TFA Statement on McDonald

McDonald Decision issued – 2nd Amendment applies to States through 14th Amendment

In what was largely perceived by many as a foregone conclusion, the United States Supreme Court has released on June 28, 2010, its opinion in the McDonald v. City of Chicago case. It is a 214 page PDF opinion.
Unfortunately, its a 5-4 decision. Alito (recall the State of the Union speech), issued the opinion. Justices Roberts, Scalia, Kennedy and Thomas joined in the majority. Predictably, Justices Stevens, Breyer, Ginsburg and Sotomayor dissented.
Selected provisions of the opinion:
pp. 19-18

With this framework in mind, we now turn directly to the question whether the Second Amendment right tokeep and bear arms is incorporated in the concept of due process. In answering that question, as just explained, wemust decide whether the right to keep and bear arms is fundamental to our scheme of ordered liberty, Duncan, 391 U. S., at 149, or as we have said in a related context, whether this right is “deeply rooted in this Nation’s history and tradition,” Washington v. Glucksberg, 521 U. S. 702, 721 (1997) (internal quotation marks omitted).
Our decision in Heller points unmistakably to the answer. Self-defense is a basic right, recognized by many legal systems from ancient times to the present day, and in Heller, we held that individual self-defense is “the central component” of the Second Amendment right. 554 U. S., at ___ (slip op., at 26); see also id., at ___ (slip op., at56) (stating that the “inherent right of self-defense has been central to the Second Amendment right”). Explaining that “the need for defense of self, family, and property is most acute” in the home, ibid., we found that this right applies to handguns because they are “the most preferred firearm in the nation to ‘keep’ and use for protection of one’s home and family,” id., at ___ (slip op., at 57) (someinternal quotation marks omitted); see also id., at ___ (slip op., at 56) (noting that handguns are “overwhelmingly chosen by American society for [the] lawful purpose” ofself-defense); id., at ___ (slip op., at 57) (“[T]he American people have considered the handgun to be the quintessential self-defense weapon”). Thus, we concluded, citizens must be permitted “to use [handguns] for the core lawful purpose of self-defense.” Id., at ___ (slip op., at 58).

p. 33

Municipal respondents’ remaining arguments are at war with our central holding in Heller: that the Second Amendment protects a personal right to keep and beararms for lawful purposes, most notably for self-defensewithin the home. Municipal respondents, in effect, ask us to treat the right recognized in Heller as a second-class right, subject to an entirely different body of rules than the other Bill of Rights guarantees that we have held to beincorporated into the Due Process Clause.

pp 35-36

Municipal respondents maintain that the Second Amendment differs from all of the other provisions of theBill of Rights because it concerns the right to possess a deadly implement and thus has implications for public safety. Brief for Municipal Respondents 11. And theynote that there is intense disagreement on the question whether the private possession of guns in the home in-creases or decreases gun deaths and injuries. Id., at 11, 13–17.
The right to keep and bear arms, however, is not theonly constitutional right that has controversial public safety implications. All of the constitutional provisionsthat impose restrictions on law enforcement and on theprosecution of crimes fall into the same category. See, e.g., Hudson v. Michigan, 547 U. S. 586, 591 (2006) (“Theexclusionary rule generates ‘substantial social costs,’ United States v. Leon, 468 U. S. 897, 907 (1984), whichsometimes include setting the guilty free and the dangerous at large”); Barker v. Wingo, 407 U. S. 514, 522 (1972) (reflecting on the serious consequences of dismissal for a speedy trial violation, which means “a defendant who may be guilty of a serious crime will go free”); Miranda v. Arizona, 384 U. S. 436, 517 (1966) (Harlan, J., dissenting); id., at 542 (White, J., dissenting) (objecting that theCourt’s rule “[i]n some unknown number of cases . . . willreturn a killer, a rapist or other criminal to the streets . . . to repeat his crime”); Mapp, 367 U. S., at 659. Municipalrespondents cite no case in which we have refrained from holding that a provision of the Bill of Rights is binding on the States on the ground that the right at issue has disputed public safety implications.

pp 37 – 38

Time and again, however, those pleas failed. Unless we turn back the clock or adopt a special incorporation testapplicable only to the Second Amendment, municipalrespondents’ argument must be rejected. Under our precedents, if a Bill of Rights guarantee is fundamental from an American perspective, then, unless stare decisis counsels otherwise, that guarantee is fully binding on the States and thus limits (but by no means eliminates) their ability to devise solutions to social problems that suit local needs and values. As noted by the 38 States that have appeared in this case as amici supporting petitioners, “[s]tate andlocal experimentation with reasonable firearms regulations will continue under the Second Amendment.” Brief for State of Texas et al. as Amici Curiae 23.

p. 39

Municipal respondents assert that, although most stateconstitutions protect firearms rights, state courts have held that these rights are subject to “interest-balancing” and have sustained a variety of restrictions. Brief for Municipal Respondents 23–31. In Heller, however, we expressly rejected the argument that the scope of the Second Amendment right should be determined by judicialinterest balancing, 554 U. S., at ___–___ (slip op., at 62–63), and this Court decades ago abandoned “the notion that the Fourteenth Amendment applies to the States only a watered-down, subjective version of the individual guar-antees of the Bill of Rights,” Malloy, supra, at 10–11 (in-ternal quotation marks omitted).

pp. 39-40

* * * It is important to keep in mind that Heller, while striking down a law that prohibited the possession of handguns in the home, recognized that the right to keep and bear arms is not “a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose.” 554 U. S., at ___ (slip op., at 54). We made it clear in Heller that our holding did not cast doubt on such longstanding regulatorymeasures as “prohibitions on the possession of firearms by felons and the mentally ill,” “laws forbidding the carrying of firearms in sensitive places such as schools and gov-ernment buildings, or laws imposing conditions and quali-fications on the commercial sale of arms.” Id., at ___–___ (slip op., at 54–55). We repeat those assurances here.Despite municipal respondents’ doomsday proclamations, incorporation does not imperil every law regulating firearms.

p. 44

Third, JUSTICE BREYER is correct that incorporation ofthe Second Amendment right will to some extent limit the legislative freedom of the States, but this is always true when a Bill of Rights provision is incorporated. Incorpora-tion always restricts experimentation and local variations, but that has not stopped the Court from incorporatingvirtually every other provision of the Bill of Rights. “[T]heenshrinement of constitutional rights necessarily takes certain policy choices off the table.” Heller, 554 U. S., at __ (slip op., at 64). This conclusion is no more remarkable with respect to the Second Amendment than it is withrespect to all the other limitations on state power found inthe Constitution.