[151] Mr. George W. Biddle and Mr. Ben Sheeks for the plaintiff in error.

The Attorney-General and The Solicitor-General, contra.

[153] MR. CHIEF JUSTICE WAITE delivered the opinion of the court.

The assignments of error, when grouped, present the following questions:

1. Was the indictment bad because found by a grand jury of less than sixteen persons?

2. Were the challenges of certain petit jurors by the accused improperly overruled?

3. Were the challenges of certain other jurors by the government improperly sustained?

4. Was the testimony of Amelia Jane Schofield, given at a former trial for the same offence, but under another indictment, improperly admitted in evidence?

5. Should the accused have been acquitted if he married the second time, because he believed it to be his religious duty?

6. Did the court err in that part of the charge which directed the attention of the jury to the consequences of polygamy?

These questions will be considered in their order.

1. As to the grand jury.

The indictment was found in the District Court of the third judicial district of the Territory. The act of Congress "in relation to courts and judicial officers in the Territory of Utah," approved June 23, 1874 (18 Stat. 253), while regulating the qualifications of jurors in the Territory, and prescribing the mode of preparing the lists from which grand and petit jurors are to be drawn, as well as the manner of drawing, makes no provision in respect to the number of persons of which a grand jury shall consist. Sect. 808, Revised Statutes, requires that a grand jury impanelled before any district or circuit court of the United States shall consist of not less than sixteen nor more than twenty-three persons, while a statute of the Territory limits the number in the district courts of the Territory [154] to fifteen. Comp. Laws Utah, 1876, 357. The grand jury which found this indictment consisted of only fifteen persons, and the question to be determined is, whether the section of the Revised Statutes referred to or the statute of the Territory governs the case.

By sect. 1910 of the Revised Statutes the district courts of the Territory have the same jurisdiction in all cases arising under the Constitution and laws of the United States as is vested in the circuit and district courts of the United States; but this does not make them circuit and district courts of the United States. We have often so decided. American Insurance Co. v. Canter, 1 Pet. 511; Benner et al. v. Porter, 9 How. 235; Clinton v. Englebrecht, 13 Wall. 434. They are courts of the Territories, invested for some purposes with the powers of the courts of the United States. Writs of error and appeals lie from them to the Supreme Court of the Territory, and from that court as a territorial court to this in some cases.

Sect. 808 was not designed to regulate the impanelling of grand juries in all courts where offenders against the laws of the United States could be tried, but only in the circuit and district courts. This leaves the territorial courts free to act in obedience to the requirements of the territorial laws in force for the time being. Clinton v. Englebrecht, supra; Hornbuckle v. Toombs, 18 Wall. 648. As Congress may at any time assume control of the matter, there is but little danger to be anticipated from improvident territorial legislation in this particular. We are therefore of the opinion that the court below no more erred in sustaining this indictment than it did at a former term, at the instance of this same plaintiff in error, in adjudging another bad which was found against him for the same offence by a grand jury composed of twenty-three persons. 1 Utah, 226.

2. As to the challenges by the accused.

By the Constitution of the United States (Amend. VI.), the accused was entitled to a trial by an impartial jury. A juror to be impartial must, to use the language of Lord Coke, "be indifferent as he stands unsworn." Co. Litt. 155 b. Lord Coke also says that a principal cause of challenge is "so called because, if it be found true, it standeth sufficient of itself, without [155] leaving any thing to the conscience or discretion of the triers" (id. 156 b); or, as stated in Bacon's Abridgment, "it is grounded on such a manifest presumption of partiality, that, if found to be true, it unquestionably sets aside the ... juror." Bac. Abr., tit. Juries, E. 1. "If the truth of the matter alleged is admitted, the law pronounces the judgment; but if denied, it must be made out by proof to the satisfaction of the court or the triers." Id. E. 12. To make out the existence of the fact, the juror who is challenged may be examined on his voire dire, and asked any questions that do not tend to his infamy or disgrace.

All of the challenges by the accused were for principal cause. It is good ground for such a challenge that a juror has formed an opinion as to the issue to be tried. The courts are not agreed as to the knowledge upon which the opinion must rest in order to render the juror incompetent, or whether the opinion must be accompanied by malice or ill-will; but all unite in holding that it must be founded on some evidence, and be more than a mere impression. Some say it must be positive (Gabbet, Criminal Law, 391); others, that it must be decided and substantial (Armistead's Case, 11 Leigh (Va.), 659; Wormley's Case, 10 Gratt. (Va.) 658; Neely v. The People, 13 Ill. 685); others, fixed (State v. Benton, 2 Dev. & B. (N.C.) L. 196); and, still others, deliberate and settled (Staup v. Commonwealth, 74 Pa. St. 458; Curley v. Commonwealth, 84 id. 151). All concede, however, that, if hypothetical only, the partiality is not so manifest as to necessarily set the juror aside. Mr. Chief Justice Marshall, in Burr's Trial (1 Burr's Trial, 416), states the rule to be that "light impressions, which may fairly be presumed to yield to the testimony that may be offered, which may leave the mind open to a fair consideration of the testimony, constitute no sufficient objection to a juror; but that those strong and deep impressions which close the mind against the testimony that may be offered in opposition to them, which will combat that testimony and resist its force, do constitute a sufficient objection to him." The theory of the law is that a juror who has formed an opinion cannot be impartial. Every opinion which he may entertain need not necessarily have that effect. In these days of newspaper enterprise and universal education, every case of public interest is almost, as a matter of necessity, [156] brought to the attention of all the intelligent people in the vicinity, and scarcely any one can be found among those best fitted for jurors who has not read or heard of it, and who has not some impression or some opinion in respect to its merits. It is clear, therefore, that upon the trial of the issue of fact raised by a challenge for such cause the court will practically be called upon to determine whether the nature and strength of the opinion formed are such as in law necessarily to raise the presumption of partiality. The question thus presented is one of mixed law and fact, and to be tried, as far as the facts are concerned, like any other issue of that character, upon the evidence. The finding of the trial court upon that issue ought not to be set aside by a reviewing court, unless the error is manifest. No less stringent rules should be applied by the reviewing court in such a case than those which govern in the consideration of motions for new trial because the verdict is against the evidence. It must be made clearly to appear that upon the evidence the court ought to have found the juror had formed such an opinion that he could not in law be deemed impartial. The case must be one in which it is manifest the law left nothing to the "conscience or discretion" of the court.

