McDonald v. Chicago (2010)

(Slip Opinion) OCTOBER TERM, 2009 1 Syllabus NOTE: Where it is feasible, a syllabus (headnote) will be released, as is being done in connection with this case, at the time the opinion is issued. The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337 . SUPREME COURT OF THE UNITED STATES Syllabus MCDONALD ET AL. v. CITY OF CHICAGO, ILLINOIS, ET AL. CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT No. 08–1521. Argued March 2, 2010—Decided June 28, 2010 Two years ago, in District of Columbia v. Heller, 554 U. S. ___ , this Court held that the Second Amendment protects the right to keep and bear arms for the purpose of self-defense and struck down a Dis trict of Columbia law that banned the possession of handguns in the home. Chicago (hereinafter City) and the village of Oak Park, a Chi cago suburb, have laws effectively banning handgun possession by almost all private citizens. After Heller, petitioners filed this federal suit against the City, which was consolidated with two related ac tions, alleging that the City’s handgun ban has left them vulnerable to criminals. They sought a declaration that the ban and several re lated City ordinances violate the Second and Fourteenth Amend ments. Rejecting petitioners’ argument that the ordinances are un constitutional, the court noted that the Seventh Circuit previously had upheld the constitutionality of a handgun ban, that Heller had explicitly refrained from opining on whether the Second Amendment applied to the States, and that the court had a duty to follow estab lished Circuit precedent. The Seventh Circuit affirmed, relying on three 19th-century cases—United States v. Cruikshank, 92 U. S. 542 , Presser v. Illinois, 116 U. S. 252 , and Miller v. Texas, 153 U. S. 535— which were decided in the wake of this Court’s interpretation of the Fourteenth Amendment’s Privileges or Immunities Clause in the Slaughter-House Cases, 16 Wall. 36 . Held: The judgment is reversed, and the case is remanded. 567 F. 3d 856 , reversed and remanded. JUSTICE ALITO delivered the opinion of the Court with respect to Parts I, II–A, II–B, II–D, III–A, and III–B, concluding that the Four 2 MCDONALD v. CHICAGO Syllabus teenth Amendment incorporates the Second Amendment right, rec ognized in Heller, to keep and bear arms for the purpose of self defense. Pp. 5–9, 11–19, 19–33. (a) Petitioners base their case on two submissions. Primarily, they argue that the right to keep and bear arms is protected by the Privi leges or Immunities Clause of the Fourteenth Amendment and that the Slaughter-House Cases’ narrow interpretation of the Clause should now be rejected. As a secondary argument, they contend that the Fourteenth Amendment’s Due Process Clause incorporates the Second Amendment right. Chicago and Oak Park (municipal respon dents) maintain that a right set out in the Bill of Rights applies to the States only when it is an indispensable attribute of any “ ‘civi lized’ ” legal system. If it is possible to imagine a civilized country that does not recognize the right, municipal respondents assert, that right is not protected by due process. And since there are civilized countries that ban or strictly regulate the private possession of hand guns, they maintain that due process does not preclude such meas ures. Pp. 4–5. (b) The Bill of Rights, including the Second Amendment, originally applied only to the Federal Government, not to the States, see, e.g., Barron ex rel. Tiernan v. Mayor of Baltimore, 7 Pet. 243, 247 , but the constitutional Amendments adopted in the Civil War’s aftermath fundamentally altered the federal system. Four years after the adop tion of the Fourteenth Amendment, this Court held in the Slaughter- House Cases, that the Privileges or Immunities Clause protects only those rights “which owe their existence to the Federal government, its National character, its Constitution, or its laws,” 16 Wall., at 79 , and that the fundamental rights predating the creation of the Fed eral Government were not protected by the Clause, id., at 76 . Under this narrow reading, the Court held that the Privileges or Immunities Clause protects only very limited rights. Id., at 79–80. Subse quently, the Court held that the Second Amendment applies only to the Federal Government in Cruikshank, 92 U. S. 542 , Presser, 116 U. S. 252 , and Miller, 153 U. S. 535 , the decisions on which the Sev enth Circuit relied in this case. Pp. 5–9. (c) Whether the Second Amendment right to keep and bear arms applies to the States is considered in light of the Court’s precedents applying the Bill of Rights’ protections to the States. Pp. 11–19. (1) In the late 19th century, the Court began to hold that the Due Process Clause prohibits the States from infringing Bill of Rights pro tections. See, e.g., Hurtado v. California, 110 U. S. 516 . Five fea tures of the approach taken during the ensuing era are noted. First, the Court viewed the due process question as entirely separate from the question whether a right was a privilege or immunity of national Cite as: 561 U. S. ____ (2010) 3 Syllabus citizenship. See Twining v. New Jersey, 211 U. S. 78, 99 . Second, the Court explained that the only rights due process protected against state infringement were those “of such a nature that they are in cluded in the conception of due process of law.” Ibid. Third, some cases during this era “can be seen as having asked . . . if a civilized system could be imagined that would not accord the particular pro tection” asserted therein. Duncan v. Louisiana, 391 U. S. 145, 149, n. 14 . Fourth, the Court did not hesitate to hold that a Bill of Rights guarantee failed to meet the test for Due Process Clause protection, finding, e.g., that freedom of speech and press qualified, Gitlow v. New York, 268 U. S. 652, 666 ; Near v. Minnesota ex rel. Olson, 283 U. S. 697 , but the grand jury indictment requirement did not, Hur tado, supra. Finally, even when such a right was held to fall within the conception of due process, the protection or remedies afforded against state infringement sometimes differed from those provided against abridgment by the Federal Government. Pp. 11–13. (2) Justice Black championed the alternative theory that §1 of the Fourteenth Amendment totally incorporated all of the Bill of Rights’ provisions, see, e.g., Adamson v. California, 332 U. S. 46 , 71– 72 (Black, J., dissenting), but the Court never has embraced that the ory. Pp. 13–15. (3) The Court eventually moved in the direction advocated by Justice Black, by adopting a theory of selective incorporation by which the Due Process Clause incorporates particular rights con tained in the first eight Amendments. See, e.g., Gideon v. Wainwright, 372 U. S. 335, 341 . These decisions abandoned three of the charac teristics of the earlier period. The Court clarified that the governing standard is whether a particular Bill of Rights protection is funda mental to our Nation’s particular scheme of ordered liberty and sys tem of justice. Duncan, supra, at 149, n. 14 . The Court eventually held that almost all of the Bill of Rights’ guarantees met the re quirements for protection under the Due Process Clause. The Court also held that Bill of Rights protections must “all . . . be enforced against the States under the Fourteenth Amendment according to the same standards that protect those personal rights against federal encroachment.” Malloy v. Hogan, 378 U. S. 1, 10 . Under this ap proach, the Court overruled earlier decisions holding that particular Bill of Rights guarantees or remedies did not apply to the States. See, e.g., Gideon, supra, which overruled Betts v. Brady, 316 U. S. 455 . Pp. 15–19. (d) The Fourteenth Amendment makes the Second Amendment right to keep and bear arms fully applicable to the States. Pp. 19–33. (1) The Court must decide whether that right is fundamental to the Nation’s scheme of ordered liberty, Duncan v. Louisiana, 391 4 MCDONALD v. CHICAGO Syllabus U. S. 145, 149, or, as the Court has said in a related context, whether it is “deeply rooted in this Nation’s history and tradition,” Washing ton v. Glucksberg, 521 U. S. 702, 721 . Heller points unmistakably to the answer. Self-defense is a basic right, recognized by many legal systems from ancient times to the present, and the Heller Court held that individual self-defense is “the central component” of the Second Amendment right. 554 U. S., at ___, ___. Explaining that “the need for defense of self, family, and property is most acute” in the home, ibid., the Court 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 ___, ___–___. It thus concluded that citizens must be permitted “to use [handguns] for the core lawful purpose of self-defense.” Id., at ___. Heller also clarifies that this right is “deeply rooted in this Nation’s history and tradi tions,” Glucksberg, supra, at 721 . Heller explored the right’s origins in English law and noted the esteem with which the right was re garded during the colonial era and at the time of the ratification of the Bill of Rights. This is powerful evidence that the right was re garded as fundamental in the sense relevant here. That understand ing persisted in the years immediately following the Bill of Rights’ ratification and is confirmed by the state constitutions of that era, which protected the right to keep and bear arms. Pp. 19–22. (2) A survey of the contemporaneous history also demonstrates clearly that the Fourteenth Amendment’s Framers and ratifiers counted the right to keep and bear arms among those fundamental rights necessary to the Nation’s system of ordered liberty. Pp. 22–33. (i) By the 1850’s, the fear that the National Government would disarm the universal militia had largely faded, but the right to keep and bear arms was highly valued for self-defense. Abolitionist au thors wrote in support of the right, and attempts to disarm “Free- Soilers” in “Bloody Kansas,” met with outrage that the constitutional right to keep and bear arms had been taken from the people. After the Civil War, the Southern States engaged in systematic efforts to disarm and injure African Americans, see Heller, supra, at ___. These injustices prompted the 39th Congress to pass the Freedmen’s Bureau Act of 1866 and the Civil Rights Act of 1866 to protect the right to keep and bear arms. Congress, however, ultimately deemed these legislative remedies insufficient, and approved the Fourteenth Amendment. Today, it is generally accepted that that Amendment was understood to provide a constitutional basis for protecting the rights set out in the Civil Rights Act. See General Building Contrac tors Assn., Inc. v. Pennsylvania, 458 U. S. 375, 389 . In Congressional debates on the proposed Amendment, its legislative proponents in the 39th Congress referred to the right to keep and bear arms as a fun Cite as: 561 U. S. ____ (2010) 5 Syllabus damental right deserving of protection. Evidence from the period immediately following the Amendment’s ratification confirms that that right was considered fundamental. Pp. 22–31. (ii) Despite all this evidence, municipal respondents argue that Members of Congress overwhelmingly viewed §1 of the Fourteenth Amendment as purely an antidiscrimination rule. But while §1 does contain an antidiscrimination rule, i.e., the Equal Protection Clause, it can hardly be said that the section does no more than prohibit dis crimination. If what municipal respondents mean is that the Second Amendment should be singled out for special—and specially unfavor able—treatment, the Court rejects the suggestion. The right to keep and bear arms must be regarded as a substantive guarantee, not a prohibition that could be ignored so long as the States legislated in an evenhanded manner. Pp. 30–33. JUSTICE ALITO, joined by THE CHIEF JUSTICE, JUSTICE SCALIA, and JUSTICE KENNEDY, concluded, in Parts II–C, IV, and V, that the Four teenth Amendment’s Due Process Clause incorporates the Second Amendment right recognized in Heller. Pp. 10–11, 33–44. (a) Petitioners argue that that the Second Amendment right is one of the “privileges or immunities of citizens of the United States.” There is no need to reconsider the Court’s interpretation of the Privi leges or Immunities Clause in the Slaughter-House Cases because, for many decades, the Court has analyzed the question whether par ticular rights are protected against state infringement under the Fourteenth Amendment’s Due Process Clause. Pp. 10–11. (b) Municipal respondents’ remaining arguments are rejected be cause they are at war with Heller’s central holding. In effect, they ask the Court to hold the right to keep and bear arms as subject to a different body of rules for incorporation than the other Bill of Rights guarantees. Pp. 33–40. (c) The dissents’ objections are addressed and rejected. Pp. 41–44. JUSTICE THOMAS agreed that the Fourteenth Amendment makes the Second Amendment right to keep and bear arms that was recog nized in District of Columbia v. Heller, 554 U. S. ___ , fully applicable to the States. However, he asserted, there is a path to this conclusion that is more straightforward and more faithful to the Second Amendment’s text and history. The Court is correct in describing the Second Amendment right as “fundamental” to the American scheme of ordered liberty, Duncan v. Louisiana, 391 U. S. 145, 149 , and “deeply rooted in this Nation’s history and traditions,” Washington v. Glucksberg, 521 U. S. 702, 721 . But the Fourteenth Amendment’s Due Process Clause, which speaks only to “process,” cannot impose the type of substantive restraint on state legislation that the Court asserts. Rather, the right to keep and bear arms is enforceable 6 MCDONALD v. CHICAGO Syllabus against the States because it is a privilege of American citizenship recognized by §1 of the Fourteenth Amendment, which provides, inter alia: “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.” In inter preting this language, it is important to recall that constitutional provisions are “ ‘written to be understood by the voters.’ ” Heller, 554 U. S., at ___. The objective of this inquiry is to discern what “ordi nary citizens” at the time of the Fourteenth Amendment’s ratification would have understood that Amendment's Privileges or Immunities Clause to mean. Ibid. A survey of contemporary legal authorities plainly shows that, at that time, the ratifying public understood the Clause to protect constitutionally enumerated rights, including the right to keep and bear arms. Pp. 1–34. ALITO, J., announced the judgment of the Court and delivered the opinion of the Court with respect to Parts I, II–A, II–B, II–D, III–A, and III–B, in which ROBERTS, C. J., and SCALIA, KENNEDY, and THOMAS, JJ., joined, and an opinion with respect to Parts II–C, IV, and V, in which ROBERTS, C. J., and SCALIA and KENNEDY, JJ., join. SCALIA, J., filed a concurring opinion. THOMAS, J., filed an opinion concurring in part and concurring in the judgment. STEVENS, J., filed a dissenting opinion. BREYER, J., filed a dissenting opinion, in which GINSBURG and SO- TOMAYOR, JJ., joined. Cite as: 561 U. S. ____ (2010) 1 Opinion of the Court NOTICE: This opinion is subject to formal revision before publication in the preliminary print of the United States Reports. Readers are requested to notify the Reporter of Decisions, Supreme Court of the United States, Wash ington, D. C. 20543, of any typographical or other formal errors, in order that corrections may be made before the preliminary print goes to press. SUPREME COURT OF THE UNITED STATES _________________ No. 08–1521 _________________ OTIS MCDONALD, ET AL., PETITIONERS v. CITY OF CHICAGO, ILLINOIS, ET AL. ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT [June 28, 2010] JUSTICE ALITO announced the judgment of the Court and delivered the opinion of the Court with respect to Parts I, II–A, II–B, II–D, III–A, and III–B, in which THE CHIEF JUSTICE, JUSTICE SCALIA, JUSTICE KENNEDY, and JUSTICE THOMAS join, and an opinion with respect to Parts II–C, IV, and V, in which THE CHIEF JUSTICE, JUSTICE SCALIA, and JUSTICE KENNEDY join. Two years ago, in District of Columbia v. Heller, 554 U. S. ___ (2008), we held that the Second Amendment protects the right to keep and bear arms for the purpose of self-defense, and we struck down a District of Columbia law that banned the possession of handguns in the home. The city of Chicago (City) and the village of Oak Park, a Chicago suburb, have laws that are similar to the District of Columbia’s, but Chicago and Oak Park argue that their laws are constitutional because the Second Amendment has no application to the States. We have previously held that most of the provisions of the Bill of Rights apply with full force to both the Federal Government and the States. Applying the standard that is well established in our case law, we hold that the Second Amendment right is fully 2 MCDONALD v. CHICAGO Opinion of the Court applicable to the States. I Otis McDonald, Adam Orlov, Colleen Lawson, and David Lawson (Chicago petitioners) are Chicago residents who would like to keep handguns in their homes for self defense but are prohibited from doing so by Chicago’s firearms laws. A City ordinance provides that “[n]o person shall . . . possess . . . any firearm unless such person is the holder of a valid registration certificate for such firearm.” Chicago, Ill., Municipal Code §8–20–040(a) (2009). The Code then prohibits registration of most handguns, thus effectively banning handgun possession by almost all private citizens who reside in the City. §8–20–050(c). Like Chicago, Oak Park makes it “unlawful for any person to possess . . . any firearm,” a term that includes “pistols, revolvers, guns and small arms . . . commonly known as handguns.” Oak Park, Ill., Municipal Code §§27–2–1 (2007), 27–1–1 (2009). Chicago enacted its handgun ban to protect its residents “from the loss of property and injury or death from fire arms.” See Chicago, Ill., Journal of Proceedings of the City Council, p. 10049 (Mar. 19, 1982). The Chicago peti tioners and their amici, however, argue that the handgun ban has left them vulnerable to criminals. Chicago Police Department statistics, we are told, reveal that the City’s handgun murder rate has actually increased since the ban was enacted1 and that Chicago residents now face one of the highest murder rates in the country and rates of other violent crimes that exceed the average in comparable cities.2 —————— 1 See Brief for Heartland Institute as Amicus Curiae 6–7 (noting that handgun murder rate was 9.65 in 1983 and 13.88 in 2008). 2 Brief for Buckeye Firearms Foundation, Inc., et al. as Amici Curiae 8–9 (“In 2002 and again in 2008, Chicago had more murders than any other city in the U. S., including the much larger Los Angeles and New Cite as: 561 U. S. ____ (2010) 3 Opinion of the Court Several of the Chicago petitioners have been the targets of threats and violence. For instance, Otis McDonald, who is in his late seventies, lives in a high-crime neighborhood. He is a community activist involved with alternative policing strategies, and his efforts to improve his neighborhood have subjected him to violent threats from drug dealers. App. 16–17; Brief for State Firearm Associa tions as Amici Curiae 20–21; Brief for State of Texas et al. as Amici Curiae 7–8. Colleen Lawson is a Chicago resi dent whose home has been targeted by burglars. “In Mrs. Lawson’s judgment, possessing a handgun in Chicago would decrease her chances of suffering serious injury or death should she ever be threatened again in her home.”3 McDonald, Lawson, and the other Chicago petitioners own handguns that they store outside of the city limits, but they would like to keep their handguns in their homes for protection. See App. 16–19, 43–44 (McDonald), 20–24 (C. Lawson), 19, 36 (Orlov), 20–21, 40 (D. Lawson). After our decision in Heller, the Chicago petitioners and two groups4 filed suit against the City in the United States District Court for the Northern District of Illinois. They sought a declaration that the handgun ban and several related Chicago ordinances violate the Second and Four teenth Amendments to the United States Constitution. Another action challenging the Oak Park law was filed in the same District Court by the National Rifle Association (NRA) and two Oak Park residents. In addition, the NRA and others filed a third action challenging the Chicago —————— York” (internal quotation marks omitted)); see also Brief for Interna tional Law Enforcement Educators and Trainers Association et al. as Amici Curiae 17–21, and App. A (providing comparisons of Chicago’s rates of assault, murder, and robbery to average crime rates in 24 other large cities). 3 Brief for Women State Legislators et al. as Amici Curiae 2. 4 The Illinois State Rifle Association and the Second Amendment Foundation, Inc. 4 MCDONALD v. CHICAGO Opinion of the Court ordinances. All three cases were assigned to the same District Judge. The District Court rejected plaintiffs’ argument that the Chicago and Oak Park laws are unconstitutional. See App. 83–84; NRA, Inc. v. Oak Park, 617 F. Supp. 2d 752, 754 (ND Ill. 2008). The court noted that the Seventh Circuit had “squarely upheld the constitutionality of a ban on handguns a quarter century ago,” id., at 753 (citing Quilici v. Morton Grove, 695 F. 2d 261 (CA7 1982)), and that Heller had explicitly refrained from “opin[ing] on the subject of incorporation vel non of the Second Amend ment,” NRA, 617 F. Supp. 2d, at 754 . The court observed that a district judge has a “duty to follow established precedent in the Court of Appeals to which he or she is beholden, even though the logic of more recent caselaw may point in a different direction.” Id., at 753 . The Seventh Circuit affirmed, relying on three 19th century cases—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)—that were decided in the wake of this Court’s interpretation of the Privileges or Immunities Clause of the Fourteenth Amendment in the Slaughter-House Cases, 16 Wall. 36 (1873). The Seventh Circuit described the rationale of those cases as “defunct” and recognized that they did not consider the question whether the Fourteenth Amendment’s Due Process Clause incorporates the Second Amendment right to keep and bear arms. NRA, Inc. v. Chicago, 567 F. 3d 856, 857, 858 (2009). Nevertheless, the Seventh Circuit observed that it was obligated to follow Supreme Court precedents that have “direct application,” and it declined to predict how the Second Amendment would fare under this Court’s modern “selective incorporation” approach. Id., at 857– 858 (internal quotation marks omitted). We granted certiorari. 