McDonald v. City of Chicago, 177 L. Ed. 2d 894 (2010)

See United States v. Cruikshank, 92 U.S. 542, 553, 23 L. Ed. 588 (1876); Presser v. Illinois, 116 U.S. 252, 265, 6 S. Ct. 580, 29 L. Ed. 615 (1886); Miller v. Texas, 153 U.S. 535, 538, 14 S. Ct. 874, 38 L. Ed. 812 (1894). This is not to say that I agree with all other aspects of these decisions.

Cf., e.g., Currie, The Reconstruction Congress, 75 U. Chi. L. Rev. 383, 406 (2008) (finding “some support in the legislative history for no fewer than four interpretations’’ of the Privileges or Immunities Clause, two of which contradict petitioners’ submission); Green, The Original Sense of the (Equal) Protection Clause: Subsequent Interpretation and Application, 19 Geo. Mason U. Civ. Rights L. J. 219, 255-277 (2009) (providing evidence that the Clause was originally conceived of as an antidiscrimination measure, guaranteeing equal rights for black citizens); Rosenthal, The New Originalism Meets the Fourteenth Amendment: Original Public Meaning and the Problem of Incorporation, 18 J. Contemp. Legal Issues 361 (2009) (detailing reasons to doubt that the Clause was originally understood to apply the Bill of Rights to the States); Hamburger, Privileges or Immunities, 105 Nw. U. L. Rev. 61 (2011) (arguing that the Clause was meant to ensure freed slaves were afforded “the Privileges and Immunities’’ specified in Article IV, § 2, cl. 1, of the Constitution). Although he urges its elevation in our doctrine, Justice Thomas has acknowledged that, in seeking to ascertain the original meaning of the Privileges or Immunities Clause, “[l]egal scholars agree on little beyond the conclusion that the Clause does not mean what the Court said it meant in 1873.’’ Saenz v. Roe, 526 U.S. 489, 522, n. 1, 119 S. Ct. 1518, 143 L. Ed. 2d 689 (1999) (dissenting opinion); accord, ante, at 758, 177 L. Ed. 2d, at 908 (plurality opinion).

It is no secret that the desire to “displace” major “portions of our equal protection and substantive due process jurisprudence” animates some of the passion that attends this interpretive issue. Saenz, 526 U.S., at 528, 119 S. Ct. 1518, 143 L. Ed. 2d 689 (Thomas, J., dissenting).

Wilkinson, The Fourteenth Amendment Privileges or Immunities Clause, 12 Harv. J. L. & Pub. Pol’y 43, 52 (1989). Judge Wilkinson’s point is broader than the privileges or immunities debate. As he observes, “there may be more structure imposed by provisions subject to generations of elaboration and refinement than by a provision in its pristine state. The fortuities of uneven constitutional development must be respected, not cast aside in the illusion of reordering the landscape anew.” Id., at 51-52; see also Washington v. Glucksberg, 521 U.S. 702, 759, n. 6, 117 S. Ct. 2258, 138 L. Ed. 2d 772 (1997) (Souter, J., concurring in judgment) (acknowledging that, “[t]o a degree,” the Slaughter-House “decision may have led the Court to look to the Due Process Clause as a source of substantive rights”).

See, e.g., Ely, The Oxymoron Reconsidered: Myth and Reality in the Origins of Substantive Due Process, 16 Const. Commentary 315, 326-327 (1999) (concluding that founding-era “American statesmen accustomed to viewing due process through the lens of [Sir Edward] Coke and [William] Blackstone could [not] have failed to understand due process as encompassing substantive as well as procedural terms’’); Gedicks, An Originalist Defense of Substantive Due Process: Magna Carta, Higher-Law Constitutionalism, and the Fifth Amendment, 58 Emory L. J. 585, 594 (2009) (arguing “that one widely shared understanding of the Due Process Clause of the Fifth Amendment in the late eighteenth century encompassed judicial recognition and enforcement of unenumerated substantive rights’’); Maltz, Fourteenth Amendment Concepts in the Antebellum Era, 32 Am. J. Legal Hist. 305, 317-318 (1988) (explaining that in the antebellum era a “substantial number of states,’’ as well as antislavery advocates, “imbued their [constitutions’] respective due process clauses with a substantive content’’); Tribe, Taking Text and Structure Seriously: Reflections on Free-Form Method in Constitutional Interpretation, 108 Harv. L. Rev. 1221, 1297, n. 247 (1995) *973(“[T]he historical evidence points strongly toward the conclusion that, at least by 1868 even if not in 1791, any state legislature voting to ratify a constitutional rule banning government depriva tions of ‘life, liberty, or property, without due process of law’ would have understood that ban as having substantive as well as procedural content, given that era’s premise that, to qualify as ‘law,’ an enactment would have to meet substantive requirements of rationality, non-oppressiveness, and evenhandedness”); see also Stevens, The Third Branch of Liberty, 41 U. Miami L. Rev. 277, 290 (1986) (“In view of the number of cases that have given substantive content to the term liberty, the burden of demonstrating that this consistent course of decision was unfaithful to the intent of the Framers is surely a heavy one’’).

1 L. Tribe, American Constitutional Law § 8-1, p. 1335 (3d ed. 2000).

The Ninth Amendment provides: “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.’’

Stevens, The Bill of Rights: A Century of Progress, 59 U. Chi. L. Rev. 13, 20 (1992); see Fitzgerald, 523 F.2d, at 719-720; Stevens, 41 U. Miami L. Rev., at 286-289; see also Greene, The So-Called Right to Privacy, 43 U. C. D. L. Rev. 715, 725-731 (2010).

See also Gitlow, 268 U.S., at 672, 45 S. Ct. 625, 69 L. Ed. 1138 (Holmes, J., dissenting) (“The general principle of free speech, it seems to me, must be taken to be included in the Fourteenth Amendment, in view of the scope that has been given to the word ‘liberty’ as there used, although perhaps it may be accepted with a somewhat larger latitude of interpretation than is allowed to Congress by the sweeping language that governs or ought to govern the laws of the United States’’). Subsequent decisions repeatedly reaffirmed that persons hold free speech rights against the States on account of the Fourteenth Amendment’s liberty clause, not the First Amendment per se. See, e.g., NAACP v. Alabama ex rel. Patterson, 357 U.S. 449, 460, 466, 78 S. Ct. 1163, 2 L. Ed. 2d 1488 (1958); Cantwell v. Connecticut, 310 U.S. 296, 303, 60 S. Ct. 900, 84 L. Ed. 1213 (1940); Thornhill v. Alabama, 310 U.S. 88, 95, and n. 7, 60 S. Ct. 736, 84 L. Ed. 1093 (1940); see also McIntyre v. Ohio Elections Comm’n, 514 U.S. 334, 336, n. 1, 115 S. Ct. 1511, 131 L. Ed. 2d 426 (1995) (“The term ‘liberty’ in the Fourteenth Amendment to the Constitution makes the First *975Amendment applicable to the States”). Classic opinions written by Justice Cardozo and Justice Frankfurter endorsed the same basic approach to “incorporation,” with the Fourteenth Amend ment taken as a distinct source of rights independent from the first eight Amendments. Palko v. Connecticut, 302 U.S. 319, 322-328, 58 S. Ct. 149, 82 L. Ed. 288 (1937) (opinion for the Court by Cardozo, J.); Adamson v. California, 332 U.S. 46, 59-68, 67 S. Ct. 1672, 91 L. Ed. 1903 (1947) (Frankfurter, J., concurring).

See also Wolf v. Colorado, 338 U.S. 25, 26, 69 S. Ct. 1359, 93 L. Ed. 1782 (1949) (“The notion that the ‘due process of law’ guaranteed by the Fourteenth Amendment is shorthand for the first eight amendments of the Constitution . . . has been rejected by this Court again and again, after impressive consideration. . . . The issue is closed”). Wolf s holding on the exclusionary rule was overruled by Mapp v. Ohio, 367 U.S. 643, 81 S. Ct. 1684, 6 L. Ed. 2d 1081 (1961), but the principle just quoted has never been disturbed. It is notable that Mapp, the case that launched the modem “doctrine of ad hoc," “ ‘jot-for-jot’ ” incorporation, Williams v. Florida, 399 U.S. 78, 130-131, 90 S. Ct. 1893, 26 L. Ed. 2d 446 (1970) (Harlan, J., concurring in result), expressly held “that the exclusionary rule is an essential part of both the Fourth and Fourteenth Amendments.” 367 U.S., at 657, 81 S. Ct. 1684, 6 L. Ed. 2d 1081 (emphasis added).

I can hardly improve upon the many passionate defenses of this position that Justice Harlan penned during his tenure on the Court. See Williams, 399 U.S., at 131, n. 14, 90 S. Ct. 1893, 26 L. Ed. 2d 446 (opinion concurring in result) (cataloging opinions).

See, e.g., Pet. for Cert. in Bowen v. Oregon, O. T. 2009, No. 08-1117, p. i, cert. denied, 558 U.S. 815, 130 S. Ct. 52, 175 L. Ed. 2d 21 (2009) (request to overrule Apodaca); Pet. for Cert, in Lee v. Louisiana, O. T. 2008, No. 07-1523, p. i, cert. denied, 555 U.S. 823, 129 S. Ct. 130, 172 L. Ed. 2d 37 (2008) (same); Pet. for Cert. in Logan v. Florida, O. T. 2007, No. 07-7264, pp. 14-19, cert. denied, 552 U.S. 1189, 128 S. Ct. 1222, 170 L. Ed. 2d 76 (2008) (request to overrule Williams).

