No.

08-1521

IN THE
Supreme Court of the United States
OTIS MCDONALD ET AL.,
Petitioners,
v.
CITY OF CHICAGO ET AL.,
Respondent.

On Writ of Certiorari to the United States Court of

Appeals for the Seventh Circuit

BRIEF FOR RESPONDENTS THE NATIONAL

RIFLE ASSOCIATION OF AMERICA, INC. ET
AL. IN SUPPORT OF PETITIONERS

STEPHEN P. HALBROOK STEPHEN D. POSS

3925 Chain Bridge Rd., Counsel of Record
Suite 403 KEVIN P. MARTIN
Fairfax, VA 22030 SCOTT B. NARDI
(703) 352-7276 JOSHUA S. LIPSHUTZ
GOODWIN PROCTER LLP
Counsel for the National Exchange Place
Rifle Association of Boston, MA 02109
America, Inc., et al. (617) 570-1000

Counsel for the National

Rifle Association of
America, Inc.

November 16, 2009

 QUESTION PRESENTED
Whether the Second Amendment right to keep
and bear arms is incorporated as against the States
by the Fourteenth Amendment’s Privileges or
Immunities or Due Process Clauses.
 ii.
PARTIES TO THE PROCEEDING
Petitioners Otis McDonald, Adam Orlov, Colleen
Lawson, David Lawson, Second Amendment
Foundation, Inc. and Illinois State Rifle Association
initiated the proceedings below by filing a complaint
against Respondent City of Chicago and its Mayor,
Richard M. Daley, in the United States District
Court for the Northern District of Illinois. Mayor
Daley was dismissed at an early stage of the
proceedings and is no longer a party in the matter.
The day after Petitioners filed their complaint in
the District Court, similar cases were brought
against Respondent City of Chicago and Mayor
Daley; and the Village of Oak Park, Illinois and its
President, David Pope, by other parties. The
plaintiffs in the related Chicago case were the
National Rifle Association of America, Inc., Dr.
Kathryn Tyler, Anthony Burton, Van F. Welton, and
Brett Benson. The plaintiffs in the related Oak Park
case were the National Rifle Association of America,
Inc., Robert Klein Engler, and Dr. Gene A. Reisinger.
The three cases were related, but not
consolidated, in the District Court. Petitioners and
the plaintiffs in the related cases separately
appealed the District Court’s decision to the United
States Court of Appeals for the Seventh Circuit,
which consolidated the appeals.
 iii.
CORPORATE DISCLOSURE STATEMENT
Respondent National Rifle Association of
America, Inc. (“NRA”), is a corporation which has no
parent corporation. No publicly held company owns
10% or more of the corporation’s stock.
 iv.
TABLE OF CONTENTS
Page
STATEMENT OF THE CASE .....................................1
SUMMARY OF THE ARGUMENT.............................7
ARGUMENT ..............................................................10
I. The Fourteenth Amendment Was
Intended and Understood to Protect
the Right to Keep and Bear Arms .............10
II. The Right to Keep and Bear Arms
Should Be Incorporated Into the Due
Process Clause of the Fourteenth
Amendment ................................................22
III. In the Alternative, This Court’s
Precedent Requires Recognizing the
Right to Keep and Bear Arms as a
Privilege or Immunity of National
Citizenship..................................................38
IV. In the Alternative, the Court Should
Revisit the Scope of the Privileges
and Immunities Clause..............................44
CONCLUSION ...........................................................47
 v.

TABLE OF AUTHORITIES

Page(s)
CASES

Barron v. Baltimore,
32 U.S. 243 (1833)............................................... 46
Benton v. Maryland,
395 U.S. 784 ........................................................ 33
Chicago, Burlington & Quincy R.R. Co. v.
Chicago,
166 U.S. 226 (1896) ............................................. 23
Colgate v. Harvey,
296 U.S. 404 (1935) ............................................. 39
District of Columbia v. Heller,
128 S. Ct. 2783 (2008)..................................passim
Duncan v. Louisiana,
391 U.S. 145 (1967) ................................. 28, 30, 33
Francis v. Resweber,
329 U.S. 459 (1947) ............................................. 29
Gideon v. Wainwright,
372 U.S. 335 (1962) ................................. 24, 27, 33
Griswold v. Connecticut,
381 U.S. 479 (1965) ............................................. 31
Honda Motor Co. v. Oberg,
512 U.S. 415 (1994) ............................................. 29
Howlett v. Rose,
496 U.S. 356 (1990) ............................................. 29
 vi.
In re Oliver,
333 U.S. 257 (1948) ............................................. 30
Jones v. Helms,
452 U.S. 412 (1981) (opinion by Stevens, J.) ..... 15
Klopfer v. North Carolina,
386 U.S. 213 (1966) ....................................... 28, 33
Lawrence v. Texas,
539 U.S. 558 (2003) ............................................. 44
Madden v. Kentucky,
309 U.S. 83 (1940)............................................... 39
Malloy v. Hogan,
378 U.S. 1 (1963)................................................. 26
Mapp v. Ohio,
367 U.S. 643 (1960) ............................................. 26
Miller v. Texas,
153 U.S. 535 (1894) ................................... 6, 22, 41
Minneapolis & St. Louis R.R. Co. v. Bombolis,
241 U.S. 211 (1916) ............................................. 29
Nat’l Rifle Ass’n of Am., Inc. v. Village of Oak
Park,
617 F. Supp. 2d 752 (N.D. Ill. 2008)..................... 5
Palko v. Connecticut,
302 U.S. 319 (1937) ....................................... 27, 30
Payne v. Tennessee,
501 U.S. 808 (1991) ............................................. 44
Plyler v. Doe,
457 U.S. 202 (1982) ............................................. 15
 vii.
Pointer v. Texas,
380 U.S. 400 (1964) ............................................. 28
Powell v. Alabama,
287 U.S. 45 (1932)......................................... 27, 29
Presser v. Illinois,
116 U.S. 252 (1886) ......................................passim
Quilici v. Village of Morton Grove,
695 F.2d 261 (7th Cir. 1982)............................. 5, 6
Robinson v. California,
370 U.S. 660 (1961) ............................................. 29
Saenz v. Roe,
526 U.S. 489 (1999) ............................................. 45
The Slaughter-House Cases,
83 U.S. 36 (1873)..........................................passim
Thornhill v. Alabama,
310 U.S. 88 (1940)............................................... 25
Twining v. New Jersey,
211 U.S. 78 (1908)......................................... 44, 45
United States v. Cruikshank,
92 U.S. 542 (1876)........................................passim
Washington v. Glucksberg,
521 U.S. 702 (1997) ............................................. 30
Washington v. Texas,
388 U.S. 14 (1966)............................................... 28
Wolf v. Colorado,
338 U.S. 25 (1949)............................................... 26
 viii.
STATUTES
Chicago, Ill., Code § 8-20-040 et seq....................... 1, 2
Civil Rights Act of 1871,
§ 1, 17 Stat. 13, (1871) (current version at
42 U.S.C. § 1983 (2000)). ........................ 15, 18, 21
Enforcement Act of 1870,
§ 6, 16 Stat. 140, 141 (1870) ......................... 18, 40
Freedmen’s Bureau Act,
§ 14, 14 Stat. 173, 176-77 (1866) ..... 13, 21, 31, 32,
Oak Park, Ill., Code § 27-2-1 et seq........................ 2, 3

OTHER AUTHORITIES

2 Proceedings of the Black State Conventions,

1840-1865, at 302 (P. Foner & G. Walker
eds. 1980)............................................................. 11

39th Cong., 1st Sess. (1866) ..............................passim

39th Cong., 2d Sess., (1866) ............................... 13, 15

40th Cong., 2d Sess., 1967 (1868) ............................ 18

41st Cong., 2d Sess., 2719 (1870)............................. 18

Akhil Reed Amar, Substance and Method in

the Year 2000, 28 PEPP. L. REV. 601 (2001)........ 45

Richard Aynes, On Misreading John Bingham

and the Fourteenth Amendment, 103 YALE
L.J. 57, 98 (1993)................................................. 46
 ix.
Farrar, Manual of the Constitution of the
United States (Boston 1867) ......................... 16, 17

Freedmen’s Bureau Bill, H.R. 613............... 11, 12, 13

Stephen P. Halbrook, FREEDMEN, THE

FOURTEENTH AMENDMENT, AND THE RIGHT
TO BEAR ARMS, 1866–1876 (1998)........... 10, 13, 46

Stephen P. Halbrook, The Founders’ Second

Amendment (2008) .............................................. 35

H.R. No. 189, 42nd Cong., 1st Sess. (1871) ............. 19

H.R. No. 3011, 41st Cong., 3d Sess. (1871) ............ 18

H.R. No. 320, 42nd Cong. Globe, 1st Sess.

