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Finding the phrase "privileges or immunities of citizens of the United States" lacking by this high standard, the Court reasoned that the phrase must mean something more limited. Municipal respondents' main argument is nothing less than a plea to disregard 50 years of incorporation precedent and return (presumably for this case only) to a bygone era. For example, many of the rights that our Bill of Rights provides for persons accused of criminal offenses are virtually unique to this country. 1, 8 (1947), the Court held that the Fourteenth Amendment incorporates the Establishment Clause of the First Amendment.
Under the Court's narrow reading, the Privileges or Immunities Clause protects such things as the right "to come to the seat of government to assert any claim [a citizen] may have upon that government, to transact any business he may have with it, to seek its protection, to share its offices, to engage in administering its functions ... As Senator Wilson put it during the debate on a failed proposal to disband Southern militias: "There is one unbroken chain of testimony from all people that are loyal to this country, that the greatest outrages are perpetrated by armed men who go up and down the country searching houses, disarming people, committing outrages of every kind and description." 39th Cong. but the 39th Congress concluded that legislative action was necessary. 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 civilized legal system that does not recognize a particular right, then the Due Process Clause does not make that right binding on the States. Therefore, the municipal respondents continue, because such countries as England, Canada, Australia, Japan, Denmark, Finland, Luxembourg, 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. civilized country, it would follow that the United States is the only civilized Nation in the world. But even in this trimmed form, municipal respondents' argument flies in the face of more than a half-century of precedent. Yet several of the countries that municipal respondents recognize as civilized have established state churches.
25, 1788), in 17 Documentary History of the Ratification of the Constitution 360, 362-363 (J. And when attempts were made to disarm "Free-Soilers" in "Bloody Kansas," Senator Charles Sumner, who later played a leading role in the adoption of the Fourteenth Amendment, proclaimed that "[n]ever was [the rifle] more needed in just self-defense than now in Kansas." The Crime Against Kansas: The Apologies for the Crime: The True Remedy, Speech of Hon. Foner, Reconstruction: America's Unfinished Revolution 1863-1877, p. The laws of some States formally prohibited African Americans from possessing firearms. In the first session of the 39th Congress, Senator Wilson told his colleagues: "In Mississippi rebel State forces, men who were in the rebel armies, are traversing the State, visiting the freedmen, disarming them, perpetrating murders and outrages upon them; and the same things are done in other sections of the country." 39th Cong. The Report of the Joint Committee on Reconstruction--which was widely reprinted in the press and distributed by Members of the 39th Congress to their constituents shortly after Congress approved the Fourteenth Amendment, Joint Committee on Reconstruction, H. But in this case, as it turns out, there is evidence of such a consensus.
Charles Sumner in the Senate of the United States 64-65 (1856). After the Civil War, many of the over 180,000 African Americans who served in the Union Army returned to the States of the old Confederacy, where systematic efforts were made to disarm them and other blacks. For example, a Mississippi law provided that "no freedman, free negro or mulatto, not in the military service of the United States government, and not licensed so to do by the board of police of his or her county, shall keep or carry fire-arms of any kind, or any ammunition, dirk or bowie knife." Certain Offenses of Freedmen, 1865 Miss. 165, §1, in 1 Documentary History of Reconstruction 289 (W. 1950); see also Regulations for Freedmen in Louisiana, in ., at 279-280; H. An brief submitted by 58 Members of the Senate and 251 Members of the House of Representatives urges us to hold that the right to keep and bear arms is fundamental.
"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." , at ___ (slip op., at 25) (citing Letters from the Federal Farmer III (Oct. Halbrook, The Founders' Second Amendment 171-278 (2008). Abolitionist authors wrote in support of the right. Spooner, The Unconstitutionality of Slavery 66 (1860) (reprint 1965); J. 70, 39th Cong., 1st Sess., 233, 236 (1866) (describing a Kentucky law); E. Even if we believed that these factors were relevant to the incorporation inquiry, none of these factors undermines the case for incorporation of the right to keep and bear arms for self-defense.
10, 1787), in 2 The Complete Anti-Federalist 234, 242 (H. 1981)); see also Federal Farmer: An Additional Number of Letters to the Republican, Letter XVIII (Jan. Federalists 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. Tiffany, A Treatise on the Unconstitutionality of American Slavery 117-118 (1849) (reprint 1969). Mc Pherson, The Political History of the United States of America During the Period of Reconstruction 40 (1871) (describing a Florida law); Throughout the South, armed parties, often consisting of ex-Confederate soldiers serving in the state militias, forcibly took firearms from newly freed slaves. First, we have never held that a provision of the Bill of Rights applies to the States only if there is a "popular consensus" that the right is fundamental, and we see no basis for such a rule.
