561 U.S. 742 (2010), 08-1521, McDonald v. City of Chicago, Illinois

Docket Nº:08-1521.
Citation:561 U.S. 742, 130 S.Ct. 3020, 177 L.Ed.2d 894, 78 U.S.L.W. 4844
Opinion Judge:Alito Justice.
Party Name:Otis McDONALD, et al., Petitioners, v. CITY OF CHICAGO, ILLINOIS, et al.
Attorney:Alan Gura for the petitioners. Paul D. Clement for the respondents Nat. Rifle Association, Inc., et al. in support of the petitioners. James A. Feldman for the respondents City of Chicago, 111. Stephen P. Halbrook, Fairfax, VA, Counsel for the National Rifle Association of America, Inc., Robert K...
Judge Panel:Alito, J., announced the judgment of the Court and delivered the opinion of the Court with respect to Parts I, II
Case Date:June 28, 2010
Court:United States Supreme Court
 
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Page 742

561 U.S. 742 (2010)

130 S.Ct. 3020, 177 L.Ed.2d 894, 78 U.S.L.W. 4844

Otis McDONALD, et al., Petitioners,

v.

CITY OF CHICAGO, ILLINOIS, et al.

No. 08-1521.

United States Supreme Court

June 28, 2010

Argued March 2, 2010

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT

[177 L.Ed.2d 898] [130 S.Ct. 3021]Syllabus [*]

Two years ago, in District of Columbia v. Heller, 554 U.S. 570, 128 S.Ct. 2783, 171 L.Ed.2d 637, this Court held that the Second Amendment protects the right to keep and bear arms for the purpose of self-defense and struck down a District of Columbia law that banned the possession of handguns in the home. Chicago (hereinafter City) and the village of Oak Park, a Chicago suburb, have laws effectively banning handgun possession by almost all private citizens. After Heller, petitioners filed this federal suit against the City, which was consolidated with two related actions, alleging that the City's handgun ban has left them vulnerable to criminals. They sought a declaration that the ban and several related City ordinances violate the Second and Fourteenth Amendments. Rejecting petitioners' argument that the ordinances are unconstitutional, the court noted [177 L.Ed.2d 899] that the Seventh Circuit previously had upheld the constitutionality of a handgun ban, that Heller had explicitly refrained from opining on whether the Second Amendment applied to the States, and that the court had a duty to follow established Circuit precedent. The Seventh Circuit affirmed, relying on three 19th-century cases-United States v. Cruikshank, 92 U.S. 542, 23 L.Ed. 588, Presser v. Illinois, 116 U.S. 252, 6 S.Ct. 580, 29 L.Ed. 615, and Miller v. Texas, 153 U.S. 535, 14 S.Ct. 874, 38 L.Ed. 812—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, 83 U.S. 36, 16 Wall. 36, 21 L.Ed. 394.

Held:

The judgment is reversed, and the case is 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 Fourteenth Amendment incorporates the Second Amendment right, recognized in Heller, to keep and bear arms for the purpose of self-defense. Pp. 3028-3030, 3031 - 3036, 3036 - 3044, 177 L.Ed.2d, at 905-908, 909-914, 914-922.

(a) Petitioners base their case on two submissions. Primarily, they argue that the right to keep and bear arms is protected by the Privileges 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

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right. Chicago and Oak Park (municipal respondents) maintain that a right set out in the Bill of Rights applies to the States only when it is an indispensable attribute of any " 'civilized' " legal 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 handguns, they maintain that due process does not preclude such measures. Pp. 3027-3028, 177 L.Ed.2d, at 905-906.

(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, 32 U.S. 243, 7 Pet. 243; 247, 8 L.Ed. 672, but the constitutional Amendments adopted in the Civil War's aftermath fundamentally altered the federal system. Four years after the adoption of the Fourteenth Amendment, this Court [130 S.Ct. 3022] held in the SlaughterHouse 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, 83 U.S. 36, 21 L.Ed. 394, and that the fundamental rights predating the creation of the Federal Government were not protected by the Clause, id., at 76, 83 U.S. 36, 21 L.Ed. 394. Under this narrow reading, the Court held that the Privileges or Immunities Clause protects only very limited rights. Id., at 79-80, 83 U.S. 36, 21 L.Ed. 394. Subsequently, the Court held that the Second Amendment applies only to the Federal Government in Cruikshank, 92 U.S. 542, 23 L.Ed. 588, Presser, 116 U.S. 252, 6 S.Ct. 580, 29 L.Ed. 615, and Miller, 153 U.S. 535, 14 S.Ct. 874, 38 L.Ed. 812, the decisions on [177 L.Ed.2d 900] which the Seventh Circuit relied in this case. Pp. 3028 - 3030, 177 L.Ed.2d, at 906-908.