(1871). .................................................................. 20

H.R. No. 37, 41st Cong., 3d Sess. (1871) ................. 19

Mass. H. R. Doc. No. 149 (1867) ........................ 16, 46

Paschal, The Constitution of the United States

(Washington, D.C., 1868).................................... 17

John N. Pomeroy, An Introduction to the

Constitutional Law of the United States
(1868) ............................................................. 17, 46

Sup. Ct. R. 12.6........................................................... 7

U.S. Const., amend. V ........................................ 23, 26

U.S. Const., amend. VI....................................... 27, 28

U.S. Const., amend. I ........................................passim

 x.
U.S. Const., amend. II.......................................passim

U.S. Const., amend. XIV ...................................passim

U.S. Const., amend. IV............................................. 26

William Van Alstyne, Trends in the Supreme

Court: Mr. Jefferson’s Crumbling Wall—A
Comment on Lynch v. Donnelly, 1984 Duke
L. J. 770 (1984).................................................... 36

Eugene Volokh, State Constitutional Rights to

Keep and Bear Arms, 11 TEXAS REV. OF
LAW & POLITICS 191 (2006)................................. 33

Bryan Wildenthal, Nationalizing the Bill of

Rights: Revisiting the Original
Understanding of the Fourteenth
Amendment in 1866-67, 78 OHIO ST. L.J.
1509 (2007) .......................................................... 46
 The decision under review, from the Court of
Appeals for the Seventh Circuit, concerns firearms
ordinances of two Illinois municipalities, Chicago
and Oak Park, that effectively ban the private
possession of handguns and unreasonably burden
the possession of all firearms. There is no question
that, under this Court’s decision in District of
Columbia v. Heller, 128 S. Ct. 2783 (2008), the
categorical ban on handguns, at a minimum, would
run afoul of the Second Amendment to the United
States Constitution were it enacted by the Federal
government or the District of Columbia. The
question presented by this case is whether the
Constitution also prevents State and local
governments from infringing the right to keep and
bear arms. For the reasons given herein and in the
brief submitted by Petitioners, the answer must be
yes. The Court should find either that the Second
Amendment is incorporated into the Due Process
Clause of the Fourteenth Amendment, or that the
right to keep and bear arms is a privilege or
immunity of citizens of the United States.
STATEMENT OF THE CASE
1. Chicago prohibits possession of a firearm
unless it is registered. See Chicago, Ill., Code § 8-20-
040(a). Chicago law also provides that “[n]o
registration certificate shall be issued for any of the
following types of firearms: * * * (c) Handguns
* * *.”1 Id. § 8-20-050(c). Handguns, accordingly, are
banned. The only non-governmental exceptions to
this blanket ban on handguns are for (i) “[t]hose

1 “‘Handgun’ means a firearm designed to be held and fired by

the use of a single hand, and includes a combination of parts

from which such firearm can be assembled.” Id. § 8-20-030(k).

(1)
 2
validly registered to a current owner in the City of
Chicago prior to the effective date of this chapter”
which was 27 years ago (1982), id. § 8-20-050(c)(1);
(ii) those owned by security personnel or private
detective agencies, id. § 8-20-050(c)(2) & (3); and (iii)
those brought by “[a]ny nonresident of the City of
Chicago participating in any lawful recreational
firearm-related activity in the city, or on his way to
or from such activity in another jurisdiction * * *,” id.
§ 8-20-040(b)(5). Other than private eyes, non-
residents under limited circumstances, and residents
who have had the handgun in question registered for
at least 27 years, no one in Chicago may possess a
handgun.
Chicago ordinances further provide that failure to
exhibit a registration certificate to a police officer on
demand is presumptive evidence that a person is not
authorized to possess a firearm and is cause for
confiscation thereof. See id. § 8-20-150. A first
violation is punishable by a fine of not less than $300
or more than $500, and incarceration for not less
than ten days or more than 90 days. A subsequent
conviction is punishable by a fine of $500 and by
incarceration of not less than 90 days or more than
six months. Id. § 8-20-250.
The Village of Oak Park, Illinois also prohibits
possession of a handgun. The Oak Park Municipal
Code provides that “[i]t shall be unlawful for any
person to possess or carry, or for any person to
permit another to possess or carry on his/her land or
in his/her place of business any firearm” that is
defined as a handgun. Oak Park, Ill., Code § 27-2-1.2

2 “FIREARMS: For the purpose of this Article firearms are:

pistols, revolvers, guns and small arms of a size and character
 3
Exempted from this otherwise blanket prohibition
are “Licensed firearm collectors,” id. § 27-2-1(K);
“Members of established theater organizations,” id.
§ 27-2-1(L); and transportation of a handgun not
originating or terminating in Oak Park, id. §§ 27-2-1,
27-2-1(I). Thus, the only persons in Oak Park who
may keep or bear a handgun are actors, non-
residents under limited circumstances, and licensed
“collectors.”
Violation of the Oak Park law is punishable with
a fine of not more than $1,000 for the first offense
and $2,000 for a subsequent offense. See id. § 27-4-
1(A). Weapons involved in offenses are to be
confiscated and destroyed. See id. § 27-4-1(C). The
Municipal Code further provides that a motor vehicle
that a police officer has probable cause to believe
contains a weapon in violation of the above is subject
to seizure and impoundment, and may be released on
payment of a $500 fine. See id. § 27-4-4.
2. On June 26, 2008, this Court issued its
decision in District of Columbia v. Heller, 128 S. Ct.
2783 (2008). Heller was the first decision of this
Court unambiguously recognizing that the right to
keep and bear arms referenced in the Second
Amendment is an individual right, not a collective
right belonging to the States. See U.S. Const.,
amend. II (“A well regulated militia, being necessary
to the security of a free state, the right of the people
to keep and bear arms, shall not be infringed.”);
Heller, 128 S. Ct. at 2788–816. Heller also held that
various restrictive ordinances of the District of
Columbia—including a handgun ban with only very

