Instant Analysis: McDonald v. Chicago

June 28th, 2010

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.

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…

Thomas actually knocks down substantive due process, and argues that this right should be protected by the privileges or immunities clause.

But the Fourteenth Amendment’s Due Process Clause, which speaks only to “process,” cannot imposethe type of substantive restraint on state legislation that the Court asserts. Rather, the right to keep and bear arms is enforceable against the States because it is a privilege of American citizenship recognized by §1 of the Fourteenth Amendment

Thomas also proposes a purely originalist test for determining whether a right is a privilege or immunity

The objective of this inquiry is to discern what “ordi-nary citizens” at the time of the Fourteenth Amendment’s ratificationwould have understood that Amendment’s Privileges or ImmunitiesClause to mean. Ibid. A survey of contemporary legal authorities plainly shows that, at that time, the ratifying public understood the Clause to protect constitutionally enumerated rights, including the right to keep and bear arms.

Lots more after the jump.
Opinion for Justice Thomas

The opening to Thomas’s opinion is stunning.

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 morefaithful 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 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.

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 Stateguarantee “due process” to any person before depriving him of “life, liberty, or property.” At first, litigants arguedthat this Due Process Clause “incorporated” certain proce-dural rights codified in the Bill of Rights against the States.

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.

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 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”!

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 definethe 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 istheir lack of a guiding principle to distinguish “fundamen-tal” rights that warrant protection from nonfundamentalrights that do not. Today’s decision illustrates the point. Replaying a debate that has endured from the inception ofthe Court’s substantive due process jurisprudence, thedissents 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 DueProcess Clause was consistent with public understanding at the time of its ratification.

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:

But anyserious argument over the scope of the Due Process Clausemust acknowledge that neither its text nor its historysuggests that it protects the many substantive rights this Court’s cases now claim it does.

Thomas argues that the Privileges or Immunities is a far superior approach to the due process clause, and rejects all substantive due process.

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 thetext of the Fourteenth Amendment and the history that led to its adoption, filling that gap with a jurisprudencedevoid 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 thisCourt to enforce the rights the Fourteenth Amendment isdesigned to protect with greater clarity and predictability than the substantive due process framework has so far managed.

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.”

But stare decisis is only an “adjunct” of our duty as judges to decide by ourbest 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 partand dissenting in part). It is not “an inexorable com-mand.” Lawrence, supra, at 577. Moreover, as judges, weinterpret the Constitution one case or controversy at a time. The question presented in this case is not whetherour 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 to reexamine, and begin the process of restoring, themeaning of the Fourteenth Amendment agreed upon by those who ratified it.

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.

Petitioners argue,however, that we should overrule those decisions and hold that the right to keep and bear arms is one of the “privi-leges or immunities of citizens of the United States.” In petitioners’ view, the Privileges or Immunities Clause protects all of the rights set out in the Bill of Rights, as well as some others, see Brief for Petitioners 10, 14, 15–21, but petitioners are unable to identify the Clause’s fullscope, Tr. of Oral Arg. 5–6, 8–11. Nor is there any consen-sus on that question among the scholars who agree that the Slaughter-House Cases’ interpretation is flawed. See Saenz, supra, at 522, n. 1 (THOMAS, J., dissenting). We see no need to reconsider that interpretation here. For many decades, the question of the rights protected bythe Fourteenth Amendment against state infringement has been analyzed under the Due Process Clause of that Amendment and not under the Privileges or Immunities Clause. We therefore decline to disturb the Slaughter-House holding.

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.

The evidence overwhelmingly demon-strates that the privileges and immunities of such citizensincluded individual rights enumerated in the Constitution, including the right to keep and bear arms.

In conclusion, the right to bear arms is among the privileges or immunities of citizenship.
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.

Lysander Spooner championed the popular aboli-tionist argument that slavery was inconsistent with con-stitutional principles, citing as evidence the fact that itdeprived black Americans of the “natural right of all men‘to keep and bear arms’ for their personal defence,” whichhe believed the Constitution “prohibit[ed] both Congressand the State governments from infringing.” L. Spooner,The Unconstitutionality of Slavery 98 (1860)

Thomas also discusses the power of enunmerated rights, as protected by the 9th and 10th amendment.