The challenge in this case most relied upon in the argument here is that of Charles Read. He was sworn on his voire dire; and his evidence,^[1] taken as a whole, shows that he "believed" he had formed an opinion which he had never expressed, but which he did not think would influence his verdict on hearing the testimony. We cannot think this is such a manifestation of partiality as to leave nothing to the "conscience or discretion" of the triers. The reading of the evidence leaves the impression that the juror had some hypothetical opinion about the case, but it falls far short of raising a manifest presumption of partiality. In considering such questions in a reviewing court, we ought not to be unmindful of the fact we have so often observed in our experience, that jurors not unfrequently seek to excuse themselves on the ground of having formed an opinion, when, on examination, it turns out that no real disqualification exists. In such cases the manner of the [157] juror while testifying is oftentimes more indicative of the real character of his opinion than his words. That is seen below, but cannot always be spread upon the record. Care should, therefore, be taken in the reviewing court not to reverse the ruling below upon such a question of fact, except in a clear case. The affirmative of the issue is upon the challenger. Unless he shows the actual existence of such an opinion in the mind of the juror as will raise the presumption of partiality, the juror need not necessarily be set aside, and it will not be error in the court to refuse to do so. Such a case, in our opinion, was not made out upon the challenge of Read. The fact that he had not expressed his opinion is important only as tending to show that he had not formed one which disqualified him. If a positive and decided opinion had been formed, he would have been incompetent even though it had not been expressed. Under these circumstances, it is unnecessary to consider the case of Ransohoff, for it was confessedly not as strong as that of Read.

3. As to the challenges by the government.

The questions raised upon these assignments of error are not whether the district attorney should have been permitted to interrogate the jurors while under examination upon their voire dire as to the fact of their living in polygamy. No objection was made below to the questions, but only to the ruling of the court upon the challenges after the testimony taken in answer to the questions was in. From the testimony it is apparent that all the jurors to whom the challenges related were or had been living in polygamy. It needs no argument to show that such a jury could not have gone into the box entirely free from bias and prejudice, and that if the challenge was not good for principal cause, it was for favor. A judgment will not be reversed simply because a challenge good for favor was sustained in form for cause. As the jurors were incompetent and properly excluded, it matters not here upon what form of challenge they were set aside. In one case the challenge was for favor. In the courts of the United States all challenges are tried by the court without the aid of triers (Rev. Stat. sect. 819), and we are not advised that the practice in the territorial courts of Utah is different.

[158] 4. As to the admission of evidence to prove what was sworn to by Amelia Jane Schofield on a former trial of the accused for the same offence but under a different indictment.

The Constitution gives the accused the right to a trial at which he should be confronted with the witnesses against him; but if a witness is absent by his own wrongful procurement, he cannot complain if competent evidence is admitted to supply the place of that which he has kept away. The Constitution does not guarantee an accused person against the legitimate consequences of his own wrongful acts. It grants him the privilege of being confronted with the witnesses against him; but if he voluntarily keeps the witnesses away, he cannot insist on his privilege. If, therefore, when absent by his procurement, their evidence is supplied in some lawful way, he is in no condition to assert that his constitutional rights have been violated.

In Lord Morley's Case (6 State Trials, 770), as long ago as the year 1666, it was resolved in the House of Lords "that in case oath should be made that any witness, who had been examined by the coroner and was then absent, was detained by the means or procurement of the prisoner, and the opinion of the judges asked whether such examination might be read, we should answer, that if their lordships were satisfied by the evidence they had heard that the witness was detained by means or procurement of the prisoner, then the examination might be read; but whether he was detained by means or procurement of the prisoner was matter of fact, of which we were not the judges, but their lordships." This resolution was followed in Harrison's Case (12 id. 851), and seems to have been recognized as the law in England ever since. In Regina v. Scaife (17 Ad. & El. N.S. 242), all the judges agreed that if the prisoner had resorted to a contrivance to keep a witness out of the way, the deposition of the witness, taken before a magistrate and in the presence of the prisoner, might be read. Other cases to the same effect are to be found, and in this country the ruling has been in the same way. Drayton v. Wells, 1 Nott & M. (S.C.) 409; Williams v. The State, 19 Ga. 403. So that now, in the leading text-books, it is laid down that if a witness is kept away by the adverse party, [159] his testimony, taken on a former trial between the same parties upon the same issues, may be given in evidence. 1 Greenl. Evid., sect. 163; 1 Taylor, Evid., sect. 446. Mr. Wharton (1 Whart. Evid., sect. 178) seemingly limits the rule somewhat, and confines it to cases where the witness has been corruptly kept away by the party against whom he is to be called, but in reality his statement is the same as that of the others; for in all it is implied that the witness must have been wrongfully kept away. The rule has its foundation in the maxim that no one shall be permitted to take advantage of his own wrong; and, consequently, if there has not been, in legal contemplation, a wrong committed, the way has not been opened for the introduction of the testimony. We are content with this long-established usage, which, so far as we have been able to discover, has rarely been departed from. It is the outgrowth of a maxim based on the principles of common honesty, and, if properly administered, can harm no one.

Such being the rule, the question becomes practically one of fact, to be settled as a preliminary to the admission of secondary evidence. In this respect it is like the preliminary question of the proof of loss of a written instrument, before secondary evidence of the contents of the instrument can be admitted. In Lord Morley's Case (supra), it would seem to have been considered a question for the trial court alone, and not subject to review on error or appeal; but without deeming it necessary in this case to go so far as that, we have no hesitation in saying that the finding of the court below is, at least, to have the effect of a verdict of a jury upon a question of fact, and should not be disturbed unless the error is manifest.

The testimony shows that the absent witness was the alleged second wife of the accused; that she had testified on a former trial for the same offence under another indictment; that she had no home, except with the accused; that at some time before the trial a subpœna had been issued for her, but by mistake she was named as Mary Jane Schobold; that an officer who knew the witness personally went to the house of the accused to serve the subpœna, and on his arrival inquired for her, either by the name of Mary Jane Schofield or Mrs. Reynolds; that he was told by the accused she was not at home; [160] that he then said, "Will you tell me where she is?" that the reply was "No; that will be for you to find out;" that the officer then remarked she was making him considerable trouble, and that she would get into trouble herself; and the accused replied, "Oh, no; she won't, till the subpœna is served upon her," and then, after some further conversation, that "She does not appear in this case."

It being discovered after the trial commenced that a wrong name had been inserted in the subpœna, a new subpœna was issued with the right name, at nine o'clock in the evening. With this the officer went again to the house, and there found a person known as the first wife of the accused. He was told by her that the witness was not there, and had not been for three weeks. He went again the next morning, and not finding her, or being able to ascertain where she was by inquiring in the neighborhood, made return of that fact to the court. At ten o'clock that morning the case was again called; and the foregoing facts being made to appear, the court ruled that evidence of what the witness had sworn to at the former trial was admissible.

In this we see no error. The accused was himself personally present in court when the showing was made, and had full opportunity to account for the absence of the witness, if he would, or to deny under oath that he had kept her away. Clearly, enough had been proven to cast the burden upon him of showing that he had not been instrumental in concealing or keeping the witness away. Having the means of making the necessary explanation, and having every inducement to do so if he would, the presumption is that he considered it better to rely upon the weakness of the case made against him than to attempt to develop the strength of his own. Upon the testimony as it stood, it is clear to our minds that the judgment should not be reversed because secondary evidence was admitted.

