McDonald v. Chicago (Alito)

17 Oct

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Rights. “”During the 1788 ratification debates, the fear
that the federal government would disarm the people in
order to impose rule through a standing army or select
militia was pervasive in Antifederalist rhetoric.”” Heller,
supra, at ___ (slip op., at 25) (citing Letters from the Fed-
eral Farmer III (Oct. 10, 1787), in 2 The Complete Anti-
Federalist 234, 242 (H. Storing ed. 1981)); see also Federal
Farmer: An Additional Number of Letters to the Republi-
can, Letter XVIII (Jan. 25, 1788), in 17 Documentary
History of the Ratification of the Constitution 360, 362-–
363 (J. Kaminski & G. Saladino eds. 1995); S. Halbrook,
The Founders’ Second Amendment 171–-278 (2008). Fed-
eralists responded, not by arguing that the right was
insufficiently important to warrant protection but by
contending that the right was adequately protected by the
Constitution’s assignment of only limited powers to the
Federal Government. Heller, supra, at ___ (slip op., at 25–
26); cf. The Federalist No. 46, p. 296 (C. Rossiter ed. 1961)
(J. Madison). Thus, Antifederalists and Federalists alike
agreed that the right to bear arms was fundamental to the
newly formed system of government. See Levy 143-–149;
J. Malcolm, To Keep and Bear Arms: The Origins of an
Anglo-American Right 155-–164 (1994). But those who
were fearful that the new Federal Government would
infringe traditional rights such as the right to keep and
bear arms insisted on the adoption of the Bill of Rights as
a condition for ratification of the Constitution. See 1 J.
Elliot, The Debates in the Several State Conventions on
the Adoption of the Federal Constitution 327–-331 (2d ed.
1854); 3 id., at 657-–661; 4 id., at 242–-246, 248–-249; see
also Levy 26–-34; A. Kelly & W. Harbison, The American
Constitution: Its Origins and Development 110, 118 (7th
ed. 1991). This is surely powerful evidence that the right
was regarded as fundamental in the sense relevant here.

This understanding persisted in the years immediately
following the ratification of the Bill of Rights. In addition

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to the four States that had adopted Second Amendment
analogues before ratification, nine more States adopted
state constitutional provisions protecting an individual
right to keep and bear arms between 1789 and 1820.
Heller, supra, at ___ (slip op., at 27–30). Founding-era
legal commentators confirmed the importance of the right
to early Americans. St. George Tucker, for example, de-
scribed the right to keep and bear arms as “the “true palla-
dium of liberty”” and explained that prohibitions on the
right would place liberty “”on the brink of destruction.”” 1
Blackstone’s Commentaries, Editor’s App. 300 (S. Tucker
ed. 1803); see also W. Rawle, A View of the Constitution of
the United States of America, 125-–126 (2d ed. 1829) (re-
print 2009); 3 J. Story, Commentaries on the Constitution
of the United States §1890, p. 746 (1833) (“”The right of the
citizens to keep and bear arms has justly been considered,
as the palladium of the liberties of a republic; since it
offers a strong moral check against the usurpation and
arbitrary power of rulers; and will generally, even if these
are successful in the first instance, enable the people to
resist and triumph over them””).

B
1

By the 1850’’s, the perceived threat that had prompted
the inclusion of the Second Amendment in the Bill of
Rights-—the fear that the National Government would
disarm the universal militia-—had largely faded as a popu-
lar concern, but the right to keep and bear arms was
highly valued for purposes of self-defense. See M. Doub-
ler, Civilian in Peace, Soldier in War 87–90 (2003); Amar,
Bill of Rights 258-–259. Abolitionist authors wrote in
support of the right. See L. Spooner, The Unconstitution-
ality of Slavery 66 (1860) (reprint 1965); J. Tiffany, A
Treatise on the Unconstitutionality of American Slavery
117–-118 (1849) (reprint 1969). And when attempts were

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