The vast majority of States already recognize a right to keep and bear arms in their own constitutions, see Volokh, State Constitutional Rights To Keep and Bear Arms, 11 Tex. Rev. L. & Politics 191 (2006) (cataloging provisions); Brief for Petitioners 69 (observing that “[t]hese Second Amendment analogs are effective and consequential”), but the States vary widely in their *978regulatory schemes, their traditions and cultures of firearm use, and their problems relating to gun violence. If federal and state courts must harmonize their review of gun-control laws under the Second Amendment, the resulting jurisprudence may prove significantly more deferential to those laws than the status quo ante. Once it has been established that a single legal standard must govern nationwide, federal courts will face a profound pressure to reconcile that standard with the diverse interests of the States and their long history of regulating in this sensitive area. Cf. Williams, 399 U.S., at 129-130, 90 S. Ct. 1893, 26 L. Ed. 2d 446 (Harlan, J., concurring in result) (noting “ ‘backlash’ ” potential of jot-for-jot incorporation); Grant, Felix Frankfurter: A Dissenting Opinion, 12 UCLA L. Rev. 1013, 1038 (1965) (“If the Court will not reduce the requirements of the fourteenth amendment below the federal gloss that now overlays the Bill of Rights, then it will have to reduce that gloss to the point where the states can live with it’’). Amici argue persuasively that, post-“incorporation,’’ federal courts will have little choice but to fix a highly flexible standard of review if they are to avoid leaving federalism and the separation of powers—not to mention gun policy—in shambles. See Brief for Brady Center to Prevent Gun Violence et al. (hereinafter Brady Center Brief).

Justice Cardozo’s test itself built upon an older line of decisions. See, e.g., Chicago, B. & Q. R. Co. v. Chicago, 166 U.S. 226, 237, 17 S. Ct. 581, 41 L. Ed. 979 (1897) (discussing “limitations on [state] power which grow out of the essential nature of all free governments [and] implied reservations of individual rights, . . . and which are respected by all governments entitled to the name’’ (internal quotation marks omitted)).

See Palko, 302 U.S., at 326, n. 3, 58 S. Ct. 149, 82 L. Ed. 288; see also, e.g., Lawrence v. Texas, 539 U.S. 558, 572-573, 576-577, 123 S. Ct. 2472, 156 L. Ed. 2d 508 (2003); Glucksberg, 521 U.S., at 710-711, and n. 8, 117 S. Ct. 2258, 138 L. Ed. 2d 772.

I acknowledge that some have read the Court’s opinion in Glucksberg as an attempt to move substantive due process analysis, for all purposes, toward an exclusively historical methodology— and thereby to debilitate the doctrine. If that were ever Glucksberg's aspiration, Lawrence plainly renounced it. As between Glucksberg and Lawrence, I have little doubt which will prove the more enduring precedent.

The Court almost never asked whether the guarantee in question was deeply rooted in founding-era practice. See Brief for Respondent City of Chicago et al. 31, n. 17 (hereinafter Municipal Respondents’ Brief) (noting that only two opinions extensively discussed such history).

Cf. Robinson v. California, 370 U.S. 660, 666-668, 82 S. Ct. 1417, 8 L. Ed. 2d 758 (1962) (invalidating state statute criminalizing narcotics addiction as “cruel and unusual punishment in violation of the Fourteenth Amendment’’ based on nature of the alleged “ ‘crime,’ ’’ without historical analysis); Brief for Respondent National Rifle Association of America, Inc., et al. 29 (noting that “lynchpin’’ of incorporation test has always been “the importance of the right in question to . . . ‘liberty’ ’’ and to our “system of government’’).

I do not mean to denigrate this function, or to imply that only “new rights’’—whatever one takes that term to mean—ought to “get in’’ the substantive due process door. Ante, at 795, 177 L. Ed. 2d, at 931 (Scalia, J., concurring).

See Bowers v. Hardwick, 478 U.S. 186, 199, 106 S. Ct. 2841, 92 L. Ed. 2d 140 (1986) (Blackmun, J., dissenting) (“Like Justice Holmes, I believe that ‘[i]t is revolting to have no better reason for a rule of law than that so it was laid down in the time of Henry IV. It is still more revolting if the grounds upon which it was laid down have vanished long since, and the rule simply persists from blind imitation of the past’ ’’ (quoting Holmes, The Path of the Law, 10 Harv. L. Rev. 457, 469 (1897))).

Justice Kennedy has made the point movingly:

Contrary to Justice Scalia’s suggestion, I emphatically do not believe that “only we judges’’ can interpret the Fourteenth Amendment, ante, at 794, 177 L. Ed. 2d, at 931, or any other constitutional provision. All Americans can; all Americans should. I emphatically do believe that we judges must exercise—indeed, cannot help but exercise—our own reasoned judgment in so doing. Justice Scalia and I are on common ground in maintaining that courts should be “guided by what the American people throughout our history have thought.’’ Ibid. Where we part ways is in his view that courts should be guided only by historical considerations. There is, moreover, a tension between Justice Scalia’s concern that “courts have the last word’’ on constitutional questions, ante, at 794, n. 2, 177 L. Ed. 2d, at 931, on the one hand, and his touting of the Constitution’s Article V amendment process, ante, at 793-794, 177 L. Ed. 2d, at 931, on the other. The American people can of course reverse this Court’s rulings through that same process.

In assessing concerns about the “open-ended[ness]“ of this area of law, Collins, 503 U.S., at 125, 112 S. Ct. 1061, 117 L. Ed. 2d 261, one does well to keep in view the malleability not only of the Court’s “deeply rooted’Yfundamentality standard but also of substantive due process’ constitutional cousin, “equal protection’’ analysis. Substantive due process is sometimes accused of entailing an insufficiently “restrained methodology.’’ Glucksberg, 521 U.S., at 721, 117 S. Ct. 2258, 138 L. Ed. 2d 772. Yet “the word ‘liberty’ in the Due Process Clause seems to provide at least as much meaningful guidance as does the word ‘equal’ in the Equal Protection Clause.’’ Post, The Supreme Court 2002 Term—Foreword: Fashioning the Legal Constitution: Culture, Courts, and Law, 117 Harv. L. Rev. 4, 94, n. 440 (2003). And “[i]f the objection is instead that the text of the [Due Process] Clause warrants providing only protections of process rather than *983protections of substance,” “it is striking that even those Justices who are most theoretically opposed to substantive due process, like Scalia and Rehnquist, are also nonetheless enthusiastic about applying the equal protection component of the Due Process Clause of the Fifth Amendment to the federal government.” Ibid. (citing Adarand Constructors, Inc. v. Peña, 515 U.S. 200, 213-231, 115 S. Ct. 2097, 132 L. Ed. 2d 158 (1995)).

That one eschews a comprehensive theory of liberty does not, pace Justice Scalia, mean that one lacks “a coherent theory of the Due Process Clause,” ante, at 795, 177 L. Ed. 2d, at 932. It means that one lacks the hubris to adopt a rigid, context-independent definition of a constitutional guarantee that was deliberately framed in open-ended terms.

The notion that we should define liberty claims at the most specific level available is one of Justice Scalia’s signal contributions to the theory of substantive due process. See, e.g., Michael H. v. Gerald D., 491 U.S. 110, 127-128, n. 6, 109 S. Ct. 2333, 105 L. Ed. 2d 91 (1989) (opinion of Scalia, J.); ante, at 797, 177 L. Ed. 2d, at 933 (Scalia, J., concurring). By so narrowing the asserted right, this approach “loads the dice’’ against its recognition, Roosevelt, Forget the Fundamentals: Fixing Substantive Due Process, 8 U. Pa. J. Const. L. 983, 1002, n. 73 (2006): When one defines the liberty interest at issue in Lawrence as the freedom to perform specific sex acts, ante, at 792, 177 L. Ed. 2d, at 930, the interest starts to look less compelling. The Court today does not follow Justice Scalia’s “particularizing’’ method, Katzenhach v. Morgan, 384 U.S. 641, 649, 86 S. Ct. 1717, 16 L. Ed. 2d 828 (1966), as it relies on general historical references to keeping and bearing arms, without any close study of the States’ practice of regulating especially dangerous weapons.

In District of Columbia v. Heller, 554 U.S. 570, 595, 128 S. Ct. 2783, 171 L. Ed. 2d 637 (2008), the Court concluded, over my dissent, that the Second Amendment confers “an individual right to keep and bear arms’’ disconnected from militia service. If that conclusion were wrong, then petitioners’ “incorporation’’ claim clearly would fail, as they would hold no right against the Federal Government to be free from regulations such as the ones they challenge. Cf. post, at 919, 177 L. Ed. 2d, at 1008 (Breyer, J., dissenting). I do not understand petitioners or any of their amici to dispute this point. Yet even if Heller had never been decided—indeed, even if the Second Amendment did not exist—we would still have an obligation to address petitioners’ Fourteenth Amendment claim.

The village of Oak Park imposes more stringent restrictions that may raise additional complications. See ante, at 750, 177 L. Ed. 2d, at 904 (majority opinion) (quoting Oak Park, Ill., Village Code §§ 27-2-1 (2007), 27-1-1 (2009)). The Court, however, declined to grant certiorari on the National Rifle Association’s challenge to the Oak Park restrictions. Chicago is the only defendant in this case.

To the extent that petitioners contend the city of Chicago’s registration requirements for firearm possessors also, and separately, violate the Constitution, that claim borders on the frivolous. Petitioners make no effort to demonstrate that the requirements are unreasonable or that they impose a severe burden on the underlying right they have asserted.

Members of my generation, at least, will recall the many passionate statements of this view made by the distinguished actor, Charlton Heston.

See Municipal Respondents’ Brief 20, n. 11 (stating that at least 156 Second Amendment challenges were brought in time between Heller s issuance and brief’s filing); Brady Center Brief 3 (stating that over 190 Second Amendment challenges were brought in first 18 months since Heller); Brief for Villages of Winnetka and Skokie, Illinois, et al. as Amici Curiae 15 (stating that, in wake of Heller, municipalities have “repealed longstanding handgun laws to avoid costly litigation’’).

See, e.g., Brief for Professors of Philosophy etc.; Brief for International Law Enforcement Educators and Trainers Association et al. 29-45; Brief for Thirty-four California District Attorneys et al. 12-31.