This brings us to the consideration of what the former testimony was, and the evidence by which it was proven to the jury.

It was testimony given on a former trial of the same person for the same offence, but under another indictment. It was [161] substantially testimony given at another time in the same cause. The accused was present at the time the testimony was given, and had full opportunity of cross-examination. This brings the case clearly within the well-established rules. The cases are fully cited in 1 Whart. Evid., sect. 177.

The objection to the reading by Mr. Patterson of what was sworn to on the former trial does not seem to have been because the paper from which he read was not a true record of the evidence as given, but because the foundation for admitting the secondary evidence had not been laid. This objection, as has already been seen, was not well taken.

5. As to the defence of religious belief or duty.

On the trial, the plaintiff in error, the accused, proved that at the time of his alleged second marriage he was, and for many years before had been, a member of the Church of Jesus Christ of Latter-Day Saints, commonly called the Mormon Church, and a believer in its doctrines; that it was an accepted doctrine of that church "that it was the duty of male members of said church, circumstances permitting, to practise polygamy; ... that this duty was enjoined by different books which the members of said church believed to be of divine origin, and among others the Holy Bible, and also that the members of the church believed that the practice of polygamy was directly enjoined upon the male members thereof by the Almighty God, in a revelation to Joseph Smith, the founder and prophet of said church; that the failing or refusing to practise polygamy by such male members of said church, when circumstances would admit, would be punished, and that the penalty for such failure and refusal would be damnation in the life to come." He also proved "that he had received permission from the recognized authorities in said church to enter into polygamous marriage; ... that Daniel H. Wells, one having authority in said church to perform the marriage ceremony, married the said defendant on or about the time the crime is alleged to have been committed, to some woman by the name of Schofield, and that such marriage ceremony was performed under and pursuant to the doctrines of said church."

Upon this proof he asked the court to instruct the jury that if they found from the evidence that he "was married as [162] charged — if he was married — in pursuance of and in conformity with what he believed at the time to be a religious duty, that the verdict must be `not guilty.'" This request was refused, and the court did charge "that there must have been a criminal intent, but that if the defendant, under the influence of a religious belief that it was right, — under an inspiration, if you please, that it was right, — deliberately married a second time, having a first wife living, the want of consciousness of evil intent — the want of understanding on his part that he was committing a crime — did not excuse him; but the law inexorably in such case implies the criminal intent."

Upon this charge and refusal to charge the question is raised, whether religious belief can be accepted as a justification of an overt act made criminal by the law of the land. The inquiry is not as to the power of Congress to prescribe criminal laws for the Territories, but as to the guilt of one who knowingly violates a law which has been properly enacted, if he entertains a religious belief that the law is wrong.

Congress cannot pass a law for the government of the Territories which shall prohibit the free exercise of religion. The first amendment to the Constitution expressly forbids such legislation. Religious freedom is guaranteed everywhere throughout the United States, so far as congressional interference is concerned. The question to be determined is, whether the law now under consideration comes within this prohibition.

The word "religion" is not defined in the Constitution. We must go elsewhere, therefore, to ascertain its meaning, and nowhere more appropriately, we think, than to the history of the times in the midst of which the provision was adopted. The precise point of the inquiry is, what is the religious freedom which has been guaranteed.

Before the adoption of the Constitution, attempts were made in some of the colonies and States to legislate not only in respect to the establishment of religion, but in respect to its doctrines and precepts as well. The people were taxed, against their will, for the support of religion, and sometimes for the support of particular sects to whose tenets they could not and did not subscribe. Punishments were prescribed for a failure to attend upon public worship, and sometimes for entertaining [163] heretical opinions. The controversy upon this general subject was animated in many of the States, but seemed at last to culminate in Virginia. In 1784, the House of Delegates of that State having under consideration "a bill establishing provision for teachers of the Christian religion," postponed it until the next session, and directed that the bill should be published and distributed, and that the people be requested "to signify their opinion respecting the adoption of such a bill at the next session of assembly."

This brought out a determined opposition. Amongst others, Mr. Madison prepared a "Memorial and Remonstrance," which was widely circulated and signed, and in which he demonstrated "that religion, or the duty we owe the Creator," was not within the cognizance of civil government. Semple's Virginia Baptists, Appendix. At the next session the proposed bill was not only defeated, but another, "for establishing religious freedom," drafted by Mr. Jefferson, was passed. 1 Jeff. Works, 45; 2 Howison, Hist. of Va. 298. In the preamble of this act (12 Hening's Stat. 84) religious freedom is defined; and after a recital "that to suffer the civil magistrate to intrude his powers into the field of opinion, and to restrain the profession or propagation of principles on supposition of their ill tendency, is a dangerous fallacy which at once destroys all religious liberty," it is declared "that it is time enough for the rightful purposes of civil government for its officers to interfere when principles break out into overt acts against peace and good order." In these two sentences is found the true distinction between what properly belongs to the church and what to the State.

In a little more than a year after the passage of this statute the convention met which prepared the Constitution of the United States." Of this convention Mr. Jefferson was not a member, he being then absent as minister to France. As soon as he saw the draft of the Constitution proposed for adoption, he, in a letter to a friend, expressed his disappointment at the absence of an express declaration insuring the freedom of religion (2 Jeff. Works, 355), but was willing to accept it as it was, trusting that the good sense and honest intentions of the people would bring about the necessary alterations. [164] 1 Jeff. Works, 79. Five of the States, while adopting the Constitution, proposed amendments. Three — New Hampshire, New York, and Virginia — included in one form or another a declaration of religious freedom in the changes they desired to have made, as did also North Carolina, where the convention at first declined to ratify the Constitution until the proposed amendments were acted upon. Accordingly, at the first session of the first Congress the amendment now under consideration was proposed with others by Mr. Madison. It met the views of the advocates of religious freedom, and was adopted. Mr. Jefferson afterwards, in reply to an address to him by a committee of the Danbury Baptist Association (8 id. 113), took occasion to say: "Believing with you that religion is a matter which lies solely between man and his God; that he owes account to none other for his faith or his worship; that the legislative powers of the government reach actions only, and not opinions, — I contemplate with sovereign reverence that act of the whole American people which declared that their legislature should `make no law respecting an establishment of religion or prohibiting the free exercise thereof,' thus building a wall of separation between church and State. Adhering to this expression of the supreme will of the nation in behalf of the rights of conscience, I shall see with sincere satisfaction the progress of those sentiments which tend to restore man to all his natural rights, convinced he has no natural right in opposition to his social duties." Coming as this does from an acknowledged leader of the advocates of the measure, it may be accepted almost as an authoritative declaration of the scope and effect of the amendment thus secured. Congress was deprived of all legislative power over mere opinion, but was left free to reach actions which were in violation of social duties or subversive of good order.