557 U. S. ___ (2009). Cite as: 561 U. S. ____ (2010) 5 Opinion of the Court II A Petitioners argue that the Chicago and Oak Park laws violate the right to keep and bear arms for two reasons. Petitioners’ primary submission is that this right is among the “privileges or immunities of citizens of the United States” and that the narrow interpretation of the Privi leges or Immunities Clause adopted in the Slaughter- House Cases, supra, should now be rejected. As a secon dary argument, petitioners contend that the Fourteenth Amendment’s Due Process Clause “incorporates” the Second Amendment right. Chicago and Oak Park (municipal respondents) main tain that a right set out in the Bill of Rights applies to the States only if that right is an indispensable attribute of any “ ‘civilized’ ” legal system. Brief for Municipal Respon dents 9. If it is possible to imagine a civilized country that does not recognize the right, the municipal respondents tell us, then that right is not protected by due process. Ibid. And since there are civilized countries that ban or strictly regulate the private possession of handguns, the municipal respondents maintain that due process does not preclude such measures. Id., at 21–23. In light of the parties’ far-reaching arguments, we begin by recounting this Court’s analysis over the years of the relationship between the provisions of the Bill of Rights and the States. B The Bill of Rights, including the Second Amendment, originally applied only to the Federal Government. In Barron ex rel. Tiernan v. Mayor of Baltimore, 7 Pet. 243 (1833), the Court, in an opinion by Chief Justice Marshall, explained that this question was “of great importance” but “not of much difficulty.” Id., at 247 . In less than four pages, the Court firmly rejected the proposition that the first eight Amendments operate as limitations on the 6 MCDONALD v. CHICAGO Opinion of the Court States, holding that they apply only to the Federal Gov ernment. See also Lessee of Livingston v. Moore, 7 Pet. 469 , 551–552 (1833) (“[I]t is now settled that those amend ments [in the Bill of Rights] do not extend to the states”). The constitutional Amendments adopted in the after math of the Civil War fundamentally altered our country’s federal system. The provision at issue in this case, §1 of the Fourteenth Amendment, provides, among other things, that a State may not abridge “the privileges or immunities of citizens of the United States” or deprive “any person of life, liberty, or property, without due proc ess of law.” Four years after the adoption of the Fourteenth Amendment, this Court was asked to interpret the Amendment’s reference to “the privileges or immunities of citizens of the United States.” The Slaughter-House Cases, supra, involved challenges to a Louisiana law per mitting the creation of a state-sanctioned monopoly on the butchering of animals within the city of New Orleans. Justice Samuel Miller’s opinion for the Court concluded that the Privileges or Immunities Clause protects only those rights “which owe their existence to the Federal government, its National character, its Constitution, or its laws.” Id., at 79. The Court held that other fundamental rights—rights that predated the creation of the Federal Government and that “the State governments were cre ated to establish and secure”—were not protected by the Clause. Id., at 76. In drawing a sharp distinction between the rights of federal and state citizenship, the Court relied on two principal arguments. First, the Court emphasized that the Fourteenth Amendment’s Privileges or Immunities Clause spoke of “the privileges or immunities of citizens of the United States,” and the Court contrasted this phrasing with the wording in the first sentence of the Fourteenth Amendment and in the Privileges and Immunities Clause Cite as: 561 U. S. ____ (2010) 7 Opinion of the Court of Article IV, both of which refer to state citizenship.5 (Emphasis added.) Second, the Court stated that a con trary reading would “radically chang[e] the whole theory of the relations of the State and Federal governments to each other and of both these governments to the people,” and the Court refused to conclude that such a change had been made “in the absence of language which expresses such a purpose too clearly to admit of doubt.” Id., at 78. Finding the phrase “privileges or immunities of citizens of the United States” lacking by this high standard, the Court reasoned that the phrase must mean something more limited. Under the Court’s narrow reading, the Privileges or Immunities Clause protects such things as the right “to come to the seat of government to assert any claim [a citizen] may have upon that government, to trans act any business he may have with it, to seek its pro tection, to share its offices, to engage in administering its functions . . . [and to] become a citizen of any State of the Union by a bonâ fide residence therein, with the same rights as other citizens of that State.” Id., at 79–80 (internal quotation marks omitted). Finding no constitutional protection against state intru sion of the kind envisioned by the Louisiana statute, the Court upheld the statute. Four Justices dissented. Jus tice Field, joined by Chief Justice Chase and Justices Swayne and Bradley, criticized the majority for reducing the Fourteenth Amendment’s Privileges or Immunities —————— 5 The first sentence of the Fourteenth Amendment makes “[a]ll per sons born or naturalized in the United States and subject to the juris diction thereof . . . citizens of the United States and of the State wherein they reside.” (Emphasis added.) The Privileges and Immunities Clause of Article IV provides that “[t]he Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States.” (Emphasis added.) 8 MCDONALD v. CHICAGO Opinion of the Court Clause to “a vain and idle enactment, which accomplished nothing, and most unnecessarily excited Congress and the people on its passage.” Id., at 96; see also id., at 104. Justice Field opined that the Privileges or Immunities Clause protects rights that are “in their nature . . . funda mental,” including the right of every man to pursue his profession without the imposition of unequal or discrimi natory restrictions. Id., at 96–97. Justice Bradley’s dis sent observed that “we are not bound to resort to implica tion . . . to find an authoritative declaration of some of the most important privileges and immunities of citizens of the United States. It is in the Constitution itself.” Id., at 118. Justice Bradley would have construed the Privileges or Immunities Clause to include those rights enumerated in the Constitution as well as some unenumerated rights. Id., at 119. Justice Swayne described the majority’s nar row reading of the Privileges or Immunities Clause as “turn[ing] . . . what was meant for bread into a stone.” Id., at 129 (dissenting opinion). Today, many legal scholars dispute the correctness of the narrow Slaughter-House interpretation. See, e.g., Saenz v. Roe, 526 U. S. 489, 522, n. 1, 527 (1999) (THOMAS, J., dissenting) (scholars of the Fourteenth Amendment agree “that the Clause does not mean what the Court said it meant in 1873”); Amar, Substance and Method in the Year 2000, 28 Pepperdine L. Rev. 601, 631, n. 178 (2001) (“Virtually no serious modern scholar—left, right, and center—thinks that this [interpretation] is a plausible reading of the Amendment”); Brief for Constitutional Law Professors as Amici Curiae 33 (claiming an “overwhelming consensus among leading constitutional scholars” that the opinion is “egregiously wrong”); C. Black, A New Birth of Freedom 74–75 (1997). Three years after the decision in the Slaughter-House Cases, the Court decided Cruikshank, the first of the three 19th-century cases on which the Seventh Circuit relied. Cite as: 561 U. S. ____ (2010) 9 Opinion of the Court 92 U. S. 542 . In that case, the Court reviewed convictions stemming from the infamous Colfax Massacre in Louisi ana on Easter Sunday 1873. Dozens of blacks, many unarmed, were slaughtered by a rival band of armed white men.6 Cruikshank himself allegedly marched unarmed African-American prisoners through the streets and then had them summarily executed.7 Ninety-seven men were indicted for participating in the massacre, but only nine went to trial. Six of the nine were acquitted of all charges; the remaining three were acquitted of murder but con victed under the Enforcement Act of 1870, 16 Stat. 140 , for banding and conspiring together to deprive their victims of various constitutional rights, including the right to bear arms.8 The Court reversed all of the convictions, including those relating to the deprivation of the victims’ right to bear arms. Cruikshank, 92 U. S., at 553, 559 . The Court wrote that the right of bearing arms for a lawful purpose “is not a right granted by the Constitution” and is not “in any manner dependent upon that instrument for its exis tence.” Id., at 553 . “The second amendment,” the Court continued, “declares that it shall not be infringed; but this . . . means no more than that it shall not be infringed by Congress.” Ibid. “Our later decisions in Presser v. Illinois, 116 U. S. 252, 265 (1886), and Miller v. Texas, 153 U. S. 535, 538 (1894), reaffirmed that the Second Amendment applies only to the Federal Government.” Heller, 554 U. S., at ___, n. 23 (slip op., at 48, n. 23). —————— 6 See C. Lane, The Day Freedom Died 265–266 (2008); see also Brief for NAACP Legal Defense & Education Fund, Inc., as Amicus Curiae 3, and n. 2. 7 See Lane, supra, at 106. 8 United States v. Cruikshank, 92 U. S. 542 , 544–545 (statement of the case), 548, 553 (opinion of the Court) (1875); Lawrence, Civil Rights and Criminal Wrongs: The Mens Rea of Federal Civil Rights Crimes, 67 Tulane L. Rev. 2113, 2153 (1993). 10 MCDONALD v. CHICAGO Opinion of the Court Opinion of ALITO, J. C As previously noted, the Seventh Circuit concluded that Cruikshank, Presser, and Miller doomed petitioners’ claims at the Court of Appeals level. Petitioners argue, however, that we should overrule those decisions and hold that the right to keep and bear arms is one of the “privi leges or immunities of citizens of the United States.” In petitioners’ view, the Privileges or Immunities Clause protects all of the rights set out in the Bill of Rights, as well as some others, see Brief for Petitioners 10, 14, 15–21, but petitioners are unable to identify the Clause’s full scope, Tr. of Oral Arg. 5–6, 8–11. Nor is there any consen sus on that question among the scholars who agree that the Slaughter-House Cases’ interpretation is flawed. See Saenz, supra, at 522, n. 1 (THOMAS, J., dissenting). We see no need to reconsider that interpretation here. For many decades, the question of the rights protected by the Fourteenth Amendment against state infringement has been analyzed under the Due Process Clause of that Amendment and not under the Privileges or Immunities Clause. We therefore decline to disturb the Slaughter- House holding. At the same time, however, this Court’s decisions in Cruikshank, Presser, and Miller do not preclude us from considering whether the Due Process Clause of the Four teenth Amendment makes the Second Amendment right binding on the States. See Heller, 554 U. S., at ___, n. 23 (slip op., at 48, n. 23). None of those cases “engage[d] in the sort of Fourteenth Amendment inquiry required by our later cases.” Ibid. As explained more fully below, Cruikshank, Presser, and Miller all preceded the era in which the Court began the process of “selective incorpo ration” under the Due Process Clause, and we have never previously addressed the question whether the right to keep and bear arms applies to the States under that theory. Cite as: 561 U. S. ____ (2010) 11 Opinion of the Court Indeed, Cruikshank has not prevented us from holding that other rights that were at issue in that case are bind ing on the States through the Due Process Clause. In Cruikshank, the Court held that the general “right of the people peaceably to assemble for lawful purposes,” which is protected by the First Amendment, applied only against the Federal Government and not against the States. See 92 U. S., at 551–552. Nonetheless, over 60 years later the Court held that the right of peaceful assembly was a “fun damental righ[t] . . . safeguarded by the due process clause of the Fourteenth Amendment.” De Jonge v. Oregon,

*748 Justice Alito announced the judgment of the Court and delivered the opinion of the Court with respect to Parts I, II-A, II-B, II-D, and III, in which The Chief Justice, Jus *749 tice Scalia, Justice Kennedy, and. Justice Thomas join, and an opinion with respect to Parts II-C, IV, and V, in which The Chief Justice, Justice Scalia, and Justice Kennedy join. Two years ago, in District of Columbia v. Heller, 554 U. S. 570 (2008), we held that the Second Amendment protects the *750 right to keep and bear arms for the purpose of self-defense, and we struck down a District of Columbia law that banned the possession of handguns in the home. The city of Chicago (Chicago or City) and the village of Oak Park, a Chicago suburb, have laws that are similar to the District of Columbia’s, but Chicago and Oak Park argue that their laws are constitutional because the Second Amendment has no application to the States. We have previously held that most of the provisions of the Bill of Rights apply with full force to both the Federal Government and the States. Applying the standard that is well established in our case law, we hold that the Second Amendment right is fully applicable to the States. I Otis McDonald, Adam Orlov, Colleen Lawson, and David Lawson (Chicago petitioners) are Chicago residents who would like to keep handguns in their homes for self-defense but are prohibited from doing so by Chicago’s firearms laws. A City ordinance provides that “[n]o person shall... possess . . . any firearm unless such person is the holder of a valid registration certificate for such firearm.” Chicago, Ill., Municipal Code § 8-20-040(a) (2009). The Code then prohibits registration of most handguns, thus effectively banning handgun possession by almost all private citizens who reside in the City. § 8-20-050(c). Like Chicago, Oak Park makes it “unlawful for any person to possess . . . any firearm,” a term that includes “pistols, revolvers, guns and small arms . . . commonly known as handguns.” Oak Park, 111., Village Code §§27-2-1 (2007), 27-1-1 (2009). Chicago enacted its handgun ban to protect its residents “from the loss of property and injury or death from fire *751 arms.” See Chicago, Ill., Journal of Proceedings of the City Council, p. 10049 (Mar. 19, 1982). The Chicago petitioners and their amici, however, argue that the handgun ban has left them vulnerable to criminals. Chicago Police Department statistics, we are told, reveal that the City’s handgun murder rate has actually increased since the ban was enacted 1 and that Chicago residents now face one of the highest murder rates in the country and rates of other violent crimes that exceed the average in comparable cities. 2 Several of the Chicago petitioners have been the targets of threats and violence. For instance, Otis McDonald, who is in his late seventies, lives in a high-crime neighborhood. He is a community activist involved with alternative policing strategies, and his efforts to improve his neighborhood have subjected him to violent threats from drug dealers. App. 16-17; Brief for State Firearm Associations as Amici Curiae 20-21; Brief for State of Texas et al. as Amici Curiae 7-8. Colleen Lawson is a Chicago resident whose home has been targeted by burglars. “In Mrs. Lawson’s judgment, possessing a handgun in Chicago would decrease her chances of suffering serious injury or death should she ever be threatened again in her home.” 3 McDonald, Lawson, and the other Chicago petitioners own handguns that they store outside of the city limits, but they would like to keep their handguns in their homes for protection. See App. 16-19, 43-44 (McDonald), 20-24 (C. Lawson), 19, 36 (Orlov), 20-21, 40 (D. Lawson). *752 After our decision in Heller , the Chicago petitioners and two groups 4 filed suit against the City in the United States District Court for the Northern District of Illinois. They sought a declaration that the handgun ban and several related Chicago ordinances violate the Second and Fourteenth Amendments to the United States Constitution. Another action challenging the Oak Park law was filed in the same District Court by the National Rifle Association (NRA) and two Oak Park residents. In addition, the NRA and others filed a third action challenging the Chicago ordinances. All three cases were assigned to the same District Judge. The District Court rejected plaintiffs’ argument that the Chicago and Oak Park laws are unconstitutional. See App. 83-84; NRA, Inc. v. Oak Park, 617 F. Supp. 2d 752, 754 (ND Ill. 2008). The court noted that the Seventh Circuit had “squarely upheld the constitutionality of a ban on handguns a quarter century ago,” id., at 753 (citing Quilici v. Morton Grove, 695 F. 2d 261 (CA7 1982)), and that Heller had explicitly refrained from “opin[ing] on the subject of incorporation vel non of the Second Amendment,” NRA, 617 F. Supp. 2d, at 754 . The court observed that a district judge has a “duty to follow established precedent in the Court of Appeals to which he or she is beholden, even though the logic of more recent caselaw may point in a different direction.” Id., at 753 . The Seventh Circuit affirmed, relying on three 19th-century cases — 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) — that were decided in the wake of this Court’s interpretation of the Privileges or Immunities Clause of the Fourteenth Amendment in the Slaughter-House Cases, 16 Wall. 36 (1873). The Seventh Circuit described the rationale of those cases as “defunct” and recognized that they did not consider the question whether the *753 Fourteenth Amendment’s Due Process Clause incorporates the Second Amendment right to keep and bear arms. NRA, Inc. v. Chicago, 567 F. 3d 856, 857, 858 (2009). Nevertheless, the Seventh Circuit observed that it was obligated to follow Supreme Court precedents that have “direct application,” and it declined to predict how the Second Amendment would fare under this Court’s modern “selective incorporation” approach. Id., at 857-858 (internal quotation marks omitted). We granted, certiorari. 557 U. S. 965 (2009). II A Petitioners argue that the Chicago and Oak Park laws violate the right to keep and bear arms for two reasons. Petitioners’ primary submission is that this right is among the “privileges or immunities of citizens of the United States” and that the narrow interpretation of the Privileges or Immunities Clause adopted in the Slaughter-House Cases, supra, should now be rejected. As a secondary argument, petitioners contend that the Fourteenth Amendment’s Due Process Clause “incorporates” the Second Amendment right. Chicago and Oak Park (municipal respondents) maintain that a right set out in the Bill of Rights applies to the States only if that right is an indispensable attribute of any “ ‘civilized’ ” legal system. Brief for Municipal Respondents 9. If it is possible to imagine a civilized country that does not recognize the right, the municipal respondents tell us, then that right is not protected by due process. Ibid. And since there are civilized countries that ban or strictly regulate the private possession of handguns, the municipal respondents maintain that due process does not preclude such measures. Id., at 21-23. In light of the parties’ far-reaching arguments, we begin by recounting this Court’s analysis over the years of the relationship between the provisions of the Bill of Rights and the States. *754 B The Bill of Rights, including the Second Amendment, originally applied only to the Federal Government. In Barron ex rel. Tiernan v. Mayor of Baltimore, 7 Pet. 243 (1833), the Court, in an opinion by Chief Justice Marshall, explained that this question was “of great importance” but “not of much difficulty.” Id., at 247 . In less than four pages, the Court firmly rejected the proposition that the first eight Amendments operate as limitations on the States, holding that they apply only to the Federal Government. See also Lessee of Livingston v. Moore, 7 Pet. 469, 551-552 (1833) (“[I]t is now settled that those amendments [in the Bill of Rights] do not extend to the states”). The constitutional Amendments adopted in the aftermath of the Civil War fundamentally altered our country’s federal system. The provision at issue in this case, § 1 of the Fourteenth Amendment, provides, among other things, that a State may not abridge “the privileges or immunities of citizens of the United States” or deprive “any person of life, liberty, or property, without due process of law.” Four years after the adoption of the Fourteenth Amendment, this Court was asked to interpret the Amendment’s reference to “the privileges or immunities of citizens of the United States.” The Slaughter-House Cases, supra, involved challenges to a Louisiana law permitting the creation of a state-sanctioned monopoly on the butchering of animals within the city of New Orleans. Justice Samuel Miller’s opinion for the Court concluded that the Privileges or Immunities Clause protects only those rights “which owe their existence to the Federal government, its National character, its Constitution, or its laws.” Id., at 79. The Court held that other fundamental rights — rights that predated the creation of the Federal Government and that “the State governments were created to establish and secure” — were not protected by the Clause. Id., at 76. *755 In drawing a sharp distinction between the rights of federal and state citizenship, the Court relied on two principal arguments. First, the Court emphasized that the Fourteenth Amendment’s Privileges or Immunities Clause spoke of “the privileges or immunities of citizens of the United States,” and the Court contrasted this phrasing with the wording in the first sentence of the Fourteenth Amendment and in the Privileges and Immunities Clause of Article IV, both of which refer to state citizenship. 