that may be concealed on or about the person, commonly known

as handguns.” Id. § 27-1-1.
 4
limited exceptions, akin to those in the Chicago and
Oak Park ordinances—violated the Second
Amendment. Heller, 128 S. Ct. at 2816–22.
In reaching its decision in Heller, the Court
considered and rejected a number of arguments
against recognizing an individual Second
Amendment right and against striking down the
handgun ban. Among other arguments rejected by
the Court were the propositions that the Second
Amendment was intended only to protect the
authority of State governments to organize State
militias, id. at 2799–803; the argument that the
Second Amendment does not extend to self-defense,
see id. at 2801; and the argument that alleged
dangers associated with handguns can justify a ban
on that category of firearm, see id. at 2821–22.
3. On the same day this Court announced its
decision in Heller, Petitioners filed suit in the
Northern District of Illinois seeking a declaration
that the Chicago ordinances violate the Second and
Fourteenth Amendments. The complaint alleges
that the city of Chicago has denied each Petitioner’s
application to register handguns for possession in his
Chicago home; that each Petitioner fears arrest,
criminal prosecution, incarceration and fine if he
were to possess a handgun within his Chicago home;
and that, but for the ordinances being challenged,
Petitioners would possess handguns in their homes.
The following day, Respondent National Rifle
Association (“NRA”), together with Respondents
Robert Klein Engler and Dr. Gene A. Reisinger,
brought actions in the Northern District of Illinois
seeking a declaration that the Oak Park ordinances
are invalid under the Second and Fourteenth
Amendments to the United States Constitution. A
 5
similar action was filed the same day by the NRA
and Respondents Dr. Kathryn Tyler, Van F. Welton,
and Brett Benson with respect to the Chicago
ordinances. The complaints in the two NRA actions
allege that, but for the ordinances, the individual
plaintiffs would forthwith keep handguns in their
homes for self protection and other lawful purposes.
The complaints further alleged that some of the
plaintiffs own handguns that they must, because of
the ordinances, store outside these jurisdictions, and
would retrieve them to keep at home if lawfully
allowed to do so, and that other plaintiffs would
acquire handguns if it were lawful to keep them at
home. In addition to having numerous members in
the same predicament who reside in Chicago and
Oak Park, the NRA has numerous members who
would lawfully transport firearms through Chicago
but must divert their travel plans to avoid that
jurisdiction. Separate Appendix to Brief for Plaintiff-
Appellants National Rifle Ass’n, Court of Appeals,
A34-35 (Chicago Compl., ¶¶ 14–19); A45–46 (Oak
Park Compl., ¶¶ 18–22).
The actions filed by Petitioners and Respondents
in Support of Petitioners were assigned to a single
district judge. The district court entered judgment
on the pleadings for the municipalities on December
4, 2008. The court explained that, as a district court,
it was bound by precedents from the court of appeals,
“even though the logic of more recent caselaw may
point in a different direction.” Nat’l Rifle Ass’n of
Am., Inc. v. Village of Oak Park, 617 F. Supp. 2d 752,
753 (N.D. Ill. 2008). The court thus looked at the
Seventh Circuit’s nearly thirty-year old decision in
Quilici v. Village of Morton Grove, 695 F.2d 261 (7th
Cir. 1982), as controlling precedent. In Quilici the
court of appeals had rejected an argument that the
 6
Second Amendment is incorporated into the
Fourteenth Amendment, either through selective
incorporation or as part of a wholesale incorporation
of the Bill of Rights. Id. at 269–71.
4. On June 2, 2009 the Seventh Circuit affirmed
the decision of the District Court. 567 F.3d 856. The
court of appeals gave two principal bases for its
decision. First, the court purported to explain that
this Court had previously “rejected arguments that
depended on the privileges and immunities clause of
the fourteenth amendment.” Id. at 857 (citing
United States v. Cruikshank, 92 U.S. 542 (1876);
Presser v. Illinois, 116 U.S. 252 (1886); and Miller v.
Texas, 153 U.S. 535 (1894)). Second, the court stated
that this Court had never considered whether the
Second Amendment should be incorporated through
the Due Process Clause of the Fourteenth
Amendment since that approach “had yet to be
devised when” Cruikshank, Presser, and Miller were
decided. Nonetheless, the Seventh Circuit went on
to hold that, as an inferior court, it was bound by
those precedents of this Court which it saw as
holding that the Second Amendment applies only to
the Federal government. See id. at 857 (citing
Rodriguez de Quijas v. Shearson/American Express,
Inc., 490 U.S. 477, 484 (1989)). The court of appeals,
however, acknowledged the truism that “Cruikshank
is open to reexamination by the Justices themselves
when the time comes.” Id. at 858.
After announcing that its decision was based on
adherence to precedent, the court of appeals then
indulged in some obiter dicta on the interplay
between principles of federalism and the right to
keep and bear arms. See id. at 858–60. This
discussion, however, played no role in the decision of
 7
the court of appeals; as that court acknowledged,
“[h]ow arguments of this kind will affect proposals to
‘incorporate’ the second amendment are for the
Justices rather than a court of appeals.” Id. at 860.
6. Although Petitioners’ action and the NRA
actions were consolidated on appeal before the
Seventh Circuit and although Respondents in
Support of Petitioners filed their own petition for
writ of certiorari (No. 08-1497), this Court granted a
writ of certiorari only in Petitioners’ case. Thus, all
parties to the case below other than Petitioners are
Respondents before this Court. See Sup. Ct. R. 12.6.
However, because Respondents NRA, Engler,
Reisinger, Tyler, Welton and Benson support the
Petitioners in this case, these Respondents are filing
this brief in accordance with Petitioners’ time
schedule. See Sup. Ct. R. 12.6; 25.1.
SUMMARY OF THE ARGUMENT
The handgun bans of Chicago and Oak Park,
Illinois, are not in any meaningful way different from
the District of Columbia’s ban that this Court held to
be unconstitutional in Heller. The issue presented
by this case is whether, notwithstanding the
Fourteenth Amendment’s Due Process and Privileges
and Immunities Clauses, Chicago and Oak Park may
abridge the right to keep and bear arms in ways that
the District of Columbia may not, or whether the
citizens of the States have federal constitutional
protection of their right to keep and bear arms
against overreaching State and local laws.
The history of the Fourteenth Amendment
demonstrates that it was intended and publicly
understood, inter alia, to protect the right of
individuals to keep and bear arms. Confronting
 8
efforts by Southern governments to oppress the
freedmen by confiscating their firearms, the same
Congress that proposed the Fourteenth Amendment
also passed statutes protecting the right of all
citizens to keep and bear arms. Statements from
legislators, legal commentators, and the popular
press, before, during, and after passage of the
Fourteenth Amendment, demonstrate a consistent
understanding that the Amendment would secure
freedmen against efforts to strip them of their arms.
The only real question is in which provision or
provisions of the Fourteenth Amendment the right to
keep and bear arms is located.
This Court has never addressed the question
whether the Second Amendment should be
incorporated against State and local governments
through the Due Process Clause of the Fourteenth
Amendment. Each of the decisions of this Court
addressing whether the Second Amendment applies
to the States was decided before the Court had even
initiated its incorporation jurisprudence.
Incorporation into the Due Process Clause would
be fully consistent both with the common
understanding of the Fourteenth Amendment when
it was adopted, and with this Court’s selective
incorporation precedent—indeed, not incorporating
the Second Amendment would be a jarring and
unjustifiable departure from that history and
precedent. In deciding whether to incorporate a
particular right enumerated in the Bill of Rights,
this Court asks whether the right is a fundamental
principle of liberty that is basic to a free society. The
preamble of the Second Amendment and this Court’s
decision in Heller both confirm the fundamental
importance of the right to keep and bear arms to
 9
liberty and our free society. Given this Court’s prior
decisions, incorporation of the Second Amendment
should be essentially automatic.
If the Court declines to selectively incorporate the
Second Amendment into the Due Process Clause of
the Fourteenth Amendment, then the Court should
hold that the right to keep and bear arms is one of
the privileges and immunities of national citizenship
guaranteed by the Fourteenth Amendment. The
Court has explained that the privileges and
immunities of national citizenship are those that
arise from the existence of the national government
and bear on the relationship of a citizen to that
government. Although the fundamental right to
keep and bear arms preexists the Constitution, it
also is related to the constitutional authority of the
national government and the relationship of citizens
to that government. This Court has previously
stated that, for this very reason, the States cannot
restrict the right of individuals to keep and bear
arms.
Finally, if the Court does not incorporate the
Second Amendment into the Due Process Clause of
the Fourteenth Amendment or recognize the right to
keep and bear arms as a privilege of national
citizenship under the existing test for such rights,
then the Court should overrule The Slaughter-House
Cases, 83 U.S. 36 (1873), and hold that even rights
preexisting the foundation of this country can be
privileges or immunities of national citizenship.
There has long been a scholarly consensus that The
Slaughter-House Cases were wrongly decided. The
fact that the fundamental right to keep and bear
arms predates the founding of this country should
 10
not be a barrier to its recognition as a privilege or
immunity of U.S. citizens.
ARGUMENT
I. The Fourteenth Amendment Was
Intended and Understood To Protect the
Right To Keep and Bear Arms
More evidence exists that the right to keep and
bear arms referenced in the Second Amendment was
intended and commonly understood to be protected
by the Fourteenth Amendment than exists for any
other element of the Bill of Rights. The only real
question, and the subject of the subsequent sections
of this brief, is where within the Fourteenth
Amendment that right is nestled.
1. “In the aftermath of the Civil War, there was
an outpouring of discussion of the Second
Amendment in Congress and in public discourse, as
people debated whether and how to secure
constitutional rights for newly free slaves.” Heller,
128 S. Ct. at 2809–10 (citing STEPHEN P HALBROOK,
FREEDMEN, THE FOURTEENTH AMENDMENT, AND THE
RIGHT TO BEAR ARMS, 1866–1876 (1998)). When the
39th Congress convened in 1865, members were
confronted with the recently-enacted Black Codes.
The laws of Mississippi, for example, stated: “That
no freedman, free negro or mulatto * * * not licensed
so to do by the board of police of his or her county,
shall keep or carry fire-arms of any kind * * *.” Laws
of Miss., 1865, at 165. To invalidate such laws,
Senator Henry Wilson introduced a civil rights bill,
explaining that “[i]n Mississippi rebel State forces
* * * are traversing the State, visiting the freedmen,
disarming them, perpetrating murders and outrages
 11
on them * * *.”3 Cong. Globe, 39th Cong., 1st Sess.,
40 (1865).
A similar South Carolina law led a convention of
prominent blacks in that state to draft a petition
stating: “We ask that, inasmuch as the Constitution
of the United States explicitly declares that the right
to keep and bear arms shall not be infringed * * *
that the late efforts of the Legislature of this State to
pass an act to deprive us of arms be forbidden, as a
plain violation of the Constitution * * *.” 2
Proceedings of the Black State Conventions, 1840–
1865, at 302 (P. Foner & G. Walker eds. 1980).
Senator Charles Sumner paraphrased the petition as
seeking “constitutional protection in keeping arms,
in holding public assemblies, and in complete liberty
of speech and of the press.” Cong. Globe, 39th Cong.,
1st Sess. 337 (1866).
In response to the mistreatment of freedmen in
the South, Senator Lyman Trumbull introduced two
pieces of legislation: S. 60, the Freedmen’s Bureau
Bill, and S. 61, the Civil Rights Bill, both of which
protected, inter alia, the right “to full and equal
benefit of all laws and proceedings for the security of
person and property.” Cong. Globe, 39th Cong., 1st
Sess., at 129, 209, 211. He cited the prohibitions on
possession of firearms by blacks and noted that it
was “the intention of this [civil rights] bill to secure
those rights” and other “privileges which are
essential to freemen” from state deprivation. Id. at
474. Senator Willard Saulsbury opposed the bill on

3 Harper’s Weekly, Jan. 13, 1866, at 3, reported: “The militia of

this country have seized every gun and pistol found in the
hands of the (so called) freedmen of this section of the country.
They claim that the statute laws of Mississippi do not recognize
the negro as having any right to carry arms.”
 12
the basis that: “In my State for many years * * *
there has existed a law * * * which declares that free
negroes shall not have the possession of firearms or
ammunition. This bill proposes to take away from
the States this police power * * *.” Id. at 478.
As passed, the Freedmen’s Bureau Bill protected
for blacks “the civil rights or immunities belonging to
white persons, including the right * * * to have full
and equal benefit of all laws and proceedings for the
security of person and estate, including the
constitutional right of bearing arms * * *.” Cong.
Globe, 39th Cong., 1st Sess., at 1292 (emphasis
added). President Andrew Johnson, however, vetoed
the Freedmen’s Bureau Bill, prompting an outcry by
Sen. Trumbull, who cited a report from Mississippi
that the militia typically would “hang some freedman
or search negro houses for arms.” Id. at 941.
The right to keep and bear arms was repeatedly
referenced in debate on the Civil Rights Bill as well.
Senator Samuel Pomeroy specified the “safeguards of
liberty under our form of Government” as including
“the right to bear arms for the defense of himself and
family and his homestead.” Cong. Globe, 39th Cong.,
1st Sess., 1182 (1866) (emphasis added). Rep. John
Bingham explained that portions of the vetoed
Freedmen’s Bureau Bill, including the right to bear
arms, “enumerate the same rights and all the rights
and privileges that are enumerated in the first
section of this [the Civil Rights] bill,” which served to
“arm Congress with the power to * * * punish all
violations by State Officers of the bill of rights * * *.”
Id. at 1292. The Act was also understood by the
public to prohibit “attempts to prevent their [blacks]
holding public assemblies [and] keeping fire-arms
* * *.” New York Evening Post, Apr. 7, 1866, at 2.
 13
The House then debated a second Freedmen’s
Bureau Bill, H.R. 613. Section 8 of that bill
protected “the constitutional right to bear arms.”
Cong. Globe, 39th Cong., 1st Sess., 3412 (1866).
Averring that Section 8 “simply embodies the
provisions of the civil rights bill,” Rep. Eliot quoted a
report about freedmen in Kentucky: “Their arms are
taken from them by the civil authorities * * *. Thus
the right of the people to keep and bear arms as
provided in the Constitution is infringed * * *.” Id. at
2773–74 (emphasis added). The report added that
the freedmen “are defenseless, for the civil-law
officers disarm the colored man and hand him over to
armed marauders.” Id. at 2775.
The second Freedmen’s Bureau Bill ultimately
was passed and vetoed, only to have the veto
overridden by the same two-thirds-plus members
who had (by this point) also voted for the Fourteenth
Amendment.4 Section 14 of that Freedmen’s Bureau
Act declared that in States or districts where
ordinary judicial proceedings were not restored, and
until such time as such States were restored to the
Union and represented in Congress:
the right * * * to have full and equal benefit of
all laws and proceedings concerning personal
liberty, personal security, and the acquisition,
enjoyment, and disposition of estate, real and

