OTIS
McDONALD, et al., Petitioners v. CITY OF CHICAGO,
ILLINOIS, et al.
No.
08-1521
SUPREME
COURT OF THE UNITED STATES
561
U.S. 742; 130 S. Ct. 3020; 177 L. Ed. 2d 894; 2010 U.S. LEXIS 5523; 78 U.S.L.W.
4844
March
2, 2010, Argued
June
28, 2010, Decided
Justice Alito delivered the
opinion of the Court with respect to Parts I, II-A, II-B, II-D, III-A, and
III-B, concluding that the Fourteenth Amendment incorporates the Second
Amendment right, recognized in Heller, to keep and bear arms for the purpose of
self-defense.
Justice Alito announced the
judgment of the Court and delivered the opinion of the Court with respect to
Parts I, II-A, II-B, II-D, and III, in which The Chief Justice, Justice [*749] Scalia, Justice Kennedy, and Justice Thomas
join, and an opinion with respect to Parts II-C, IV, and V, in which The Chief
Justice, Justice Scalia, and Justice Kennedy join.
II-D
1
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,
4 S. Ct. 111, 28 L. Ed. 232 (1884) (due process does not require grand jury
indictment); Chicago, B. & Q. R. Co. v. Chicago, 166 U.S. 226, 17 S. Ct.
581, 41 L. Ed. 979 (1897) (due process prohibits States from taking of private
property for public use without 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 Twining v. New Jersey, 211 U.S. 78, 99, 29 S. Ct. 14,
53 L. Ed. 97 (1908).
Second, the Court explained that the only rights protected
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 [*760]
v. California, 332 U.S. 46, 67 S. Ct. 1672, 91 L. Ed. 1903
(1947); Betts v. Brady, 316 U.S. 455, 62 S. Ct. 1252, 86 L. Ed. 1595
(1942); Palko v. Connecticut, 302 U.S. 319, 58 S. Ct.
149, 82 L. Ed. 288 (1937); Grosjean v.
American Press Co., 297 U.S. 233, 56 S. Ct. 444, 80 L. Ed. 660 (1936); Powell v. Alabama, 287 U.S. 45, 53 S.
Ct. 55, 77 L. Ed. 158 (1932). While it was “possible that some of the personal
rights safeguarded by the first eight Amendments against National 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, 211 U.S., at 99, 29 S. Ct.
14, 53 L. Ed. 97.
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 member of
the Union may disregard.” Id., at 102, 29 S. Ct. 14, 53 L. Ed. 97 (internal
quotation marks omitted). In Snyder v. Massachusetts, 291 U.S.
97, 105, 54 S. Ct. 330, 78 L. Ed. 674 (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, 58 S. Ct. 149, 82 L. Ed. 288.
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 required 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, 88 S. Ct. 1444, 20 L. Ed. 2d
491 (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, recognized by all
temperate and civilized governments, from a deep and universal sense of its
justice.” Chicago, B. & Q. R. Co., supra,
at 238, 17 S. Ct. 581, 41 L. Ed. 979. 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 [*761] countries outside the domain of the common
law.” Twining, supra, at 113, 29 S. Ct. 14, 53 L. Ed. 97.
Fourth, the Court during this era was not hesitant to hold
that a right set out in the Bill of Rights failed to meet the test for
inclusion within the protection of the Due Process Clause. The Court found that
some such rights qualified. See, e.g., Gitlow v. New
York, 268 U.S. 652, 666, 45 S. Ct. 625, 69 L. Ed. 1138 (1925) (freedom
of speech and press); Near v. Minnesota ex rel. Olson, 283
U.S. 697, 51 S. Ct. 625, 75 L. Ed. 1357 (1931) (same); Powell, supra (assistance
of counsel in capital cases); De Jonge, supra
(freedom of assembly); Cantwell v. Connecticut, 310 U.S.
296, 60 S. Ct. 900, 84 L. Ed. 1213 (1940) (free exercise of religion). But
others did not. See, e.g., Hurtado, supra (grand jury
indictment requirement); Twining, supra (privilege against
self-incrimination).