5 (Emphasis added.) Second, the Court stated that a contrary reading would “radically ehang[e] the whole theory of the relations of the State and Federal governments to each other and of both these governments to the people,” and the Court refused to conclude that such a change had been made “in the absence of language which expresses such a purpose too clearly to admit of doubt.” Id., at 78. Finding the phrase “privileges or immunities of citizens of the United States” lacking by this high standard, the Court reasoned that the phrase must mean something more limited. Under the Court’s narrow reading, the Privileges or Immunities Clause protects such things as the right “to come to the seat of government to assert any claim [a citizen] may have upon that government, to transact any business he may have with it, to seek its protection, to share its offices, to engage in administering its functions . . . [and to] become a citizen of any State of the Union by a bona fide residence therein, with the same rights as other citizens of that State.” Id., at 79-80 (internal quotation marks omitted). *756 Finding no constitutional protection against state intrusion of the kind envisioned by the Louisiana statute, the Court upheld the statute. Four Justices dissented. Justice Field, joined by Chief Justice Chase and Justices Swayne and Bradley, criticized the majority for reducing the Fourteenth Amendment’s Privileges or Immunities Clause to “a vain and idle enactment, which accomplished nothing, and most unnecessarily excited Congress and the people on its passage.” Id., at 96; see also id., at 104. Justice Field opined that the Privileges or Immunities Clause protects rights that are “in their nature . . . fundamental,” including the right of every man to pursue his profession without the imposition of unequal or discriminatory restrictions. Id., at 96-97 (internal quotation marks omitted). Justice Bradley’s dissent observed that “we are not bound to resort to implication ... to find an authoritative declaration of some of the most important privileges and immunities of citizens of the United States. It is in the Constitution itself.” Id., at 118. Justice Bradley would have construed the Privileges or Immunities Clause to include those rights enumerated in the Constitution as well as some unenumerated rights. Id., at 119. Justice Swayne described the majority’s narrow reading of the Privileges or Immunities Clause as “turn[ing] . . . what was meant for bread into a stone.” Id., at 129 (dissenting opinion). Today, many legal scholars dispute the correctness of the narrow Slaughter-House interpretation. See, e. g., Saenz v. Roe, 526 U. S. 489, 522, n. 1, 527 (1999) (Thomas, J., dissenting) (scholars of the Fourteenth Amendment agree “that the Clause does not mean what the Court said it meant in 1873”); Amar, Substance and Method in the Year 2000, 28 Pepper-dine L. Rev. 601, 631, n. 178 (2001) (“Virtually no serious modern scholar — left, right, and center — thinks that this [interpretation] is a plausible reading of the Amendment”); Brief for Constitutional Law Professors as Amici Curiae 33 (claiming an “overwhelming consensus among leading consti *757 tutional scholars” that the opinion is “egregiously wrong”); C. Black, A New Birth of Freedom 74-75 (1997). Three years after the decision in the Slaughter-House Cases , the Court decided Cruikshank , the first of the three 19th-century cases on which the Seventh Circuit relied. 92 U. S. 542 . In that case, the Court reviewed convictions stemming from the infamous Colfax Massacre in Louisiana on Easter Sunday 1873. Dozens of blacks, many unarmed, were slaughtered by a rival band of armed white men. 6 Cruikshank himself allegedly marched unarmed African-American prisoners through the streets and then had them summarily executed. 7 Ninety-seven men were indicted for participating in the massacre, but only nine went to trial. Six of the nine were acquitted of all charges; the remaining three were acquitted of murder but convicted under the Enforcement Act of 1870, 16 Stat. 140 , for banding and conspiring together to deprive their victims of various constitutional rights, including the right to bear arms. 8 The Court reversed all of the convictions, including those relating to the deprivation of the victims’ right to bear arms. Cruikshank, 92 U. S., at 553, 559 . The Court wrote that the right of bearing arms for a lawful purpose “is not a right granted by the Constitution” and is not “in any manner dependent upon that instrument for its existence.” Id., at 553 . “The second amendment,” the Court continued, “declares that it shall not be infringed; but this . . . means no more than that it shall not be infringed by Congress.” Ibid. “Our later decisions in Presser v. Illinois, 116 U. S. 252, 265 *758 (1886), and Miller v. Texas, 153 U. S. 535, 538 (1894), reaffirmed that the Second Amendment applies only to the Federal Government.” Heller, 554 U. S., at 620, n. 23 . C As previously noted, the Seventh Circuit concluded that Cruikshank, Presser, and Miller doomed petitioners’ claims at the Court of Appeals level. Petitioners argue, however, that we should overrule those decisions and hold that the right to keep and bear arms is one of the “privileges or immunities of citizens of the United States.” In petitioners’ view, the Privileges or Immunities Clause protects all of the rights set out in the Bill of Rights, as well as some others, see Brief for Petitioners 10, 14, 15-21, but petitioners are unable to identify the Clause’s full scope, Tr. of Oral Arg. 5-6, 8-11. Nor is there any consensus on that question among the scholars who agree that the Slaughter-House Cases’ interpretation is flawed. See Saenz, supra, at 522, n. 1 (Thomas, J., dissenting). We see no need to reconsider that interpretation here. For many decades, the question of the rights protected by the Fourteenth Amendment against state infringement has been analyzed under the Due Process Clause of that Amendment and not under the Privileges or Immunities Clause. We therefore decline to disturb the Slaughter-House holding. At the same time, however, this Court’s decisions in Cruikshank, Presser, and Miller do not preclude us from considering whether the Due Process Clause of the Fourteenth Amendment makes the Second Amendment right binding on the States. See Heller, 554 U. S., at 620, n. 23 . None of those cases “engage[d] in the sort of Fourteenth Amendment inquiry required by our later cases.” Ibid. As explained more fully below, Cruikshank, Presser, and Miller all preceded the era in which the Court began the process of “selective incorporation” under the Due Process Clause, and we have never previously addressed the question whether the *759 right to keep and bear arms applies to the States under that theory. Indeed, Cruikshank has not prevented us from holding that other rights that were at issue in that case are binding on the States through the Due Process Clause. In Cruikshank , the Court held that the general “right of the people peaceably to assemble for lawful purposes,” which is protected by the First Amendment, applied only against the Federal Government and not against the States. See 92 U. S., at 551-552 . Nonetheless, over 60 years later the Court held that the right of peaceful assembly was a “fundamental righ[t] . . . safeguarded by the due process clause of the Fourteenth Amendment.” De Jonge v. Oregon, 299 U. S. 353, 364 (1937). We follow the same path here and thus consider whether the right to keep and bear arms applies to the States under the Due Process Clause. D 1 In the late 19th century, the Court began to consider whether the Due Process Clause prohibits the States from infringing rights set out in the Bill of Rights. See Hurtado v. California, 110 U. S. 516 (1884) (due process does not require grand jury indictment); Chicago, B. & Q. R. Co. v. Chicago, 166 U. S. 226 (1897) (due process prohibits States from taking of private property for public use without just compensation). Five features of the approach taken during the ensuing era should be noted. First, the Court viewed the due process question as entirely separate from the question whether a right was a privilege or immunity of national citizenship. See Twining v. New Jersey, 211 U. S. 78, 99 (1908). Second, the Court explained that the only rights protected against state infringement by the Due Process Clause were those rights “of such a nature that they are included in the conception of due process of law.” Ibid. See also, e. g., Ad *760 amson v. California, 332 U. S. 46 (1947); Belts v. Brady, 316 U. S. 455 (1942); Palko v. Connecticut, 302 U. S. 319 (1937); Grosjean v. American Press Co., 297 U. S. 233 (1936); Powell v. Alabama, 287 U. S. 45 (1932). While it was “possible that some of the personal rights safeguarded by the first eight Amendments against National action [might] also be safeguarded against state action,” the Court stated, this was “not because those rights are enumerated in the first eight Amendments.” Twining, 211 U. S., at 99 . The Court used different formulations in describing the boundaries of due process. For example, in Twining , the Court referred to “immutable principles of justice which inhere in the very idea of free government which no member of the Union may disregard.” Id., at 102 (internal quotation marks omitted). In Snyder v. Massachusetts, 291 U. S. 97, 105 (1934), the Court spoke of rights that are “so rooted in the traditions and conscience of our people as to be ranked as fundamental.” And in Palko , the Court famously said that due process protects those rights that are “the very essence of a scheme of ordered liberty” and essential to “a fair and enlightened system of justice.” 302 U. S., at 325 . Third, in some cases decided during this era the Court “can be seen as having asked, when inquiring into whether some particular procedural safeguard was required of a State, if a civilized system could be imagined that would not accord the particular protection.” Duncan v. Louisiana, 391 U. S. 145, 149, n. 14 (1968). Thus, in holding that due process prohibits a State from taking private property without- just compensation, the Court described the right as “a principle of natural equity, recognized by all temperate and civilized governments, from a deep and universal sense of its justice.” Chicago, B. & Q. R. Co., supra, at 238. Similarly, the Court found that due process did not provide a right against compelled incrimination in part because this right “has no place in the jurisprudence of civilized and free *761 countries outside the domain of the common law.” Twining, supra, at 113 . Fourth, the Court during this era was not hesitant to hold that a right set out in the Bill of Rights failed to meet the test for inclusion within the protection of the Due Process Clause. The Court found that some such rights qualified. See, e. g., Gitlow v. New York, 268 U. S. 652, 666 (1925) (freedom of speech and press); Near v. Minnesota ex rel. Olson, 283 U. S. 697 (1931) (same); Powell, supra (assistance of counsel in capital cases); De Jonge, supra (freedom of assembly); Cantwell v. Connecticut, 310 U. S. 296 (1940) (free exercise of religion). But others did not. See, e. g., Hurtado, supra (grand jury indictment requirement); Twining, supra (privilege against self-incrimination). Finally, even when a right set out in the Bill of Rights was held to fall within the conception of due process, the protection or remedies afforded against state infringement sometimes differed from the protection or remedies provided against abridgment by the Federal Government. To give one example, in Betts the Court held that, although the Sixth Amendment required the appointment of counsel in all federal criminal cases in which the defendant was unable to retain an attorney, the Due Process Clause required appointment of counsel in state criminal proceedings only where “want of counsel in [the] particular case . . . resulted] in a conviction lacking in . . . fundamental fairness.” 316 U. S., at 473 . Similarly, in Wolf v. Colorado, 338 U. S. 25 (1949), the Court held that the “core of the Fourth Amendment” was implicit in the concept of ordered liberty and thus “enforceable against the States through the Due Process Clause” but that the exclusionary rule, which applied in federal cases, did not apply to the States. Id., at 27-28, 33 . 2 An alternative theory regarding the relationship between the Bill of Rights and § 1 of the Fourteenth Amendment was *762 championed by Justice Black. This theory held that § 1 of the Fourteenth Amendment totally incorporated all of the provisions of the Bill of Rights. See, e. g., Adamson, supra, at 71-72 (Black, J., dissenting); Duncan, supra, at 166 (Black, J., concurring). As Justice Black noted, the chief congressional proponents of the Fourteenth Amendment espoused the view that the Amendment made the Bill of Rights applicable to the States and, in so doing, overruled this Court’s decision in Bar ron. 9 Adamson, supra, at 72 (dissenting opinion). 10 None *763 theless, the Court never has embraced Justice Black’s “total incorporation” theory. 3 While Justice Black’s theory was never adopted, the Court eventually moved in that direction by initiating what has been called a process of “selective incorporation,” i. e., the Court began to hold that the Due Process Clause fully incorporates particular rights contained in the first eight Amendments. See, e. g., Gideon v. Wainwright, 372 U. S. 335, 341 (1963); Malloy v. Hogan, 378 U. S. 1, 5-6 (1964); Pointer v. Texas, 380 U. S. 400, 403-404 (1965); Washington v. Texas, 388 U. S. 14, 18 (1967); Duncan, 391 U. S., at 147-148 ; Benton v. Maryland, 395 U. S. 784, 794 (1969). *764 The decisions during this time abandoned three of the previously noted characteristics of the earlier period. 11 The Court made it clear that the governing standard is not whether any “civilized, system [can] be imagined that would not accord the particular protection.” Duncan, 391 U. S., at 149, n. 14 . Instead, the Court inquired whether a particular Bill of Rights guarantee is fundamental to our scheme of ordered liberty and system of justice. Id., at 149 , and n. 14; see also id., at 148 (referring to those “fundamental principles of liberty and justice which lie at the base of all our civil and political institutions” (emphasis added; internal quotation marks omitted)). The Court also shed any reluctance to hold that rights guaranteed by the Bill of Rights met the requirements for protection under the Due Process Clause. The Court eventually incorporated almost all of the provisions of the Bill of Rights. 12 *765 Only a handful of the Bill of Rights protections remain unincorporated. 13 Finally, the Court abandoned “the notion that the Fourteenth Amendment applies to the States only a watered-down, subjective version of the individual guarantees of the Bill of Rights,” stating that it would be “incongruous” to apply different standards “depending on whether the claim was asserted in a state or federal court.” Malloy, 378 U. S., at 10-11 (internal quotation marks omitted). Instead, the Court decisively held that incorporated Bill of Rights protections “are all to be enforced against the States under the Fourteenth Amendment according to the same standards that protect those personal rights against federal encroachment.” Id., at 10 ; see also Mapp v. Ohio, 367 U. S. 643, 655-656 (1961); Ker v. California, 374 U. S. 23, 33-34 (1963); *766 Aguilar v. Texas, 378 U. S. 108, 110 (1964); Pointer, 380 U. S., at 406 ; Duncan, supra, at 149, 157-158 ; Benton, 395 U. S., at 794-795 ; Wallace v. Jaffree, 472 U. S. 38, 48-49 (1985). 14 Employing this approach, the Court overruled earlier decisions in which it had held that particular Bill of Rights guarantees or remedies did not apply to the States. See, e. g., Mapp, supra (overruling in part Wolf 338 U. S. 25 ); Gideon, 372 U. S. 335 (overruling Betts, 316 U. S. 455 ); Malloy, supra (overruling Adamson, 332 U. S. 46 , and Twining, 211 U. S. 78 ); Benton, 395 U. S., at 794 (overruling Palko, 302 U. S. 319 ). *767 III With this framework in mind, we now turn directly to the question whether the Second Amendment right to keep and bear arms is incorporated in the concept of due process. In answering that question, as just explained, we must 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). A 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, 15 and in Heller , we held that individual self-defense is “the central component” of the Second Amendment right. 554 U. S., at 599 ; see also id., at 628 (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 628-629 (some internal quotation marks omitted); see also id., at 628 (noting that handguns are “overwhelmingly chosen by American society for [the] lawful purpose” of self-defense); id., at 629 (“[T]he American people have considered the handgun to be the quintessential self-defense weapon”). Thus, we concluded, *768 citizens must be permitted “to use [handguns] for the core lawful purpose of self-defense.” Id., at 630 .

Justice Scalia, concurring. I join the Court’s opinion. Despite my misgivings about substantive due process as an original matter, I have acquiesced in the Court’s incorporation of certain guarantees in the Bill of Rights “because it is both long established and narrowly limited.” Albright v. Oliver, 510 U. S. 266, 275 (1994) (Scalia, J., concurring). This case does not require me to reconsider that view, since straightforward application of settled doctrine suffices to decide it. I write separately only to respond to some aspects of Justice Stevens’ dissent. Not that aspect which disagrees with the majority’s application of our precedents to this case, *792 which is fully covered by the Court’s opinion. But much of what Justice Stevens writes is a broad condemnation of the theory of interpretation which underlies the Court’s opinion, a theory that makes the traditions of our people paramount. He proposes a different theory, which he claims is more “cautiou[s]” and respectful of proper limits on the judicial role. Post, at 912. It is that claim I wish to address. I A After stressing the substantive dimension of what he has renamed the “liberty clause,” post, at 861-864, 1 Justice Stevens proceeds to urge readoption of the theory of incorporation articulated in Palko v. Connecticut, 302 U. S. 319, 325 (1937), see post, at 871-877. But in fact he does not favor application of that theory at all. For whether Palko requires only that “a fair and enlightened system of justice would be impossible without” the right sought to be incorporated, 302 U. S., at 325 , or requires in addition that the right be rooted in the “traditions and conscience of our people,” ibid, (internal quotation marks omitted), many of the rights Justice Stevens thinks are incorporated could not pass muster under either test: abortion, post, at 864 (citing Planned Parenthood of Southeastern Pa. v. Casey, 505 U. S. 833, 847 (1992)); homosexual sodomy, post, at 873 (citing Lawrence v. Texas, 539 U. S. 558, 572 (2003)); the right to have excluded from criminal trials evidence obtained in violation of the Fourth Amendment, post, at 875 (citing Mapp v. Ohio, 367 U. S. 643, 650, 655-657 (1961)); and the right to teach one’s *793 children foreign languages, post, at 864 (citing Meyer v. Nebraska, 262 U. S. 390, 399-403 (1923)), among others. That Justice Stevens is not applying any version of Palko is clear from comparing, on the one hand, the rights he believes are covered, with, on the other hand, his conclusion that the right to keep and bear arms is not covered. Rights that pass his test include not just those “relating to marriage, procreation, contraception, family relationships, and child rearing and education,” but also rights against “[government action that shocks the conscience, pointlessly infringes settled expectations, trespasses into sensitive private realms or life choices without adequate justification, [or] perpetrates gross injustice. ” Post, at 879 (internal quotation marks omitted). Not all such rights are in, however, since only “some fundamental aspects of personhood, dignity, and the like” are protected, post, at 880 (emphasis added). Exactly what is covered is not clear. But whatever else is in, he knows that the right to keep and bear arms is out, despite its being as “deeply rooted in this Nation’s history and tradition,” Washington v. Glucksberg, 521 U. S. 702, 721 (1997) (internal quotation marks omitted), as a right can be, see District of Columbia v. Heller, 554 U. S. 570, 593-595, 599, 603, 614-616 (2008). I can find no other explanation for such certitude except that Justice Stevens, despite his forswearing of “personal and private notions,” post, at 878 (internal quotation marks omitted), deeply believes it should be out. The subjective nature of Justice Stevens’ standard is also apparent from his claim that it is the courts’ prerogative — indeed their duty — to update the Due Process Clause so that it encompasses new freedoms the Framers were too narrowminded to imagine, post, at 875-877, and n. 21. Courts, he proclaims, must “do justice to [the Clause’s] urgent call and its open texture” by exercising the “interpretive discretion the latter embodies. ” Post, at 877. (Why the people are not up to the task of deciding what new rights to *794 protect, even though it is they who are authorized to. make changes, see U. S. Const., Art. V, is never explained. 2 ) And it would be “judicial abdication” for a judge to “tur[n] his back” on his task of determining what the Fourteenth Amendment covers by “outsourc[ing]” the job to “historical sentiment,” post, at 876,877 — that is, by being guided by what the American people throughout our history have thought. It is only we judges, exercising our “own reasoned judgment,” post, at 872, who can be entrusted with deciding the Due Process Clause’s scope — which rights serve the Amendment’s “central values,” post, at 88(b — which basically means picking the rights we want to protect and discarding those we do not. B Justice Stevens resists this description, insisting that his approach provides plenty of “guideposts” and “constraints” to keep courts from “injecting excessive subjectivity” into the process. 3 Post, at 877,878. Plenty indeed — and *795 that alone is a problem. The ability of omnidirectional guideposts to constrain is inversely proportional to their number. But even individually, each lodestar or limitation he lists either is incapable of restraining judicial whimsy or cannot be squared with the precedents he seeks to preserve. He begins with a brief nod to history, post, at 877-878, but as he has just made clear, he thinks historical inquiry unavailing, post, at 874-877. Moreover, trusting the meaning of the Due Process Clause to what has historically been protected is circular, see post, at 875-876, since that would mean no new rights could get in. Justice Stevens moves on to the “most basic” constraint on subjectivity his theory offers: that he would “esche[w] attempts to provide any all-purpose, top-down, totalizing theory of 'liberty.’ ” Post, at 878. The notion that the absence of a coherent theory of the Due Process Clause will somehow curtail judicial caprice is at war with reason. Indeterminacy means opportunity for courts to impose whatever rule they like; it is the problem, not the solution. The idea that interpretive pluralism would reduce courts’ ability to impose their will on the ignorant masses is not merely naive, but absurd. If there are no right answers, there are no wrong answers either. Justice Stevens also argues that requiring courts to show “respect for the democratic process” should serve as a constraint. Post, at 880. That is true, but Justice Stevens would have them show respect in an extraordinary manner. In his view, if a right “is already being given careful consideration in, and subjected to ongoing calibration by, the States, judicial enforcement may not be appropriate.” Ibid. In other words, a right, such as the right to keep and bear arms, that has long been recognized but on which the States are considering restrictions, apparently deserves less protection, while a privilege the political branches (instruments of the democratic process) have withheld entirely and continue to withhold, deserves more. That topsy-turvy ap *796 proach conveniently accomplishes the objective of ensuring that the rights this Court held protected in Casey, Lawrence, and other such cases fit the theory — but at the cost of insulting rather than respecting the democratic process. The next constraint Justice Stevens suggests is harder to evaluate. He describes as “an important tool for guiding judicial discretion” “sensitivity to the interaction between the intrinsic aspects of liberty and the practical realities of contemporary society.” Post, at 880. I cannot say whether that sensitivity will really guide judges because I have no idea what it is. Is it some sixth sense instilled in judges when they ascend to the bench? Or does it mean judges are more constrained when they agonize about the cosmic conflict between liberty and its potentially harmful consequences? Attempting to give the concept more precision, Justice Stevens explains that “sensitivity is an aspect of a deeper principle: the need to approach our work with humility and caution.” Post, at 881. Both traits are undeniably admirable, though what relation they bear to sensitivity is a mystery. But it makes no difference, for the first case Justice Stevens cites in support, see ibid., Casey, 505 U. S., at 849 , dispels any illusion that he has a meaningful form of judicial modesty in mind. Justice Stevens offers no examples to illustrate the next constraint: stare decisis, post, at 881. But his view of it is surely not very confining, since he holds out as a “canonical” exemplar of the proper approach, see post, at 873, 909, Lawrence , which overruled a case decided a mere 17 years earlier, Bowers v. Hardwick, 478 U. S. 186 (1986), see 539 U. S., at 578 (it “was not correct when it was decided, and it is not correct today”). Moreover, Justice Stevens would apply that constraint unevenly: He apparently approves those Warren Court cases that adopted jot-for-jot incorporation of procedural protections for criminal defendants, post, at 868, but would abandon those Warren Court rulings that undercut his *797 approach to substantive rights, on the basis that we have “cut back” on cases from that era before, post, at 869. Justice Stevens also relies on the requirement of a “careful description of the asserted fundamental liberty interest” to limit judicial discretion. Post, at 882 (internal quotation marks omitted). I certainly agree with that requirement, see Reno v. Flores, 507 U. S. 292, 302 (1993), though some cases Justice Stevens approves have not applied it seriously, see, e. g., Lawrence, supra, at 562 (“The instant case involves liberty of the person both in its spatial and in its more transcendent dimensions”). But if the “careful description” requirement is used in the manner we have hitherto employed, then the enterprise of determining the Due Process Clause’s “conceptual core,” post, at 879, is a waste of time. In the cases he cites we sought a careful, specific description of the right at issue in order to determine whether that right, thus narrowly defined, was fundamental. See, e. g., Glucksberg, 521 U. S., at 722-728 ; Reno, supra, at 302-306 ; Collins v. Harker Heights, 503 U. S. 115, 125-129 (1992); Cruzan v. Director, Mo. Dept. of Health, 497 U. S. 261, 269-279 (1990); see also Vacco v. Quill, 521 U. S. 793, 801-808 (1997). The threshold step of defining the asserted right with precision is entirely unnecessary, however, if (as Justice Stevens maintains) the “conceptual core” of the “liberty clause,” post, at 879, includes a number of capacious, hazily defined categories. There is no need to define the right with much precision in order to conclude that it pertains to the plaintiff’s “ability independently to define [his] identity,” his “right to make certain unusually important decisions that will affect his own, or his family’s, destiny,” or some aspect of his “[s]elf-determination, bodily integrity, freedom of conscience, intimate relationships, political equality, dignity [or] respect.” Post, at 879, 880 (internal quotation marks omitted). Justice Stevens must therefore have in mind some other use for the careful- *798 description requirement — perhaps just as a means of ensuring that courts “procee[d] slowly and incrementally,” post, at 881. But that could be achieved just as well by having them draft their opinions in longhand. 4 II If Justice Stevens’ account of the constraints of his approach did not demonstrate that they do not exist, his application of that approach to the case before us leaves no doubt. He offers several reasons for concluding that the Second Amendment right to keep and bear arms is not fundamental enough to be applied against the States. 5 None is persuasive, but more pertinent to my purpose, each is either intrinsically indeterminate, would preclude incorporation of rights we have already held incorporated, or both. His approach *799 therefore does nothing to stop a judge from arriving at any conclusion he sets out to reach. Justice Stevens begins with the odd assertion that “firearms have a fundamentally ambivalent relationship to liberty,” since sometimes they are used to cause (or sometimes accidentally produce) injury to others. Post, at 891. The source of the rule that only nonambivalent liberties deserve due process protection is never explained — proof that judges applying Justice Stevens’ approach can add new elements to the test as they see fit. The criterion, moreover, is inherently manipulable. Surely Justice Stevens does not mean that the Clause covers only rights that have zero harmful effect on anyone. Otherwise even the First Amendment is out. Maybe what he means is that the right to keep and bear arms imposes too great a risk to others’ physical well-being. But as the plurality explains, ante, at 782-783, other rights we have already held incorporated pose similarly substantial risks to public safety. In all events, Justice Stevens supplies neither a standard for how severe the impairment on others’ liberty must be for a right to be disqualified, nor (of course) any method of measuring the severity. Justice Stevens next suggests that the Second Amendment right is not fundamental because it is “different in kind” from other rights we have recognized. Post, at 893. In one respect, of course, the right to keep and bear arms is different from some other rights we have held the Clause protects and he would recognize: It is deeply grounded in our Nation’s history and tradition. But Justice Stevens has a different distinction in mind: Even though he does “not doubt for a moment that many Americans ... see [firearms] as critical to their way of life as well as to their security,” he pronounces that owning a handgun is not “critical to leading a life of autonomy, dignity, or political equality.” 6 Ibid. *800 Who says? Deciding what is essential to an enlightened, liberty-filled life is an inherently political, moral judgment— the antithesis of an objective approach that reaches conclusions by applying neutral rules to verifiable evidence. 7 No determination of what rights the Constitution of the United States covers would be complete, of course, without a survey of what other countries do. Post, at 895-896. When it comes to guns, Justice Stevens explains, our Nation is already an outlier among “advanced democracies”; not even our “oldest allies” protect as robust a right as we do, and we should not widen the gap. Ibid. Never mind that he explains neither which countries qualify as “advanced democracies” nor why others are irrelevant. For there is an even clearer indication that this criterion lets judges pick which rights States must respect and those they can ignore: As the plurality shows, ante, at 781-782, and nn. 28-29, this follow-the-foreign-crowd requirement would foreclose rights *801 that we have held (and Justice Stevens accepts) are incorporated, but that other “advanced” nations do not recognize — from the exclusionary rule to the Establishment Clause. A judge applying Justice Stevens’ approach must either throw all of those rights overboard or, as cases Justice Stevens approves have done in considering unenumerated rights, simply ignore foreign law when it undermines the desired conclusion, see, e. g., Casey, 505 U. S. 833 (making no mention of foreign law). Justice Stevens also argues that since the right to keep and bear arms was codified for the purpose of “preventing] elimination of the militia,” it should be viewed as “ ‘a federalism provision’ ” logically incapable of incorporation. Post, at 897 (quoting Elk Grove Unified School Dist. v. Newdow, 542 U. S. 1, 45 (2004) (Thomas, J., concurring in judgment); some internal quotation marks omitted). This criterion, too, evidently applies only when judges want it to. The opinion Justice Stevens quotes for the “federalism provision” principle, Justice Thomas’s concurrence in Newdow , argued that incorporation of the Establishment Clause “makes little sense” because that Clause was originally understood as a limit, on congressional interference with state establishments of religion. Id., at 49-51 . Justice Stevens, of course, has no problem with applying the Establishment Clause to the States. See, e. g., id., at 8, n. 4 (opinion for the Court by Stevens, J.) (acknowledging that the Establishment Clause “appl[ies] to the States by incorporation into the Fourteenth Amendment”). While he insists that Clause is not a “federalism provision,” post, at 897, n. 40, he does not explain why it is not, but the right to keep and bear arms is (even though only the latter refers to a “right of the people”). The “federalism” argument prevents the incorporation of only certain rights. Justice Stevens next argues that even if the right to keep and bear arms is “deeply rooted in some important senses,” the roots of States’ efforts to regulate guns run just as deep. Post, at 899 (internal quotation marks omitted). *802 But this too is true of other rights we have held incorporated. No fundamental right — not even the First Amendment — is absolute. The traditional restrictions go to show the scope of the right, not its lack of fundamental character. At least that is what they show (Justice Stevens would agree) for other rights. Once again, principles are applied selectively. Justice Stevens’ final reason for rejecting incorporation of the Second Amendment reveals, more clearly than any of the others, the game that is afoot. Assuming that there is a “plausible constitutional basis” for holding that the right to keep and bear arms is incorporated, he asserts that we ought not to do so for prudential reasons. Post, at 902. Even if we had the authority to withhold rights that are within the Constitution’s command (and we assuredly do not), two of the reasons Justice Stevens gives for abstention show just how much power he would hand to judges. The States’ “right to experiment” with solutions to the problem of gun violence, he says, is at its apex here because “the best solution is far from clear.” Post, at 902-903 (internal quotation marks omitted). That is true of most serious social problems — whether, for example, “the best solution” for rampant crime is to admit confessions unless they are affirmatively shown to have been coerced, but see Miranda v. Arizona, 384 U. S. 436, 444-445 (1966), or to permit jurors to impose the death penalty without a requirement that they be free to consider “any relevant mitigating factor,” see Eddings v. Oklahoma, 455 U. S. 104, 112 (1982), which in turn leads to the conclusion that defense counsel has provided inadequate defense if he has not conducted a “reasonable investigation” into potentially mitigating factors, see, e. g., Wiggins v. Smith, 539 U. S. 510, 534 (2003), inquiry into which question tends to destroy any prospect of prompt justice, see, e. g., Wong v. Belmontes, 558 U. S. 15 (2009) (per curiam) (reversing grant of habeas relief for sentencing on a crime committed in 1981). The obviousness of the optimal answer is *803 in the eye of the beholder. The implication of Justice Stevens’ call for abstention is that if We The Court conclude that They The People’s answers to a problem are silly, we are free to “interven[e],” post, at 902, but if we too are uncertain of the right answer, or merely think the States may be on to something, we can loosen the leash. A second reason Justice Stevens says we should abstain is that the States have shown they are “capable” of protecting the right at issue, and if anything have protected it too much. Post, at 904. That reflects an assumption that judges can distinguish between a proper democratic decision to leave things alone (which we should honor), and a case of democratic market failure (which we should step in to correct). I would not — and no judge should — presume to have that sort of omniscience, which seems to me far more “arrogant,” post, at 896, than confining courts’ focus to our own national heritage. Ill Justice Stevens’ response to this concurrence, post, at 906-911, makes the usual rejoinder of “living Constitution” advocates to the criticism that it empowers judges to eliminate or expand what the people have prescribed: The traditional, historically focused method, he says, reposes discretion in judges as well. 8 Historical analysis can be difficult; it sometimes requires resolving threshold questions, and making nu *804 anced judgments about which evidence to consult and how to interpret it. I will stipulate to that. 9 But the question to be decided is not whether the historically focused method is a perfect means of restraining aristocratic judicial Constitution-writing; but whether it is the best means available in an imperfect world. Or indeed, even more narrowly than that: whether it is demonstrably much better than what Justice Stevens proposes. I think it beyond all serious dispute that it is much less subjective, and intrudes much less upon the democratic process. It is less subjective because it depends upon a body of evidence susceptible of reasoned analysis rather than a variety of vague ethico-political First Principles whose combined conclusion can be found to point in any direction the judges favor. In the most controversial matters brought before this Court — for example, the constitutionality of prohibiting abortion, assisted suicide, or homosexual sodomy, or the constitutionality of the death penalty — any historical methodology, under any plausible standard of proof, would lead to the same conclusion. 10 Moreover, the methodological differences that divide historians, and the varying interpretive assumptions they bring to their work, post, at 907-908, are nothing compared to the differences among the American people (though perhaps not among graduates of prestigious law schools) with regard to the moral judgments Justice Stevens would have courts pronounce. And whether or not special expertise is needed *805 to answer historical questions, judges most certainly have no “comparative ... advantage,” post, at 880 (internal quotation marks omitted), in resolving moral disputes. What is more, his approach would not eliminate, but multiply, the hard questions courts must confront, since he would not replace history with moral philosophy, but would have courts consider both. And the Court’s approach intrudes less upon the democratic process because the rights it acknowledges are those established by a constitutional history formed by democratic decisions; and the rights it fails to acknowledge are left to be democratically adopted or rejected by the people, with the assurance that their decision is not subject to judicial revision. Justice Stevens’ approach, on the other hand, deprives the people of that power, since whatever the Constitution and laws may say, the list of protected rights will be whatever courts wish it to be. After all, he notes, the people have been wrong before, post, at 910, and courts may conclude they are wrong in the future. Justice Stevens abhors a system in which “majorities or powerful interest groups always get their way,” post, at 911, but replaces it with a system in which unelected and life-tenured judges always get their way. That such usurpation is effected unabashedly, see post, at 908 — with “the judge’s cards . . . laid on the table,” ibid. — makes it even worse. In a vibrant democracy, usurpation should have to be accomplished in the dark. It is Justice Stevens’ approach, not the Court’s, that puts democracy in peril. I do not entirely understand Justice Stevens’ renaming of the Due Process Clause. What we call it, of course, does not change what the Clause says, but shorthand should not obscure what it says. Accepting for argument’s sake the shift in emphasis — from avoiding certain deprivations without that “process” which is “due,” to avoiding the deprivations themselves — the Clause applies not just to deprivations of “liberty,” but also to deprivations of “life” and even “property.” Justice Stevens insists that he would not make courts the sole interpreters of the “liberty clause”; he graciously invites “[a]ll Americans” to ponder what the Clause means to them today. Post, at 877, n. 22. The problem is that in his approach the people’s ponderings do not matter, since whatever the people decide, courts have the last word. Justice Breyer is not worried by that prospect. His interpretive approach applied to incorporation of the Second Amendment includes consideration of such factors as “the extent to which incorporation will further other, perhaps more basic, constitutional aims; and the extent to which incorporation will advance or hinder the Constitution’s structural aims”; whether recognizing a particular right will “further the Constitution’s effort to ensure that the government treats each individual with equal respect” or will “help maintain the democratic form of government”; whether it is “inconsistent . . . with the Constitution’s efforts to create governmental institutions well suited to the carrying out of its constitutional promises”; whether it fits with “the Framers’ basic reason for believing the Court ought to have the power of judicial review”; courts’ comparative advantage in answering empirical questions that may be involved in applying the right; and whether there is a “strong offsetting justification” for removing a decision from the democratic process. Post, at 918, 922-927 (dissenting opinion). After defending the careful-description criterion, Justice Stevens quickly retreats and cautions courts not to apply it too stringently. Post, at 882. Describing a right too specifically risks robbing it of its “universal valence and a moral force it might otherwise have,” ibid., and “loads the dice against its recognition,” post, at 882, n. 25 (internal quotation marks omitted). That must be avoided, since it endangers rights Justice Stevens does like. See ibid, (discussing Lawrence v. Texas, 539 U. S. 558 (2003)). To make sure those rights get in, we must leave leeway in our description, so that a right that has not itself been recognized as fundamental can ride the coattails of one that has been. Justice Stevens claims that I mischaracterize his argument by referring to the Second Amendment right to keep and bear arms, instead of “the interest in keeping a firearm of one’s choosing in the home,” the right he says petitioners assert. Post, at 894, n. 36. But it is precisely the “Second Amendment right to keep and bear arms” that petitioners argue is incorporated by the Due Process Clause. See, e.g., Pet. for Cert. i. Under Justice Stevens’ own approach, that should end the matter. See post, at 882 (“[W]e must pay close attention to the precise liberty interest the litigants have asked us to vindicate”). In any event, the demise of watered-down incorporation, see ante, at 765-766, means that we no longer subdivide Bill of Rights guarantees into their theoretical components, only some of which apply to the States. The First Amendment freedom of speech is incorporated — not the freedom to speak on Fridays, or to speak about philosophy. Justice Stevens goes a step further still, suggesting that the right to keep and bear arms is not protected by the “liberty clause” because it *800 is not really a liberty at all, but a “property right.” Post, at 894. Never mind that the right to bear arms sounds mighty like a liberty; and never mind that the “liberty clause” is really a Due Process Clause which explicitly protects “property,” see United States v. Carlton, 512 U. S. 26, 41-42 (1994) (Scalia, J., concurring in judgment). Justice Stevens’ theory cannot explain why the Takings Clause, which unquestionably protects property, has been incorporated, see Chicago, B. & Q. R. Co. v. Chicago, 166 U. S. 226, 241 (1897), in a decision he appears to accept, post, at 871, n. 14. As Justice Stevens notes, see post, at 906-907,1 accept as a matter of stare decisis the requirement that to be fundamental for purposes of the Due Process Clause, a right must be “implicit in the concept of ordered liberty,” Lawrence, supra, at 593, n. 3 (Scalia, J., dissenting) (internal quotation marks omitted). But that inquiry provides infinitely less scope for judicial invention when conducted under the Court’s approach, since the field of candidates is immensely narrowed by the prior requirement that a right be rooted in this country’s traditions. Justice Stevens, on the other hand, is free to scan the universe for rights that he thinks “implicit in the concept,” etc. The point Justice Stevens makes here is merely one example of his demand that a historical approach to the Constitution prove itself, not merely much better than his in restraining judicial invention, but utterly perfect in doing so. See Part III, infra. Justice Stevens also asserts that his approach is “more faithful to this Nation’s constitutional history” and to “the values and commitments of the American people, as they stand today,” post, at 909. But what he asserts to be the proof of this is that his approach aligns (no surprise) with those eases he approves (and dubs “canonical,” ibid.). Cases he disfavors are discarded as “hardly bind[ing]” “excesses,” post, at 869, or less “enduring,” post, at 873, n. 16. Not proven. Moreover, whatever relevance Justice Stevens ascribes to current “values and commitments of the American people” (and that is unclear, see post, at 903-904, n. 47), it is hard to see how it shows fidelity to them that he disapproves a different subset of old cases than the Court does. That is not to say that every historical question on which there is room for debate is indeterminate, or that every question on which historians disagree is equally balanced. Cf. post, at 907-908. For example, the historical analysis of the principal dissent in Heller is as valid as the Court’s only in a two-dimensional world that conflates length and depth. By the way, Justice Stevens greatly magnifies the difficulty of a historical approach by suggesting that it was my burden in Lawrence to show the “ancient roots of proscriptions against sodomy,” post, at 908 (internal quotation marks omitted). Au contraire, it was his burden (in the opinion he joined) to show the ancient roots of the right of sodomy.

