and be entitled to all
    the privileges and immunities of such citizens” (emphasis added)).
    Cite as: 561 U. S. ____ (2010)                    21
    Opinion of THOMAS, J.
    and the French Republic, Art. III, Apr. 30, 1803, 
    8 Stat. 202
    , T. S. No. 86 (emphasis added).8
    The Louisiana Cession Act reveals even more about the
    privileges and immunities of United States citizenship
    because it provoked an extensive public debate on the
    meaning of that term. In 1820, when the Missouri Terri
    tory (which the United States acquired through the Ces
    sion Act) sought to enter the Union as a new State, a
    debate ensued over whether to prohibit slavery within
    Missouri as a condition of its admission. Some congress
    men argued that prohibiting slavery in Missouri would
    deprive its inhabitants of the “privileges and immunities”
    they had been promised by the Cession Act. See, e.g., 35
    Annals of Cong. 1083 (1855) (remarks of Kentucky Rep.
    Hardin). But those who opposed slavery in Missouri
    argued that the right to hold slaves was merely a matter
    of state property law, not one of the privileges and immu
    nities of United States citizenship guaranteed by the Act.9
    ——————
    8 Subsequent treaties contained similar guarantees that the inhabi
    tants of the newly acquired territories would enjoy the freedom to
    exercise certain constitutional rights. See Treaty of Peace, Friendship,
    Limits, and Settlement with the Republic of Mexico, Art. IX, Feb. 2,
    1848, 
    9 Stat. 930
    , T. S. No. 207 (cession of Texas) (declaring that
    inhabitants of the Territory were entitled “to the enjoyment of all the
    rights of citizens of the United States, according to the principles of the
    constitution; and in the mean time shall be maintained and protected
    in the free enjoyment of their liberty and property, and secured in the
    free exercise of their religion without restriction”); Treaty concerning
    the Cession of the Russian Possessions in North America by his Maj
    esty the Emperor of all the Russians to the United States of America,
    Art. III, Mar. 30, 1867, 
    15 Stat. 542
    , T. S. No. 301 (June 20, 1867)
    (cession of Alaska) (“The inhabitants of the ceded territory, . . . if they
    should prefer to remain in the ceded territory, they, with the exception
    of uncivilized native tribes, shall be admitted to the enjoyment of all
    the rights, advantages, and immunities of citizens of the United States,
    and shall be maintained and protected in the free enjoyment of their
    liberty, property, and religion”).
    9 See, e.g., Speech of Mr. Joseph Hemphill (Pa.) on the Missouri Ques
    22                     MCDONALD v. CHICAGO
    Opinion of THOMAS, J.
    Daniel Webster was among the leading proponents of
    the antislavery position. In his “Memorial to Congress,”
    Webster argued that “[t]he rights, advantages and immu
    nities here spoken of [in the Cession Act] must . . . be such
    as are recognized or communicated by the Constitution of
    the United States,” not the “rights, advantages and im
    munities, derived exclusively from the State governments
    . . . .” D. Webster, A Memorial to the Congress of the
    United States on the Subject of Restraining the Increase of
    Slavery in New States to be Admitted into the Union 15
    (Dec. 15, 1819) (emphasis added). “The obvious meaning”
    of the Act, in Webster’s view, was that “the rights derived
    under the federal Constitution shall be enjoyed by the
    inhabitants of [the territory].” 
    Id.,
     at 15–16 (emphasis
    added). In other words, Webster articulated a distinction
    between the rights of United States citizenship and the
    rights of state citizenship, and argued that the former
    included those rights “recognized or communicated by the
    Constitution.” Since the right to hold slaves was not
    mentioned in the Constitution, it was not a right of federal
    citizenship.
    Webster and his allies ultimately lost the debate over
    slavery in Missouri and the territory was admitted as a
    slave State as part of the now-famous Missouri Compro
    mise. Missouri Enabling Act of March 6, 1820, ch. 22, §8,
    
    3 Stat. 548
    . But their arguments continued to inform
    public understanding of the privileges and immunities of
    ——————
    tion in the House of the Representatives 16 (1820), as published in
    pamphlet form and reprinted in 22 Moore Pamphlets, p. 16 (“If the
    right to hold slaves is a federal right and attached merely to citizenship
    of the United States, [then slavery] could maintain itself against state
    authority, and on this principle the owner might take his slaves into
    any state he pleased, in defiance of the state laws, but this would be
    contrary to the constitution”); see also Lash, The Origins of the Privi
    leges or Immunities Clause, Part I: “Privileges and Immunities” as an
    Antebellum Term of Art, 98 Geo. L. J. 1241, 1288–1290 (2010) (collect
    ing other examples).
    Cite as: 561 U. S. ____ (2010)           23
    Opinion of THOMAS, J.
    United States citizenship. In 1854, Webster’s Memorial
    was republished in a pamphlet discussing the Nation’s
    next major debate on slavery—the proposed repeal of the
    Missouri Compromise through the Kansas-Nebraska Act,
    see The Nebraska Question: Comprising Speeches in the
    United States Senate: Together with the History of the
    Missouri Compromise 9–12 (1854). It was published again
    in 1857 in a collection of famous American speeches. See
    The Political Text-Book, or Encyclopedia: Containing
    Everything Necessary for the Reference of the Politicians
    and Statesmen of the United States 601–604 (M. Cluskey
    ed. 1857); see also Lash, 98 Geo. L. J., at 1294–1296 (de
    scribing Webster’s arguments and their influence).
    2
    Evidence from the political branches in the years lead
    ing to the Fourteenth Amendment’s adoption demon
    strates broad public understanding that the privileges and
    immunities of United States citizenship included rights
    set forth in the Constitution, just as Webster and his allies
    had argued. In 1868, President Andrew Johnson issued a
    proclamation granting amnesty to former Confederates,
    guaranteeing “to all and to every person who directly or
    indirectly participated in the late insurrection or rebellion,
    a full pardon and amnesty for the offence of treason . . .
    with restoration of all rights, privileges, and immunities
    under the Constitution and the laws which have been
    made in pursuance thereof.” 
    15 Stat. 712
    .
    Records from the 39th Congress further support this
    understanding.
    a
    After the Civil War, Congress established the Joint
    Committee on Reconstruction to investigate circumstances
    in the Southern States and to determine whether, and on
    what conditions, those States should be readmitted to the
    24                 MCDONALD v. CHICAGO
    Opinion of THOMAS, J.
    Union. See Cong. Globe, 39th Cong., 1st Sess., 6, 30
    (1865) (hereinafter 39th Cong. Globe); M. Curtis, No State
    Shall Abridge: The Fourteenth Amendment and the Bill of
    Rights 57 (1986) (hereinafter Curtis). That Committee
    would ultimately recommend the adoption of the Four
    teenth Amendment, justifying its recommendation by
    submitting a report to Congress that extensively cata
    logued the abuses of civil rights in the former slave States
    and argued that “adequate security for future peace and
    safety . . . can only be found in such changes of the organic
    law as shall determine the civil rights and privileges of all
    citizens in all parts of the republic.” See Report of the
    Joint Committee on Reconstruction, S. Rep. No. 112, 39th
    Cong., 1st Sess., p. 15 (1866); H. R. Rep. No. 30, 39th
    Cong., 1st Sess., p. XXI (1866).
    As the Court notes, the Committee’s Report “was widely
    reprinted in the press and distributed by members of the
    39th Congress to their constituents.” Ante, at 24; B.
    Kendrick, Journal of the Joint Committee of Fifteen on
    Reconstruction 264–265 (1914) (noting that 150,000 copies
    of the Report were printed and that it was widely distrib
    uted as a campaign document in the election of 1866). In
    addition, newspaper coverage suggests that the wider
    public was aware of the Committee’s work even before the
    Report was issued. For example, the Fort Wayne Daily
    Democrat (which appears to have been unsupportive of the
    Committee’s work) paraphrased a motion instructing the
    Committee to
    “enquire into [the] expediency of amending the Con
    stitution of the United States so as to declare with
    greater certainty the power of Congress to enforce and
    determine by appropriate legislation all the guaran
    tees contained in that instrument.” The Nigger Con
    gress!, Fort Wayne Daily Democrat, Feb. 1, 1866, p. 4
    (emphasis added).
    Cite as: 561 U. S. ____ (2010)          25
    Opinion of THOMAS, J.
    b
    Statements made by Members of Congress leading up
    to, and during, the debates on the Fourteenth Amendment
    point in the same direction. The record of these debates
    has been combed before. See Adamson v. California, 
    332 U. S. 46
    , 92–110 (1947) (Appendix to dissenting opinion of
    Black, J.) (concluding that the debates support the conclu
    sion that §1 was understood to incorporate the Bill of
    Rights against the States); ante, at 14, n. 9, 26–27, n. 23,
    (opinion of the Court) (counting the debates among other
    evidence that §1 applies the Second Amendment against
    the States). Before considering that record here, it is
    important to clarify its relevance. When interpreting
    constitutional text, the goal is to discern the most likely
    public understanding of a particular provision at the time
    it was adopted. Statements by legislators can assist in
    this process to the extent they demonstrate the manner in
    which the public used or understood a particular word or
    phrase. They can further assist to the extent there is
    evidence that these statements were disseminated to the
    public. In other words, this evidence is useful not because
    it demonstrates what the draftsmen of the text may have
    been thinking, but only insofar as it illuminates what the
    public understood the words chosen by the draftsmen to
    mean.
    (1)
    Three speeches stand out as particularly significant.
    Representative John Bingham, the principal draftsman of
    §1, delivered a speech on the floor of the House in Febru
    ary 1866 introducing his first draft of the provision. Bing
    ham began by discussing Barron and its holding that the
    Bill of Rights did not apply to the States. He then argued
    that a constitutional amendment was necessary to provide
    “an express grant of power in Congress to enforce by penal
    enactment these great canons of the supreme law, secur
    26                    MCDONALD v. CHICAGO
    Opinion of THOMAS, J.
    ing to all the citizens in every State all the privileges and
    immunities of citizens, and to all the people all the sacred
    rights of person.” 39th Cong. Globe 1089–1090 (1866).
    Bingham emphasized that §1 was designed “to arm the
    Congress of the United States, by the consent of the people
    of the United States, with the power to enforce the bill of
    rights as it stands in the Constitution today. It ‘hath that
    extent—no more.’ ” Id., at 1088.
    Bingham’s speech was printed in pamphlet form and
    broadly distributed in 1866 under the title, “One Country,
    One Constitution, and One People,” and the subtitle, “In
    Support of the Proposed Amendment to Enforce the Bill of
    Rights.”10 Newspapers also reported his proposal, with
    the New York Times providing particularly extensive
    coverage, including a full reproduction of Bingham’s first
    draft of §1 and his remarks that a constitutional amend
    ment to “enforc[e]” the “immortal bill of rights” was “abso
    lutely essential to American nationality.” N. Y. Times,
    Feb. 27, 1866, p. 8.
    Bingham’s first draft of §1 was different from the ver
    sion ultimately adopted. Of particular importance, the
    first draft granted Congress the “power to make all laws
    . . . necessary and proper to secure” the “citizens of each
    State all privileges and immunities of citizens in the sev
    eral States,” rather than restricting state power to
    “abridge” the privileges or immunities of citizens of the
    United States.11 39th Cong. Globe 1088.
    ——————
    10 One Country, One Constitution, and One People: Speech of Hon.
    John A. Bingham, of Ohio, In the House of Representatives, February
    28, 1866, In Support of the Proposed Amendment to Enforce the Bill of
    Rights (Cong. Globe). The pamphlet was published by the official
    reporter of congressional debates, and was distributed presumably
    pursuant to the congressional franking privilege. See B. Wildenthal,
    Nationalizing the Bill of Rights: Revisiting the Original Understanding
    of the Fourteenth Amendment in 1866–67, 68 Ohio St. L. J. 1509, 1558,
    n. 167 (2007) (hereinafter Wildenthal).
    11 The full text of Bingham’s first draft of §1 provided as follows:
    Cite as: 561 U. S. ____ (2010)                    27
    Opinion of THOMAS, J.
    That draft was met with objections, which the Times
    covered extensively. A front-page article hailed the “Clear
    and Forcible Speech” by Representative Robert Hale
    against the draft, explaining—and endorsing—Hale’s view
    that Bingham’s proposal would “confer upon Congress all
    the rights and power of legislation now reserved to the
    States” and would “in effect utterly obliterate State rights
    and State authority over their own internal affairs.”12
    N. Y. Times, Feb. 28, 1866, p. 1.
    Critically, Hale did not object to the draft insofar as it
    purported to protect constitutional liberties against state
    interference. Indeed, Hale stated that he believed (incor
    rectly in light of Barron) that individual rights enumer
    ated in the Constitution were already enforceable against
    the States. See 39th Cong. Globe 1064 (“I have, somehow
    or other, gone along with the impression that there is that
    sort of protection thrown over us in some way, whether
    with or without the sanction of a judicial decision that we
    are so protected”); see N. Y. Times, Feb. 28, 1866, at 1.
    Hale’s misperception was not uncommon among members
    of the Reconstruction generation. See infra, at 38–40. But
    that is secondary to the point that the Times’ coverage of
    ——————
    “The Congress shall have power to make all laws which shall be neces
    sary and proper to secure to the citizens of each State all privileges and
    immunities of citizens in the several States, and to all persons in the
    several States equal protection in the rights of life, liberty, and prop
    erty.” 39th Cong. Globe 1088.
    12 In a separate front-page article on the same day, the paper ex
    pounded upon Hale’s arguments in even further detail, while omitting
    Bingham’s chief rebuttals. N. Y. Times, Feb. 28, 1866, p. 1. The
    unbalanced nature of The New York Times’ coverage is unsurprising.
    As scholars have noted, “[m]ost papers” during the time of Reconstruc
    tion “had a frank partisan slant . . . and the Times was no exception.”
    Wildenthal 1559. In 1866, the paper “was still defending” President
    Johnson’s resistance to Republican reform measures, as exemplified by
    the fact that it “supported Johnson’s veto of the Civil Rights Act of
    1866.” Ibid.
    28                MCDONALD v. CHICAGO
    Opinion of THOMAS, J.
    this debate over §1’s meaning suggests public awareness
    of its main contours—i.e., that §1 would, at a minimum,
    enforce constitutionally enumerated rights of United
    States citizens against the States.
    Bingham’s draft was tabled for several months. In the
    interim, he delivered a second well-publicized speech,
    again arguing that a constitutional amendment was re
    quired to give Congress the power to enforce the Bill of
    Rights against the States. That speech was printed in
    pamphlet form, see Speech of Hon. John A. Bingham, of
    Ohio, on the Civil Rights Bill, Mar. 9, 1866 (Cong. Globe);
    see 39th Cong. Globe 1837 (remarks of Rep. Lawrence)
    (noting that the speech was “extensively published”), and
    the New York Times covered the speech on its front page.
    Thirty-Ninth Congress, N. Y. Times, Mar. 10, 1866, p. 1.
    By the time the debates on the Fourteenth Amendment
    resumed, Bingham had amended his draft of §1 to include
    the text of the Privileges or Immunities Clause that was
    ultimately adopted. Senator Jacob Howard introduced the
    new draft on the floor of the Senate in the third speech
    relevant here. Howard explained that the Constitution
    recognized “a mass of privileges, immunities, and rights,
    some of them secured by the second section of the fourth
    article of the Constitution, . . . some by the first eight
    amendments of the Constitution,” and that “there is no
    power given in the Constitution to enforce and to carry out
    any of these guarantees” against the States. 39th Cong.
    Globe 2765. Howard then stated that “the great object” of
    §1 was to “restrain the power of the States and compel
    them at all times to respect these great fundamental
    guarantees.” Id., at 2766. Section 1, he indicated, im
    posed “a general prohibition upon all the States, as such,
    from abridging the privileges and immunities of the citi
    zens of the United States.” Id., at 2765.
    In describing these rights, Howard explained that they
    included “the privileges and immunities spoken of” in
    Cite as: 561 U. S. ____ (2010)                  29
    Opinion of THOMAS, J.
    Article IV, §2. Id., at 2765. Although he did not catalogue
    the precise “nature” or “extent” of those rights, he thought
    “Corfield v. Coryell” provided a useful description. How
    ard then submitted that
    “[t]o these privileges and immunities, whatever they
    may be— . . . should be added the personal rights gua
    rantied and secured by the first eight amendments of
    the Constitution; such as the freedom of speech and of
    the press; the right of the people peaceably to assem
    ble and petition the Government for a redress of
    grievances, [and] . . . the right to keep and to bear
    arms.” Ibid. (emphasis added).
    News of Howard’s speech was carried in major newspa
    pers across the country, including the New York Herald,
    see N. Y. Herald, May 24, 1866, p. 1, which was the best
    selling paper in the Nation at that time, see A. Amar, The
    Bill of Rights: Creation and Reconstruction 187 (1998)
    (hereinafter Amar).13 The New York Times carried the
    speech as well, reprinting a lengthy excerpt of Howard’s
    remarks, including the statements quoted above. N. Y.
    Times, May 24, 1866, p. 1. The following day’s Times
    editorialized on Howard’s speech, predicting that “[t]o this,
    the first section of the amendment, the Union party
    throughout the country will yield a ready acquiescence,
    and the South could offer no justifiable resistance,” sug
    gesting that Bingham’s narrower second draft had not
    been met with the same objections that Hale had raised
    against the first. N. Y. Times, May 25, 1866, p. 4.
    ——————
    13 Other papers that covered Howard’s speech include the following:
    Baltimore Gazette, May 24, 1866, p. 4; Boston Daily Journal, May 24,
    1866, p. 4; Boston Daily Advertiser, May 24, 1866, p. 1; Daily National
    Intelligencer, May 24, 1866, p. 3. Springfield Daily Republican, May 24,
    1866, p. 3; Charleston Daily Courier, May 28, 1866, p. 4; Charleston
    Daily Courier, May 29, 1866, p. 1; Chicago Tribune, May 29, 1866, p. 2;
    Philadelphia Inquirer, May 24, 1866, p. 8.
    30                 MCDONALD v. CHICAGO
    Opinion of THOMAS, J.
    As a whole, these well-circulated speeches indicate that
    §1 was understood to enforce constitutionally declared
    rights against the States, and they provide no suggestion
    that any language in the section other than the Privileges
    or Immunities Clause would accomplish that task.
    (2)
    When read against this backdrop, the civil rights legis
    lation adopted by the 39th Congress in 1866 further sup
    ports this view. Between passing the Thirteenth Amend
    ment—which outlawed slavery alone—and the Fourteenth
    Amendment, Congress passed two significant pieces of
    legislation. The first was the Civil Rights Act of 1866,
    which provided that “all persons born in the United
    States” were “citizens of the United States” and that “such
    citizens, of every race and color, . . . shall have the same
    right” to, among other things, “full and equal benefit of all
    laws and proceedings for the security of person and prop
    erty, as is enjoyed by white citizens.” Ch. 31, §1, 
    14 Stat. 27
    .
    Both proponents and opponents of this Act described it
    as providing the “privileges” of citizenship to freedmen,
    and defined those privileges to include constitutional
    rights, such as the right to keep and bear arms. See 39th
    Cong. Globe 474 (remarks of Sen. Trumbull) (stating that
    the “the late slaveholding States” had enacted laws “de
    priving persons of African descent of privileges which are
    essential to freemen,” including “prohibit[ing] any negro or
    mulatto from having fire-arms” and stating that “[t]he
    purpose of the bill under consideration is to destroy all
    these discriminations”); 
    id.,
     at 1266–1267 (remarks of Rep.
    Raymond) (opposing the Act, but recognizing that to
    “[m]ake a colored man a citizen of the United States”
    would guarantee to him, inter alia, “a defined status . . . a
    right to defend himself and his wife and children; a right
    to bear arms”).
    Cite as: 561 U. S. ____ (2010)           31
    Opinion of THOMAS, J.
    Three months later, Congress passed the Freedmen’s
    Bureau Act, which also entitled all citizens to the “full and
    equal benefit of all laws and proceedings concerning per
    sonal liberty” and “personal security.” Act of July 16,
    1866, ch. 200, §14, 
    14 Stat. 176
    . The Act stated expressly
    that the rights of personal liberty and security protected
    by the Act “includ[ed] the constitutional right to bear
    arms.” 
    Ibid.
    (3)
    There is much else in the legislative record. Many
    statements by Members of Congress corroborate the view
    that the Privileges or Immunities Clause enforced consti
    tutionally enumerated rights against the States. See
    Curtis 112 (collecting examples). I am not aware of any
    statement that directly refutes that proposition. That
    said, the record of the debates—like most legislative his
    tory—is less than crystal clear. In particular, much ambi
    guity derives from the fact that at least several Members
    described §1 as protecting the privileges and immunities
    of citizens “in the several States,” harkening back to Arti
    cle IV, §2. See supra, at 28–29 (describing Sen. Howard’s
    speech). These statements can be read to support the view
    that the Privileges or Immunities Clause protects some or
    all the fundamental rights of “citizens” described in Cor
    field. They can also be read to support the view that the
    Privileges or Immunities Clause, like Article IV, §2, pro
    hibits only state discrimination with respect to those
    rights it covers, but does not deprive States of the power to
    deny those rights to all citizens equally.
    I examine the rest of the historical record with this
    understanding. But for purposes of discerning what the
    public most likely thought the Privileges or Immunities
    Clause to mean, it is significant that the most widely
    publicized statements by the legislators who voted on §1—
    Bingham, Howard, and even Hale—point unambiguously
    32                 MCDONALD v. CHICAGO
    Opinion of THOMAS, J.
    toward the conclusion that the Privileges or Immunities
    Clause enforces at least those fundamental rights enu
    merated in the Constitution against the States, including
    the Second Amendment right to keep and bear arms.
    3
    Interpretations of the Fourteenth Amendment in the
    period immediately following its ratification help to estab
    lish the public understanding of the text at the time of its
    adoption.
    Some of these interpretations come from Members of
    Congress. During an 1871 debate on a bill to enforce the
    Fourteenth Amendment, Representative Henry Dawes
    listed the Constitution’s first eight Amendments, includ
    ing “the right to keep and bear arms,” before explaining
    that after the Civil War, the country “gave the most grand
    of all these rights, privileges, and immunities, by one
    single amendment to the Constitution, to four millions of
    American citizens” who formerly were slaves. Cong.
    Globe, 42d Cong., 1st Sess., 475–476 (1871). “It is all
    these,” Dawes explained, “which are comprehended in the
    words ‘American citizen.’ ” Ibid.; see also id., at 334 (re
    marks of Rep. Hoar) (stating that the Privileges or Immu
    nities Clause referred to those rights “declared to belong to
    the citizen by the Constitution itself”). Even opponents of
    Fourteenth Amendment enforcement legislation acknowl
    edged that the Privileges or Immunities Clause protected
    constitutionally enumerated individual rights. See 2
    Cong. Rec. 384–385 (1874) (remarks of Rep. Mills) (oppos
    ing enforcement law, but acknowledging, in referring to
    the Bill of Rights, that “[t]hese first amendments and
    some provisions of the Constitution of like import embrace
    the ‘privileges and immunities’ of citizenship as set forth
    in article 4, section 2 of the Constitution and in the four
    teenth amendment” (emphasis added)); see Curtis 166–170
    (collecting examples).
    Cite as: 561 U. S. ____ (2010)                  33
    Opinion of THOMAS, J.
    Legislation passed in furtherance of the Fourteenth
    Amendment demonstrates even more clearly this under
    standing. For example, Congress enacted the Civil Rights
    Act of 1871, 
    17 Stat. 13
    , which was titled in pertinent part
    “An Act to enforce the Provisions of the Fourteenth
    Amendment to the Constitution of the United States,” and
    which is codified in the still-existing 
    42 U. S. C. §1983
    .
    That statute prohibits state officials from depriving citi
    zens of “any rights, privileges, or immunities secured by
    the Constitution.” Rev. Stat. 1979, 
    42 U. S. C. §1983
     (em
    phasis added). Although the Judiciary ignored this provi
    sion for decades after its enactment, this Court has come
    to interpret the statute, unremarkably in light of its text,
    as protecting constitutionally enumerated rights. Monroe
    v. Pape, 
    365 U. S. 167
    , 171 (1961).
    A Federal Court of Appeals decision written by a future
    Justice of this Court adopted the same understanding of
    the Privileges or Immunities Clause. See, e.g., United
    States v. Hall, 
    26 F. Cas. 79
    , 82 (No. 15,282) (CC SD Ala.
    1871) (Woods, J.) (“We think, therefore, that the . . . rights
    enumerated in the first eight articles of amendment to the
    constitution of the United States, are the privileges and
    immunities of citizens of the United States”). In addition,
    two of the era’s major constitutional treatises reflected the
    understanding that §1 would protect constitutionally
    enumerated rights from state abridgment.14 A third such
    treatise unambiguously indicates that the Privileges or
    ——————
    14 See J. Pomeroy, An Introduction to the Constitutional Law of the
    United States 155–156 (E. Bennett ed. 1886) (describing §1, which the
    country was then still considering, as a “needed” “remedy” for Barron ex
    rel. Tiernan v. Mayor of Baltimore, 
    7 Pet. 243
     (1833), which held that
    the Bill of Rights was not enforceable against the States); T. Farrar,
    Manual of the Constitution of the United States of America 58–59,
    145−146, 395–397 (1867) (reprint 1993); id., at 546 (3d ed. 1872)
    (describing the Fourteenth Amendment as having “swept away” the
    “decisions of many courts” that “the popular rights guaranteed by the
    Constitution are secured only against [the federal] government”).
    34                 MCDONALD v. CHICAGO
    Opinion of THOMAS, J.
    Immunities Clause accomplished this task. G. Paschal,
    The Constitution of the United States 290 (1868) (explain
    ing that the rights listed in §1 had “already been guaran
    tied” by Article IV and the Bill of Rights, but that “[t]he
    new feature declared” by §1 was that these rights, “which
    had been construed to apply only to the national govern
    ment, are thus imposed upon the States”).
    Another example of public understanding comes from
    United States Attorney Daniel Corbin’s statement in an
    1871 Ku Klux Klan prosecution. Corbin cited Barron and
    declared:
    “[T]he fourteenth amendment changes all that theory,
    and lays the same restriction upon the States that be
    fore lay upon the Congress of the United States—that,
    as Congress heretofore could not interfere with the
    right of the citizen to keep and bear arms, now, after
    the adoption of the fourteenth amendment, the State
    cannot interfere with the right of the citizen to keep
    and bear arms. The right to keep and bear arms is in
    cluded in the fourteenth amendment, under ‘privi
    leges and immunities.’ ” Proceedings in the Ku Klux
    Trials at Columbia, S. C., in the United States Circuit
    Court, November Term, 1871, p. 147 (1872).
    *    *     *
    This evidence plainly shows that the ratifying public
    understood the Privileges or Immunities Clause to protect
    constitutionally enumerated rights, including the right to
    keep and bear arms. As the Court demonstrates, there
    can be no doubt that §1 was understood to enforce the
    Second Amendment against the States. See ante, at 22–
    33. In my view, this is because the right to keep and bear
    arms was understood to be a privilege of American citizen
    ship guaranteed by the Privileges or Immunities Clause.
    Cite as: 561 U. S. ____ (2010)                   35
    Opinion of THOMAS, J.
    C
    The next question is whether the Privileges or Immuni
    ties Clause merely prohibits States from discriminating
    among citizens if they recognize the Second Amendment’s
    right to keep and bear arms, or whether the Clause re
    quires States to recognize the right. The municipal re
    spondents, Chicago and Oak Park, argue for the former
    interpretation. They contend that the Second Amend
    ment, as applied to the States through the Fourteenth,
    authorizes a State to impose an outright ban on handgun
    possession such as the ones at issue here so long as a State
    applies it to all citizens equally.15 The Court explains why
    this antidiscrimination-only reading of §1 as a whole is
    “implausible.” Ante, at 31 (citing Brief for Municipal
    Respondents 64). I agree, but because I think it is the
    Privileges or Immunities Clause that applies this right to
    the States, I must explain why this Clause in particular
    protects against more than just state discrimination, and
    in fact establishes a minimum baseline of rights for all
    American citizens.
    1
    I begin, again, with the text. The Privileges or Immuni
    ties Clause opens with the command that “No State shall”
    abridge the privileges or immunities of citizens of the
    ——————
    15 The municipal respondents and JUSTICE BREYER’s dissent raise a
    most unusual argument that §1 prohibits discriminatory laws affecting
    only the right to keep and bear arms, but offers substantive protection
    to other rights enumerated in the Constitution, such as the freedom of
    speech. See post, at 24. Others, however, have made the more compre
    hensive—and internally consistent—argument that §1 bars discrimina
    tion alone and does not afford protection to any substantive rights. See,
    e.g., R. Berger, Government By Judiciary: The Transformation of the
    Fourteenth Amendment (1997). I address the coverage of the Privi
    leges or Immunities Clause only as it applies to the Second Amendment
    right presented here, but I do so with the understanding that my
    conclusion may have implications for the broader argument.
    36                 MCDONALD v. CHICAGO
    Opinion of THOMAS, J.
    United States. Amdt. 14, §1 (emphasis added). The very
    same phrase opens Article I, §10 of the Constitution,
    which prohibits the States from “pass[ing] any Bill of
    Attainder” or “ex post facto Law,” among other things.
    Article I, §10 is one of the few constitutional provisions
    that limits state authority. In Barron, when Chief Justice
    Marshall interpreted the Bill of Rights as lacking “plain
    and intelligible language” restricting state power to in
    fringe upon individual liberties, he pointed to Article I, §10
    as an example of text that would have accomplished that
    task. 7 Pet., at 250. Indeed, Chief Justice Marshall would
    later describe Article I, §10 as “a bill of rights for the
    people of each state.” Fletcher v. Peck, 
    6 Cranch 87
    , 138
    (1810). Thus, the fact that the Privileges or Immunities
    Clause uses the command “[n]o State shall”—which Arti
    cle IV, §2 does not—strongly suggests that the former
    imposes a greater restriction on state power than the
    latter.
    This interpretation is strengthened when one considers
    that the Privileges or Immunities Clause uses the verb
    “abridge,” rather than “discriminate,” to describe the limit
    it imposes on state authority. The Webster’s dictionary in
    use at the time of Reconstruction defines the word
    “abridge” to mean “[t]o deprive; to cut off; . . . as, to
    abridge one of his rights.” Webster, An American Diction
    ary of the English Language, at 6. The Clause is thus best
    understood to impose a limitation on state power to in
    fringe upon pre-existing substantive rights. It raises no
    indication that the Framers of the Clause used the word
    “abridge” to prohibit only discrimination.
    This most natural textual reading is underscored by a
    well-publicized revision to the Fourteenth Amendment
    that the Reconstruction Congress rejected. After several
    Southern States refused to ratify the Amendment, Presi
    dent Johnson met with their Governors to draft a com
    promise. N. Y. Times, Feb. 5, 1867, p. 5. Their proposal
    Cite as: 561 U. S. ____ (2010)           37
    Opinion of THOMAS, J.
    eliminated Congress’ power to enforce the Amendment
    (granted in §5), and replaced the Privileges or Immunities
    Clause in §1 with the following:
    “All persons born or naturalized in the United States,
    and subject to the jurisdiction thereof, are citizens of
    the United States, and of the States in which they re
    side, and the Citizens of each State shall be entitled to
    all the privileges and immunities of citizens in the sev
    eral States.” Draft reprinted in 1 Documentary His
    tory of Reconstruction 240 (W. Fleming ed. 1950)
    (hereinafter Fleming).
    Significantly, this proposal removed the “[n]o State
    shall” directive and the verb “abridge” from §1, and also
    changed the class of rights to be protected from those
    belonging to “citizens of the United States” to those of the
    “citizens in the several States.” This phrasing is materi
    ally indistinguishable from Article IV, §2, which gener
    ally was understood as an antidiscrimination provision
    alone. See supra, at 15–18. The proposal thus strongly
    indicates that at least the President of the United States
    and several southern Governors thought that the Privi
    leges or Immunities Clause, which they unsuccessfully
    tried to revise, prohibited more than just state-sponsored
    discrimination.
    2
    The argument that the Privileges or Immunities Clause
    prohibits no more than discrimination often is followed by
    a claim that public discussion of the Clause, and of §1
    generally, was not extensive. Because of this, the argu
    ment goes, §1 must not have been understood to accom
    plish such a significant task as subjecting States to federal
    enforcement of a minimum baseline of rights. That argu
    ment overlooks critical aspects of the Nation’s history that
    underscored the need for, and wide agreement upon,
    38                  MCDONALD v. CHICAGO
    Opinion of THOMAS, J.
    federal enforcement of constitutionally enumerated rights
    against the States, including the right to keep and bear
    arms.
    a
    I turn first to public debate at the time of ratification. It
    is true that the congressional debates over §1 were rela
    tively brief. It is also true that there is little evidence of
    extensive debate in the States. Many state legislatures
    did not keep records of their debates, and the few records
    that do exist reveal only modest discussion. See Curtis
    145. These facts are not surprising.
    First, however consequential we consider the question
    today, the nationalization of constitutional rights was not
    the most controversial aspect of the Fourteenth Amend
    ment at the time of its ratification. The Nation had just
    endured a tumultuous civil war, and §§2, 3, and 4—which
    reduced the representation of States that denied voting
    rights to blacks, deprived most former Confederate officers
    of the power to hold elective office, and required States to
    disavow Confederate war debts—were far more polarizing
    and consumed far more political attention. See Wilden
    thal 1600; Hardy, Original Popular Understanding of the
    Fourteenth Amendment as Reflected in the Print Media of
    1866–1868, 
    30 Whittier L. Rev. 695
    , 699 (2009).
    Second, the congressional debates on the Fourteenth
    Amendment reveal that many representatives, and proba
    bly many citizens, believed that the Thirteenth Amend
    ment, the 1866 Civil Rights legislation, or some combina
    tion of the two, had already enforced constitutional rights
    against the States. Justice Black’s dissent in Adamson
    chronicles this point in detail. 
    332 U. S., at
    107–108
    (Appendix to dissenting opinion). Regardless of whether
    that understanding was accurate as a matter of constitu
    tional law, it helps to explain why Congressmen had little
    to say during the debates about §1. See ibid.
    Cite as: 561 U. S. ____ (2010)                    39
    Opinion of THOMAS, J.
    Third, while Barron made plain that the Bill of Rights
    was not legally enforceable against the States, see supra,
    at 2, the significance of that holding should not be over
    stated. Like the Framers, see supra, at 14–15, many 19th
    century Americans understood the Bill of Rights to declare
    inalienable rights that pre-existed all government. Thus,
    even though the Bill of Rights technically applied only to
    the Federal Government, many believed that it declared
    rights that no legitimate government could abridge.
    Chief Justice Henry Lumpkin’s decision for the Georgia
    Supreme Court in Nunn v. State, 
    1 Ga. 243
     (1846), illus
    trates this view. In assessing state power to regulate
    firearm possession, Lumpkin wrote that he was “aware
    that it has been decided, that [the Second Amendment],
    like other amendments adopted at the same time, is a
    restriction upon the government of the United States, and
    does not extend to the individual States.” 
    Id., at 250
    . But
    he still considered the right to keep and bear arms as “an
    unalienable right, which lies at the bottom of every free
    government,” and thus found the States bound to honor it.
    
