McDonald v. Chicago (Alito)

17 Oct

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Indeed, Cruikshank has not prevented us from holding
that other rights that were at issue in that case are bind-
ing on the States through the Due Process Clause. In
Cruikshank, the Court held that the general “”right of the
people peaceably to assemble for lawful purposes,”” which
is protected by the First Amendment, applied only against
the Federal Government and not against the States. See
92 U. S., at 551-–552. Nonetheless, over 60 years later the
Court held that the right of peaceful assembly was a ““fun-
damental righ[t] . . . safeguarded by the due process clause
of the Fourteenth Amendment.”” De Jonge v. Oregon, 299
U. S. 353, 364 (1937). We follow the same path here and
thus consider whether the right to keep and bear arms
applies to the States under the Due Process Clause.

D
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In the late 19th century, the Court began to consider
whether the Due Process Clause prohibits the States from
infringing rights set out in the Bill of Rights. See Hurtado
v. California, 110 U. S. 516 (1884) (due process does not
require grand jury indictment); Chicago, B. & Q. R. Co. v.
Chicago, 166 U. S. 226 (1897) (due process prohibits
States from taking of private property for public use with-
out just compensation). Five features of the approach
taken during the ensuing era should be noted.

First, the Court viewed the due process question as
entirely separate from the question whether a right was a
privilege or immunity of national citizenship. See Twin-
ing v. New Jersey, 211 U. S. 78, 99 (1908).

Second, the Court explained that the only rights pro-
tected against state infringement by the Due Process
Clause were those rights “”of such a nature that they are
included in the conception of due process of law.”” Ibid.
See also, e.g., Adamson v. California, 332 U. S. 46 (1947);
Betts v. Brady, 316 U. S. 455 (1942); Palko v. Connecticut,

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302 U. S. 319 (1937); Grosjean v. American Press Co., 297
U. S. 233 (1936); Powell v. Alabama, 287 U. S. 45 (1932).
While it was “”possible that some of the personal rights
safeguarded by the first eight Amendments against Na-
tional action [might] also be safeguarded against state
action,”” the Court stated, this was ““not because those
rights are enumerated in the first eight Amendments.””
Twining, supra, at 99.

The Court used different formulations in describing the
boundaries of due process. For example, in Twining, the
Court referred to ““immutable principles of justice which
inhere in the very idea of free government which no mem-
ber of the Union may disregard.”” 211 U. S., at 102 (inter-
nal quotation marks omitted). In Snyder v. Massachu-
setts, 291 U. S. 97, 105 (1934), the Court spoke of rights
that are ““so rooted in the traditions and conscience of our
people as to be ranked as fundamental.”” And in Palko, the
Court famously said that due process protects those rights
that are ““the very essence of a scheme of ordered liberty””
and essential to ““a fair and enlightened system of justice.””
302 U. S., at 325.

Third, in some cases decided during this era the Court
“”can be seen as having asked, when inquiring into
whether some particular procedural safeguard was re-
quired of a State, if a civilized system could be imagined
that would not accord the particular protection.”” Duncan
v. Louisiana, 391 U. S. 145, 149, n. 14 (1968). Thus, in
holding that due process prohibits a State from taking
private property without just compensation, the Court
described the right as ““a principle of natural equity, rec-
ognized by all temperate and civilized governments, from
a deep and universal sense of its justice.”” Chicago, B. &
Q. R. Co., supra, at 238. Similarly, the Court found that
due process did not provide a right against compelled
incrimination in part because this right “”has no place in
the jurisprudence of civilized and free countries outside

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