The argument that this Court should establish any such right, however, faces steep hurdles. All 50 States already recognize self-defense as a defense to criminal prosecution, see 2 P. Robinson, Criminal Law Defenses § 132 (1984 and Supp. 2009), so this is hardly an interest to which the democratic process has been insensitive. And the States have always diverged on how exactly to implement this interest, so there is wide variety across the Nation in the types and amounts of force that may be used, the necessity of retreat, the rights of aggressors, the availability of the “castle doctrine,’’ and so forth. See Brief for Oak Park Citizens Committee for Handgun Control as Amicus Curiae 9-21; Brief for American Cities et al. as Amici Curiae 17-19; 2 W. LaPave, Substantive Criminal Law § 10.4, pp. 142-160 (2d ed. 2003). Such variation is presumed to be a healthy part of our federalist system, as the States and localities select different rules in light of different priorities, customs, and conditions. As a historical and theoretical matter, moreover, the legal status of self-defense is far more complicated than it might first appear. We have generally understood Fourteenth Amendment “liberty’’ as something one holds against direct state interference, whereas a personal right of self-defense runs primarily against other individuals; absent government tyranny, it is only when the State has failed to interfere with (violent) private conduct that self-help becomes potentially necessary. Moreover, it was a basic tenet of founding-era political philosophy that, in entering civil society and gaining ‘The advantages of mutual commerce’’ and the protections of the rule of law, one had to relinquish, to a significant degree, “that wild and savage liberty’’ one possessed in the state of nature. 1 W. Blackstone, Commentaries *125; see also, e.g., J. Locke, Second Treatise of Civil Government § 128, pp. 63-64 (J. Gough ed. 1947) (in state of nature man has power “to do whatever he thinks fit for the preservation of himself and others,’’ but this “he gives up when he joins in a . . . particular political society’’); Green v. Biddle, 8 Wheat. 1, 63, 5 L. Ed. 547 (1823) (argument for defendant) (“It is a trite maxim, that man gives up a part of his natural liberty when he enters into civil society, as the price of the blessings of that state: and it may be said, with truth, this liberty is well exchanged for the advantages which flow from law and justice’’). Some strains of founding-era thought took a very narrow view of the right to armed self-defense. See, e.g., Brief for Historians on Early American Legal, Constitutional and Pennsylvania History as Amici Curiae 6-13 (discussing Whig and Quaker theories). Just because there may be a natural or common-law right to some measure of self-defense, it hardly follows that States may not place substantial restrictions on its exercise or that this Court should recognize a constitutional right to the same.

The Second Amendment right identified in Heller is likewise clearly distinct from a right to protect oneself. In my view, the Court badly misconstrued the Second Amendment in linking it to the value of personal self-defense above and beyond the functioning of the state militias; as enacted, the Second Amendment was concerned with tyrants and invaders, and paradigmatically with the federal military, not with criminals and intruders. But even still, the Court made clear that self-defense plays a limited role in determining the scope and substance of the Amendment’s guarantee. The Court struck down the District of Columbia’s handgun ban not because of the utility of handguns for lawful self-defense, but rather because of their popularity for that purpose. See 554 U.S., at 629, 128 S. Ct. 2783, 171 L. Ed. 2d 637. And the Court’s common-use gloss on the Second Amendment right, see id., at 627, 128 S. Ct. 2783, 171 L. Ed. 2d 637, as well as its discussion of permissible limitations on the right, id., at 626-628, 128 S. Ct. 2783, 171 L. Ed. 2d 637, had little to do with self-defense.

See United States v. Cruikshank, 92 U.S. 542, 553, 23 L. Ed. 588 (1876); Presser v. Illinois, 116 U.S. 252, 265, 6 S. Ct. 580, 29 L. Ed. 615 (1886); Miller v. Texas, 153 U.S. 535, 538, 14 S. Ct. 874, 38 L. Ed. 812 (1894). This is not to say that I agree with all other aspects of these decisions.

Cf., e.g., Currie, The Reconstruction Congress, 75 U. Chi. L. Rev. 383, 406 (2008) (finding “some support in the legislative history for no fewer than four interpretations’’ of the Privileges or Immunities Clause, two of which contradict petitioners’ submission); Green, The Original Sense of the (Equal) Protection Clause: Subsequent Interpretation and Application, 19 Geo. Mason U. Civ. Rights L. J. 219, 255-277 (2009) (providing evidence that the Clause was originally conceived of as an antidiscrimination measure, guaranteeing equal rights for black citizens); Rosenthal, The New Originalism Meets the Fourteenth Amendment: Original Public Meaning and the Problem of Incorporation, 18 J. Contemp. Legal Issues 361 (2009) (detailing reasons to doubt that the Clause was originally understood to apply the Bill of Rights to the States); Hamburger, Privileges or Immunities, 105 Nw. U. L. Rev. 61 (2011) (arguing that the Clause was meant to ensure freed slaves were afforded “the Privileges and Immunities’’ specified in Article IV, § 2, cl. 1, of the Constitution). Although he urges its elevation in our doctrine, Justice Thomas has acknowledged that, in seeking to ascertain the original meaning of the Privileges or Immunities Clause, “[l]egal scholars agree on little beyond the conclusion that the Clause does not mean what the Court said it meant in 1873.’’ Saenz v. Roe, 526 U.S. 489, 522, n. 1, 119 S. Ct. 1518, 143 L. Ed. 2d 689 (1999) (dissenting opinion); accord, ante, at 758, 177 L. Ed. 2d, at 908 (plurality opinion).

It is no secret that the desire to “displace” major “portions of our equal protection and substantive due process jurisprudence” animates some of the passion that attends this interpretive issue. Saenz, 526 U.S., at 528, 119 S. Ct. 1518, 143 L. Ed. 2d 689 (Thomas, J., dissenting).

Wilkinson, The Fourteenth Amendment Privileges or Immunities Clause, 12 Harv. J. L. & Pub. Pol’y 43, 52 (1989). Judge Wilkinson’s point is broader than the privileges or immunities debate. As he observes, “there may be more structure imposed by provisions subject to generations of elaboration and refinement than by a provision in its pristine state. The fortuities of uneven constitutional development must be respected, not cast aside in the illusion of reordering the landscape anew.” Id., at 51-52; see also Washington v. Glucksberg, 521 U.S. 702, 759, n. 6, 117 S. Ct. 2258, 138 L. Ed. 2d 772 (1997) (Souter, J., concurring in judgment) (acknowledging that, “[t]o a degree,” the Slaughter-House “decision may have led the Court to look to the Due Process Clause as a source of substantive rights”).

See, e.g., Ely, The Oxymoron Reconsidered: Myth and Reality in the Origins of Substantive Due Process, 16 Const. Commentary 315, 326-327 (1999) (concluding that founding-era “American statesmen accustomed to viewing due process through the lens of [Sir Edward] Coke and [William] Blackstone could [not] have failed to understand due process as encompassing substantive as well as procedural terms’’); Gedicks, An Originalist Defense of Substantive Due Process: Magna Carta, Higher-Law Constitutionalism, and the Fifth Amendment, 58 Emory L. J. 585, 594 (2009) (arguing “that one widely shared understanding of the Due Process Clause of the Fifth Amendment in the late eighteenth century encompassed judicial recognition and enforcement of unenumerated substantive rights’’); Maltz, Fourteenth Amendment Concepts in the Antebellum Era, 32 Am. J. Legal Hist. 305, 317-318 (1988) (explaining that in the antebellum era a “substantial number of states,’’ as well as antislavery advocates, “imbued their [constitutions’] respective due process clauses with a substantive content’’); Tribe, Taking Text and Structure Seriously: Reflections on Free-Form Method in Constitutional Interpretation, 108 Harv. L. Rev. 1221, 1297, n. 247 (1995) *973(“[T]he historical evidence points strongly toward the conclusion that, at least by 1868 even if not in 1791, any state legislature voting to ratify a constitutional rule banning government depriva tions of ‘life, liberty, or property, without due process of law’ would have understood that ban as having substantive as well as procedural content, given that era’s premise that, to qualify as ‘law,’ an enactment would have to meet substantive requirements of rationality, non-oppressiveness, and evenhandedness”); see also Stevens, The Third Branch of Liberty, 41 U. Miami L. Rev. 277, 290 (1986) (“In view of the number of cases that have given substantive content to the term liberty, the burden of demonstrating that this consistent course of decision was unfaithful to the intent of the Framers is surely a heavy one’’).

1 L. Tribe, American Constitutional Law § 8-1, p. 1335 (3d ed. 2000).

The Ninth Amendment provides: “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.’’

Stevens, The Bill of Rights: A Century of Progress, 59 U. Chi. L. Rev. 13, 20 (1992); see Fitzgerald, 523 F.2d, at 719-720; Stevens, 41 U. Miami L. Rev., at 286-289; see also Greene, The So-Called Right to Privacy, 43 U. C. D. L. Rev. 715, 725-731 (2010).

See also Gitlow, 268 U.S., at 672, 45 S. Ct. 625, 69 L. Ed. 1138 (Holmes, J., dissenting) (“The general principle of free speech, it seems to me, must be taken to be included in the Fourteenth Amendment, in view of the scope that has been given to the word ‘liberty’ as there used, although perhaps it may be accepted with a somewhat larger latitude of interpretation than is allowed to Congress by the sweeping language that governs or ought to govern the laws of the United States’’). Subsequent decisions repeatedly reaffirmed that persons hold free speech rights against the States on account of the Fourteenth Amendment’s liberty clause, not the First Amendment per se. See, e.g., NAACP v. Alabama ex rel. Patterson, 357 U.S. 449, 460, 466, 78 S. Ct. 1163, 2 L. Ed. 2d 1488 (1958); Cantwell v. Connecticut, 310 U.S. 296, 303, 60 S. Ct. 900, 84 L. Ed. 1213 (1940); Thornhill v. Alabama, 310 U.S. 88, 95, and n. 7, 60 S. Ct. 736, 84 L. Ed. 1093 (1940); see also McIntyre v. Ohio Elections Comm’n, 514 U.S. 334, 336, n. 1, 115 S. Ct. 1511, 131 L. Ed. 2d 426 (1995) (“The term ‘liberty’ in the Fourteenth Amendment to the Constitution makes the First *975Amendment applicable to the States”). Classic opinions written by Justice Cardozo and Justice Frankfurter endorsed the same basic approach to “incorporation,” with the Fourteenth Amend ment taken as a distinct source of rights independent from the first eight Amendments. Palko v. Connecticut, 302 U.S. 319, 322-328, 58 S. Ct. 149, 82 L. Ed. 288 (1937) (opinion for the Court by Cardozo, J.); Adamson v. California, 332 U.S. 46, 59-68, 67 S. Ct. 1672, 91 L. Ed. 1903 (1947) (Frankfurter, J., concurring).