    Ibid.
     Other state courts adopted similar positions with
    respect to the right to keep and bear arms and other enu
    merated rights.16 Some courts even suggested that the
    protections in the Bill of Rights were legally enforceable
    against the States, Barron notwithstanding.17 A promi
    nent treatise of the era took the same position. W. Rawle,
    A View of the Constitution of the United States of America
    ——————
    16 See, e.g., Raleigh & Gaston R. Co. v. Davis, 19 N. C. 451, 458–462
    (1837) (right to just compensation for government taking of property);
    Rohan v. Swain, 
    59 Mass. 281
    , 285 (1850) (right to be secure from
    unreasonable government searches and seizures); State v. Buzzard, 
    4 Ark. 18
    , 28 (1842) (right to keep and bear arms); State v. Jumel, 
    13 La. Ann. 399
    , 400 (1858) (same); Cockrum v. State, 
    24 Tex. 394
    , 401–404
    (1859) (same).
    17 See, e.g., People v. Goodwin, 
    18 Johns. Cas. 187
    , 201 (N. Y. Sup. Ct.
    1820); Rhinehart v. Schulyer, 
    7 Ill. 473
    , 522 (1845).
    40                MCDONALD v. CHICAGO
    Opinion of THOMAS, J.
    124–125 (2d ed. 1829) (reprint 2009) (arguing that certain
    of the first eight Amendments “appl[y] to the state legisla
    tures” because those Amendments “form parts of the
    declared rights of the people, of which neither the state
    powers nor those of the Union can ever deprive them”); 
    id.,
    at 125−126 (describing the Second Amendment “right of
    the people to keep and bear arms” as “a restraint on both”
    Congress and the States); see also Heller, 554 U. S., at __
    (slip op., at 34) (describing Rawle’s treatise as “influen
    tial”). Certain abolitionist leaders adhered to this view as
    well. Lysander Spooner championed the popular aboli
    tionist argument that slavery was inconsistent with con
    stitutional principles, citing as evidence the fact that it
    deprived black Americans of the “natural right of all men
    ‘to keep and bear arms’ for their personal defence,” which
    he believed the Constitution “prohibit[ed] both Congress
    and the State governments from infringing.” L. Spooner,
    The Unconstitutionality of Slavery 98 (1860).
    In sum, some appear to have believed that the Bill of
    Rights did apply to the States, even though this Court had
    squarely rejected that theory. See, e.g., supra, at 27–28
    (recounting Rep. Hale’s argument to this effect). Many
    others believed that the liberties codified in the Bill of
    Rights were ones that no State should abridge, even
    though they understood that the Bill technically did not
    apply to States. These beliefs, combined with the fact that
    most state constitutions recognized many, if not all, of the
    individual rights enumerated in the Bill of Rights, made
    the need for federal enforcement of constitutional liberties
    against the States an afterthought. See ante, at 29 (opin
    ion of the Court) (noting that, “[i]n 1868, 22 of the 37
    States in the Union had state constitutional provisions
    explicitly protecting the right to keep and bear arms”).
    That changed with the national conflict over slavery.
    Cite as: 561 U. S. ____ (2010)            41
    Opinion of THOMAS, J.
    b
    In the contentious years leading up to the Civil War,
    those who sought to retain the institution of slavery found
    that to do so, it was necessary to eliminate more and more
    of the basic liberties of slaves, free blacks, and white
    abolitionists. Congressman Tobias Plants explained that
    slaveholders “could not hold [slaves] safely where dissent
    was permitted,” so they decided that “all dissent must be
    suppressed by the strong hand of power.” 39th Cong.
    Globe 1013. The measures they used were ruthless, re
    pressed virtually every right recognized in the Constitu
    tion, and demonstrated that preventing only discrimina
    tory state firearms restrictions would have been a hollow
    assurance for liberty. Public reaction indicates that the
    American people understood this point.
    The overarching goal of pro-slavery forces was to repress
    the spread of abolitionist thought and the concomitant
    risk of a slave rebellion. Indeed, it is difficult to overstate
    the extent to which fear of a slave uprising gripped slave
    holders and dictated the acts of Southern legislatures.
    Slaves and free blacks represented a substantial percent
    age of the population and posed a severe threat to South
    ern order if they were not kept in their place. According to
    the 1860 Census, slaves represented one quarter or more
    of the population in 11 of the 15 slave States, nearly half
    the population in Alabama, Florida, Georgia, and Louisi
    ana, and more than 50% of the population in Mississippi
    and South Carolina. Statistics of the United States (In
    cluding Mortality, Property, &c.,) in 1860, The Eighth
    Census 336−350 (1866).
    The Southern fear of slave rebellion was not unfounded.
    Although there were others, two particularly notable slave
    uprisings heavily influenced slaveholders in the South. In
    1822, a group of free blacks and slaves led by Denmark
    Vesey planned a rebellion in which they would slay their
    masters and flee to Haiti. H. Aptheker, American Negro
    42                    MCDONALD v. CHICAGO
    Opinion of THOMAS, J.
    Slave Revolts 268–270 (1983). The plan was foiled, lead
    ing to the swift arrest of 130 blacks, and the execution of
    37, including Vesey. Id., at 271. Still, slaveowners took
    notice—it was reportedly feared that as many as 6,600 to
    9,000 slaves and free blacks were involved in the plot. Id.,
    at 272. A few years later, the fear of rebellion was real
    ized. An uprising led by Nat Turner took the lives of at
    least 57 whites before it was suppressed. Id., at 300–302.
    The fear generated by these and other rebellions led
    Southern legislatures to take particularly vicious aim at
    the rights of free blacks and slaves to speak or to keep and
    bear arms for their defense. Teaching slaves to read (even
    the Bible) was a criminal offense punished severely in
    some States. See K. Stampp, The Peculiar Institution:
    Slavery in the Ante-bellum South 208, 211 (1956). Vir
    ginia made it a crime for a member of an “abolition” soci
    ety to enter the State and argue “that the owners of slaves
    have no property in the same, or advocate or advise the
    abolition of slavery.” 1835–1836 Va. Acts ch. 66, p. 44.
    Other States prohibited the circulation of literature deny
    ing a master’s right to property in his slaves and passed
    laws requiring postmasters to inspect the mails in search
    of such material. C. Eaton, The Freedom-of-Thought
    Struggle in the Old South 118–143, 199–200 (1964).
    Many legislatures amended their laws prohibiting
    slaves from carrying firearms18 to apply the prohibition to
    free blacks as well. See, e.g., Act of Dec. 23, 1833, §7, 1833
    Ga. Acts pp. 226, 228 (declaring that “it shall not be lawful
    for any free person of colour in this state, to own, use, or
    carry fire arms of any description whatever”); H. Ap
    ——————
    18 See, e.g., Black Code, ch. 33, §19, 1806 La. Acts pp. 160, 162 (pro
    hibiting slaves from using firearms unless they were authorized by
    their master to hunt within the boundaries of his plantation); Act of
    Dec. 18, 1819, 1819 S. C. Acts pp. 29, 31 (same); An Act Concerning
    Slaves, §6, 1840 Tex. Laws pp. 42–43 (making it unlawful for “any slave
    to own firearms of any description”).
    Cite as: 561 U. S. ____ (2010)           43
    Opinion of THOMAS, J.
    theker, Nat Turner’s Slave Rebellion 74–76, 83–94 (1966)
    (discussing similar Maryland and Virginia statutes); see
    also Act of Mar. 15, 1852, ch. 206, 1852 Miss. Laws p. 328
    (repealing laws allowing free blacks to obtain firearms
    licenses); Act of Jan. 31, 1831, 1831 Fla. Acts p. 30 (same).
    Florida made it the “duty” of white citizen “patrol[s] to
    search negro houses or other suspected places, for fire
    arms.” Act of Feb. 17, 1833, ch. 671, 1833 Fla. Acts pp. 26,
    30. If they found any firearms, the patrols were to take
    the offending slave or free black “to the nearest justice of
    the peace,” whereupon he would be “severely punished” by
    “whipping on the bare back, not exceeding thirty-nine
    lashes,” unless he could give a “plain and satisfactory”
    explanation of how he came to possess the gun. Ibid.
    Southern blacks were not alone in facing threats to their
    personal liberty and security during the antebellum era.
    Mob violence in many Northern cities presented dangers
    as well. Cottrol & Diamond, The Second Amendment:
    Toward an Afro-Americanist Reconsideration, 80 Geo. L.
    J. 309, 340 (1991) (hereinafter Cottrol) (recounting a July
    1834 mob attack against “churches, homes, and businesses
    of white abolitionists and blacks” in New York that in
    volved “upwards of twenty thousand people and required
    the intervention of the militia to suppress”); ibid. (noting
    an uprising in Boston nine years later in which a confron
    tation between a group of white sailors and four blacks led
    “a mob of several hundred whites” to “attac[k] and se
    verely beat every black they could find”).
    c
    After the Civil War, Southern anxiety about an uprising
    among the newly freed slaves peaked. As Representative
    Thaddeus Stevens is reported to have said, “[w]hen it was
    first proposed to free the slaves, and arm the blacks, did
    not half the nation tremble? The prim conservatives, the
    snobs, and the male waiting-maids in Congress, were in
    44                 MCDONALD v. CHICAGO
    Opinion of THOMAS, J.
    hysterics.” K. Stampp, The Era of Reconstruction, 1865–
    1877, p. 104 (1965) (hereinafter Era of Reconstruction).
    As the Court explains, this fear led to “systematic ef
    forts” in the “old Confederacy” to disarm the more than
    180,000 freedmen who had served in the Union Army, as
    well as other free blacks. See ante, at 23. Some States
    formally prohibited blacks from possessing firearms. Ante,
    at 23–24 (quoting 1865 Miss. Laws p. 165, §1, reprinted in
    1 Fleming 289). Others enacted legislation prohibiting
    blacks from carrying firearms without a license, a restric
    tion not imposed on whites. See, e.g., La. Statute of 1865,
    reprinted in id., at 280. Additionally, “[t]hroughout the
    South, armed parties, often consisting of ex-Confederate
    soldiers serving in the state militias, forcibly took firearms
    from newly freed slaves.” Ante, at 24.
    As the Court makes crystal clear, if the Fourteenth
    Amendment “had outlawed only those laws that discrimi
    nate on the basis of race or previous condition of servitude,
    African-Americans in the South would likely have re
    mained vulnerable to attack by many of their worst abus
    ers: the state militia and state peace officers.” Ante, at 32.
    In the years following the Civil War, a law banning fire
    arm possession outright “would have been nondiscrimina
    tory only in the formal sense,” for it would have “left fire
    arms in the hands of the militia and local peace officers.”
    Ibid.
    Evidence suggests that the public understood this at the
    time the Fourteenth Amendment was ratified. The pub
    licly circulated Report of the Joint Committee on Recon
    struction extensively detailed these abuses, see ante, at
    23–24 (collecting examples), and statements by citizens
    indicate that they looked to the Committee to provide a
    federal solution to this problem, see, e.g., 39th Cong. Globe
    337 (remarks of Rep. Sumner) (introducing “a memorial
    from the colored citizens of the State of South Carolina”
    asking for, inter alia, “constitutional protection in keeping
    Cite as: 561 U. S. ____ (2010)          45
    Opinion of THOMAS, J.
    arms, in holding public assemblies, and in complete liberty
    of speech and of the press”).
    One way in which the Federal Government responded
    was to issue military orders countermanding Southern
    arms legislation. See, e.g., Jan. 17, 1866, order from Major
    General D. E. Sickles, reprinted in E. McPherson, The
    Political History of the United States of America During
    the Period of Reconstruction 37 (1871) (“The constitutional
    rights of all loyal and well-disposed inhabitants to bear
    arms will not be infringed”). The significance of these
    steps was not lost on those they were designed to protect.
    After one such order was issued, The Christian Recorder,
    published by the African Methodist Episcopal Church,
    published the following editorial:
    “ ‘We have several times alluded to the fact that the
    Constitution of the United States, guaranties to every
    citizen the right to keep and bear arms. . . . All men,
    without the distinction of color, have the right to keep
    arms to defend their homes, families, or themselves.’
    “We are glad to learn that [the] Commissioner for
    this State . . . has given freedmen to understand that
    they have as good a right to keep fire arms as any
    other citizens. The Constitution of the United States
    is the supreme law of the land, and we will be gov
    erned by that at present.” Right to Bear Arms, Chris
    tian Recorder (Phila.), Feb. 24, 1866, pp. 29–30.
    The same month, The Loyal Georgian carried a letter to
    the editor asking “Have colored persons a right to own and
    carry fire arms?—A Colored Citizen.” The editors re
    sponded as follows:
    “Almost every day, we are asked questions similar
    to the above. We answer certainly you have the same
    right to own and carry fire arms that other citizens
    have. You are not only free but citizens of the United
    States and, as such, entitled to the same privileges
    46                  MCDONALD v. CHICAGO
    Opinion of THOMAS, J.
    granted to other citizens by the Constitution of the
    United States.
    .             .          .         .          .
    “. . . Article II, of the amendments to the Constitution
    of the United States, gives the people the right to bear
    arms and states that this right shall not be infringed.
    . . . All men, without distinction of color, have the
    right to keep arms to defend their homes, families or
    themselves.” Letter to the Editor, Loyal Georgian
    (Augusta), Feb. 3, 1866, p. 3.
    These statements are consistent with the arguments of
    abolitionists during the antebellum era that slavery, and
    the slave States’ efforts to retain it, violated the constitu
    tional rights of individuals—rights the abolitionists de
    scribed as among the privileges and immunities of citizen
    ship.       See, e.g., J. Tiffany, Treatise on the
    Unconstitutionality of American Slavery 56 (1849) (reprint
    1969) (“pledg[ing] . . . to see that all the rights, privileges,
    and immunities, granted by the constitution of the United
    States, are extended to all”); id., at 99 (describing the
    “right to keep and bear arms” as one of those rights se
    cured by “the constitution of the United States”). The
    problem abolitionists sought to remedy was that, under
    Dred Scott, blacks were not entitled to the privileges and
    immunities of citizens under the Federal Constitution and
    that, in many States, whatever inalienable rights state
    law recognized did not apply to blacks. See, e.g., Cooper v.
    Savannah, 
    4 Ga. 68
    , 72 (1848) (deciding, just two years
    after Chief Justice Lumpkin’s opinion in Nunn recognizing
    the right to keep and bear arms, see supra, at 39, that
    “[f]ree persons of color have never been recognized here as
    citizens; they are not entitled to bear arms”).
    Section 1 guaranteed the rights of citizenship in the
    United States and in the several States without regard to
    race. But it was understood that liberty would be assured
    Cite as: 561 U. S. ____ (2010)                  47
    Opinion of THOMAS, J.
    little protection if §1 left each State to decide which privi
    leges or immunities of United States citizenship it would
    protect. As Frederick Douglass explained before §1’s
    adoption, “the Legislatures of the South can take from him
    the right to keep and bear arms, as they can—they would
    not allow a negro to walk with a cane where I came from,
    they would not allow five of them to assemble together.”
    In What New Skin Will the Old Snake Come Forth? An
    Address Delivered in New York, New York, May 10, 1865,
    reprinted in 4 The Frederick Douglass Papers 79, 83–84
    (J. Blassingame & J. McKivigan eds., 1991) (footnote
    omitted). “Notwithstanding the provision in the Constitu
    tion of the United States, that the right to keep and bear
    arms shall not be abridged,” Douglass explained that “the
    black man has never had the right either to keep or bear
    arms.” Id., at 84. Absent a constitutional amendment to
    enforce that right against the States, he insisted that “the
    work of the Abolitionists [wa]s not finished.” Ibid.
    This history confirms what the text of the Privileges or
    Immunities Clause most naturally suggests: Consistent
    with its command that “[n]o State shall . . . abridge” the
    rights of United States citizens, the Clause establishes a
    minimum baseline of federal rights, and the constitutional
    right to keep and bear arms plainly was among them.19
    III
    My conclusion is contrary to this Court’s precedents,
    which hold that the Second Amendment right to keep and
    bear arms is not a privilege of United States citizenship.
    ——————
    19 Iconclude that the right to keep and bear arms applies to the
    States through the Privileges or Immunities Clause, which recognizes
    the rights of United States “citizens.” The plurality concludes that the
    right applies to the States through the Due Process Clause, which
    covers all “person[s].” Because this case does not involve a claim
    brought by a noncitizen, I express no view on the difference, if any,
    between my conclusion and the plurality’s with respect to the extent to
    which the States may regulate firearm possession by noncitizens.
    48                     MCDONALD v. CHICAGO
    Opinion of THOMAS, J.
    See Cruikshank, 
    92 U. S., at
    548–549, 551–553. I must,
    therefore, consider whether stare decisis requires reten
    tion of those precedents. As mentioned at the outset, my
    inquiry is limited to the right at issue here. Thus, I do not
    endeavor to decide in this case whether, or to what extent,
    the Privileges or Immunities Clause applies any other
    rights enumerated in the Constitution against the
    States.20 Nor do I suggest that the stare decisis considera
    tions surrounding the application of the right to keep and
    bear arms against the States would be the same as those
    surrounding another right protected by the Privileges or
    Immunities Clause. I consider stare decisis only as it
    applies to the question presented here.
    A
    This inquiry begins with the Slaughter-House Cases.
    There, this Court upheld a Louisiana statute granting a
    monopoly on livestock butchering in and around the city of
    New Orleans to a newly incorporated company. 
    16 Wall. 36
    . Butchers excluded by the monopoly sued, claiming
    that the statute violated the Privileges or Immunities
    Clause because it interfered with their right to pursue and
    “exercise their trade.” 
    Id., at 60
    . This Court rejected the
    butchers’ claim, holding that their asserted right was not a
    ——————
    20 Inote, however, that I see no reason to assume that the constitu
    tionally enumerated rights protected by the Privileges or Immunities
    Clause should consist of all the rights recognized in the Bill of Rights
    and no others. Constitutional provisions outside the Bill of Rights
    protect individual rights, see, e.g., Art. I, §9, cl. 2 (granting the “Privi
    lege of the Writ of Habeas Corpus”), and there is no obvious evidence
    that the Framers of the Privileges or Immunities Clause meant to
    exclude them. In addition, certain Bill of Rights provisions prevent
    federal interference in state affairs and are not readily construed as
    protecting rights that belong to individuals. The Ninth and Tenth
    Amendments are obvious examples, as is the First Amendment’s
    Establishment Clause, which “does not purport to protect individual
    rights.” Elk Grove Unified School Dist. v. Newdow, 
    542 U. S. 1
    , 50
    (2004) (THOMAS, J., concurring in judgment); see Amar 179–180.
    Cite as: 561 U. S. ____ (2010)           49
    Opinion of THOMAS, J.
    privilege or immunity of American citizenship, but one
    governed by the States alone. The Court held that the
    Privileges or Immunities Clause protected only rights of
    federal citizenship—those “which owe their existence to
    the Federal government, its National character, its Con
    stitution, or its laws,” 
    id.,
     at 79—and did not protect any
    of the rights of state citizenship, 
    id., at 74
    . In other
    words, the Court defined the two sets of rights as mutually
    exclusive.
    After separating these two sets of rights, the Court
    defined the rights of state citizenship as “embrac[ing]
    nearly every civil right for the establishment and protec
    tion of which organized government is instituted”—that is,
    all those rights listed in Corfield. 
    16 Wall., at 76
     (refer
    ring to “those rights” that “Judge Washington” described).
    That left very few rights of federal citizenship for the
    Privileges or Immunities Clause to protect. The Court
    suggested a handful of possibilities, such as the “right of
    free access to [federal] seaports,” protection of the Federal
    Government while traveling “on the high seas,” and even
    two rights listed in the Constitution. 
    Id., at 79
     (noting
    “[t]he right to peaceably assemble” and “the privilege of
    the writ of habeas corpus”); see supra, at 4. But its deci
    sion to interpret the rights of state and federal citizenship
    as mutually exclusive led the Court in future cases to
    conclude that constitutionally enumerated rights were
    excluded from the Privileges or Immunities Clause’s scope.
    See Cruikshank, 
    supra.
    I reject that understanding. There was no reason to
    interpret the Privileges or Immunities Clause as putting
    the Court to the extreme choice of interpreting the “privi
    leges and immunities” of federal citizenship to mean ei
    ther all those rights listed in Corfield, or almost no rights
    at all. 
    16 Wall., at 76
    . The record is scant that the public
    understood the Clause to make the Federal Government
    “a perpetual censor upon all legislation of the States” as
    50                 MCDONALD v. CHICAGO
    Opinion of THOMAS, J.
    the Slaughter-House majority feared. 
    Id., at 78
    . For one
    thing, Corfield listed the “elective franchise” as one of the
    privileges and immunities of “citizens of the several
    states,” 6 F. Cas., at 552, yet Congress and the States still
    found it necessary to adopt the Fifteenth Amendment—
    which protects “[t]he right of citizens of the United States
    to vote”—two years after the Fourteenth Amendment’s
    passage. If the Privileges or Immunities Clause were
    understood to protect every conceivable civil right from
    state abridgment, the Fifteenth Amendment would have
    been redundant.
    The better view, in light of the States and Federal Gov
    ernment’s shared history of recognizing certain inalienable
    rights in their citizens, is that the privileges and immuni
    ties of state and federal citizenship overlap. This is not to
    say that the privileges and immunities of state and federal
    citizenship are the same. At the time of the Fourteenth
    Amendment’s ratification, States performed many more
    functions than the Federal Government, and it is unlikely
    that, simply by referring to “privileges or immunities,” the
    Framers of §1 meant to transfer every right mentioned in
    Corfield to congressional oversight. As discussed, “privi
    leges” and “immunities” were understood only as syno
    nyms for “rights.” See supra, at 9–11. It was their at
    tachment to a particular group that gave them content,
    and the text and history recounted here indicate that the
    rights of United States citizens were not perfectly identi
    cal to the rights of citizens “in the several States.” Justice
    Swayne, one of the dissenters in Slaughter-House, made
    the point clear:
    “The citizen of a State has the same fundamental
    rights as a citizen of the United States, and also cer
    tain others, local in their character, arising from his
    relation to the State, and in addition, those which be
    long to the citizen of the United States, he being in
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    Opinion of THOMAS, J.
    that relation also. There may thus be a double citi
    zenship, each having some rights peculiar to itself. It
    is only over those which belong to the citizen of the
    United States that the category here in question
    throws the shield of its protection.” 
    16 Wall., at 126
    (emphasis added).
    Because the privileges and immunities of American citi
    zenship include rights enumerated in the Constitution,
    they overlap to at least some extent with the privileges
    and immunities traditionally recognized in citizens in the
    several States.
    A separate question is whether the privileges and im
    munities of American citizenship include any rights be
    sides those enumerated in the Constitution. The four
    dissenting Justices in Slaughter-House would have held
    that the Privileges or Immunities Clause protected the
    unenumerated right that the butchers in that case as
    serted. See 
    id., at 83
     (Field, J., dissenting); 
    id., at 111
    (Bradley, J., dissenting); 
    id., at 124
     (Swayne, J., dissent
    ing). Because this case does not involve an unenumerated
    right, it is not necessary to resolve the question whether
    the Clause protects such rights, or whether the Court’s
    judgment in Slaughter-House was correct.
    Still, it is argued that the mere possibility that the
    Privileges or Immunities Clause may enforce unenumer
    ated rights against the States creates “ ‘special hazards’ ”
    that should prevent this Court from returning to the
    original meaning of the Clause.21 Post, at 3 (STEVENS, J.,
    dissenting). Ironically, the same objection applies to the
    ——————
    21 To the extent JUSTICE STEVENS is concerned that reliance on the
    Privileges or Immunities Clause may invite judges to “write their
    personal views of appropriate public policy into the Constitution,” post,
    at 3 (internal quotation marks omitted), his celebration of the alterna
    tive—the “flexibility,” “transcend[ence],” and “dynamism” of substan
    tive due process—speaks for itself, post, at 14–15, 20.
    52                MCDONALD v. CHICAGO
    Opinion of THOMAS, J.
    Court’s substantive due process jurisprudence, which
    illustrates the risks of granting judges broad discretion to
    recognize individual constitutional rights in the absence of
    textual or historical guideposts. But I see no reason to
    assume that such hazards apply to the Privileges or Im
    munities Clause. The mere fact that the Clause does not
    expressly list the rights it protects does not render it
    incapable of principled judicial application. The Constitu
    tion contains many provisions that require an examination
    of more than just constitutional text to determine whether
    a particular act is within Congress’ power or is otherwise
    prohibited. See, e.g., Art. I, §8, cl. 18 (Necessary and
    Proper Clause); Amdt. 8 (Cruel and Unusual Punishments
    Clause). When the inquiry focuses on what the ratifying
    era understood the Privileges or Immunities Clause to
    mean, interpreting it should be no more “hazardous” than
    interpreting these other constitutional provisions by using
    the same approach. To be sure, interpreting the Privileges
    or Immunities Clause may produce hard questions. But
    they will have the advantage of being questions the Con
    stitution asks us to answer. I believe those questions are
    more worthy of this Court’s attention—and far more likely
    to yield discernable answers—than the substantive due
    process questions the Court has for years created on its
    own, with neither textual nor historical support.
    Finding these impediments to returning to the original
    meaning overstated, I reject Slaughter-House insofar as it
    precludes any overlap between the privileges and immuni
    ties of state and federal citizenship. I next proceed to the
    stare decisis considerations surrounding the precedent
    that expressly controls the question presented here.
    B
    Three years after Slaughter-House, the Court in Cruik
    shank squarely held that the right to keep and bear arms
    was not a privilege of American citizenship, thereby over
    Cite as: 561 U. S. ____ (2010)                 53
    Opinion of THOMAS, J.
    turning the convictions of militia members responsible for
    the brutal Colfax Massacre. See supra, at 4–5. Cruik
    shank is not a precedent entitled to any respect. The flaws
    in its interpretation of the Privileges or Immunities
    Clause are made evident by the preceding evidence of its
    original meaning, and I would reject the holding on that
    basis alone. But, the consequences of Cruikshank warrant
    mention as well.
    Cruikshank’s holding that blacks could look only to state
    governments for protection of their right to keep and bear
    arms enabled private forces, often with the assistance of
    local governments, to subjugate the newly freed slaves and
    their descendants through a wave of private violence
    designed to drive blacks from the voting booth and force
    them into peonage, an effective return to slavery. Without
    federal enforcement of the inalienable right to keep and
    bear arms, these militias and mobs were tragically suc
    cessful in waging a campaign of terror against the very
    people the Fourteenth Amendment had just made citizens.
    Take, for example, the Hamburg Massacre of 1876.
    There, a white citizen militia sought out and murdered a
    troop of black militiamen for no other reason than that
    they had dared to conduct a celebratory Fourth of July
    parade through their mostly black town. The white mili
    tia commander, “Pitchfork” Ben Tillman, later described
    this massacre with pride: “[T]he leading white men of
    Edgefield” had decided “to seize the first opportunity that
    the negroes might offer them to provoke a riot and teach
    the negroes a lesson by having the whites demonstrate
    their superiority by killing as many of them as was justifi
    able.” S. Kantrowitz, Ben Tillman & the Reconstruction of
    White Supremacy 67 (2000) (ellipsis, brackets, and inter
    nal quotation marks omitted). None of the perpetrators of
    the Hamburg murders was ever brought to justice.22
    ——————
    22 Tillman   went on to a long career as South Carolina’s Governor and,
    54                      MCDONALD v. CHICAGO
    Opinion of THOMAS, J.
    Organized terrorism like that perpetuated by Tillman
    and his cohorts proliferated in the absence of federal
    enforcement of constitutional rights. Militias such as the
    Ku Klux Klan, the Knights of the White Camellia, the
    White Brotherhood, the Pale Faces, and the ’76 Associa
    tion spread terror among blacks and white Republicans by
    breaking up Republican meetings, threatening political
    leaders, and whipping black militiamen. Era of Recon
    struction, 199–200; Curtis 156. These groups raped,
    murdered, lynched, and robbed as a means of intimidat
    ing, and instilling pervasive fear in, those whom they
    despised. A. Trelease, White Terror: The Ku Klux Klan
    Conspiracy and Southern Reconstruction 28–46 (1995).
    Although Congress enacted legislation to suppress these
    activities,23 Klan tactics remained a constant presence in
    the lives of Southern blacks for decades. Between 1882
    and 1968, there were at least 3,446 reported lynchings of
    blacks in the South. Cottrol 351–352. They were tortured
    and killed for a wide array of alleged crimes, without even
    the slightest hint of due process. Emmit Till, for example,
    was killed in 1955 for allegedly whistling at a white
    woman. S. Whitfield, A Death in the Delta: The Story of
    Emmett Till 15–31 (1988). The fates of other targets of
    mob violence were equally depraved. See, e.g., Lynched
    Negro and Wife Were First Mutilated, Vicksburg (Miss.)
    ——————
    later, United States Senator. Tillman’s contributions to campaign
    finance law have been discussed in our recent cases on that subject.
    See Citizens United v. Federal Election Comm’n, 558 U. S. ___, ___
    (2010) (STEVENS, J., dissenting) (slip. op., at 2, 42, 56, 87) (discussing at
    length the Tillman Act of 1907, 
    34 Stat. 864
    ). His contributions to the
    culture of terrorism that grew in the wake of Cruikshank had an even
    more dramatic and tragic effect.
    23 In an effort to enforce the Fourteenth Amendment and halt this
    violence, Congress enacted a series of civil rights statutes, including the
    Force Acts, see Act of May 31, 1870, 
    16 Stat. 140
    ; Act of Feb. 28, 1871,
    