Finally, even when a right set out in the Bill of Rights was
held to fall within the conception of due process, the protection or remedies
afforded against state infringement sometimes differed from the protection or
remedies provided against abridgment by the Federal Government. To give one
example, in Betts the Court held that, although the Sixth Amendment required
the appointment of counsel in all federal criminal cases in which the defendant
was unable to retain an attorney, the Due Process Clause required appointment
of counsel in state criminal proceedings only where “want of counsel in [the]
particular case . . . result[ed] in a conviction
lacking in . . . fundamental fairness.” 316 U.S., at 473, 62 S. Ct. 1252, 86 L.
Ed. 1595. Similarly, in Wolf v. Colorado, 338 U.S. 25, 69 S.
Ct. 1359, 93 L. Ed. 1782 (1949), the Court held that the “core of the Fourth
Amendment was implicit in the concept of ordered liberty and thus “enforceable
against the States through the Due Process Clause” but that the exclusionary
rule, which applied in federal cases, did not apply to the States. Id., at 27-28, 33, 69 S. Ct. 1359, 93 L. Ed. 1782.
2
An alternative theory regarding the relationship between the
Bill of Rights and § 1 of the Fourteenth Amendment was [*762]
championed by Justice Black. This theory held that § 1 of the Fourteenth
Amendment totally incorporated all of the provisions of the Bill of Rights.
See, e.g., Adamson, supra, at 71-72, 67 S. Ct. 1672, 91 L. Ed. 1903
(Black, J., dissenting); Duncan, supra, at 166, 88 S. Ct.
1444, 20 L. Ed. 2d 491 (Black, J., concurring). As Justice Black noted, the
chief congressional proponents of the Fourteenth Amendment espoused the view
that the Amendment made the Bill of Rights applicable to the States and, in so
doing, overruled this Court's decision in Barron.9 Adamson, supra, at 72, 67
S. Ct. 1672, 91 L. Ed. 1903 (dissenting opinion).10 Nonetheless, [*763] the
Court never has embraced Justice Black's “total incorporation” theory.
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9 Senator Jacob Howard, who spoke on behalf of the Joint Committee on Reconstruction and sponsored the Amendment in the Senate, stated that the Amendment protected all of “the personal rights guarantied and secured by the first eight amendments of the Constitution.” Cong. Globe, 39th Cong., 1st Sess., 2765 (1866) (hereinafter 39th Cong. Globe). Representative John Bingham, the principal author of the text of § 1, said that the Amendment would “arm the Congress . . . with the power to enforce the bill of rights as it stands in the Constitution today.” Id., at 1088; see also id., at 1089-1090; A. Amar, The Bill of Rights: Creation and Reconstruction 183 (1998) (hereinafter Amar, Bill of Rights). After ratification of the Amendment, Bingham maintained the view that the rights guaranteed by § 1 of the Fourteenth Amendment “are chiefly defined in the first eight amendments to the Constitution of the United States.” Cong. Globe, 42d Cong., 1st Sess., App. 84 (1871). Finally, Representative Thaddeus Stevens, the political leader of the House and acting chairman of the Joint Committee on Reconstruction, stated during the debates on the Amendment that “the Constitution limits only the action of Congress, and is not a limitation on the States. This amendment supplies that defect, and allows Congress to correct the unjust legislation of the States.” 39th Cong. Globe 2459; see also M. Curtis, No State Shall Abridge: The Fourteenth Amendment and the Bill of Rights 112 (1986) (counting at least 30 statements during the debates in Congress interpreting § 1 to incorporate the Bill of Rights); Brief for Constitutional Law Professors as Amici Curiae 20 (collecting authorities and stating that “[n]ot a single senator or representative disputed [the incorporationist] understanding” of the Fourteenth Amendment).