See also Wolf v. Colorado, 338 U.S. 25, 26, 69 S. Ct. 1359, 93 L. Ed. 1782 (1949) (“The notion that the ‘due process of law’ guaranteed by the Fourteenth Amendment is shorthand for the first eight amendments of the Constitution . . . has been rejected by this Court again and again, after impressive consideration. . . . The issue is closed”). Wolf s holding on the exclusionary rule was overruled by Mapp v. Ohio, 367 U.S. 643, 81 S. Ct. 1684, 6 L. Ed. 2d 1081 (1961), but the principle just quoted has never been disturbed. It is notable that Mapp, the case that launched the modem “doctrine of ad hoc," “ ‘jot-for-jot’ ” incorporation, Williams v. Florida, 399 U.S. 78, 130-131, 90 S. Ct. 1893, 26 L. Ed. 2d 446 (1970) (Harlan, J., concurring in result), expressly held “that the exclusionary rule is an essential part of both the Fourth and Fourteenth Amendments.” 367 U.S., at 657, 81 S. Ct. 1684, 6 L. Ed. 2d 1081 (emphasis added).

See United States v. Cruikshank, 92 U.S. 542, 553, 23 L. Ed. 588 (1876); Presser v. Illinois, 116 U.S. 252, 265, 6 S. Ct. 580, 29 L. Ed. 615 (1886); Miller v. Texas, 153 U.S. 535, 538, 14 S. Ct. 874, 38 L. Ed. 812 (1894). This is not to say that I agree with all other aspects of these decisions.

Cf., e.g., Currie, The Reconstruction Congress, 75 U. Chi. L. Rev. 383, 406 (2008) (finding “some support in the legislative history for no fewer than four interpretations’’ of the Privileges or Immunities Clause, two of which contradict petitioners’ submission); Green, The Original Sense of the (Equal) Protection Clause: Subsequent Interpretation and Application, 19 Geo. Mason U. Civ. Rights L. J. 219, 255-277 (2009) (providing evidence that the Clause was originally conceived of as an antidiscrimination measure, guaranteeing equal rights for black citizens); Rosenthal, The New Originalism Meets the Fourteenth Amendment: Original Public Meaning and the Problem of Incorporation, 18 J. Contemp. Legal Issues 361 (2009) (detailing reasons to doubt that the Clause was originally understood to apply the Bill of Rights to the States); Hamburger, Privileges or Immunities, 105 Nw. U. L. Rev. 61 (2011) (arguing that the Clause was meant to ensure freed slaves were afforded “the Privileges and Immunities’’ specified in Article IV, § 2, cl. 1, of the Constitution). Although he urges its elevation in our doctrine, Justice Thomas has acknowledged that, in seeking to ascertain the original meaning of the Privileges or Immunities Clause, “[l]egal scholars agree on little beyond the conclusion that the Clause does not mean what the Court said it meant in 1873.’’ Saenz v. Roe, 526 U.S. 489, 522, n. 1, 119 S. Ct. 1518, 143 L. Ed. 2d 689 (1999) (dissenting opinion); accord, ante, at 758, 177 L. Ed. 2d, at 908 (plurality opinion).

It is no secret that the desire to “displace” major “portions of our equal protection and substantive due process jurisprudence” animates some of the passion that attends this interpretive issue. Saenz, 526 U.S., at 528, 119 S. Ct. 1518, 143 L. Ed. 2d 689 (Thomas, J., dissenting).

Wilkinson, The Fourteenth Amendment Privileges or Immunities Clause, 12 Harv. J. L. & Pub. Pol’y 43, 52 (1989). Judge Wilkinson’s point is broader than the privileges or immunities debate. As he observes, “there may be more structure imposed by provisions subject to generations of elaboration and refinement than by a provision in its pristine state. The fortuities of uneven constitutional development must be respected, not cast aside in the illusion of reordering the landscape anew.” Id., at 51-52; see also Washington v. Glucksberg, 521 U.S. 702, 759, n. 6, 117 S. Ct. 2258, 138 L. Ed. 2d 772 (1997) (Souter, J., concurring in judgment) (acknowledging that, “[t]o a degree,” the Slaughter-House “decision may have led the Court to look to the Due Process Clause as a source of substantive rights”).

See, e.g., Ely, The Oxymoron Reconsidered: Myth and Reality in the Origins of Substantive Due Process, 16 Const. Commentary 315, 326-327 (1999) (concluding that founding-era “American statesmen accustomed to viewing due process through the lens of [Sir Edward] Coke and [William] Blackstone could [not] have failed to understand due process as encompassing substantive as well as procedural terms’’); Gedicks, An Originalist Defense of Substantive Due Process: Magna Carta, Higher-Law Constitutionalism, and the Fifth Amendment, 58 Emory L. J. 585, 594 (2009) (arguing “that one widely shared understanding of the Due Process Clause of the Fifth Amendment in the late eighteenth century encompassed judicial recognition and enforcement of unenumerated substantive rights’’); Maltz, Fourteenth Amendment Concepts in the Antebellum Era, 32 Am. J. Legal Hist. 305, 317-318 (1988) (explaining that in the antebellum era a “substantial number of states,’’ as well as antislavery advocates, “imbued their [constitutions’] respective due process clauses with a substantive content’’); Tribe, Taking Text and Structure Seriously: Reflections on Free-Form Method in Constitutional Interpretation, 108 Harv. L. Rev. 1221, 1297, n. 247 (1995) *973(“[T]he historical evidence points strongly toward the conclusion that, at least by 1868 even if not in 1791, any state legislature voting to ratify a constitutional rule banning government depriva tions of ‘life, liberty, or property, without due process of law’ would have understood that ban as having substantive as well as procedural content, given that era’s premise that, to qualify as ‘law,’ an enactment would have to meet substantive requirements of rationality, non-oppressiveness, and evenhandedness”); see also Stevens, The Third Branch of Liberty, 41 U. Miami L. Rev. 277, 290 (1986) (“In view of the number of cases that have given substantive content to the term liberty, the burden of demonstrating that this consistent course of decision was unfaithful to the intent of the Framers is surely a heavy one’’).

1 L. Tribe, American Constitutional Law § 8-1, p. 1335 (3d ed. 2000).

The Ninth Amendment provides: “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.’’

Stevens, The Bill of Rights: A Century of Progress, 59 U. Chi. L. Rev. 13, 20 (1992); see Fitzgerald, 523 F.2d, at 719-720; Stevens, 41 U. Miami L. Rev., at 286-289; see also Greene, The So-Called Right to Privacy, 43 U. C. D. L. Rev. 715, 725-731 (2010).

See also Gitlow, 268 U.S., at 672, 45 S. Ct. 625, 69 L. Ed. 1138 (Holmes, J., dissenting) (“The general principle of free speech, it seems to me, must be taken to be included in the Fourteenth Amendment, in view of the scope that has been given to the word ‘liberty’ as there used, although perhaps it may be accepted with a somewhat larger latitude of interpretation than is allowed to Congress by the sweeping language that governs or ought to govern the laws of the United States’’). Subsequent decisions repeatedly reaffirmed that persons hold free speech rights against the States on account of the Fourteenth Amendment’s liberty clause, not the First Amendment per se. See, e.g., NAACP v. Alabama ex rel. Patterson, 357 U.S. 449, 460, 466, 78 S. Ct. 1163, 2 L. Ed. 2d 1488 (1958); Cantwell v. Connecticut, 310 U.S. 296, 303, 60 S. Ct. 900, 84 L. Ed. 1213 (1940); Thornhill v. Alabama, 310 U.S. 88, 95, and n. 7, 60 S. Ct. 736, 84 L. Ed. 1093 (1940); see also McIntyre v. Ohio Elections Comm’n, 514 U.S. 334, 336, n. 1, 115 S. Ct. 1511, 131 L. Ed. 2d 426 (1995) (“The term ‘liberty’ in the Fourteenth Amendment to the Constitution makes the First *975Amendment applicable to the States”). Classic opinions written by Justice Cardozo and Justice Frankfurter endorsed the same basic approach to “incorporation,” with the Fourteenth Amend ment taken as a distinct source of rights independent from the first eight Amendments. Palko v. Connecticut, 302 U.S. 319, 322-328, 58 S. Ct. 149, 82 L. Ed. 288 (1937) (opinion for the Court by Cardozo, J.); Adamson v. California, 332 U.S. 46, 59-68, 67 S. Ct. 1672, 91 L. Ed. 1903 (1947) (Frankfurter, J., concurring).

See also Wolf v. Colorado, 338 U.S. 25, 26, 69 S. Ct. 1359, 93 L. Ed. 1782 (1949) (“The notion that the ‘due process of law’ guaranteed by the Fourteenth Amendment is shorthand for the first eight amendments of the Constitution . . . has been rejected by this Court again and again, after impressive consideration. . . . The issue is closed”). Wolf s holding on the exclusionary rule was overruled by Mapp v. Ohio, 367 U.S. 643, 81 S. Ct. 1684, 6 L. Ed. 2d 1081 (1961), but the principle just quoted has never been disturbed. It is notable that Mapp, the case that launched the modem “doctrine of ad hoc," “ ‘jot-for-jot’ ” incorporation, Williams v. Florida, 399 U.S. 78, 130-131, 90 S. Ct. 1893, 26 L. Ed. 2d 446 (1970) (Harlan, J., concurring in result), expressly held “that the exclusionary rule is an essential part of both the Fourth and Fourteenth Amendments.” 367 U.S., at 657, 81 S. Ct. 1684, 6 L. Ed. 2d 1081 (emphasis added).

I can hardly improve upon the many passionate defenses of this position that Justice Harlan penned during his tenure on the Court. See Williams, 399 U.S., at 131, n. 14, 90 S. Ct. 1893, 26 L. Ed. 2d 446 (opinion concurring in result) (cataloging opinions).