    16 Stat. 433
    , and the Ku Klux Klan Act, see Act of Apr. 20, 1871, 
    17 Stat. 13
    .
    Cite as: 561 U. S. ____ (2010)           55
    Opinion of THOMAS, J.
    Evening Post, Feb. 8, 1904, reprinted in R. Ginzburg, 100
    Years of Lynchings 63 (1988); Negro Shot Dead for Kissing
    His White Girlfriend, Chi. Defender, Feb. 31, 1915, in id.,
    at 95 (reporting incident in Florida); La. Negro Is Burned
    Alive Screaming “I Didn’t Do It,” Cleveland Gazette, Dec.
    13, 1914, in id., at 93 (reporting incident in Louisiana).
    The use of firearms for self-defense was often the only
    way black citizens could protect themselves from mob
    violence. As Eli Cooper, one target of such violence, is said
    to have explained, “ ‘[t]he Negro has been run over for fifty
    years, but it must stop now, and pistols and shotguns are
    the only weapons to stop a mob.’ ” Church Burnings Fol
    low Negro Agitator’s Lynching, Chicago Defender, Sept. 6,
    1919, in id., at 124. Sometimes, as in Cooper’s case, self
    defense did not succeed. He was dragged from his home
    by a mob and killed as his wife looked on. Ibid. But at
    other times, the use of firearms allowed targets of mob
    violence to survive. One man recalled the night during his
    childhood when his father stood armed at a jail until
    morning to ward off lynchers. See Cottrol, 354. The ex
    perience left him with a sense, “not ‘of powerlessness, but
    of the “possibilities of salvation” ’ ” that came from stand
    ing up to intimidation. Ibid.
    In my view, the record makes plain that the Framers of
    the Privileges or Immunities Clause and the ratifying-era
    public understood—just as the Framers of the Second
    Amendment did—that the right to keep and bear arms
    was essential to the preservation of liberty. The record
    makes equally plain that they deemed this right necessary
    to include in the minimum baseline of federal rights that
    the Privileges or Immunities Clause established in the
    wake of the War over slavery. There is nothing about
    Cruikshank’s contrary holding that warrants its retention.
    *    *    *
    I agree with the Court that the Second Amendment is
    56                MCDONALD v. CHICAGO
    Opinion of THOMAS, J.
    fully applicable to the States. I do so because the right to
    keep and bear arms is guaranteed by the Fourteenth
    Amendment as a privilege of American citizenship.
    Cite as: 561 U. S. ____ (2010)                    1
    STEVENS, J., dissenting
    SUPREME COURT OF THE UNITED STATES
    _________________
    No. 08–1521
    _________________
    OTIS MCDONALD, ET AL., PETITIONERS v. CITY OF
    CHICAGO, ILLINOIS, ET AL.
    ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
    APPEALS FOR THE SEVENTH CIRCUIT
    [June 28, 2010]
    JUSTICE STEVENS, dissenting.
    In District of Columbia v. Heller, 554 U. S. ___, ___
    (2008) (slip op., at 1), the Court answered the question
    whether a federal enclave’s “prohibition on the possession
    of usable handguns in the home violates the Second
    Amendment to the Constitution.” The question we should
    be answering in this case is whether the Constitution
    “guarantees individuals a fundamental right,” enforceable
    against the States, “to possess a functional, personal
    firearm, including a handgun, within the home.” Com­
    plaint ¶34, App. 23. That is a different—and more diffi­
    cult—inquiry than asking if the Fourteenth Amendment
    “incorporates” the Second Amendment. The so-called
    incorporation question was squarely and, in my view,
    correctly resolved in the late 19th century.1
    Before the District Court, petitioners focused their
    pleadings on the special considerations raised by domestic
    possession, which they identified as the core of their as­
    serted right. In support of their claim that the city of
    Chicago’s handgun ban violates the Constitution, they now
    rely primarily on the Privileges or Immunities Clause of
    ——————
    1 See United States v. Cruikshank, 
    92 U. S. 542
    , 553 (1876); Presser v.
    Illinois, 
    116 U. S. 252
    , 265 (1886); Miller v. Texas, 
    153 U. S. 535
    , 538
    (1894). This is not to say that I agree with all other aspects of these
    decisions.
    2                      MCDONALD v. CHICAGO
    STEVENS, J., dissenting
    the Fourteenth Amendment. See Brief for Petitioners 9–
    65. They rely secondarily on the Due Process Clause of
    that Amendment. See 
    id.,
     at 66–72. Neither submission
    requires the Court to express an opinion on whether the
    Fourteenth Amendment places any limit on the power of
    States to regulate possession, use, or carriage of firearms
    outside the home.
    I agree with the plurality’s refusal to accept petitioners’
    primary submission. Ante, at 10. Their briefs marshal an
    impressive amount of historical evidence for their argu­
    ment that the Court interpreted the Privileges or Immuni­
    ties Clause too narrowly in the Slaughter-House Cases, 
    16 Wall. 36
     (1873). But the original meaning of the Clause is
    not as clear as they suggest2—and not nearly as clear as it
    would need to be to dislodge 137 years of precedent. The
    ——————
    2 Cf.,
    e.g., Currie, The Reconstruction Congress, 
    75 U. Chi. L. Rev. 383
    , 406 (2008) (finding “some support in the legislative history for no
    fewer than four interpretations” of the Privileges or Immunities Clause,
    two of which contradict petitioners’ submission); Green, The Original
    Sense of the (Equal) Protection Clause: Subsequent Interpretation and
    Application, 19 Geo. Mason U. Civ. Rights L. J. 219, 255–277 (2009)
    (providing evidence that the Clause was originally conceived of as an
    antidiscrimination measure, guaranteeing equal rights for black
    citizens); Rosenthal, The New Originalism Meets the Fourteenth
    Amendment: Original Public Meaning and the Problem of Incorpora­
    tion, 18 J. Contemporary Legal Issues 361 (2009) (detailing reasons to
    doubt that the Clause was originally understood to apply the Bill of
    Rights to the States); Hamburger, Privileges or Immunities, 105 Nw. U.
    L. Rev. (forthcoming 2011), online at http://ssrn.com/abstract=1557870
    (as visited June 25, 2010, and available in Clerk of Court’s case file)
    (arguing that the Clause was meant to ensure freed slaves were af­
    forded “the Privileges and Immunities” specified in Article IV, §2, cl. 1
    of the Constitution). Although he urges its elevation in our doctrine,
    JUSTICE THOMAS has acknowledged that, in seeking to ascertain the
    original meaning of the Privileges or Immunities Clause, “[l]egal
    scholars agree on little beyond the conclusion that the Clause does not
    mean what the Court said it meant in 1873.” Saenz v. Roe, 
    526 U. S. 489
    , 522, n. 1 (1999) (dissenting opinion); accord, ante, at 10 (plurality
    opinion).
    Cite as: 561 U. S. ____ (2010)                   3
    STEVENS, J., dissenting
    burden is severe for those who seek radical change in such
    an established body of constitutional doctrine.3 Moreover,
    the suggestion that invigorating the Privileges or Immuni­
    ties Clause will reduce judicial discretion, see Reply Brief
    for Petitioners 22, n. 8, 26; Tr. of Oral Arg. 64–65, strikes
    me as implausible, if not exactly backwards. “For the very
    reason that it has so long remained a clean slate, a revital­
    ized Privileges or Immunities Clause holds special hazards
    for judges who are mindful that their proper task is not to
    write their personal views of appropriate public policy into
    the Constitution.”4
    I further agree with the plurality that there are weighty
    arguments supporting petitioners’ second submission,
    insofar as it concerns the possession of firearms for lawful
    self-defense in the home. But these arguments are less
    compelling than the plurality suggests; they are much less
    compelling when applied outside the home; and their
    validity does not depend on the Court’s holding in Heller.
    For that holding sheds no light on the meaning of the Due
    Process Clause of the Fourteenth Amendment. Our deci­
    sions construing that Clause to render various procedural
    guarantees in the Bill of Rights enforceable against the
    ——————
    3 It is no secret that the desire to “displace” major “portions of our
    equal protection and substantive due process jurisprudence” animates
    some of the passion that attends this interpretive issue. Saenz, 
    526 U. S., at 528
     (THOMAS, J., dissenting).
    4 Wilkinson, The Fourteenth Amendment Privileges or Immunities
    Clause, 12 Harv. J. L. & Pub. Pol’y 43, 52 (1989). Judge Wilkinson’s
    point is broader than the privileges or immunities debate. As he
    observes, “there may be more structure imposed by provisions subject
    to generations of elaboration and refinement than by a provision in its
    pristine state. The fortuities of uneven constitutional development
    must be respected, not cast aside in the illusion of reordering the
    landscape anew.” 
    Id.,
     at 51–52; see also Washington v. Glucksberg, 
    521 U. S. 702
    , 759, n. 6 (1997) (Souter, J., concurring in judgment) (ac­
    knowledging that, “[t]o a degree,” the Slaughter-House “decision may
    have led the Court to look to the Due Process Clause as a source of
    substantive rights”).
    4                  MCDONALD v. CHICAGO
    STEVENS, J., dissenting
    States likewise tell us little about the meaning of the word
    “liberty” in the Clause or about the scope of its protection
    of nonprocedural rights.
    This is a substantive due process case.
    I
    Section 1 of the Fourteenth Amendment decrees that no
    State shall “deprive any person of life, liberty, or property,
    without due process of law.” The Court has filled thou­
    sands of pages expounding that spare text. As I read the
    vast corpus of substantive due process opinions, they
    confirm several important principles that ought to guide
    our resolution of this case. The principal opinion’s lengthy
    summary of our “incorporation” doctrine, see ante, at 5–9,
    11–19 (majority opinion), 10–11 (plurality opinion), and its
    implicit (and untenable) effort to wall off that doctrine
    from the rest of our substantive due process jurisprudence,
    invite a fresh survey of this old terrain.
    Substantive Content
    The first, and most basic, principle established by our
    cases is that the rights protected by the Due Process
    Clause are not merely procedural in nature. At first
    glance, this proposition might seem surprising, given that
    the Clause refers to “process.” But substance and proce­
    dure are often deeply entwined. Upon closer inspection,
    the text can be read to “impos[e] nothing less than an
    obligation to give substantive content to the words ‘liberty’
    and ‘due process of law,’ ” Washington v. Glucksberg, 
    521 U. S. 702
    , 764 (1997) (Souter, J., concurring in judgment),
    lest superficially fair procedures be permitted to “destroy
    the enjoyment” of life, liberty, and property, Poe v. Ull­
    man, 
    367 U. S. 497
    , 541 (1961) (Harlan, J., dissenting),
    and the Clause’s prepositional modifier be permitted to
    swallow its primary command. Procedural guarantees are
    hollow unless linked to substantive interests; and no
    Cite as: 561 U. S. ____ (2010)                     5
    STEVENS, J., dissenting
    amount of process can legitimize some deprivations.
    I have yet to see a persuasive argument that the Fram­
    ers of the Fourteenth Amendment thought otherwise. To
    the contrary, the historical evidence suggests that, at least
    by the time of the Civil War if not much earlier, the
    phrase “due process of law” had acquired substantive
    content as a term of art within the legal community.5 This
    understanding is consonant with the venerable “notion
    that governmental authority has implied limits which
    ——————
    5 See, e.g., Ely, The Oxymoron Reconsidered: Myth and Reality in the
    Origins of Substantive Due Process, 16 Const. Commentary 315, 326–
    327 (1999) (concluding that founding-era “American statesmen accus­
    tomed to viewing due process through the lens of [Sir Edward] Coke
    and [William] Blackstone could [not] have failed to understand due
    process as encompassing substantive as well as procedural terms”);
    Gedicks, An Originalist Defense of Substantive Due Process: Magna
    Carta, Higher-Law Constitutionalism, and the Fifth Amendment, 58
    Emory L. J. 585, 594 (2009) (arguing “that one widely shared under­
    standing of the Due Process Clause of the Fifth Amendment in the late
    eighteenth century encompassed judicial recognition and enforcement
    of unenumerated substantive rights”); Maltz, Fourteenth Amendment
    Concepts in the Antebellum Era, 
    32 Am. J. Legal Hist. 305
    , 317–318
    (1988) (explaining that in the antebellum era a “substantial number of
    states,” as well as antislavery advocates, “imbued their [constitutions’]
    respective due process clauses with a substantive content”); Tribe,
    Taking Text and Structure Seriously: Reflections on Free-Form Method
    in Constitutional Interpretation, 
    108 Harv. L. Rev. 1221
    , 1297, n. 247
    (1995) (“[T]he historical evidence points strongly toward the conclusion
    that, at least by 1868 even if not in 1791, any state legislature voting to
    ratify a constitutional rule banning government deprivations of ‘life,
    liberty, or property, without due process of law’ would have understood
    that ban as having substantive as well as procedural content, given
    that era’s premise that, to qualify as ‘law,’ an enactment would have to
    meet substantive requirements of rationality, non-oppressiveness, and
    evenhandedness”); see also Stevens, The Third Branch of Liberty, 
    41 U. Miami L. Rev. 277
    , 290 (1986) (“In view of the number of cases that
    have given substantive content to the term liberty, the burden of
    demonstrating that this consistent course of decision was unfaithful to
    the intent of the Framers is surely a heavy one”).
    6                     MCDONALD v. CHICAGO
    STEVENS, J., dissenting
    preserve private autonomy,”6 a notion which predates the
    founding and which finds reinforcement in the Constitu­
    tion’s Ninth Amendment, see Griswold v. Connecticut, 
    381 U. S. 479
    , 486–493 (1965) (Goldberg, J., concurring).7 The
    Due Process Clause cannot claim to be the source of our
    basic freedoms—no legal document ever could, see
    Meachum v. Fano, 
    427 U. S. 215
    , 230 (1976) (STEVENS, J.,
    dissenting)—but it stands as one of their foundational
    guarantors in our law.
    If text and history are inconclusive on this point, our
    precedent leaves no doubt: It has been “settled” for well
    over a century that the Due Process Clause “applies to
    matters of substantive law as well as to matters of proce­
    dure.” Whitney v. California, 
    274 U. S. 357
    , 373 (1927)
    (Brandeis, J., concurring). Time and again, we have rec­
    ognized that in the Fourteenth Amendment as well as the
    Fifth, the “Due Process Clause guarantees more than fair
    process, and the ‘liberty’ it protects includes more than the
    absence of physical restraint.” Glucksberg, 
    521 U. S., at 719
    . “The Clause also includes a substantive component
    that ‘provides heightened protection against government
    interference with certain fundamental rights and liberty
    interests.’ ” Troxel v. Granville, 
    530 U. S. 57
    , 65 (2000)
    (opinion of O’Connor, J., joined by Rehnquist, C. J., and
    GINSBURG and BREYER, JJ.) (quoting Glucksberg, 
    521 U. S., at 720
    ). Some of our most enduring precedents,
    accepted today by virtually everyone, were substantive
    due process decisions. See, e.g., Loving v. Virginia, 
    388 U. S. 1
    , 12 (1967) (recognizing due-process- as well as
    equal-protection-based right to marry person of another
    race); Bolling v. Sharpe, 
    347 U. S. 497
    , 499–500 (1954)
    ——————
    61
    L. Tribe, American Constitutional Law §8–1, p. 1335 (3d ed. 2000).
    7 The
    Ninth Amendment provides: “The enumeration in the Constitu­
    tion, of certain rights, shall not be construed to deny or disparage
    others retained by the people.”
    Cite as: 561 U. S. ____ (2010)                    7
    STEVENS, J., dissenting
    (outlawing racial segregation in District of Columbia
    public schools); Pierce v. Society of Sisters, 
    268 U. S. 510
    ,
    534–535 (1925) (vindicating right of parents to direct
    upbringing and education of their children); Meyer v.
    Nebraska, 
    262 U. S. 390
    , 399–403 (1923) (striking down
    prohibition on teaching of foreign languages).
    Liberty
    The second principle woven through our cases is that
    substantive due process is fundamentally a matter of
    personal liberty. For it is the liberty clause of the Four­
    teenth Amendment that grounds our most important
    holdings in this field. It is the liberty clause that enacts
    the Constitution’s “promise” that a measure of dignity and
    self-rule will be afforded to all persons. Planned Parent­
    hood of Southeastern Pa. v. Casey, 
    505 U. S. 833
    , 847
    (1992). It is the liberty clause that reflects and renews
    “the origins of the American heritage of freedom [and] the
    abiding interest in individual liberty that makes certain
    state intrusions on the citizen’s right to decide how he will
    live his own life intolerable.” Fitzgerald v. Porter Memo­
    rial Hospital, 
    523 F. 2d 716
    , 720 (CA7 1975) (Stevens, J.).
    Our substantive due process cases have episodically in­
    voked values such as privacy and equality as well, values
    that in certain contexts may intersect with or complement
    a subject’s liberty interests in profound ways. But as I
    have observed on numerous occasions, “most of the signifi­
    cant [20th-century] cases raising Bill of Rights issues
    have, in the final analysis, actually interpreted the word
    ‘liberty’ in the Fourteenth Amendment.”8
    It follows that the term “incorporation,” like the term
    “unenumerated rights,” is something of a misnomer.
    ——————
    8 Stevens, The Bill of Rights: A Century of Progress, 
    59 U. Chi. L. Rev. 13
    , 20 (1992); see Fitzgerald, 
    523 F. 2d, at
    719–720; Stevens, 41
    U. Miami L. Rev., at 286–289; see also Greene, The So-Called Right to
    Privacy, 43 U. C. D. L. Rev. 715, 725–731 (2010).
    8                     MCDONALD v. CHICAGO
    STEVENS, J., dissenting
    Whether an asserted substantive due process interest is
    explicitly named in one of the first eight Amendments to
    the Constitution or is not mentioned, the underlying in­
    quiry is the same: We must ask whether the interest is
    “comprised within the term liberty.” Whitney, 
    274 U. S., at 373
     (Brandeis, J., concurring). As the second Justice
    Harlan has shown, ever since the Court began considering
    the applicability of the Bill of Rights to the States, “the
    Court’s usual approach has been to ground the prohibi­
    tions against state action squarely on due process, without
    intermediate reliance on any of the first eight Amend­
    ments.” Malloy v. Hogan, 
    378 U. S. 1
    , 24 (1964) (dissent­
    ing opinion); see also Frankfurter, Memorandum on “In­
    corporation” of the Bill of Rights into the Due Process
    Clause of the Fourteenth Amendment, 
    78 Harv. L. Rev. 746
    , 747–750 (1965). In the pathmarking case of Gitlow v.
    New York, 
    268 U. S. 652
    , 666 (1925), for example, both the
    majority and dissent evaluated petitioner’s free speech
    claim not under the First Amendment but as an aspect of
    “the fundamental personal rights and ‘liberties’ protected
    by the due process clause of the Fourteenth Amendment
    from impairment by the States.”9
    ——————
    9 See also Gitlow, 
    268 U. S., at 672
     (Holmes, J., dissenting) (“The
    general principle of free speech, it seems to me, must be taken to be
    included in the Fourteenth Amendment, in view of the scope that has
    been given to the word ‘liberty’ as there used, although perhaps it may
    be accepted with a somewhat larger latitude of interpretation than is
    allowed to Congress by the sweeping language that governs or ought to
    govern the laws of the United States”). Subsequent decisions repeat­
    edly reaffirmed that persons hold free speech rights against the States
    on account of the Fourteenth Amendment’s liberty clause, not the First
    Amendment per se. See, e.g., NAACP v. Alabama ex rel. Patterson, 
    357 U. S. 449
    , 460, 466 (1958); Cantwell v. Connecticut, 
    310 U. S. 296
    , 303
    (1940); Thornhill v. Alabama, 
    310 U. S. 88
    , 95, and n. 7 (1940); see also
    McIntyre v. Ohio Elections Comm’n, 
    514 U. S. 334
    , 336, n. 1 (1995)
    (“The term ‘liberty’ in the Fourteenth Amendment to the Constitution
    makes the First Amendment applicable to the States”). Classic opin­
    ions written by Justice Cardozo and Justice Frankfurter endorsed the
    Cite as: 561 U. S. ____ (2010)                     9
    STEVENS, J., dissenting
    In his own classic opinion in Griswold, 
    381 U. S., at 500
    (concurring in judgment), Justice Harlan memorably
    distilled these precedents’ lesson: “While the relevant
    inquiry may be aided by resort to one or more of the provi­
    sions of the Bill of Rights, it is not dependent on them or
    any of their radiations. The Due Process Clause of the
    Fourteenth Amendment stands . . . on its own bottom.”10
    Inclusion in the Bill of Rights is neither necessary nor
    sufficient for an interest to be judicially enforceable under
    the Fourteenth Amendment. This Court’s “ ‘selective
    incorporation’ ” doctrine, ante, at 15, is not simply “related”
    to substantive due process, ante, at 19; it is a subset
    thereof.
    Federal/State Divergence
    The third precept to emerge from our case law flows from
    the second: The rights protected against state infringement
    by the Fourteenth Amendment’s Due Process Clause need
    not be identical in shape or scope to the rights protected
    against Federal Government infringement by the various
    provisions of the Bill of Rights. As drafted, the Bill of
    ——————
    same basic approach to “incorporation,” with the Fourteenth Amend­
    ment taken as a distinct source of rights independent from the first
    eight Amendments. Palko v. Connecticut, 
    302 U. S. 319
    , 322–328
    (1937) (opinion for the Court by Cardozo, J.); Adamson v. California,
    
    332 U. S. 46
    , 59–68 (1947) (Frankfurter, J., concurring).
    10 See also Wolf v. Colorado, 
    338 U. S. 25
    , 26 (1949) (“The notion that
    the ‘due process of law’ guaranteed by the Fourteenth Amendment is
    shorthand for the first eight amendments of the Constitution . . . has
    been rejected by this Court again and again, after impressive consid­
    eration. . . . The issue is closed”). Wolf’s holding on the exclusionary
    rule was overruled by Mapp v. Ohio, 
    367 U. S. 643
     (1961), but the
    principle just quoted has never been disturbed. It is notable that
    Mapp, the case that launched the modern “doctrine of ad hoc,” “ ‘jot-for­
    jot’ ” incorporation, Williams v. Florida, 
    399 U. S. 78
    , 130–131 (1970)
    (Harlan, J., concurring in result), expressly held “that the exclusionary
    rule is an essential part of both the Fourth and Fourteenth Amend­
    ments.” 367 U. S., at 657 (emphasis added).
    10                   MCDONALD v. CHICAGO
    STEVENS, J., dissenting
    Rights directly constrained only the Federal Government.
    See Barron ex rel. Tiernan v. Mayor of Baltimore, 
    7 Pet. 243
     (1833). Although the enactment of the Fourteenth
    Amendment profoundly altered our legal order, it “did not
    unstitch the basic federalist pattern woven into our consti­
    tutional fabric.” Williams v. Florida, 
    399 U. S. 78
    , 133
    (1970) (Harlan, J., concurring in result). Nor, for that
    matter, did it expressly alter the Bill of Rights. The Con­
    stitution still envisions a system of divided sovereignty,
    still “establishes a federal republic where local differences
    are to be cherished as elements of liberty” in the vast run
    of cases, National Rifle Assn. of Am. Inc. v. Chicago, 
    567 F. 3d 856
    , 860 (CA7 2009) (Easterbrook, C. J.), still allo­
    cates a general “police power . . . to the States and the
    States alone,” United States v. Comstock, 560 U. S. ___, ___
    (2010) (slip op., at 4) (KENNEDY, J., concurring in judg­
    ment). Elementary considerations of constitutional text
    and structure suggest there may be legitimate reasons to
    hold state governments to different standards than the
    Federal Government in certain areas.11
    It is true, as the Court emphasizes, ante, at 15–19, that
    we have made numerous provisions of the Bill of Rights
    fully applicable to the States. It is settled, for instance,
    that the Governor of Alabama has no more power than the
    President of the United States to authorize unreasonable
    searches and seizures. Ker v. California, 
    374 U. S. 23
    (1963). But we have never accepted a “total incorporation”
    theory of the Fourteenth Amendment, whereby the
    Amendment is deemed to subsume the provisions of the
    Bill of Rights en masse. See ante, at 15. And we have
    declined to apply several provisions to the States in any
    ——————
    11 Ican hardly improve upon the many passionate defenses of this
    position that Justice Harlan penned during his tenure on the Court.
    See Williams, 
    399 U. S., at 131, n. 14
     (opinion concurring in result)
    (cataloguing opinions).
    Cite as: 561 U. S. ____ (2010)                   11
    STEVENS, J., dissenting
    measure. See, e.g., Minneapolis & St. Louis R. Co. v.
    Bombolis, 
    241 U. S. 211
     (1916) (Seventh Amendment);
    Hurtado v. California, 
    110 U. S. 516
     (1884) (Grand Jury
    Clause). We have, moreover, resisted a uniform approach
    to the Sixth Amendment’s criminal jury guarantee, de­
    manding 12-member panels and unanimous verdicts in
    federal trials, yet not in state trials. See Apodaca v. Ore­
    gon, 
    406 U. S. 404
     (1972) (plurality opinion); Williams, 
    399 U. S. 78
    . In recent years, the Court has repeatedly de­
    clined to grant certiorari to review that disparity.12 While
    those denials have no precedential significance, they
    confirm the proposition that the “incorporation” of a provi­
    sion of the Bill of Rights into the Fourteenth Amendment
    does not, in itself, mean the provision must have precisely
    the same meaning in both contexts.
    It is true, as well, that during the 1960’s the Court
    decided a number of cases involving procedural rights in
    which it treated the Due Process Clause as if it trans­
    planted language from the Bill of Rights into the Four­
    teenth Amendment. See, e.g., Benton v. Maryland, 
    395 U. S. 784
    , 795 (1969) (Double Jeopardy Clause); Pointer v.
    Texas, 
    380 U. S. 400
    , 406 (1965) (Confrontation Clause).
    “Jot-for-jot” incorporation was the norm in this expansion­
    ary era. Yet at least one subsequent opinion suggests that
    these precedents require perfect state/federal congruence
    only on matters “ ‘at the core’ ” of the relevant constitutional
    guarantee. Crist v. Bretz, 
    437 U. S. 28
    , 37 (1978); see also
    