4 The same Senators who proposed the Fourteenth Amendment

by a vote of 33-11, also overrode the veto of H.R. 613 by a vote

of 33 to 12, or 73%. See Cong. Globe, 39th Cong., 2d Sess.,
3042, 3842 (1866). The same Representatives who proposed the
Fourteenth Amendment by a vote of 120–32, overrode the
President's veto of H.R. 613 by a vote of 104–33, or 76%. Id. at
3149, 3850. On the roll call votes, see Halbrook, Freedmen, 41–
43.
 14
personal, including the constitutional right to
bear arms, shall be secured to and enjoyed by
all the citizens of such State or district
without respect to race or color or previous
condition of slavery.
14 Stat. 173, 176–77 (1866) (emphasis added).
2. At the same time that Congress was debating
bills with the purpose of protecting, inter alia, the
right of freedmen to keep and bear arms, it was also
considering amending the Constitution to the same
end. On February 13, 1866, the Joint Committee of
Fifteen on Reconstruction recommended a
constitutional amendment empowering Congress to
make laws “to secure to the citizens of each State all
privileges and immunities of citizens in the several
States; and to all persons in the several States equal
protection in the rights of life, liberty, and property.”
Cong. Globe, 39th Cong., 1st Sess., at 806, 813. The
term “civil rights and immunities” was recognized as
including “[t]he constitutional rights of all loyal and
well disposed inhabitants to bear arms,” in the words
of General D. E. Sickles’ General Order No. 1 for
South Carolina. Id. at 908–09.
On May 23, Jacob Howard introduced the
Fourteenth Amendment in the Senate, referring to
“the personal rights guaranteed and secured by the
first eight amendments of the Constitution; such as
freedom of speech and of the press [and] the right to
keep and bear arms * * *.” Cong. Globe, 39th Cong.,
1st Sess. 2765 (1866) (emphasis added). He averred
that “[t]he great object of the first section of this
amendment is, therefore, to restrain the power of the
States and compel them at all times to respect these
great fundamental guarantees.” Id. at 2766. He
added that the amendment would “disable every one
 15
of [the States] from passing laws trenching upon
those fundamental rights and privileges which
pertain to citizens of the United States, and to all
persons who happen to be within their jurisdiction.”5
Id. Howard’s speech was widely reprinted.6
On June 13, 1866, the Fourteenth Amendment
had passed both houses by the necessary two-thirds
and was proposed to the States. While records are
sparse, the Fourteenth Amendment was understood
to guarantee broad rights in the State legislatures
and conventions which considered it.7
In Massachusetts, the Committee on Federal
Relations quoted the Second Amendment and three
other Bill of Rights guarantees and stated: “Nearly

5 Howard’s speech was cited as authority in Jones v. Helms,

452 U.S. 412, 424 n.23 (1981) (opinion by Stevens, J.); Plyler v.
Doe, 457 U.S. 202, 214–15 (1982).
6 See, e.g., New York Times, May 24, 1866, at 1; New York
Herald, May 24, 1866, at 1; National Intelligencer, May 24,
1866, at 3; Philadelphia Inquirer, May 24, 1866, at 8.
7 Adoption of the Amendment by the States was critical
because, as Rep. George W. Julian explained, the Civil Rights
Act was declared void by Southern courts, which thereby
upheld bans on firearm possession by freedmen. Cong. Globe,
39th Cong., 1st Sess., 3210 (1866). A Mississippi court did so in
upholding the conviction of a freedman for possession of a
firearm. New York Times, Oct. 26, 1866, at 2. Another court
found the ban void: “Should not then, the freedmen have and
enjoy the same constitutional right to bear arms in defence of
themselves, that is enjoyed by the citizen? It is a natural and
personal right—the right of self-preservation.” Id. These
decisions were taken notice of in a report from General U.S.
Grant stating: “The statute prohibiting the colored people from
bearing arms, without a special license, is unjust, oppressive,
and unconstitutional.” Cong. Globe, 39th Cong., 2d Sess., 33
(1866).
 16
every one of the amendments to the constitution
grew out of a jealousy for the rights of the people,
and is in the direction, more or less direct, of a
guarantee of human rights * * *. [T]hese provisions
cover the whole ground of section first of the
proposed amendments.” Mass. H. R. Doc. No. 149, at
3 (1867).
Advocates in the Pennsylvania General Assembly
averred that “the spirit of this section [1] is already
in the Constitution, and that we are only reenacting
it in plainer terms * * *.” Pa. Leg., App., 59 (1867).
Section one protected “the rights to life, liberty and
property,” which are “inalienable rights.” Id. at 65.
The proposed amendment was said to embody the
Pennsylvania Declaration of Rights guarantee that
all men “have certain inherent and indefeasible
rights,” including those of “defending life and
liberty.” Id. at 94 (emphasis added).
Even opponents of the Fourteenth Amendment
understood it to protect the right to self defense. The
Wisconsin Senate minority report averred that “[t]he
absolute rights of personal security, personal liberty
and the right to acquire and enjoy private property *
* * form a part of the bill of rights” of the state and
the federal constitutions, and it thus asked: “Why,
then, is it necessary to engraft into the federal
constitution that part of section one [of] the
amendments which says: ‘Nor shall any state deprive
any person of life, liberty or property, without due
process of law?’” Wisc. Sen. J. 106 (1867) (emphasis
added).
Contemporaneous legal commentary was
consistent with this view of the Fourteenth
Amendment. Judge Timothy Farrar wrote that the
people “do not create or confer on themselves any
 17
new right, but they expressly reserve all the rights
they then held,” including “many natural and civil
common-law rights” such as “[a] right to keep and
bear arms.” Farrar, Manual of the Constitution of
the United States 58–59 (Boston 1867) (emphasis
added). He would elsewhere in the same volume
write “[t]he right of every person to ‘life, liberty, and
property,’ to ‘keep and bear arms’ * * * and divers
other, are recognized by, and held under, the
Constitution of the United States, and cannot be
infringed by individuals or States, or even by the
government itself.” Id. at 145 (emphases added).
Likewise, George W. Paschal wrote that the
Second Amendment “is based on the idea, that the
people cannot be oppressed or enslaved, who are not
first disarmed,” and that “[t]he new feature declared
[in the Fourteenth Amendment] is that the general
principles which had been construed to apply only to
the national government, are thus imposed upon the
States.” Paschal, The Constitution of the United
States 86, 256 (Washington, D.C., 1868).
Finally, John N. Pomeroy wrote that if a state
statute provided that “certain classes of the
inhabitants—say negroes—are required to surrender
their arms,” the federal Bill of Rights offered no
relief. Pomeroy, An Introduction to the
Constitutional Law of the United States 150-51
(1868). However, the Fourteenth Amendment
“would give the nation complete power to protect its
citizens against local injustice and oppression * * *.”
Id. at 151. The Second Amendment guaranteed that
“government is forbidden by any law or proceeding to
invade or destroy the right to keep and bear arms.”
Id. at 152.
 18
3. Debate in Congress on related statutory issues
in the years shortly after ratification of the
Fourteenth Amendment provides further
confirmation that the Amendment was commonly
understood to guarantee the right to keep and bear
arms against State action.
In 1868, addressing the disarming of freedmen,
Thaddeaus Stevens referred to “those great rights,
privileges, and immunities” of life, liberty, and the
pursuit of happiness, adding:
Disarm a community and you rob them of the
means of defending life. 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. Globe, 40th Cong., 2d Sess., 1967 (1868).
The Enforcement Act of 1870 made it a felony to
conspire to injure a citizen with intent to prevent
exercise “of any right or privilege granted or secured
to him by the Constitution or laws of the United
States * * *.” § 6, 16 Stat. 140, 141 (1870). In
debate, Senator John Pool observed that Klansmen
would “order the colored men to give up their arms;
saying that everybody would be Kukluxed in whose
house fire-arms were found * * *.” Cong. Globe, 41st
Cong., 2d Sess., 2719 (1870). Senator John Thayer
added: “The rights of citizenship, of self-defense, of
life itself were denied to the colored race * * *.” Id.,
App., 322 (emphasis added).
The Enforcement Act was followed by the Civil
Rights Act of 1871. Introduced initially as H.R. No.
3011 by Rep. Benjamin Butler, a report noted that
persons who oppressed the freedman “preceded their
 19
outrages upon him by disarming him, in violation of
his right as a citizen to ‘keep and bear arms,’ which
the Constitution expressly says shall never be
infringed.” H. R. Rep. No. 37, 41st Cong., 3d Sess., 3
(1871) (emphasis added). The bill was based on the
Second Amendment and the Due Process Clauses of
the Fifth and Fourteenth Amendments. Id. at 4.
The report explained:
Section eight is intended to enforce the well-
known constitutional provision guaranteeing
the right in the citizen to “keep and bear
arms,” and provides that whoever shall take
away, by force or violence, or by threats and
intimidation, the arms and weapons which
any person may have for his defense, shall be
deemed guilty of larceny of the same * * *.
Before these midnight marauders made
attacks upon peaceful citizens, there were very
many instances in the South where the sheriff
of the county had preceded them and taken
away the arms of their victims.
Id. at 7–8.
After failing to pass in the 41st Congress, the bill
was reintroduced in the next Congress as H.R. No.
189. While it provided remedies for violations of
“any right guarantied” by the Constitution, the only
substantive right specifically mentioned was that of a
citizen to keep arms “in his house or possession for
the defense of his person, family, or property,”
deprivation of which was punishable as a larceny.
Cong. Globe, 42nd Cong., 1st Sess., 174 (1871).8