Justice Thomas, concurring in part and concurring in the judgment. I agree with the Court that the Fourteenth Amendment makes the right to keep and bear arms set forth in the Second Amendment “fully applicable to the States.” Ante, at 750. I write separately because I believe there is a more straightforward path to this conclusion, one that is more *806 faithful to the Fourteenth Amendment’s text and history. I therefore do not join Parts II-C, IV, and V of the principal opinion. Applying what is now a well-settled test, the Court concludes that the right to keep and bear arms applies to the States through the Fourteenth Amendment’s Due Process Clause because it is “fundamental” to the American “scheme of ordered liberty,” ante, at 767 (citing Duncan v. Louisiana, 391 U. S. 145, 149 (1968)), and “ 'deeply rooted in this Nation’s history and tradition,’ ” ante, at 767 (quoting Washington v. Glucksberg, 521 U. S. 702, 721 (1997)). I agree with that description of the right. But I cannot agree that it is enforceable against the States through a Clause that speaks only to “process.” Instead, the right to keep and bear arms is a privilege of American citizenship that applies to the States through the Fourteenth Amendment’s Privileges or Immunities Clause. I In District of Columbia v. Heller, 554 U. S. 570 (2008), this Court held that the Second Amendment protects an individual right to keep and bear arms for the purpose of self-defense, striking down a District of Columbia ordinance that banned the possession of handguns in the home. Id., at 635 . The question in this case is whether the Constitution protects that right against abridgment by the States. As the Court explains, if this case were litigated before the Fourteenth Amendment’s adoption in 1868, the answer to that question would be simple. In Barron ex rel. Tiernan v. Mayor of Baltimore, 7 Pet. 243 (1833), this Court held that the Bill of Rights applied only to the Federal Government. Writing for the Court, Chief Justice Marshall recalled that the founding generation added the first eight Amendments to the Constitution in response to Antifederalist concerns regarding the extent of federal — not state — power, and held that if “the framers of these amendments [had] intended them to be limitations on the powers of the state govern *807 ments,” “they would have declared this purpose in plain and intelligible language.” Id., at 250 . Finding no such language in the Bill of Rights, Chief Justice Marshall held that it did not in any way restrict state authority. Id., at 248-250 ; see Lessee of Livingston v. Moore, 7 Pet. 469, 551-552 (1833) (reaffirming Barron’s holding); Permoli v. Municipality No. 1 of New Orleans, 3 How. 589, 609-610 (1845) (same). Nearly three decades after Barron, the Nation was splintered by a civil war fought principally over the question of slavery. As was evident to many throughout our Nation’s early history, slavery, and the measures designed to protect it, were irreconcilable with the principles of equality, government by consent, and inalienable rights proclaimed by the Declaration of Independence and embedded in our constitutional structure. See, e. g., 3 Records of the Federal Convention of 1787, p. 212 (M. Farrand ed. 1911) (remarks of Luther Martin) (“[S]lavery is inconsistent with the genius of republicanism, and has a tendency to destroy those principles on which it is supported, as it lessens the. sense of the equal rights of mankind” (emphasis deleted)); A. Lincoln, Speech at Peoria, Ill. (Oct. 16, 1854), reprinted in 2 The Collected Works of Abraham Lincoln 266 (R. Basler ed. 1953) (“[N]o man is good enough to govern another man, without that other’s consent. I say this is the leading principle — the sheet anchor of American republicanism. . . . Now the relation of masters and slaves is, pro tanto, a total violation of this principle”). After the war, a series of constitutional amendments were adopted to repair the Nation from the damage slavery had caused. The provision at issue here, § 1 of the Fourteenth Amendment, significantly altered our system of government. The first sentence of that section provides that “[a]ll persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.” This unambiguously overruled this Court’s contrary holding in Dred Scott v. Sand- *808 ford, 19 How. 393 (1857), that the Constitution did not recognize black Americans as citizens of the United States or their own State. Id., at 405-406 . The meaning of § l’s next sentence has divided this Court for many years. That sentence begins with the command that “[n]o State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.” On its face, this appears to grant the persons just made United States citizens a certain collection of rights— i. e., privileges or immunities — attributable to that status. This Court’s precedents accept that point, but define the relevant collection of rights quite narrowly. In the Slaughter-House Cases, 16 Wall. 36 (1873), decided just five years after the Fourteenth Amendment’s adoption, the Court interpreted this text, now known as the Privileges or Immunities Clause, for the first time. In a closely divided decision, the Court drew a sharp distinction between the privileges and immunities of state citizenship and those of federal citizenship, and held that the Privileges or Immunities Clause protected only the latter category of rights from state abridgment. Id., at 78 . The Court defined that category to include only those rights “which owe their existence to the Federal government, its National character, its Constitution, or its laws.” Id., at 79 . This arguably left open the possibility that certain individual rights enumerated in the Constitution could be considered privileges or immunities of federal citizenship. See ibid, (listing “[t]he right to peaceably assemble” and “the privilege of the writ of habeas corpus” as rights potentially protected by the Privileges or Immunities Clause). But the Court soon rejected that proposition, interpreting the Privileges or Immunities Clause even more narrowly in its later cases. Chief among those cases is United States v. Cruikshank, 92 U. S. 542 (1876). There, the Court held that members of a white militia who had brutally murdered as many as 165 black Louisianians congregating outside a courthouse had *809 not deprived the victims of their privileges as American citizens to peaceably assemble or to keep and bear arms. Ibid.; see L. Keith, The Colfax Massacre 109 (2008). According to the Court, the right to peaceably assemble codified in the First Amendment was not a privilege of United States citizenship because “[t]he right . . . existed long before the adoption of the Constitution.” 92 U. S., at 551 (emphasis added). Similarly, the Court held that the right to keep and bear arms was not a privilege of United States citizenship because it was not “in any manner dependent upon that instrument for its existence.” Id., at 553 . In other words, the reason the Framers codified the right to bear arms in the Second Amendment — its nature as an inalienable right that pre-existed the Constitution’s adoption — was the very reason citizens could not enforce it against States through the Fourteenth. That circular reasoning effectively has been the Court’s last word on the Privileges or Immunities Clause. 1 In the intervening years, the Court has held that the Clause prevents state abridgment of only a handful of rights, such as the right to travel, see Saenz v. Roe, 526 U. S. 489, 503 (1999), that are not readily described as essential to liberty. As a consequence of this Court’s marginalization of the Clause, litigants seeking federal protection of fundamental rights turned to the remainder of § 1 in search of an alternative fount of such rights. They found one in a most curious place — that section’s command that every State guarantee “due process” to any person before depriving him of “life, liberty, or property.” At first, litigants argued that this Due Process Clause “incorporated” certain procedural rights codified in the Bill of Rights against the States. The Court *810 generally rejected those claims, however, on the theory that the rights in question were not sufficiently “fundamental” to warrant such treatment. See, e. g., Hurtado v. California, 110 U. S. 516 (1884) (grand jury indictment requirement); Maxwell v. Dow, 176 U. S. 581 (1900) (12-person jury requirement); Twining v. New Jersey, 211 U. S. 78 (1908) (privilege against self-incrimination). That changed with time. The Court came to conclude that certain Bill of Rights guarantees were sufficiently fundamental to fall within § l’s guarantee of “due process.” These included not only procedural protections listed in the first eight Amendments, see, e. g., Benton v. Maryland, 395 U. S. 784 (1969) (protection against double jeopardy), but substantive rights as well, see, e. g., Gitlow v. New York, 268 U. S. 652, 666 (1925) (right to free speech); Near v. Minnesota ex rel. Olson, 283 U. S. 697, 707 (1931) (same). In the process of incorporating these rights against the States, the Court often applied them differently against the States than against the Federal Government on the theory that only those “fundamental” aspects of the right required Due Process Clause protection. See, e. g., Betts v. Brady, 316 U. S. 455, 473 (1942) (holding that the Sixth Amendment required the appointment of counsel in all federal criminal cases in which the defendant was unable to retain an attorney, but that the Due Process Clause required appointment of counsel in state criminal cases only where “want of counsel . . . resulted] in a conviction lacking in ... fundamental fairness”). In more recent years, this Court has “abandoned the notion” that the guarantees in the Bill of Rights apply differently when incorporated against the States than they do when applied to the Federal Government. Ante, at 765 (opinion of the Court) (internal quotation marks omitted). But our cases continue to adhere to the view that a right is incorporated through the Due Process Clause only if it is sufficiently “fundamental,” ante, at 784-785, 789-791 (plurality opinion)— a term the Court has long struggled to define. *811 While this Court has at times concluded that a right gains “fundamental” status only if it is essential to the American “scheme of ordered liberty” or “ ‘deeply rooted in this Nation’s history and tradition,’” ante, at 767 (opinion of the Court) (quoting Glucksberg, 521 U. S., at 721 ), the Court has just as often held that a right warrants Due Process Clause protection if it satisfies a far less measurable range of criteria, see Lawrence v. Texas, 539 U. S. 558, 562 (2003) (concluding that the Due Process Clause protects “liberty of the person both in its spatial and in its more transcendent dimensions”). Using the latter approach, the Court has determined that the Due Process Clause applies rights against the States that are not mentioned in the Constitution at all, even without seriously arguing that the Clause was originally understood to protect such rights. See, e. g., Lochner v. New York, 198 U. S. 45 (1905); Roe v. Wade, 410 U. S. 113 (1973); Lawrence, supra. All of this is a legal fiction. The notion that a constitutional provision that guarantees only “process” before a person is deprived of life, liberty, or property could define the substance of those rights strains credulity for even the most casual user of words. Moreover, this fiction is a particularly dangerous one. The one theme that links the Court’s substantive due process precedents together is their lack of a guiding principle to distinguish “fundamental” rights that warrant protection from nonfundamental rights that do not. Today’s decision illustrates the point. Replaying a debate that has endured from the inception of the Court’s substantive due process jurisprudence, the dissents laud the “flexibility” in this Court’s substantive due process doctrine, post, at 871 (opinion of Stevens, J.); see post, at 918-919 (opinion of Breyer, J.), while the plurality makes yet another effort to impose principled restraints on its exercise, see ante, at 780-787. But neither side argues that the meaning they attribute to the Due Process Clause was consistent with public understanding at the time of its ratification. *812 To be sure, the plurality’s effort to cabin the exercise of judicial discretion under the Due Process Clause by focusing its inquiry on those rights deeply rooted in American history and tradition invites less opportunity for abuse than the alternatives. See post, at 918 (Breyer, J., dissenting) (arguing that rights should be incorporated against the States through the Due Process Clause if they are “well suited to the carrying out of ... constitutional promises”); post, at 878 (Stevens, J., dissenting) (warning that there is no “all-purpose, top-down, totalizing theory of ‘liberty’ ” protected by the Due Process Clause). But any serious argument over the scope of the Due Process Clause must acknowledge that neither its text nor its history suggests that it protects the many substantive rights this Court’s cases now claim it does. I cannot accept a theory of constitutional interpretation that rests on such tenuous footing. This Court’s substantive due process framework fails to account for both the text of the Fourteenth Amendment and the history that led to its adoption, filling that gap with a jurisprudence devoid of a guiding principle. I believe the original meaning of the Fourteenth Amendment offers a superior alternative, and that a return to that meaning would allow this Court to enforce the rights the Fourteenth Amendment is designed to protect with greater clarity and predictability than the substantive due process framework has so far managed. I acknowledge the volume of precedents that have been built upon the substantive due process framework, and I further acknowledge the importance of stare decisis to the stability of our Nation’s legal system. But stare decisis is only an “adjunct” of our duty as judges to decide by our best lights what the Constitution means. Planned Parenthood of Southeastern Pa. v. Casey, 505 U. S. 833, 963 (1992) (Rehnquist, C. J., concurring in judgment in part and dissenting in part). It is not “an inexorable command.” Lawrence, supra, at 577 . Moreover, as judges, we interpret the Con *813 stitution one case or controversy at a time. The question presented in this case is not whether our entire Fourteenth Amendment jurisprudence must be preserved or revised, but only whether, and to what extent, a particular Clause in the Constitution protects the particular right at issue here. With the inquiry appropriately narrowed, I believe this case presents an opportunity to reexamine, and begin the process of restoring, the meaning of the Fourteenth Amendment agreed upon by those who ratified it. II “It cannot be presumed that any clause in the constitution is intended to be without effect.” Marbury v. Madison, 1 Cranch 137, 174 (1803) (opinion for the Court by Marshall, C. J.). Because the Court’s Privileges or Immunities Clause precedents have presumed just that, I set them aside for the moment and begin with the text. The Privileges or Immunities Clause of the Fourteenth Amendment declares that “[n]o State . . . shall abridge the privileges or immunities of citizens of the United States.” In interpreting this language, it is important to recall that constitutional provisions are “ 'written to be understood by the voters.’” Heller, 554 U. S., at 576 (quoting United States v. Sprague, 282 U. S. 716, 731 (1931)). Thus, the objective of this inquiry is to discern what “ordinary citizens” at the time of ratification would have understood the Privileges or Immunities Clause to mean. 554 U. S., at 577 . A 1 At the time of Reconstruction, the terms “privileges” and “immunities” had an established meaning as synonyms for “rights.” The two words, standing alone or paired together, were used interchangeably with the words “rights,” “liberties,” and “freedoms,” and had been since the time of Blackstone. See 1 W. Blackstone, Commentaries *129 (describing *814 the “rights and liberties” of Englishmen as “private immunities” and “civil privileges”). A number of antebellum judicial decisions used the terms in this manner. See, e. g., Magill v. Brown, 16 F. Cas. 408, 428 (No. 8,952) (CC ED Pa. 1833) (Baldwin, J.) (“The words 'privileges and immunities’ relate to the rights of persons, place or property; a privilege is a peculiar right, a private law, conceded to particular persons or places”). In addition, dictionary definitions confirm that the public shared this understanding. See, e. g., 2 N. Webster, An American Dictionary of the English Language 1039 (C. Goodrich & N. Porter rev. 1865) (defining “privilege” as “a right or immunity not enjoyed by others or by all” and listing among its synonyms the words “immunity,” “franchise,” “right,” and “liberty”); 1 id., at 661 (defining “immunity” as “[f]reedom from an obligation” or “particular privilege”); 2 id., at 1140 (defining “right” as “[pjrivilege or immunity granted by authority”). 2 The fact that a particular interest was designated as a “privilege” or “immunity,” rather than a “right,” “liberty,” or “freedom,” revealed little about its substance. Blackstone, for example, used the terms “privileges” and “immunities” to describe both the inalienable rights of individuals and the positive-law rights of corporations. See 1 Commentaries, at *129 (describing “private immunities” as a “residuum of natural liberty,” and “civil privileges” as those “which society hath engaged to provide, in lieu of the natural liberties so given up by individuals”); id., at *468 (stating that a corporate charter enables a corporation to “establish *815 rules and orders” that serve as “the privileges and immunities ... of the corporation”). Writers in this country at the time of Reconstruction followed a similar practice. See, e. g., Racine & Mississippi R. Co. v. Farmers’ Loan & Trust Co., 49 Ill. 331, 334 (1868) (describing agreement between two railroad companies in which they agreed “‘to fully merge and consolidate the[ir] capital stock, powers, privileges, immunities and franchises’”); Hathorn v. Calef 53 Me. 471, 483-484 (1866) (concluding that a statute did not “modify any power, privileges, or immunity, pertaining to the franchise of any corporation”). The nature of a privilege or immunity thus varied depending on the person, group, or entity to whom those rights were assigned. See Lash, The Origins of the Privileges or Immunities Clause, Part I: “Privileges and Immunities” as an Antebellum Term of Art, 98 Geo. L. J. 1241, 1256-1257 (2010) (surveying antebellum usages of these terms). 2 The group of rights-bearers to whom the Privileges or Immunities Clause applies is, of course, “citizens.” By the time of Reconstruction, it had long been established that both the States and the Federal Government existed to preserve their citizens’ inalienable rights, and that these rights were considered “privileges” or “immunities” of citizenship. This tradition begins with our country’s English roots. Parliament declared the basic liberties of English citizens in a series of documents ranging from the Magna Carta to the Petition of Right and the English Bill of Rights. See 1 B. Schwartz, The Bill of Rights: A Documentary History 8-16, 19-21, 41-46 (1971) (hereinafter Schwartz). These fundamental rights, according to the English tradition, belonged to all people but became legally enforceable only when recognized in legal texts, including acts of Parliament and the decisions of common-law judges. See B. Bailyn, The Ideological Origins of the American Revolution 77-79 (1967). These rights included many that later would be set forth in our *816 Federal Bill of Rights, such as the right to petition for redress of grievances, the right to a jury trial, and the right of “Protestants” to “have arms for their defence.” English Bill of Rights (1689), reprinted in 1 Schwartz 41, 43. As English subjects, the colonists considered themselves to be vested with the same fundamental rights as other Englishmen. They consistently claimed the rights of English citizenship in their founding documents, repeatedly referring to these rights as “privileges” and “immunities.” For example, a Maryland law provided: “[A]ll the Inhabitants of this Province being Christians (Slaves excepted) Shall have and enjoy all such rights liberties immunities priviledges and free customs within this Province as any naturall born subject of England hath or ought to have or enjoy in the Realm of England .. . .” Md. Act for the Liberties of the People (1639), in id., at 68 (emphasis added). 3 *817 As tensions between England and the Colonies increased, the colonists adopted protest resolutions reasserting their claim to the inalienable rights of Englishmen. Again, they used the terms “privileges” and “immunities” to describe these rights. As the Massachusetts Resolves declared: “Resolved, That there are certain essential Rights of the British Constitution of Government, which are founded in the Law of God and Nature, and are the common Rights of Mankind — Therefore “Resolved, That no Man can justly take the Property of another without his Consent: And that upon this original Principle the Right of Representation ... is evidently founded. “Resolved, That this inherent Right, together with all other, essential Rights, Liberties, Privileges and Immunities of the People of Great Britain, have been fully confirmed to them by Magna Charta.” The Massachusetts Resolves (Oct. 29, 1765), reprinted in Prologue to Revolution: Sources and Documents on the Stamp Act Crisis, 1764-1766, p. 56 (E. Morgan ed. 1959) (some emphasis added). 4 *818 In keeping with this practice, the First Continental Congress declared in 1774 that the King had wrongfully denied the colonists “the rights, liberties, and immunities of free and natural-born subjects . . . within the realm of England.” 1 Journals of the Continental Congress 1774-1789, p. 68 (W. Ford ed. 1904). In an address delivered to the inhabitants of Quebec that same year, the Congress described those rights as including the “great” “right[s]” of “trial by jury,” “Habeas Corpus,” and “freedom of the press.” Address of the Continental Congress to the Inhabitants of Quebec (1774), reprinted in 1 Schwartz 221-223. After declaring their independence, the newly formed States replaced their colonial charters with constitutions and state bills of rights, almost all of which guaranteed the same fundamental rights that the former colonists previously had claimed by virtue of their English heritage. See, e. g., Pa. Declaration of Rights (1776), reprinted in 5 Thorpe 3081-3084 (declaring that “all men are born equally free and independent, and have certain natural, inherent and inalienable rights,” including the “right to worship Almighty God according to the dictates of their own consciences” and the “right to bear arms for the defence of themselves and the state”). 5 Several years later, the Founders amended the Constitution to expressly protect many of the same fundamental rights against interference by the Federal Government. Consistent with their English heritage, the founding generation generálly did not consider many of the rights identified in these amendments as new entitlements, but as inalienable rights of all men, given legal effect by their codification in the Constitution’s text. See, e. g., 1 Annals of Cong. 431-432, 436-437, 440-442 (1789) (statement of Rep. Madison) *819 (proposing Bill of Rights in the First Congress); The Federalist No. 84, pp. 531-533 (B. Wright ed. 1961) (A. Hamilton); see also Heller, 554 U. S., at 592 (“[I]t has always been widely understood that the Second Amendment, like the First and Fourth Amendments, codified a pre-existing right”). The Court’s subsequent decision in Barron, however, made plain that the codification of these rights in the Bill of Rights made them legally enforceable only against the Federal Government, not the States. See 7 Pet., at 247. 3 Even though the Bill of Rights did not apply to the States, other provisions of the Constitution did limit state interference with individual rights. Article IV, §2, cl. 1, provides that “[t]he Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States.” The text of this provision resembles the Privileges or Immunities Clause, and it can be assumed that the public’s understanding of the latter was informed by its understanding of the former. Article IV, § 2, was derived from a similar clafise in the Articles of Confederation, and reflects the dual citizenship the Constitution provided to all Americans after replacing that “league” of separate sovereign States. Gibbons v. Ogden, 9 Wheat. 