    id.,
     at 52–53 (Powell, J., dissenting). In my judgment, this
    line of cases is best understood as having concluded that, to
    ensure a criminal trial satisfies essential standards of
    ——————
    12 See, e.g., Pet. for Cert. in Bowen v. Oregon, O. T. 2009, No. 08–
    1117, p. i, cert. denied, 558 U. S. ___ (2009) (request to overrule Apo­
    daca); Pet. for Cert. in Lee v. Louisiana, O. T. 2008, No. 07–1523, p. i,
    cert. denied, 555 U. S. ___ (2008) (same); Pet. for Cert. in Logan v.
    Florida, O. T. 2007, No. 07–7264, pp. 14–19, cert. denied, 
    552 U. S. 1189
     (2008) (request to overrule Williams).
    12                 MCDONALD v. CHICAGO
    STEVENS, J., dissenting
    fairness, some procedures should be the same in state and
    federal courts: The need for certainty and uniformity is
    more pressing, and the margin for error slimmer, when
    criminal justice is at issue. That principle has little rele­
    vance to the question whether a nonprocedural rule set
    forth in the Bill of Rights qualifies as an aspect of the lib­
    erty protected by the Fourteenth Amendment.
    Notwithstanding some overheated dicta in Malloy, 378
    U. S., at 10–11, it is therefore an overstatement to say
    that the Court has “abandoned,” ante, at 16, 17 (majority
    opinion), 39 (plurality opinion), a “two-track approach to
    incorporation,” ante, at 37 (plurality opinion). The Court
    moved away from that approach in the area of criminal
    procedure. But the Second Amendment differs in funda­
    mental respects from its neighboring provisions in the Bill
    of Rights, as I shall explain in Part V, infra; and if some
    1960’s opinions purported to establish a general method of
    incorporation, that hardly binds us in this case. The Court
    has not hesitated to cut back on perceived Warren Court
    excesses in more areas than I can count.
    I do not mean to deny that there can be significant
    practical, as well as esthetic, benefits from treating rights
    symmetrically with regard to the State and Federal Gov­
    ernments. Jot-for-jot incorporation of a provision may
    entail greater protection of the right at issue and therefore
    greater freedom for those who hold it; jot-for-jot incorpora­
    tion may also yield greater clarity about the contours of
    the legal rule. See Johnson v. Louisiana, 
    406 U. S. 356
    ,
    384–388 (1972) (Douglas, J., dissenting); Pointer, 
    380 U. S., at
    413–414 (Goldberg, J., concurring). In a federal­
    ist system such as ours, however, this approach can carry
    substantial costs. When a federal court insists that state
    and local authorities follow its dictates on a matter not
    critical to personal liberty or procedural justice, the latter
    may be prevented from engaging in the kind of beneficent
    “experimentation in things social and economic” that
    Cite as: 561 U. S. ____ (2010)                  13
    STEVENS, J., dissenting
    ultimately redounds to the benefit of all Americans. New
    State Ice Co. v. Liebmann, 
    285 U. S. 262
    , 311 (1932)
    (Brandeis, J., dissenting). The costs of federal courts’
    imposing a uniform national standard may be especially
    high when the relevant regulatory interests vary signifi­
    cantly across localities, and when the ruling implicates the
    States’ core police powers.
    Furthermore, there is a real risk that, by demanding the
    provisions of the Bill of Rights apply identically to the
    States, federal courts will cause those provisions to “be
    watered down in the needless pursuit of uniformity.”
    Duncan v. Louisiana, 
    391 U. S. 145
    , 182, n. 21 (1968)
    (Harlan, J., dissenting). When one legal standard must
    prevail across dozens of jurisdictions with disparate needs
    and customs, courts will often settle on a relaxed stan­
    dard. This watering-down risk is particularly acute when
    we move beyond the narrow realm of criminal procedure
    and into the relatively vast domain of substantive rights.
    So long as the requirements of fundamental fairness are
    always and everywhere respected, it is not clear that
    greater liberty results from the jot-for-jot application of a
    provision of the Bill of Rights to the States. Indeed, it is
    far from clear that proponents of an individual right to
    keep and bear arms ought to celebrate today’s decision.13
    ——————
    13 The vast majority of States already recognize a right to keep and
    bear arms in their own constitutions, see Volokh, State Constitutional
    Rights to Keep and Bear Arms, 
    11 Tex. Rev. L. & Pol. 191
     (2006)
    (cataloguing provisions); Brief for Petitioners 69 (observing that
    “[t]hese Second Amendment analogs are effective and consequential”),
    but the States vary widely in their regulatory schemes, their traditions
    and cultures of firearm use, and their problems relating to gun vio­
    lence. If federal and state courts must harmonize their review of gun­
    control laws under the Second Amendment, the resulting jurisprudence
    may prove significantly more deferential to those laws than the status
    quo ante. Once it has been established that a single legal standard
    must govern nationwide, federal courts will face a profound pressure to
    reconcile that standard with the diverse interests of the States and
    14                     MCDONALD v. CHICAGO
    STEVENS, J., dissenting
    II
    So far, I have explained that substantive due process
    analysis generally requires us to consider the term “lib­
    erty” in the Fourteenth Amendment, and that this inquiry
    may be informed by but does not depend upon the content
    of the Bill of Rights. How should a court go about the
    analysis, then? Our precedents have established, not an
    exact methodology, but rather a framework for decision­
    making. In this respect, too, the Court’s narrative fails to
    capture the continuity and flexibility in our doctrine.
    The basic inquiry was described by Justice Cardozo
    more than 70 years ago. When confronted with a substan­
    tive due process claim, we must ask whether the allegedly
    unlawful practice violates values “implicit in the concept
    of ordered liberty.” Palko v. Connecticut, 
    302 U. S. 319
    ,
    325 (1937).14 If the practice in question lacks any “oppres­
    sive and arbitrary” character, if judicial enforcement of the
    asserted right would not materially contribute to “a fair
    and enlightened system of justice,” then the claim is un­
    ——————
    their long history of regulating in this sensitive area. Cf. Williams, 
    399 U. S., at
    129–130 (Harlan, J., concurring in result) (noting “ ‘backlash’ ”
    potential of jot-for-jot incorporation); Grant, Felix Frankfurter: A
    Dissenting Opinion, 
    12 UCLA L. Rev. 1013
    , 1038 (1965) (“If the Court
    will not reduce the requirements of the fourteenth amendment below
    the federal gloss that now overlays the Bill of Rights, then it will have
    to reduce that gloss to the point where the states can live with it”).
    Amici argue persuasively that, post-“incorporation,” federal courts will
    have little choice but to fix a highly flexible standard of review if they
    are to avoid leaving federalism and the separation of powers—not to
    mention gun policy—in shambles. See Brief for Brady Center to
    Prevent Gun Violence et al. as Amici Curiae (hereinafter Brady Center
    Brief).
    14 Justice Cardozo’s test itself built upon an older line of decisions.
    See, e.g., Chicago, B. & Q. R. Co. v. Chicago, 
    166 U. S. 226
    , 237 (1897)
    (discussing “limitations on [state] power, which grow out of the essen­
    tial nature of all free governments [and] implied reservations of indi­
    vidual rights, . . . and which are respected by all governments entitled
    to the name” (internal quotation marks omitted)).
    Cite as: 561 U. S. ____ (2010)                    15
    STEVENS, J., dissenting
    suitable for substantive due process protection. 
    Id., at 327, 325
    . Implicit in Justice Cardozo’s test is a recognition
    that the postulates of liberty have a universal character.
    Liberty claims that are inseparable from the customs that
    prevail in a certain region, the idiosyncratic expectations
    of a certain group, or the personal preferences of their
    champions, may be valid claims in some sense; but they
    are not of constitutional stature. Whether conceptualized
    as a “rational continuum” of legal precepts, Poe, 367 U. S.,
    at 543 (Harlan, J., dissenting), or a seamless web of moral
    commitments, the rights embraced by the liberty clause
    transcend the local and the particular.
    Justice Cardozo’s test undeniably requires judges to
    apply their own reasoned judgment, but that does not
    mean it involves an exercise in abstract philosophy. In
    addition to other constraints I will soon discuss, see Part
    III, infra, historical and empirical data of various kinds
    ground the analysis. Textual commitments laid down
    elsewhere in the Constitution, judicial precedents, English
    common law, legislative and social facts, scientific and
    professional developments, practices of other civilized
    societies,15 and, above all else, the “ ‘traditions and con­
    science of our people,’ ” Palko, 
    302 U. S., at 325
     (quoting
    Snyder v. Massachusetts, 
    291 U. S. 97
    , 105 (1934)), are
    critical variables. They can provide evidence about which
    rights really are vital to ordered liberty, as well as a spur
    to judicial action.
    The Court errs both in its interpretation of Palko and in
    its suggestion that later cases rendered Palko’s methodol­
    ogy defunct. Echoing Duncan, the Court advises that
    Justice Cardozo’s test will not be satisfied “ ‘if a civilized
    system could be imagined that would not accord the par­
    ——————
    15 See Palko, 
    302 U. S., at 326, n. 3
    ; see also, e.g., Lawrence v. Texas,
    
    539 U. S. 558
    , 572–573, 576–577 (2003); Glucksberg, 
    521 U. S., at
    710–
    711, and n. 8.
    16                 MCDONALD v. CHICAGO
    STEVENS, J., dissenting
    ticular protection.’ ” Ante, at 12 (quoting 
    391 U. S., at 149, n. 14
    ). Palko does contain some language that could be
    read to set an inordinate bar to substantive due process
    recognition, reserving it for practices without which “nei­
    ther liberty nor justice would exist.” 
    302 U. S., at 326
    .
    But in view of Justice Cardozo’s broader analysis, as well
    as the numerous cases that have upheld liberty claims
    under the Palko standard, such readings are plainly over­
    readings. We have never applied Palko in such a draco­
    nian manner.
    Nor, as the Court intimates, see ante, at 16, did Duncan
    mark an irreparable break from Palko, swapping out
    liberty for history. Duncan limited its discussion to “par­
    ticular procedural safeguard[s]” in the Bill of Rights relat­
    ing to “criminal processes,” 
    391 U. S., at 149, n. 14
    ; it did
    not purport to set a standard for other types of liberty
    interests. Even with regard to procedural safeguards,
    Duncan did not jettison the Palko test so much as refine it:
    The judge is still tasked with evaluating whether a prac­
    tice “is fundamental . . . to ordered liberty,” within the
    context of the “Anglo-American” system. Duncan, 
    391 U. S., at
    149–150, n. 14. Several of our most important
    recent decisions confirm the proposition that substantive
    due process analysis—from which, once again, “incorpora­
    tion” analysis derives—must not be wholly backward
    looking. See, e.g., Lawrence v. Texas, 
    539 U. S. 558
    , 572
    (2003) (“[H]istory and tradition are the starting point but
    not in all cases the ending point of the substantive due
    process inquiry” (internal quotation marks omitted));
    Michael H. v. Gerald D., 
    491 U. S. 110
    , 127–128, n. 6
    (1989) (garnering only two votes for history-driven meth­
    odology that “consult[s] the most specific tradition avail­
    able”); see also post, at 6–7 (BREYER, J., dissenting) (ex­
    plaining that post-Duncan “incorporation” cases continued
    Cite as: 561 U. S. ____ (2010)                17
    STEVENS, J., dissenting
    to rely on more than history).16
    The Court’s flight from Palko leaves its analysis, careful
    and scholarly though it is, much too narrow to provide a
    satisfying answer to this case. The Court hinges its entire
    decision on one mode of intellectual history, culling se­
    lected pronouncements and enactments from the 18th and
    19th centuries to ascertain what Americans thought about
    firearms. Relying on Duncan and Glucksberg, the plural­
    ity suggests that only interests that have proved “funda­
    mental from an American perspective,” ante, at 37, 44, or
    “ ‘deeply rooted in this Nation’s history and tradition,’ ”
    ante, at 19 (quoting Glucksberg, 521 U. S., at 721), to the
    Court’s satisfaction, may qualify for incorporation into the
    Fourteenth Amendment. To the extent the Court’s opin­
    ion could be read to imply that the historical pedigree of a
    right is the exclusive or dispositive determinant of its
    status under the Due Process Clause, the opinion is seri­
    ously mistaken.
    A rigid historical test is inappropriate in this case, most
    basically, because our substantive due process doctrine
    has never evaluated substantive rights in purely, or even
    predominantly, historical terms. When the Court applied
    many of the procedural guarantees in the Bill of Rights to
    the States in the 1960’s, it often asked whether the guar­
    antee in question was “fundamental in the context of the
    criminal processes maintained by the American States.”17
    ——————
    16 I acknowledge that some have read the Court’s opinion in Glucks­
    berg as an attempt to move substantive due process analysis, for all
    purposes, toward an exclusively historical methodology—and thereby to
    debilitate the doctrine. If that were ever Glucksberg’s aspiration,
    Lawrence plainly renounced it. As between Glucksberg and Lawrence, I
    have little doubt which will prove the more enduring precedent.
    17 The Court almost never asked whether the guarantee in question
    was deeply rooted in founding-era practice. See Brief for Respondent
    City of Chicago et al. 31, n. 17 (hereinafter Municipal Respondents’
    Brief) (noting that only two opinions extensively discussed such his­
    tory).
    18                     MCDONALD v. CHICAGO
    STEVENS, J., dissenting
    Duncan, 
    391 U. S., at 150, n. 14
    . That inquiry could ex­
    tend back through time, but it was focused not so much on
    historical conceptions of the guarantee as on its functional
    significance within the States’ regimes. This contextual­
    ized approach made sense, as the choice to employ any
    given trial-type procedure means little in the abstract. It
    is only by inquiring into how that procedure intermeshes
    with other procedures and practices in a criminal justice
    system that its relationship to “liberty” and “due process”
    can be determined.
    Yet when the Court has used the Due Process Clause to
    recognize rights distinct from the trial context—rights
    relating to the primary conduct of free individuals—
    Justice Cardozo’s test has been our guide. The right to
    free speech, for instance, has been safeguarded from state
    infringement not because the States have always honored
    it, but because it is “essential to free government” and “to
    the maintenance of democratic institutions”—that is,
    because the right to free speech is implicit in the concept
    of ordered liberty. Thornhill v. Alabama, 
    310 U. S. 88
    , 95,
    96 (1940); see also, e.g., Loving, 
    388 U. S., at 12
     (discuss­
    ing right to marry person of another race); Mapp v. Ohio,
    
    367 U. S. 643
    , 650, 655–657 (1961) (discussing right to be
    free from arbitrary intrusion by police); Schneider v. State
    (Town of Irvington), 
    308 U. S. 147
    , 161 (1939) (discussing
    right to distribute printed matter).18 While the verbal
    formula has varied, the Court has largely been consistent
    in its liberty-based approach to substantive interests
    outside of the adjudicatory system. As the question before
    ——————
    18 Cf. Robinson v. California, 
    370 U. S. 660
    , 666–668 (1962) (invalidat­
    ing state statute criminalizing narcotics addiction as “cruel and unusual
    punishment in violation of the Fourteenth Amendment” based on nature
    of the alleged “ ‘crime,’ ” without historical analysis); Brief for Respon­
    dent National Rifle Association of America, Inc., et al. 29 (noting that
    “lynchpin” of incorporation test has always been “the importance of the
    right in question to . . . ‘liberty’ ” and to our “system of government”).
    Cite as: 561 U. S. ____ (2010)                     19
    STEVENS, J., dissenting
    us indisputably concerns such an interest, the answer
    cannot be found in a granular inspection of state constitu­
    tions or congressional debates.
    More fundamentally, a rigid historical methodology is
    unfaithful to the Constitution’s command. For if it were
    really the case that the Fourteenth Amendment’s guaran­
    tee of liberty embraces only those rights “so rooted in our
    history, tradition, and practice as to require special protec­
    tion,” Glucksberg, 521 U. S., at 721, n. 17, then the guar­
    antee would serve little function, save to ratify those
    rights that state actors have already been according the
    most extensive protection.19 Cf. Duncan, 
    391 U. S., at 183
    (Harlan, J., dissenting) (critiquing “circular[ity]” of his­
    toricized test for incorporation). That approach is unfaith­
    ful to the expansive principle Americans laid down when
    they ratified the Fourteenth Amendment and to the level
    of generality they chose when they crafted its language; it
    promises an objectivity it cannot deliver and masks the
    value judgments that pervade any analysis of what cus­
    toms, defined in what manner, are sufficiently “ ‘rooted’ ”;
    it countenances the most revolting injustices in the name
    of continuity,20 for we must never forget that not only
    slavery but also the subjugation of women and other rank
    forms of discrimination are part of our history; and it
    effaces this Court’s distinctive role in saying what the law
    is, leaving the development and safekeeping of liberty to
    majoritarian political processes. It is judicial abdication in
    ——————
    19 I do not mean to denigrate this function, or to imply that only “new
    rights”—whatever one takes that term to mean—ought to “get in” the
    substantive due process door. Ante, at 5 (SCALIA, J., concurring).
    20 See Bowers v. Hardwick, 
    478 U. S. 186
    , 199 (1986) (Blackmun, J.,
    dissenting) (“Like Justice Holmes, I believe that ‘[i]t is revolting to have
    no better reason for a rule of law than that so it was laid down in the
    time of Henry IV. It is still more revolting if the grounds upon which it
    was laid down have vanished long since, and the rule simply persists
    from blind imitation of the past’ ” (quoting Holmes, The Path of the
    Law, 
    10 Harv. L. Rev. 457
    , 469 (1897))).
    20                    MCDONALD v. CHICAGO
    STEVENS, J., dissenting
    the guise of judicial modesty.
    No, the liberty safeguarded by the Fourteenth Amend­
    ment is not merely preservative in nature but rather is a
    “dynamic concept.” Stevens, The Bill of Rights: A Century
    of Progress, 
    59 U. Chi. L. Rev. 13
    , 38 (1972). Its dyna­
    mism provides a central means through which the Fram­
    ers enabled the Constitution to “endure for ages to come,”
    McCulloch v. Maryland, 
    4 Wheat. 316
    , 415 (1819), a cen­
    tral example of how they “wisely spoke in general lan­
    guage and left to succeeding generations the task of apply­
    ing that language to the unceasingly changing
    environment in which they would live,” Rehnquist, The
    Notion of a Living Constitution, 
    54 Tex. L. Rev. 693
    , 694
    (1976). “The task of giving concrete meaning to the term
    ‘liberty,’ ” I have elsewhere explained at some length, “was
    a part of the work assigned to future generations.” Ste­
    vens, The Third Branch of Liberty, 
    41 U. Miami L. Rev. 277
    , 291 (1986).21 The judge who would outsource the
    interpretation of “liberty” to historical sentiment has
    turned his back on a task the Constitution assigned to him
    and drained the document of its intended vitality.22
    ——————
    21 JUSTICE  KENNEDY has made the point movingly:
    “Had those who drew and ratified the Due Process Clauses of the
    Fifth Amendment or the Fourteenth Amendment known the compo­
    nents of liberty in its manifold possibilities, they might have been more
    specific. They did not presume to have this insight. They knew times
    can blind us to certain truths and later generations can see that laws
    once thought necessary and proper in fact serve only to oppress. As the
    Constitution endures, persons in every generation can invoke its
    principles in their own search for greater freedom.” Lawrence, 
    539 U. S., at
    578–579.
    22 Contrary to JUSTICE SCALIA’s suggestion, I emphatically do not
    believe that “only we judges” can interpret the Fourteenth Amendment,
    ante, at 4, or any other constitutional provision. All Americans can; all
    Americans should. I emphatically do believe that we judges must
    exercise—indeed, cannot help but exercise—our own reasoned judg­
    ment in so doing. JUSTICE SCALIA and I are on common ground in
    maintaining that courts should be “guided by what the American
    Cite as: 561 U. S. ____ (2010)                    21
    STEVENS, J., dissenting
    III
    At this point a difficult question arises. In considering
    such a majestic term as “liberty” and applying it to present
    circumstances, how are we to do justice to its urgent call
    and its open texture—and to the grant of interpretive
    discretion the latter embodies—without injecting excessive
    subjectivity or unduly restricting the States’ “broad lati­
    tude in experimenting with possible solutions to problems
    of vital local concern,” Whalen v. Roe, 
    429 U. S. 589
    , 597
    (1977)? One part of the answer, already discussed, is that
    we must ground the analysis in historical experience and
    reasoned judgment, and never on “merely personal and
    private notions.” Rochin v. California, 
    342 U. S. 165
    , 170
    (1952). Our precedents place a number of additional
    constraints on the decisional process. Although “guide­
    posts for responsible decisionmaking in this unchartered
    area are scarce and open-ended,” Collins v. Harker
    Heights, 
    503 U. S. 115
    , 125 (1992), significant guideposts
    do exist.23
    ——————
    people throughout our history have thought.” 
    Ibid.
     Where we part
    ways is in his view that courts should be guided only by historical
    considerations.
    There is, moreover, a tension between JUSTICE SCALIA’s concern that
    “courts have the last word” on constitutional questions, ante, at 3, n. 2,
    on the one hand, and his touting of the Constitution’s Article V amend­
    ment process, ante, at 3, on the other. The American people can of
    course reverse this Court’s rulings through that same process.
    23 In assessing concerns about the “open-ended[ness]” of this area of
    law, Collins, 
    503 U. S., at 125
    , one does well to keep in view the malle­
    ability not only of the Court’s “deeply rooted”/fundamentality standard
    but also of substantive due process’ constitutional cousin, “equal
    protection” analysis. Substantive due process is sometimes accused of
    entailing an insufficiently “restrained methodology.” Glucksberg, 
    521 U. S., at 721
    . Yet “the word ‘liberty’ in the Due Process Clause seems to
    provide at least as much meaningful guidance as does the word ‘equal’
    in the Equal Protection Clause.” Post, The Supreme Court 2002
    Term—Foreword: Fashioning the Legal Constitution: Culture, Courts,
    and Law, 
    117 Harv. L. Rev. 4
    , 94, n. 440 (2003). And “[i]f the objection
    22                    MCDONALD v. CHICAGO
    STEVENS, J., dissenting
    The most basic is that we have eschewed attempts to
    provide any all-purpose, top-down, totalizing theory of
    “liberty.”24 That project is bound to end in failure or
    worse. The Framers did not express a clear understand­
    ing of the term to guide us, and the now-repudiated
    Lochner line of cases attests to the dangers of judicial
    overconfidence in using substantive due process to ad­
    vance a broad theory of the right or the good. See, e.g.,
    Lochner v. New York, 
    198 U. S. 45
     (1905). In its most
    durable precedents, the Court “has not attempted to define
    with exactness the liberty . . . guaranteed” by the Four­
    teenth Amendment. Meyer, 
    262 U. S., at 399
    ; see also,
    e.g., Bolling, 347 U. S, at 499. By its very nature, the
    meaning of liberty cannot be “reduced to any formula; its
    content cannot be determined by reference to any code.”
    Poe, 
    367 U. S., at 542
     (Harlan, J., dissenting).
    Yet while “the ‘liberty’ specially protected by the Four­
    teenth Amendment” is “perhaps not capable of being fully
    clarified,” Glucksberg, 
    521 U. S., at 722
    , it is capable of
    being refined and delimited. We have insisted that only
    certain types of especially significant personal interests
    may qualify for especially heightened protection. Ever
    since “the deviant economic due process cases [were]
    repudiated,” 
    id., at 761
     (Souter, J., concurring in judg­
    ——————
    is that the text of the [Due Process] Clause warrants providing only
    protections of process rather than protections of substance,” “it is
    striking that even those Justices who are most theoretically opposed to
    substantive due process, like Scalia and Rehnquist, are also nonethe­
    less enthusiastic about applying the equal protection component of the
    Due Process Clause of the Fifth Amendment to the federal govern­
    ment.” 
    Ibid.
     (citing Adarand Constructors, Inc. v. Peña, 
    515 U. S. 200
    ,
    213–231 (1995)).
    24 That one eschews a comprehensive theory of liberty does not, pace
    JUSTICE SCALIA, mean that one lacks “a coherent theory of the Due
    Process Clause,” ante, at 5. It means that one lacks the hubris to adopt
    a rigid, context-independent definition of a constitutional guarantee
    that was deliberately framed in open-ended terms.
    Cite as: 561 U. S. ____ (2010)           23
    STEVENS, J., dissenting
    ment), our doctrine has steered away from “laws that
    touch economic problems, business affairs, or social condi­
    tions,” Griswold, 
    381 U. S., at 482
    , and has instead cen­
    tered on “matters relating to marriage, procreation, con­
    traception, family relationships, and child rearing and
    education,” Paul v. Davis, 
    424 U. S. 693
    , 713 (1976).
    These categories are not exclusive. Government action
    that shocks the conscience, pointlessly infringes settled
    expectations, trespasses into sensitive private realms or
    life choices without adequate justification, perpetrates
    gross injustice, or simply lacks a rational basis will always
    be vulnerable to judicial invalidation. Nor does the fact
    that an asserted right falls within one of these categories
    end the inquiry. More fundamental rights may receive
    more robust judicial protection, but the strength of the
    individual’s liberty interests and the State’s regulatory
    interests must always be assessed and compared. No
    right is absolute.
    Rather than seek a categorical understanding of the
    liberty clause, our precedents have thus elucidated a
    conceptual core. The clause safeguards, most basically,
    “the ability independently to define one’s identity,” Roberts
    v. United States Jaycees, 
    468 U. S. 609
    , 619 (1984), “the
    individual’s right to make certain unusually important
    decisions that will affect his own, or his family’s, destiny,”
    Fitzgerald, 
    523 F. 2d, at 719
    , and the right to be respected
    as a human being. Self-determination, bodily integrity,
    freedom of conscience, intimate relationships, political
    equality, dignity and respect—these are the central values
    we have found implicit in the concept of ordered liberty.
    Another key constraint on substantive due process
    analysis is respect for the democratic process. If a particu­
    lar liberty interest is already being given careful consid­
    eration in, and subjected to ongoing calibration by, the
    States, judicial enforcement may not be appropriate.
    When the Court declined to establish a general right to
    24                MCDONALD v. CHICAGO
    STEVENS, J., dissenting
    physician-assisted suicide, for example, it did so in part
    because “the States [were] currently engaged in serious,
    thoughtful examinations of physician-assisted suicide and
    other similar issues,” rendering judicial intervention both
    less necessary and potentially more disruptive. Glucks­
    berg, 521 U. S., at 719, 735. Conversely, we have long
    appreciated that more “searching” judicial review may be
    justified when the rights of “discrete and insular minori­
    ties”—groups that may face systematic barriers in the
    political system—are at stake. United States v. Carolene
    Products Co., 
    304 U. S. 144
    , 153, n. 4 (1938). Courts have
    a “comparative . . . advantage” over the elected branches
    on a limited, but significant, range of legal matters. Post,
    at 8.
    Recognizing a new liberty right is a momentous step. It
    takes that right, to a considerable extent, “outside the
    arena of public debate and legislative action.” Glucksberg,
    521 U. S., at 720. Sometimes that momentous step must
    be taken; some fundamental aspects of personhood, dig­
    nity, and the like do not vary from State to State, and
    demand a baseline level of protection. But sensitivity to
    the interaction between the intrinsic aspects of liberty and
    the practical realities of contemporary society provides an
    important tool for guiding judicial discretion.
    This sensitivity is an aspect of a deeper principle: the
    need to approach our work with humility and caution.
    Because the relevant constitutional language is so “spa­
    cious,” Duncan, 
    391 U. S., at 148
    , I have emphasized that
    “[t]he doctrine of judicial self-restraint requires us to
    exercise the utmost care whenever we are asked to break
    new ground in this field.” Collins, 
    503 U. S., at 125
    . Many
    of my colleagues and predecessors have stressed the same
    point, some with great eloquence. See, e.g., Casey, 
    505 U. S., at 849
    ; Moore v. East Cleveland, 
    431 U. S. 494
    , 502–
    503 (1977) (plurality opinion); Poe, 
    367 U. S., at
    542–545
    (Harlan, J., dissenting); Adamson v. California, 332 U. S.
    Cite as: 561 U. S. ____ (2010)          25
    STEVENS, J., dissenting
    46, 68 (1947) (Frankfurter, J., concurring). Historical
    study may discipline as well as enrich the analysis. But
    the inescapable reality is that no serious theory of Section
    1 of the Fourteenth Amendment yields clear answers in
    every case, and “[n]o formula could serve as a substitute,
    in this area, for judgment and restraint.” Poe, 367 U. S.,
    at 542 (Harlan, J., dissenting).
    Several rules of the judicial process help enforce such
    restraint. In the substantive due process field as in oth­
    ers, the Court has applied both the doctrine of stare de­
    cisis—adhering to precedents, respecting reliance inter­
    ests, prizing stability and order in the law—and the
    common-law method—taking cases and controversies as
    they present themselves, proceeding slowly and incremen­
    tally, building on what came before. This restrained
    methodology was evident even in the heyday of “incorpora­
    tion” during the 1960’s. Although it would have been
    much easier for the Court simply to declare certain
    Amendments in the Bill of Rights applicable to the States
    in toto, the Court took care to parse each Amendment into
    its component guarantees, evaluating them one by one.
    This piecemeal approach allowed the Court to scrutinize
    more closely the right at issue in any given dispute, reduc­
    ing both the risk and the cost of error.
    Relatedly, rather than evaluate liberty claims on an
    abstract plane, the Court has “required in substantive­
    due-process cases a ‘careful description’ of the asserted
    fundamental liberty interest.” Glucksberg, 
    521 U. S., at 721
     (quoting Reno v. Flores, 
    507 U. S. 292
    , 302 (1993);
    Collins, 
    503 U. S., at 125
    ; Cruzan v. Director, Mo. Dept. of
    Health, 
    497 U. S. 261
    , 277–278 (1990)). And just as we
    have required such careful description from the litigants,
    we have required of ourselves that we “focus on the allega­
    tions in the complaint to determine how petitioner de­
    scribes the constitutional right at stake.” Collins, 
    503 U. S., at 125
    ; see also Stevens, Judicial Restraint, 22 San
    26                     MCDONALD v. CHICAGO
    STEVENS, J., dissenting
    Diego L. Rev. 437, 446–448 (1985). This does not mean
    that we must define the asserted right at the most specific
    level, thereby sapping it of a universal valence and a
    moral force it might otherwise have.25 It means, simply,
    that we must pay close attention to the precise liberty
    interest the litigants have asked us to vindicate.
    Our holdings should be similarly tailored. Even if the
    most expansive formulation of a claim does not qualify for
    substantive due process recognition, particular compo­
    nents of the claim might. Just because there may not be a
    categorical right to physician-assisted suicide, for exam­
    ple, does not “ ‘foreclose the possibility that an individual
    plaintiff seeking to hasten her death, or a doctor whose
    assistance was sought, could prevail in a more particular­
    ized challenge.’ ” Glucksberg, 
    521 U. S., at 735, n. 24
    (quoting 
    id., at 750
     (STEVENS, J., concurring in judg­
    ments)); see also Vacco v. Quill, 
    521 U. S. 793
    , 809, n. 13
    (1997) (leaving open “ ‘the possibility that some applica­
    tions of the [New York prohibition on assisted suicide]
    may impose an intolerable intrusion on the patient’s free­
    dom’ ”). Even if a State’s interest in regulating a certain
    matter must be permitted, in the general course, to trump
    the individual’s countervailing liberty interest, there may
    ——————
    25 The notion that we should define liberty claims at the most specific
    level available is one of JUSTICE SCALIA’s signal contributions to the
    theory of substantive due process. See, e.g., Michael H. v. Gerald D.,
    