See, e.g., Pet. for Cert. in Bowen v. Oregon, O. T. 2009, No. 08-1117, p. i, cert. denied, 558 U.S. 815, 130 S. Ct. 52, 175 L. Ed. 2d 21 (2009) (request to overrule Apodaca); Pet. for Cert, in Lee v. Louisiana, O. T. 2008, No. 07-1523, p. i, cert. denied, 555 U.S. 823, 129 S. Ct. 130, 172 L. Ed. 2d 37 (2008) (same); Pet. for Cert. in Logan v. Florida, O. T. 2007, No. 07-7264, pp. 14-19, cert. denied, 552 U.S. 1189, 128 S. Ct. 1222, 170 L. Ed. 2d 76 (2008) (request to overrule Williams).

The vast majority of States already recognize a right to keep and bear arms in their own constitutions, see Volokh, State Constitutional Rights To Keep and Bear Arms, 11 Tex. Rev. L. & Politics 191 (2006) (cataloging provisions); Brief for Petitioners 69 (observing that “[t]hese Second Amendment analogs are effective and consequential”), but the States vary widely in their *978regulatory schemes, their traditions and cultures of firearm use, and their problems relating to gun violence. If federal and state courts must harmonize their review of gun-control laws under the Second Amendment, the resulting jurisprudence may prove significantly more deferential to those laws than the status quo ante. Once it has been established that a single legal standard must govern nationwide, federal courts will face a profound pressure to reconcile that standard with the diverse interests of the States and their long history of regulating in this sensitive area. Cf. Williams, 399 U.S., at 129-130, 90 S. Ct. 1893, 26 L. Ed. 2d 446 (Harlan, J., concurring in result) (noting “ ‘backlash’ ” potential of jot-for-jot incorporation); Grant, Felix Frankfurter: A Dissenting Opinion, 12 UCLA L. Rev. 1013, 1038 (1965) (“If the Court will not reduce the requirements of the fourteenth amendment below the federal gloss that now overlays the Bill of Rights, then it will have to reduce that gloss to the point where the states can live with it’’). Amici argue persuasively that, post-“incorporation,’’ federal courts will have little choice but to fix a highly flexible standard of review if they are to avoid leaving federalism and the separation of powers—not to mention gun policy—in shambles. See Brief for Brady Center to Prevent Gun Violence et al. (hereinafter Brady Center Brief).

Justice Cardozo’s test itself built upon an older line of decisions. See, e.g., Chicago, B. & Q. R. Co. v. Chicago, 166 U.S. 226, 237, 17 S. Ct. 581, 41 L. Ed. 979 (1897) (discussing “limitations on [state] power which grow out of the essential nature of all free governments [and] implied reservations of individual rights, . . . and which are respected by all governments entitled to the name’’ (internal quotation marks omitted)).

See Palko, 302 U.S., at 326, n. 3, 58 S. Ct. 149, 82 L. Ed. 288; see also, e.g., Lawrence v. Texas, 539 U.S. 558, 572-573, 576-577, 123 S. Ct. 2472, 156 L. Ed. 2d 508 (2003); Glucksberg, 521 U.S., at 710-711, and n. 8, 117 S. Ct. 2258, 138 L. Ed. 2d 772.

I acknowledge that some have read the Court’s opinion in Glucksberg as an attempt to move substantive due process analysis, for all purposes, toward an exclusively historical methodology— and thereby to debilitate the doctrine. If that were ever Glucksberg's aspiration, Lawrence plainly renounced it. As between Glucksberg and Lawrence, I have little doubt which will prove the more enduring precedent.

The Court almost never asked whether the guarantee in question was deeply rooted in founding-era practice. See Brief for Respondent City of Chicago et al. 31, n. 17 (hereinafter Municipal Respondents’ Brief) (noting that only two opinions extensively discussed such history).

Cf. Robinson v. California, 370 U.S. 660, 666-668, 82 S. Ct. 1417, 8 L. Ed. 2d 758 (1962) (invalidating state statute criminalizing narcotics addiction as “cruel and unusual punishment in violation of the Fourteenth Amendment’’ based on nature of the alleged “ ‘crime,’ ’’ without historical analysis); Brief for Respondent National Rifle Association of America, Inc., et al. 29 (noting that “lynchpin’’ of incorporation test has always been “the importance of the right in question to . . . ‘liberty’ ’’ and to our “system of government’’).

I do not mean to denigrate this function, or to imply that only “new rights’’—whatever one takes that term to mean—ought to “get in’’ the substantive due process door. Ante, at 795, 177 L. Ed. 2d, at 931 (Scalia, J., concurring).

See Bowers v. Hardwick, 478 U.S. 186, 199, 106 S. Ct. 2841, 92 L. Ed. 2d 140 (1986) (Blackmun, J., dissenting) (“Like Justice Holmes, I believe that ‘[i]t is revolting to have no better reason for a rule of law than that so it was laid down in the time of Henry IV. It is still more revolting if the grounds upon which it was laid down have vanished long since, and the rule simply persists from blind imitation of the past’ ’’ (quoting Holmes, The Path of the Law, 10 Harv. L. Rev. 457, 469 (1897))).

Justice Kennedy has made the point movingly:

Contrary to Justice Scalia’s suggestion, I emphatically do not believe that “only we judges’’ can interpret the Fourteenth Amendment, ante, at 794, 177 L. Ed. 2d, at 931, or any other constitutional provision. All Americans can; all Americans should. I emphatically do believe that we judges must exercise—indeed, cannot help but exercise—our own reasoned judgment in so doing. Justice Scalia and I are on common ground in maintaining that courts should be “guided by what the American people throughout our history have thought.’’ Ibid. Where we part ways is in his view that courts should be guided only by historical considerations. There is, moreover, a tension between Justice Scalia’s concern that “courts have the last word’’ on constitutional questions, ante, at 794, n. 2, 177 L. Ed. 2d, at 931, on the one hand, and his touting of the Constitution’s Article V amendment process, ante, at 793-794, 177 L. Ed. 2d, at 931, on the other. The American people can of course reverse this Court’s rulings through that same process.

In assessing concerns about the “open-ended[ness]“ of this area of law, Collins, 503 U.S., at 125, 112 S. Ct. 1061, 117 L. Ed. 2d 261, one does well to keep in view the malleability not only of the Court’s “deeply rooted’Yfundamentality standard but also of substantive due process’ constitutional cousin, “equal protection’’ analysis. Substantive due process is sometimes accused of entailing an insufficiently “restrained methodology.’’ Glucksberg, 521 U.S., at 721, 117 S. Ct. 2258, 138 L. Ed. 2d 772. Yet “the word ‘liberty’ in the Due Process Clause seems to provide at least as much meaningful guidance as does the word ‘equal’ in the Equal Protection Clause.’’ Post, The Supreme Court 2002 Term—Foreword: Fashioning the Legal Constitution: Culture, Courts, and Law, 117 Harv. L. Rev. 4, 94, n. 440 (2003). And “[i]f the objection is instead that the text of the [Due Process] Clause warrants providing only protections of process rather than *983protections of substance,” “it is striking that even those Justices who are most theoretically opposed to substantive due process, like Scalia and Rehnquist, are also nonetheless enthusiastic about applying the equal protection component of the Due Process Clause of the Fifth Amendment to the federal government.” Ibid. (citing Adarand Constructors, Inc. v. Peña, 515 U.S. 200, 213-231, 115 S. Ct. 2097, 132 L. Ed. 2d 158 (1995)).

See United States v. Cruikshank, 92 U.S. 542, 553, 23 L. Ed. 588 (1876); Presser v. Illinois, 116 U.S. 252, 265, 6 S. Ct. 580, 29 L. Ed. 615 (1886); Miller v. Texas, 153 U.S. 535, 538, 14 S. Ct. 874, 38 L. Ed. 812 (1894). This is not to say that I agree with all other aspects of these decisions.

Cf., e.g., Currie, The Reconstruction Congress, 75 U. Chi. L. Rev. 383, 406 (2008) (finding “some support in the legislative history for no fewer than four interpretations’’ of the Privileges or Immunities Clause, two of which contradict petitioners’ submission); Green, The Original Sense of the (Equal) Protection Clause: Subsequent Interpretation and Application, 19 Geo. Mason U. Civ. Rights L. J. 219, 255-277 (2009) (providing evidence that the Clause was originally conceived of as an antidiscrimination measure, guaranteeing equal rights for black citizens); Rosenthal, The New Originalism Meets the Fourteenth Amendment: Original Public Meaning and the Problem of Incorporation, 18 J. Contemp. Legal Issues 361 (2009) (detailing reasons to doubt that the Clause was originally understood to apply the Bill of Rights to the States); Hamburger, Privileges or Immunities, 105 Nw. U. L. Rev. 61 (2011) (arguing that the Clause was meant to ensure freed slaves were afforded “the Privileges and Immunities’’ specified in Article IV, § 2, cl. 1, of the Constitution). Although he urges its elevation in our doctrine, Justice Thomas has acknowledged that, in seeking to ascertain the original meaning of the Privileges or Immunities Clause, “[l]egal scholars agree on little beyond the conclusion that the Clause does not mean what the Court said it meant in 1873.’’ Saenz v. Roe, 526 U.S. 489, 522, n. 1, 119 S. Ct. 1518, 143 L. Ed. 2d 689 (1999) (dissenting opinion); accord, ante, at 758, 177 L. Ed. 2d, at 908 (plurality opinion).

It is no secret that the desire to “displace” major “portions of our equal protection and substantive due process jurisprudence” animates some of the passion that attends this interpretive issue. Saenz, 526 U.S., at 528, 119 S. Ct. 1518, 143 L. Ed. 2d 689 (Thomas, J., dissenting).

