McDonald v. Chicago (Alito)

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In sum, it is clear that the Framers and ratifiers of the
Fourteenth Amendment counted the right to keep and
bear arms among those fundamental rights necessary to
our system of ordered liberty.

2

Despite all this evidence, municipal respondents con-
tend that Congress, in the years immediately following the
Civil War, merely sought to outlaw ““discriminatory meas-
ures taken against freedmen, which it addressed by adopt-
ing a non-discrimination principle”” and that even an
outright ban on the possession of firearms was regarded as
acceptable, “”so long as it was not done in a discriminatory
manner.”” Brief for Municipal Respondents 7. They argue
that Members of Congress overwhelmingly viewed §1 of
the Fourteenth Amendment “”as an antidiscrimination
rule,”” and they cite statements to the effect that the sec-
tion would outlaw discriminatory measures. Id., at 64.
This argument is implausible.

First, while §1 of the Fourteenth Amendment contains
““an antidiscrimination rule,”” namely, the Equal Protection
Clause, municipal respondents can hardly mean that §1
does no more than prohibit discrimination. If that were
so, then the First Amendment, as applied to the States,
would not prohibit nondiscriminatory abridgments of the
rights to freedom of speech or freedom of religion; the
Fourth Amendment, as applied to the States, would not
prohibit all unreasonable searches and seizures but only
discriminatory searches and seizures-—and so on. We
assume that this is not municipal respondents’’ view, so
what they must mean is that the Second Amendment
should be singled out for special—-and specially unfavor-
able—treatment. We reject that suggestion.

Second, municipal respondents’ argument ignores the
—————— ——————-
36, 42).

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clear terms of the Freedmen’’s Bureau Act of 1866, which
acknowledged the existence of the right to bear arms. If
that law had used language such as ““the equal benefit of
laws concerning the bearing of arms,”” it would be possible
to interpret it as simply a prohibition of racial discrimina-
tion. But §14 speaks of and protects ““the constitutional
right to bear arms,”” an unmistakable reference to the
right protected by the Second Amendment. And it pro-
tects the ““full and equal benefit”” of this right in the States.
14 Stat. 176–177. It would have been nonsensical for
Congress to guarantee the full and equal benefit of a
constitutional right that does not exist.

Third, if the 39th Congress had outlawed only those
laws that discriminate on the basis of race or previous
condition of servitude, African Americans in the South
would likely have remained vulnerable to attack by many
of their worst abusers: the state militia and state peace
officers. In the years immediately following the Civil War,
a law banning the possession of guns by all private citi-
zens would have been nondiscriminatory only in the for-
mal sense. Any such law-—like the Chicago and Oak Park
ordinances challenged here-—presumably would have
permitted the possession of guns by those acting under the
authority of the State and would thus have left firearms in
the hands of the militia and local peace officers. And as
the Report of the Joint Committee on Reconstruction
revealed, see supra, at 24-–25, those groups were widely
involved in harassing blacks in the South.

Fourth, municipal respondents’’ purely antidiscrimina-
tion theory of the Fourteenth Amendment disregards the
plight of whites in the South who opposed the Black
Codes. If the 39th Congress and the ratifying public had
simply prohibited racial discrimination with respect to the
bearing of arms, opponents of the Black Codes would have
been left without the means of self-defense-—as had aboli-
tionists in Kansas in the 1850’’s.