As mentioned at the outset, myinquiry 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

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:

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.

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.

Scalia challenges Stevens’ approach, which opens the door to so many different possible options.Scalia notes that Stevens’ approach fails to restrain judges.

JUSTICE STEVENS resists this description, insisting thathis approach provides plenty of “guideposts” and “constraints” to keep courts from “injecting excessive subjectivity” into the process.3 Post, at 21. Plenty indeed—andthat alone is a problem. The ability of omnidirectionalguideposts to constrain is inversely proportional to theirnumber. 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.

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 imposewhatever 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.

A common theme, in both Alito and Roberts’ opinion is to attack how convenient Stevens’ opinion is–namely, it would not protect the right to keep and bear arms, but will protect all other rights.

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, apparently deserves less protection, while a privilege thepolitical branches (instruments of the democratic process)have withheld entirely and continue to withhold, deserves more. That topsy-turvy approach conveniently accomplishes the objective of ensuring that the rights this Courtheld protected in Casey, Lawrence, and other such cases fit the theory—but at the cost of insulting rather than respecting the democratic process.

In an M. Night Shyamalan-esque line, Scalia chides Stevens for identifying a “six senth” in judges to be sensitive to notions of libert.

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 whetherthat sensitivity will really guide judges because I have no idea what it is. Is it some sixth sense instilled in judgeswhen they ascend to the bench? Or does it mean judgesare more constrained when they agonize about the cosmic conflict between liberty and its potentially harmful consequences? 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 undeniablyadmirable, 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.

Scalia takes up the practical difficulties of relying on history, but notes that these difficulties are nothing compared to difficulties in judgmetn of critical issues. As difficult as history is, it is better than the alternative.

But the question to be decidedis not whether the historically focused method is a perfect means of restraining aristocratic judicial Constitutionwriting; 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 ethicopolitical 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—forexample, the constitutionality of prohibiting abortion, assisted suicide, or homosexual sodomy, or the constitutionality of the death penalty—any historical methodology, under any plausible standard of proof, would lead to the same conclusion.10 Moreover, the methodological differences that divide historians, and the varying interpretive 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 prestigious law schools) with regard to the moral judgments JUSTICE STEVENS would have courts pronounce. And whether or not special expertise is needed to answer historical questions, judges most certainly have no “comparative . . . advantage,” post, at 24 (internal quotation marksomitted), in resolving moral disputes. What is more, his approach would not eliminate, but multiply, the hard questions courts must confront, since he would not replacehistory with moral philosophy, but would have courtsconsider both.

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.26

Stevens 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.”17

Stevens 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.

Stevens explicitly rejects the historical approach to the 2nd amendment, and notes that the history has little bearing on present day gun control.

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 comprised 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 thefreedmen 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.

Stevens explicitly rejects the “national consensus” model towards recognition of rights, an approach I have spilled much ink on.

I agree with the plurality that for a right to be eligible for substantivedue process recognition, there need not be “a ‘popular consensus’ thatthe right is fundamental.” Ante, at 42. In our remarkably diverse, pluralistic society, there will almost never be such uniformity of opinion. But to the extent that popular consensus is relevant, I do not agreewith 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.

In a passage that I question, Stevens notes that American lawmakers tend to underregulate guns. Huh?

Indeed, there is a good deal of evidence to suggest that, if anything, American lawmakerstend to underregulate guns, relative to the policy viewsexpressed by majorities in opinion polls. See K. Goss, Disarmed: The Missing Movement for Gun Control inAmerica 6 (2006). If a particular State or locality has enacted some “improvident” gun-control measures, as petitioners believe Chicago has done, there is no apparentreason to infer that the mistake will not “eventually berectified by the democratic process.” Vance v. Bradley, 440
U. S. 93, 97 (1979).