Polygamy has always been odious among the northern and western nations of Europe, and, until the establishment of the Mormon Church, was almost exclusively a feature of the life of Asiatic and of African people. At common law, the second marriage was always void (2 Kent, Com. 79), and from the earliest history of England polygamy has been treated as an offence against society. After the establishment of the ecclesiastical [165] courts, and until the time of James I., it was punished through the instrumentality of those tribunals, not merely because ecclesiastical rights had been violated, but because upon the separation of the ecclesiastical courts from the civil the ecclesiastical were supposed to be the most appropriate for the trial of matrimonial causes and offences against the rights of marriage, just as they were for testamentary causes and the settlement of the estates of deceased persons.

By the statute of 1 James I. (c. 11), the offence, if committed in England or Wales, was made punishable in the civil courts, and the penalty was death. As this statute was limited in its operation to England and Wales, it was at a very early period re-enacted, generally with some modifications, in all the colonies. In connection with the case we are now considering, it is a significant fact that on the 8th of December, 1788, after the passage of the act establishing religious freedom, and after the convention of Virginia had recommended as an amendment to the Constitution of the United States the declaration in a bill of rights that "all men have an equal, natural, and unalienable right to the free exercise of religion, according to the dictates of conscience," the legislature of that State substantially enacted the statute of James I., death penalty included, because, as recited in the preamble, "it hath been doubted whether bigamy or poligamy be punishable by the laws of this Commonwealth." 12 Hening's Stat. 691. From that day to this we think it may safely be said there never has been a time in any State of the Union when polygamy has not been an offence against society, cognizable by the civil courts and punishable with more or less severity. In the face of all this evidence, it is impossible to believe that the constitutional guaranty of religious freedom was intended to prohibit legislation in respect to this most important feature of social life. Marriage, while from its very nature a sacred obligation, is nevertheless, in most civilized nations, a civil contract, and usually regulated by law. Upon it society may be said to be built, and out of its fruits spring social relations and social obligations and duties, with which government is necessarily required to deal. In fact, according as monogamous or polygamous marriages are allowed, do we find the principles on which the government of [166] the people, to a greater or less extent, rests. Professor Lieber says, polygamy leads to the patriarchal principle, and which, when applied to large communities, fetters the people in stationary despotism, while that principle cannot long exist in connection with monogamy. Chancellor Kent observes that this remark is equally striking and profound. 2 Kent, Com. 81, note (e). An exceptional colony of polygamists under an exceptional leadership may sometimes exist for a time without appearing to disturb the social condition of the people who surround it; but there cannot be a doubt that, unless restricted by some form of constitution, it is within the legitimate scope of the power of every civil government to determine whether polygamy or monogamy shall be the law of social life under its dominion.

In our opinion, the statute immediately under consideration is within the legislative power of Congress. It is constitutional and valid as prescribing a rule of action for all those residing in the Territories, and in places over which the United States have exclusive control. This being so, the only question which remains is, whether those who make polygamy a part of their religion are excepted from the operation of the statute. If they are, then those who do not make polygamy a part of their religious belief may be found guilty and punished, while those who do, must be acquitted and go free. This would be introducing a new element into criminal law. Laws are made for the government of actions, and while they cannot interfere with mere religious belief and opinions, they may with practices. Suppose one believed that human sacrifices were a necessary part of religious worship, would it be seriously contended that the civil government under which he lived could not interfere to prevent a sacrifice? Or if a wife religiously believed it was her duty to burn herself upon the funeral pile of her dead husband, would it be beyond the power of the civil government to prevent her carrying her belief into practice?

So here, as a law of the organization of society under the exclusive dominion of the United States, it is provided that plural marriages shall not be allowed. Can a man excuse his practices to the contrary because of his religious belief? [167] To permit this would be to make the professed doctrines of religious belief superior to the law of the land, and in effect to permit every citizen to become a law unto himself. Government could exist only in name under such circumstances.

A criminal intent is generally an element of crime, but every man is presumed to intend the necessary and legitimate consequences of what he knowingly does. Here the accused knew he had been once married, and that his first wife was living. He also knew that his second marriage was forbidden by law. When, therefore, he married the second time, he is presumed to have intended to break the law. And the breaking of the law is the crime. Every act necessary to constitute the crime was knowingly done, and the crime was therefore knowingly committed. Ignorance of a fact may sometimes be taken as evidence of a want of criminal intent, but not ignorance of the law. The only defence of the accused in this case is his belief that the law ought not to have been enacted. It matters not that his belief was a part of his professed religion: it was still belief, and belief only.

In Regina v. Wagstaff (10 Cox Crim. Cases, 531), the parents of a sick child, who omitted to call in medical attendance because of their religious belief that what they did for its cure would be effective, were held not to be guilty of manslaughter, while it was said the contrary would have been the result if the child had actually been starved to death by the parents, under the notion that it was their religious duty to abstain from giving it food. But when the offence consists of a positive act which is knowingly done, it would be dangerous to hold that the offender might escape punishment because he religiously believed the law which he had broken ought never to have been made. No case, we believe, can be found that has gone so far.

6. As to that part of the charge which directed the attention of the jury to the consequences of polygamy.

The passage complained of is as follows: "I think it not improper, in the discharge of your duties in this case, that you should consider what are to be the consequences to the innocent victims of this delusion. As this contest goes on, they multiply, [168] and there are pure-minded women and there are innocent children, — innocent in a sense even beyond the degree of the innocence of childhood itself. These are to be the sufferers; and as jurors fail to do their duty, and as these cases come up in the Territory of Utah, just so do these victims multiply and spread themselves over the land."

While every appeal by the court to the passions or the prejudices of a jury should be promptly rebuked, and while it is the imperative duty of a reviewing court to take care that wrong is not done in this way, we see no just cause for complaint in this case. Congress, in 1862 (12 Stat. 501), saw fit to make bigamy a crime in the Territories. This was done because of the evil consequences that were supposed to flow from plural marriages. All the court did was to call the attention of the jury to the peculiar character of the crime for which the accused was on trial, and to remind them of the duty they had to perform. There was no appeal to the passions, no instigation of prejudice. Upon the showing made by the accused himself, he was guilty of a violation of the law under which he had been indicted: and the effort of the court seems to have been not to withdraw the minds of the jury from the issue to be tried, but to bring them to it; not to make them partial, but to keep them impartial.

Upon a careful consideration of the whole case, we are satisfied that no error was committed by the court below.

Judgment affirmed.

MR. JUSTICE FIELD.

I concur with the majority of the court on the several points decided except one, — that which relates to the admission of the testimony of Amelia Jane Schofield given on a former trial upon a different indictment. I do not think that a sufficient foundation was laid for its introduction. The authorities cited by the Chief Justice to sustain its admissibility seem to me to establish conclusively the exact reverse.