8 Senator Adelbert Ames noted how that right protected others:

“Republicans were compelled to arm in self-defense * * *. In
some counties it was impossible to advocate Republican
 20
The full House ultimately considered a condensed
bill, H. R. No. 320. 42nd CONG. GLOBE, 1st Sess. 317
(1871). Section 1 provided civil remedies against
state agents who deprived a person of “any rights,
privileges, or immunities” to which the person is
“entitled under the Constitution or laws of the
United States.” Id., App., at 68. Section 2 punished
a conspiracy to violate such rights. Id. Section 3
provided that failure of a State to protect such rights
would be a denial of equal protection of the laws. Id.
at 70–71.
In support of the bill, Rep. John Coburn observed
that “[a] State may by positive enactment cut off
from some the right * * * to bear arms * * *. How
much more oppressive is the passage of a law that
they shall not bear arms than the practical seizure of
all arms from the hands of the colored men?” Id. at
459 (April 4, 1871). Congress, he argued, must
“enforce by appropriate legislation the rights secured
by this clause of the fourteenth amendment of the
Constitution.” Id. (emphasis added). Likewise, Rep.
Henry Dawes explained that the citizen “has secured
to him the right to keep and bear arms in his defense.
It is all these * * * which are comprehended in the
words ‘American citizen,’ and it is to protect and
secure to him in these rights, privileges, and
immunities this bill is before the House.” Id. at 475–
76 (emphasis added).9

principles, those attempting it being hunted like wild beasts; in

others, the speakers had to be armed and supported by not a
few friends.” Id. at 196.
9 See Patsy, 457 U.S. at 503 (quoting Dawes’ explanation).
Patsy further relied on the speeches of Butler, Coburn, and
Thurman, all of whom agreed that the right to arms was
protected. Id. at 504–06.
 21
As passed, the Civil Rights Act provided that any
person who, under color of State law, subjects a
person “to the deprivation of any rights, privileges, or
immunities secured by the Constitution of the
United States” is civilly liable. 17 Stat. 13, § 1
(1871), today’s Rev. Stat. § 1979, as amended, 42
U.S.C. § 1983. Subsequently, President Grant issued
a report on enforcement of the Civil Rights Act which
noted that parts of the South were under the sway of
the Klan, which sought “to deprive colored citizens of
the right to bear arms,” and to reduce them “to a
condition closely akin to that of slavery * * *.” Ex.
Doc. No. 268, 42nd Cong., 2d Sess., 2 (1872).
4. Summarizing this history, the status of the
right to keep and bear arms during the drafting and
ratification of the Fourteenth Amendment is
unmistakable. It was viewed as a fundamental right
in the most literal sense: The foundation necessary
to secure all of the other rights of free citizens. The
Reconstruction Congress that drafted the Due
Process Clause condemned violation of that right by
the Black Codes enacted by the Southern States as a
gross injustice requiring a national remedy. That
remedy came in the form of (1) federal legislation
regulating state action (the Freedmen’s Bureau Acts
and the Civil Rights Act) and (2) protection of the
right to keep and bear arms by the Fourteenth
Amendment.
There can be, all told, no real debate that the
right to keep and bear arms is guaranteed against
infringement by the States somewhere in the
Fourteenth Amendment. The only question, in light
of the 140 years of jurisprudential development
between ratification of the Amendment and this
case, is where that right is found.
 22
II. The Right To Keep and Bear Arms Should
Be Incorporated Into the Due Process
Clause of the Fourteenth Amendment
This Court need overrule no precedent in order to
reverse the Seventh Circuit. As the Seventh Circuit
recognized, 567 F.3d at 858–59, and the City of
Chicago conceded, see Pet. Opp. at 6, this Court has
never addressed the question whether the Second
Amendment should be incorporated into the Due
Process Clause of the Fourteenth Amendment under
the Court’s so-called selective incorporation
jurisprudence. The Court had not yet begun
selectively incorporating the Bill of Rights into the
Due Process Clause when it last ruled on the
constitutionality of a State or local restriction on the
right to keep and bear arms. See Miller v. Texas, 153
U.S. 535 (1894).
Viewing the question of the Second Amendment’s
applicability to State and local regulations through
the prism of the history discussed above and through
this Court’s selective incorporation precedent, it is
clear that the Second Amendment must be
incorporated. Indeed, not to incorporate the Second
Amendment would mark a radical and unjustifiable
departure from decades of this Court’s incorporation
precedents.
1. Over one century ago, but two years after the
Court decided Miller—its last case considering the
constitutionality of a State or local firearm law prior
to the instant case—the Court began selectively
incorporating provisions of the Bill of Rights into the
Due Process Clause of the Fourteenth Amendment.
Throughout the century-long series of cases in which
the Court has employed selective incorporation, the
Court’s consistent focus in determining which rights
 23
to incorporate has been on the relationship between
protection of that right and protection of liberty
under our free government.
The earliest provision of the Bill of Rights to be
incorporated into the Due Process Clause of the
Fourteenth Amendment was the “just compensation
clause” of the Fifth Amendment.10 In Chicago,
Burlington & Quincy R.R. Co. v. Chicago, 166 U.S.
226 (1896), the Court explained:
[I]n a free government almost all other rights
would become worthless if the government
possessed an uncontrollable power over the
private fortune of every citizen.
Id. at 236 (quoting 2 Story Const. § 1790) (emphasis
added). Using the “just compensation clause” as an
example, the Court expounded upon the types of
liberties protected by the Due Process Clause of the
Fourteenth Amendment: “There are limitations on
[State] power which grow out of the essential nature
of all free governments, implied reservations of
individual rights, without which the social compact
could not exist, and which are respected by all
governments entitled to the name.” Id. at 237
(quoting Loan Assoc. v. Topeka, 20 Wall. 655, 663
(1874)) (emphasis added).
The most natural place to find rights essential to
free government has been within the list enumerated
by the first eight Amendments of the Bill of Rights.
Thus, in the seventy years following Chicago B. & Q.
R.R., this Court incrementally incorporated nearly
all the protections contained therein. The general

10 “[N]or shall private property be taken for public use, without

just compensation.”
 24
principle followed by this Court in deciding
incorporation questions has been that “those
guarantees of the Bill of Rights which are
fundamental safeguards of liberty immune from
federal abridgement are equally protected against
state invasion by the Due Process Clause of the
Fourteenth Amendment.” Gideon v. Wainwright,
372 U.S. 335, 341 (1962) (emphasis added).
Incorporation of the First Amendment began with
the speech and press clauses. In Gitlow v. New York,
the Court stated, “[F]reedom of speech and of the
press—which are protected by the First Amendment
from abridgment by Congress—are among the
fundamental personal rights and ‘liberties’ protected
by the due process clause of the Fourteenth
Amendment from impairment by the States.” 268
U.S. 652, 666 (1925) (emphasis added). Six years
later, in Near v. Minnesota, the Court opined:
It is no longer open to doubt that the liberty of
the press and of speech is within the liberty
safeguarded by the due process clause of the
Fourteenth Amendment from invasion by
state action. It was found impossible to
conclude that this essential personal liberty of
the citizen was left unprotected by the general
guaranty of fundamental rights of person and
property.
283 U.S. 697, 707 (1931) (emphasis added).
In Grosjean v. American Press Co., Inc., the Court
explained that:
The First Amendment to the Federal
Constitution provides that ‘Congress shall
make no law * * * abridging the freedom of
speech, or of the press.’ While this provision is
 25
not a restraint upon the powers of the states,
the states are precluded from abridging the
freedom of speech or of the press by force of
the due process clause of the Fourteenth
Amendment.
***
We [have] concluded that certain fundamental
rights, safeguarded by the first eight
amendments against federal action, were also
safe-guarded against state action by the due
process of law clause of the Fourteenth
Amendment, and among them the
fundamental right of the accused to the aid of
counsel in a criminal prosecution.
297 U.S. 233, 243–44 (1936) (emphasis added).
The concept of First Amendment rights as
“fundamental” was further explicated in Schneider v.
New Jersey:
This Court has characterized the freedom of
speech and that of the press as fundamental
personal rights and liberties. The phrase is
not an empty one and was not lightly used. It
reflects the belief of the framers of the
Constitution that exercise of the rights lies at
the foundation of free government by free men.
308 U.S. 147, 161 (1939) (emphases added); see also
Thornhill v. Alabama, 310 U.S. 88, 95 (1940) (“The
safeguarding of these [First Amendment] rights * * *
is essential to free government” (emphasis added)).
By the time the Court reached incorporation of
the religion clauses of the First Amendment, it was
able to state in Cantwell v. Connecticut, without
dissent or even much in the way of explanation, that:
 26
The fundamental concept of liberty embodied
in [the Fourteenth] Amendment embraces the
liberties guaranteed by the First Amendment.
The First Amendment declares that Congress
shall make no law respecting an
establishment of religion or prohibiting the
free exercise thereof. The Fourteenth
Amendment has rendered the legislatures of
the states as incompetent as Congress to enact
such laws.
310 U.S. 296, 303 (1940) (emphasis added).
The protections of the Fourth Amendment were
incorporated because they too were deemed
fundamental to liberty: “The security of one’s
privacy against arbitrary intrusion by the police—
which is at the core of the Fourth Amendment—is
basic to a free society. It is therefore implicit in ‘the
concept of ordered liberty’ and as such enforceable
against the States through the Due Process Clause.”
Wolf v. Colorado, 338 U.S. 25, 27–28 (1949)
(emphasis added).11 The Fifth Amendment was
incorporated piecemeal using similar language. The
privilege against self-incrimination, for example, was
deemed to be “one of the ‘principles of a free
government.’” Malloy v. Hogan, 378 U.S. 1, 9 (1963)
(quoting Boyd v. United States, 116 U.S. 616, 632
(1886)) (emphasis added). In incorporating that
privilege against the States, Malloy specifically
“rejected the notion that the Fourteenth Amendment
applies to the States only a ‘watered-down, subjective

11 The exclusionary rule was not deemed to be “an essential

ingredient of the Fourth Amendment,” and therefore
incorporated against the States, until a decade later. Mapp v.
Ohio, 367 U.S. 643, 651 (1960).
 27
version of the individual guarantees of the Bill of
Rights.’” Id. at 10–11 (quoting Ohio ex rel. Eaton v.
Price, 364 U.S. 263, 275 (1960) (Brennan, J.,
dissenting)).
The Sixth Amendment right to counsel was first
considered for incorporation in Powell v. Alabama,
287 U.S. 45 (1932), in which the Court described the
right as being “of such a character that it cannot be
denied without violating those ‘fundamental
principles of liberty and justice which lie at the base
of all our civil and political institutions.’” Id. at 67
(quoting Hebert v. Louisiana, 272 U.S. 312, 316
(1926)) (emphasis added).12 This sentiment was
reiterated when Gideon fully incorporated the right
to counsel 35 years later:
[T]his Court in Palko v. Connecticut, 302 U.S.
319 (1937) * * * was careful to emphasize that
“immunities that are valid as against the
federal government by force of the specific
pledges of particular amendments have been
found to be implicit in the concept of ordered
liberty, and thus, through the Fourteenth
Amendment, become valid as against the
states” and that guarantees “in their origin
* * * effective against the federal government
alone” had by prior cases “been taken over
from the earlier articles of the federal bill of
rights and brought within the Fourteenth
Amendment by a process of absorption.
Id. at 342 (quoting 302 U.S., at 324–25, 326)
(emphasis added).