And in an odd quote, citing Carolene products, Stevens notes that this is not a case that deserves a searching inquiry. I find this odd, becuase Caroelen Products Footnote Four specifically finds for a higher degree of scrutiny for rights enumerated in the Bill of Rights. Last time I checked, the 2nd amendment was enumerated.

This is not a case, then, that involves a “special condition” that “may call for a correspondingly more searchingjudicial inquiry.” Carolene Products, 304 U. S., at 153, n. 4.

In closing, Stevens cites Holmes’ dissent from Lochner

Having failed to show why theirasserted 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 deal with the problem of handgun violence in the city of Chicago. Lochner, 198 U. S., at 76 (Holmes, J., dissenting).

Stevens proceeds to disagree with Justice Scalia’s opinion. Stevens says contrary to Scalia’s assertion, originalism yeilds no determinate asnwer.

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. Under 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 oneframe the liberty interest in question? See n. 25, supra. What does it mean for a right to be “‘deeply rooted in thisNation’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 aggregated? There is no objective, neutral answer to thesequestions. There is not even a theory—at least, JUSTICE SCALIA provides none—of how to go about answering them.

Stevens, who relied on quite a lot of historical research in his opinions in McDonald and in Heller, finds that using historical research is only a starting point.

My point is not to criticize judges’ use of history ingeneral or to suggest that it always generates indeterminate answers; I have already emphasized that historicalstudy 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 objectivityand 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 historical analysis. Worse, they may be buried in the analysis.At least with my approach, the judge’s cards are laid onthe table for all to see, and to critique. The judge must exercise judgment, to be sure. When answering a constitutional question to which the text provides no clear answer, 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.

Stevens continues ripping into Scalia

To the contrary, he seems to embrace this dissonance. My method seeks to synthesize dozens of cases onwhich 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, asthey stand today? In 1967, when the Court held in Loving, 388 U. S. 1, that adults have a liberty-based as well as equality-based right to wed persons of another race, interracial marriage was hardly “deeply rooted” in American tradition. Racial segregation and subordination were deeply rooted. The Court’s substantive due process holding 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 constitutional 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 especiallylittle sense to answer questions like whether the right tobear 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 topersonal liberty and safety, nowadays it contributes nothing, or even tends to undermine them? Would it still have been reasonable to constitutionalize the right?

Breyer’s dissenting opinion

Breyer’s dissent was joined by Ginsburg and Sotomayor. Note that no one else joined Stevens dissent. Breyer argues that the 2nd amendment should not be incorporated:

I can find nothing in the Second Amendment’s text, history, or underlying rationale that couldwarrant characterizing it as “fundamental” insofar as itseeks to protect the keeping and bearing of arms for private self-defense purposes. Nor can I find any justification for interpreting the Constitution as transferring ultimate regulatory authority over the private uses of firearms fromdemocratically elected legislatures to courts or from theStates to the Federal Government. I therefore conclude that the Fourteenth Amendment does not “incorporate”the Second Amendment’s right “to keep and bear Arms.”

Most notably, Breyer leaves the door wide open for privileges or immunities, and does not address it beyond a single sentence:

First, the Court today properly declines to revisit ourinterpretation of the Privileges or Immunities Clause.

Breyer cries a bit over spilled milk from Heller, and rehashes the history of the 2nd amendment, and why Scalia was wrong. He notes that history should only be but one factor to consider:

My aim in referring to this history is to illustrate thereefs and shoals that lie in wait for those nonexpert judgeswho place virtually determinative weight upon historicalconsiderations. In my own view, the Court should not look to history alone but to other factors as well—above all, incases where the history is so unclear that the expertsthemselves 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, warrantremoving an important

Breyer continues knocking originalism. I am sensing a serious theme here.

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 pointsout, our society has historically made mistakes—for example, 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.

Rather than relying on history, Breyer proposes….drumroll please… a list of different factors to consider!