NOTE. — At a subsequent day of the term a petition for a rehearing having been filed, MR. CHIEF JUSTICE WAITE delivered the opinion of the court.

Since our judgment in this case was announced, a petition for rehearing has been filed, in which our attention is called to the fact that the sentence of the [169] court below requires the imprisonment to be at hard labor, when the act of Congress under which the indictment was found provides for punishment by imprisonment only. This was not assigned for error on the former hearing, and we might on that account decline to consider it now; but as the irregularity is one which appears on the face of the record, we vacate our former judgment of affirmance, and reverse the judgment of the court below for the purpose of correcting the only error which appears in the record, to wit, in the form of the sentence. The cause is remanded, with instructions to cause the sentence of the District Court to be set aside and a new one entered on the verdict in all respects like that before imposed, except so far as it requires the imprisonment to be at hard labor.

[1] Supra, p. 147.

Common Pleas Court of Mahoning County, Probate Division.

(No. 85426-C

Shapira v. Union National Bank et al.

Decided January 22, 1974.)

Mr. Dennis Ilaines, for plaintiff.

Mr. Martin Novah, for defendant State of Israel.

Mr. Irwin I. Kretser, for defendant Union National Bank.

Henderson, J.

This is an action for a declaratory judg­ment and the construction of the will of David Shapira, M. D., who died April 13, 1973, a resident of this county. By agreement of the parties, the case has been submitted upon the pleadings and the exhibit.

The portions of the will in controversy are as follows:

“Item VIII. All the rest, residue and remainder of my estate, real and personal, of every kind and description and wheresoever situated, which I may own or have the right to dispose of at the time of my decease, I give, devise and bequeath to my three (3) beloved children, to wit: Ruth Shapira Aharoni, of Tel Aviv, Israel, or wherever she may reside at the time of my death; to my son Daniel Jacob Shapira, and to my son Mark Benjamin Simon Shapira in equal shares, with the following qualifications: * * *

“ (b) My son Daniel Jacob Shapira should receive his share of the bequest only, if he is married at the time of my death to a Jewish girl whose both parents were Jewish. In the event that at the time of my death he is not married to a Jewish girl whose both parents were Jewish, then his share of this bequest should be kept by my executor for a period of not longer than seven (7) years and if my said son Daniel Jacob gets married within the seven year period to a Jewish girl whose both parents were Jewish, my executor is hereby instructed to turn over his share of my bequest to him. In the event, however, that my said son Daniel Jacob is unmarried within the seven (7) years after my death to a Jewish girl whose both parents were Jewish, or if he is married to a non Jewish girl, then his share of my estate, as provided in item 8 above should go to The State of Israel, absolutely. ’ ’

The provision for the testator’s other son Mark, is con­ditioned substantially similarly. Daniel Jacob Shapira, the plaintiff, alleges that the condition upon his inheritance is unconstitutional, contrary to public policy and unenforce­able because of its unreasonableness, and that he should be given his bequest free of the restriction. Daniel is 21 years of age, unmarried and a student at Youngstown State Uni­versity.

The provision in controversy is an executory devise or legacy, under which vesting of the estate of Daniel Jacob Shapira or the State of Israel is not intended to take place necessarily at the death of the testator, but rather condi­tionally, at a time not later than seven years after the testa­tor ’s death. The executory aspect of the provision, though rather unusual, does not render it invalid. Heath v. City of Cleveland (1926), 114 Ohio St. 535.

CONSTITUTIONALITY

Plaintiff’s argument that the condition in question vio­lates constitutional safeguards is based upon the premise that the right to marry is protected by the Fourteenth Amendment to the Constitution of the United States. Meyer v. Nebraska (1923), 262 U. S. 390; Skinner v. Oklahoma (1942), 316 U. S. 535; Loving v. Virginia (1967), 388 U. S. 1. In Meyer v. Nebraska, holding unconstitutional a state statute prohibiting the teaching of languages other than English, the court stated that the Fourteenth Amendment denotes the right to marry among other basic rights. In Skinner v. Oklahoma, holding unconstitutional a state statute providing for the sterilization of certain habitual criminals, the court stated that marriage and procreation are fundamental to the very existence and survival of the race. In Loving v. Virginia, the court held unconstitution­al as violative of the Equal Protection and Due Process Clauses of the Fourteenth Amendment an antimiscegena­tion statute under which a black person and a white person were convicted for marrying. In its opinion the United States Supreme Court made the following statements at page 12:

‘ ‘ There can be no doubt that restricting the freedom to marry solely because of racial classifications violates the central meaning of the Equal Protection Clause.

<«* * * freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men.

“Marriage is one of the ‘basic civil rights of man,’ fundamental to our very existence and survival. * * * The Fourteenth Amendment requires that the freedom of choice to marry not be restricted by invidious racial discriminations. Under our Constitution, the freedom to marry, or not marry, a person of another race resides with the in-­individual and cannot be infringed by the State.”

