McDonald v. Chicago (Alito)

17 Oct


Fifth, the 39th Congress’’ response to proposals to dis-
band and disarm the Southern militias is instructive.
Despite recognizing and deploring the abuses of these
militias, the 39th Congress balked at a proposal to disarm
them. See 39th Cong. Globe 914; Halbrook, Freedmen,
supra, 20–-21. Disarmament, it was argued, would violate
the members’’ right to bear arms, and it was ultimately
decided to disband the militias but not to disarm their
members. See Act of Mar. 2, 1867, §6, 14 Stat. 485, 487;
Halbrook, Freedmen 68–-69; Cramer 858-–861. It cannot
be doubted that the right to bear arms was regarded as a
substantive guarantee, not a prohibition that could be
ignored so long as the States legislated in an evenhanded


Municipal respondents’’ remaining arguments are at war
with our central holding in Heller: that the Second
Amendment protects a personal right to keep and bear
arms for lawful purposes, most notably for self-defense
within the home. Municipal respondents, in effect, ask us
to treat the right recognized in Heller as a second-class
right, subject to an entirely different body of rules than
the other Bill of Rights guarantees that we have held to be
incorporated into the Due Process Clause.

Municipal respondents’’ main argument is nothing less
than a plea to disregard 50 years of incorporation prece-
dent and return (presumably for this case only) to a by-
gone era. Municipal respondents submit that the Due
Process Clause protects only those rights “”‘‘recognized by
all temperate and civilized governments, from a deep and
universal sense of [their] justice.'” ” Brief for Municipal
Respondents 9 (quoting Chicago, B. & Q. R. Co., 166 U. S.,
at 238). According to municipal respondents, if it is possi-
ble to imagine any civilized legal system that does not
recognize a particular right, then the Due Process Clause


does not make that right binding on the States. Brief for
Municipal Respondents 9. Therefore, the municipal re-
spondents continue, because such countries as England,
Canada, Australia, Japan, Denmark, Finland, Luxem-
bourg, and New Zealand either ban or severely limit
handgun ownership, it must follow that no right to possess
such weapons is protected by the Fourteenth Amendment.
Id., at 21-–23.

This line of argument is, of course, inconsistent with the
long-established standard we apply in incorporation cases.
See Duncan, 391 U. S., at 149, and n. 14. And the pre-
sent-day implications of municipal respondents’’ argument
are stunning. For example, many of the rights that our
Bill of Rights provides for persons accused of criminal
offenses are virtually unique to this country.28 If our
—————— ——————-
28 For example, the United States affords criminal jury trials far more
broadly than other countries. See, e.g., Van Kessel, Adversary Excesses
in the American Criminal Trial, 67 Notre Dame L. Rev. 403 (1992);
Leib, A Comparison of Criminal Jury Decision Rules in Democratic
Countries, 5 Ohio St. J. Crim. L. 629, 630 (2008); Henderson, The
Wrongs of Victim’s Rights, 37 Stan. L. Rev. 937, 1003, n. 296 (1985); see
also Roper v. Simmons, 543 U. S. 551, 624 (2005) (SCALIA, J., dissent-
ing) (““In many significant respects the laws of most other countries
differ from our law-—including . . . such explicit provisions of our
Constitution as the right to jury trial””). Similarly, our rules governing
pretrial interrogation differ from those in countries sharing a similar
legal heritage. See Dept. of Justice, Office of Legal Policy, Report to the
Attorney General on the Law of Pretrial Interrogation: Truth in Crimi-
nal Justice Report No. 1 (Feb. 12, 1986), reprinted in 22 U. Mich. J. L.
Ref. 437, 534–542 (1989) (comparing the system envisioned by Miranda
v. Arizona, 384 U. S. 436 (1966), with rights afforded by England,
Scotland, Canada, India, France, and Germany). And the “”Court-
pronounced exclusionary rule . . . is distinctively American.”” Roper,
supra, at 624 (SCALIA, J., dissenting) (citing Bivens v. Six Unknown
Fed. Narcotics Agents, 403 U. S. 388, 415 (1971) (Burger, C. J., dissent-
ing) (noting that exclusionary rule was “”unique to American jurispru-
dence”” (internal quotation marks omitted))); see also Sklansky, Anti-
Inquisitorialism, 122 Harv. L. Rev. 1634, 1648-–1656, 1689-–1693 (2009)
(discussing the differences between American and European confronta-

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