Indeed, , 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. safeguarded by the due process clause of the Fourteenth Amendment." , 299 U. 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. Five features of the approach taken during the ensuing era should be noted. Explaining that "the need for defense of self, family, and property is most acute" in the home, ., at ___ (slip op., at 57) ("[T]he American people have considered the handgun to be the quintessential self-defense weapon"). Thus, Antifederalists and Federalists alike agreed that the right to bear arms was fundamental to the newly formed system of government. Malcolm, To Keep and Bear Arms: The Origins of an Anglo-American Right 155-164 (1994). Take away their weapons of defense and you take away the inalienable right of defending liberty." "The fourteenth amendment, now so happily adopted, settles the whole question." Cong. And in debating the Civil Rights Act of 1871, Congress routinely referred to the right to keep and bear arms and decried the continued disarmament of blacks in the South. Finally, legal commentators from the period emphasized the fundamental nature of the right. Farrar, Manual of the Constitution of the United States of America §118, p. Pomeroy, An Introduction to the Constitutional Law of the United States §239, pp. In 1868, 22 of the 37 States in the Union had state constitutional provisions explicitly protecting the right to keep and bear arms. Municipal respondents argue, finally, that the right to keep and bear arms is unique among the rights set out in the first eight Amendments "because the reason for codifying the Second Amendment (to protect the militia) differs from the purpose (primarily, to use firearms to engage in self-defense) that is claimed to make the right implicit in the concept of ordered liberty." Brief for Municipal Respondents 36-37.
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. Thus, we concluded, citizens must be permitted "to use [handguns] for the core lawful purpose of self-defense." explored the right's origins, noting that the 1689 English Bill of Rights explicitly protected a right to keep arms for self-defense, 554 U. 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. Elliot, The Debates in the Several State Conventions on the Adoption of the Federal Constitution 327-331 (2d ed. See Calabresi & Agudo, Individual Rights Under State Constitutions when the Fourteenth Amendment was Ratified in 1868: What Rights Are Deeply Rooted in American History and Tradition? Municipal respondents suggest that the Second Amendment right differs from the rights heretofore incorporated because the latter were "valued for [their] own sake." ., at 33. The question presented in this case, in his view, "is whether the particular right asserted by petitioners applies to the States because of the Fourteenth Amendment itself, standing on its own bottom." , at 27.
S., at ___-___ (slip op., at 19-20), and that by 1765, Blackstone was able to assert that the right to keep and bear arms was "one of the fundamental rights of Englishmen," ., at ___ (slip op., at 21); see also L. 1854); 3 , at 242-246, 248-249; see also Levy 26-34; A. Harbison, The American Constitution: Its Origins and Development 110, 118 (7th ed. This is surely powerful evidence that the right was regarded as fundamental in the sense relevant here. Rawle, A View of the Constitution of the United States of America, 125-126 (2d ed. Story, Commentaries on the Constitution of the United States §1890, p. But we have never previously suggested that incorporation of a right turns on whether it has intrinsic as opposed to instrumental value, and quite a few of the rights previously held to be incorporated--for example the right to counsel and the right to confront and subpoena witnesses--are clearly instrumental by any measure. On the contrary, we stressed that the right was also valued because the possession of firearms was thought to be essential for self-defense. He would hold that "[t]he rights protected against state infringement by the Fourteenth Amendment's Due Process Clause need not be identical in shape or scope to the rights protected against Federal Government infringement by the various provisions of the Bill of Rights." theory across the board, decades of decisions would be undermined. What is urged instead, it appears, is that this theory be revived solely for the individual right that recognized, over vigorous dissents.
Explaining that "the need for defense of self, family, and property is most acute" in the home, explored the right's origins in English law and noted the esteem with which the right was regarded during the colonial era and at the time of the ratification of the Bill of Rights. (i) By the 1850's, the fear that the National Government would disarm the universal militia had largely faded, but the right to keep and bear arms was highly valued for self-defense. A survey of contemporary legal authorities plainly shows that, at that time, the ratifying public understood the Clause to protect constitutionally enumerated rights, including the right to keep and bear arms. Applying the standard that is well established in our case law, we hold that the Second Amendment right is fully applicable to the States. They argue that Members of Congress overwhelmingly viewed §1 of the Fourteenth Amendment "as an antidiscrimination rule," and they cite statements to the effect that the section would outlaw discriminatory measures. If that were so, then the First Amendment, as applied to the States, would not prohibit nondiscriminatory abridgments of the rights to freedom of speech or freedom of religion; the Fourth Amendment, as applied to the States, would not prohibit all unreasonable searches and seizures but only discriminatory searches and seizures--and so on.
Rather, the right to keep and bear arms is enforceable against the States because it is a privilege of American citizenship recognized by §1 of the Fourteenth Amendment, which provides, "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States." In interpreting this language, it is important to recall that constitutional provisions are " 'written to be understood by the voters.' " , 554 U. The objective of this inquiry is to discern what "ordinary citizens" at the time of the Fourteenth Amendment's ratification would have understood that Amendment's Privileges or Immunities Clause to mean. We have previously held that most of the provisions of the Bill of Rights apply with full force to both the Federal Government and the States. Despite all this evidence, municipal respondents contend that Congress, in the years immediately following the Civil War, merely sought to outlaw "discriminatory measures taken against freedmen, which it addressed by adopting a non-discrimination principle" and that even an outright ban on the possession of firearms was regarded as acceptable, "so long as it was not done in a discriminatory manner." Brief for Municipal Respondents 7. First, while §1 of the Fourteenth Amendment contains "an antidiscrimination rule," namely, the Equal Protection Clause, municipal respondents can hardly mean that §1 does no more than prohibit discrimination.
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The plight of Chicagoans living in high-crime areas was recently highlighted when two Illinois legislators representing Chicago districts called on the Governor to deploy the Illinois National Guard to patrol the City's streets.