From the foregoing, it appears clear, as plaintiff con­tends, that the right to marry is constitutionally protected from restrictive state legislative action. Plaintiff submits, then, that under the doctrine of Shelley v. Kraemer (1948), 334 U. S. 1, the constitutional protection of the Fourteenth Amendment is extended from direct state legislative action to the enforcement by state judicial proceedings of private provisions restricting the right to marry. Plaintiff con­tends that a judgment of this court upholding the condition restricting marriage would, under Shelley v. Kraemer, con­stitute state action prohibited by the Fourteenth Amend­ment as much as a state statute.
In Shelley v. Kraemer the United States Supreme Court held that the action of the states to which the Fourteenth Amendment has reference includes action of state courts and state judicial officials. Prior to this decision the court had invalidated city ordinances which denied blacks the right to live in white neighborhoods. In Shelley v. Kraemer owners of neighboring properties sought to enjoin blacks from occupying properteis which they had bought, but which were subjected to privately executed restrictions against use or occupation by any persons except those of the Caucasian race. Chief Justice Vinson noted, in the course of his opinion at page 13: “These are cases in which the purposes of the agreements were secured only by judi­cial enforcement by state courts of the restrictive terms of the agreements.”
In the case at bar, this court is not being asked to en­force any restriction upon Daniel Jacob Shapira’s constitu­tional right to marry. Rather, this court is being asked to enforce the testator’s restriction upon his son’s inherit­ance. If the facts and circumstances of this case were such that the aid of this court were sought to enjoin Daniel’s marrying a non-Jewish girl, then the doctrine of Shelley v. Kraemer would be applicable, but not, it is believed, upon the facts as they are.
Counsel for plaintiff asserts, however, that his position with respect to the applicability of Shelley v. Kraemer to this case is fortified by two later decisions of the United States Supreme Court: Evans v. Newton (1966), 382 U. S. 296 and Pennsylvania v. Board of Directors of City Trusts of the City of Philadelphia (1957), 353 U. S. 230.
Evans v. Newton involved land willed in trust to the mayor and city council of Macon, Georgia, as a park for white people only, and to be controlled by a white board of managers. To avoid the city’s having to enforce racial segregation in the park, the city officials resigned as trus­tees and private individuals were installed. The court held that such successor trustees, even though private individ­uals, became agencies or instrumentalities of the state and subject to the Fourteenth Amendment by reason of their exercising powers or carrying on functions governmental in nature. The following comment of Justice Douglas seems revealing: “If a testator wanted to leave a school or center for the use of one race only and in no way im­plicated the State in the supervision, control, or manage­ment of that facility, we assume arguendo that no constitu­tional difficulty would be encountered.” 382 U. S. 300.
The case of Pennsylvania v. Board, as the full title, above, suggests, is a case in which money was left by will to the city of Philadelphia in trust for a college to admit poor white male orphans. The court held that the board which operated the college was an agency of the state of Pennsylvania, and that, therefore, its refusal to admit the plaintiffs because they were negroes was discrimination by the state forbidden by the Fourteenth Amendment.
So, in neither Evans v. Newton nor Pennsylvania v. Board was the doctrine of the earlier Shelley v. Kraemer applied or extended. Both of them involved restrictive actions by state governing agencies, in one case with re­spect to a park, in the other case with respect to a college. Although both the park and the college were founded upon testamentary gifts, the state action struck down by the court was not the judicial completion of the gifts, but rather the subsequent enforcement of the racial restrictions by the public management.
Basically, the right to receive property by will is a creature of the law, and is not a natural right or one guar­anteed or protected by either the Ohio or the United States constitution. Patton v. Patton (1883), 39 Ohio St. 590; Hagerty v. State (1897), 55 Ohio St. 613; State, ex rel. Taylor, v. Guilbert (1904), 70 Ohio St. 229; Magoun v. Ill­inois Trust and Savings Bank (1898), 170 U. S. 283; 55 Ohio Jurisprudence 2d 535, Wills, Section 64; 57 American Jurisprudence 138, Wills, Section 153. It is a fundamental rule of law in Ohio that a testator may legally entirely dis­inherit his children. 56 Ohio Jurisprudence 2d 252, Wills, Section 742; 55 Ohio Jurisprudence 2d 564, Wills, Section 101; Wilson v. Behr (C. A. Hamilton (1936)), 57 Ohio App. 117, 121, 12 N. E. 2d 300, 5 O. O. 424. This would seem to demonstrate that, from a constitutional standpoint, a testa­tor may restrict a child’s inheritance. The court concludes, therefore, that the upholding and enforcement of the provi­sions of Dr. Shapira’s will conditioning the bequests to his sons upon their marrying Jewish girls does not offend the Constitution of Ohio or of the United States. U. S. National Bank of Portland v. Snodgrass (1954), 202 Ore. 530, 275 P. 2d 860, 50 A. L. R. 2d 725; Gordon v. Gordon (Mass. (1955)), 124 N. E. 2d 228; 54 Mich. L. Rev. 297 (1955); cf. 39 Minn. L. Rev. 809 (1955).

PUBLIC POLICY

The condition that Daniel’s share should he “turned over to him if he should marry a Jewish girl whose both parents were Jewish” constitutes a partial restraint upon marriage. If the condition were that the beneficiary not marry anyone, the restraint would be general or total, and, at least in the case of a first marriage, would be held to be contrary to public policy and void. A partial restraint of marriage which imposes only reasonable restrictions is valid, and not contrary to public policy: 5 Bowe-Parker: Page on Wills 460, Section 44.25; 56 Ohio Jurisprudence 2d 243, Wills, Section 729; 52 American Jurisprudence 2d 1023, Marriage, Section 181. The great weight of authority in the United States is that gifts conditioned upon the bene­ficiary’s marrying within a particular religious class or faith are reasonable. 5 Bowe-Parker; Page on Wills 461, Section 44.25; 52 American Jurisprudence 2d 1025, Mar­riage, Section 183. 56 Ohio Jurisprudence 2d 245, Wills, Section 731; 1 Prentice-PIall, Estate Planning, Law of Wills, 373, Paragraph 375.20; 1 Restatement of the Law, Trusts 2d, 166, Section 62 (h); National Bank v. Snodgrass (supra), annotation, 50 A. L. R. 2d 740; Gordon v. Gordon, supra; In re Harris (1955), 143 N. Y. Supp. 2d 746; Matter of Seaman (1916), 218 N. Y. 77, 112 N. E. 576; Matter of Liberman (1939), 279 N. Y. 458, 18 N. E. 2d 658; In re Silverstein’s Will (1956), 155 N. Y. Supp. 2d 598; In re Clayton’s Estate (Phila. Co. Pa. 1930), 13 D. & C. 413; Pacholder v. Rosenheim (1916), 129 Md. 455, 99 A. 672.
Plaintiff contends, however, that in Ohio a condition such as the one in this case is void as against the public policy of this state. In Ohio, as elsewhere, a testator may not attach á condition to a gift which is in violation of pub­lic policy. 56 Ohio Jurisprudence 2d 238, Wills, Section 722; Neidler v. Donaldson (P. C. Seneca 1966), 9 Ohio Misc. 208, 224 N. E. 2d 404, 38 O. O. 2d 360. There can be no question about the soundness of plaintiff’s position that the public policy of Ohio favors freedom of religion and that it is guaranteed by Section 7, Article I of the Ohio Con­stitution, providing that “all men have a natural and in­defeasible right to worship Almighty God according to the dictates of their own conscience.” Plaintiff’s position that the free choice of religious practice cannot be circumscribed or controlled by contract is substantiated by Hackett v. Hackett (C. A. Lucas 1958), 78 Ohio Law Abs. 485, 150 N. E. 2d 431. This case held that a covenant in a separation agreement, incorporated in a divorce decree, that the mother would rear a daughter in the Roman Catholic faith was unenforceable. However, the controversial condition in the case at bar is a partial restraint upon marriage and not a covenant to restrain the freedom of religious practice; and, of course, this court is not being asked to hold the plaintiff in contempt for failing to marry a Jewish girl of Jewish parentage.
Counsel contends that if “Dr. David Shapira, during his life, had tried to impose upon his son those restrictions set out in his Will he would have violated the public policy of Ohio as shown in Hackett v. Hackett. The public policy is equally violated by the restrictions Dr. Shapira has placed on his son by his Will.” This would be true, by analogy, if Dr. Shapira, in his lifetime, had tried to force his son to marry a Jewish girl as the condition of a com­pleted gift. But it is not true that if Dr. Shapira had agreed to make his son an inter-vivos gift if he married a Jewish girl within seven years, that his son could have forced him to make the gift free of the condition.