(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. 3031 - 3036, 177 L.Ed.2d, at 909-914.

(1) In the late 19th century, the Court began to hold that the Due Process Clause prohibits the States from infringing Bill of Rights protections. See, e.g., Hurtado v. California, 110 U.S. 516, 4 S.Ct. 111, 28 L.Ed. 232. Five features of the approach taken during the ensuing era are noted. First, the Court viewed the due process question as entirely separate from the question whether a right was a privilege or immunity of national citizenship. See Twining v. New Jersey, 211 U.S. 78, 99, 29 S.Ct. 14, 53 L.Ed. 97. Second, the Court explained that the only rights due process protected against state infringement were those "of such a nature that they are included in the conception of due process of law." Ibid. Third, some cases during this era "can be seen as having asked ... if a civilized system could be imagined that would not accord the particular protection" asserted therein. Duncan v. Louisiana, 391 U.S. 145, 149, n. 14, 88 S.Ct. 1444, 20 L.Ed.2d 491. 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, Git-low v. New York, 268 U.S. 652, 666, 45 S.Ct. 625, 69 L.Ed. 1138;

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Near v. Minnesota ex rel. Olson, 283 U.S. 697, 51 S.Ct. 625, 75 L.Ed. 1357, but the grand jury indictment requirement did not, Hurtado, 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. 3031-3032, 177 L.Ed.2d, at 909-911.

(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, 67 S.Ct. 1672, 91 L.Ed. 1903 (Black, J., dissenting), but the Court never has embraced that theory. Pp. 3032 - 3033, 177 L.Ed.2d, at 911.

(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 contained in the first eight Amendments. See, e.g., Gideon v. Wainright, 372 U.S. 335, 341, 83 S.Ct. 792, 9 L.Ed.2d 799. These decisions abandoned three of the characteristics of the earlier period. The Court clarified that the governing standard is whether a particular Bill of Rights protection is fundamental to our Nation's particular scheme of ordered liberty and system of justice. Duncan, supra, at 149, n. 14, 88 S.Ct. 1444, 20 L.Ed.2d 491. The Court eventually held that almost all of the Bill of Rights' guarantees met the requirements for protection under the Due Process Clause. The Court also held that Bill of Rights [130 S.Ct. 3023] 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, 84 S.Ct. 1489, 12 L.Ed.2d 653. Under this [177 L.Ed.2d 901] approach, 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, 62 S.Ct. 1252, 86 L.Ed. 1595. Pp. 3034-3036, 177 L.Ed.2d, at 912-914.

(d) The Fourteenth Amendment makes the Second Amendment right to keep and bear arms fully applicable to the States. Pp. 3036 - 3044, 177 L.Ed.2d, at 914-922.

(1) The Court must decide whether that right is fundamental to the Nation's scheme of ordered liberty, Duncan v. Louisiana, 391 U.S. 145, 149, 88 S.Ct. 1444, 20 L.Ed.2d 491, or, as the Court has said in a related context, whether it is "deeply rooted in this Nation's history and tradition," Washington v. Glucksberg, 521 U.S. 702, 721, 117 S.Ct. 2258, 117 S.Ct. 2302, 138 L.Ed.2d 772. 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 ____, ___, 128 S.Ct. 2783, 171 L.Ed.2d 637. 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 ____, _____, 128 S.Ct. 2783, 171 L.Ed.2d 637.

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It thus concluded that citizens must be permitted "to use [handguns] for the core lawful purpose of self-defense." Id., at ____, 128 S.Ct. 2783, 171 L.Ed.2d 637. Heller also clarifies that this right is "deeply rooted in this Nation's history and tradition, Washington v. Glucksberg, 521 U.S...

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