McDonald v. Chicago (Alito)


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.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

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., 570 [at ___, n. 23 (slip op., at 48, n. 23)]. [citation needed -ed.]
—————— ———————-
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).


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. 570, [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

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