Wilkinson, The Fourteenth Amendment Privileges or Immunities Clause, 12 Harv. J. L. & Pub. Pol’y 43, 52 (1989). Judge Wilkinson’s point is broader than the privileges or immunities debate. As he observes, “there may be more structure imposed by provisions subject to generations of elaboration and refinement than by a provision in its pristine state. The fortuities of uneven constitutional development must be respected, not cast aside in the illusion of reordering the landscape anew.” Id., at 51-52; see also Washington v. Glucksberg, 521 U.S. 702, 759, n. 6, 117 S. Ct. 2258, 138 L. Ed. 2d 772 (1997) (Souter, J., concurring in judgment) (acknowledging that, “[t]o a degree,” the Slaughter-House “decision may have led the Court to look to the Due Process Clause as a source of substantive rights”).

See, e.g., Ely, The Oxymoron Reconsidered: Myth and Reality in the Origins of Substantive Due Process, 16 Const. Commentary 315, 326-327 (1999) (concluding that founding-era “American statesmen accustomed to viewing due process through the lens of [Sir Edward] Coke and [William] Blackstone could [not] have failed to understand due process as encompassing substantive as well as procedural terms’’); Gedicks, An Originalist Defense of Substantive Due Process: Magna Carta, Higher-Law Constitutionalism, and the Fifth Amendment, 58 Emory L. J. 585, 594 (2009) (arguing “that one widely shared understanding of the Due Process Clause of the Fifth Amendment in the late eighteenth century encompassed judicial recognition and enforcement of unenumerated substantive rights’’); Maltz, Fourteenth Amendment Concepts in the Antebellum Era, 32 Am. J. Legal Hist. 305, 317-318 (1988) (explaining that in the antebellum era a “substantial number of states,’’ as well as antislavery advocates, “imbued their [constitutions’] respective due process clauses with a substantive content’’); Tribe, Taking Text and Structure Seriously: Reflections on Free-Form Method in Constitutional Interpretation, 108 Harv. L. Rev. 1221, 1297, n. 247 (1995) *973(“[T]he historical evidence points strongly toward the conclusion that, at least by 1868 even if not in 1791, any state legislature voting to ratify a constitutional rule banning government depriva tions of ‘life, liberty, or property, without due process of law’ would have understood that ban as having substantive as well as procedural content, given that era’s premise that, to qualify as ‘law,’ an enactment would have to meet substantive requirements of rationality, non-oppressiveness, and evenhandedness”); see also Stevens, The Third Branch of Liberty, 41 U. Miami L. Rev. 277, 290 (1986) (“In view of the number of cases that have given substantive content to the term liberty, the burden of demonstrating that this consistent course of decision was unfaithful to the intent of the Framers is surely a heavy one’’).

1 L. Tribe, American Constitutional Law § 8-1, p. 1335 (3d ed. 2000).

The Ninth Amendment provides: “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.’’

Stevens, The Bill of Rights: A Century of Progress, 59 U. Chi. L. Rev. 13, 20 (1992); see Fitzgerald, 523 F.2d, at 719-720; Stevens, 41 U. Miami L. Rev., at 286-289; see also Greene, The So-Called Right to Privacy, 43 U. C. D. L. Rev. 715, 725-731 (2010).

See also Gitlow, 268 U.S., at 672, 45 S. Ct. 625, 69 L. Ed. 1138 (Holmes, J., dissenting) (“The general principle of free speech, it seems to me, must be taken to be included in the Fourteenth Amendment, in view of the scope that has been given to the word ‘liberty’ as there used, although perhaps it may be accepted with a somewhat larger latitude of interpretation than is allowed to Congress by the sweeping language that governs or ought to govern the laws of the United States’’). Subsequent decisions repeatedly reaffirmed that persons hold free speech rights against the States on account of the Fourteenth Amendment’s liberty clause, not the First Amendment per se. See, e.g., NAACP v. Alabama ex rel. Patterson, 357 U.S. 449, 460, 466, 78 S. Ct. 1163, 2 L. Ed. 2d 1488 (1958); Cantwell v. Connecticut, 310 U.S. 296, 303, 60 S. Ct. 900, 84 L. Ed. 1213 (1940); Thornhill v. Alabama, 310 U.S. 88, 95, and n. 7, 60 S. Ct. 736, 84 L. Ed. 1093 (1940); see also McIntyre v. Ohio Elections Comm’n, 514 U.S. 334, 336, n. 1, 115 S. Ct. 1511, 131 L. Ed. 2d 426 (1995) (“The term ‘liberty’ in the Fourteenth Amendment to the Constitution makes the First *975Amendment applicable to the States”). Classic opinions written by Justice Cardozo and Justice Frankfurter endorsed the same basic approach to “incorporation,” with the Fourteenth Amend ment taken as a distinct source of rights independent from the first eight Amendments. Palko v. Connecticut, 302 U.S. 319, 322-328, 58 S. Ct. 149, 82 L. Ed. 288 (1937) (opinion for the Court by Cardozo, J.); Adamson v. California, 332 U.S. 46, 59-68, 67 S. Ct. 1672, 91 L. Ed. 1903 (1947) (Frankfurter, J., concurring).

See also Wolf v. Colorado, 338 U.S. 25, 26, 69 S. Ct. 1359, 93 L. Ed. 1782 (1949) (“The notion that the ‘due process of law’ guaranteed by the Fourteenth Amendment is shorthand for the first eight amendments of the Constitution . . . has been rejected by this Court again and again, after impressive consideration. . . . The issue is closed”). Wolf s holding on the exclusionary rule was overruled by Mapp v. Ohio, 367 U.S. 643, 81 S. Ct. 1684, 6 L. Ed. 2d 1081 (1961), but the principle just quoted has never been disturbed. It is notable that Mapp, the case that launched the modem “doctrine of ad hoc," “ ‘jot-for-jot’ ” incorporation, Williams v. Florida, 399 U.S. 78, 130-131, 90 S. Ct. 1893, 26 L. Ed. 2d 446 (1970) (Harlan, J., concurring in result), expressly held “that the exclusionary rule is an essential part of both the Fourth and Fourteenth Amendments.” 367 U.S., at 657, 81 S. Ct. 1684, 6 L. Ed. 2d 1081 (emphasis added).

I can hardly improve upon the many passionate defenses of this position that Justice Harlan penned during his tenure on the Court. See Williams, 399 U.S., at 131, n. 14, 90 S. Ct. 1893, 26 L. Ed. 2d 446 (opinion concurring in result) (cataloging opinions).

See, e.g., Pet. for Cert. in Bowen v. Oregon, O. T. 2009, No. 08-1117, p. i, cert. denied, 558 U.S. 815, 130 S. Ct. 52, 175 L. Ed. 2d 21 (2009) (request to overrule Apodaca); Pet. for Cert, in Lee v. Louisiana, O. T. 2008, No. 07-1523, p. i, cert. denied, 555 U.S. 823, 129 S. Ct. 130, 172 L. Ed. 2d 37 (2008) (same); Pet. for Cert. in Logan v. Florida, O. T. 2007, No. 07-7264, pp. 14-19, cert. denied, 552 U.S. 1189, 128 S. Ct. 1222, 170 L. Ed. 2d 76 (2008) (request to overrule Williams).

The vast majority of States already recognize a right to keep and bear arms in their own constitutions, see Volokh, State Constitutional Rights To Keep and Bear Arms, 11 Tex. Rev. L. & Politics 191 (2006) (cataloging provisions); Brief for Petitioners 69 (observing that “[t]hese Second Amendment analogs are effective and consequential”), but the States vary widely in their *978regulatory schemes, their traditions and cultures of firearm use, and their problems relating to gun violence. If federal and state courts must harmonize their review of gun-control laws under the Second Amendment, the resulting jurisprudence may prove significantly more deferential to those laws than the status quo ante. Once it has been established that a single legal standard must govern nationwide, federal courts will face a profound pressure to reconcile that standard with the diverse interests of the States and their long history of regulating in this sensitive area. Cf. Williams, 399 U.S., at 129-130, 90 S. Ct. 1893, 26 L. Ed. 2d 446 (Harlan, J., concurring in result) (noting “ ‘backlash’ ” potential of jot-for-jot incorporation); Grant, Felix Frankfurter: A Dissenting Opinion, 12 UCLA L. Rev. 1013, 1038 (1965) (“If the Court will not reduce the requirements of the fourteenth amendment below the federal gloss that now overlays the Bill of Rights, then it will have to reduce that gloss to the point where the states can live with it’’). Amici argue persuasively that, post-“incorporation,’’ federal courts will have little choice but to fix a highly flexible standard of review if they are to avoid leaving federalism and the separation of powers—not to mention gun policy—in shambles. See Brief for Brady Center to Prevent Gun Violence et al. (hereinafter Brady Center Brief).

Justice Cardozo’s test itself built upon an older line of decisions. See, e.g., Chicago, B. & Q. R. Co. v. Chicago, 166 U.S. 226, 237, 17 S. Ct. 581, 41 L. Ed. 979 (1897) (discussing “limitations on [state] power which grow out of the essential nature of all free governments [and] implied reservations of individual rights, . . . and which are respected by all governments entitled to the name’’ (internal quotation marks omitted)).

See Palko, 302 U.S., at 326, n. 3, 58 S. Ct. 149, 82 L. Ed. 288; see also, e.g., Lawrence v. Texas, 539 U.S. 558, 572-573, 576-577, 123 S. Ct. 2472, 156 L. Ed. 2d 508 (2003); Glucksberg, 521 U.S., at 710-711, and n. 8, 117 S. Ct. 2258, 138 L. Ed. 2d 772.

I acknowledge that some have read the Court’s opinion in Glucksberg as an attempt to move substantive due process analysis, for all purposes, toward an exclusively historical methodology— and thereby to debilitate the doctrine. If that were ever Glucksberg's aspiration, Lawrence plainly renounced it. As between Glucksberg and Lawrence, I have little doubt which will prove the more enduring precedent.

The Court almost never asked whether the guarantee in question was deeply rooted in founding-era practice. See Brief for Respondent City of Chicago et al. 31, n. 17 (hereinafter Municipal Respondents’ Brief) (noting that only two opinions extensively discussed such history).