It is noted, furthermore, in this connection, that the courts of Pennsylvania distinguish between testamentary gifts conditioned upon the religious faith of the benefi­ciary and those conditioned upon marriage to persons of a particular religious faith. In In Re Clayton’s Estate, supra (13 D. & C. 413), the court upheld a gift of a life estate conditioned upon the beneficiary’s not marrying a woman of the Catholic faith. In its opinion the court dis­tinguishes the earlier case of Drace v. Klinedinst (1922), 275 Pa. 266, 118 A. 907, in which a life estate willed to grandchildren, provided they remained faithful to a parti­cular religion, was held to violate the public policy of Pennsylvania. In Clayton’s Estate, the court said that the condition concerning marriage did not affect the faith of the beneficiary, and that the condition, operating only on the choice of a wife, was too remote to be regarded as coercive of religions faith.

But counsel relies upon an Ohio case much more nearly in point, that of Moses v. Zook (C. A., Wayne 1934), 18 Ohio Law Abs. 373. This ease involves a will in which the testa­trix gave the income of her residual estate in trust to her niece and nephews for two years and then the remainder to them. Item twelve provides as follows: “If any of my nieces or nephews should marry outside of the Protestant Faith, then they shall not receive any part of my estate de­vised or bequeathed to them.” The will contained no gift over upon violation of the marriage condition. The holding of the trial court was that item twelve was null and void as being against public policy and the seven other items of the will should be administered as specified in detail by the court. There is nothing in the reported opinion to show to what extent, if at all, the question of public policy was in issue or contested in the trial court; only one of the sev­eral other unrelated holdings of the trial court (not includ­ing the public policy holding) was assigned as error; and although the Court of Appeals adopted the unexcepted-to holdings of the trial court, there is no citation of authori­ties or discussion concerning the public policy question it­self. The case was apparently not appealed to the Supreme Court, and no other cases in Ohio have been cited or found. Moses v. Zook differs in its facts in not containing a gift over upon breach of the condition, and appears not to have been a sufficiently litigated or reasoned establishment of the public policy of Ohio which this court should be obliged to follow.

The only cases cited by plaintiff’s counsel in accord with the holding in Moses v. Zook are some English cases and one American decision. In England the courts have held that partial restrictions upon marriage to persons not of the Jewish faith, or of Jewish parentage, were not con­trary to public policy or invalid. Hodgson v. Halford (1879 Eng.) L. R. 11 Ch. Div. 959, 50 A. L. R. 2d 742. Other eases in England, however, have invalidated forfei­tures of similarly conditioned provisions for children upon the basis of uncertainty or indefiniteness. Re Blaiberg [1940] Ch. 385, [1940] 1 All. Eng. 632, 50 A. L. R. 2d 746; Clayton v. Ramsden [1943], A. C. 320 [1943], 1 All. Eng. 16-H. L., 50 A. L. R. 2d 746; Re Donn [1944], Ch. 8 [1943], 2 All. Eng. 564, 50 A L. R. 2d 746; Re Moss’ Trusts [1945], 1 All. Eng. 207, 61 Times L. 147, 50 A. L. R. 2d 747. Since the foregoing decisions, a later English case has upheld a condi­tion precedent that a granddaughter-beneficiary marry a person of Jewish faith and the child of Jewish parents. The court distinguished the cases cited above as not applicable to a condition precedent under which the legatee must qualify for the gift by marrying as specified, and there was found to be no difficulty with indefiniteness where the legatee married unquestionably outside the Jewish faith. Re Wolffe [1953], 1 Week L. R. 1211 [1953] 2 All. Eng. 697, 50 A. L. R. 2d 747.

The American case cited by plaintiff is that of Maddox v. Maddox (1854), 52 Va. (11 Grattan’s) 804. The testator in this case willed a remainder to his niece if she remain a member of the Society of Friends. When the niece ar­rived at a marriageable age there were but five or six un­married men of the society in the neighborhood in which she lived. She married a non-member and thus lost her own membership. The court held the condition to be an un­reasonable restraint upon marriage and void, and that there being no gift over upon breach of the condition, the condi­tion was in terrorem, and did not avoid the bequest. It can be seen that while the court considered the testamentary condition to be a restraint upon marriage, it was primarily one in restraint of religious faith. The court said that with the small number of eligible bachelors in the area the condition would have operated as a virtual prohibition of the niece’s marrying, and that she could not be expected to “go abroad” in search of a helpmate or to be sub­jected to the-chance of being sought after by a stranger. The court distinguished the facts of its case from those in England upholding conditions upon marriage by observ­ing that England was “already overstocked with inhabit­ants” while this country had “an unbounded extent of terri­tory, a large portion of which is yet unsettled, and in which increase of population is one of the main elements of na­tional prosperity.” The other ground upon which the Vir­ginia court rested its decision, that the condition was in terrorem because of the absence of a gift over, is clearly not applicable to the case at bar, even if it were in accord with Ohio law, because of the gift over to the State of Israel contained in the Shapira will.

In arguing for the applicability of the Maddox v. Mad­dox test of reasonableness to the case at bar, counsel for the plaintiff asserts that the number of eligible Jewish fe­males in this county would be an extremely small minority of the total population especially as compared with the com­paratively much greater number in New York, whence have come many of the cases comprising the weight of authority upholding the validity of such clauses. There are no census figures in evidence. While this court could probably take judicial notice of the fact that the Jewish community is a minor, though important segment of our total local popula­tion, nevertheless the court is by no means justified in judi­cial knowledge that there is an insufficient number of eligible young ladies of Jewish parentage in this area from which Daniel would have a reasonable latitude of choice. And of course, Daniel is not at all confined in his choice to resi­dents of this county, which is a very different circumstance in this day of travel by plane and freeway and communica­tion by telephone, from the horse and buggy days of the 1854 Maddox v. Maddox decision. Consequently, the deci­sion does not appear to be an appropriate yardstick of reasonableness under modern living conditions.

Plaintiff’s counsel contends that the Shapira will falls within the principle of Fineman v. Central National Bank (1961), 87 Ohio Law Abs. 236, 175 N. E. 2d 837, 18 O. O. 2d 33, holding that the public policy of Ohio does not counten­ance a bequest or devise conditioned on the beneficiary’s ob­taining a separation or divorce from his wife. Counsel argues that the Shapira condition would encourage the beneficiary to marry a qualified girl just to receive the be­quest, and then to divorce her afterward. This possibility seems too remote to be a pertinent application of the policy against bequests conditioned upon divorce. Most other authorities agree with Fineman v. Bank that as a general proposition, a testamentary gift effective only on condition that the recipient divorce or separate from his or her spouse is against public policy and invalid. 14 A. L. R. 3d 1222. But no authorities have been found extending the principle to support plaintiff’s position. Indeed, in measuring the reasonableness of the condition in question, both the father and the court should be able to assume that the son’s motive would be proper. And surely the son should not gain the advantage of the avoidance of the condition by the possi­bility of his own impropriety.

