Please refresh this page often. I will be adding my instant analysis of McDonald v. Chicago as soon as the opinions is released.
The opinion is available here. The opinion is 214 pages long!
Writing for the majority, Justice Alito finds that the Second Amendment is incorporated through the Due Process Clause. Joining in judgment only, Justice Thomas writes that the Second Amendment should be incorporated through the Privileges or Immunities Clause. Justice Stevens and Justice Breyer dissented.
This presents a 4-1-4 split, something I predicted months ago.
Here is the thrust of Alito’s argument:
The Court must decide whether that right is fundamental tothe Nation’s scheme of ordered liberty, Duncan v. Louisiana, 391 U. S. 145, 149, or, as the Court has said in a related context, whether it is “deeply rooted in this Nation’s history and tradition,” Washing-ton v. Glucksberg, 521 U. S. 702, 721. Heller points unmistakably to the answer. Self-defense is a basic right, recognized by many legal systems from ancient times to the present, and the Heller Court held that individual self-defense is “the central component” of the SecondAmendment right. 554 U. S., at ___, ___. Explaining that “the needfor defense of self, family, and property is most acute” in the home, ibid., the Court found that this right applies to handguns because they are “the most preferred firearm in the nation to ‘keep’ and use for protection of one’s home and family,” id., at ___, ___–___. It thus concluded that citizens must be permitted “to use [handguns] for the core lawful purpose of self-defense.” Id., at ___. Heller also clarifies that this right is “deeply rooted in this Nation’s history and tradi-tions,” Glucksberg, supra, at 721. Heller explored the right’s origins in English law and noted the esteem with which the right was re-garded during the colonial era and at the time of the ratification ofthe Bill of Rights. This is powerful evidence that the right was re-garded as fundamental in the sense relevant here. That understand-ing persisted in the years immediately following the Bill of Rights’ratification and is confirmed by the state constitutions of that era,which protected the right to keep and bear arms. Pp. 19–22.
A survey of the contemporaneous history also demonstratesclearly that the Fourteenth Amendment’s Framers and ratifiers counted the right to keep and bear arms among those fundamentalrights necessary to the Nation’s system of ordered liberty.
However, Justice Alito, joined by Roberts, Scalia, and Kennedy, rejected the Privileges or Immunities Analysis.
A survey of the contemporaneous history also demonstratesclearly that the Fourteenth Amendment’s Framers and ratifiers counted the right to keep and bear arms among those fundamentalrights necessary to the Nation’s system of ordered liberty.
Justice Thomas took a different path,and would rely on the privileges or immunities clause.
Thomas actually knocks down substantive due process, and argues that this right should be protected by the privileges or immunities clause.
Thomas also proposes a purely originalist test for determining whether a right is a privilege or immunity
Lots more after the jump.
Opinion for Justice Thomas
The opening to Thomas’s opinion is stunning.
Applying what is now a well-settled test, the plurality opinion concludes that the right to keep and bear armsapplies 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 theright. 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 throughthe Fourteenth Amendment’s Privileges or Immunities Clause.
For the first time in the history of the Supreme Court, a Justice found that an essential liberty is protected by the Privileges or Immunities Clause.
Thomas recounts the history of the Privileges or Immunities Clause, and discusses how the Slaughter-House cases narrowly defined it. More importantly, he notes that as a result of the narrow interpretation of the Clause, litigants turned to the Due Process clause.
Over time, the Courts began to accept substantive due process to incorporate the rights, as long as they are “fundamental,” a rather ambiguous test. Thomas puts Roe, Lochner, and Lawrence in a single footnote. Wow.
While this Court has at times concluded that a right gains “fundamental” status only if it is essential to theAmerican “scheme of ordered liberty” or “‘deeply rooted in this Nation’s history and tradition,’” ante, at 19 (pluralityopinion) (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 “liberty of the person both in its spatial and in its moretranscendent dimensions”). Using the latter approach, theCourt 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 thatthe 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.
And in a stunning passage, Thomas calls our entire substantive due process doctrine a “dangerous” “legal fiction”!
Thomas criticizes the methodology of the plurality, which focuses its inquiry on “rights deeply rooted in American history and tradition” as an approach that “invites less opportunity for abuse than the alternatives,” in contrast with Breyer’s approach that sees rights incorporated if they are “well-suited to the carrying out of . . . constitutional prom-ises”);
And in a stunning passage, Thomas basically repudiates all substantive due process doctrine:
Thomas argues that the Privileges or Immunities is a far superior approach to the due process clause, and rejects all substantive due process.
And here is the money quote from Thomas regarding Stare Decisis. He need not reject all substantive due process jurisprudence. He just wants to start with one clause, and “begin the process of restoring the meaning of the Fourteenth Amendment.”
Thomas proceeds to trace the history of the Privileges or Immunities Clause
The Majority opinion refuses to touch the Privileges or Immunities Clause, and “decline to disturb” it here.
Based on this history, including a lengthy exposition of the legislative history of the Privileges or Immunities Clause, Thomas finds that the Privileges or Immunities clause protects the right to keep and bear arms.