Cf. Robinson v. California, 370 U.S. 660, 666-668, 82 S. Ct. 1417, 8 L. Ed. 2d 758 (1962) (invalidating state statute criminalizing narcotics addiction as “cruel and unusual punishment in violation of the Fourteenth Amendment’’ based on nature of the alleged “ ‘crime,’ ’’ without historical analysis); Brief for Respondent National Rifle Association of America, Inc., et al. 29 (noting that “lynchpin’’ of incorporation test has always been “the importance of the right in question to . . . ‘liberty’ ’’ and to our “system of government’’).

I do not mean to denigrate this function, or to imply that only “new rights’’—whatever one takes that term to mean—ought to “get in’’ the substantive due process door. Ante, at 795, 177 L. Ed. 2d, at 931 (Scalia, J., concurring).

See Bowers v. Hardwick, 478 U.S. 186, 199, 106 S. Ct. 2841, 92 L. Ed. 2d 140 (1986) (Blackmun, J., dissenting) (“Like Justice Holmes, I believe that ‘[i]t is revolting to have no better reason for a rule of law than that so it was laid down in the time of Henry IV. It is still more revolting if the grounds upon which it was laid down have vanished long since, and the rule simply persists from blind imitation of the past’ ’’ (quoting Holmes, The Path of the Law, 10 Harv. L. Rev. 457, 469 (1897))).

Justice Kennedy has made the point movingly:

Contrary to Justice Scalia’s suggestion, I emphatically do not believe that “only we judges’’ can interpret the Fourteenth Amendment, ante, at 794, 177 L. Ed. 2d, at 931, or any other constitutional provision. All Americans can; all Americans should. I emphatically do believe that we judges must exercise—indeed, cannot help but exercise—our own reasoned judgment in so doing. Justice Scalia and I are on common ground in maintaining that courts should be “guided by what the American people throughout our history have thought.’’ Ibid. Where we part ways is in his view that courts should be guided only by historical considerations. There is, moreover, a tension between Justice Scalia’s concern that “courts have the last word’’ on constitutional questions, ante, at 794, n. 2, 177 L. Ed. 2d, at 931, on the one hand, and his touting of the Constitution’s Article V amendment process, ante, at 793-794, 177 L. Ed. 2d, at 931, on the other. The American people can of course reverse this Court’s rulings through that same process.

In assessing concerns about the “open-ended[ness]“ of this area of law, Collins, 503 U.S., at 125, 112 S. Ct. 1061, 117 L. Ed. 2d 261, one does well to keep in view the malleability not only of the Court’s “deeply rooted’Yfundamentality standard but also of substantive due process’ constitutional cousin, “equal protection’’ analysis. Substantive due process is sometimes accused of entailing an insufficiently “restrained methodology.’’ Glucksberg, 521 U.S., at 721, 117 S. Ct. 2258, 138 L. Ed. 2d 772. Yet “the word ‘liberty’ in the Due Process Clause seems to provide at least as much meaningful guidance as does the word ‘equal’ in the Equal Protection Clause.’’ Post, The Supreme Court 2002 Term—Foreword: Fashioning the Legal Constitution: Culture, Courts, and Law, 117 Harv. L. Rev. 4, 94, n. 440 (2003). And “[i]f the objection is instead that the text of the [Due Process] Clause warrants providing only protections of process rather than *983protections of substance,” “it is striking that even those Justices who are most theoretically opposed to substantive due process, like Scalia and Rehnquist, are also nonetheless enthusiastic about applying the equal protection component of the Due Process Clause of the Fifth Amendment to the federal government.” Ibid. (citing Adarand Constructors, Inc. v. Peña, 515 U.S. 200, 213-231, 115 S. Ct. 2097, 132 L. Ed. 2d 158 (1995)).

That one eschews a comprehensive theory of liberty does not, pace Justice Scalia, mean that one lacks “a coherent theory of the Due Process Clause,” ante, at 795, 177 L. Ed. 2d, at 932. It means that one lacks the hubris to adopt a rigid, context-independent definition of a constitutional guarantee that was deliberately framed in open-ended terms.

The notion that we should define liberty claims at the most specific level available is one of Justice Scalia’s signal contributions to the theory of substantive due process. See, e.g., Michael H. v. Gerald D., 491 U.S. 110, 127-128, n. 6, 109 S. Ct. 2333, 105 L. Ed. 2d 91 (1989) (opinion of Scalia, J.); ante, at 797, 177 L. Ed. 2d, at 933 (Scalia, J., concurring). By so narrowing the asserted right, this approach “loads the dice’’ against its recognition, Roosevelt, Forget the Fundamentals: Fixing Substantive Due Process, 8 U. Pa. J. Const. L. 983, 1002, n. 73 (2006): When one defines the liberty interest at issue in Lawrence as the freedom to perform specific sex acts, ante, at 792, 177 L. Ed. 2d, at 930, the interest starts to look less compelling. The Court today does not follow Justice Scalia’s “particularizing’’ method, Katzenhach v. Morgan, 384 U.S. 641, 649, 86 S. Ct. 1717, 16 L. Ed. 2d 828 (1966), as it relies on general historical references to keeping and bearing arms, without any close study of the States’ practice of regulating especially dangerous weapons.

In District of Columbia v. Heller, 554 U.S. 570, 595, 128 S. Ct. 2783, 171 L. Ed. 2d 637 (2008), the Court concluded, over my dissent, that the Second Amendment confers “an individual right to keep and bear arms’’ disconnected from militia service. If that conclusion were wrong, then petitioners’ “incorporation’’ claim clearly would fail, as they would hold no right against the Federal Government to be free from regulations such as the ones they challenge. Cf. post, at 919, 177 L. Ed. 2d, at 1008 (Breyer, J., dissenting). I do not understand petitioners or any of their amici to dispute this point. Yet even if Heller had never been decided—indeed, even if the Second Amendment did not exist—we would still have an obligation to address petitioners’ Fourteenth Amendment claim.

The village of Oak Park imposes more stringent restrictions that may raise additional complications. See ante, at 750, 177 L. Ed. 2d, at 904 (majority opinion) (quoting Oak Park, Ill., Village Code §§ 27-2-1 (2007), 27-1-1 (2009)). The Court, however, declined to grant certiorari on the National Rifle Association’s challenge to the Oak Park restrictions. Chicago is the only defendant in this case.

To the extent that petitioners contend the city of Chicago’s registration requirements for firearm possessors also, and separately, violate the Constitution, that claim borders on the frivolous. Petitioners make no effort to demonstrate that the requirements are unreasonable or that they impose a severe burden on the underlying right they have asserted.

Members of my generation, at least, will recall the many passionate statements of this view made by the distinguished actor, Charlton Heston.

See Municipal Respondents’ Brief 20, n. 11 (stating that at least 156 Second Amendment challenges were brought in time between Heller s issuance and brief’s filing); Brady Center Brief 3 (stating that over 190 Second Amendment challenges were brought in first 18 months since Heller); Brief for Villages of Winnetka and Skokie, Illinois, et al. as Amici Curiae 15 (stating that, in wake of Heller, municipalities have “repealed longstanding handgun laws to avoid costly litigation’’).

See, e.g., Brief for Professors of Philosophy etc.; Brief for International Law Enforcement Educators and Trainers Association et al. 29-45; Brief for Thirty-four California District Attorneys et al. 12-31.

The argument that this Court should establish any such right, however, faces steep hurdles. All 50 States already recognize self-defense as a defense to criminal prosecution, see 2 P. Robinson, Criminal Law Defenses § 132 (1984 and Supp. 2009), so this is hardly an interest to which the democratic process has been insensitive. And the States have always diverged on how exactly to implement this interest, so there is wide variety across the Nation in the types and amounts of force that may be used, the necessity of retreat, the rights of aggressors, the availability of the “castle doctrine,’’ and so forth. See Brief for Oak Park Citizens Committee for Handgun Control as Amicus Curiae 9-21; Brief for American Cities et al. as Amici Curiae 17-19; 2 W. LaPave, Substantive Criminal Law § 10.4, pp. 142-160 (2d ed. 2003). Such variation is presumed to be a healthy part of our federalist system, as the States and localities select different rules in light of different priorities, customs, and conditions. As a historical and theoretical matter, moreover, the legal status of self-defense is far more complicated than it might first appear. We have generally understood Fourteenth Amendment “liberty’’ as something one holds against direct state interference, whereas a personal right of self-defense runs primarily against other individuals; absent government tyranny, it is only when the State has failed to interfere with (violent) private conduct that self-help becomes potentially necessary. Moreover, it was a basic tenet of founding-era political philosophy that, in entering civil society and gaining ‘The advantages of mutual commerce’’ and the protections of the rule of law, one had to relinquish, to a significant degree, “that wild and savage liberty’’ one possessed in the state of nature. 1 W. Blackstone, Commentaries *125; see also, e.g., J. Locke, Second Treatise of Civil Government § 128, pp. 63-64 (J. Gough ed. 1947) (in state of nature man has power “to do whatever he thinks fit for the preservation of himself and others,’’ but this “he gives up when he joins in a . . . particular political society’’); Green v. Biddle, 8 Wheat. 1, 63, 5 L. Ed. 547 (1823) (argument for defendant) (“It is a trite maxim, that man gives up a part of his natural liberty when he enters into civil society, as the price of the blessings of that state: and it may be said, with truth, this liberty is well exchanged for the advantages which flow from law and justice’’). Some strains of founding-era thought took a very narrow view of the right to armed self-defense. See, e.g., Brief for Historians on Early American Legal, Constitutional and Pennsylvania History as Amici Curiae 6-13 (discussing Whig and Quaker theories). Just because there may be a natural or common-law right to some measure of self-defense, it hardly follows that States may not place substantial restrictions on its exercise or that this Court should recognize a constitutional right to the same.

The Second Amendment right identified in Heller is likewise clearly distinct from a right to protect oneself. In my view, the Court badly misconstrued the Second Amendment in linking it to the value of personal self-defense above and beyond the functioning of the state militias; as enacted, the Second Amendment was concerned with tyrants and invaders, and paradigmatically with the federal military, not with criminals and intruders. But even still, the Court made clear that self-defense plays a limited role in determining the scope and substance of the Amendment’s guarantee. The Court struck down the District of Columbia’s handgun ban not because of the utility of handguns for lawful self-defense, but rather because of their popularity for that purpose. See 554 U.S., at 629, 128 S. Ct. 2783, 171 L. Ed. 2d 637. And the Court’s common-use gloss on the Second Amendment right, see id., at 627, 128 S. Ct. 2783, 171 L. Ed. 2d 637, as well as its discussion of permissible limitations on the right, id., at 626-628, 128 S. Ct. 2783, 171 L. Ed. 2d 637, had little to do with self-defense.

