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Aside from his objections to incorporation, Justice Stevens didn’t challenge the idea that Americans have a right to keep arms for self-defense, he just didn’t think that we had a particular right to keep handguns instead of long guns. Justice Breyer’s dissent went a good deal further, challenging the very idea that a civilized society needs guns.

Justice Breyer dissenting


… there is no popular consensus that the private self-defense right described in Heller is fundamental. … One side believes the right essential to protect the lives of those attacked in the home; the other side believes it essential to regulate the right in order to protect the lives of others attacked with guns. It seems unlikely that definitive evidence will develop one way or the other. And the appropriate level of firearm regulation has thus long been, and continues to be, a hotly contested matter of political debate.

In my own experience (in my own house) I can attest that there is a sharp divide between those who see guns as essential for home defense, and even freedom, and those who see guns as too dangerous to be generally available in a civilized society.


… the ability of States to reflect local preferences and conditions — both key virtues of federalism — here has particular importance. The incidence of gun ownership varies substantially as between crowded cities and uncongested rural communities, as well as among the different geographic regions of the country. Thus, approximately 60% of adults who live in the relatively sparsely populated Western States of Alaska, Montana, and Wyoming report that their household keeps a gun, while fewer than 15% of adults in the densely populated Eastern States of Rhode Island, New Jersey, and Massachusetts say the same.

The nature of gun violence also varies as between rural communities and cities. Urban centers face significantly greater levels of firearm crime and homicide, while rural communities have proportionately greater problems with nonhomicide gun deaths, such as suicides and accidents. And idiosyncratic local factors can lead to two cities finding themselves in dramatically different circumstances: For example, in 2008, the murder rate was 40 times higher in New Orleans than it was in Lincoln, Nebraska.

It is thus unsurprising that States and local communities have historically differed about the need for gun regulation as well as about its proper level. Nor is it surprising that “primarily, and historically,” the law has treated the exercise of police powers, including gun control, as “matter[s] of local concern.”

Ironically in this decision, it was the more conservative justices arguing for big government and more liberal justices arguing states’ rights. Breyer frames this incorporation of the Second Amendment as a taking of decision-making power away from the states and to the federal government.


Oak Park decided to ban handguns in 1983, after a local attorney was shot to death with a handgun that his assailant had smuggled into a courtroom in a blanket. … A citizens committee spent months gathering information about handguns. … It secured 6,000 signatures from community residents in support of a ban. … And the village board enacted a ban into law. … Subsequently, at the urging of ban opponents the Board held a community referendum on the matter. … The citizens committee argued strongly in favor of the ban. … It pointed out that most guns owned in Oak Park were handguns and that handguns were misused more often than citizens used them in self-defense. … The ban opponents argued just as strongly to the contrary. … The public decided to keep the ban by a vote of 8,031 to 6,368. … And since that time, Oak Park now tells us, crime has decreased and the community has seen no accidental handgun deaths. …

Given the empirical and local value-laden nature of the questions that lie at the heart of the issue, why, in a Nation whose Constitution foresees democratic decision making, is it so fundamental a matter as to require taking that power from the people? What is it here that the people did not know? What is it that a judge knows better?

Using Oak Park, Breyer again argues for local determination. The vote against handguns was not overwhelming, but it seems to have held up.

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  1. "Ironically in this decision, it was the more conservative justices arguing for big government and more liberal justices arguing states’ rights."

    Whoa! Donal, I was right there with you until I read this sentence. This decision affirmed that gun ownership for self-defense is a right of the "People" (i.e. individuals), not the exclusive purview of the armed forces. Otis McDonald, Adam Orlov, Colleen Lawson, and David Lawson are private citizens residing in the City of Chicago, not agents of Big Government.

    This decision was not a victory for big government. It was the empowerment of the individual over the state.

    • The Bill of Rights, including the Second Amendment, originally applied only to the Federal Government, not to the States, …, but the constitutional Amendments adopted in the Civil War’s aftermath fundamentally altered the federal system.

      Over the years, some of the earlier amendments have been found to be incorporated by the 14th amendment, while others, like the 2nd, were not. The majority's key argument was that the 14th amendment also incorporated the 2nd amendment, so therefore a bit more of the Bill of Rights now supersedes more restrictive state and local laws. To me, that is a victory for federal law over state law – and an expansion of federal influence.

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