1, 187 (1824); see 3 J. Story, Commentaries on the Constitution of the United States § 1800, p. 675 (1833). By virtue of a person’s citizenship in a particular State, he was guaranteed whatever rights and liberties that State’s constitution and laws made available. Article IV, § 2, vested citizens of each State with an additional right: the assurance that they would be afforded the “privileges and immunities” of citizenship in any of the several States in the Union to which they might travel. What were the “Privileges and Immunities of Citizens in the several States”? That question was answered perhaps most famously by Justice Bushrod Washington sitting as Cir *820 cuit Justice in Corfield v. Coryell, 6 F. Cas. 546, 551-552 (No. 3,230) (CC ED Pa. 1825). In that case, a Pennsylvania citizen claimed that a New Jersey law prohibiting nonresidents from harvesting oysters from the State’s waters violated Article IV, § 2, because it deprived him, as an out-of-state citizen, of a right New Jersey availed to its own citizens. Id., at 550. Justice Washington rejected that argument, refusing to “accede to the proposition” that Article IV, § 2, entitled “citizens of the several states ... to participate in all the rights which belong exclusively to the citizens of any other particular state.” Id., at 552 (emphasis added). In his view, Article IV, §2, did not guarantee equal access to all public benefits a State might choose to make available to its citizens. See id., at 552. Instead, it applied only to those rights “which are, in their nature, fundamental; which belong, of right, to the citizens of all free governments.” Id., at 551 (emphasis added). Other courts generally agreed with this principle. See, e. g., Abbot v. Bayley, 23 Mass. 89, 92-93 (1827) (noting that the “privileges and immunities” of citizens in the several States protected by Article IV, §2, are “qualified and not absolute” because they do not grant a traveling citizen the right of “suffrage or of eligibility to office” in the State to which he travels). When describing those “fundamental” rights, Justice Washington thought it “would perhaps be more tedious than difficult to enumerate” them all, but suggested that they could “be all comprehended under” a broad list of “general heads,” such as “[p]rotection by the government,” “the enjoyment of life and liberty, with the right to acquire and possess property of every kind,” “the benefit of the writ of habeas corpus,” and the right of access to “the courts of the state,” among others. 6 Corfield, supra, at 551-552 . *821 Notably, Justice Washington did not indicate whether Article IV, § 2, required States to recognize these fundamental rights in their own citizens and thus in sojourning citizens alike, or whether the Clause simply prohibited the States from discriminating against sojourning citizens with respect to whatever fundamental rights state law happened to recognize. On this question, the weight of legal authorities at the time of Reconstruction indicated that Article IV, § 2, prohibited States from discriminating against sojourning citizens when recognizing fundamental rights, but did not require States to recognize those rights and did not prescribe their content. The highest courts of several States adopted this view, see, e. g., Livingston v. Van Ingen, 9 Johns. *507, *561 (N. Y. Sup. Ct. 1812) (Yates, J.); id., at *577 (Kent, C. J.); Campbell v. Morris, 3 H. & McH. 535 , 553-554 (Md. Gen. Ct. 1797) (Chase, J.), as did several influential treatise writers, see T. Cooley, Constitutional Limitations 15-16, and n. 3 (1868) (describing Article IV, § 2, as designed “to prevent discrimination by the several States against the citizens and public proceedings of other States”); 2 J. Kent, Commentaries on American Law 35 (11th ed. 1867) (stating that Article IV, §2, entitles sojourning citizens “to the privileges that persons of the same description are entitled to in the state to which the removal is made, and to none other”). This Court adopted the same conclusion in a unanimous opinion *822 just one year after the Fourteenth Amendment was ratified. See Paul v. Virginia, 8 Wall. 168, 180 (1869). * * * The text examined so far demonstrates three points about the meaning of the Privileges or Immunities Clause in § 1. First, “privileges” and “immunities” were synonyms for “rights.” Second, both the States and the Federal Government had long recognized the inalienable rights of their citizens. Third, Article IV, §2, of the Constitution protected traveling citizens against- state discrimination with respect to the fundamental rights of state citizenship. Two questions still remain, both provoked by the textual similarity between § l’s Privileges or Immunities Clause and Article IV, § 2. The first involves the nature of the rights at stake: Are the privileges or immunities of “citizens of the United States” recognized by § 1 the same as the privileges and immunities of “Citizens in the several States” to which Article IV, § 2, refers? The second involves the restriction imposed on the States: Does § 1, like Article IV, § 2, prohibit only discrimination with respect to certain rights if the State chooses to recognize them, or does it require States to recognize those rights? I address each question in turn. B I start with the nature of the rights that § l’s Privileges or Immunities Clause protects. Section 1 overruled Dred Scott’s holding that blacks were not citizens of either the United States or their own State and, thus, did not enjoy “the privileges and immunities of citizens” embodied in the Constitution. 19 How., at 417 . The Court in Dred Scott did not distinguish between privileges and immunities of citizens of the United States and citizens in the several States, instead referring to the rights of citizens generally. It did, however, give examples of what the rights of citizens were— *823 the constitutionally enumerated rights of “the full liberty of speech” and the right “to keep and carry arms.” Ibid. Section 1 protects the rights of citizens “of the United States” specifically. The evidence overwhehningly demonstrates that the privileges and immunities of such citizens included individual rights enumerated in the Constitution, including the right to keep and bear arms. 1 Nineteenth-century treaties through which the United States acquired territory from other sovereigns routinely promised inhabitants of the newly acquired Territories that they would enjoy all of the “rights,” “privileges,” and “immunities” of United States citizens. See, e. g., Treaty of Amity, Settlement, and Limits, Art. 6, Feb. 22, 1819, 8 Stat. 256 -258, T. S. No. 327 (entered into force Feb. 19, 1821) (cession of Florida) (“The inhabitants of the territories which his Catholic Majesty cedes to the United States, by this Treaty, shall be incorporated in the Union of the United States, as soon as may be consistent with the principles of the Federal Constitution, and admitted to the enjoyment of all the privileges, rights, and immunities, of the citizens of the United States” (emphasis added)). 7 *824 Commentators of the time explained that the rights and immunities of “citizens of the United States” recognized in these treaties “undoubtedly mean[t] those privileges that are common to all the citizens of this republic.” Marcus, An Examination of the Expediency and Constitutionality of Prohibiting Slavery in the State of Missouri 17 (1819). It is therefore altogether unsurprising that several of these treaties identify liberties enumerated in the Constitution as privileges and immunities common to all United States citizens. For example, the Louisiana Cession Act of 1803, which codified a treaty between the United States and France culminating in the Louisiana Purchase, provided: “The inhabitants of the ceded territory shall be incorporated in the Union of the United States, and admitted as soon as possible, according to the principles of the Federal constitution, to the enjoyment of all the rights, advantages and immunities of citizens of the United States; and in the mean time they shall be maintained and protected in the free enjoyment of their liberty, property, and the religion which they profess.” Treaty Between the United States of America and the French Republic, Art. III, Apr. 30, 1803, 8 Stat. 2002 , T. S. No. 86 (emphasis added). 8 *825 The Louisiana Cession Act reveals even more about the privileges and immunities of United States citizenship because it provoked an extensive public debate on the meaning of that term. In 1820, when the Missouri Territory (which the United States acquired through the Cession Act) sought to enter the Union as a new State, a debate ensued over whether to prohibit slavery within Missouri as a condition of its admission. Some Congressmen argued that prohibiting slavery in Missouri would deprive its inhabitants of the “privileges and immunities” they had been promised by the Cession Act. See, e. g., 35 Annals of Cong. 1083 (1820) (remarks of Kentucky Rep. Hardin). But those who opposed slavery in Missouri argued that the right to hold slaves was merely a matter of state property law, not one of the privileges and immunities of United States citizenship guaranteed by the Act. 9 Daniel Webster was among the leading proponents of the antislavery position. In his “Memorial to Congress,” Webster argued that “[t]he rights, advantages and immunities here spoken of [in the Cession Act] must ... be such as are recognized or communicated by the Constitution of the United States,” not the “rights, advantages and immunities, derived exclusively from the State governments . . . .” *826 D. Webster, A Memorial to the Congress of the United States, on the Subject of Restraining the Increase of Slavery in New States To Be Admitted Into the Union 15 (Dec. 15, 1819) (emphasis added). “The obvious meaning” of the Act, in Webster’s view, was that “the rights derived under the federal Constitution shall be enjoyed by the inhabitants of [the Territory].” Id., at 15-16 (emphasis added). In other words, Webster articulated a distinction between the rights of United States citizenship and the rights of state citizenship, and argued that the former included those rights “recognized or communicated by the Constitution.” Since the right to hold slaves was not mentioned in the Constitution, it was not a right of federal citizenship. Webster and his allies ultimately lost the debate over slavery in Missouri, and the Territory was admitted as a slave State as part of the now-famous Missouri Compromise. Missouri Enabling Act of Mar. 6, 1820, ch. 22, § 8, 3 Stat. 548 . But their arguments continued to inform public understanding of the privileges and immunities of United States citizenship. In 1854, Webster’s Memorial was republished in a pamphlet discussing the Nation’s next major debate on slavery — the proposed repeal of the Missouri Compromise through the Kansas-Nebraska Act, see The Nebraska Question: Comprising Speeches in the United States Senate: Together With the History of the Missouri Compromise 9-12 (1854). It was published again in 1857 in a collection of famous American speeches. See Political Text-Book, or Encyclopedia: Containing Everything Necessary for the Reference of the Politicians and Statesmen of the United States 601-604 (M. Cluskey ed. 1857); see also Lash, 98 Geo. L. J., at 1294-1296 (describing Webster’s arguments and their influence). 2 Evidence from the political branches in the years leading to the Fourteenth Amendment’s adoption demonstrates broad public understanding that the privileges and immuni *827 ties of United States citizenship included rights set forth in the Constitution, just as Webster and his allies had argued. In 1868, President Andrew Johnson issued a proclamation granting amnesty to former Confederates, guaranteeing “to all and to every person who directly or indirectly participated in the late insurrection or rebellion, a full pardon and amnesty for the offence of treason ... with restoration of all rights, privileges, and immunities under the Constitution and the laws which have been made in pursuance thereof.” 15 Stat. 712 (emphasis added). Records from the 39th Congress further support

Justice Stevens, dissenting. In District of Columbia v. Heller, 554 U. S. 570, 573 (2008), the Court answered the question whether a federal enclave’s “prohibition on the possession of usable handguns in the home violates the Second Amendment to the Constitution.” The question we should be answering in this case is whether the Constitution “guarantees individuals a fundamental right,” enforceable against the States, “to possess a functional, personal firearm, including a handgun, within the home.” Complaint ¶34, App. 23. That is a different— and more difficult — inquiry than asking if the Fourteenth Amendment “incorporates” the Second Amendment. The *859 so-called incorporation question wás squarely and, in my view, correctly resolved in the late 19th century. 1 Before the District Court, petitioners focused their pleadings on the special considerations raised by domestic possession, which they identified as the core of their asserted right. In support of their claim that the city of Chicago’s handgun ban violates the Constitution, they now rely primarily on the Privileges or Immunities Clause of the Fourteenth Amendment. See Brief for Petitioners 9-65. They rely secondarily on the Due Process Clause of that Amendment. See id., at 66-72. Neither submission requires the Court to express an opinion on whether the Fourteenth Amendment places any limit on the power of States to regulate possession, use, or carriage of firearms outside the home. I agree with the plurality’s refusal to accept petitioners’ primary submission. Ante, at 758. Their briefs marshal an impressive amount of historical evidence for their argument that the Court interpreted the Privileges or Immunities Clause too narrowly in the Slaughter-House Cases, 16 Wall. 36 (1873). But the original meaning of the Clause is not as clear as they suggest 2 — and not nearly as clear as it would *860 need to be to dislodge 137 years of precedent. The burden is severe for those who seek radical change in such an established body of constitutional doctrine. 3 Moreover, the suggestion that invigorating the Privileges or Immunities Clause will reduce judicial discretion, see Reply Brief for Petitioners 22, n. 8, 26; Tr. of Oral Arg. 64-65, strikes me as implausible, if not exactly backwards. “For the very reason that it has so long remained a clean slate, a revitalized Privileges or Immunities Clause holds special hazards for judges who are mindful that their proper task is not to write their personal views, of appropriate public policy into the Constitution.” 4 I further agree with the plurality that there are weighty arguments supporting petitioners’ second submission, insofar as it concerns the possession of firearms for lawful self-defense in the home. But these arguments are less compelling than the plurality suggests; they are much less *861 compelling when applied outside the home; and their validity-does not depend on the Court’s holding in Heller . For that holding sheds no light on the meaning of the Due Process Clause of the Fourteenth Amendment. Our decisions construing that Clause to render various procedural guarantees in the Bill of Rights enforceable against the States likewise tell us little about the meaning of the word “liberty” in the Clause or about the scope of its protection of nonprocedural rights. This is a substantive due process case. I Section 1 of the Fourteenth Amendment decrees that no State shall “deprive any person of life, liberty, or property, without due process of law.” The Court has filled thousands of pages expounding that spare text. As I read the vast corpus of substantive due process opinions, they confirm several important principles that ought to guide our resolution of this case. The principal opinion’s lengthy summary of our “incorporation” doctrine, see ante, at 754-758, 759-766 (majority opinion), 758-759 (plurality opinion), and its implicit (and untenable) effort to wall off that doctrine from the rest of our substantive due process jurisprudence, invite a fresh survey of this old terrain. Substantive Content The first, and most basic, principle established by our cases is that the rights protected by the Due Process Clause are not merely procedural in nature. At first glance, this proposition might seem surprising, given that the Clause refers to “process.” But substance and procedure are often deeply entwined. Upon closer inspection, the text can be read to “imposte] nothing less than an obligation to give substantive content to the words ‘liberty’ and ‘due process of law,’” Washington v. Glucksberg, 521 U. S. 702, 764 (1997) (Souter, J., concurring in judgment), lest superficially fair procedures be permitted to “destroy the enjoyment” of life, liberty, and *862 property, Poe v. Ullman, 367 U. S. 497, 541 (1961) (Harlan, J., dissenting), and the Clause’s prepositional modifier be permitted to swallow its primary command. Procedural guarantees are hollow unless linked to substantive interests; and no amount of process can legitimize some deprivations. I have yet to see a persuasive argument that the Framers of the Fourteenth Amendment thought otherwise. To the contrary, the historical evidence suggests that, at least by the time of the Civil War if not much earlier, the phrase “due process of law” had acquired substantive content as a term of art within the legal community. 5 This understanding is *863 consonant with the venerable “notion that governmental authority has implied limits which preserve private autonomy,” 6 a notion which predates the founding and which finds reinforcement in the Constitution’s Ninth Amendment, see Griswold v. Connecticut, 381 U. S. 479, 486-493 (1965) (Goldberg, J., concurring). 7 The Due Process Clause cannot claim to be the source of our basic freedoms — no legal document ever could, see Meachum v. Fano, 427 U. S. 215, 230 (1976) (Stevens, J., dissenting) — but it stands as one of their foundational guarantors in our law. If text and history are inconclusive on this point, our precedent leaves no doubt: It has been “settled” for well over a century that the Due Process Clause “applies to matters of substantive law as well as to matters of procedure.” Whitney v. California, 274 U. S. 357, 373 (1927) (Brandéis, J., concurring). Time and again, we have recognized that in the Fourteenth Amendment as well as the Fifth, the “Due Process Clause guarantees more than fair process, and the 'liberty’ it protects includes more than the absence of physical restraint.” Glucksberg, 521 U. S., at 719 . “The Clause also includes a substantive component that 'provides heightened protection against government interference with certain fundamental rights and liberty interests.’” Troxel v. Granville, 530 U. S. 57, 65 (2000) (plurality opinion of O’Connor, J., joined by Rehnquist, C. J., and Ginsburg and Breyer, JJ.) (quoting Glucksberg, 521 U. S., at 720 ). Some of our most enduring precedents, accepted today by virtually everyone, were substantive due process decisions. See, e. g., Loving v. Virginia, 388 U. S. 1, 12 (1967) (recognizing due-process-as well as equal-protection-based right to marry person of another race); Bolling v. Sharpe, 347 U. S. 497, 499-500 (1954) (outlawing racial segregation in District of Colum *864 bia public schools); Pierce v. Society of Sisters, 268 U. S. 510, 534-535 (1925) (vindicating right of parents to direct upbringing and education of their children); Meyer v. Nebraska, 262 U. S. 390, 399-403 (1923) (striking down prohibition on teaching of foreign languages). Liberty The second principle woven through our cases is that substantive due process is fundamentally a matter of personal liberty. For it is the liberty clause of the Fourteenth Amendment that grounds our most important holdings in this field. It is the liberty clause that enacts the Constitution’s “promise” that a measure of dignity and self-rule will be afforded to all persons. Planned Parenthood of Southeastern Pa. v. Casey, 505 U. S. 833, 847 (1992). It is the liberty clause that reflects and renews “the origins of the American heritage of freedom [and] the abiding interest in individual liberty that makes certain state intrusions on the citizen’s right to decide how he will live his own life intolerable.” Fitzgerald v. Porter Memorial Hospital, 523 F. 2d 716, 720 (CA7 1975) (Stevens, J.). Our substantive due process cases have episodically invoked values such as privacy and equality as well, values that in certain contexts may intersect with or complement a subject’s liberty interests in profound ways. But as I have observed on numerous occasions, “most of the significant [20th-century] cases raising Bill of Rights issues have, in the final analysis, actually interpreted the word 'liberty’ in the Fourteenth Amendment.” 8 It follows that the term “incorporation,” like the term “unenumerated rights,” is something of a misnomer. Whether an asserted substantive due process interest is explicitly *865 named in one of the first eight Amendments to the Constitution or is not mentioned, the underlying inquiry is the same: We must ask whether the interest is “comprised within the term liberty.” Whitney, 274 U. S., at 373 (Brandeis, J., concurring). As the second Justice Harlan has shown, ever since the Court began considering the applicability of the Bill of Rights to the States, “the Court’s usual approach has been to ground the prohibitions against state action squarely on due process, without intermediate reliance on any of the first eight Amendments.” Malloy v. Hogan, 378 U. S. 1, 24 (1964) (dissenting opinion); see also Frankfurter, Memorandum on “Incorporation” of the Bill of Rights into the Due Process Clause of the Fourteenth Amendment, 78 Harv. L. Rev. 746 , 747-750 (1965). In the pathmarking case of Git-low v. New York, 268 U. S. 652, 666 (1925), for example, both the majority and dissent evaluated petitioner’s free speech claim not under the First Amendment but as an aspect of “the fundamental personal rights and 'liberties’ protected by the due process clause of the Fourteenth Amendment from impairment by the States.” 9 *866 In his own classic opinion in Griswold, 381 U. S., at 500 (opinion concurring in judgment), Justice Harlan memorably distilled these precedents’ lesson: “While the relevant inquiry may be aided by resort to one or more of the provisions of the Bill of Rights, it is not dependent on them or any of their radiations. The Due Process Clause of the Fourteenth Amendment stands ... on its own bottom.” 10 Inclusion in the Bill of Rights is neither necessary nor sufficient for an interest to be judicially enforceable under the Fourteenth Amendment. This Court’s “‘selective incorporation’” doctrine, ante, at 763, is not simply “related” to substantive due process, ante, at 767; it is a subset thereof. Federal/State Divergence The third precept to emerge from our case law flows from the second: The rights protected against state infringement by the Fourteenth Amendment’s Due Process Clause need not be identical in shape or scope to the rights protected against Federal Government infringement by the various provisions of the Bill of Rights. As drafted, the Bill of Rights directly constrained only the Federal Government. See Barron ex rel. Tiernan v. Mayor of Baltimore, 7 Pet. 243 (1833). Although the enactment of the Fourteenth *867 Amendment profoundly altered our legal order, it “did not unstitch the basic federalist pattern woven into our constitutional fabric.” Williams v. Florida, 399 U. S. 78, 133 (1970) (Harlan, J., concurring in result). Nor, for that matter, did it expressly alter the Bill of Rights. The Constitution still envisions a system of divided sovereignty, still “establishes a federal republic where local differences are to be cherished as elements of liberty” in the vast run of cases, National Rifle Assn. of Am. Inc. v. Chicago, 567 F. 3d 856, 860 (CA7 2009) (Easterbrook, C. J.), still allocates a general “police power ... to the States and the States alone,” United States v. Comstock, 560 U. S. 126, 153 (2010) (Kennedy, J., concurring in judgment). Elementary considerations of constitutional text and structure suggest there may be legitimate reasons to hold state governments to different standards than the Federal Government in certain areas. 11 It is true, as the Court emphasizes, ante, at 763-766, that we have made numerous provisions of the Bill of Rights fully applicable to the States. It is settled, for instance, that the Governor of Alabama has no more power than the President of the United States to authorize unreasonable searches and seizures. Ker v. California, 374 U. S. 23 (1963). But we have never accepted a “'total incorporation’” theory of the Fourteenth Amendment, whereby the Amendment is deemed to subsume the provisions of the Bill of Rights en masse. See ante, at 763. And we have declined to apply several provisions to the States in any measure. See, e. g., Minneapolis & St. Louis R. Co. v. Bombolis, 241 U. S. 211 (1916) (Seventh Amendment); Hurtado v. California, 110 U. S. 516 (1884) (Grand Jury Clause). We have, moreover, resisted a uniform approach to the Sixth Amendment’s criminal jury guarantee, demanding 12-member panels and unani *868 mous verdicts in federal trials, yet not in state trials. See Apodaca v. Oregon, 406 U. S. 404 (1972); Williams, 399 U. S. 78 . In recent years, the Court has repeatedly declined to grant certiorari to review that disparity. 