10 The municipal respondents and some of their
amici dispute the significance of these statements. They contend that the
phrase “privileges or immunities” is not naturally read to mean the rights set
out in the first eight Amendments, see Brief for Historians et al. as Amici
Curiae 13-16, and that “there is 'support in the legislative history for no
fewer than four interpretations of the . . . Privileges or Immunities Clause,'
” Brief for Municipal Respondents 69 (quoting Currie, The Reconstruction
Congress, 75 U. Chi. L. Rev. 383, 406 (2008); brackets omitted). They question
whether there is sound evidence of “ 'any strong
public awareness of nationalizing the entire Bill of Rights.' ” Brief for
Municipal Respondents 69 (quoting Wildenthal,
Nationalizing the Bill of Rights: Revisiting the Original Understanding of the
Fourteenth Amendment in 1866-67, 68 Ohio St. L. J. 1509, 1600 (2007)). Scholars
have also disputed the total incorporation theory. See, e.g., Fairman, Does the Fourteenth Amendment Incorporate the Bill
of Rights? 2 Stan. L. Rev. 5 (1949); Berger, Incorporation
of the Bill of Rights in the Fourteenth Amendment: A Nine-Lived Cat, 42 Ohio
St. L. J. 435 (1981). Proponents of the view that § 1 of the Fourteenth
Amendment makes all of the provisions of the Bill of Rights applicable to the
States respond that the terms privileges, immunities, and rights were used
interchangeably at the time, see, e.g., Curtis, supra, at 64-65, and that the
position taken by the leading congressional proponents of the Amendment was
widely publicized and understood, see, e.g., Wildenthal,
supra, at 1564-1565, 1590; Hardy, Original Popular Understanding of the
Fourteenth Amendment as Reflected in the Print Media of 1866-1868, 30 Whittier
L. Rev. 695 (2009). A number of scholars have found support for the total
incorporation of the Bill of Rights. See Curtis, supra, 57-130; Aynes, On Misreading John Bingham and the Fourteenth
Amendment, 103 Yale L. J. 57, 61 (1993); see also Amar, Bill of Rights 181-230.
We take no position with respect to this academic debate.
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3
While Justice Black's theory was never adopted, the Court
eventually moved in that direction by initiating what has been called a process
of “selective incorporation,” i.e., the Court began to hold that the Due
Process Clause fully incorporates particular rights contained in the first
eight Amendments. See, e.g., Gideon v. Wainright,
372 U.S. 335, 341, 83 S. Ct. 792, 9 L. Ed. 2d 799 (1963); Malloy v. Hogan, 378 U.S.
1, 5-6, 84 S. Ct. 1489, 12 L. Ed. 2d 653 (1964); Pointer v. Texas, 380
U.S. 400, 403-404, 85 S. Ct. 1065, 13 L. Ed. 2d 923 (1965); Washington
v. Texas, 388 U.S. 14, 18, 87 S. Ct. 1920, 18 L. Ed. 2d 1019 (1967); Duncan,
391 U.S., at 147-148, 88 S. Ct. 1444, 20 L. Ed. 2d 491; Benton v. Maryland, 395
U.S. 784, 794, 89 S. Ct. 2056, 23 L. Ed. 2d 707 (1969).
[*764] The decisions during this time abandoned
three of the previously noted characteristics of the earlier period.11
The Court made it clear that the governing standard is not whether any
“civilized system [can] be imagined that would not accord the particular
protection.” Duncan, 391 U.S., at 149, n. 14, 88
S. Ct. 1444, 20 L. Ed. 2d 491. Instead, the Court inquired whether a
particular Bill of Rights guarantee is fundamental to our scheme of ordered
liberty and system of justice. Id., at 149, and n. 14, 88 S. Ct. 1444, 20 L.
Ed. 2d 491; see also id., at 148, 88 S. Ct. 1444, 20 L. Ed. 2d 491 (referring
to those “fundamental principles of liberty and justice which lie at the base
of all our civil and political institutions” (emphasis added; internal
quotation marks omitted)).
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11 By contrast, the Court has never retreated
from the proposition that the Privileges or Immunities Clause and the Due
Process Clause present different questions. And in recent cases addressing unenumerated rights, we have required that a right also be
“implicit in the concept of ordered liberty.” See, e.g., Washington v. Glucksberg,
521 U.S. 702, 721, 117 S. Ct. 2258, 117 S. Ct. 2302, 138 L. Ed. 2d 772 (1997)
(internal quotation marks omitted): [“deeply rooted in this Nation's history
and tradition,” 521 U.S. 702, 721.] (Underlined portion added by WSM.)