Brady Center Brief 11 (extrapolating from Government statistics); see also Brief for American Public Health Association et al. as Amici Curiae 6-7 (reporting estimated social cost of firearm-related violence of $100 billion per year).

Bogus, Gun Control and America’s Cities: Public Policy and Politics, 1 Albany Govt. L. Rev. 440, 447 (2008) (drawing on Federal Bureau of Investigation data); see also Heller, 554 U.S., at 697-698, 128 S. Ct. 2783, 171 L. Ed. 2d 637 (Breyer, J., dissenting) (providing additional statistics on handgun violence); Municipal Respondents’ Brief 13-14 (same).

Justice Scalia worries that there is no “objective” way to decide what is essential to a “liberty-filled” existence: Better, then, to ignore such messy considerations as how an interest actually affects people’s lives. Ante, at 800, 177 L. Ed. 2d, at 935. Both the constitutional text and our cases use the term “liberty,” however, and liberty is not a purely objective concept. Substantive due process analysis does not require any “political” judgment, ibid. It does require some amount of practical and normative judgment. The only way to assess what is essential to fulfilling the Constitution’s guarantee of “liberty,” in the present day, is to provide reasons that apply to the present day. I have provided many; Justice Scalia and the Court have provided virtually none. Justice Scalia also misstates my argument when he refers to “the right to keep and bear arms,” without qualification. Ante, at 799, 177 L. Ed. 2d, at 934. That is what the Second Amendment protects against Federal Government infringement. I have taken pains to show why the Fourteenth Amendment liberty interest asserted by petitioners—the interest in keeping a firearm of one’s choosing in the home—is not necessarily coextensive with the Second Amendment right.

It has not escaped my attention that the Due Process Clause refers to “property” as well as “liberty.” Cf. ante, at 792, n. 1, 799-800, n. 6, 177 L. Ed. 2d, at 930, 934-935 (opinion of Scalia, J.). Indeed, in Moore v. East Cleveland, 431 U.S. 494, 97 S. Ct. 1932, 52 L. Ed. 2d 531 (1977), I alone viewed “the critical question” as “whether East Cleveland’s housing ordinance [was] a permissible restriction on appellant’s right to use her own property as she sees fit,” id., at 513, 97 S. Ct. 1932, 52 L. Ed. 2d 531 (opinion concurring in judgment). In that case, unlike in this case, the asserted property right was coextensive with a right to organize one’s family life, and I could find “no precedent” for the ordinance at issue, which “exclude [d] any of an owner’s relatives from the group of persons who may occupy his residence on a permanent basis.” Id., at 520, 97 S. Ct. 1932, 52 L. Ed. 2d 531. I am open to property claims under the Fourteenth Amendment. This case just involves a weak one. And ever since the Court “incorporated” the more specific property protections of the Takings Clause in 1897, see Chicago, B. & Q. R. Co., 166 U.S. 226, 17 S. Ct. 581, 41 L. Ed. 979, substantive due process doctrine has focused on liberty.

Cf. Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833, 913-914, 112 S. Ct. 2791, 120 L. Ed. 2d 674 (1992) (Stevens, J., concurring in part and dissenting in part).

The Second Amendment provides: “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.”

Contrary to Justice Scalia’s suggestion, this point is perfectly compatible with my opinion for the Court in Elk Grove Unified School Dist., 542 U.S. 1, 124 S. Ct. 2301, 159 L. Ed. 2d 98. Cf. ante, at 801, 177 L. Ed. 2d, at 935. Like the Court itself, I have never agreed with Justice Thomas’ view that the Establishment Clause is a federalism provision. But I agree with his underlying logic: If a clause in the Bill of Rights exists to safeguard federalism interests, then it makes little sense to “incorporate” it. Justice Scalia’s further suggestion that I ought to have revisited the Establishment Clause debate in this opinion, ibid., is simply bizarre.

See post, at 934-935, 177 L. Ed. 2d, at 917-918 (Breyer, J., dissenting); Municipal Respondents’ Brief 62-69; Brief for Thirty-four Professional Historians and Legal Historians as Amici Curiae 22-26; Rosenthal, Second Amendment Plumbing After Heller: Of Standards of Scrutiny, Incorporation, Well-Regulated Militias, and Criminal Street Gangs, 41 Urb. Law. 1, 73-75 (2009). The plurality insists that the Reconstruction-era evidence shows the right to bear arms was regarded as “a substantive guarantee, not a prohibition that could be ignored so long as the States legislated in an evenhanded manner.” Ante, at 780, 177 L. Ed. 2d, at 922. That may be so, but it does not resolve the question whether the Fourteenth Amendment’s Due Process Clause was originally understood to encompass a right to keep and bear arms, or whether it ought to be so construed now.

I am unclear what the plurality means when it refers to “the paucity of precedent sustaining bans comparable to those at issue here.’’ Ante, at 786, 177 L. Ed. 2d, at 926. There is only one ban at issue here—the city of Chicago’s handgun prohibition—and the municipal respondents cite far more than “one case,’’ ibid., from the post-Reconstruction period. See Municipal Respondents’ Brief 24-30. The evidence adduced by respondents and their amici easily establishes their contentions that the “consensus in States that recognize a firearms right is that arms possession, even in the home, is . . . subject to interest-balancing,’’ id., at 24; and that the practice of “[b]arming weapons routinely used for self-defense,’’ when deemed “necessary for the public welfare,’’ “has ample historical pedigree,’’ id., at 28. Petitioners do not even try to challenge these contentions.

I agree with Justice Scalia that a history of regulation hardly proves a right is not “of fundamental character.’’ Ante, at 802, 177 L. Ed. 2d, at 936. An unbroken history of extremely intensive, carefully considered regulation does, however, tend to suggest that it is not.

The Heller majority asserted that ‘The adjective ‘well-regulated’ ’’ in the Second Amendment’s preamble “implies nothing more than the imposition of proper discipline and training.’’ 554 U.S., at 597, 128 S. Ct. 2783, 171 L. Ed. 2d 637. It is far from clear that this assertion is correct. See, e.g., U. S. Const., Art. I, § 4, cl. 1; § 8, cls. 3, 5, 14; § 9, cl. 6; Art. III, § 2, cl. 2; Art. IV, § 2, cl. 3; § 3, cl. 2 (using “regulate” or “Regulation” in manner suggestive of broad, discretionary governmental authority); Art. I, § 8, cl. 16 (invoking powers of “disciplining” and “training” militia in manner suggestive of narrower authority); Heller, 554 U.S., at 579-581, 128 S. Ct. 2783, 171 L. Ed. 2d 637 (investigating Constitution’s separate references to “people” as clue to term’s meaning in Second Amendment); cf. Cornell & DeDino, A Well Regulated Right: The Early American Origins of Gun Control, 73 Ford. L. Rev. 487, 504 (2004) (“The authors of this curious interpretation of the Second Amendment have constructed a fantasy world where words mean their opposite, and regulation is really anti-regulation”). But even if the assertion were correct, the point would remain that the preamble envisions an active state role in overseeing how the right to keep and bear arms is utilized, and in ensuring that it is channeled toward productive ends.

Cf. Heller, 554 U.S., at 698, 128 S. Ct. 2783, 171 L. Ed. 2d 637 (Breyer, J., dissenting) (detailing evidence showing that a “disproportionate amount of violent and property crimes occur in urban areas, and urban criminals are more likely than other offenders to use a firearm during the commission of a violent crime’’).

The fact that Chicago’s handgun murder rate may have “actually increased since the ban was enacted,’’ ante, at 751, 177 L. Ed. 2d, at 904 (majority opinion), means virtually nothing in itself. Countless factors unrelated to the policy may have contributed to that trend. Without a sophisticated regression analysis, we cannot even begin to speculate as to the efficacy or effects of the handgun ban. Even with such an analysis, we could never be certain as to the determinants of the city’s murder rate.

In some sense, it is no doubt true that the “ ‘best’ ’’ solution is elusive for many “serious social problems.’’ Ante, at 802, 177 L. Ed. 2d, at 936 (opinion of Scalia, J.). Yet few social problems have raised such heated empirical controversy as the problem of gun violence. And few, if any, of the liberty interests we have recognized under the Due Process Clause have raised as many complications for judicial oversight as the interest that is recognized today. See post, at 921-927, 177 L. Ed. 2d, at 1010-1013. *999I agree with the plurality that for a right to be eligible for substantive due process recognition, there need not be “a “popular consensus’that the right is fundamental.” Ante, at 789, 177 L. Ed. 2d, at 928. In our remarkably diverse, pluralistic society, there will almost never be such uniformity of opinion. But to the extent that popular consensus is relevant, I do not agree with the plurality that the amicus brief filed in this case by numerous state attorneys general constitutes evidence thereof. Ibid. It is puzzling that so many state lawmakers have asked us to limit their option to regulate a dangerous item. Cf. post, at 920, 177 L. Ed. 2d, at 1009.

Likewise, no one contends that those interested in personal self-defense—every American, presumably—face any particular disadvantage in the political process. All 50 States recognize self-defense as a defense to criminal prosecution. See n. 32, supra.

See Heller, 554 U.S., at 662, 128 S. Ct. 2783, 171 L. Ed. 2d 637 (Stevens, J., dissenting) (“Although it gives short shrift to the drafting history of the Second Amendment, the Court dwells at length on four other sources: the 17th-century English Bill of Rights; Blackstone’s Commentaries on the Laws of England; postenactment commentary on the Second Amendment; and post-Civil War legislative history’’); see also post, at 914-916, 177 L. Ed. 2d, at 1004-1007 (discussing professional historians’ criticisms of Heller).

Indeed, this is truly one of our most deeply rooted legal traditions.