12 Powell incorporated the Sixth Amendment right to counsel

under the facts of the case, but declined to consider
incorporation of the right more broadly.
 28
Other provisions of the Sixth Amendment were
incorporated in subsequent cases: Pointer v. Texas,
380 U.S. 400, 403 (1964), held that “the Sixth
Amendment’s right of an accused to confront the
witnesses against him is likewise a fundamental
right.” The same analysis led to the incorporation of
the right to a speedy trial: Upon examining Coke’s
Institutes and Framing-era documents such as the
Virginia Declaration of Rights of 1776, the Court in
Klopfer v. North Carolina, 386 U.S. 213, 225–26
(1966), concluded: “That [the right to a speedy trial]
was considered fundamental at this early period in
our history is evidenced by its guarantee in the
constitutions of several of the States of the new
nation, as well as by its prominent position in the
Sixth Amendment.”
Completing Sixth Amendment incorporation,
Washington v. Texas, 388 U.S. 14 (1966), and
Duncan v. Louisiana, 391 U.S. 145 (1967),
recognized the fundamental nature of, respectively,
the rights to compulsory process and criminal jury
trials. In Duncan, as in prior cases, the Court
pointed out:
The Fourteenth Amendment denies the States
the power to “deprive any person of life,
liberty, or property, without due process of
law.” In resolving conflicting claims
concerning the meaning of this spacious
language, the Court has looked increasingly to
the Bill of Rights for guidance; many of the
rights guaranteed by the first eights
Amendments to the Constitution have been
held to be protected against state action by the
Due Process Clause of the Fourteenth
Amendment.
 29
391 U.S. at 147–48 (emphasis added).
By the time the Court reached the Eighth
Amendment’s prohibition of cruel and unusual
punishment, incorporation was simply assumed,
Francis v. Resweber, 329 U.S. 459, 462 (1947), and
then applied without analysis or dissent, Robinson v.
California, 370 U.S. 660, 666 (1961).
The Court has declined to incorporate only two
rights found in the Bill of Rights, both involving legal
procedure rather than fundamental rights, and the
rationale for not incorporating those two is wholly
inapplicable here. First, the Court declined to
incorporate the Fifth Amendment’s Grand Jury
Clause because, it reasoned, state courts are entitled
to some procedural independence and “examination
by a neutral magistrate provide[s] defendants with
nearly the same protection as the abrogated
common-law grand jury procedure.” Honda Motor
Co. v. Oberg, 512 U.S. 415, 431 (1994). Likewise, the
Court’s refusal to incorporate the Seventh
Amendment’s requirement of civil jury trials rested
on issues of procedure. Minneapolis & St. Louis R.R.
Co. v. Bombolis, 241 U.S. 211, 221–22 (1916);
Howlett v. Rose, 496 U.S. 356, 370 n.17 (1990).
In sum, while the Court has phrased the
incorporation test in various ways over the years, the
lynchpin has been the importance of the right in
question to what has variously been described as
“liberty,” “a free society,” “free government,” the
“liberty * * * at the base of all our civil and political
institutions,” or “ordered liberty.” As well, the
central, abiding, and indispensable element of every
formulation is that rights be deemed fundamental in
our system of government. See Powell v. Alabama,
 30
287 U.S. 45, 67 (1932) (referring to “those
fundamental principles of liberty and justice which
lie at the base of all our civil and political
institutions.”) (emphasis added); In re Oliver, 333
U.S. 257, 273 (1948) (asking whether a right is “basic
in our system of jurisprudence”) (emphasis added);
Palko, 302 U.S. at 325 (asking whether a right is “so
rooted in the traditions and conscience of our people
as to be ranked as fundamental”) (emphasis added);
Washington v. Glucksberg, 521 U.S. 702, 762 (1997)
(asking whether denial of the right is something “our
polity will not endure.”) (emphasis added); see also
Duncan, 391 U.S. at 148-49 (1968) (“our civil and
political institutions”); id. at 153 (“fundamental to
our system”) (emphasis added); id. at 149 n. 14
(distinguishing this inquiry from the more abstract
question whether any “civilized system could be
imagined that would not accord the” right).
2. This Court’s selective incorporation precedent
compels the conclusion that the fundamental right to
keep and bear arms must be incorporated into the
Due Process Clause of the Fourteenth Amendment.
As with the religion clauses and the protection
against cruel and unusual punishment, incorporation
of the Second Amendment should be a foregone
conclusion in light of everything that has come
before. Given the extensive history recited in Part I
above the case for incorporation of the Second
Amendment is stronger than for any other right in
the Bill of Rights.
There can be no doubt that the right to keep and
bear arms protected by the Second Amendment
easily meets the test set forth in this Court’s
selective incorporation precedent: It is a right
“fundamental” to “liberty,” “a free society,” “free
 31
government,” the “liberty * * * at the base of all our
civil and political institutions,” and “ordered liberty.”
The Second Amendment is the only provision of the
Bill of Rights that declares its own essential link to
liberty and a free society. As the Amendment itself
states, “A well regulated militia being necessary to
the security of a free State, the right of the People to
keep and bear arms shall not be infringed.” U.S.
Const., amend. II (emphasis added); see Heller, 128
S. Ct. at 2800 (defining “security of a free State” to
mean “security of a free polity, not security of each of
the several States”) (emphasis added).
The fundamental nature of the right to keep and
bear arms was recognized even before the founding
of this country. As the Court explained in Heller,
“[b]y the time of the founding, the right to have arms
had become fundamental for English subjects,” and
was cited by Blackstone “as one of the fundamental
rights of Englishmen.” Id. at 2798 (emphases
added).13 The attempted disarmaments of the pre-
Revolutionary period, Heller explains, “provoked
polemical reactions by Americans invoking their
rights as Englishmen to keep arms * * * to defend
themselves.” Id. at 2799.
The Court in Heller repeatedly referenced the
fundamental link between the right to keep and bear
arms and individual liberty. It explained that “when

