McDonald v. Chicago (Alito)

17 Oct

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understanding of the right to a jury trial, the right against
self-incrimination, and the right to counsel were necessary
attributes of any civilized country, it would follow that the
United States is the only civilized Nation in the world.

Municipal respondents attempt to salvage their position
by suggesting that their argument applies only to substan-
tive as opposed to procedural rights. Brief for Municipal
Respondents 10, n. 3. But even in this trimmed form,
municipal respondents’’ argument flies in the face of more
than a half-century of precedent. For example, in Everson
v. Board of Ed. of Ewing, 330 U. S. 1, 8 (1947), the Court
held that the Fourteenth Amendment incorporates the
Establishment Clause of the First Amendment. Yet sev-
eral of the countries that municipal respondents recognize
as civilized have established state churches.29  If we were
to adopt municipal respondents’’ theory, all of this Court’’s
Establishment Clause precedents involving actions taken
by state and local governments would go by the boards.

Municipal respondents maintain that the Second
Amendment differs from all of the other provisions of the
Bill of Rights because it concerns the right to possess a
—————— ——————
tion rules).
29 England and Denmark have state churches. See Torke, The Eng-
lish Religious Establishment, 12 J. of Law & Religion 399, 417–-427
(1995–-1996) (describing legal status of Church of England); Constitu-
tional Act of Denmark, pt. I, §4 (1953) (““The Evangelical Lutheran
Church shall be the Established Church of Denmark””). The Evangeli-
cal Lutheran Church of Finland has attributes of a state church. See
Christensen, Is the Lutheran Church Still the State Church? An
Analysis of Church-State Relations in Finland, 1995 B. Y. U. L. Rev.
585, 596–-600 (describing status of church under Finnish law). The Web
site of the Evangelical Lutheran Church of Finland states that the
church may be usefully described as both a ““state church”” and a “”folk
church.”” See J. Seppo, The Current Condition of Church-State Rela-
tions in Finland, online at http://evl.fi/EVLen.nsf/Documents/838DDBEF
4A28712AC225730F001F7C67?OpenDocument&lang=EN (all Internet
materials as visited June 23, 2010, and available in Clerk of Court’’s
case file).

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deadly implement and thus has implications for public
safety. Brief for Municipal Respondents 11. And they
note that there is intense disagreement on the question
whether the private possession of guns in the home in-
creases or decreases gun deaths and injuries. Id., at 11,
13-–17.

The right to keep and bear arms, however, is not the
only constitutional right that has controversial public
safety implications. All of the constitutional provisions
that impose restrictions on law enforcement and on the
prosecution of crimes fall into the same category. See, e.g.,
Hudson v. Michigan, 547 U. S. 586, 591 (2006) (“”The
exclusionary rule generates ‘‘substantial social costs,’’ 
United States v. Leon, 468 U. S. 897, 907 (1984), which
sometimes include setting the guilty free and the danger-
ous at large””); Barker v. Wingo, 407 U. S. 514, 522 (1972)
(reflecting on the serious consequences of dismissal for a
speedy trial violation, which means “”a defendant who may
be guilty of a serious crime will go free””); Miranda v.
Arizona, 384 U. S. 436, 517 (1966) (Harlan, J., dissenting);
id., at 542 (White, J., dissenting) (objecting that the
Court’s rule ““[i]n some unknown number of cases . . . will
return a killer, a rapist or other criminal to the streets . . .
to repeat his crime””); Mapp, 367 U. S., at 659. Municipal
respondents cite no case in which we have refrained from
holding that a provision of the Bill of Rights is binding on
the States on the ground that the right at issue has dis-
puted public safety implications.

We likewise reject municipal respondents’’ argument
that we should depart from our established incorporation
methodology on the ground that making the Second
Amendment binding on the States and their subdivisions
is inconsistent with principles of federalism and will stifle
experimentation. Municipal respondents point out—-quite
correctly-—that conditions and problems differ from local-
ity to locality and that citizens in different jurisdictions

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