Notes

Due to the importance and significance of this case, and its contentious nature, many amicus curiae briefs were filed in support of both parties. The American Civil Liberties Union filed an amicus curiae brief in support of the petitioner. The ACLU uses the precedent established in Palko v. Connecticut, which was concerned with the incorporation of the 5th Amendment’s protections against double jeopardy to the states, to argue that in order for a right to be applicable under the 14th Amendment, the right must be “implicit in the concept of ordered liberty,” or that the idea of liberty presupposes the existence of that right. For the ACLU, it is impossible to organize a free society without an armed citizenry protecting itself from tyrannical governance. The ACLU references the Slaughter-House Cases, which held that the rights inherent to federal citizenship are applicable to the states via the Privileges and Immunities Clause. The ACLU argues that if the Court overrules the Slaughterhouse cases, the limits of the Privileges and Immunities Clause would be undefined, leaving open a space for extreme judicial activism, where the Court has the ability to define a myriad of different entitlements as “privileges and immunities,” and imposing them onto the states. The ACLU advocates using the Privileges and Immunities Clause to incorporate, without overturning the slaughter-house cases, to prevent future judicial activism and preserving a narrowly defined "privileges and immunities clause."

The Board of Education of the City of Chicago, alongside a variety of local organizations and gun control advocates filed an amicus brief in support of the respondents. The brief begins by recalling the children’s rhyme -- “Sticks and stones may break my bones, but words can never hurt me” -- which shows how the right to bear arms is fundamentally different from freedom of speech, because guns are lethal. Since the Second Amendment is meant to protect the power of the states by ensuring that state militias could not be disarmed, it would make no sense to apply this right against the state governments. The brief also argues, using the same precedent from Palko v. Connecticut as the ACLU, that in order to prove that the right to bear arms applies under the 14th Amendment, you must prove that the prohibition of a particular weapon constitutes the denial of liberty and freedom. Lastly, the brief asserts that since states still retain policing powers to preserve order and safety, the states should be able to regulate firearms.

The court was ultimately decided in favor of the petitioner in a 5-4 decision, with 4 Justices siding with Justice Alito’s majority, and Justice Thomas providing the critical vote in his own concurring opinion, which provided a different rationale behind incorporation. Justice Alito’s wrote the majority opinion, where he demonstrated how the right to bear arms is “deeply rooted” in US history and how it has cultural, legal, and implicit connections to the right to self-defense. For Justice Alito, the right to bear arms constitutes a fundamental right needed for the maintenance of liberty and a free society. Scalia’s concurring opinion agreed with Alito’s decision and rationale, but it focused primarily on the value of the originalist doctrine, which he defended as the best way to prevent judicial activism run amok. For Justice Thomas, the privileges and immunities clause was the best way to incorporate the Second Amendment, echoing the .

Justice Stevens, in his dissenting opinion, that the originalist analysis in D.C. v. Heller lacked the nuance capable to harmonize present developments, Court precedent, and sound judgement; he claims that the originalist interpretation is just as subjective as the living document approach because it allows Justices to cherry pick historical evidence. Stevens argues that the main question of the case was whether or not the prohibition of a particular weapon constituted a violation of one’s fundamental rights. Stevens also argues that following the majority opinion would be disastrous for communities across America. Justice Breyer wrote another dissenting opinion in which he argues that it has nothing says that the right to a particular handgun is key to the right to self-defense. He also goes against the Heller precedent by arguing how the Second Amendment was concerned with militias and not the individual right to bear arms.