This evidence plainly shows that the ratifying publicunderstood the Privileges or Immunities Clause to protect constitutionally enumerated rights, including the right tokeep and bear arms. As the Court demonstrates, there can be no doubt that §1 was understood to enforce theSecond 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.
In a passage sure to make Randy Barnett proud, Thomas even provides a citation to Lysander Spooner, a very popular abolitionist.
Thomas also discusses the power of enunmerated rights, as protected by the 9th and 10th amendment.
20I note, however, that I see no reason to assume that the constitu-tionally enumerated rights protected by the Privileges or ImmunitiesClause should consist of all the rights recognized in the Bill of Rightsand 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 asprotecting 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.
Thomas also rejects the Court’s interpretation of Slaughterhouse:
I stress the words “inalienable”.
Thomas also begins a discussion on unenumerated rights. While he admits it is something tricky to find rights not listed in the Constitution, it is no more tricky than what the Court has done in other areas of the law.
A separate question is whether the privileges and im-munities of American citizenship include any rights be-sides those enumerated in the Constitution.
…
Because this case does not involve an unenumerated right, it is not necessary to resolve the question whetherthe Clause protects such rights, or whether the Court’sjudgment in Slaughter-House was correct.Still, it is argued that the mere possibility that thePrivileges 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
FN 21- 21To 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.
Ironically, the same objection applies to the 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 itincapable of principled judicial application. The Constitu-tion contains many provisions that require an examinationof 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 PunishmentsClause). When the inquiry focuses on what the ratifying era understood the Privileges or Immunities Clause tomean, interpreting it should be no more “hazardous” thaninterpreting 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 aremore worthy of this Court’s attention—and far more likely to yield discernable answers—than the substantive dueprocess questions the Court has for years created on its own, with neither textual nor historical support.
Scalia’s concurring opinion
In Scalia’s concurring opinion, he notes that he has some “misgivings” about relying on substantive due process, but will do so anyway in light of “settled doctrine”
I join the Court’s opinion. Despite my misgivings about Substantive Due Process as an original matter, I haveacquiesced in the Court’s incorporation of certain guarantees in the Bill of Rights “because it is both long established 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 straightforward application of settled doctrine suffices to decide it.
Nino responds to address aspects of Stevens’ dissent.
I write separately only to respond to some aspects of JUSTICE STEVENS’ dissent. Not that aspect which disagrees 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 underlies the Court’s opinion, a theory that makes the traditionsof 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.
Majority opinion
The majority opinion lays out the existing framework for incorporation. In short, they adopt the Glucksberg framework:
With this framework in mind, we now turn directly tothe question whether the Second Amendment right tokeep and bear arms is incorporated in the concept of due process. In answering that question, as just explained, wemust decide whether the right to keep and bear arms is fundamental to our scheme of ordered liberty, Duncan, 391 U. S., at 149, or as we have said in a related context, whether this right is “deeply rooted in this Nation’s his-tory and tradition,” Washington v. Glucksberg, 521 U. S. 702, 721 (1997) (internal quotation marks omitted).
Relying on Heller, the Court finds that thie answer is “unmistakabl[e]”
Our decision in Heller points unmistakably to the an-swer. Self-defense is a basic right, recognized by many legal systems from ancient times to the present day,15 and in Heller, we held that individual self-defense is “the central component” of the Second Amendment right. 554
U. S., at ___ (slip op., at 26); see also id., at ___ (slip op., at56) (stating that the “inherent right of self-defense has been central to the Second Amendment right”).
Alito reiterates the Heller allowances of the”longstanding phoibition” and “sensitive places” regulations that limit the right to keep and bear arms
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 regulatorymeasures as “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 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.
The court reitierated that the core of the right to keep and bear arms was the right of self-defense, reaffirming the Heller holding.
In Heller, we recognized thatthe 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 stressedthat the right was also valued because the possession offirearms was thought to be essential for self-defense. As we put it, self-defense was “the central component of the right itself.” Ibid.
In Heller, we recognized thatthe 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 stressedthat the right was also valued because the possession offirearms was thought to be essential for self-defense. As we put it, self-defense was “the central component of the right itself.” Ibid.
In dissent, Justice Stevens tries to rely on Justice Harlan II’s versions of incorporation, in that the rights protected by state infringement need not be identical in shapeor scope to the rights protected by the Feds. The plurality rejects this approach.
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 urgedinstead, it appears, is that this theory be revived solely forthe individual right that Heller recognized, over vigorousdissents.
In response to Breyer’s dissent, the majority finds that nothing makes them rethink the history underlying the opinion in Heller. Additionally, Breyer argues that the 2nd amendment should not be incorporated based on 4 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 Statesand 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 andlocal laws will force judges to answer difficult empiricalquestions regarding matters that are outside their area ofexpertise, 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.
In response to Breyer’s dissent, the majority finds that nothing makes them rethink the history underlying the opinion in Heller. Additionally, Breyer argues that the 2nd amendment should not be incorporated based on 4 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 Statesand 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 andlocal laws will force judges to answer difficult empiricalquestions regarding matters that are outside their area ofexpertise, 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.