    491 U. S. 110
    , 127–128, n. 6 (1989) (opinion of SCALIA, J.); ante, at 7
    (opinion of SCALIA, J.). By so narrowing the asserted right, this ap­
    proach “loads the dice” against its recognition, Roosevelt, Forget the
    Fundamentals: Fixing Substantive Due Process, 
    8 U. Pa. J. Const. L. 983
    , 1002, n. 73 (2006): When one defines the liberty interest at issue in
    Lawrence as the freedom to perform specific sex acts, ante, at 2, the
    interest starts to look less compelling. The Court today does not follow
    JUSTICE SCALIA’s “particularizing” method, Katzenbach v. Morgan, 
    384 U. S. 641
    , 649 (1966), as it relies on general historical references to
    keeping and bearing arms, without any close study of the States’
    practice of regulating especially dangerous weapons.
    Cite as: 561 U. S. ____ (2010)                      27
    STEVENS, J., dissenting
    still be situations in which the latter “is entitled to consti­
    tutional protection.”      Glucksberg, 
    521 U. S., at 742
    (STEVENS, J., concurring in judgments).
    As this discussion reflects, to acknowledge that the task
    of construing the liberty clause requires judgment is not to
    say that it is a license for unbridled judicial lawmaking.
    To the contrary, only an honest reckoning with our discre­
    tion allows for honest argumentation and meaningful
    accountability.
    IV
    The question in this case, then, is not whether the Sec­
    ond Amendment right to keep and bear arms (whatever
    that right’s precise contours) applies to the States because
    the Amendment has been incorporated into the Four­
    teenth Amendment. It has not been. The question,
    rather, is whether the particular right asserted by peti­
    tioners applies to the States because of the Fourteenth
    Amendment itself, standing on its own bottom. And to
    answer that question, we need to determine, first, the
    nature of the right that has been asserted and, second,
    whether that right is an aspect of Fourteenth Amendment
    “liberty.” Even accepting the Court’s holding in Heller, it
    remains entirely possible that the right to keep and bear
    arms identified in that opinion is not judicially enforceable
    against the States, or that only part of the right is so
    enforceable.26 It is likewise possible for the Court to find
    ——————
    26 In District of Columbia v. Heller, 554 U. S. ___, ___ (slip op., at 22),
    the Court concluded, over my dissent, that the Second Amendment
    confers “an individual right to keep and bear arms” disconnected from
    militia service. If that conclusion were wrong, then petitioners’ “incor­
    poration” claim clearly would fail, as they would hold no right against
    the Federal Government to be free from regulations such as the ones
    they challenge. Cf. post, at 8. I do not understand petitioners or any of
    their amici to dispute this point. Yet even if Heller had never been
    decided—indeed, even if the Second Amendment did not exist—we
    would still have an obligation to address petitioners’ Fourteenth
    28                   MCDONALD v. CHICAGO
    STEVENS, J., dissenting
    in this case that some part of the Heller right applies to
    the States, and then to find in later cases that other parts
    of the right also apply, or apply on different terms.
    As noted at the outset, the liberty interest petitioners
    have asserted is the “right to possess a functional, per­
    sonal firearm, including a handgun, within the home.”
    Complaint ¶34, App. 23. The city of Chicago allows resi­
    dents to keep functional firearms, so long as they are
    registered, but it generally prohibits the possession of
    handguns, sawed-off shotguns, machine guns, and short­
    barreled rifles. See Chicago, Ill., Municipal Code §8–20–
    050 (2009).27 Petitioners’ complaint centered on their
    desire to keep a handgun at their domicile—it references
    the “home” in nearly every paragraph, see Complaint ¶¶3–
    4, 11–30, 32, 34, 37, 42, 44, 46, App. 17, 19–26—as did
    their supporting declarations, see, e.g., App. 34, 36, 40, 43,
    49–52, 54–56. Petitioners now frame the question that
    confronts us as “[w]hether the Second Amendment right to
    keep and bear arms is incorporated as against the States
    by the Fourteenth Amendment’s Privileges or Immunities
    or Due Process Clauses.” Brief for Petitioners, p. i. But it
    is our duty “to focus on the allegations in the complaint to
    determine how petitioner describes the constitutional
    right at stake,” Collins, 
    503 U. S., at 125
    , and the
    gravamen of this complaint is plainly an appeal to keep a
    handgun or other firearm of one’s choosing in the home.
    Petitioners’ framing of their complaint tracks the
    Court’s ruling in Heller. The majority opinion contained
    some dicta suggesting the possibility of a more expansive
    ——————
    Amendment claim.
    27 The village of Oak Park imposes more stringent restrictions that
    may raise additional complications. See ante, at 2 (majority opinion)
    (quoting Oak Park, Ill., Municipal Code §§27–2–1 (2007), 27–1–1
    (2009)). The Court, however, declined to grant certiorari on the Na­
    tional Rifle Association’s challenge to the Oak Park restrictions.
    Chicago is the only defendant in this case.
    Cite as: 561 U. S. ____ (2010)                     29
    STEVENS, J., dissenting
    arms-bearing right, one that would travel with the indi­
    vidual to an extent into public places, as “in case of con­
    frontation.” 554 U. S., at ___ (slip op., at 19). But the
    Heller plaintiff sought only dispensation to keep an oper­
    able firearm in his home for lawful self-defense, see id., at
    ___ (slip op., at 2, and n. 2), and the Court’s opinion was
    bookended by reminders that its holding was limited to
    that one issue, id., at ___, ___ (slip op., at 1, 64); accord,
    ante, at 44 (plurality opinion). The distinction between
    the liberty right these petitioners have asserted and the
    Second Amendment right identified in Heller is therefore
    evanescent. Both are rooted to the home. Moreover, even
    if both rights have the logical potential to extend further,
    upon “future evaluation,” Heller, 554 U. S., at ___ (slip op.,
    at 63), it is incumbent upon us, as federal judges contem­
    plating a novel rule that would bind all 50 States, to pro­
    ceed cautiously and to decide only what must be decided.
    Understood as a plea to keep their preferred type of
    firearm in the home, petitioners’ argument has real
    force.28 The decision to keep a loaded handgun in the
    house is often motivated by the desire to protect life, lib­
    erty, and property. It is comparable, in some ways, to
    decisions about the education and upbringing of one’s
    children. For it is the kind of decision that may have
    profound consequences for every member of the family,
    and for the world beyond. In considering whether to keep
    a handgun, heads of households must ask themselves
    whether the desired safety benefits outweigh the risks of
    deliberate or accidental misuse that may result in death or
    serious injury, not only to residents of the home but to
    ——————
    28 To the extent that petitioners contend the city of Chicago’s registra­
    tion requirements for firearm possessors also, and separately, violate
    the Constitution, that claim borders on the frivolous. Petitioners make
    no effort to demonstrate that the requirements are unreasonable or
    that they impose a severe burden on the underlying right they have
    asserted.
    30                    MCDONALD v. CHICAGO
    STEVENS, J., dissenting
    others as well. Millions of Americans have answered this
    question in the affirmative, not infrequently because they
    believe they have an inalienable right to do so—because
    they consider it an aspect of “the supreme human dignity
    of being master of one’s fate rather than a ward of the
    State,” Indiana v. Edwards, 
    554 U. S. 164
    , 186 (2008)
    (SCALIA, J., dissenting). Many such decisions have been
    based, in part, on family traditions and deeply held beliefs
    that are an aspect of individual autonomy the government
    may not control.29
    Bolstering petitioners’ claim, our law has long recog­
    nized that the home provides a kind of special sanctuary
    in modern life. See, e.g., U. S. Const., Amdts. 3, 4; Law­
    rence, 
    539 U. S., at 562, 567
    ; Payton v. New York, 
    445 U. S. 573
    , 585–590 (1980); Stanley v. Georgia, 
    394 U. S. 557
    , 565–568 (1969); Griswold, 
    381 U. S., at
    484–485.
    Consequently, we have long accorded special deference to
    the privacy of the home, whether a humble cottage or a
    magnificent manse. This veneration of the domestic hark­
    ens back to the common law. William Blackstone recog­
    nized a “right of habitation,” 4 Commentaries *223, and
    opined that “every man’s house is looked upon by the law
    to be his castle of defence and asylum,” 3 id., at *288.
    Heller carried forward this legacy, observing that “the
    need for defense of self, family, and property is most
    acute” in one’s abode, and celebrating “the right of law­
    abiding, responsible citizens to use arms in defense of
    hearth and home.” 554 U. S., at ___, ___ (slip op., at 56,
    63).
    While the individual’s interest in firearm possession is
    thus heightened in the home, the State’s corresponding
    interest in regulation is somewhat weaker. The State
    ——————
    29 Members of my generation, at least, will recall the many passionate
    statements of this view made by the distinguished actor, Charlton
    Heston.
    Cite as: 561 U. S. ____ (2010)                   31
    STEVENS, J., dissenting
    generally has a lesser basis for regulating private as com­
    pared to public acts, and firearms kept inside the home
    generally pose a lesser threat to public welfare as com­
    pared to firearms taken outside. The historical case for
    regulation is likewise stronger outside the home, as many
    States have for many years imposed stricter, and less
    controversial, restrictions on the carriage of arms than on
    their domestic possession. See, e.g., id., at ___ (slip op., at
    54) (noting that “the majority of the 19th-century courts to
    consider the question held that prohibitions on carrying
    concealed weapons were lawful under the Second Amend­
    ment or state analogues”); English v. State, 
    35 Tex. 473
    ,
    478–479 (1871) (observing that “almost, if not every one of
    the States of this Union have [a prohibition on the carry­
    ing of deadly weapons] upon their statute books,” and
    lambasting claims of a right to carry such weapons as
    “little short of ridiculous”); Miller, Guns as Smut: Defend­
    ing the Home-Bound Second Amendment, 
    109 Colum. L. Rev. 1278
    , 1321–1336 (2009).
    It is significant, as well, that a rule limiting the federal
    constitutional right to keep and bear arms to the home
    would be less intrusive on state prerogatives and easier to
    administer. Having unleashed in Heller a tsunami of legal
    uncertainty, and thus litigation,30 and now on the cusp of
    imposing a national rule on the States in this area for the
    first time in United States history, the Court could at least
    moderate the confusion, upheaval, and burden on the
    States by adopting a rule that is clearly and tightly
    ——————
    30 See  Municipal Respondents’ Brief 20, n. 11 (stating that at least
    156 Second Amendment challenges were brought in time between
    Heller’s issuance and brief’s filing); Brady Center Brief 3 (stating that
    over 190 Second Amendment challenges were brought in first 18
    months since Heller); Brief for Villages of Winnetka and Skokie, Illi­
    nois, et al. as Amici Curiae 15 (stating that, in wake of Heller, munici­
    palities have “repealed longstanding handgun laws to avoid costly
    litigation”).
    32                     MCDONALD v. CHICAGO
    STEVENS, J., dissenting
    bounded in scope.
    In their briefs to this Court, several amici have sought
    to bolster petitioners’ claim still further by invoking a
    right to individual self-defense.31 As petitioners note, the
    Heller majority discussed this subject extensively and
    remarked that “[t]he inherent right of self-defense has
    been central to the Second Amendment right.” 554 U. S.,
    at ___ (slip op., at 56). And it is true that if a State were
    to try to deprive its residents of any reasonable means of
    defending themselves from imminent physical threats, or
    to deny persons any ability to assert self-defense in re­
    sponse to criminal prosecution, that might pose a signifi­
    cant constitutional problem. The argument that there is a
    substantive due process right to be spared such untenable
    dilemmas is a serious one.32
    ——————
    31 See, e.g., Brief for Professors of Philosophy, Criminology, Law, and
    Other Fields as Amici Curiae; Brief for International Law Enforcement
    Educators and Trainers Association et al. as Amici Curiae 29–45; Brief
    for 34 California District Attorneys et al. as Amici Curiae 12–31.
    32 The argument that this Court should establish any such right,
    however, faces steep hurdles. All 50 States already recognize self­
    defense as a defense to criminal prosecution, see 2 P. Robinson, Crimi­
    nal Law Defenses §132, p. 96 (1984 and Supp. 2009), so this is hardly
    an interest to which the democratic process has been insensitive. And
    the States have always diverged on how exactly to implement this
    interest, so there is wide variety across the Nation in the types and
    amounts of force that may be used, the necessity of retreat, the rights of
    aggressors, the availability of the “castle doctrine,” and so forth. See
    Brief for Oak Park Citizens Committee for Handgun Control as Amicus
    Curiae 9–21; Brief for American Cities et al. as Amici Curiae 17–19; 2
    W. LaFave, Substantive Criminal Law §10.4, pp. 142–160 (2d ed. 2003).
    Such variation is presumed to be a healthy part of our federalist
    system, as the States and localities select different rules in light of
    different priorities, customs, and conditions.
    As a historical and theoretical matter, moreover, the legal status of
    self-defense is far more complicated than it might first appear. We
    have generally understood Fourteenth Amendment “liberty” as some­
    thing one holds against direct state interference, whereas a personal
    right of self-defense runs primarily against other individuals; absent
    Cite as: 561 U. S. ____ (2010)                     33
    STEVENS, J., dissenting
    But that is not the case before us. Petitioners have not
    asked that we establish a constitutional right to individual
    self-defense; neither their pleadings in the District Court
    nor their filings in this Court make any such request. Nor
    do petitioners contend that the city of Chicago—which,
    recall, allows its residents to keep most rifles and shot­
    guns, and to keep them loaded—has unduly burdened any
    such right. What petitioners have asked is that we “incor­
    porate” the Second Amendment and thereby establish a
    constitutional entitlement, enforceable against the States,
    to keep a handgun in the home.
    Of course, owning a handgun may be useful for practic­
    ing self-defense. But the right to take a certain type of
    action is analytically distinct from the right to acquire and
    utilize specific instrumentalities in furtherance of that
    action. And while some might favor handguns, it is not
    ——————
    government tyranny, it is only when the state has failed to interfere
    with (violent) private conduct that self-help becomes potentially neces­
    sary. Moreover, it was a basic tenet of founding-era political philosophy
    that, in entering civil society and gaining “the advantages of mutual
    commerce” and the protections of the rule of law, one had to relinquish,
    to a significant degree, “that wild and savage liberty” one possessed in
    the state of nature. 1 W. Blackstone, Commentaries *125; see also, e.g.,
    J. Locke, Second Treatise of Civil Government §128, pp. 63–64 (J.
    Gough ed. 1947) (in state of nature man has power “to do whatever he
    thinks fit for the preservation of himself and others,” but this “he gives
    up when he joins in a . . . particular political society”); Green v. Biddle,
    
    8 Wheat. 1
    , 63 (1823) (“It is a trite maxim, that man gives up a part of
    his natural liberty when he enters into civil society, as the price of the
    blessings of that state: and it may be said, with truth, that this liberty
    is well exchanged for the advantages which flow from law and justice”).
    Some strains of founding-era thought took a very narrow view of the
    right to armed self-defense. See, e.g., Brief of Historians on Early
    American Legal, Constitutional, and Pennsylvania History as Amici
    Curiae 6–13 (discussing Whig and Quaker theories). Just because
    there may be a natural or common-law right to some measure of self­
    defense, it hardly follows that States may not place substantial restric­
    tions on its exercise or that this Court should recognize a constitutional
    right to the same.
    34                     MCDONALD v. CHICAGO
    STEVENS, J., dissenting
    clear that they are a superior weapon for lawful self­
    defense, and nothing in petitioners’ argument turns on
    that being the case. The notion that a right of self-defense
    implies an auxiliary right to own a certain type of firearm
    presupposes not only controversial judgments about the
    strength and scope of the (posited) self-defense right, but
    also controversial assumptions about the likely effects
    of making that type of firearm more broadly available. It
    is a very long way from the proposition that the Four­
    teenth Amendment protects a basic individual right of
    self-defense to the conclusion that a city may not ban
    handguns.33
    In short, while the utility of firearms, and handguns in
    particular, to the defense of hearth and home is certainly
    relevant to an assessment of petitioners’ asserted right,
    there is no freestanding self-defense claim in this case.
    The question we must decide is whether the interest in
    keeping in the home a firearm of one’s choosing—a hand­
    gun, for petitioners—is one that is “comprised within the
    term liberty” in the Fourteenth Amendment. Whitney, 
    274 U. S., at 373
     (Brandeis, J., concurring).
    ——————
    33 The Second Amendment right identified in Heller is likewise clearly
    distinct from a right to protect oneself. In my view, the Court badly
    misconstrued the Second Amendment in linking it to the value of
    personal self-defense above and beyond the functioning of the state
    militias; as enacted, the Second Amendment was concerned with
    tyrants and invaders, and paradigmatically with the federal military,
    not with criminals and intruders. But even still, the Court made clear
    that self-defense plays a limited role in determining the scope and
    substance of the Amendment’s guarantee. The Court struck down the
    District of Columbia’s handgun ban not because of the utility of hand­
    guns for lawful self-defense, but rather because of their popularity for
    that purpose. See 554 U. S., at ___ (slip op., at 57–58). And the Court’s
    common-use gloss on the Second Amendment right, see 
    id.,
     at ___ (slip
    op., at 55), as well as its discussion of permissible limitations on the
    right, 
    id.,
     at ___ (slip op., at 54–55), had little to do with self-defense.
    Cite as: 561 U. S. ____ (2010)                  35
    STEVENS, J., dissenting
    V
    While I agree with the Court that our substantive due
    process cases offer a principled basis for holding that
    petitioners have a constitutional right to possess a usable
    fiream in the home, I am ultimately persuaded that a
    better reading of our case law supports the city of Chicago.
    I would not foreclose the possibility that a particular
    plaintiff—say, an elderly widow who lives in a dangerous
    neighborhood and does not have the strength to operate a
    long gun—may have a cognizable liberty interest in pos­
    sessing a handgun. But I cannot accept petitioners’
    broader submission. A number of factors, taken together,
    lead me to this conclusion.
    First, firearms have a fundamentally ambivalent rela­
    tionship to liberty. Just as they can help homeowners
    defend their families and property from intruders, they
    can help thugs and insurrectionists murder innocent
    victims. The threat that firearms will be misused is far
    from hypothetical, for gun crime has devastated many of
    our communities. Amici calculate that approximately one
    million Americans have been wounded or killed by gunfire
    in the last decade.34 Urban areas such as Chicago suffer
    disproportionately from this epidemic of violence. Hand­
    guns contribute disproportionately to it. Just as some
    homeowners may prefer handguns because of their small
    size, light weight, and ease of operation, some criminals
    will value them for the same reasons. See Heller, 554
    U. S., at ___ (BREYER, J., dissenting) (slip op., at 32–33).
    In recent years, handguns were reportedly used in more
    than four-fifths of firearm murders and more than half of
    ——————
    34 Brady  Center Brief 11 (extrapolating from Government statistics);
    see also Brief for American Public Health Association et al. as Amici
    Curiae 6–7 (reporting estimated social cost of firearm-related violence
    of $100 billion per year).
    36                     MCDONALD v. CHICAGO
    STEVENS, J., dissenting
    all murders nationwide.35
    Hence, in evaluating an asserted right to be free from
    particular gun-control regulations, liberty is on both sides
    of the equation. Guns may be useful for self-defense, as
    well as for hunting and sport, but they also have a unique
    potential to facilitate death and destruction and thereby to
    destabilize ordered liberty. Your interest in keeping and
    bearing a certain firearm may diminish my interest in
    being and feeling safe from armed violence. And while
    granting you the right to own a handgun might make you
    safer on any given day—assuming the handgun’s marginal
    contribution to self-defense outweighs its marginal contri­
    bution to the risk of accident, suicide, and criminal mis­
    chief—it may make you and the community you live in
    less safe overall, owing to the increased number of hand­
    guns in circulation. It is at least reasonable for a democ­
    ratically elected legislature to take such concerns into
    account in considering what sorts of regulations would
    best serve the public welfare.
    The practical impact of various gun-control measures
    may be highly controversial, but this basic insight should
    not be. The idea that deadly weapons pose a distinctive
    threat to the social order—and that reasonable restric­
    tions on their usage therefore impose an acceptable bur­
    den on one’s personal liberty—is as old as the Republic.
    As THE CHIEF JUSTICE observed just the other day, it is a
    foundational premise of modern government that the
    State holds a monopoly on legitimate violence: “A basic
    step in organizing a civilized society is to take [the] sword
    out of private hands and turn it over to an organized
    government, acting on behalf of all the people.” Robertson
    ——————
    35 Bogus, Gun Control and America’s Cities: Public Policy and Poli­
    tics, 1 Albany Govt. L. Rev. 440, 447 (2008) (drawing on FBI data); see
    also Heller, 554 U. S., at ___ (slip op., at 18–19) (BREYER, J., dissenting)
    (providing additional statistics on handgun violence); Municipal Re­
    spondents’ Brief 13–14 (same).
    Cite as: 561 U. S. ____ (2010)            37
    STEVENS, J., dissenting
    v. United States ex rel. Watson, ante, at ___ (slip op., at 11)
    (dissenting opinion). The same holds true for the hand­
    gun. The power a man has in the state of nature “of doing
    whatsoever he thought fit for the preservation of himself
    and the rest of mankind, he gives up,” to a significant
    extent, “to be regulated by laws made by the society.”
    J. Locke, Second Treatise of Civil Government §129, p. 64
    (J. Gough ed. 1947).
    Limiting the federal constitutional right to keep and
    bear arms to the home complicates the analysis but does
    not dislodge this conclusion. Even though the Court has
    long afforded special solicitude for the privacy of the home,
    we have never understood that principle to “infring[e]
    upon” the authority of the States to proscribe certain
    inherently dangerous items, for “[i]n such cases, compel­
    ling reasons may exist for overriding the right of the indi­
    vidual to possess those materials.” Stanley, 
    394 U. S., at 568, n. 11
    . And, of course, guns that start out in the home
    may not stay in the home. Even if the government has a
    weaker basis for restricting domestic possession of fire­
    arms as compared to public carriage—and even if a blan­
    ket, statewide prohibition on domestic possession might
    therefore be unconstitutional—the line between the two is
    a porous one. A state or local legislature may determine
    that a prophylactic ban on an especially portable weapon
    is necessary to police that line.
    Second, the right to possess a firearm of one’s choosing
    is different in kind from the liberty interests we have
    recognized under the Due Process Clause. Despite the
    plethora of substantive due process cases that have been
    decided in the post-Lochner century, I have found none
    that holds, states, or even suggests that the term “liberty”
    encompasses either the common-law right of self-defense
    or a right to keep and bear arms. I do not doubt for a
    moment that many Americans feel deeply passionate
    about firearms, and see them as critical to their way of life
    38                     MCDONALD v. CHICAGO
    STEVENS, J., dissenting
    as well as to their security. Nevertheless, it does not
    appear to be the case that the ability to own a handgun, or
    any particular type of firearm, is critical to leading a life of
    autonomy, dignity, or political equality: The marketplace
    offers many tools for self-defense, even if they are imper­
    fect substitutes, and neither petitioners nor their amici
    make such a contention. Petitioners’ claim is not the kind
    of substantive interest, accordingly, on which a uniform,
    judicially enforced national standard is presumptively
    appropriate.36
    Indeed, in some respects the substantive right at issue
    may be better viewed as a property right. Petitioners wish
    to acquire certain types of firearms, or to keep certain
    firearms they have previously acquired. Interests in the
    possession of chattels have traditionally been viewed as
    property interests subject to definition and regulation by
    the States. Cf. Stop the Beach Renourishment, Inc. v.
    Florida Dept. of Environmental Protection, 560 U. S. ___,
    ___ (2010) (slip op., at 1) (opinion of SCALIA, J.) (“Gener­
    ally speaking, state law defines property interests”).
    ——————
    36 JUSTICE SCALIA worries that there is no “objective” way to decide
    what is essential to a “liberty-filled” existence: Better, then, to ignore
    such messy considerations as how an interest actually affects people’s
    lives. Ante, at 10. Both the constitutional text and our cases use the
    term “liberty,” however, and liberty is not a purely objective concept.
    Substantive due process analysis does not require any “political”
    judgment, 
    ibid.
     It does require some amount of practical and norma­
    tive judgment. The only way to assess what is essential to fulfilling the
    Constitution’s guarantee of “liberty,” in the present day, is to provide
    reasons that apply to the present day. I have provided many; JUSTICE
    SCALIA and the Court have provided virtually none.
    JUSTICE SCALIA also misstates my argument when he refers to “the
    right to keep and bear arms,” without qualification. Ante, at 9. That is
    what the Second Amendment protects against Federal Government
    infringement. I have taken pains to show why the Fourteenth Amend­
    ment liberty interest asserted by petitioners—the interest in keeping a
    firearm of one’s choosing in the home—is not necessarily coextensive
    with the Second Amendment right.
    Cite as: 561 U. S. ____ (2010)                      39
    STEVENS, J., dissenting
    Under that tradition, Chicago’s ordinance is unexcep­
    tional.37
    The liberty interest asserted by petitioners is also dis­
    similar from those we have recognized in its capacity to
    undermine the security of others. To be sure, some of the
    Bill of Rights’ procedural guarantees may place “restric­
    tions on law enforcement” that have “controversial public
    safety implications.” Ante, at 36 (plurality opinion); see
    also ante, at 9 (opinion of SCALIA, J.). But those implica­
    tions are generally quite attenuated. A defendant’s invo­
    cation of his right to remain silent, to confront a witness,
    or to exclude certain evidence cannot directly cause any
    threat. The defendant’s liberty interest is constrained by
    (and is itself a constraint on) the adjudicatory process.
    The link between handgun ownership and public safety is
    much tighter. The handgun is itself a tool for crime; the
    handgun’s bullets are the violence.
    Similarly, it is undeniable that some may take profound
    offense at a remark made by the soapbox speaker, the
    practices of another religion, or a gay couple’s choice to
    have intimate relations. But that offense is moral, psycho­
    logical, or theological in nature; the actions taken by the
    ——————
    37 It has not escaped my attention that the Due Process Clause refers
    to “property” as well as “liberty.” Cf. ante, at 2, n. 1, 9–10, n. 6 (opinion
    of SCALIA, J.). Indeed, in Moore v. East Cleveland, 
    431 U. S. 494
     (1977)
    (plurality opinion), I alone viewed “the critical question” as “whether
    East Cleveland’s housing ordinance [was] a permissible restriction on
    appellant’s right to use her own property as she sees fit,” 
    id., at 513
    (opinion concurring in judgment). In that case, unlike in this case, the
    asserted property right was coextensive with a right to organize one’s
    family life, and I could find “no precedent” for the ordinance at issue,
    which “exclude[d] any of an owner’s relatives from the group of persons
    who may occupy his residence on a permanent basis.” 
    Id., at 520
    . I am
    open to property claims under the Fourteenth Amendment. This case
    just involves a weak one. And ever since the Court “incorporated” the
    more specific property protections of the Takings Clause in 1897, see
    Chicago, B. & Q. R. Co., 
    166 U. S. 226
    , substantive due process doctrine
    has focused on liberty.
    40                    MCDONALD v. CHICAGO
    STEVENS, J., dissenting
    rights-bearers do not actually threaten the physical safety
    of any other person.38 Firearms may be used to kill an­
    other person. If a legislature’s response to dangerous
    weapons ends up impinging upon the liberty of any indi­
    viduals in pursuit of the greater good, it invariably does so
    on the basis of more than the majority’s “ ‘own moral
    code,’ ” Lawrence, 
    539 U. S., at 571
     (quoting Casey, 
    505 U. S., at 850
    ). While specific policies may of course be
    misguided, gun control is an area in which it “is quite
    wrong . . . to assume that regulation and liberty occupy
    mutually exclusive zones—that as one expands, the other
    must contract.” Stevens, 41 U. Miami L. Rev., at 280.
    Third, the experience of other advanced democracies,
    including those that share our British heritage, undercuts
    the notion that an expansive right to keep and bear arms
    is intrinsic to ordered liberty. Many of these countries
    place restrictions on the possession, use, and carriage of
    firearms far more onerous than the restrictions found in
    this Nation. See Municipal Respondents’ Brief 21–23
    (discussing laws of England, Canada, Australia, Japan,
    Denmark, Finland, Luxembourg, and New Zealand). That
    the United States is an international outlier in the per­
    missiveness of its approach to guns does not suggest that
    our laws are bad laws. It does suggest that this Court
    may not need to assume responsibility for making our
    laws still more permissive.
    Admittedly, these other countries differ from ours in
    many relevant respects, including their problems with
    violent crime and the traditional role that firearms have
    played in their societies. But they are not so different
    from the United States that we ought to dismiss their
    experience entirely. Cf. ante, at 34–35 (plurality opinion);
    ante, at 10–11 (opinion of SCALIA, J.). The fact that our
    ——————
    38 Cf. Planned Parenthood of Southeastern Pa. v. Casey, 
    505 U. S. 833
    ,
    913–914 (1992) (STEVENS, J., concurring in part and dissenting in part).
    Cite as: 561 U. S. ____ (2010)                    41
    STEVENS, J., dissenting
    oldest allies have almost uniformly found it appropriate to
    regulate firearms extensively tends to weaken petitioners’
    submission that the right to possess a gun of one’s choos­
    ing is fundamental to a life of liberty. While the “Ameri­
    can perspective” must always be our focus, ante, at 37, 44
    (plurality opinion), it is silly—indeed, arrogant—to think
    we have nothing to learn about liberty from the billions of
    people beyond our borders.
    Fourth, the Second Amendment differs in kind from the
    Amendments that surround it, with the consequence that
    its inclusion in the Bill of Rights is not merely unhelpful
    but positively harmful to petitioners’ claim. Generally, the
    inclusion of a liberty interest in the Bill of Rights points
    toward the conclusion that it is of fundamental significance
    and ought to be enforceable against the States. But the
    Second Amendment plays a peculiar role within the Bill, as
    announced by its peculiar opening clause.39 Even accept­
    ing the Heller Court’s view that the Amendment protects
    an individual right to keep and bear arms disconnected
    from militia service, it remains undeniable that “the pur­
    pose for which the right was codified” was “to prevent
    elimination of the militia.” Heller, 554 U. S., at ___ (slip
    op., at 26); see also United States v. Miller, 
    307 U. S. 174
    ,
    178 (1939) (Second Amendment was enacted “[w]ith obvi­
    ous purpose to assure the continuation and render possible
    the effectiveness of [militia] forces”). It was the States, not
    private persons, on whose immediate behalf the Second
    Amendment was adopted. Notwithstanding the Heller
    Court’s efforts to write the Second Amendment’s preamble
    out of the Constitution, the Amendment still serves the
    structural function of protecting the States from en­
    croachment by an overreaching Federal Government.
    ——————
    39 The Second Amendment provides: “A well regulated Militia, being
    necessary to the security of a free State, the right of the people to keep
    and bear Arms, shall not be infringed.”
    42                     MCDONALD v. CHICAGO
    STEVENS, J., dissenting
    The Second Amendment, in other words, “is a federal­
    ism provision,” Elk Grove Unified School Dist. v. Newdow,
    
    542 U. S. 1
    , 45 (2004) (THOMAS, J., concurring in judg­
    ment). It is directed at preserving the autonomy of the
    sovereign States, and its logic therefore “resists” incorpo­
    ration by a federal court against the States. 
    Ibid.
     No one
    suggests that the Tenth Amendment, which provides that
    powers not given to the Federal Government remain with
    “the States,” applies to the States; such a reading would
    border on incoherent, given that the Tenth Amendment
    exists (in significant part) to safeguard the vitality of state
    governance. The Second Amendment is no different.40
    The Court is surely correct that Americans’ conceptions
    of the Second Amendment right evolved over time in a
    more individualistic direction; that Members of the Recon­
    struction Congress were urgently concerned about the
    safety of the newly freed slaves; and that some Members
    believed that, following ratification of the Fourteenth
    Amendment, the Second Amendment would apply to the
    States. But it is a giant leap from these data points to the
    conclusion that the Fourteenth Amendment “incorporated”
    the Second Amendment as a matter of original meaning or
    postenactment interpretation. Consider, for example, that
    the text of the Fourteenth Amendment says nothing about
    the Second Amendment or firearms; that there is substan­
    tial evidence to suggest that, when the Reconstruction
    Congress enacted measures to ensure newly freed slaves
    ——————
    40 Contrary to JUSTICE SCALIA’s suggestion, this point is perfectly
    compatible with my opinion for the Court in Elk Grove Unified School
    Dist. v. Newdow, 
    542 U. S. 1
     (2004). Cf. ante, at 11. Like the Court
    itself, I have never agreed with JUSTICE THOMAS’ view that the Estab­
    lishment Clause is a federalism provision. But I agree with his under­
    lying logic: If a clause in the Bill of Rights exists to safeguard federal­
    ism interests, then it makes little sense to “incorporate” it. JUSTICE
    SCALIA’s further suggestion that I ought to have revisited the Estab­
    lishment Clause debate in this opinion, ibid., is simply bizarre.
    Cite as: 561 U. S. ____ (2010)                  43
    STEVENS, J., dissenting
    and Union sympathizers in the South enjoyed the right to
    possess firearms, it was motivated by antidiscrimination
    and equality concerns rather than arms-bearing concerns
    per se;41 that many contemporaneous courts and commen­
    tators did not understand the Fourteenth Amendment to
    have had an “incorporating” effect; and that the States
    heavily regulated the right to keep and bear arms both
    before and after the Amendment’s passage. The Court’s
    narrative largely elides these facts. The complications
    they raise show why even the most dogged historical
    inquiry into the “fundamentality” of the Second Amend­
    ment right (or any other) necessarily entails judicial
    judgment—and therefore judicial discretion—every step of
    the way.
    I accept that the evolution in Americans’ understanding
    of the Second Amendment may help shed light on the
    question whether a right to keep and bear arms is com­
    prised within Fourteenth Amendment “liberty.” But the
    reasons that motivated the Framers to protect the ability
    of militiamen to keep muskets available for military use
    when our Nation was in its infancy, or that motivated the
    Reconstruction Congress to extend full citizenship to the
    freedmen in the wake of the Civil War, have only a limited
    bearing on the question that confronts the homeowner in a
    crime-infested metropolis today. The many episodes of
    ——————
    41 See post, at 24–25; Municipal Respondents’ Brief 62–69; Brief for
    34 Professional Historians and Legal Historians as Amici Curiae 22–
    26; Rosenthal, Second Amendment Plumbing After Heller: Of Stan­
    dards of Scrutiny, Incorporation, Well-Regulated Militias, and Criminal
    Street Gangs, 
    41 Urb. Law. 1
    , 73–75 (2009). The plurality insists that
    the Reconstruction-era evidence shows the right to bear arms was
    regarded as “a substantive guarantee, not a prohibition that could be
    ignored so long as the States legislated in an evenhanded manner.”
    Ante, at 33. That may be so, but it does not resolve the question
    whether the Fourteenth Amendment’s Due Process Clause was origi­
    nally understood to encompass a right to keep and bear arms, or
    whether it ought to be so construed now.
    44                 MCDONALD v. CHICAGO
    STEVENS, J., dissenting
    brutal violence against African-Americans that blight our
    Nation’s history, see ante, at 23–29 (majority opinion);
    ante, at 41–44, 53–55 (THOMAS, J., concurring in part and
    concurring in judgment), do not suggest that every Ameri­
    can must be allowed to own whatever type of firearm he or
    she desires—just that no group of Americans should be
    systematically and discriminatorily disarmed and left to
    the mercy of racial terrorists. And the fact that some
    Americans may have thought or hoped that the Four­
    teenth Amendment would nationalize the Second Amend­
    ment hardly suffices to justify the conclusion that it did.
    Fifth, although it may be true that Americans’ interest
    in firearm possession and state-law recognition of that
    interest are “deeply rooted” in some important senses,
    ante, at 19 (internal quotation marks omitted), it is
    equally true that the States have a long and unbroken
    history of regulating firearms. The idea that States may
    place substantial restrictions on the right to keep and bear
    arms short of complete disarmament is, in fact, far more
    entrenched than the notion that the Federal Constitution
    protects any such right. Federalism is a far “older and
    more deeply rooted tradition than is a right to carry,” or to
    own, “any particular kind of weapon.” 
    567 F. 3d 856
    , 860
    (CA7 2009) (Easterbrook, C. J.).
    From the early days of the Republic, through the Recon­
    struction era, to the present day, States and municipali­
    ties have placed extensive licensing requirements on
    firearm acquisition, restricted the public carriage of weap­
    ons, and banned altogether the possession of especially
    dangerous weapons, including handguns. See Heller, 554
    U. S., at ___ (BREYER, J., dissenting) (slip op., at 4–7)
    (reviewing colonial laws); Cornell & DeDino, A Well Regu­
    lated Right: The Early American Origins of Gun Control,
    
