SUPREME COURT OF THE UNITED STATES OTIS MCDONALD, ET AL., PETITIONERS v. CITY OF CHICAGO, ILLINOIS, ET AL. ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT [June 28, 2010] JUSTICE THOMAS, concurring in part and concurring in the judgment. I agree with the Court that the Fourteenth Amendment makes the right to keep and bear arms set forth in the Second Amendment “fully applicable to the States.” Ante, at 1. I write separately because I believe there is a more straight forward path to this conclusion, one that is more faithful to the Fourteenth Amendment’s text and history. Applying what is now a well-settled test, the plurality opinion concludes that the right to keep and bear arms applies to the States through the Fourteenth Amendment’s Due Process Clause because it is “fundamental” to the American “scheme of ordered liberty,” ante, at 19 (citing Duncan v. Louisiana, 391 U. S. 145, 149 (1968)), and “‘deeply rooted in this Nation’s history and tradition,’” ante, at 19 (quoting Washington v. Glucksberg, 521 U. S. 702, 721 (1997)). I agree with that description of the right. But I cannot agree that it is enforceable against the States through a clause that speaks only to “process.” Instead, the right to keep and bear arms is a PRIVILEGE of American citizenship that applies to the States through the Fourteenth Amendment’s Privileges or Immunities Clause. In District of Columbia v. Heller, 554 U. S. ___ (2008), this Court held that the Second Amendment protects an individual right to keep and bear arms for the purpose of self-defense, striking down a District of Columbia ordinance that banned the possession of handguns in the home. Id., at __ (slip op., at 64). The question in this case is whether the Constitution protects that right against abridgment by the States. As the Court explains, if this case were litigated before the Fourteenth Amendment’s adoption in 1868, THE ANSWER TO THAT QUESTION WOULD BE SIMPLE. In Barron ex rel. Tiernan v. Mayor of Baltimore, 7 Pet. 243 (1833), this Court held that the Bill of Rights applied ONLY to the Federal Government. Writing for the Court, Chief Justice Marshall recalled that the founding generation added the first eight Amendments to the Constitution in response to Antifederalist concerns regarding the extent of federal—NOT state—power, and held that if “the framers of these amendments [had] intended them to be limitations on the powers of the state governments,” “they would have declared this purpose in plain and intelligible language.” Id., at 250. Finding no such language in the Bill, Chief Justice Marshall held that it did not in any way restrict state authority. Id., at 248–250; see Lessee of Livingston v. Moore, 7 Pet. 469, 551–552 (1833) (reaffirming Barron’s holding); Permoli v. Municipality No. 1 of New Orleans, 3 How. 589, 609–610 (1845) (same).
Posted on: Sun, 03 Nov 2013 16:53:54 +0000
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