12 While those denials have no precedential significance, they confirm the proposition that the “incorporation” of a provision of the Bill of Rights into the Fourteenth Amendment does not, in itself, mean the provision must have precisely the same meaning in both contexts. It is true, as well, that during the 1960’s the Court decided a number of cases involving procedural rights in which it treated the Due Process Clause as if it transplanted language from the Bill of Rights into the Fourteenth Amendment. See, e. g., Benton v. Maryland, 395 U. S. 784, 795 (1969) (Double Jeopardy Clause); Pointer v. Texas, 380 U. S. 400, 406 (1965) (Confrontation Clause). “Jot-for-jot” incorporation was the norm in this expansionary era. Yet at least one subsequent opinion suggests that these precedents require perfect state/federal congruence only on matters “'at the core’” of the relevant constitutional guarantee. Crist v. Bretz, 437 U. S. 28, 37 (1978); see also id., at 52-53 (Powell, J., dissenting). In my judgment, this line of cases is best understood as having concluded that, to ensure a criminal trial satisfies essential standards of fairness, some procedures should be the same in state and federal courts: The need for certainty and uniformity is more pressing, and the margin for error slimmer, when criminal justice is at issue. That principle has little relevance to the question whether a %o%-procedural rule set forth in the Bill of Rights qualifies *869 as an aspect of the liberty protected by the Fourteenth Amendment. Notwithstanding some overheated dicta in Malloy, 378 U. S., at 10-11 , it is therefore an overstatement to say that the Court has “abandoned,” ante, at 764, 765 (majority opinion), 786 (plurality opinion), a “two-track approach to incorporation,” ante, at 784 (plurality opinion). The Court moved away from that approach in the area of criminal procedure. But the Second Amendment differs in fundamental respects from its neighboring provisions in the Bill of Rights, as I shall explain in Part V, infra; and if some 1960’s opinions purported to establish a general method of incorporation, that hardly binds us in this case. The Court has not hesitated to cut back on perceived Warren Court excesses in more areas than I can count. I do not mean to deny that there can be significant practical, as well as esthetic, benefits from treating rights symmetrically with regard to the State and Federal Governments. Jot-for-jot incorporation of a provision may entail greater protection of the right at issue and therefore greater freedom for those who hold it; jot-for-jot incorporation may also yield greater clarity about the contours of the legal rule. See Johnson v. Louisiana, 406 U. S. 356, 384-388 (1972) (Douglas, J., dissenting); Pointer, 380 U. S., at 413-414 (Goldberg, J., concurring). In a federalist system such as ours, however, this approach can carry substantial costs. When a federal court insists that state and local authorities follow its dictates on a matter not critical to personal liberty or procedural justice, the latter may be prevented from engaging in the kind of beneficent “experimentation in things social and economic” that ultimately redounds to the benefit of all Americans. New State Ice Co. v. Liebmann, 285 U. S. 262, 311 (1932) (Brandéis, J., dissenting). The costs of federal courts’ imposing a uniform national standard may be especially high when the relevant regulatory interests vary *870 significantly across localities, and when the ruling implicates the States’ core police powers. Furthermore, there is a real risk that, by demanding the provisions of the Bill of Rights apply identically to the States, federal courts will cause those provisions to “be watered down in the needless pursuit of uniformity.” Duncan v. Louisiana, 391 U. S. 145, 182, n. 21 (1968) (Harlan, J., dissenting). When one legal standard must prevail across dozens of jurisdictions with disparate needs and customs, courts will often settle on a relaxed standard. This watering-down risk is particularly acute when we move beyond the narrow realm of criminal procedure and into the relatively vast domain of substantive rights. So long as the requirements of fundamental fairness are always and everywhere respected, it is not clear that greater liberty results from the jot-for-jot application of a provision of the Bill of Rights to the States. Indeed, it is far from clear that proponents of an individual right to keep and bear arms ought to celebrate today’s decision. 13 *871 II So far, I have explained that substantive due process analysis generally requires us to consider the term “liberty” in the Fourteenth Amendment, and that this inquiry may be informed by, but does not depend upon, the content of the Bill of Rights. How should a court go about the analysis, then? Our precedents have established, not an exact methodology, but rather a framework for decisionmaking. In this respect, too, the Court’s narrative fails to capture the continuity and flexibility in our doctrine. The basic inquiry was described by Justice Cardozo more than 70 years ago. When confronted with a substantive due process claim, we must ask whether the allegedly unlawful practice violates values “implicit in the concept of ordered liberty.” Palko v. Connecticut, 302 U. S. 319, 325 (1937). 14 If the practice in question lacks any “oppressive and arbitrary” character, if judicial enforcement of the asserted right would not materially contribute to “a fair and enlightened system of justice,” then the claim is unsuitable for substantive due process protection. Id., at 327, 325 . Implicit in Justice Cardozo’s test is a recognition that the postulates of liberty have a universal character. Liberty claims that are inseparable from the customs that prevail in a certain region, the idiosyncratic expectations of a certain group, or the personal preferences of their champions, may be valid claims in some sense; but they are not of constitutional stature. *872 Whether conceptualized as a “rational continuum” of legal precepts, Poe, 367 U. S., at 543 (Harlan, J., dissenting), or a seamless web of moral commitments, the rights embraced by the liberty clause transcend the local and the particular. Justice Cardozo’s test undeniably requires judges to apply their own reasoned judgment, but that does not mean it involves an exercise in abstract philosophy. In addition to other constraints I will soon discuss, see Part III, infra, historical and empirical data of various kinds ground the analysis. Textual commitments laid down elsewhere in the Constitution, judicial precedents, English common law, legislative and social facts, scientific and professional developments, practices of other civilized societies, 15 and, above all else, the “‘traditions and conscience of our people,’” Palko, 302 U. S., at 325 (quoting Snyder v. Massachusetts, 291 U. S. 97, 105 (1934)), are critical variables. They can provide evidence about which rights really are vital to ordered liberty, as well as a spur to judicial action. The Court errs both in its interpretation of Palko and in its suggestion that later cases rendered Palko’s methodology defunct. Echoing Duncan , the Court advises that Justice Cardozo’s test will not be satisfied “‘if a civilized system could be imagined that would not accord the particular protection.’” Ante, at 760 (quoting 391 U. S., at 149, n. 14 ). Palko does contain some language that could be read to set an inordinate bar to substantive due process recognition, reserving it for practices without which “neither liberty nor justice would exist.” 302 U. S., at 326 . But in view of Justice Cardozo’s broader analysis, as well as the numerous cases that have upheld liberty claims under the Palko standard, such readings are plainly overreadings. We have never applied Palko in such a draconian manner. *873 Nor, as the Court intimates, see ante, at 764, did Duncan mark an irreparable break from Palko , swapping out liberty for history. Duncan limited its discussion to “particular procedural safeguard^]” in the Bill of Rights relating to “criminal processes,” 391 U. S., at 149, n. 14 ; it did not purport to set a standard for other types of liberty interests. Even with regard to procedural safeguards, Duncan did not jettison the Palko test so much as refine it: The judge is still tasked with evaluating whether a practice “is fundamental . . . [to] ordered liberty,” within the context of the “Anglo-American” system. Duncan, 391 U. S., at 149-150, n. 14 . Several of our most important recent decisions confirm the proposition that substantive due process analysis — from which, once again, “incorporation” analysis derives — must not be wholly backward looking. See, e. g., Lawrence v. Texas, 539 U. S. 558, 572 (2003) (“[H]istory and tradition are the starting point but not in all cases the ending point of the substantive due process inquiry” (internal quotation marks omitted)); Michael H. v. Gerald D, 491 U. S. 110, 127-128, n. 6 (1989) (opinion of Scalia, J.) (garnering only two votes for history-driven methodology that “consult[s] the most specific tradition available”); see also post, at 917-918 (Breyer, J., dissenting) (explaining that post -Duncan “incorporation” eases continued to rely on more than history). 16 The Court’s flight from Palko leaves its analysis, careful and scholarly though it is, much too narrow to provide a satisfying answer to this case. The Court hinges its entire decision on one mode of intellectual history, culling selected pronouncements and enactments from the 18th and 19th centuries to ascertain what Americans thought about firearms. *874 Relying on Duncan and Glucksberg , the principal opinion suggests that only interests that have proved “fundamental from an American perspective,” ante, at 784-791 (plurality opinion), or “ ‘deeply rooted in this Nation’s history and tradition,’” ante, at 767 (majority opinion) (quoting Glucksberg, 521 U. S., at 721 ), to the Court’s satisfaction, may qualify for incorporation into the Fourteenth Amendment. To the extent the principal opinion could be read to imply that the historical pedigree of a right is the exclusive or dispositive determinant of its status under the Due Process Clause, the opinion is seriously mistaken. A rigid historical test is inappropriate in this case, most basically, because our substantive due process doctrine has never evaluated substantive rights in purely, or even predominantly, historical terms. When the Court applied many of the procedural guarantees in the Bill of Rights to the States in the 1960’s, it often asked whether the guarantee in question was “fundamental in the context of the criminal processes maintained by the American States.” 17 Duncan, 391 U. S., at 150, n. 14 . That inquiry could extend back through time, but it was focused not so much on historical conceptions of the guarantee as on its functional significance within the States’ regimes. This contextualized approach made sense, as the choice to employ any given trial-type procedure means little in the abstract. It is only by inquiring into how that procedure intermeshes with other procedures and practices in a criminal justice system that its relationship to “liberty” and “due process” can be determined. Yet when the Court has used the Due Process Clause to recognize rights distinct from the trial context — rights relating to the primary conduct of free individuals — Justice Cardozo’s test has been our guide. The right to free speech, for *875 instance, has been safeguarded from state infringement not because the States have always honored it, but because it is “essential to free government” and “to the maintenance of democratic institutions” — that is, because the right to free speech is implicit in the concept of ordered liberty. Thornhill v. Alabama, 310 U. S. 88, 95, 96 (1940); see also, e. g., Loving, 388 U. S., at 12 (discussing right to marry person of another race); Mapp v. Ohio, 367 U. S. 643, 650, 655-657 (1961) (discussing right to be free from arbitrary intrusion by police); Schneider v. State (Town of Irvington), 308 U. S. 147, 161 (1939) (discussing right to distribute printed matter). 18 While the verbal formula has varied, the Court has largely been consistent in its liberty-based approach to substantive interests outside of the adjudicatory system. As the question before us indisputably concerns such an interest, the answer cannot be found in a granular inspection of state constitutions or congressional debates. More fundamentally, a rigid historical methodology is unfaithful to the Constitution’s command. For if it were really the case that the Fourteenth Amendment’s guarantee of liberty embraces only those rights “so rooted in our history, tradition, and practice as to require special protection,” Glucksberg, 521 U. S., at 721, n. 17 , then the guarantee would serve little function, save to ratify those rights that state actors have already been according the most extensive protection. 19 Cf. Duncan, 391 U. S., at 183 (Harlan, J., dissenting) (critiquing “circularity]” of historicized test for in *876 corporation). That approach is unfaithful to the expansive principle Americans laid down when they ratified the Fourteenth Amendment and to the level of generality they chose when they crafted its language; it promises an objectivity it cannot deliver and masks the value judgments that pervade any analysis of what, customs, defined in what manner, are sufficiently “ ‘rooted’ ”; it countenances the most revolting injustices in the name of continuity, 20 for we must never forget that not only slavery but also the subjugation of women and other rank forms of discrimination are part of our history; and it effaces this Court’s distinctive role in saying what the law is, leaving the development and safekeeping of liberty to majoritarian political processes. It is judicial abdication in the guise of judicial modesty. No, the liberty safeguarded by the Fourteenth Amendment is not merely preservative in nature but rather is a “dynamic concept.” Stevens, The Bill of Rights: A Century of Progress, 59 U. Chi. L. Rev. 13 , 38 (1992). Its dynamism provides a central means through which the Framers enabled the Constitution to “endure for ages to come,” McCulloch v. Maryland, 4 Wheat. 316, 415 (1819), a central example of how they “wisely spoke in general language and left to succeeding generations the task of applying that language to the unceasingly changing environment in which they would live,” Rehnquist, The Notion of a Living Constitution, 54 Texas L. Rev. 693, 694 (1976). “The task of giving concrete meaning to the term ‘liberty,’” I have elsewhere explained at some length, “was apart of the work assigned to future generations.” Stevens, The Third Branch of Liberty, 41 U. *877 Miami L. Rev. 277 , 291 (1986). 21 The judge who would outsource the interpretation of “liberty” to historical sentiment has turned his back on a task the Constitution assigned to him and drained the document of its intended vitality. 22 Ill At this point a difficult question arises. In considering such a majestic term as “liberty” and applying it to present circumstances, how are we to do justice to its urgent call and its open texture — and to the grant of interpretive discretion the latter embodies — without injecting excessive subjectivity or unduly restricting the States’ “broad latitude in experimenting with possible solutions to problems of vital local concern,” Whalen v. Roe, 429 U. S. 589, 597 (1977)? One part of the answer, already discussed, is that we must ground the analysis in historical experience and reasoned *878 judgment, and never on “merely personal and private notions.” Rochin v. California, 342 U. S. 165, 170 (1952). Our precedents place a number of additional constraints on the decisional process. Although “guideposts for responsible decisionmaking in this unchartered area are scarce and open-ended,” Collins v. Harker Heights, 503 U. S. 115, 125 (1992), significant guideposts do exist. 23 The most basic is that we have eschewed attempts to provide any all-purpose, top-down, totalizing theory of “liberty.” 24 That project is bound to end in failure or worse. The Framers did not express a clear understanding of the term to guide us, and the now-repudiated Lochner line of cases attests to the dangers of judicial overconfidence in using substantive due process to advance a broad theory of the right or the good. See, e. g., Lochner v. New York, 198 U. S. 45 (1905). In its most durable precedents, the Court *879 “has not attempted to define with exactness the liberty . . . guaranteed” by the Fourteenth Amendment. Meyer, 262 U. S., at 399 ; see also, e. g., Bolling, 347 U. S., at 499 . By its very nature, the meaning of liberty cannot be “reduced to any formula; its content cannot be determined by reference to any code.” Poe, 367 U. S., at 542 (Harlan, J., dissenting). Yet while “the 'liberty’ specially protected by the Fourteenth Amendment” is “perhaps not capable of being fully clarified,” Glucksberg, 521 U. S., at 722 , it is capable of being refined and delimited. We have insisted that only certain types of especially significant personal interests may qualify for especially heightened protection. Ever since “the deviant economic due process cases [were] repudiated,” id., at 761 (Souter, J., concurring in judgment), our doctrine has steered away from “laws that touch economic problems, business affairs, or social conditions,” Griswold, 381 U. S., at 482 , and has instead centered on “matters relating to marriage, procreation, contraception, family relationships, and child rearing and education,” Paul v. Davis, 424 U. S. 693, 713 (1976). These categories are not exclusive. Government action that shocks the conscience, pointlessly infringes settled expectations, trespasses into sensitive private realms or life choices without adequate justification, perpetrates gross injustice, or simply lacks a rational basis will always be vulnerable to judicial invalidation. Nor does the fact that an asserted right falls within one of these categories end the inquiry. More fundamental rights may receive more robust judicial protection, but the strength of the individual’s liberty interests and the State’s regulatory interests must always be assessed and compared. No right is absolute. Rather than seek a categorical understanding of the liberty clause, our precedents have thus elucidated a conceptual core. The clause safeguards, most basically, “the ability independently to define one’s identity,” Roberts v. United States Jaycees,

Justice Breyer, with whom Justice Ginsburg and Justice Sotomayor join, dissenting. In my view, Justice Stevens has demonstrated that the Fourteenth Amendment’s guarantee of “substantive due process” does not include a general right to keep and bear firearms for purposes of private self-defense. As he argues, the Framers did not write the Second Amendment with this objective in view. See ante, at 896-899 (dissenting opinion). Unlike other forms of substantive liberty, the carrying of arms for that purpose often puts others’ lives at risk. See ante, at 891-893. And the use of arms for private self-defense does not warrant federal constitutional protection from state regulation. See ante, at 899-905. The Court, however, does not expressly rest its opinion upon “substantive due process” concerns. Rather, it directs its attention to this Court’s “incorporation” precedents and asks whether the Second Amendment right to private self- *913 defense is “fundamental” so that it applies to the States through the Fourteenth Amendment. See ante, at 759-766. I shall therefore separately consider the question of “incorporation.” I can find nothing in the Second Amendment’s text, history, or underlying rationale that could warrant characterizing it as “fundamental” insofar as it seeks to protect the keeping and bearing of arms for private self-defense purposes. Nor can I find any justification for interpreting the Constitution as transferring ultimate regulatory authority over the private uses of firearms from democratically elected legislatures to courts or from the States to the Federal Government. I therefore conclude that the Fourteenth Amendment does not “incorporate” the Second Amendment’s right “to keep and bear Arms.” And I consequently dissent. I The Second Amendment says: “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.” Two years ago, in District of Columbia v. Heller, 554 U. S. 570 (2008), the Court rejected the pre-existing judicial consensus that the Second Amendment was primarily concerned with the need to maintain a “well regulated Militia.” See id., at 638 , and n. 2 (Stevens, J., dissenting); id., at 672-679 . United States v. Miller, 307 U. S. 174, 178 (1939). Although the Court acknowledged that “the threat that the new Federal Government would destroy the citizens’ militia by taking away their arms was the reason that right. .. was codified in a written Constitution,” the Court asserted that “individual self-defense . . . was the central component of the right itself.” Heller, 554 U. S., at 599 (some emphasis added). The Court went on to hold that the Second Amendment restricted Congress’ power to regulate handguns used for self-defense, and the Court found unconstitutional the District of Columbia’s ban on the possession of handguns in the home. Id., at 635 . *914 The Court based its conclusions almost exclusively upon its reading of history. But the relevant history in Heller was far from clear: Four dissenting Justices disagreed with the majority’s historical analysis. And subsequent scholarly writing reveals why disputed history provides treacherous ground on which to build decisions written by judges who are not expert at history. Since Heller , historians, scholars, and judges have continued to express the view that the Court’s historical account was flawed. See, e. g., Konig, Why the Second Amendment Has a Preamble: Original Public Meaning and the Political Culture of Written Constitutions in Revolutionary America, 56 UCLA L. Rev. 1295 (2009); Finkelman, It Really Was About a Well Regulated Militia, 59 Syracuse L. Rev. 267 (2008) ; P. Charles, The Second Amendment: The Intent and Its Interpretation by the States and the Supreme Court (2009) ; Merkel, The District of Columbia v. Heller and Antonin Scalia’s Perverse Sense of Originalism, 13 Lewis & Clark L. Rev. 349 (2009); Kozuskanich, Originalism in a Digital Age: An Inquiry Into the Right To Bear Arms, 29 J. Early Republic 585 (2009); Cornell, St. George Tucker’s Lecture Notes, the Second Amendment, and Originalist Methodology: A Critical Comment, 103 Nw. U. L. Rev. 1541 (2009); Posner, In Defense of Looseness: The Supreme Court and Gun Control, New Republic, Aug. 27, 2008, pp. 32-35; see also Epstein, A Structural Interpretation of the Second Amendment: Why Heller Is (Probably) Wrong on Originalist Grounds, 59 Syracuse L. Rev. 171 (2008). Consider as an example of these critiques an amici brief filed in this case by historians who specialize in the study of the English Civil Wars. They tell us that Heller misunderstood a key historical point. See Brief for English/Early American Historians as Amici Curiae (hereinafter English Historians’ Brief) (filed by 21 professors at leading universities in the United States, United Kingdom, and Australia). Heller’s conclusion that “individual self-defense” was “the *915 central component” of the Second Amendment’s right “to keep and bear Arms” rested upon its view that the Amendment “codified a pre-existing right” that had “nothing whatever to do with service in a militia.” 554 U. S., at 599, 592-593 . That view in turn rested in significant part upon Blackstone having described the right as “ ‘the right of having and using arms for self-preservation and defence,’” which reflected the provision in the English Declaration of Right of 1689 that gave the King’s Protestant ‘“subjects’” the right to “ ‘have arms for their defence suitable to their Conditions, and as allowed by Law.’ ” Id., at 593-594 (quoting 1 W. Blackstone, Commentaries on the Laws of England 140 (1765) (hereinafter Blackstone), and 1 W. & M., ch. 2, § 7, in 3 Eng. Stat. at Large 441 (1689)). The Framers, said the majority, understood that right “as permitting a citizen to ‘repe[l] force by force’ when ‘the intervention of society in his behalf, may be too late to prevent an injury.’ ” 554 U. S., at 595 (quoting 1 Blackstone’s Commentaries 145-146, n. 42 (S. Tucker ed. 1803)). The historians now tell us, however, that the right to which Blackstone referred had, not nothing, but everything, to do with the militia. As properly understood at the time of the English Civil Wars, the historians claim, the right to bear arms “ensured that Parliament had the power” to arm the citizenry: “to defend the realm” in the case of a foreign enemy, and to “secure the right of ‘self-preservation,’” or “self-defense,” should “the sovereign usurp the English Constitution.” English Historians’ Brief 3, 8-13, 23-24 (emphasis added). Thus, the Declaration of Right says that private persons can possess guns only “ ‘as allowed by law.’ ” Id., at 13. See id., at 20-24. Moreover, when Blackstone referred to “ ‘the right of having and using arms for self-preservation and defence,’ ” he was referring to the right of the people “to take part in the militia to defend their political liberties,” and to the right of Parliament (which represented the people) to raise a militia even when the King sought to deny it *916 that power. Id., at 4, 24-27 (emphasis added). Nor can the historians find any convincing reason to believe that the Framers had something different in mind than what Blackstone himself meant. Compare Heller, supra, at 593-595 , with English Historians’ Brief 28-40. The historians concede that at least one historian takes a different position, see id., at 7, but the Court, they imply, would lose a poll taken among professional historians of this period, say, by a vote of 8 to 1. If history, and history alone, is what matters, why would the Court not now reconsider Heller in light of these more recently published historical views? See Leegin Creative Leather Products, Inc. v. PSKS, Inc., 551 U. S. 877, 923-924 (2007) (Breyer, J., dissenting) (noting that stare decisis interests are at their lowest with respect to recent and erroneous constitutional decisions that create unworkable legal regimes); Citizens United v. Federal Election Comm’n, 558 U. S. 310, 362-363 (2010) (listing similar factors); see also Wallace v. Jaffree, 472 U. S. 38, 99 (1985) (Rehnquist, J., dissenting) (“[S]tare decisis may bind courts as to matters of law, but it cannot bind them as to matters of history”). At the least, where Heller’s historical foundations are so uncertain, why extend its applicability? My aim in referring to this history is to illustrate the reefs and shoals that lie in wait for those nonexpert judges who place virtually determinative weight upon historical considerations. In my own view, the Court should not look to history alone but to other factors as well — above all, in cases where the history is so unclear that the experts themselves strongly disagree. It should, for example, consider the basic values that underlie a constitutional provision and their contemporary significance. And it should examine as well the relevant consequences and practical justifications that might, or might not, warrant removing an important question from the democratic decisionmaking process. See ante, at 873- *917 877 (Stevens, J., dissenting) (discussing shortcomings of an exclusively historical approach). II A In my view, taking Heller as a given, the Fourteenth Amendment does not incorporate the Second Amendment right to keep and bear arms for purposes of private self-defense. Under this Court’s precedents, to incorporate the private self-defense right the majority must show that the right is, e. g., “fundamental to the American scheme of justice,” Duncan v. Louisiana, 391 U. S. 145, 149 (1968); see ibid.., n. 14; see also ante, at 791 (plurality opinion) (finding that the right is “fundamental” and therefore incorporated). And this it fails to do. The majority here, like that in Heller , relies almost exclusively upon history to make the necessary showing. Ante, at 768-780. But to do so for incorporation purposes is both wrong and dangerous. As Justice Stevens points out, our society has historically made mistakes — for example, when considering certain 18th- and 19th-century property rights to be fundamental. Ante, at 876. And in the incorporation context, as elsewhere, history often is unclear about the answers. See Part I, supra; Part III, infra. Accordingly, this Court, in considering an incorporation question, has never stated that the historical status of a right is the only relevant consideration. Rather, the Court has either explicitly or implicitly made clear in its opinions that the right in question has remained fundamental over time. See, e. g., Apodaca v. Oregon, 406 U. S. 404, 410 (1972) (plurality opinion) (stating that the incorporation “inquiry must focus upon the function served” by the right in question in “contemporary society” (emphasis added)); Duncan, supra, at 154 (noting that the right in question “continues to receive strong support”); Klopfer v. North Carolina, 386 *918 U. S. 213,226 (1967) (same). And, indeed, neither of the parties before us in this case has asked us to employ the majority’s history-constrained approach. See Brief for Petitioners 67-69 (arguing for incorporation based on trends in contemporary support for the right); Brief for Respondent City of Chicago et al. 23-31 (hereinafter Brief for Municipal Respondents) (looking to current state practices with respect to the right). I thus think it proper, above all where history provides no clear answer, to look to other factors in considering whether a right is sufficiently “fundamental” to remove it from the political process in every State. I would include among those factors the nature of the right; any contemporary disagreement about whether the right is fundamental; the extent to which incorporation will further other, perhaps more basic, constitutional aims; and the extent to which incorporation will advance or hinder the Constitution’s structural aims, including its division of powers among different governmental institutions (and the people as well). Is incorporation needed, for example, to further the Constitution’s effort to ensure that the government treats each individual with equal respect? Will it help maintain the democratic form of government that the Constitution foresees? In a word, will incorporation prove consistent, or inconsistent, with the Constitution’s efforts to create governmental institutions well suited to the carrying out of its constitutional promises? Finally, I would take account of the Framers’ basic reason for believing the Court ought to have the power of judicial review. Alexander Hamilton feared granting that power to Congress alone, for he feared that Congress, acting as judges, would not overturn as unconstitutional a popular statute that it had recently enacted, as legislators. The Federalist No. 78, p. 405 (G. Carey & J. McClellan eds. 2001) (“This independence of the judges is equally requisite to guard the constitution and the rights of individuals from the *919 effects of those ill humours which” can, at times, lead to “serious oppressions of the minor party in the community”). Judges, he thought, may find it easier to resist popular pressure to suppress the basic rights of an unpopular minority. See United States v. Carotene Products Co., 304 U. S. 144 , 152, n. 4 (1938). That being so, it makes sense to ask whether that particular comparative judicial advantage is relevant to the case at hand. See, e. g., J. Ely, Democracy and Distrust (1980). B How do these considerations apply here? For one thing, I would apply them only to the private self-defense right directly at issue. After all, the Amendment’s militia-related purpose is primarily to protect States from federal regulation, not to protect individuals from militia-related regulation. Heller, 554 U. S., at 599 ; see also Miller, 307 U. S., at 178 . Moreover, the Civil War Amendments, the electoral process, the courts, and numerous other institutions today help to safeguard the States and the people from any serious threat of federal tyranny How are state militias additionally necessary? It is difficult to see how a right that, as the majority concedes, has “largely faded as a popular concern” could possibly be so fundamental that it would warrant incorporation through the Fourteenth Amendment. Ante, at 770. Hence, the incorporation of the Second Amendment cannot be based on the militia-related aspect of what Heller found to be more extensive Second Amendment rights. For another thing, as Heller concedes, the private self-defense right that the Court would incorporate has nothing to do with “the reason” the Framers “codified” the right to keep and bear arms “in a written Constitution.” 554 U. S., at 599 (emphasis added). Heller immediately adds that the self-defense right was nonetheless “the central component of the right.” Ibid. In my view, this is the historical equivalent of a claim that water runs uphill. See Part I, supra. But, taking it as valid, the Framers’ basic reasons for includ *920 ing language in the Constitution would nonetheless seem more pertinent (in deciding about the contemporary importance of a right) than the particular scope 17th- or 18th-century listeners would have then assigned to the words they used. And examination of the Framers’ motivation tells us they did not think the private armed self-defense right was of paramount importance. See Amar, The Bill of Rights as a Constitution, 100 Yale L. J. 1131, 1164 (1991) (“[T]o see the [Second] Amendment as primarily concerned with an individual right to hunt, or protect one’s home,” would be “like viewing the heart of the speech and assembly clauses as the right of persons to meet to play bridge”); see also, e. g., Rakove, The Second Amendment: The Highest Stage of Originalism, 76 Chi.-Kent L. Rev. 103 , 127-128 (2000); Brief for Historians on Early American Legal, Constitutional, and Pennsylvania History as Amici Curiae 22-33. Further, there is no popular consensus that the private self-defense right described in Heller is fundamental. The plurality suggests that two amici briefs filed in the case show such a consensus, see ante, at 789, but, of course, numerous amici briefs have been filed opposing incorporation as well. Moreover, every State regulates firearms extensively, and public opinion is sharply divided on the appropriate level of regulation. Much of this disagreement rests upon empirical considerations. One side believes the right essential to protect the lives of those attacked in the home; the other side believes it essential to regulate the right in order to protect the lives of others attacked with guns. It seems unlikely that definitive evidence will develop one way or the other. And the appropriate level of firearm regulation has thus long been, and continues to be, a hotly contested matter of political debate. See, e. g., Siegel, Dead or Alive: Originalism as Popular Constitutionalism in Heller , 122 Harv. L. Rev. 191 , 201-245 (2008). (Numerous sources supporting arguments and data in Part II-B can be found in the Appendix, infra.) *921 Moreover, there is no reason here to believe that incorporation of the private self-defense right will further any other or broader constitutional objective. We are aware of no argument that gun-control regulations target or are passed with the purpose of targeting “discrete and insular minorities.” Carolene Products Co., supra, at 153, n. 4; see, e. g., ante, at 904-905 (Stevens, J., dissenting). Nor will incorporation help to ensure equal respect for individuals. Unlike the First Amendment’s rights of free speech, free press, assembly, and petition, the private self-defense right does not constitute a necessary part of the democratic process that the Constitution seeks to establish. See, e. g., Whitney v. California, 274 U. S. 357, 377 (1927) (Brandeis, J., concurring). Unlike the First Amendment’s religious protections, the Fourth Amendment’s protection against unreasonable searches and seizures, the Fifth and Sixth Amendments’ insistence upon fair criminal procedure, and the Eighth Amendment’s protection against cruel and unusual punishments, the private self-defense right does not significantly seek to protect individuals who might otherwise suffer unfair or inhumane treatment at the hands of a majority. Unlike the protections offered by many of these same Amendments, it does not involve matters as to which judges possess a comparative expertise, by virtue of their close familiarity with the justice system and its operation. And, unlike the Fifth Amendment’s insistence on just compensation, it does not involve a matter where a majority might unfairly seize for itself property belonging to a minority. Finally, incorporation of the right will work a significant disruption in the constitutional allocation of decisionmaking authority, thereby interfering with the Constitution’s ability to further its objectives. First, on any reasonable accounting, the incorporation of the right recognized in Heller would amount to a significant incursion on a traditional and important area of state concern, altering the constitutional relationship between the *922 States and the Federal Government. Private gun regulation is the quintessential exercise of a State’s “police power” — i. e., the power to “protec[t] . . . the lives, limbs, health, comfort, and quiet of all persons, and the protection of all property within the State,” by enacting “all kinds of restraints and burdens” on both “persons and property.” Slaughter-House Cases, 16 Wall. 36, 62 (1873) (internal quo: tation marks omitted). The Court has long recognized that the Constitution grants the States special authority to enact laws pursuant to this power. See, e. g., Medtronic, Inc. v. Lohr, 518 U. S. 470, 475 (1996) (noting that States have “great latitude” to use their police powers (internal quotation marks omitted)); Metropolitan Life Ins. Co. v. Massachusetts, 471 U. S. 724, 756 (1985). A decade ago, we wrote that there is “no better example of the police power” than “the suppression of violent crime.” United States v. Morrison, 529 U. S. 598, 618 (2000). And examples in which the Court has deferred to state legislative judgments in respect to the exercise of the police power are legion. See, e. g., Gonzales v. Oregon, 546 U. S. 243, 270 (2006) (assisted suicide); Washington v. Glucksberg, 521 U. S. 702, 721 (1997) (same); Berman v. Parker, 348 U. S. 26, 32 (1954) (“We deal, in other words, with what traditionally has been known as the police power. An attempt to define its reach or trace its outer limits is fruitless . . . ”). Second, determining the constitutionality of a particular state gun law requires finding answers to complex empirically based questions of a kind that legislatures are better able than courts to make. See, e. g., Los Angeles v. Alameda Books, Inc., 535 U. S. 425, 440 (2002) (plurality opinion); Turner Broadcasting System, Inc. v. FCC, 520 U. S. 180, 195-196 (1997). And it may require this kind of analysis in virtually every case. Government regulation of the right to bear arms normally embodies a judgment that the regulation will help save lives. The determination whether a gun regulation is constitutional would thus almost always require the weighing of the consti *923 tutional right to bear arms against the “primary concern of every government — a concern for the safety and indeed the lives of its citizens.” United States v. Salerno, 481 U. S. 739, 755 (1987). With respect to other incorporated rights, this sort of inquiry is sometimes present. See, e. g., Brandenburg v. Ohio, 395 U. S. 444, 447 (1969) (per curiam) (free speech); Sherbert v. Verner, 374 U. S. 398, 403 (1963) (religion); Brigham City v. Stuart, 547 U. S. 398, 403-404 (2006) (Fourth Amendment); New York v. Quarles, 467 U. S. 649, 655 (1984) (Fifth Amendment); Salerno, supra, at 755 (bail). But here, this inquiry — calling for the fine tuning of protective rules — is likely to be part of a daily judicial diet. Given the competing interests, courts will have to try to answer empirical questions of a particularly difficult kind. Suppose, for example, that after a gun regulation’s adoption the murder rate went up. Without the gun regulation would the murder rate have risen even faster? How is this conclusion affected by the local recession which has left numerous people unemployed? What about budget cuts that led to a downsizing of the police force? How effective was that police force to begin with? And did the regulation simply take guns from those who use them for lawful purposes without affecting their possession by criminals? Consider too that countless gun regulations of many shapes and sizes are in place in every State and in many local communities. Does the right to possess weapons for self-defense extend outside the home? To the car? To work? What sort of guns are necessary for self-defense? Handguns? Rifles? Semiautomatic weapons? When is a gun semiautomatic? Where are different kinds of weapons likely needed? Does time of day matter? Does the presence of a child in the house matter? Does the presence of a convicted felon in the house matter? Do police need special rules permitting patdowns designed to find guns? When do registration requirements become severe to the point that they amount to an unconstitutional ban? Who can possess guns and of what kind? Aliens? Prior drug offenders? *924 Prior alcohol abusers? How would the right interact with a state or local government’s ability to take special measures during, say, national security emergencies? As the questions suggest, state and local gun regulation can become highly complex, and these “are only a few uncertainties that quickly come to mind.” Caperton v. A. T. Massey Coal Co., 556 U. S. 868, 898 (2009) (Roberts, C. J., dissenting). The difficulty of finding answers to these questions is exceeded only by the importance of doing so. Firearms cause well over 60,000 deaths and injuries in the United States each year. Those who live in urban areas, police officers, women, and children, all may be particularly at risk. And gun regulation may save their lives. Some experts have calculated, for example, that Chicago’s handgun ban has saved several hundred lives, perhaps close to 1,000, since it was enacted in 1983. Other experts argue that stringent gun regulations “can help protect police officers operating on the front lines against gun violence,” have reduced homicide rates in Washington, D. C., and Baltimore, and have helped to lower New York’s crime and homicide rates. Brief for Association of Prosecuting Attorneys et al. as Amici Curiae 13-16, 20. At the same time, the opponents of regulation cast doubt on these studies. And who is right? Finding out may require interpreting studies that are only indirectly related to a particular regulatory statute, say, one banning handguns in the home. Suppose studies find more accidents and suicides where there is a handgun in the home than where there is a long gun in the home or no gun at all? To what extent do such studies justify a ban? What if opponents of the ban put forth counterstudies? In answering such questions judges cannot simply refer to judicial homilies, such as Blackstone’s 18th-century perception that a man’s home is his castle. See 4 Blackstone 223. Nor can the plurality so simply reject, by mere assertion, the fact that “incorporation will require judges to assess the *925 costs and benefits of firearms restrictions.” Ante, at 790-791. How can the Court assess the strength of the government’s regulatory interests without addressing issues of empirical fact? How can the Court determine if a regulation is appropriately tailored without considering its impact? And how can the Court determine if there are less restrictive alternatives without considering what will happen if those alternatives are implemented? Perhaps the Court could lessen the difficulty of the mission it has created for itself by adopting a jurisprudential approach similar to the many state courts that administer a state constitutional right to bear arms. See infra, at 930 (describing state approaches). But the Court has not yet done so. Cf. Heller, 554 U. S., at 634-635 (rejecting an “ 'interest-balancing’ approach” similar to that employed by the States); ante, at 790-791 (plurality opinion). Rather, the Court has haphazardly created a few simple rules, such as that it will not touch “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 government buildings,” or “laws imposing conditions and qualifications on the commercial sale of arms.” Heller, swpra, at 626-627; ante, at 786 (plurality opinion). But why these rules and not others? Does the Court know that these regulations are justified by some special gun-related risk of death? In fact, the Court does not know. It has simply invented rules that sound sensible without being able to explain why or how Chicago’s handgun ban is different. The fact is that judges do not know the answers to the kinds of empirically based questions that will often determine the need for particular forms of gun regulation. Nor do they have readily available “tools” for finding and evaluating the technical material submitted by others. District Attorney’s Office for Third Judicial Dist. v. Osborne, 557 U. S. 52, 74 (2009); see also Turner Broadcasting, 520 U. S., at 195— 196. Judges cannot easily make empirically based predic *926 tions; they have no way to gather and evaluate the data required to see if such predictions are accurate; and the nature of litigation and concerns about stare decisis farther make it difficult for judges to change course if predictions prove inaccurate. Nor can judges rely upon local community views and values when reaching judgments in circumstances where prediction is difficult because the basic facts are unclear or unknown. At the same time, there is no institutional need to send judges off on this “mission-almost-impossible.” Legislators are able to “amass the stuff of actual experience and cull conclusions from it.” United States v. Gainey, 380 U. S. 63, 67 (1965). They are far better suited than judges to uncover facts and to understand their relevance. And legislators, unlike Article III judges, can be held democratically responsible for their empirically based and value-laden conclusions. We have thus repeatedly affirmed our preference for “legislative not judicial solutions” to this kind of problem, see, e. g., Patsy v. Board of Regents of Fla., 457 U. S. 496, 513 (1982), just as we have repeatedly affirmed the Constitution’s preference for democratic solutions legislated by those whom the people elect. In New State Ice Co. v. Liebmann, 285 U. S. 262, 310-311 (1932), Justice Brandéis stated in dissent: “Some people assert that our present plight is due, in part, to the limitations set by courts upon experimentation in the fields of social and economic science; and to the discouragement to which proposals for betterment there have been subjected otherwise. There must be power in the States and the Nation to remould, through experimentation, our economic practices and institutions to meet changing social and economic needs. I cannot believe that the framers of the Fourteenth Amendment, or the States which ratified it, intended to deprive us of the power to correct [the social problems we face].” *927 There are 50 state legislatures. The fact that this Court may already have refused to take this wise advice with respect to Congress in Heller is no reason to make matters worse here. Third, the ability of States to reflect local preferences and conditions — both key virtues of federalism — here has particular importance. The incidence of gun ownership varies substantially as between crowded cities and uncongested rural communities, as well as among the different geographic regions of the country. Thus, approximately 60% of adults who live in the relatively sparsely populated Western States of Alaska, Montana, and Wyoming report that their household keeps a gun, while fewer than 15% of adults in the densely populated Eastern States of Rhode Island, New Jersey, and Massachusetts say the same. The nature of gun violence also varies as between rural communities and cities. Urban centers face significantly greater levels of firearm crime and homicide, while rural communities have proportionately greater problems with nonhomicide gun deaths, such as suicides and accidents. And idiosyncratic local factors can lead to two cities finding themselves in dramatically different circumstances: For example, in 2008, the murder rate was 40 times higher in New Orleans than it was in Lincoln, Nebraska. It is thus unsurprising that States and local communities have historically differed about the need for gun regulation as well as about its proper level. Nor is it surprising that “primarily, and historically,” the law has treated the exercise of police powers, including gun control, as “matter[s] of local concern.” Medtronic, 518 U. S., at 475 (internal quotation marks omitted). Fourth, although incorporation of any right removes decisions from the democratic process, the incorporation of this particular right does so without strong offsetting justification — as the example of Oak Park’s handgun ban helps to show. See Oak Park, Ill., Village Code §27-2-1 (2007). *928 Oak Park decided to ban handguns in 1983, after a local attorney was shot to death with a handgun that his assailant had smuggled into a courtroom in a blanket. Brief for Oak Park Citizens Committee for Handgun Control as Amicus Curiae 1, 21. A citizens committee spent months gathering information about handguns. Id., at 21. It secured 6,000 signatures from community residents in support of a ban. Id., at 21-22. And the village board enacted a ban into law. Id., at 22. Subsequently, at the urging of ban opponents the board held a community referendum on the matter. Ibid. The citizens committee argued strongly in favor of the ban. Id., at 22-23. It pointed out that most guns owned in Oak Park were handguns and that handguns were misused more often than citizens used them in self-defense. Id., at 23. The ban opponents argued just as strongly to the contrary. Ibid. The public decided to keep the ban by a vote of 8,031 to 6,368. Ibid. And since that time, Oak Park now tells us, crime has decreased and the community has seen no accidental handgun deaths. Id., at 2. Given the empirical and local value-laden nature of the questions that lie at the heart of the issue, why, in a Nation whose Constitution foresees democratic decisionmaking, is it so fundamental a matter as to require taking that power from the people? What is it here that the people did not know? What is it that a judge knows better? * * * In sum, the police power, the superiority of legislative decisionmaking, the need for local decisionmaking, the comparative desirability of democratic decisionmaking, the lack of a manageable judicial standard, and the life-threatening harm that may flow from striking down regulations all argue against incorporation. Where the incorporation of other rights has been at issue, some of these problems have arisen. But in this instance all these problems are present, all at *929 the same time, and all are likely to be present in most, perhaps nearly all, of the cases in which the constitutionality of a gun regulation is at issue. At the same time, the important factors that favor incorporation in other instances— e. g., the protection of broader constitutional objectives — are not present here. The upshot is that all factors militate against incorporation — with the possible exception of historical factors. Ill I must, then, return to history. The Court, in seeking to justify incorporation, asks whether the interests the Second Amendment protects are “‘deeply rooted in this Nation’s history and tradition.’” Ante, at 767 (quoting Glucksberg, 521 U. S., at 721 ). It looks to selected portions of the Nation’s history for the answer. And it finds an affirmative reply. As I have made clear, I do not believe history is the only pertinent consideration. Nor would I read history as broadly as the majority does. In particular, since we here are evaluating a more particular right — namely, the right to bear arms for purposes of private self-defense — general historical references to the “right to keep and bear arms” are not always helpful. Depending upon context, early historical sources may mean to refer to a militia-based right — a matter of considerable importance 200 years ago — which has, as the majority points out, “largely faded as a popular concern.” Ante, at 770. There is no reason to believe that matters of such little contemporary importance should play a significant role in answering the incorporation question. See Apodaca,