I thus think it proper, above all where history providesno clear answer, to look to other factors in consideringwhether a right is sufficiently “fundamental” to remove itfrom the political process in every State. I would include among those factors the nature of the right; any contemporary disagreement about whether the right is fundamental; the extent to which incorporation will furtherother, perhaps more basic, constitutional aims; and theextent to which incorporation will advance or hinder the Constitution’s structural aims, including its division ofpowers 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 incorporation prove consistent, or inconsistent, with the Constitution’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.

In another citation to Footnote Four, as well as to Ely’s Democracy and Distrust, Breyer discusses the rights of minorities.

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. McClellaneds. 2001) (A. Hamilton) (“This independence of the judges is equally requisite to guard the constitution and the 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, mayfind it easier to resist popular pressure to suppress thebasic 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 particular comparative judicial advantage is relevant to the caseat hand. See, e.g., J. Ely, Democracy and Distrust (1980).

Breyer continues, and asks 24 consecutive hypothetical questions, paraphrasing Chief Justice Roberts’s opinion in Massey Coal.

Given the competing interests, courts will have to try toanswer empirical questions of a particularly difficult kind.Suppose, for example, that after a gun regulation’s adoption the murder rate went up. Without the gun regulationwould 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 cutsthat led to a downsizing of the police force? How effective was that police force to begin with? And did the regulation simply take guns from those who use them for lawfulpurposes without affecting their possession by criminals?
Consider too that countless gun regulations of manyshapes and sizes are in place in every State and in manylocal communities. Does the right to possess weapons forself-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 gun semi-automatic? Where are different kinds of weapons likely needed? Does time-of-day matter? Does the presence of a child in the house matter? Does the presence of a convicted felon in the house matter? Do police need special rules permitting patdowns designed to findguns? 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 totake special measures during, say, national security emergencies? As the questions suggest, state and local gunregulation can become highly complex, and these “are onlya 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).

Breyer, to paraphrase his dissent from Heller, says that when the empirical data on gun safety are conflicted, the Court cannot simpyl defer to history.

Suppose studies find more accidents and suicides where there is a handgun in the home 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 Blackstone 223. Nor can the plurality so simply reject, by mereassertion, the fact that “incorporation will require judgesto assess the costs and benefits of firearms restrictions.” Ante, at 44.

Breyer continues to attack the “sensitive places” dicta from Heller, reaffirmed in McDonald.

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 why or how Chicago’s handgun ban is different.

I agree with Breyer here. The sensitive places test is awful, and provides no clear guidance.

Breyer concludes by noting that incorporation of the 2nd amendment raises issues not present in all other incorporation cases. Only the historical factor counsels in favor of incorporation. See, the beauty of making up lots of factors is that you can always find factors in favor of your argument.

In sum, the police power, the superiority of legislativedecisionmaking, the need for local decisionmaking, thecomparative desirability of democratic decisionmaking,the lack of a manageable judicial standard, and the lifethreatening harm that may flow from striking down regulations all argue against incorporation. Where the incorporation of other rights has been at issue, some of these problems have arisen. But in this instance all these problems are present, all at the same time, and all are likely tobe present in most, perhaps nearly all, of the cases inwhich the constitutionality of a gun regulation is at issue. At the same time, the important factors that favor incorporation in other instances—e.g., the protection of broader constitutional objectives—are not present here. The upshot is that all factors militate against incorporation—with the possible exception of historical factors.

Breyer returns to the history, and provides his own competing narrative, but finds that the right is subject to a reasonable police power regulation

That said, I can find much in the historical record that shows that some Americans in some places at certaintimes 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 provisionstypically do no more than guarantee that a gun regulation will be a reasonable police power regulation.

I’m not quite sure where he is going with this.

Here is Breyer’s opinion in conclusion

In sum, the Framers did not write the Second Amendment in order to protect a private right of armed selfdefense. 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-centuryhistory shows a consensus that the right to private armed self-defense, as described in Heller, is “deeply rooted inthis Nation’s history or tradition” or is otherwise “fundamental.” 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 mostambiguous. And, in the absence of any other support forits conclusion, ambiguous history cannot show that theFourteenth Amendment incorporates a private right ofself-defense against the States.