Suck it, Daley! The Constitution won today!
Incorporation always restricts experimentation and local variations, but that has not stopped the Court from incorporating virtually every other provision of the Bill of Rights. “[T]he enshrinement of constitutional rights necessarily takes certain policy choices off the table.” Heller, 554 U. S., at __ (slip op., at 64). This conclusion is no more remarkable with respect to the Second Amendment than it is with respect to all the other limitations on state power found in the Constitution.
In Heller, we held that the Second Amendment protects the right to possess a handgun in the home for the purpose of self-defense. Unless considerations of stare decisis counsel otherwise, a provision of the Bill of Rights that protects a right that is fundamental from an American perspective applies equally to the Federal Government and the States. See Duncan, 391 U. S., at 149, and n. 14. We therefore hold that the Due Process Clause of the Fourteenth Amendment incorporates the Second Amendment right recognized in Heller.
Finally, the Supreme Court definitively states that the Second Amendment right to keep and bear arms protects that right from state and local bans, as well as federal.
The opinion also confirms the importance of our history – a uniquely American history – in American jurisprudence. It references and explains the importance of historical language in the way our laws were written and the context in which the Second Amendment was ratified.
Our history is important, people. It is the fundamental principles on which this nation is based that help determine not only why our laws were written, but how to best implement them. Certain rights are basic. Certain rights are fundamental. The men who wrote the Bill of Rights recognized this, and the Supreme Court today affirmed it.
And bonus points for the magnificent spanking Justice Scalia administered to Justice Stevens in the concurring opinion.
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 35. 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 3536, 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 37. 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 lifeas 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 Post, at 3738. 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.
Take the time to read this decision. Remember, it’s in .pdf format, so you’ll need Adobe Reader to view it.