Alito smacks down the assertion that the right does not protect “minorities”
Second, petitioners and many others who live in high-crime areas dispute the proposition that the SecondAmendment right does not protect minorities and those lacking political clout. The plight of Chicagoans living inhigh-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 thenumber of Chicago homicide victims during the currentyear equaled the number of American soldiers killed dur-ing that same period in Afghanistan and Iraq and that80% of the Chicago victims were black.32 Amici supportingincorporation of the right to keep and bear arms contend that the right is especially important for women andmembers 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 andother residents of high-crime areas whose needs are notbeing met by elected public officials.
Alito discounted Breyer’s fears that incorporating the 2nd amendment will limit the “legislative freedoms” of the states, as all incorporation cases have the tendency to do this.
Third, JUSTICE BREYER is correct that incorporation ofthe 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 incorporatingvirtually every other provision of the Bill of Rights. “[T]heenshrinement 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 withrespect to all the other limitations on state power found inthe Constitution.
Finally, Alito rejected Breyer’s calls for an interest balancing approach, which the COurt discounted in Heller.
Finally, JUSTICE BREYER is incorrect that incorporationwill require judges to assess the costs and benefits offirearms restrictions and thus to make difficult empiricaljudgments 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 thatsuggestion. See supra, at 38–39. “The very enumerationof the right takes out of the hands of government—even the Third Branch of Government—the power to decide ona case-by-case basis whether the right is really worth insisting upon.” Heller, supra, at ___ (slip op., at 62–63).
Stevens dissent
Here is Steven’s argument in a nutshell. Honestly, I am not sure what this means.
The question in this case, then, is not whether the Second 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 Fourteenth Amendment. It has not been. The question, rather, is whether the particular right asserted by petitioners 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 beararms identified in that opinion is not judicially enforceable
against the States, or that only part of the right is soenforceable.26Stevens makes several argumement, arguing that Cruikshank correctly settled the incorporation question.
Justice Stevens’s opinion
Justice Stevens expresses hesitancy to embrace the Privileges or Immunities Clause, arguing that the original meanign is not “as clear as [Petitioners] suggest”
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 argument that the Court interpreted the Privileges or Immunities Clause too narrowly in the Slaughter-House Cases, 16 Wall. 36 (1873). But the original meaning of the Clause isnot as clear as they suggest2—and not nearly as clear as it would need to be to dislodge 137 years of precedent. The burden is severe for those who seek radical change in such an established body of constitutional doctrine.3
And Stevens cites,of all people, Judge J. Harvie Wilkinson to argue that P or I will not reduce judicial discretion.
Moreover, the suggestion that invigorating the Privileges or Immunities 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 veryreason that it has so long remained a clean slate, a revitalized Privileges or Immunities Clause holds special hazardsfor judges who are mindful that their proper task is not towrite their personal views of appropriate public policy intothe Constitution.”It is noteworthy that Breyer, Ginsburg, and Sotomayor did not join this opinoin. Stevens retired. What exactly is this worth?
Stevens’ opinion basically cites a bunch of dissents and concurring opinions arguing that the rights as applied to the Federal Government need not equal the rights as applied to the states. I find this argument awfully convenient, as the majority points out. Since the 2nd amendment is the last amendment to be incorporated, this approach will only limit gun rights.
When one legal standard mustprevail across dozens of jurisdictions with disparate needs and customs, courts will often settle on a relaxed standard. This watering-down risk is particularly acute when we move beyond the narrow realm of criminal procedureand 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 thatgreater 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.
Stevens rejects the plurality’s approach to relying on Duncan and Gluckbserg, and would rather rely on Palko. Stevens argues that such a rigid historical test is mistake.
Relying on Duncan and Glucksberg, the plurality suggests that only interests that have proved “fundamental 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 theCourt’s satisfaction, may qualify for incorporation into the Fourteenth Amendment. To the extent the Court’s opinion 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 seriously mistaken.
A rigid historical test is inappropriate in this case, mostbasically, because our substantive due process doctrinehas never evaluated substantive rights in purely, or evenpredominantly, historical terms. When the Court applied many of the procedural guarantees in the Bill of Rights tothe States in the 1960’s, it often asked whether the guarantee in question was “fundamental in the context of thecriminal processes maintained by the American States.”17Stevens also considers both sides of the liberty interests in gun control laws:
Hence, in evaluating an asserted right to be free fromparticular gun-control regulations, liberty is on both sidesof the equation. Guns may be useful for self-defense, aswell as for hunting and sport, but they also have a unique potential to facilitate death and destruction and thereby todestabilize ordered liberty. Your interest in keeping andbearing 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 yousafer on any given day—assuming the handgun’s marginalcontribution to self-defense outweighs its marginal contribution to the risk of accident, suicide, and criminal mischief—it may make you and the community you live in less safe overall, owing to the increased number of handguns in circulation. It is at least reasonable for a democratically elected legislature to take such concerns into account in considering what sorts of regulations would best serve the public welfare.