    73 Fordham L. Rev. 487
    , 502–516 (2004) (reviewing pre-
    Civil War laws); Brief for 34 Professional Historians and
    Legal Historians as Amici Curiae 4–22 (reviewing Recon­
    Cite as: 561 U. S. ____ (2010)                      45
    STEVENS, J., dissenting
    struction-era laws); Winkler, Scrutinizing the Second
    Amendment, 
    105 Mich. L. Rev. 683
    , 711–712, 716–726
    (2007) (reviewing 20th-century laws); see generally post,
    at 21–31.42 After the 1860’s just as before, the state courts
    almost uniformly upheld these measures: Apart from
    making clear that all regulations had to be constructed
    and applied in a nondiscriminatory manner, the Four­
    teenth Amendment hardly made a dent. And let us not
    forget that this Court did not recognize any non-militia­
    related interests under the Second Amendment until two
    Terms ago, in Heller. Petitioners do not dispute the city of
    Chicago’s observation that “[n]o other substantive Bill of
    Rights protection has been regulated nearly as intru­
    sively” as the right to keep and bear arms. Municipal
    Respondents’ Brief 25.43
    This history of intrusive regulation is not surprising
    given that the very text of the Second Amendment calls
    out for regulation,44 and the ability to respond to the social
    ——————
    42 I  am unclear what the plurality means when it refers to “the pau­
    city of precedent sustaining bans comparable to those at issue here.”
    Ante, at 39. There is only one ban at issue here—the city of Chicago’s
    handgun prohibition—and the municipal respondents cite far more
    than “one case,” ibid., from the post-Reconstruction period. See Mu­
    nicipal Respondents’ Brief 24–30. The evidence adduced by respon­
    dents and their amici easily establishes their contentions that the
    “consensus in States that recognize a firearms right is that arms
    possession, even in the home, is . . . subject to interest-balancing,” id.,
    at 24; and that the practice of “[b]anning weapons routinely used for
    self-defense,” when deemed “necessary for the public welfare,” “has
    ample historical pedigree,” id., at 28. Petitioners do not even try to
    challenge these contentions.
    43 I agree with JUSTICE SCALIA that a history of regulation hardly
    proves a right is not “of fundamental character.” Ante, at 12. An
    unbroken history of extremely intensive, carefully considered regula­
    tion does, however, tend to suggest that it is not.
    44 The Heller majority asserted that “the adjective ‘well-regulated’ ” in
    the Second Amendment’s preamble “implies nothing more than the
    imposition of proper discipline and training.” 554 U. S., at ___ (slip op.,
    at 23). It is far from clear that this assertion is correct. See, e.g., U. S.
    46                        MCDONALD v. CHICAGO
    STEVENS, J., dissenting
    ills associated with dangerous weapons goes to the very
    core of the States’ police powers. Our precedent is crystal­
    clear on this latter point. See, e.g., Gonzales v. Oregon,
    
    546 U. S. 243
    , 270 (2006) (“[T]he structure and limitations
    of federalism . . . allow the States great latitude under
    their police powers to legislate as to the protection of the
    lives, limbs, health, comfort, and quiet of all persons”
    (internal quotation marks omitted)); United States v.
    Morrison, 
    529 U. S. 598
    , 618 (2000) (“[W]e can think of no
    better example of the police power, which the Founders
    denied the National Government and reposed in the
    States, than the suppression of violent crime and vindica­
    tion of its victims”); Kelley v. Johnson, 
    425 U. S. 238
    , 247
    (1976) (“The promotion of safety of persons and property is
    unquestionably at the core of the State’s police power”);
    Automobile Workers v. Wisconsin Employment Relations
    Bd., 
    351 U. S. 266
    , 274 (1956) (“The dominant interest of
    the State in preventing violence and property damage
    cannot be questioned. It is a matter of genuine local con­
    cern”). Compared with today’s ruling, most if not all of
    this Court’s decisions requiring the States to comply with
    other provisions in the Bill of Rights did not exact nearly
    ——————
    Const., Art. 1, §4, cl. 1; §8, cls. 3, 5, 14; §9, cl. 6; Art. 3, §2, cl. 2; Art. 4,
    §2, cl. 3; §3, cl. 2 (using “regulate” or “Regulation” in manner suggestive
    of broad, discretionary governmental authority); Art. 1, §8, cl. 16
    (invoking powers of “disciplining” and “training” Militia in manner
    suggestive of narrower authority); Heller, 554 U. S., at ___ (slip op., at
    6–7) (investigating Constitution’s separate references to “people” as
    clue to term’s meaning in Second Amendment); cf. Cornell & DeDino, A
    Well Regulated Right: The Early American Origins of Gun Control, 
    73 Fordham L. Rev. 487
    , 504 (2004) (“The authors of this curious interpre­
    tation of the Second Amendment have constructed a fantasy world
    where words mean their opposite, and regulation is really anti­
    regulation”). But even if the assertion were correct, the point would
    remain that the preamble envisions an active state role in overseeing
    how the right to keep and bear arms is utilized, and in ensuring that it
    is channeled toward productive ends.
    Cite as: 561 U. S. ____ (2010)                      47
    STEVENS, J., dissenting
    so heavy a toll in terms of state sovereignty.
    Finally, even apart from the States’ long history of
    firearms regulation and its location at the core of their
    police powers, this is a quintessential area in which feder­
    alism ought to be allowed to flourish without this Court’s
    meddling. Whether or not we can assert a plausible con­
    stitutional basis for intervening, there are powerful rea­
    sons why we should not do so.
    Across the Nation, States and localities vary signifi­
    cantly in the patterns and problems of gun violence they
    face, as well as in the traditions and cultures of lawful gun
    use they claim. Cf. post, at 16–17. The city of Chicago, for
    example, faces a pressing challenge in combating criminal
    street gangs. Most rural areas do not. The city of Chicago
    has a high population density, which increases the poten­
    tial for a gunman to inflict mass terror and casualties.
    Most rural areas do not.45 The city of Chicago offers little
    in the way of hunting opportunities. Residents of rural
    communities are, one presumes, much more likely to stock
    the dinner table with game they have personally felled.
    Given that relevant background conditions diverge so
    much across jurisdictions, the Court ought to pay particu­
    lar heed to state and local legislatures’ “right to experi­
    ment.” New State Ice, 
    285 U. S., at 311
     (Brandeis, J.,
    dissenting). So long as the regulatory measures they have
    chosen are not “arbitrary, capricious, or unreasonable,” we
    should be allowing them to “try novel social and economic”
    policies. 
    Ibid.
     It “is more in keeping . . . with our status
    as a court in a federal system,” under these circumstances,
    “to avoid imposing a single solution . . . from the top
    down.” Smith v. Robbins, 
    528 U. S. 259
    , 275 (2000).
    ——————
    45 Cf. Heller, 554 U. S., at ___ (slip op., at 19) (BREYER, J., dissenting)
    (detailing evidence showing that a “disproportionate amount of violent
    and property crimes occur in urban areas, and urban criminals are
    more likely than other offenders to use a firearm during the commis­
    sion of a violent crime”).
    48                     MCDONALD v. CHICAGO
    STEVENS, J., dissenting
    It is all the more unwise for this Court to limit experi­
    mentation in an area “where the best solution is far from
    clear.” United States v. Lopez, 
    514 U. S. 549
    , 581 (1995)
    (KENNEDY, J., concurring). Few issues of public policy are
    subject to such intensive and rapidly developing empirical
    controversy as gun control. See Heller, 554 U. S., at ___
    (slip op., at 20–25) (BREYER, J., dissenting). Chicago’s
    handgun ban, in itself, has divided researchers. Compare
    Brief for Professors of Criminal Justice as Amici Curiae
    (arguing that ordinance has been effective at reducing gun
    violence), with Brief for International Law Enforcement
    Educators and Trainers Association et al. as Amici Curiae
    17–26 (arguing that ordinance has been a failure).46 Of
    course, on some matters the Constitution requires that we
    ignore such pragmatic considerations. But the Constitu­
    tion’s text, history, and structure are not so clear on the
    matter before us—as evidenced by the groundbreaking
    nature of today’s fractured decision—and this Court lacks
    both the technical capacity and the localized expertise to
    assess “the wisdom, need, and propriety” of most gun­
    control measures. Griswold, 
    381 U. S., at 482
    .47
    ——————
    46 The fact that Chicago’s handgun murder rate may have “actually
    increased since the ban was enacted,” ante, at 2 (majority opinion),
    means virtually nothing in itself. Countless factors unrelated to the
    policy may have contributed to that trend. Without a sophisticated
    regression analysis, we cannot even begin to speculate as to the efficacy
    or effects of the handgun ban. Even with such an analysis, we could
    never be certain as to the determinants of the city’s murder rate.
    47 In some sense, it is no doubt true that the “best” solution is elusive
    for many “serious social problems.” Ante, at 12 (opinion of SCALIA, J.).
    Yet few social problems have raised such heated empirical controversy
    as the problem of gun violence. And few, if any, of the liberty interests
    we have recognized under the Due Process Clause have raised as many
    complications for judicial oversight as the interest that is recognized
    today. See post, at 11–16.
    I agree with the plurality that for a right to be eligible for substantive
    due process recognition, there need not be “a ‘popular consensus’ that
    the right is fundamental.” Ante, at 42. In our remarkably diverse,
    Cite as: 561 U. S. ____ (2010)                   49
    STEVENS, J., dissenting
    Nor will the Court’s intervention bring any clarity to
    this enormously complex area of law. Quite to the con­
    trary, today’s decision invites an avalanche of litigation
    that could mire the federal courts in fine-grained determi­
    nations about which state and local regulations comport
    with the Heller right—the precise contours of which are
    far from pellucid—under a standard of review we have not
    even established. See post, at 12–15. The plurality’s
    “assuranc[e]” that “incorporation does not imperil every
    law regulating firearms,” ante, at 40, provides only modest
    comfort. For it is also an admission of just how many
    different types of regulations are potentially implicated by
    today’s ruling, and of just how ad hoc the Court’s initial
    attempt to draw distinctions among them was in Heller.
    The practical significance of the proposition that “the
    Second Amendment right is fully applicable to the States,”
    ante, at 1 (majority opinion), remains to be worked out by
    this Court over many, many years.
    Furthermore, and critically, the Court’s imposition of a
    national standard is still more unwise because the elected
    branches have shown themselves to be perfectly capable of
    safeguarding the interest in keeping and bearing arms.
    The strength of a liberty claim must be assessed in con­
    nection with its status in the democratic process. And in
    this case, no one disputes “that opponents of [gun] control
    have considerable political power and do not seem to be at
    a systematic disadvantage in the democratic process,” or
    that “the widespread commitment to an individual right to
    own guns . . . operates as a safeguard against excessive or
    ——————
    pluralistic society, there will almost never be such uniformity of opin­
    ion. But to the extent that popular consensus is relevant, I do not agree
    with the Court that the amicus brief filed in this case by numerous
    state attorneys general constitutes evidence thereof. Ante, at 42–43. It
    is puzzling that so many state lawmakers have asked us to limit their
    option to regulate a dangerous item. Cf. post, at 9–10.
    50                    MCDONALD v. CHICAGO
    STEVENS, J., dissenting
    unjustified gun control laws.”48         Sunstein, Second
    Amendment Minimalism: Heller as Griswold, 
    122 Harv. L. Rev. 246
    , 260 (2008). Indeed, there is a good deal of
    evidence to suggest that, if anything, American lawmakers
    tend to underregulate guns, relative to the policy views
    expressed by majorities in opinion polls. See K. Goss,
    Disarmed: The Missing Movement for Gun Control in
    America 6 (2006). If a particular State or locality has
    enacted some “improvident” gun-control measures, as
    petitioners believe Chicago has done, there is no apparent
    reason to infer that the mistake will not “eventually be
    rectified by the democratic process.” Vance v. Bradley, 
    440 U. S. 93
    , 97 (1979).
    This is not a case, then, that involves a “special condi­
    tion” that “may call for a correspondingly more searching
    judicial inquiry.” Carolene Products, 
    304 U. S., at 153, n. 4
    . Neither petitioners nor those most zealously commit­
    ted to their views represent a group or a claim that is
    liable to receive unfair treatment at the hands of the
    majority. On the contrary, petitioners’ views are sup­
    ported by powerful participants in the legislative process.
    Petitioners have given us no reason to believe that the
    interest in keeping and bearing arms entails any special
    need for judicial lawmaking, or that federal judges are
    more qualified to craft appropriate rules than the people’s
    elected representatives. Having failed to show why their
    asserted interest is intrinsic to the concept of ordered
    liberty or vulnerable to maltreatment in the political
    arena, they have failed to show why “the word liberty in
    the Fourteenth Amendment” should be “held to prevent
    the natural outcome of a dominant opinion” about how to
    ——————
    48 Likewise, no one contends that those interested in personal self­
    defense—every American, presumably—face any particular disadvan­
    tage in the political process. All 50 States recognize self-defense as a
    defense to criminal prosecution. See n. 32, supra.
    Cite as: 561 U. S. ____ (2010)           51
    STEVENS, J., dissenting
    deal with the problem of handgun violence in the city
    of Chicago.   Lochner, 
    198 U. S., at 76
     (Holmes, J.,
    dissenting).
    VI
    The preceding sections have already addressed many of
    the points made by JUSTICE SCALIA in his concurrence.
    But in light of that opinion’s fixation on this one, it is
    appropriate to say a few words about JUSTICE SCALIA’s
    broader claim: that his preferred method of substantive
    due process analysis, a method “that makes the traditions
    of our people paramount,” ante, at 1, is both more re­
    strained and more facilitative of democracy than the
    method I have outlined. Colorful as it is, JUSTICE SCALIA’s
    critique does not have nearly as much force as does his
    rhetoric. His theory of substantive due process, moreover,
    comes with its own profound difficulties.
    Although JUSTICE SCALIA aspires to an “objective,”
    “neutral” method of substantive due process analysis,
    ante, at 10, his actual method is nothing of the sort. Un­
    der the “historically focused” approach he advocates, ante,
    at 13, numerous threshold questions arise before one ever
    gets to the history. At what level of generality should one
    frame the liberty interest in question? See n. 25, supra.
    What does it mean for a right to be “ ‘deeply rooted in this
    Nation’s history and tradition,’ ” ante, at 3 (quoting
    Glucksberg, 
    521 U. S., at 721
    )? By what standard will
    that proposition be tested? Which types of sources will
    count, and how will those sources be weighed and aggre­
    gated? There is no objective, neutral answer to these
    questions. There is not even a theory—at least, JUSTICE
    SCALIA provides none—of how to go about answering
    them.
    Nor is there any escaping Palko, it seems. To qualify for
    substantive due process protection, JUSTICE SCALIA has
    stated, an asserted liberty right must be not only deeply
    52                     MCDONALD v. CHICAGO
    STEVENS, J., dissenting
    rooted in American tradition, “but it must also be implicit
    in the concept of ordered liberty.” Lawrence, 
    539 U. S., at 593, n. 3
     (dissenting opinion) (internal quotation marks
    omitted). Applying the latter, Palko-derived half of that
    test requires precisely the sort of reasoned judgment—the
    same multifaceted evaluation of the right’s contours and
    consequences—that JUSTICE SCALIA mocks in his concur­
    rence today.
    So does applying the first half. It is hardly a novel
    insight that history is not an objective science, and that its
    use can therefore “point in any direction the judges favor,”
    ante, at 14 (opinion of SCALIA, J.). Yet 21 years after the
    point was brought to his attention by Justice Brennan,
    JUSTICE SCALIA remains “oblivious to the fact that [the
    concept of ‘tradition’] can be as malleable and elusive as
    ‘liberty’ itself.” Michael H., 
    491 U. S., at 137
     (dissenting
    opinion). Even when historical analysis is focused on a
    discrete proposition, such as the original public meaning of
    the Second Amendment, the evidence often points in
    different directions. The historian must choose which
    pieces to credit and which to discount, and then must try
    to assemble them into a coherent whole. In Heller,
    JUSTICE SCALIA preferred to rely on sources created much
    earlier and later in time than the Second Amendment
    itself, see, e.g., 554 U. S., at ___ (slip op., at 4–5) (consult­
    ing late 19th-century treatises to ascertain how Americans
    would have read the Amendment’s preamble in 1791); I
    focused more closely on sources contemporaneous with the
    Amendment’s drafting and ratification.49 No mechanical
    ——————
    49 See Heller, 554 U. S., at ___ (slip op., at 27) (STEVENS, J., dissent­
    ing) (“Although it gives short shrift to the drafting history of the Second
    Amendment, the Court dwells at length on four other sources: the 17th­
    century English Bill of Rights; Blackstone’s Commentaries on the Laws
    of England; postenactment commentary on the Second Amendment;
    and post-Civil War legislative history”); see also post, at 2–5 (discussing
    professional historians’ criticisms of Heller).
    Cite as: 561 U. S. ____ (2010)           53
    STEVENS, J., dissenting
    yardstick can measure which of us was correct, either with
    respect to the materials we chose to privilege or the in­
    sights we gleaned from them.
    The malleability and elusiveness of history increase
    exponentially when we move from a pure question of
    original meaning, as in Heller, to JUSTICE SCALIA’s theory
    of substantive due process. At least with the former sort
    of question, the judge can focus on a single legal provision;
    the temporal scope of the inquiry is (or should be) rela­
    tively bounded; and there is substantial agreement on
    what sorts of authorities merit consideration.          With
    JUSTICE SCALIA’s approach to substantive due process,
    these guideposts all fall away. The judge must canvas the
    entire landscape of American law as it has evolved
    through time, and perhaps older laws as well, see, e.g.,
    Lawrence, 
    539 U. S., at 596
     (SCALIA, J., dissenting) (dis­
    cussing “ ‘ancient roots’ ” of proscriptions against sodomy
    (quoting Bowers v. Hardwick, 
    478 U. S. 186
    , 192 (1986)),
    pursuant to a standard (deeply rootedness) that has never
    been defined. In conducting this rudderless, panoramic
    tour of American legal history, the judge has more than
    ample opportunity to “look over the heads of the crowd
    and pick out [his] friends,” Roper v. Simmons, 
    543 U. S. 551
    , 617 (2005) (SCALIA, J., dissenting).
    My point is not to criticize judges’ use of history in
    general or to suggest that it always generates indetermi­
    nate answers; I have already emphasized that historical
    study can discipline as well as enrich substantive due
    process analysis.     My point is simply that JUSTICE
    SCALIA’s defense of his method, which holds out objectivity
    and restraint as its cardinal—and, it seems, only—virtues,
    is unsatisfying on its own terms. For a limitless number
    of subjective judgments may be smuggled into his histori­
    cal analysis. Worse, they may be buried in the analysis.
    At least with my approach, the judge’s cards are laid on
    the table for all to see, and to critique. The judge must
    54                       MCDONALD v. CHICAGO
    STEVENS, J., dissenting
    exercise judgment, to be sure. When answering a consti­
    tutional question to which the text provides no clear an­
    swer, there is always some amount of discretion; our
    constitutional system has always depended on judges’
    filling in the document’s vast open spaces.50 But there is
    also transparency.
    JUSTICE SCALIA’s approach is even less restrained in
    another sense: It would effect a major break from our case
    law outside of the “incorporation” area. JUSTICE SCALIA
    does not seem troubled by the fact that his method is
    largely inconsistent with the Court’s canonical substantive
    due process decisions, ranging from Meyer, 
    262 U. S. 390
    ,
    and Pierce, 
    268 U. S. 510
    , in the 1920’s, to Griswold, 
    381 U. S. 479
    , in the 1960’s, to Lawrence, 
    539 U. S. 558
    , in the
    2000’s. To the contrary, he seems to embrace this disso­
    nance. My method seeks to synthesize dozens of cases on
    which the American people have relied for decades.
    JUSTICE SCALIA’s method seeks to vaporize them. So I am
    left to wonder, which of us is more faithful to this Nation’s
    constitutional history? And which of us is more faithful to
    the values and commitments of the American people, as
    they stand today? In 1967, when the Court held in Lov­
    ing, 
    388 U. S. 1
    , that adults have a liberty-based as well as
    equality-based right to wed persons of another race, inter­
    racial marriage was hardly “deeply rooted” in American
    tradition. Racial segregation and subordination were
    deeply rooted. The Court’s substantive due process hold­
    ing was nonetheless correct—and we should be wary of
    any interpretive theory that implies, emphatically, that it
    was not.
    Which leads me to the final set of points I wish to make:
    JUSTICE SCALIA’s method invites not only bad history, but
    also bad constitutional law. As I have already explained,
    in evaluating a claimed liberty interest (or any constitu­
    ——————
    50 Indeed,   this is truly one of our most deeply rooted legal traditions.
    Cite as: 561 U. S. ____ (2010)           55
    STEVENS, J., dissenting
    tional claim for that matter), it makes perfect sense to give
    history significant weight: JUSTICE SCALIA’s position is
    closer to my own than he apparently feels comfortable
    acknowledging. But it makes little sense to give history
    dispositive weight in every case. And it makes especially
    little sense to answer questions like whether the right to
    bear arms is “fundamental” by focusing only on the past,
    given that both the practical significance and the public
    understandings of such a right often change as society
    changes. What if the evidence had shown that, whereas at
    one time firearm possession contributed substantially to
    personal liberty and safety, nowadays it contributes noth­
    ing, or even tends to undermine them? Would it still have
    been reasonable to constitutionalize the right?
    The concern runs still deeper. Not only can historical
    views be less than completely clear or informative, but
    they can also be wrong. Some notions that many Ameri­
    cans deeply believed to be true, at one time, turned out not
    to be true. Some practices that many Americans believed
    to be consistent with the Constitution’s guarantees of
    liberty and equality, at one time, turned out to be incon­
    sistent with them. The fact that we have a written Con­
    stitution does not consign this Nation to a static legal
    existence. Although we should always “pa[y] a decent
    regard to the opinions of former times,” it “is not the glory
    of the people of America” to have “suffered a blind venera­
    tion for antiquity.” The Federalist No. 14, p. 99, 104 (C.
    Rossiter ed. 1961) (J. Madison). It is not the role of federal
    judges to be amateur historians. And it is not fidelity to
    the Constitution to ignore its use of deliberately capacious
    language, in an effort to transform foundational legal
    commitments into narrow rules of decision.
    As for “the democratic process,” ante, at 14, 15, a
    method that looks exclusively to history can easily do more
    harm than good. Just consider this case. The net result of
    JUSTICE SCALIA’s supposedly objective analysis is to vest
    56                 MCDONALD v. CHICAGO
    STEVENS, J., dissenting
    federal judges—ultimately a majority of the judges on this
    Court—with unprecedented lawmaking powers in an area
    in which they have no special qualifications, and in which
    the give-and-take of the political process has functioned
    effectively for decades. Why this “intrudes much less upon
    the democratic process,” ante, at 14, than an approach
    that would defer to the democratic process on the regula­
    tion of firearms is, to say the least, not self-evident. I
    cannot even tell what, under JUSTICE SCALIA’s view, con­
    stitutes an “intrusion.”
    It is worth pondering, furthermore, the vision of democ­
    racy that underlies JUSTICE SCALIA’s critique. Because
    very few of us would welcome a system in which majorities
    or powerful interest groups always get their way. Under
    our constitutional scheme, I would have thought that a
    judicial approach to liberty claims such as the one I have
    outlined—an approach that investigates both the intrinsic
    nature of the claimed interest and the practical signifi­
    cance of its judicial enforcement, that is transparent in its
    reasoning and sincere in its effort to incorporate con­
    straints, that is guided by history but not beholden to it,
    and that is willing to protect some rights even if they have
    not already received uniform protection from the elected
    branches—has the capacity to improve, rather than
    “[im]peril,” ante, at 15, our democracy. It all depends on
    judges’ exercising careful, reasoned judgment. As it al­
    ways has, and as it always will.
    VII
    The fact that the right to keep and bear arms appears in
    the Constitution should not obscure the novelty of the
    Court’s decision to enforce that right against the States.
    By its terms, the Second Amendment does not apply to the
    States; read properly, it does not even apply to individuals
    outside of the militia context. The Second Amendment
    was adopted to protect the States from federal encroach­
    Cite as: 561 U. S. ____ (2010)           57
    STEVENS, J., dissenting
    ment. And the Fourteenth Amendment has never been
    understood by the Court to have “incorporated” the entire
    Bill of Rights. There was nothing foreordained about
    today’s outcome.
    Although the Court’s decision in this case might be seen
    as a mere adjunct to its decision in Heller, the conse­
    quences could prove far more destructive—quite liter­
    ally—to our Nation’s communities and to our constitu­
    tional structure. Thankfully, the Second Amendment
    right identified in Heller and its newly minted Fourteenth
    Amendment analogue are limited, at least for now, to the
    home. But neither the “assurances” provided by the plu­
    rality, ante, at 40, nor the many historical sources cited in
    its opinion should obscure the reality that today’s ruling
    marks a dramatic change in our law—or that the Justices
    who have joined it have brought to bear an awesome
    amount of discretion in resolving the legal question pre­
    sented by this case.
    I would proceed more cautiously. For the reasons set
    out at length above, I cannot accept either the methodol­
    ogy the Court employs or the conclusions it draws. Al­
    though impressively argued, the majority’s decision to
    overturn more than a century of Supreme Court precedent
    and to unsettle a much longer tradition of state practice is
    not, in my judgment, built “upon respect for the teachings
    of history, solid recognition of the basic values that under­
    lie our society, and wise appreciation of the great roles
    that the doctrines of federalism and separation of powers
    have played in establishing and preserving American
    freedoms.” Griswold, 
    381 U. S., at 501
     (Harlan, J., con­
    curring in judgment).
    Accordingly, I respectfully dissent.
    Cite as: 561 U. S. ____ (2010)           1
    BREYER, J., dissenting
    SUPREME COURT OF THE UNITED STATES
    _________________
    No. 08–1521
    _________________
    OTIS MCDONALD, ET AL., PETITIONERS v. CITY OF
    CHICAGO, ILLINOIS, ET AL.
    ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
    APPEALS FOR THE SEVENTH CIRCUIT
    [June 28, 2010]
    JUSTICE BREYER, with whom JUSTICE GINSBURG and
    JUSTICE SOTOMAYOR join, dissenting.
    In my view, JUSTICE STEVENS has demonstrated that
    the Fourteenth Amendment’s guarantee of “substantive
    due process” does not include a general right to keep and
    bear firearms for purposes of private self-defense. As he
    argues, the Framers did not write the Second Amendment
    with this objective in view. See ante, at 41–44 (dissenting
    opinion). Unlike other forms of substantive liberty, the
    carrying of arms for that purpose often puts others’ lives
    at risk. See ante, at 35–37. And the use of arms for pri
    vate self-defense does not warrant federal constitutional
    protection from state regulation. See ante, at 44–51.
    The Court, however, does not expressly rest its opinion
    upon “substantive due process” concerns. Rather, it di
    rects its attention to this Court’s “incorporation” prece
    dents and asks whether the Second Amendment right to
    private self-defense is “fundamental” so that it applies to
    the States through the Fourteenth Amendment. See ante,
    at 11–19.
    I shall therefore separately consider the question of
    “incorporation.” I can find nothing in the Second Amend
    ment’s text, history, or underlying rationale that could
    warrant characterizing it as “fundamental” insofar as it
    seeks to protect the keeping and bearing of arms for pri
    2                  MCDONALD v. CHICAGO
    BREYER, J., dissenting
    vate self-defense purposes. Nor can I find any justification
    for interpreting the Constitution as transferring ultimate
    regulatory authority over the private uses of firearms from
    democratically elected legislatures to courts or from the
    States to the Federal Government. I therefore conclude
    that the Fourteenth Amendment does not “incorporate”
    the Second Amendment’s right “to keep and bear Arms.”
    And I consequently dissent.
    I
    The Second Amendment says: “A well regulated Militia,
    being necessary to the security of a free State, the right of
    the people to keep and bear Arms, shall not be infringed.”
    Two years ago, in District of Columbia v. Heller, 554 U. S.
    ___ (2008), the Court rejected the pre-existing judicial
    consensus that the Second Amendment was primarily
    concerned with the need to maintain a “well regulated
    Militia.” See 
    id.,
     at ___ (STEVENS, J., dissenting) (slip op.,
    at 2–3, and n. 2, 38–45); United States v. Miller, 
    307 U. S. 174
    , 178 (1939). Although the Court acknowledged that
    “the threat that the new Federal Government would de
    stroy the citizens’ militia by taking away their arms was
    the reason that right . . . was codified in a written Consti
    tution,” the Court asserted that “individual self defense
    . . . was the central component of the right itself.” Heller,
    supra, at ___ (slip op., at 26) (first emphasis added). The
    Court went on to hold that the Second Amendment re
    stricted Congress’ power to regulate handguns used for
    self-defense, and the Court found unconstitutional the
    District of Columbia’s ban on the possession of handguns
    in the home. Id., at ___ (slip op., at 64).
    The Court based its conclusions almost exclusively upon
    its reading of history. But the relevant history in Heller
    was far from clear: Four dissenting Justices disagreed
    with the majority’s historical analysis. And subsequent
    scholarly writing reveals why disputed history provides
    Cite as: 561 U. S. ____ (2010)            3
    BREYER, J., dissenting
    treacherous ground on which to build decisions written by
    judges who are not expert at history.
    Since Heller, historians, scholars, and judges have con
    tinued to express the view that the Court’s historical
    account was flawed. See, e.g., Konig, Why the Second
    Amendment Has a Preamble: Original Public Meaning
    and the Political Culture of Written Constitutions in
    Revolutionary America, 
    56 UCLA L. Rev. 1295
     (2009);
    Finkelman, It Really Was About a Well Regulated Militia,
    
