McDonald v. Chicago (Alito)

41

right itself.” Ibid.

V
A

We turn, finally, to the two dissenting opinions.
JUSTICE STEVENS’’ eloquent opinion covers ground already
addressed, and therefore little need be added in response.
JUSTICE STEVENS would “”‘‘ground the prohibitions against
state action squarely on due process, without intermediate
reliance on any of the first eight Amendments.'” ” Post, at 8
(quoting Malloy, 378 U. S., at 24 (Harlan, J., dissenting)).
The question presented in this case, in his view, ““is
whether the particular right asserted by petitioners ap-
plies to the States because of the Fourteenth Amendment
itself, standing on its own bottom.”” Post, at 27. He would
hold that “[t]he rights protected against state infringe-
ment by the Fourteenth Amendment’s Due Process Clause
need not be identical in shape or scope to the rights pro-
tected against Federal Government infringement by the
various provisions of the Bill of Rights.”” Post, at 9.

As we have explained, the Court, for the past half-
century, has moved away from the two-track approach. If
we were now to accept JUSTICE STEVENS’’ theory across the
board, decades of decisions would be undermined. We
assume that this is not what is proposed. What is urged
instead, it appears, is that this theory be revived solely for
the individual right that Heller recognized, over vigorous
dissents.

The relationship between the Bill of Rights’’ guarantees
and the States must be governed by a single, neutral
principle. It is far too late to exhume what Justice Bren-
nan, writing for the Court 46 years ago, derided as ““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.”” Malloy,
supra, at 10-–11 (internal quotation marks omitted).

42

JUSTICE BREYER’’s dissent makes several points to which
we briefly respond. To begin, while there is certainly room
for disagreement about Heller’’s analysis of the history of
the right to keep and bear arms, nothing written since
Heller persuades us to reopen the question there decided.
Few other questions of original meaning have been as
thoroughly explored.

JUSTICE BREYER’’s conclusion that the Fourteenth
Amendment does not incorporate the right to keep and
bear arms appears to rest primarily on four factors: First,
“”there is no popular consensus”” that the right is funda-
mental, post, at 9; second, the right does not protect mi-
norities or persons neglected by those holding political
power, post, at 10; third, incorporation of the Second
Amendment right would “”amount to a significant incur-
sion on a traditional and important area of state concern,
altering the constitutional relationship between the States
and the Federal Government”” and preventing local varia-
tions, post, at 11; and fourth, determining the scope of the
Second Amendment right in cases involving state and
local laws will force judges to answer difficult empirical
questions regarding matters that are outside their area of
expertise, post, at 11–-16. Even if we believed that these
factors were relevant to the incorporation inquiry, none of
these factors undermines the case for incorporation of the
right to keep and bear arms for self-defense.

First, we have never held that a provision of the Bill of
Rights applies to the States only if there is a ““popular
consensus”” that the right is fundamental, and we see no
basis for such a rule. But in this case, as it turns out,
there is evidence of such a consensus. An amicus brief
submitted by 58 Members of the Senate and 251 Members
of the House of Representatives urges us to hold that the
right to keep and bear arms is fundamental. See Brief for
Senator Kay Bailey Hutchison et al. as Amici Curiae 4.