13 This Court has held that the Fourteenth Amendment

protects from State infringement the “indefeasible right of
personal security, personal liberty and private property.”
Griswold v. Connecticut, 381 U.S. 479, 484 n.* (1965) (quoting
Boyd v. United States, 116 U.S. 616, 630 (1886)). As was
articulated from 1 Blackstone, Commentaries *143–44 to the
Freedmen’s Bureau Act, see supra at 11–14, these rights are in
turn protected by the right to have arms.
 32
the able-bodied men of a nation are trained in arms
and organized, they are better able to resist
tyranny.” 128 S. Ct. at 2801; see also id. (“It was
well understood across the political spectrum that
the right helped to secure the ideal of a citizen
militia, which might be necessary to oppose an
oppressive military force if the constitutional order
broke down.”). The Court then went on to quote St.
George Tucker as stating, with respect to the Second
Amendment:
This may be considered as the true palladium
of liberty * * *. The right to self-defense is the
first law of nature: in most governments it has
been the study of rulers to confine the right
within the narrowest limits possible.
Wherever standing armies are kept up, and
the right of the people to keep and bear arms
is, under any colour or pretext whatsoever,
prohibited, liberty, if not already annihilated,
is on the brink of destruction.
Id. at 2805 (emphases added; internal quotation
marks and citations omitted).
The link between the right to keep and bear arms
and the essential tenets of liberty remained front of
mind at the time the Fourteenth Amendment was
adopted. As the Court observed in Heller, the
contemporaneous Freedmen’s Bureau Act stated:
[T]he right * * * to have full and equal benefit
of all laws and proceedings concerning
personal liberty, personal security, and
disposition of estate, real and personal,
including the constitutional right to bear arms,
shall be secured to and enjoyed by all the
citizens * * *.
 33
128 S. Ct. at 2810 (emphasis added). Similarly,
Thomas Cooley wrote in his constitutional treatise in
1868 that “among the other defenses to personal
liberty should be mentioned the right of the people to
keep and bear arms * * *.” Id. at 2811 (emphasis
added; internal quotation marks and citations
omitted)).
The right to keep and bear arms also has long
been guaranteed by many State constitutions,
another factor this Court has often considered when
determining whether other rights are fundamental
for purposes of incorporation. See, e.g., Duncan v.
Louisiana, 391 U.S. 145, 153 (1968); Gideon v.
Wainwright, 372 U.S. 335, 344 (1963); Klopfer v.
North Carolina, 386 U.S. 213, 225–26 (1966).
Currently, forty-four states have constitutional
guarantees for the right to keep and bear arms, and
no state constitution denies the right. See Eugene
Volokh, State Constitutional Rights to Keep and Bear
Arms, 11 TEXAS REV. OF LAW & POLITICS 191, 193–
205 (2006). This enduring state consensus is strong
evidence of the fundamental nature of the right to
keep and bear arms. See Duncan, 391 U.S. at 154
(citing current state practice as evidence that the
jury right is fundamental); see also Benton v.
Maryland, 395 U.S. 784, 794 (citing current state
practice as evidence that the prohibition on double
jeopardy is fundamental).
Importantly, the liberty protected by the right to
keep and bear arms is liberty not only from
government tyranny, but the liberty to defend
oneself and one’s family from violent acts of private
citizens as well. As the Court explained in Heller,
the Framing generation:
 34
understood the right [to keep and bear arms]
to enable individuals to defend themselves.
* * * Americans understood the “right of self-
preservation” as permitting a citizen to repel
by force when the intervention of society in his
behalf, may be too late to prevent an injury.
Id. at 2799 (internal quotation marks and citations
omitted). As set forth in the history recited in Part I,
supra, this aspect of the liberty secured by firearms
was an essential basis behind the adoption of the
Fourteenth Amendment.
In summary, the framework already established
by this Court when it incorporated the First
Amendment and other provisions of the Bill of Rights
compels incorporation of the Second Amendment. No
expansion or contradiction of existing jurisprudence
is required. Quite the contrary, not incorporating
the Second Amendment would be a stark and
unjustifiable departure from the Court’s treatment of
the other “fundamental” rights enumerated in the
first eight Amendments.
3. Putting aside the traditional test for selective
incorporation, the Reconstruction-era history set
forth above would still compel a conclusion that the
right to keep and bear arms guaranteed by the
Second Amendment is an aspect of the liberty
protected by the Due Process Clause of the
Fourteenth Amendment. Indeed, even if this Court
had never incorporated another right, and even if
one were to entertain doubts about the Court’s
selective incorporation jurisprudence with respect to
the incorporation of any other elements of the Bill of
Rights, the Second Amendment would still need to be
incorporated because the Fourteenth Amendment
was intended and commonly understood to secure
 35
the federal right to keep and bear arms against
deprivation by state governments.
In addition to the Reconstruction-era history, one
cannot ignore that this case is before the Supreme
Court of the United States of America precisely
because Redcoats marched on Concord in April of
1775 to seize weapons and gunpowder, and were met
by colonists jealous of their right to keep and bear
arms who fired the first shots of the War of
Independence. See Heller, 128 S. Ct. at 2798–99,
2801. When General Gage then ordered the
confiscation of all of the arms of the people of Boston,
the designs of the Crown became clear for all the
colonists to see, and that order would be among the
grievances detailed in the Declaration of Causes of
Taking Up Arms of July 6, 1775. See S. Halbrook
The Founders’ Second Amendment, Ch. 4 (2008).
Moreover, through the end of the Nineteenth
Century and beyond, a significant percentage of
Americans depended upon private ownership of arms
to provide food for their families and to defend
themselves and their families from attack.
Americans’ personal right to possess such firearms
for hunting or self-defense has long been an essential
and fundamental component of Americans’ view of
themselves as a free people. To paraphrase this
Court in Near, “[i]t [is] impossible to conclude that
[the] essential personal liberty,” not only of the
freedman in the South, see supra at 10–21, but also
of the frontiersman in his log cabin, or the city
merchant living above his store, to keep arms for his
livelihood and self-defense, “was left unprotected by
the general guaranty of fundamental rights of person
and property.” 283 U.S. at 707; cf. Heller, 128 S. Ct.
at 2807 (quoting Senator Sumner’s “Bleeding
 36
Kansas” speech with respect to the importance of
arms on the American frontier).
In light of the “fundamental” nature of the right
to keep and bear arms in our English legal heritage,
the emphasis placed on this right by Revolutionary-
era Americans, the post-bellum importance placed on
self-defense rights of African-Americans during the
framing of the Fourteenth Amendment, and the
widespread use of firearms by Americans across the
country throughout this nation’s history, it is
“impossible to conclude” that State and local
governments were meant to have the capacity to
infringe the right to keep and bear arms. In
comparison to the right to keep and bear arms, no
right has deeper roots in our history, no right is more
essential to the preservation of all rights, and no
right has a stronger claim to fundamental status.
Even putting aside the traditional test for selective
incorporation, the Second Amendment must be
incorporated.
4. Even if the Second Amendment’s original
purpose may have been to cabin overreaching by the
federal government, that is no bar to incorporation.
After all, the First Amendment, unlike the Second
Amendment, explicitly refers to Congress, and
numerous Framing-era sources posited the First
Amendment as guarding against the establishment
of a national church,14 leaving State establishments

14 “At the time that the first amendment was adopted, five
states had established churches—Massachusetts, Connecticut,
New Hampshire, Maryland, and South Carolina.” William Van
Alstyne, “Trends in the Supreme Court: Mr. Jefferson’s
Crumbling Wall—A Comment on Lynch v. Donnelly,” 1984
Duke L. J. 770, 773, fn 8 (1984); see also, e.g., Thomas Jefferson
ltr. to Samuel Miller, 1808. 11 The Writings of Thomas
 37
of religion in place, yet it still was incorporated.
Compare U.S. Const., amend. I (“Congress shall
make no law respecting an establishment of religion,
or prohibiting the free exercise thereof; or abridging
the freedom of speech, or of the press; or the right of
the people peaceably to assemble, and to petition the
government for a redress of grievances.”) with id.,
amend. II (“A well regulated militia, being necessary
to the security of a free state, the right of the people
to keep and bear arms, shall not be infringed.”).
This Court’s pre-incorporation era precedent
holding that the Second Amendment does not apply
directly to the States also is no bar to incorporation
today. As with the Second Amendment, this Court
was unequivocal in the pre-incorporation era that
the First Amendment does not apply against the
states. See, e.g., United States v. Cruikshank, 92
U.S. 542, 551–52 (1876). Yet inapplicability to the
States in the pre-incorporation era proved to be no
bar to later incorporation of the First Amendment,
and is no barrier here either.
5. In summary, the case for incorporating the
Second Amendment into the Due Process Clause of
the Fourteenth Amendment is overwhelming. The
right to keep and bear arms easily meets the test for
incorporation set forth in a century of precedent.
This history of this country, furthermore,
demonstrates the vital importance of the right to
keep and bear arm for the preservation of the liberty
interest at the heart of the Due Process Clause. For