    59 Syracuse L. Rev. 267
     (2008); P. Charles, The Second
    Amendment: The Intent and Its Interpretation by the
    States and the Supreme Court (2009); Merkel, The District
    of Columbia v. Heller and Antonin Scalia’s Perverse Sense
    of Originalism, 
    13 Lewis & Clark L. Rev. 349
     (2009);
    Kozuskanich, Originalism in a Digital Age: An Inquiry
    into the Right to Bear Arms, 29 J. Early Republic 585
    (2009); Cornell, St. George Tucker’s Lecture Notes, the
    Second Amendment, and Originalist Methodology, 
    103 Nw. U. L. Rev. 1541
     (2009); Posner, In Defense of Loose
    ness: The Supreme Court and Gun Control, New Republic,
    Aug. 27, 2008, pp. 32–35; see also Epstein, A Structural
    Interpretation of the Second Amendment: Why Heller is
    (Probably) Wrong on Originalist Grounds, 
    59 Syracuse L. Rev. 171
     (2008).
    Consider as an example of these critiques an amici brief
    filed in this case by historians who specialize in the study
    of the English Civil Wars. They tell us that Heller misun
    derstood a key historical point. See Brief for Eng
    lish/Early American Historians as Amici Curiae (hereinaf
    ter English Historians’ Brief) (filed by 21 professors at
    leading universities in the United States, United King
    dom, and Australia). Heller’s conclusion that “individual
    self-defense” was “the central component” of the Second
    Amendment’s right “to keep and bear Arms” rested upon
    its view that the Amendment “codified a pre-existing right”
    that had “nothing whatever to do with service in a mili
    4                  MCDONALD v. CHICAGO
    BREYER, J., dissenting
    tia.” 554 U. S., at ___ (slip op., at 26, 19–20). That view in
    turn rested in significant part upon Blackstone having
    described the right as “ ‘the right of having and using arms
    for self-preservation and defence,’ ” which reflected the
    provision in the English Declaration of Right of 1689 that
    gave the King’s Protestant “ ‘subjects’ ” the right to “ ‘have
    Arms for their defence suitable to their Conditions, and as
    allowed by law.’ ” 
    Id.,
     at ___ (slip op., at 19–20) (quoting 1
    W. Blackstone, Commentaries on the Laws of England 140
    (1765) (hereinafter Blackstone) and 1 W. & M., c. 2, §7, in
    3 Eng. Stat. at Large 441 (1689)). The Framers, said the
    majority, understood that right “as permitting a citizen to
    ‘repe[l] force by force’ when ‘the intervention of society in
    his behalf, may be too late to prevent an injury.’ ” 554
    U. S., at ___ (slip op., at 21) (quoting St. George Tucker, 1
    Blackstone’s Commentaries 145–146, n. 42 (1803)).
    The historians now tell us, however, that the right to
    which Blackstone referred had, not nothing, but every
    thing, to do with the militia. As properly understood at
    the time of the English Civil Wars, the historians claim,
    the right to bear arms “ensured that Parliament had the
    power” to arm the citizenry: “to defend the realm” in the
    case of a foreign enemy, and to “secure the right of ‘self
    preservation,’ ” or “self-defense,” should “the sovereign
    usurp the English Constitution.” English Historians’ Brief
    3, 8–13, 23–24 (emphasis added). Thus, the Declaration of
    Right says that private persons can possess guns only “as
    allowed by law.” See id., at 20–24. Moreover, when
    Blackstone referred to “ ‘the right of having and using
    arms for self-preservation and defence,’ ” he was referring
    to the right of the people “to take part in the militia to
    defend their political liberties,” and to the right of Parlia
    ment (which represented the people) to raise a militia even
    when the King sought to deny it that power. Id., at 4, 24–
    27 (emphasis added) (quoting 1 Blackstone 140). Nor can
    the historians find any convincing reason to believe that
    Cite as: 561 U. S. ____ (2010)            5
    BREYER, J., dissenting
    the Framers had something different in mind than what
    Blackstone himself meant. Compare Heller, supra, at ___
    (slip op., at 21–22) with English Historians’ Brief 28–40.
    The historians concede that at least one historian takes a
    different position, see id., at 7, but the Court, they imply,
    would lose a poll taken among professional historians of
    this period, say, by a vote of 8 to 1.
    If history, and history alone, is what matters, why
    would the Court not now reconsider Heller in light of these
    more recently published historical views? See Leegin
    Creative Leather Products, Inc. v. PSKS, Inc., 
    551 U. S. 877
    , 923–924 (2007) (BREYER, J., dissenting) (noting that
    stare decisis interests are at their lowest with respect to
    recent and erroneous constitutional decisions that create
    unworkable legal regimes); Citizens United v. Federal
    Election Comm’n, 558 U. S. ___, ___ (2010) (slip op., at 47)
    (listing similar factors); see also Wallace v. Jaffree, 
    472 U. S. 38
    , 99 (1985) (Rehnquist, J., dissenting) (“[S]tare
    decisis may bind courts as to matters of law, but it cannot
    bind them as to matters of history”). At the least, where
    Heller’s historical foundations are so uncertain, why ex
    tend its applicability?
    My aim in referring to this history is to illustrate the
    reefs and shoals that lie in wait for those nonexpert judges
    who place virtually determinative weight upon historical
    considerations. In my own view, the Court should not look
    to history alone but to other factors as well—above all, in
    cases where the history is so unclear that the experts
    themselves strongly disagree. It should, for example,
    consider the basic values that underlie a constitutional
    provision and their contemporary significance. And it
    should examine as well the relevant consequences and
    practical justifications that might, or might not, warrant
    removing an important question from the democratic
    decisionmaking process. See ante, at 16–20 (STEVENS, J.,
    dissenting) (discussing shortcomings of an exclusively
    6                 MCDONALD v. CHICAGO
    BREYER, J., dissenting
    historical approach).
    II
    A
    In my view, taking Heller as a given, the Fourteenth
    Amendment does not incorporate the Second Amendment
    right to keep and bear arms for purposes of private self
    defense. Under this Court’s precedents, to incorporate the
    private self-defense right the majority must show that the
    right is, e.g., “fundamental to the American scheme of
    justice,” Duncan v. Louisiana, 
    391 U. S. 145
    , 149 (1968);
    see ibid., n. 14; see also ante, at 44 (plurality opinion)
    (finding that the right is “fundamental” and therefore
    incorporated). And this it fails to do.
    The majority here, like that in Heller, relies almost
    exclusively upon history to make the necessary showing.
    Ante, at 20–33. But to do so for incorporation purposes is
    both wrong and dangerous. As JUSTICE STEVENS points
    out, our society has historically made mistakes—for ex
    ample, when considering certain 18th- and 19th-century
    property rights to be fundamental. Ante, at 19 (dissenting
    opinion). And in the incorporation context, as elsewhere,
    history often is unclear about the answers. See Part I,
    supra; Part III, infra.
    Accordingly, this Court, in considering an incorporation
    question, has never stated that the historical status of a
    right is the only relevant consideration. Rather, the Court
    has either explicitly or implicitly made clear in its opin
    ions that the right in question has remained fundamental
    over time. See, e.g., Apodaca v. Oregon, 
    406 U. S. 404
    , 410
    (1972) (plurality opinion) (stating that the incorporation
    “inquiry must focus upon the function served” by the right
    in question in “contemporary society” (emphasis added));
    Duncan v. Louisiana, 
    391 U. S. 145
    , 154 (1968) (noting
    that the right in question “continues to receive strong
    support”); Klopfer v. North Carolina, 
    386 U. S. 213
    , 226
    Cite as: 561 U. S. ____ (2010)            7
    BREYER, J., dissenting
    (1967) (same). And, indeed, neither of the parties before
    us in this case has asked us to employ the majority’s his
    tory-constrained approach. See Brief for Petitioners 67–69
    (arguing for incorporation based on trends in contempo
    rary support for the right); Brief for Respondents City of
    Chicago et al. 23–31 (hereinafter Municipal Respondents)
    (looking to current state practices with respect to the
    right).
    I thus think it proper, above all where history provides
    no clear answer, to look to other factors in considering
    whether a right is sufficiently “fundamental” to remove it
    from the political process in every State. I would include
    among those factors the nature of the right; any contem
    porary disagreement about whether the right is funda
    mental; the extent to which incorporation will further
    other, perhaps more basic, constitutional aims; and the
    extent to which incorporation will advance or hinder the
    Constitution’s structural aims, including its division of
    powers among different governmental institutions (and
    the people as well). Is incorporation needed, for example,
    to further the Constitution’s effort to ensure that the
    government treats each individual with equal respect?
    Will it help maintain the democratic form of government
    that the Constitution foresees? In a word, will incorpora
    tion prove consistent, or inconsistent, with the Constitu
    tion’s efforts to create governmental institutions well
    suited to the carrying out of its constitutional promises?
    Finally, I would take account of the Framers’ basic
    reason for believing the Court ought to have the power of
    judicial review. Alexander Hamilton feared granting that
    power to Congress alone, for he feared that Congress,
    acting as judges, would not overturn as unconstitutional a
    popular statute that it had recently enacted, as legislators.
    The Federalist No. 78, p. 405 (G. Carey & J. McClellan
    eds. 2001) (A. Hamilton) (“This independence of the judges
    is equally requisite to guard the constitution and the
    8                 MCDONALD v. CHICAGO
    BREYER, J., dissenting
    rights of individuals from the effects of those ill humours,
    which” can, at times, lead to “serious oppressions of the
    minor part in the community”). Judges, he thought, may
    find it easier to resist popular pressure to suppress the
    basic rights of an unpopular minority. See United States
    v. Carolene Products Co., 
    304 U. S. 144
    , 152, n. 4 (1938).
    That being so, it makes sense to ask whether that particu
    lar comparative judicial advantage is relevant to the case
    at hand. See, e.g., J. Ely, Democracy and Distrust (1980).
    B
    How do these considerations apply here? For one thing,
    I would apply them only to the private self-defense right
    directly at issue. After all, the Amendment’s militia
    related purpose is primarily to protect States from federal
    regulation, not to protect individuals from militia-related
    regulation. Heller, 554 U. S., at ___ (slip op., at 26); see
    also Miller, 
    307 U. S., at 178
    . Moreover, the Civil War
    Amendments, the electoral process, the courts, and nu
    merous other institutions today help to safeguard the
    States and the people from any serious threat of federal
    tyranny. How are state militias additionally necessary?
    It is difficult to see how a right that, as the majority con
    cedes, has “largely faded as a popular concern” could
    possibly be so fundamental that it would warrant incorpo
    ration through the Fourteenth Amendment. Ante, at 22.
    Hence, the incorporation of the Second Amendment cannot
    be based on the militia-related aspect of what Heller found
    to be more extensive Second Amendment rights.
    For another thing, as Heller concedes, the private self
    defense right that the Court would incorporate has noth
    ing to do with “the reason” the Framers “codified” the right
    to keep and bear arms “in a written Constitution.” 554
    U. S., at ___ (slip op., at 26) (emphasis added). Heller
    immediately adds that the self-defense right was nonethe
    less “the central component of the right.” 
    Ibid.
     In my
    Cite as: 561 U. S. ____ (2010)            9
    BREYER, J., dissenting
    view, this is the historical equivalent of a claim that water
    runs uphill. See Part I, supra. But, taking it as valid, the
    Framers’ basic reasons for including language in the Con
    stitution would nonetheless seem more pertinent (in decid
    ing about the contemporary importance of a right) than
    the particular scope 17th- or 18th-century listeners would
    have then assigned to the words they used. And examina
    tion of the Framers’ motivation tells us they did not think
    the private armed self-defense right was of paramount
    importance. See Amar, The Bill of Rights as a Constitu
    tion, 100 Yale L. J. 1131, 1164 (1991) (“[T]o see the [Sec
    ond] Amendment as primarily concerned with an individ
    ual right to hunt, or protect one’s home,” would be “like
    viewing the heart of the speech and assembly clauses as
    the right of persons to meet to play bridge”); see also, e.g.,
    Rakove, The Second Amendment: The Highest Stage of
    Originalism, 
    76 Chi.-Kent L. Rev. 103
    , 127–128 (2000);
    Brief for Historians on Early American Legal, Constitu
    tional, and Pennsylvania History as Amici Curiae 22–33.
    Further, there is no popular consensus that the private
    self-defense right described in Heller is fundamental. The
    plurality suggests that two amici briefs filed in the case
    show such a consensus, see ante, at 42–43, but, of course,
    numerous amici briefs have been filed opposing incorpora
    tion as well. Moreover, every State regulates firearms
    extensively, and public opinion is sharply divided on the
    appropriate level of regulation. Much of this disagreement
    rests upon empirical considerations. One side believes the
    right essential to protect the lives of those attacked in the
    home; the other side believes it essential to regulate the
    right in order to protect the lives of others attacked with
    guns. It seems unlikely that definitive evidence will de
    velop one way or the other. And the appropriate level of
    firearm regulation has thus long been, and continues to
    be, a hotly contested matter of political debate. See, e.g.,
    Siegel, Dead or Alive: Originalism as Popular Constitu
    10                 MCDONALD v. CHICAGO
    BREYER, J., dissenting
    tionalism in Heller, 
    122 Harv. L. Rev. 191
    , 201–246 (2008).
    (Numerous sources supporting arguments and data in
    Part II–B can be found in the Appendix, infra.)
    Moreover, there is no reason here to believe that incor
    poration of the private self-defense right will further any
    other or broader constitutional objective. We are aware of
    no argument that gun-control regulations target or are
    passed with the purpose of targeting “discrete and insular
    minorities.” Carolene Products Co., supra, at 153, n. 4;
    see, e.g., ante, at 49–51 (STEVENS, J., dissenting). Nor will
    incorporation help to assure equal respect for individuals.
    Unlike the First Amendment’s rights of free speech, free
    press, assembly, and petition, the private self-defense
    right does not comprise a necessary part of the democratic
    process that the Constitution seeks to establish. See, e.g.,
    Whitney v. California, 
    274 U. S. 357
    , 377 (1927) (Brandeis,
    J., concurring). Unlike the First Amendment’s religious
    protections, the Fourth Amendment’s protection against
    unreasonable searches and seizures, the Fifth and Sixth
    Amendments’ insistence upon fair criminal procedure, and
    the Eighth Amendment’s protection against cruel and
    unusual punishments, the private self-defense right does
    not significantly seek to protect individuals who might
    otherwise suffer unfair or inhumane treatment at the
    hands of a majority. Unlike the protections offered by
    many of these same Amendments, it does not involve
    matters as to which judges possess a comparative exper
    tise, by virtue of their close familiarity with the justice
    system and its operation. And, unlike the Fifth Amend
    ment’s insistence on just compensation, it does not involve
    a matter where a majority might unfairly seize for itself
    property belonging to a minority.
    Finally, incorporation of the right will work a significant
    disruption in the constitutional allocation of decisionmak
    ing authority, thereby interfering with the Constitution’s
    ability to further its objectives.
    Cite as: 561 U. S. ____ (2010)           11
    BREYER, J., dissenting
    First, on any reasonable accounting, the incorporation of
    the right recognized in Heller would amount to a signifi
    cant incursion on a traditional and important area of state
    concern, altering the constitutional relationship between
    the States and the Federal Government. Private gun
    regulation is the quintessential exercise of a State’s “police
    power”—i.e., the power to “protec[t] . . . the lives, limbs,
    health, comfort, and quiet of all persons, and the protec
    tion of all property within the State,” by enacting “all
    kinds of restraints and burdens” on both “persons and
    property.” Slaughter-House Cases, 
    16 Wall. 36
    , 62 (1873)
    (internal quotation marks omitted). The Court has long
    recognized that the Constitution grants the States special
    authority to enact laws pursuant to this power. See, e.g.,
    Medtronic, Inc. v. Lohr, 
    518 U. S. 470
    , 475 (1996) (noting
    that States have “great latitude” to use their police powers
    (internal quotation marks omitted)); Metropolitan Life Ins.
    Co. v. Massachusetts, 
    471 U. S. 724
    , 756 (1985). A decade
    ago, we wrote that there is “no better example of the police
    power” than “the suppression of violent crime.” United
    States v. Morrison, 
    529 U. S. 598
    , 618 (2000). And exam
    ples in which the Court has deferred to state legislative
    judgments in respect to the exercise of the police power
    are legion. See, e.g., Gonzales v. Oregon, 
    546 U. S. 243
    ,
    270 (2006) (assisted suicide); Washington v. Glucksberg,
    
    521 U. S. 702
    , 721 (1997) (same); Berman v. Parker, 
    348 U. S. 26
    , 32 (1954) (“We deal, in other words, with what
    traditionally has been known as the police power. An
    attempt to define its reach or trace its outer limits is
    fruitless . . .”).
    Second, determining the constitutionality of a particular
    state gun law requires finding answers to complex empiri
    cally based questions of a kind that legislatures are better
    able than courts to make. See, e.g., Los Angeles v. Ala
    meda Books, Inc., 
    535 U. S. 425
    , 440 (2002) (plurality
    opinion); Turner Broadcasting System, Inc. v. FCC, 520
    12                MCDONALD v. CHICAGO
    BREYER, J., dissenting
    U. S. 180, 195–196 (1997). And it may require this kind of
    analysis in virtually every case.
    Government regulation of the right to bear arms nor
    mally embodies a judgment that the regulation will help
    save lives. The determination whether a gun regulation is
    constitutional would thus almost always require the
    weighing of the constitutional right to bear arms against
    the “primary concern of every government—a concern for
    the safety and indeed the lives of its citizens.” United
    States v. Salerno, 
    481 U. S. 739
    , 755 (1987). With respect
    to other incorporated rights, this sort of inquiry is some
    times present. See, e.g., Brandenburg v. Ohio, 
    395 U. S. 444
    , 447 (1969) (per curiam) (free speech); Sherbert v.
    Verner, 
    374 U. S. 398
    , 403 (1963) (religion); Brigham City
    v. Stuart, 
    547 U. S. 398
    , 403–404 (2006) (Fourth Amend
    ment); New York v. Quarles, 
    467 U. S. 649
    , 655 (1984)
    (Fifth Amendment); Salerno, 
    supra, at 755
     (bail). But
    here, this inquiry—calling for the fine tuning of protective
    rules—is likely to be part of a daily judicial diet.
    Given the competing interests, courts will have to try to
    answer empirical questions of a particularly difficult kind.
    Suppose, for example, that after a gun regulation’s adop
    tion the murder rate went up. Without the gun regulation
    would the murder rate have risen even faster? How is this
    conclusion affected by the local recession which has left
    numerous people unemployed? What about budget cuts
    that led to a downsizing of the police force? How effective
    was that police force to begin with? And did the regula
    tion simply take guns from those who use them for lawful
    purposes without affecting their possession by criminals?
    Consider too that countless gun regulations of many
    shapes and sizes are in place in every State and in many
    local communities. Does the right to possess weapons for
    self-defense extend outside the home? To the car? To
    work? What sort of guns are necessary for self-defense?
    Handguns? Rifles? Semiautomatic weapons? When is a
    Cite as: 561 U. S. ____ (2010)          13
    BREYER, J., dissenting
    gun semi-automatic? Where are different kinds of weap
    ons likely needed? Does time-of-day matter? Does the
    presence of a child in the house matter? Does the pres
    ence of a convicted felon in the house matter? Do police
    need special rules permitting patdowns designed to find
    guns? When do registration requirements become severe
    to the point that they amount to an unconstitutional ban?
    Who can possess guns and of what kind? Aliens? Prior
    drug offenders? Prior alcohol abusers? How would the
    right interact with a state or local government’s ability to
    take special measures during, say, national security emer
    gencies? As the questions suggest, state and local gun
    regulation can become highly complex, and these “are only
    a few uncertainties that quickly come to mind.” Caperton
    v. A. T. Massey Coal Co., 556 U. S. ___, ___ (2009) (ROB-
    ERTS, C. J., dissenting) (slip op., at 10).
    The difficulty of finding answers to these questions is
    exceeded only by the importance of doing so. Firearms
    cause well over 60,000 deaths and injuries in the United
    States each year. Those who live in urban areas, police
    officers, women, and children, all may be particularly at
    risk. And gun regulation may save their lives. Some
    experts have calculated, for example, that Chicago’s hand
    gun ban has saved several hundred lives, perhaps close to
    1,000, since it was enacted in 1983. Other experts argue
    that stringent gun regulations “can help protect police
    officers operating on the front lines against gun violence,”
    have reduced homicide rates in Washington, D. C., and
    Baltimore, and have helped to lower New York’s crime and
    homicide rates.
    At the same time, the opponents of regulation cast doubt
    on these studies. And who is right? Finding out may
    require interpreting studies that are only indirectly re
    lated to a particular regulatory statute, say one banning
    handguns in the home. Suppose studies find more acci
    dents and suicides where there is a handgun in the home
    14                 MCDONALD v. CHICAGO
    BREYER, J., dissenting
    than where there is a long gun in the home or no gun at
    all? To what extent do such studies justify a ban? What if
    opponents of the ban put forth counter studies?
    In answering such questions judges cannot simply refer
    to judicial homilies, such as Blackstone’s 18th-century
    perception that a man’s home is his castle. See 4 Black
    stone 223. Nor can the plurality so simply reject, by mere
    assertion, the fact that “incorporation will require judges
    to assess the costs and benefits of firearms restrictions.”
    Ante, at 44. How can the Court assess the strength of the
    government’s regulatory interests without addressing
    issues of empirical fact? How can the Court determine if a
    regulation is appropriately tailored without considering its
    impact? And how can the Court determine if there are
    less restrictive alternatives without considering what will
    happen if those alternatives are implemented?
    Perhaps the Court could lessen the difficulty of the
    mission it has created for itself by adopting a jurispruden
    tial approach similar to the many state courts that admin
    ister a state constitutional right to bear arms. See infra,
    at 19–20 (describing state approaches). But the Court has
    not yet done so. Cf. Heller, 544 U. S., at ___ (slip op., at
    57–64) (rejecting an “ ‘interest-balancing’ approach” simi
    lar to that employed by the States); ante, at 44 (plurality
    opinion). Rather, the Court has haphazardly created a few
    simple rules, such as that it will not touch “prohibitions on
    the possession of firearms by felons and the mentally ill,”
    “laws forbidding the carrying of firearms in sensitive
    places such as schools and government buildings,” or “laws
    imposing conditions and qualifications on the commercial
    sale of arms.” Heller, 544 U. S., at ___ (slip op., at 54–55);
    Ante, at 39 (plurality opinion). But why these rules and
    not others? Does the Court know that these regulations
    are justified by some special gun-related risk of death? In
    fact, the Court does not know. It has simply invented
    rules that sound sensible without being able to explain
    Cite as: 561 U. S. ____ (2010)           15
    BREYER, J., dissenting
    why or how Chicago’s handgun ban is different.
    The fact is that judges do not know the answers to the
    kinds of empirically based questions that will often deter
    mine the need for particular forms of gun regulation. Nor
    do they have readily available “tools” for finding and
    evaluating the technical material submitted by others.
    District Attorney’s Office for Third Judicial Dist. v. Os
    borne, 557 U. S. ___, ___ (2009) (slip op., at 21); see also
    Turner Broadcasting, 520 U. S., at 195–196. Judges can
    not easily make empirically based predictions; they have
    no way to gather and evaluate the data required to see if
    such predictions are accurate; and the nature of litigation
    and concerns about stare decisis further make it difficult
    for judges to change course if predictions prove inaccurate.
    Nor can judges rely upon local community views and
    values when reaching judgments in circumstances where
    prediction is difficult because the basic facts are unclear or
    unknown.
    At the same time, there is no institutional need to send
    judges off on this “mission-almost-impossible.” Legislators
    are able to “amass the stuff of actual experience and cull
    conclusions from it.” United States v. Gainey, 
    380 U. S. 63
    , 67 (1965). They are far better suited than judges to
    uncover facts and to understand their relevance. And
    legislators, unlike Article III judges, can be held democ
    ratically responsible for their empirically based and value
    laden conclusions. We have thus repeatedly affirmed our
    preference for “legislative not judicial solutions” to this
    kind of problem, see, e.g., Patsy v. Board of Regents of Fla.,
    
    457 U. S. 496
    , 513 (1982), just as we have repeatedly
    affirmed the Constitution’s preference for democratic
    solutions legislated by those whom the people elect.
    In New State Ice Co. v. Liebmann, 
    285 U. S. 262
    , 310–
    311 (1932), Justice Brandeis stated in dissent:
    “Some people assert that our present plight is due, in
    16                 MCDONALD v. CHICAGO
    BREYER, J., dissenting
    part, to the limitations set by courts upon experimen
    tation in the fields of social and economic science; and
    to the discouragement to which proposals for better
    ment there have been subjected otherwise. There
    must be power in the States and the Nation to re
    mould, through experimentation, our economic prac
    tices and institutions to meet changing social and eco
    nomic needs. I cannot believe that the framers of the
    Fourteenth Amendment, or the States which ratified
    it, intended to deprive us of the power to correct [the
    social problems we face].”
    There are 50 state legislatures. The fact that this Court
    may already have refused to take this wise advice with
    respect to Congress in Heller is no reason to make matters
    worse here.
    Third, the ability of States to reflect local preferences
    and conditions—both key virtues of federalism—here has
    particular importance. The incidence of gun ownership
    varies substantially as between crowded cities and uncon
    gested rural communities, as well as among the different
    geographic regions of the country. Thus, approximately
    60% of adults who live in the relatively sparsely populated
    Western States of Alaska, Montana, and Wyoming report
    that their household keeps a gun, while fewer than 15% of
    adults in the densely populated Eastern States of Rhode
    Island, New Jersey, and Massachusetts say the same.
    The nature of gun violence also varies as between rural
    communities and cities. Urban centers face significantly
    greater levels of firearm crime and homicide, while rural
    communities have proportionately greater problems with
    nonhomicide gun deaths, such as suicides and accidents.
    And idiosyncratic local factors can lead to two cities find
    ing themselves in dramatically different circumstances:
    For example, in 2008, the murder rate was 40 times
    higher in New Orleans than it was in Lincoln, Nebraska.
    Cite as: 561 U. S. ____ (2010)          17
    BREYER, J., dissenting
    It is thus unsurprising that States and local communi
    ties have historically differed about the need for gun regu
    lation as well as about its proper level. Nor is it surpris
    ing that “primarily, and historically,” the law has treated
    the exercise of police powers, including gun control, as
    “matter[s] of local concern.” Medtronic, 
    518 U. S., at 475
    (internal quotation marks omitted).
    Fourth, although incorporation of any right removes
    decisions from the democratic process, the incorporation of
    this particular right does so without strong offsetting
    justification—as the example of Oak Park’s handgun ban
    helps to show. See Oak Park, Ill., Municipal Code, §27–2–
    1 (1995). Oak Park decided to ban handguns in 1983,
    after a local attorney was shot to death with a handgun
    that his assailant had smuggled into a courtroom in a
    blanket. Brief for Oak Park Citizens Committee for
    Handgun Control as Amicus Curiae 1, 21 (hereinafter Oak
    Park Brief). A citizens committee spent months gathering
    information about handguns. Id., at 21. It secured 6,000
    signatures from community residents in support of a ban.
    Id., at 21–22. And the village board enacted a ban into
    law. Id., at 22.
    Subsequently, at the urging of ban opponents the Board
    held a community referendum on the matter. Ibid. The
    citizens committee argued strongly in favor of the ban.
    Id., at 22–23. It pointed out that most guns owned in Oak
    Park were handguns and that handguns were misused
    more often than citizens used them in self-defense. Id., at
    23. The ban opponents argued just as strongly to the
    contrary. Ibid. The public decided to keep the ban by a
    vote of 8,031 to 6,368. Ibid. And since that time, Oak
    Park now tells us, crime has decreased and the community
    has seen no accidental handgun deaths. Id., at 2.
    Given the empirical and local value-laden nature of the
    questions that lie at the heart of the issue, why, in a Na
    tion whose Constitution foresees democratic decisionmak
    18                 MCDONALD v. CHICAGO
    BREYER, J., dissenting
    ing, is it so fundamental a matter as to require taking that
    power from the people? What is it here that the people did
    not know? What is it that a judge knows better?
    *     *    *
    In sum, the police power, the superiority of legislative
    decisionmaking, the need for local decisionmaking, the
    comparative desirability of democratic decisionmaking,
    the lack of a manageable judicial standard, and the life
    threatening harm that may flow from striking down regu
    lations all argue against incorporation. Where the incor
    poration of other rights has been at issue, some of these
    problems have arisen. But in this instance all these prob
    lems are present, all at the same time, and all are likely to
    be present in most, perhaps nearly all, of the cases in
    which the constitutionality of a gun regulation is at issue.
    At the same time, the important factors that favor incor
    poration in other instances—e.g., the protection of broader
    constitutional objectives—are not present here. The up
    shot is that all factors militate against incorporation—
    with the possible exception of historical factors.
    III
    I must, then, return to history. The plurality, in seeking
    to justify incorporation, asks whether the interests the
    Second Amendment protects are “ ‘deeply rooted in this
    Nation’s history and tradition.’ ” Ante, at 19 (quoting
    Glucksberg, 521 U. S., at 721; internal quotation marks
    omitted). It looks to selected portions of the Nation’s
    history for the answer. And it finds an affirmative reply.
    As I have made clear, I do not believe history is the only
    pertinent consideration. Nor would I read history as
    broadly as the majority does. In particular, since we here
    are evaluating a more particular right—namely, the right
    to bear arms for purposes of private self-defense—general
    historical references to the “right to keep and bear arms”
    Cite as: 561 U. S. ____ (2010)           19
    BREYER, J., dissenting
    are not always helpful. Depending upon context, early
    historical sources may mean to refer to a militia-based
    right—a matter of considerable importance 200 years
    ago—which has, as the majority points out, “largely faded
    as a popular concern.” Ante, at 22. There is no reason to
    believe that matters of such little contemporary impor
    tance should play a significant role in answering the
    incorporation question. See Apodaca, 
    406 U. S., at 410
    (incorporation “inquiry must focus upon the function
    served” by the right in question in “contemporary soci
    ety”); Wolf v. Colorado, 
    338 U. S. 25
    , 27 (1949) (incorpora
    tion must take into account “the movements of a free
    society” and “the gradual and empiric process of inclusion
    and exclusion” (internal quotation marks omitted)); cf.
    U. S. Const., Art. I, §910 (prohibiting federal officeholders
    from accepting a “Title, of any kind whatever, from [a]
    foreign State”—presumably a matter of considerable
    importance 200 years ago).
    That said, I can find much in the historical record that
    shows that some Americans in some places at certain
    times thought it important to keep and bear arms for
    private self-defense. For instance, the reader will see that
    many States have constitutional provisions protecting gun
    possession. But, as far as I can tell, those provisions
    typically do no more than guarantee that a gun regulation
    will be a reasonable police power regulation. See Winkler,
    Scrutinizing the Second Amendment, 
    105 Mich. L. Rev. 683
    , 686, 716–717 (2007) (the “courts of every state to
    consider the question apply a deferential ‘reasonable
    regulation’ standard”) (hereinafter Winkler, Scrutinizing);
    see also 
    id.,
     at 716–717 (explaining the difference between
    that standard and ordinary rational-basis review). It is
    thus altogether unclear whether such provisions would
    prohibit cities such as Chicago from enacting laws, such as
    the law before us, banning handguns. See id., at 723. The
    majority, however, would incorporate a right that is likely
    20                 MCDONALD v. CHICAGO
    BREYER, J., dissenting
    inconsistent with Chicago’s law; and the majority would
    almost certainly strike down that law. Cf. Heller, 554
    U. S., at ___ (slip op., at 57–64) (striking down the District
    of Columbia’s handgun ban).
    Thus, the specific question before us is not whether
    there are references to the right to bear arms for self
    defense throughout this Nation’s history—of course there
    are—or even whether the Court should incorporate a
    simple constitutional requirement that firearms regula
    tions not unreasonably burden the right to keep and bear
    arms, but rather whether there is a consensus that so
    substantial a private self-defense right as the one de
    scribed in Heller applies to the States. See, e.g., Glucks
    berg, 
    supra, at 721
     (requiring “a careful description” of the
    right at issue when deciding whether it is “deeply rooted
    in this Nation’s history and tradition” (internal quotation
    marks omitted)). On this question, the reader will have to
    make up his or her own mind about the historical record
    that I describe in part below. In my view, that record is
    insufficient to say that the right to bear arms for private
    self-defense, as explicated by Heller, is fundamental in the
    sense relevant to the incorporation inquiry. As the evi
    dence below shows, States and localities have consistently
    enacted firearms regulations, including regulations simi
    lar to those at issue here, throughout our Nation’s history.
    Courts have repeatedly upheld such regulations. And it is,
    at the very least, possible, and perhaps likely, that incor
    poration will impose on every, or nearly every, State a
    different right to bear arms than they currently recog
    nize—a right that threatens to destabilize settled state
    legal principles. Cf. 554 U. S., at ___ (slip op., at 57–64)
    (rejecting an “ ‘interest-balancing’ approach” similar to
    that employed by the States).
    I thus cannot find a historical consensus with respect to
    whether the right described by Heller is “fundamental” as
    our incorporation cases use that term. Nor can I find
    Cite as: 561 U. S. ____ (2010)            21
    BREYER, J., dissenting
    sufficient historical support for the majority’s conclusion
    that that right is “deeply rooted in this Nation’s history
    and tradition.” Instead, I find no more than ambiguity
    and uncertainty that perhaps even expert historians
    would find difficult to penetrate. And a historical record
    that is so ambiguous cannot itself provide an adequate
    basis for incorporating a private right of self-defense and
    applying it against the States.
    The Eighteenth Century
    The opinions in Heller collect much of the relevant 18th
    century evidence. See 554 U. S., at ___ (slip op., at 5–32);
    
    id.,
     at ___ (STEVENS, J., dissenting) (slip op., at 5–31); 
    id.,
    at ___ (BREYER, J., dissenting) (slip op., at 4–7). In respect
    to the relevant question—the “deeply rooted nature” of a
    right to keep and bear arms for purposes of private self
    defense—that evidence is inconclusive, particularly when
    augmented as follows:
    First, as I have noted earlier in this opinion, and JUS-
    TICE STEVENS argued in dissent, the history discussed in
    Heller shows that the Second Amendment was enacted
    primarily for the purpose of protecting militia-related
    rights. See supra, at 4; Heller, supra, at ___ (slip op., at 5–
    31). Many of the scholars and historians who have written
    on the subject apparently agree. See supra, at 2–5.
    Second, historians now tell us that the right to which
    Blackstone referred, an important link in the Heller ma
    jority’s historical argument, concerned the right of Par
    liament (representing the people) to form a militia to
    oppose a tyrant (the King) threatening to deprive the
    people of their traditional liberties (which did not include
    an unregulated right to possess guns). Thus, 18th-century
    language referring to a “right to keep and bear arms” does
    not ipso facto refer to a private right of self-defense—
    certainly not unambiguously so. See English Historians’
    Brief 3–27; see also supra, at 2–5.
    22                 MCDONALD v. CHICAGO
    BREYER, J., dissenting
    Third, scholarly articles indicate that firearms were
    heavily regulated at the time of the framing—perhaps
    more heavily regulated than the Court in Heller believed.
    For example, one scholar writes that “[h]undreds of indi
    vidual statutes regulated the possession and use of guns
    in colonial and early national America.” Churchill, Gun
    Regulation, the Police Power, and the Right to Keep Arms,
    