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- -
The Court also shed any reluctance to hold that rights
guaranteed by the Bill of Rights met the requirements for protection under the
Due Process Clause. The Court eventually incorporated almost all of the
provisions of the Bill of Rights.12 [*765]
Only a handful of the Bill of Rights protections remain unincorporated.13
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12 With respect to the First Amendment, see Everson v. Board of Ed. of Ewing, 330 U.S. 1, 67 S. Ct. 504, 91 L. Ed. 711 (1947) (Establishment Clause); Cantwell v. Connecticut, 310 U.S. 296, 60 S. Ct. 900, 84 L. Ed. 1213 (1940) (Free Exercise Clause); De Jonge v. Oregon, 299 U.S. 353, 57 S. Ct. 255, 81 L. Ed. 278 (1937) (freedom of assembly); Gitlow v. New York, 268 U.S. 652, 45 S. Ct. 625, 69 L. Ed. 1138 (1925) (free speech); Near v. Minnesota ex rel. Olson, 283 U.S. 697, 51 S. Ct. 625, 75 L. Ed. 1357 (1931) (freedom of the press). With respect to the Fourth Amendment, see Aguilar v. Texas, 378 U.S. 108, 84 S. Ct. 1509, 12 L. Ed. 2d 723 (1964) (warrant requirement); Mapp v. Ohio, 367 U.S. 643, 81 S. Ct. 1684, 6 L. Ed. 2d 1081, 86 Ohio Law Abs. 513 (1961) (exclusionary rule); Wolf v. Colorado, 338 U.S. 25, 69 S. Ct. 1359, 93 L. Ed. 1782 (1949) (freedom from unreasonable searches and seizures). With respect to the Fifth Amendment, see Benton v. Maryland, 395 U.S. 784, 89 S. Ct. 2056, 23 L. Ed. 2d 707 (1969) (Double Jeopardy Clause); Malloy v. Hogan, 378 U.S. 1, 84 S. Ct. 1489, 12 L. Ed. 2d 653 (1964) (privilege against self-incrimination); Chicago, B. & Q. R. Co. v. Chicago, 166 U.S. 226, 17 S. Ct. 581, 41 L. Ed. 979 (1897) (Just Compensation Clause). With respect to the Sixth Amendment, see Duncan v. Louisiana, 391 U.S. 145, 88 S. Ct. 1444, 20 L. Ed. 2d 491 (1968) (trial by jury in criminal cases); Washington v. Texas, 388 U.S. 14, 87 S. Ct. 1920, 18 L. Ed. 2d 1019 (1967) (compulsory process); Klopfer v. North Carolina, 386 U.S. 213, 87 S. Ct. 988, 18 L. Ed. 2d 1 (1967) (speedy trial); Pointer v. Texas, 380 U.S. 400, 85 S. Ct. 1065, 13 L. Ed. 2d 923 (1965) (right to confront adverse witness); Gideon v. Wainwright, 372 U.S. 335, 83 S. Ct. 792, 9 L. Ed. 2d 799 (1963) (assistance of counsel); In re Oliver, 333 U.S. 257, 68 S. Ct. 499, 92 L. Ed. 682 (1948) (right to a public trial). With respect to the Eighth Amendment, see Robinson v. California, 370 U.S. 660, 82 S. Ct. 1417, 8 L. Ed. 2d 758 (1962) (cruel and unusual punishment); Schilb v. Kuebel, 404 U.S. 357, 92 S. Ct. 479, 30 L. Ed. 2d 502 (1971) (prohibition against excessive bail).
13 In addition to the right to keep and bear arms (and the Sixth Amendment right to a unanimous jury verdict, see n. 14, infra), the only rights not fully incorporated are (1) the Third Amendment's protection against quartering of soldiers; (2) the Fifth Amendment's grand jury indictment requirement; (3) the Seventh Amendment right to a jury trial in civil cases; and (4) the Eighth Amendment's prohibition on excessive fines. We never have decided whether the Third Amendment or the Eighth Amendment's prohibition of excessive fines applies to the States through the Due Process Clause. See Browning-Ferris Industries of Vt., Inc. v. Kelco Disposal, Inc., 492 U.S. 257, 276, n. 22, 109 S. Ct. 2909, 106 L. Ed. 2d 219 (1989) (declining to decide whether the excessive-fines protection applies to the States); see also Engblom v. Carey, 677 F.2d 957, 961 (CA2 1982) (holding as a matter of first impression that the “Third Amendment is incorporated into the Fourteenth Amendment for application to the states”). Our governing decisions regarding the Grand Jury Clause of the Fifth Amendment and the Seventh Amendment's civil jury requirement long predate the era of selective incorporation.