McDonald v. Chicago (Alito)

17 Oct

 5

II
A

Petitioners argue that the Chicago and Oak Park laws
violate the right to keep and bear arms for two reasons.
Petitioners’’ primary submission is that this right is among
the ““privileges or immunities of citizens of the United
States”” and that the narrow interpretation of the Privi-
leges or Immunities Clause adopted in the Slaughter-
House Cases, supra, should now be rejected. As a secon-
dary argument, petitioners contend that the Fourteenth
Amendment’’s Due Process Clause “”incorporates”” the
Second Amendment right.

Chicago and Oak Park (municipal respondents) main-
tain that a right set out in the Bill of Rights applies to the
States only if that right is an indispensable attribute of
any “ “‘civilized’” ” legal system. Brief for Municipal Respon-
dents 9. If it is possible to imagine a civilized country that
does not recognize the right, the municipal respondents
tell us, then that right is not protected by due process.
Ibid. And since there are civilized countries that ban or
strictly regulate the private possession of handguns, the
municipal respondents maintain that due process does not
preclude such measures. Id., at 21-–23. In light of the
parties’’ far-reaching arguments, we begin by recounting
this Court’’s analysis over the years of the relationship
between the provisions of the Bill of Rights and the States.

B

The Bill of Rights, including the Second Amendment,
originally applied only to the Federal Government. In
Barron ex rel. Tiernan v. Mayor of Baltimore, 7 Pet. 243
(1833), the Court, in an opinion by Chief Justice Marshall,
explained that this question was “”of great importance”” but
“”not of much difficulty.”” Id., at 247. In less than four
pages, the Court firmly rejected the proposition that the
first eight Amendments operate as limitations on the

6 

States, holding that they apply only to the Federal Gov-
ernment. See also Lessee of Livingston v. Moore, 7 Pet.
469, 551-–552 (1833) (“”[I]t is now settled that those amend-
ments [in the Bill of Rights] do not extend to the states””).

The constitutional Amendments adopted in the after-
math of the Civil War fundamentally altered our country’’s
federal system. The provision at issue in this case, §1 of
the Fourteenth Amendment, provides, among other
things, that a State may not abridge ““the privileges or
immunities of citizens of the United States”” or deprive
““any person of life, liberty, or property, without due proc-
ess of law.”” 

Four years after the adoption of the Fourteenth
Amendment, this Court was asked to interpret the
Amendment’’s reference to “”the privileges or immunities of
citizens of the United States.”” The Slaughter-House
Cases, supra, involved challenges to a Louisiana law per-
mitting the creation of a state-sanctioned monopoly on the
butchering of animals within the city of New Orleans.
Justice Samuel Miller’’s opinion for the Court concluded
that the Privileges or Immunities Clause protects only
those rights “”which owe their existence to the Federal
government, its National character, its Constitution, or its
laws.”” Id., at 79. The Court held that other fundamental
rights-—rights that predated the creation of the Federal
Government and that ““the State governments were cre-
ated to establish and secure”-”—were not protected by the
Clause. Id., at 76.

In drawing a sharp distinction between the rights of
federal and state citizenship, the Court relied on two
principal arguments. First, the Court emphasized that
the Fourteenth Amendment’’s Privileges or Immunities
Clause spoke of “”the privileges or immunities of citizens of
the United States,”” and the Court contrasted this phrasing
with the wording in the first sentence of the Fourteenth
Amendment and in the Privileges and Immunities Clause

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