    25 Law & Hist. Rev. 139
    , 143 (2007). Among these stat
    utes was a ban on the private firing of weapons in Boston,
    as well as comprehensive restrictions on similar conduct
    in Philadelphia and New York. See Acts and Laws of
    Massachusetts, p. 208 (1746); 5 J. Mitchell, & H. Flanders,
    Statutes at Large of Pennsylvania From 1682 to 1801, pp.
    108–109 (1898); 4 Colonial Laws of New York ch. 1233, p.
    748 (1894); see also Churchill, supra, at 162–163 (discuss
    ing bans on the shooting of guns in Pennsylvania and New
    York).
    Fourth, after the Constitution was adopted, several
    States continued to regulate firearms possession by, for
    example, adopting rules that would have prevented the
    carrying of loaded firearms in the city, Heller, 554 U. S., at
    ___ (slip op., at 5–7) (BREYER, J., dissenting); see also id.,
    at ___ (slip op., at 59–60). Scholars have thus concluded
    that the primary Revolutionary era limitation on a State’s
    police power to regulate guns appears to be only that
    regulations were “aimed at a legitimate public purpose”
    and “consistent with reason.” Cornell, Early American
    Gun Regulation and the Second Amendment, 
    25 Law & Hist. Rev. 197
    , 198 (2007).
    The Pre-Civil War Nineteenth Century
    I would also augment the majority’s account of this
    period as follows:
    First, additional States began to regulate the discharge
    of firearms in public places. See, e.g., Act of Feb. 17, 1831,
    §6, reprinted in 3 Statutes of Ohio and the Northwestern
    Cite as: 561 U. S. ____ (2010)          23
    BREYER, J., dissenting
    Territory 1740 (S. Chase ed. 1835); Act of Dec. 3, 1825, ch.
    CCXCII, §3, 
    1825 Tenn. Priv. Acts 306
    .
    Second, States began to regulate the possession of con
    cealed weapons, which were both popular and dangerous.
    See, e.g., C. Cramer, Concealed Weapon Laws of the Early
    Republic 143–152 (1999) (collecting examples); see also
    1837–1838 Tenn. Pub. Acts ch. 137, pp. 200–201 (banning
    the wearing, sale, or giving of Bowie knives); 1847 Va.
    Acts ch. 7, §8, p. 110, (“Any free person who shall habitu
    ally carry about his person, hidden from common observa
    tion, any pistol, dirk, bowie knife, or weapon of the like
    kind, from the use of which the death of any person might
    probably ensue, shall for every offense be punished by [a]
    fine not exceed fifty dollars”).
    State courts repeatedly upheld the validity of such laws,
    finding that, even when the state constitution granted a
    right to bear arms, the legislature was permitted to, e.g.,
    “abolish” these small, inexpensive, “most dangerous weap
    ons entirely from use,” even in self-defense. Day v. State,
    
    37 Tenn. 496
    , 500 (1857); see also, e.g., State v. Jumel, 
    13 La. Ann. 399
    , 400 (1858) (upholding concealed weapon ban
    because it “prohibited only a particular mode of bearing
    arms which is found dangerous to the peace of society”);
    State v. Chandler, 
    5 La. Ann. 489
    , 489–490 (1850) (uphold
    ing concealed weapon ban and describing the law as “abso
    lutely necessary to counteract a vicious state of society,
    growing out of the habit of carrying concealed weapons”);
    State v. Reid, 
    1 Ala. 612
    , 616–617 (1840).
    The Post-Civil War Nineteenth Century
    It is important to read the majority’s account with the
    following considerations in mind:
    First, the Court today properly declines to revisit our
    interpretation of the Privileges or Immunities Clause. See
    ante, at 10. The Court’s case for incorporation must thus
    rest on the conclusion that the right to bear arms is “fun
    24                  MCDONALD v. CHICAGO
    BREYER, J., dissenting
    damental.” But the very evidence that it advances in
    support of the conclusion that Reconstruction-era Ameri
    cans strongly supported a private self-defense right shows
    with equal force that Americans wanted African-American
    citizens to have the same rights to possess guns as did
    white citizens. Ante, at 22–33. Here, for example is what
    Congress said when it enacted a Fourteenth Amendment
    predecessor, the Second Freedman’s Bureau Act. It wrote
    that the statute, in order to secure “the constitutional
    right to bear arms . . . for all citizens,” would assure that
    each citizen:
    “shall have . . . full and equal benefit of all laws and
    proceedings concerning personal liberty, personal se
    curity, and the acquisition, enjoyment, and disposition
    of estate, real and personal, including the constitu
    tional right to bear arms, [by securing] . . . to . . . all
    the citizens of [every] . . . State or district without re
    spect to race or color, or previous condition of slavery.”
    §14, 
    14 Stat. 176
    –177 (emphasis added).
    This sounds like an antidiscrimination provision. See
    Rosenthal, The New Originalism Meets the Fourteenth
    Amendment: Original Public Meaning and the Problem of
    Incorporation, 
    18 J. Contemp. Legal Issues 361
    , 383–384
    (2009) (discussing evidence that the Freedmen’s Bureau
    was focused on discrimination).
    Another Fourteenth Amendment predecessor, the Civil
    Rights Act of 1866, also took aim at discrimination. See
    §1, 
    14 Stat. 27
     (citizens of “every race and color, without
    regard to any previous condition of slavery or involuntary
    servitude . . . shall have the same right [to engage in
    various activities] and to full and equal benefit of all laws
    . . . as is enjoyed by white citizens”). And, of course, the
    Fourteenth Amendment itself insists that all States guar
    antee their citizens the “equal protection of the laws.”
    There is thus every reason to believe that the funda
    Cite as: 561 U. S. ____ (2010)           25
    BREYER, J., dissenting
    mental concern of the Reconstruction Congress was the
    eradication of discrimination, not the provision of a new
    substantive right to bear arms free from reasonable state
    police power regulation. See, e.g., Brief for Municipal
    Respondents 62–69 (discussing congressional record evi
    dence that Reconstruction Congress was concerned about
    discrimination). Indeed, why would those who wrote the
    Fourteenth Amendment have wanted to give such a right
    to Southerners who had so recently waged war against the
    North, and who continued to disarm and oppress recently
    freed African-American citizens? Cf. Act of Mar. 2, 1867,
    §6, 
    14 Stat. 487
     (disbanding Southern militias because
    they were, inter alia, disarming the freedmen).
    Second, firearms regulation in the later part of the 19th
    century was common. The majority is correct that the
    Freedmen’s Bureau points to a right to bear arms, and it
    stands to reason, as the majority points out, that “[i]t
    would have been nonsensical for Congress to guarantee
    the . . . equal benefit of a . . . right that does not exist.”
    Ante, at 32. But the majority points to no evidence that
    there existed during this period a fundamental right to
    bear arms for private self-defense immune to the reason
    able exercise of the state police power. See Emberton, The
    Limits of Incorporation: Violence, Gun Rights, and Gun
    Regulation in the Reconstruction South, 17 Stan. L. &
    Pol’y Rev. 615, 621–622 (2006) (noting that history shows
    that “nineteenth-century Americans” were “not opposed to
    the idea that the state should be able to control the use of
    firearms”).
    To the contrary, in the latter half of the 19th century, a
    number of state constitutions adopted or amended after
    the Civil War explicitly recognized the legislature’s gen
    eral ability to limit the right to bear arms. See Tex.
    Const., Art. I, §13 (1869) (protecting “the right to keep and
    bear arms,” “under such regulations as the legislature
    may prescribe”); Idaho Const., Art. I, §11 (1889) (“The
    26                 MCDONALD v. CHICAGO
    BREYER, J., dissenting
    people have the right to bear arms . . .; but the Legislature
    shall regulate the exercise of this right by law”); Utah
    Const., Art. I, §6 (1896) (same). And numerous other state
    constitutional provisions adopted during this period ex
    plicitly granted the legislature various types of regulatory
    power over firearms. See Brief for Thirty-Four Profes
    sional Historians et al. as Amici Curiae 14–15 (hereinafter
    Legal Historians’ Brief).
    Moreover, four States largely banned the possession of
    all nonmilitary handguns during this period. See 1879
    Tenn. Pub. Acts ch. 186, §1 (prohibiting citizens from
    carrying “publicly or privately, any . . . belt or pocket
    pistol, revolver, or any kind of pistol, except the army or
    navy pistol, usually used in warfare, which shall be car
    ried openly in the hand”); 1876 Wyo. Comp. Laws ch. 52,
    §1 (forbidding “concealed or ope[n]” bearing of “any fire
    arm or other deadly weapon, within the limits of any city,
    town or village”); Ark. Act of Apr. 1, 1881, ch. 96, §1 (pro
    hibiting the “wear[ing] or carry[ng]” of “any pistol . . .
    except such pistols as are used in the army or navy,”
    except while traveling or at home); Tex. Act of Apr. 12,
    1871, ch. 34 (prohibiting the carrying of pistols unless
    there are “immediate and pressing” reasonable grounds to
    fear “immediate and pressing” attack or for militia ser
    vice). Fifteen States banned the concealed carry of pistols
    and other deadly weapons. See Legal Historians’ Brief 16,
    n. 14. And individual municipalities enacted stringent
    gun controls, often in response to local conditions—Dodge
    City, Kansas, for example, joined many western cattle
    towns in banning the carrying of pistols and other danger
    ous weapons in response to violence accompanying west
    ern cattle drives. See Brief for Municipal Respondents 30
    (citing Dodge City, Kan., Ordinance No. 16, §XI (Sept. 22,
    1876)); D. Courtwright, The Cowboy Subculture, in Guns
    in America: A Reader 96 (J. Dizard et al. eds. 1999) (dis
    cussing how Western cattle towns required cowboys to
    Cite as: 561 U. S. ____ (2010)            27
    BREYER, J., dissenting
    “check” their guns upon entering town).
    Further, much as they had during the period before the
    Civil War, state courts routinely upheld such restrictions.
    See, e.g., English v. State, 
    35 Tex. 473
     (1871); Hill v. State,
    
    53 Ga. 472
    , 475 (1874); Fife v. State, 
    31 Ark. 455
    , 461
    (1876); State v. Workman, 
    35 W. Va. 367
    , 373 (1891). The
    Tennessee Supreme Court, in upholding a ban on posses
    sion of nonmilitary handguns and certain other weapons,
    summarized the Reconstruction understanding of the
    states’ police power to regulate firearms:
    “Admitting the right of self-defense in its broadest
    sense, still on sound principle every good citizen is
    bound to yield his preference as to the means to be
    used, to the demands of the public good; and where
    certain weapons are forbidden to be kept or used by the
    law of the land, in order to the prevention of [sic]
    crime—a great public end—no man can be permitted
    to disregard this general end, and demand of the
    community the right, in order to gratify his whim or
    willful desire to use a particular weapon in his par
    ticular self-defense. The law allows ample means of
    self-defense, without the use of the weapons which we
    have held may be rightfully prescribed by this statute.
    The object being to banish these weapons from the
    community by an absolute prohibition for the preven
    tion of crime, no man’s particular safety, if such case
    could exist, ought to be allowed to defeat this end.”
    Andrews v. State, 
    50 Tenn. 165
    , 188–189 (1871) (em
    phasis added).
    The Twentieth and Twenty-First Centuries
    Although the majority does not discuss 20th- or 21st
    century evidence concerning the Second Amendment at
    any length, I think that it is essential to consider the
    recent history of the right to bear arms for private self
    defense when considering whether the right is “fundamen
    28                MCDONALD v. CHICAGO
    BREYER, J., dissenting
    tal.” To that end, many States now provide state constitu
    tional protection for an individual’s right to keep and bear
    arms. See Volokh, State Constitutional Rights to Keep
    and Bear Arms, 
    11 Tex. Rev. L. & Pol. 191
    , 205 (2006)
    (identifying over 40 States). In determining the impor
    tance of this fact, we should keep the following considera
    tions in mind:
    First, by the end of the 20th century, in every State and
    many local communities, highly detailed and complicated
    regulatory schemes governed (and continue to govern)
    nearly every aspect of firearm ownership: Who may sell
    guns and how they must be sold; who may purchase guns
    and what type of guns may be purchased; how firearms
    must be stored and where they may be used; and so on.
    See generally Legal Community Against Violence, Regu
    lating Guns In America (2008), available at http://
    www.lcav.org/publications-briefs/regulating_guns. asp (all
    Internet materials as visited June 24, 2010, and available
    in Clerk of Court’s case file) (detailing various arms regu
    lations in every State).
    Of particular relevance here, some municipalities ban
    handguns, even in States that constitutionally protect the
    right to bear arms. See Chicago, Ill., Municipal Code, §8–
    20–050(c) (2009); Oak Park, Ill., Municipal Code, §§27–2–
    1, 27–1–1 (1995); Toledo, Ohio, Municipal Code, ch. 549.25
    (2010). Moreover, at least seven States and Puerto Rico
    ban assault weapons or semiautomatic weapons. See Cal.
    Penal Code Ann. §12280(b) (West Supp. 2009); 
    Conn. Gen. Stat. Ann. §53
    –202c (2007); 
    Haw. Rev. Stat. §134
    –8
    (1993); Md. Crim. Law Code Ann. §4–303(a) (Lexis 2002);
    Mass. Gen. Laws, ch. 140, §131M (West 2006); N. J. Stat.
    Ann. §2C:39-5 (West Supp. 2010); N. Y. Penal Law Ann.
    §265.02(7) (West Supp. 2008); 25 Laws P. R. Ann. §456m
    (Supp. 2006); see also 
    18 U. S. C. §922
    (o) (federal ma
    chinegun ban).
    Thirteen municipalities do the same. See Albany, N. Y.,
    Cite as: 561 U. S. ____ (2010)           29
    BREYER, J., dissenting
    City Code §193–16(A) (2005); Aurora, Ill., Code of Ordi
    nances §29–49(a) (2009); Buffalo, N. Y., City Code §180–
    1(F) (2000); Chicago, Ill., Municipal Code §8–24–025(a)
    (2010); Cincinnati, Ohio, Municipal Code §708–37(a)
    (2008); Cleveland, Ohio, Codified Ordinances §628.03(a)
    (2008); Columbus, Ohio, City Code §2323.31 (2007); Den
    ver, Colo., Municipal Code §38–130(e) (2008); Morton
    Grove, Ill., Village Code §6–2–3(A); N. Y. C. Admin. Code
    §10–303.1 (2009); Oak Park, Ill., Village Code §27–2–1
    (2009); Rochester, N. Y., City Code §47–5(F) (2008);
    Toledo, Ohio, Municipal Code §549.23(a). And two States,
    Maryland and Hawaii, ban assault pistols. See 
    Haw. Rev. Stat. Ann. §134
    –8; Md. Crim. Law Code Ann. §4–303
    (Lexis 2002).
    Second, as I stated earlier, state courts in States with
    constitutions that provide gun rights have almost uni
    formly interpreted those rights as providing protection
    only against unreasonable regulation of guns. See, e.g.,
    Winkler, Scrutinizing 686 (the “courts of every state to
    consider” a gun regulation apply the “ ‘reasonable regula
    tion’ ” approach); State v. McAdams, 
    714 P. 2d 1236
    , 1238
    (Wyo. 1986); Robertson v. City & County of Denver, 
    874 P. 2d 325
    , 328 (Colo. 1994).
    When determining reasonableness those courts have
    normally adopted a highly deferential attitude towards
    legislative determinations. See Winkler, Scrutinizing 723
    (identifying only six cases in the 60 years before the arti
    cle’s publication striking down gun control laws: three that
    banned “the transportation of any firearms for any pur
    pose whatsoever,” a single “permitting law,” and two as
    applied challenges in “unusual circumstances”). Hence, as
    evidenced by the breadth of existing regulations, States
    and local governments maintain substantial flexibility to
    regulate firearms—much as they seemingly have through
    out the Nation’s history—even in those States with an
    arms right in their constitutions.
    30                MCDONALD v. CHICAGO
    BREYER, J., dissenting
    Although one scholar implies that state courts are less
    willing to permit total gun prohibitions, see Volokh, Im
    plementing the Right to Keep and Bear Arms for Self-
    Defense: An Analytical Framework and a Research
    Agenda, 
    56 UCLA L. Rev. 1443
    , 1458 (2009), I am aware
    of no instances in the past 50 years in which a state court
    has struck down as unconstitutional a law banning a
    particular class of firearms, see Winkler, Scrutinizing 723.
    Indeed, state courts have specifically upheld as constitu
    tional (under their state constitutions) firearms regula
    tions that have included handgun bans. See Kalodimos v.
    Village of Morton Grove, 
    103 Ill. 2d 483
    , 499, 
    470 N. E. 2d 266
    , 273 (1984) (upholding a handgun ban because the
    arms right is merely a right “to possess some form of
    weapon suitable for self-defense or recreation”); Cleveland
    v. Turner, No. 36126, 
    1977 WL 201393
    , *5 (Ohio Ct. App.,
    Aug. 4, 1977) (handgun ban “does not absolutely interfere
    with the right of the people to bear arms, but rather pro
    scribes possession of a specifically defined category of
    handguns”); State v. Bolin 378 S. C. 96, 99, 
    662 S. E. 2d 38
    , 39 (2008) (ban on handgun possession by persons
    under 21 did not infringe arms right because they can
    “posses[s] other types of guns”). Thus, the majority’s
    decision to incorporate the private self-defense right rec
    ognized in Heller threatens to alter state regulatory re
    gimes, at least as they pertain to handguns.
    Third, the plurality correctly points out that only a few
    state courts, a “paucity” of state courts, have specifically
    upheld handgun bans. Ante, at 39. But which state courts
    have struck them down? The absence of supporting in
    formation does not help the majority find support. Cf.
    United States v. Wells, 
    519 U. S. 482
    , 496 (1997) (noting
    that it is “treacherous to find in congressional silence
    alone the adoption of a controlling rule of law” (internal
    quotation marks omitted)). Silence does not show or tend
    to show a consensus that a private self-defense right
    Cite as: 561 U. S. ____ (2010)          31
    BREYER, J., dissenting
    (strong enough to strike down a handgun ban) is “deeply
    rooted in this Nation’s history and tradition.”
    *   *     *
    In sum, the Framers did not write the Second Amend
    ment in order to protect a private right of armed self
    defense. There has been, and is, no consensus that the
    right is, or was, “fundamental.” No broader constitutional
    interest or principle supports legal treatment of that right
    as fundamental. To the contrary, broader constitutional
    concerns of an institutional nature argue strongly against
    that treatment.
    Moreover, nothing in 18th-, 19th-, 20th-, or 21st-century
    history shows a consensus that the right to private armed
    self-defense, as described in Heller, is “deeply rooted in
    this Nation’s history or tradition” or is otherwise “funda
    mental.” Indeed, incorporating the right recognized in
    Heller may change the law in many of the 50 States. Read
    in the majority’s favor, the historical evidence is at most
    ambiguous. And, in the absence of any other support for
    its conclusion, ambiguous history cannot show that the
    Fourteenth Amendment incorporates a private right of
    self-defense against the States.
    With respect, I dissent.
    32                  MCDONALD v. CHICAGO
    BREYER, J., dissenting
    Appendix to opinion of BREYER, J.
    APPENDIX
    Sources Supporting Data in Part II–B
    Popular Consensus
    Please see the following sources to support the paragraph
    on popular opinion on pages 9–10:
    •	 Briefs filed in this case that argue against incorpo
    ration include: Brief for United States Conference
    of Mayors as Amicus Curiae 1, 17–33 (organization
    representing “all United States cities with popula
    tions of 30,000 or more”); Brief for American Cities
    et al. as Amici Curiae 1–3 (brief filed on behalf of
    many cities, e.g., Philadelphia, Seattle, San Fran
    cisco, Oakland, Cleveland); Brief for Representative
    Carolyn McCarthy et al. as Amici Curiae 5–10;
    Brief for State of Illinois et al. as Amici Curiae
    7–35.
    •	 Wilkinson, Of Guns, Abortions, and the Unraveling
    Rule of Law, 
    95 Va. L. Rev. 253
    , 301 (2009) (dis
    cussing divided public opinion over the correct level
    of gun control).
    Data on Gun Violence
    Please see the following sources to support the sen
    tences concerning gun violence on page 13:
    •	 Dept. of Justice, Bureau of Justice Statistics, M.
    Zawitz & K. Strom, Firearm Injury and Death from
    Crime, 1993–1997, p. 2 (Oct. 2000) (over 60,000
    deaths and injuries caused by firearms each year).
    •	 Campbell, et al., Risk Factors for Femicide in Abu
    sive Relationships: Results from a Multisite Case
    Control Study, 93 Am. J. of Pub. Health 1089, 1092
    (2003) (noting that an abusive partner’s access to a
    firearm increases the risk of homicide eightfold for
    Cite as: 561 U. S. ____ (2010)          33
    BREYER, J., dissenting
    Appendix to opinion of BREYER, J.
    women in physically abusive relationship).
    •	 American Academy of Pediatrics, Firearm-Related
    Injuries Affecting the Pediatric Population, 105 Pe
    diatrics 888 (2000) (noting that in 1997 “firearm
    related deaths accounted for 22.5% of all injury
    deaths” for individuals between 1 and 19).
    •	 Dept. of Justice, Federal Bureau of Investigation,
    Law Enforcement Officers Killed & Assaulted,
    2006, (Table) 27 (noting that firearms killed 93% of
    the 562 law enforcement officers feloniously killed
    in the line of duty between 1997 and 2006), online
    at http://www.fbi.gov/ucr/killed/2006/ table27.html.
    •	 Dept. of Justice, Bureau of Justice Statistics, D.
    Duhart, Urban, Suburban, and Rural Victimiza
    tion, 1993–1998, pp. 1, 9 (Oct. 2000) (those who live
    in urban areas particularly at risk of firearm vio
    lence).
    •	 Wintemute, The Future of Firearm Violence Pre
    vention, 
    281 JAMA 475
     (1999) (“half of all homi
    cides occurred in 63 cities with 16% of the nation’s
    population”).
    Data on the Effectiveness of Regulation
    Please see the following sources to support the sen
    tences concerning the effectiveness of regulation on page
    13:
    •	 See Brief for Professors of Criminal Justice as Amici
    Curiae 13 (noting that Chicago’s handgun ban
    saved several hundred lives, perhaps close to 1,000,
    since it was enacted in 1983).
    •	 Brief for Association of Prosecuting Attorneys et al.
    as Amici Curiae 13–16, 20 (arguing that stringent
    gun regulations “can help protect police officers op
    34                  MCDONALD v. CHICAGO
    BREYER, J., dissenting
    Appendix to opinion of BREYER, J.
    erating on the front lines against gun violence,”
    and have reduced homicide rates in Washington,
    D. C., and Baltimore).
    •	 Brief for United States Conference of Mayors as
    Amici Curiae 4–13 (arguing that gun regulations
    have helped to lower New York’s crime and homi
    cide rates).
    Data on Handguns in the Home
    Please see the following sources referenced in the sen
    tences discussing studies concerning handguns in the
    home on pages 13–14:
    •	 Brief for Organizations Committed to Protecting the
    Public’s Health, Safety, and Well-Being as Amici
    Curiae in Support of Respondents 13–16 (discuss
    ing studies that show handgun ownership in the
    home is associated with increased risk of homicide).
    •	 Wiebe, Firearms in US Homes as a Risk Factor for
    Unintentional Gunshot Fatality, 35 Accident
    Analysis and Prevention 711, 713–714 (2003)
    (showing that those who die in firearms accidents
    are nearly four times more likely than average to
    have a gun in their home).
    •	 Kellerman et al., Suicide in the Home in Relation to
    Gun Ownership, 327 New England J. Medicine
    467, 470 (1992) (demonstrating that “homes with
    one or more handguns were associated with a risk
    of suicide almost twice as high as that in homes
    containing only long guns”).
    Data on Regional Views and Conditions
    Please see the following sources referenced in the sec
    tion on the diversity of regional views and conditions on
    page 16:
    Cite as: 561 U. S. ____ (2010)          35
    BREYER, J., dissenting
    Appendix to opinion of BREYER, J.
    •	 Okoro, et al., Prevalence of Household Firearms and
    Firearm-Storage Practices in the 50 States and the
    District of Columbia: Findings From the Behavioral
    Risk Factor Surveillance System, 2002, 116 Pediat
    rics 370, 372 (2005) (presenting data on firearm
    ownership by State).
    •	 Heller, 554 U. S., at ___ (BREYER, J., dissenting)
    (slip op., at 19–20) (discussing various sources
    showing that gun violence varies by state, includ
    ing Wintemute, The Future of Firearm Violence
    Prevention, 
    281 JAMA 475
     (1999)).
    •	 Heller, supra, at ___ (BREYER, J., dissenting) (slip
    op., at 19–20) (citing Branas, Nance, Elliott, Rich
    mond, & Schwab, Urban-Rural Shifts in Inten
    tional Firearm Death, 94 Am. J. Public Health
    1750, 1752 (2004)) (discussing the fact that urban
    centers face significantly greater levels of firearm
    crime and homicide, while rural communities have
    proportionately greater problems with nonhomicide
    gun deaths, such as suicides and accidents).
    •	 Dept. of Justice, Federal Bureau of Investigation,
    2008 Crime in the United States, tbl. 6 (noting that
    murder rate is 40 times higher in New Orleans
    than it is in Lincoln, Nebraska).
    

Document Info

Docket Number: 08-1521

Citation Numbers: 177 L. Ed. 2d 894, 130 S. Ct. 3020, 561 U.S. 742, 2010 U.S. LEXIS 5523

Judges: Alito, Breyer, Ginsburg, Scalia, Sotomayor, Stevens, Thomas

Filed Date: 6/28/2010

Precedential Status: Precedential

Modified Date: 8/3/2023

Authorities (134)

marianne-e-engblom-and-charles-e-palmer-v-hugh-l-carey-governor-of-the , 677 F.2d 957 ( 1982 )

National Rifle Ass'n of America, Inc. v. City of Chicago , 567 F.3d 856 ( 2009 )

Nunn v. State , 1 Ga. 243 ( 1846 )

Hill v. State , 53 Ga. 472 ( 1874 )

Evelyn Fitzgerald v. Porter Memorial Hospital , 523 F.2d 716 ( 1975 )

Victor D. Quilici, Robert Stengl, George L. Reichert, and ... , 695 F.2d 261 ( 1982 )

Cooper v. Mayor of Savannah , 4 Ga. 68 ( 1848 )

Livingston v. Van Ingen , 9 Johns. 507 ( 1812 )

Cheung v. Dist. Ct. , 124 P.3d 550 ( 2005 )

Lochner v. New York , 25 S. Ct. 539 ( 1905 )

Vance v. Bradley , 99 S. Ct. 939 ( 1979 )

State v. Bolin , 378 S.C. 96 ( 2008 )

National Rifle Ass'n of America, Inc. v. Village of Oak Park , 617 F. Supp. 2d 752 ( 2008 )

Hathorn v. Calef , 53 Me. 471 ( 1866 )

United States v. Salerno , 107 S. Ct. 2095 ( 1987 )

United States v. Cruikshank , 23 L. Ed. 588 ( 1876 )

Minneapolis & St. Louis Railroad v. Bombolis , 36 S. Ct. 595 ( 1916 )

Near v. Minnesota Ex Rel. Olson , 51 S. Ct. 625 ( 1931 )

Gonzales v. Oregon , 126 S. Ct. 904 ( 2006 )

United States v. Leon , 104 S. Ct. 3405 ( 1984 )

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