Jefferson, Memorial Ed., 428 (Lipscomb and Bergh, ed. 1903–

04) (“[N]o power to prescribe any religious exercise or to assume
authority in religious discipline has been delegated to the
General Government. It must then rest with the states, as far
as it can be in any human authority.”)
 38
the reasons given above, the Second Amendment
must be incorporated into the Due Process Clause.
III. In the Alternative, This Court’s
Precedent Requires Recognizing the
Right To Keep and Bear Arms as a
Privilege or Immunity of National
Citizenship
If the Court does not decide this case in favor of
Petitioners on selective incorporation grounds, then
the Court should find that the right to keep and bear
arms is one of the privileges and immunities of
national citizenship protected by the Fourteenth
Amendment. See U.S. Const., amend. XIV (“No state
shall make or enforce any law which shall abridge
the privileges or immunities of citizens of the United
States”). Respondents in Support of Petitioners do
not believe it is necessary to revisit the entire
analytical framework the Court has developed for
the Privileges and Immunities Clause, under which
that Clause protects only rights connected to
national citizenship, in order to recognize that the
right to keep and bear arms is protected.
1. The scope of the Privileges and Immunities
Clause was examined by this Court in The
Slaughter-House Cases, 83 U.S. 36 (1873). In
particular, the Court considered, inter alia, whether
that Clause made the entirety of the Bill of Rights
applicable to State governments. Id. at 74–79.
Holding in the negative, the Court explained that the
Privileges and Immunities Clause only concerns
those rights “which owe their existence to the
Federal government, its national character, its
Constitution, or its laws.” Id. at 79. These include
the right to travel to the seat of the national
government, the right to petition the national
 39
government, the right to demand protection of the
national government when on the high seas or in
foreign lands, and the right to use the navigable
waters of the United States. Id. at 79–80.
After The Slaughter-House Cases, this Court at
times has repeated that the privileges and
immunities of citizens of the United States are those
“which owe their existence to the Federal
government, its national character, its Constitution,
or its laws.” See, e.g., Madden v. Kentucky, 309 U.S.
83, 90–91 (1940) (“[T]he privileges and immunities
clause protects all citizens against abridgement by
states of rights of national citizenship as distinct
from the fundamental or natural rights inherent in
state citizenship”). The Court has also stated that if
a “privilege claimed is one which arises in virtue of
national citizenship,” then “no state can abridge it.”
Colgate v. Harvey, 296 U.S. 404, 429 (1935).
2. Whether the Privileges and Immunities Clause
places limits on a State’s ability to prohibit or
regulate the right to keep and bear arms has never
squarely been decided by this Court. Although The
Slaughter-House Cases held that the inclusion of a
right in the Bill of Rights does not automatically
mean such right is protected by the Privileges and
Immunities Clause against State encroachment, it
did not rule out the possibility. To the contrary, The
Slaughter-House Cases explained that the right to
petition the national government is a privilege of
national citizenship protected by the Privileges and
Immunities Clause, even though, of course, the right
“to petition the government for a redress of
grievances” is included within the First Amendment.
83 U.S. at 79; U.S. Const., amend. I.
 40
Subsequently, in United States v. Cruikshank, 92
U.S. 542 (1875), the Court considered the case of
individuals charged with violating the Enforcement
Act of 1870, 16 Stat. 140, 141, by “‘conspiring’
together to injure, oppress, threaten, and intimidate
* * * citizens of the United States, of African descent”
by, inter alia, interfering with their “right to keep
and bear arms for a lawful purpose.” Cruikshank, in
other words, did not involve State law or State action
abridging the right to keep and bear arms, but
private actors. The Enforcement Act required a
finding that defendants acted to “prevent or hinder
[another’s] free exercise and enjoyment of any right
or privilege granted or secured to him by the
Constitution or laws of the United States.” Id. at
548. The Court, in that pre-incorporation case, held
that the Second Amendment only prevents
Congressional interference with the right to keep
and bear arms, and thus that there was no violation
of the statute. See id. at 553. It did not, however,
directly address whether the Privileges and
Immunities Clause of the Fourteenth Amendment
places limits on the ability of State governments to
regulate and restrict the keeping and bearing of
arms, because no such regulations or restrictions
were at issue.
In Presser v. Illinois, the Court considered
criminal charges of parading and drilling as part of
an unauthorized militia. 116 U.S. 252, 253 (1886).
Among the arguments the criminal defendant
asserted in challenging the constitutionality of his
conviction was that it violated the Privileges and
Immunities Clause. See id. at 261. In disposing of
this argument, the Court wrote:
 41
The question is, therefore, had he a right as a
citizen of the United States, in disobedience of
state law, to associate with others as a
military company, and to drill and parade
with arms in the towns and cities of the state?
* * *. The right voluntarily to associate
together as a military company or
organization, or to drill or parade with arms,
without, and independent of, an act of
congress or law of the state authorizing the
same, is not an attribute of national
citizenship. Military organization and
military drill and parade under arms are
subjects especially under the control of
government of every country. They cannot be
claimed as a right independent of law.
Id. at 266. The Court in Presser did not hold that the
Privileges and Immunities Clause does not protect
the right to keep and bear arms; it only addressed
the supposed right to “drill and parade with arms in
the towns and cities of the state.” Indeed, Presser
expressly recognized the limited scope of the issue
before it, observing that “the sections” of Illinois law
“under consideration do not have [the] effect” of
“prohibit[ing] the people from keeping and bearing
arms.” Id. at 265–66. If the Court had previously
concluded, in The Slaughter-House Cases or
Cruikshank, that there was no constitutional
restraint on the ability of State governments to
restrict the right to keep and bear arms, this
observation would have been a non sequitur.
Finally, in Miller v. Texas, the Court held that the
Privileges and Immunities Clause challenge to the
state firearms law at issue had been waived below:
 42
[I]f the Fourteenth Amendment limited the
power of the states as to such rights, as
pertaining to citizens of the United States, we
think it was fatal to this claim that it was not
set up in the trial court.
153 U.S. 535, 538 (1894); see also id. at 539 (“a
privilege or immunity under the Constitution of the
United States cannot be set up here * * * when
suggested for the first time in a petition for
rehearing after judgment”). Any stray language in
that decision concerning the status of the right to
keep and bear arms under the Privileges and
Immunities Clause is therefore dicta.
In the 115 years since Miller, this Court has
never had occasion to consider whether the
Privileges and Immunities Clause may be implicated
by State or local firearms laws.
3. Considering the precise question whether a
State or local firearm law violates the Privileges and
Immunities Clause by infringing the right of a
citizen to keep and bear arms, the answer must be
yes.
In fact, this Court already provided the answer in
Presser, albeit in dicta. Recall, as explained above,
that Presser concerned only the question whether
defendant’s conviction for drilling and parading as
part of an unauthorized militia could stand. The
Court was not asked to, and did not need to, consider
whether there are constitutional limits on a State’s
authority to prohibit the keeping and bearing of
arms under the Privileges and Immunities Clause.
Nonetheless, while addressing the criminal
defendant’s argument raised under the Second
Amendment, the Court explained that:
 43
It is undoubtedly true that all citizens capable
of bearing arms constitute the reserved
military force or reserve militia of the United
States as well as of the states, and, in view of
this prerogative of the general government, as
well as of its general powers, the states cannot,
even laying the constitutional provision in
question [i.e., the Second Amendment] out of
view, prohibit the people from keeping and
bearing arms, so as to deprive the United
States of their rightful resource for
maintaining the public security, and disable
the people from performing their duty to the
general government.
116 U.S. at 584 (emphases added). In other words,
the fundamental right of “keeping and bearing
arms,” which preexists the founding of the nation
and therefore is not dependent upon it, see supra at
31–32, is also independently a right of national
citizenship. See also Heller, 128 S. Ct. at 2809–11.
For the reasons given above, the fundamental
right to keep and bear arms should be incorporated
into the Due Process Clause of the Fourteenth
Amendment. If it is not, however, then the logic of
Presser, together with this Court’s existing test for
what constitutes a privilege or immunity of the
United States, compel the conclusion that the
preexisting right to keep and bear arms as
guaranteed by the Second Amendment is also fully
incorporated into the Privileges and Immunities
Clause of the Fourteenth Amendment.
 44
IV. In the Alternative, the Court Should
Revisit the Scope of the Privileges and
Immunities Clause
If the Court concludes that the right to keep and
bear arms is not, based on current precedent, one of
the privileges and immunities of national citizenship
protected by the Fourteenth Amendment, then the
Court should revisit that precedent.
1. It has long been the precedent of this Court
that the Privileges and Immunities Clause does not
incorporate the Bill of Rights against the States. See
generally Twining v. New Jersey, 211 U.S. 78, 93–99
(1908) (describing The Slaughter-House Cases and its
progeny as holding that “[the Privileges and
Immunities] clause of the Fourteenth Amendment
did not forbid the States to abridge the personal
rights enumerated in the first eight Amendments.”).
The Slaughter-House Cases, however, was wrongly
decided and is not worthy of deference. “Stare
decisis is not, like the rule of res judicata, a universal
inexorable command.” Lawrence v. Texas, 539 U.S.
558, 577 (2003) (quoting Burnet v. Coronado Oil &
Gas Co., 285 U.S. 393, 405 (1932) (Brandeis, J.,
dissenting)). Generally speaking, this Court has
expressed a willingness to depart from precedent
when “governing decisions are unworkable or are
badly reasoned,” in which such cases “‘this Court has
never felt constrained to follow precedent.’” Payne v.
Tennessee, 501 U.S. 808, 827 (1991) (quoting Smith
v. Allwright, 321 U.S. 649, 665 (1944)).
As early as 1908, this Court recognized the
unworkable and badly reasoned logic of The
Slaughter-House Cases:
 45
Criticism of this case has never entirely
ceased, nor has it ever received universal
assent by members of this court.
Undoubtedly, it gave much less effect to the
Fourteenth Amendment than some of the
public men active in framing it intended, and
disappointed many others.
Twining, 211 U.S. at 96. One hundred years later,
the decision continues to fare no better. “Virtually
no serious modern scholar—left, right, and center—
thinks that [The Slaughter-House Cases] is a
plausible reading of the [Fourteenth] Amendment.”
Akhil Reed Amar, Substance and Method in the Year
2000, 28 PEPP. L. REV. 601, 631 n.178 (2001).
Indeed, as Justice Thomas has pointed out, “[l]egal
scholars agree on little beyond the conclusion that
the [Privileges and Immunities] Clause does not
mean with the Court said it meant in 1873.” Saenz
v. Roe, 526 U.S. 489, 523 n.1 (1999) (Thomas, J.,
dissenting).
This case provides the perfect—and rare—
opportunity to reevaluate the illogical holding of The
Slaughter-House Cases, restoring the Privileges and
Immunities Clause to the rightful importance that
its framers, and the post-Civil War public, intended.
2. The historical record culminating in passage of
the Fourteenth Amendment provides compelling
support for the proposition that the Privileges and
Immunities Clause was intended to incorporate
much of the Bill of Rights, and certainly the Second
Amendment, against the States.
The Amendment’s principal drafter (Rep.
Bingham), for example, declared that the Clause
would “arm the Congress * * * with the power to
 46
enforce the bill of rights as it stands in the
Constitution today.” CONG. GLOBE, 39th Cong., 1st
Sess., 1088 (1866) (statement of Rep. John
Bingham). He explained that he drafted the
Fourteenth Amendment with Barron v. Baltimore,
32 U.S. 243 (1833), in mind. 42nd Cong., 1st Sess.,
App., at 84. He stated that “the privileges and
immunities of citizens of a State, are chiefly defined
in the first eight amendments to the Constitution of
the United States.” Id. Reading each of the
amendments, he added: “These eight articles * * *
never were limitations upon the power of the States,
until made so by the fourteenth amendment.” Id.
Supporters and opponents of the Amendment
each recognized the Amendment’s purpose to
incorporate the Bill of Rights against the States.
See, e.g., CONG. GLOBE, 39th Cong., 1st Sess., 2765–
66 (1866)); Richard Aynes, On Misreading John
Bingham and the Fourteenth Amendment, 103 YALE
L.J. 57, 98 (1993). State ratification records
confirmed this intent. See, e.g., Mass. H. R. Doc. No.
149, at 3 (1867), quoted in Halbrook, Freedmen, 71–
72. Legal scholars were also in agreement. See, e.g.,
John N. Pomeroy, AN INTRODUCTION TO THE
CONSTITUTIONAL LAW OF THE UNITED STATES 149,
151 (1868). And the general public understood
incorporation to be the Amendment’s design. See,
e.g., Bryan Wildenthal, Nationalizing the Bill of
Rights: Revisiting the Original Understanding of the
Fourteenth Amendment in 1866–67, 78 OHIO ST. L.J.
1509, 1590 (2007).
For the reasons given at greater length in the
brief of Petitioners, it is time for this Court to depart
from the The Slaughter-House Cases and recognize
the incorporation of the Bill of Rights, or at a
 47
minimum the Second Amendment, into the
Fourteenth Amendment’s Privileges and Immunities
Clause. Even if this Court finds it unnecessary to
hold that the entire Bill of Rights is so incorporated,
it would be faithful to the original understanding to
hold that the Second Amendment is incorporated. As
set forth in Part I, supra, those who explained that
the entire Bill of Rights would be applicable to the
States prominently mentioned the right to keep and
bear arms in particular.
CONCLUSION
For the foregoing reasons, the decision of the
Seventh Circuit below should be reversed.

Respectfully submitted,

STEPHEN P. HALBROOK STEPHEN D. POSS

3925 Chain Bridge Rd., Counsel of Record
Suite 403 KEVIN P. MARTIN
Fairfax, VA 22030 SCOTT B. NARDI
(703) 352-7276 JOSHUA S. LIPSHUTZ
GOODWIN PROCTER LLP
Counsel for the National Exchange Place
Rifle Association of Boston, MA 02109
America, Inc., Robert (617) 570-1000
Klein Engler, Dr. Gene
Reisinger, Dr. Kathryn Counsel for the National
Tyler, Van F. Rifle Association of
Welton, and Brett Benson America, Inc.

November 16, 2009