Finally, counsel urges that the Shapira condition tends to pressure Daniel, by the reward of money, to marry with­in seven years without opportunity for mature reflection, and jeopardizes his college education. It seems to the court, on the contrary, that the seven year time limit would be a most reasonable grace period, and one which would give the son ample opportunity for exhaustive reflection and fulfillment of the condition without constraint or oppres­sion. Daniel is no more being “blackmailed into a mar­riage by immediate financial gain,” as suggested by coun­sel, than would be the beneficiary of a living gift or con­veyance upon consideration of a future marriage — an ar­rangement which has long been sanctioned by the courts of this state. Thompson v. Thompson (1867), 17 Ohio St. 649.

In the opinion of this court, the provision made by the testator for the benefit of the State of Israel upon breach or failure of the condition is most significant for two rea­sons. First, it distinguishes this case from the bare for­feitures in Moses v. Zook, and in Maddox v. Maddox (in­cluding the technical in terrorem objection), and, in a way, from the vagueness and indefiniteness doctrine of some of the English cases. Second, and of greater importance, it demonstrates the depth of the testator’s conviction. His purpose was not merely a negative one designed to punish his son for not carrying out his wishes. His unmistakable testamentary plan was that his possessions be used to en­courage the preservation of the Jewish faith and blood, hopefully through his sons, but, if not, then through the State of Israel. Whether this judgment was wise is not for this court to determine. But it is the duty of this court to honor the testator’s intention within the limitations of law and of public policy. The prerogative granted to a testa­tor by the laws of this state to dispose of his estate accord­ing to his conscience is entitled to as much judicial pro­tection and enforcement as the prerogative of a beneficiary to receive an inheritance.

It is the conclusion of this court that public policy should not, and does not preclude the fulfillment of Dr. Shapira’s purpose, and that in accordance with the weight of authority in this country, the conditions contained in his will are reasonable restrictions upon marriage, and valid.

[887] Hubert H. Humphrey, III, Atty. Gen., St. Paul, Waldemar B. Senyk, Otter Tail County Atty., David J. Hauser, Asst. County Atty., Fergus Falls, for respondent.

John M. Stuart, State Public Defender, Susan K. Maki, Asst. Public Defender, Minneapolis, for appellant.

Considered and decided by NORTON, P.J., and FORSBERG and SCHUMACHER, JJ.

OPINION

SCHUMACHER, Judge.

Appellant Suzanne Margie Bachmann claims that the district court erred by denying her motion for postconviction relief on the basis that she was not eligible for work release privileges. We affirm.

FACTS

In November 1993, Bachmann pleaded guilty to one count of burglary in the second degree and one count of check forgery. As part of her sentence, she was ordered to spend 90 days in the county jail.

Following her sentencing, Bachmann requested that she be granted work-release privileges while serving her 90-day jail term. Bachmann is not presently employed outside the home. Instead, she wished to be released from jail on weekdays in order to care for her four children and perform other homemaking services for her husband and children, for which her husband agreed to pay her $1.50 per hour. The district court concluded that Bachmann was not eligible for work-release and denied her motion.

ISSUES

Is a homemaker eligible for work-release?

ANALYSIS

A district court's denial of work-release privileges typically will be reversed only in the rare instance where the court has abused its discretion. State v. Larson, 393 N.W.2d 238, 243 (Minn.App.1986). In this case, however, the issue is not whether the particular facts of Bachmann's case justify work-release. Rather, it is whether Bachmann's status as a homemaker by itself renders her eligible for work-release privileges. As this is a question of statutory interpretation, our review is de novo. State v. Wetsch, 511 N.W.2d 490, 491 (Minn.App.1994), pet. for rev. denied (Minn. Apr. 19, 1994).

Minn.Stat. § 631.425, subd. 3 (1992) provides:

If the person committed under [the work-release statute] has been regularly employed, the sheriff shall arrange for a continuation of the employment insofar as possible without interruption. If the person is not employed, the court may designate a suitable person or agency to make reasonable efforts to secure some suitable employment for that person. An inmate employed under this section must be paid a fair and reasonable wage for work performed and must work at fair and reasonable hours per day and per week.

Bachmann argues that homemaking is employment within the meaning of this statutory language. We disagree.

Bachmann's homemaking services clearly have economic value. See Rindahl v. National Farmers Union Ins., 373 N.W.2d 294, 297 (Minn.1985) (under Minnesota No-Fault Act, injury to person who performs most of household duties "most definitely results in an economic loss to the family unit"). Nevertheless, homemaking is generally not considered employment. For example, in the context of workers' compensation:

The upkeep and care of a home for one's self and family are not in the category of a trade, business, profession or occupation, as generally understood. A home is not established and maintained in the expectation of pecuniary gain. Such a venture is solely an expense.

* * * * * *

[888] * * * Persons engage in a trade, business, profession or occupation for profit, or as a means to gain a livelihood, but not so in establishing and maintaining a home.

* * * * * *

* * * But we think a housewife is not an occupation within the meaning of the compensation act, since that work pertains exclusively to the management of the home. Furthermore, in the maintenance of the home the husband and wife are one. The one acts for the other. No matter who is the legal owner of the home, the running thereof is not an industry nor a business, trade, profession or occupation within the purview of the Workmen's Compensation Act.

Eichholz v. Shaft, 166 Minn. 339, 343-44, 208 N.W. 18, 19-20 (1926).

Similarly, in holding that a domestic servant could not picket the home in which he had been employed, the supreme court reasoned:

The validity of defendant's argument depends upon whether a home, exclusively used as such, may be said to be a place for the carrying on of an industrial or a business enterprise. Obviously the home cannot be so classified.

"The home is an institution, not an industry."

* * * Barres v. Watterson Hotel Co., 196 Ky. 100, 102, 103, 244 S.W. 308, 309, 310.

* * * * * *

* * * And the same result was reached in Anderson v. Ueland, 197 Minn. 518, 521, 267 N.W. 517, 518, 927, where we said:

* * * * * *

* * * "the home is a sacred place for people to go and be quiet and at rest and not be bothered with the turmoil of industry," and that as such it is "a sanctuary of the individual and should not be interfered with by industrial disputes." We think [this] conception of "home" as "a sanctuary of the individual" is sound. The word is defined as, "the abiding place of the affections, esp. domestic affections"; as "the social unit formed by a family residing together in one dwelling," and as "an organized center of family life."

State v. Cooper, 205 Minn. 333, 335-36, 285 N.W. 903, 904-05 (1939) (citations omitted).

The fact that Bachmann's husband has offered to pay an hourly wage to her does not change our conclusion. First, Bachmann has an obligation to care for her children regardless of whether she is paid to do so. See, e.g., Minn.Stat. § 609.378, subd. 1 (1994) (failure to provide child with necessities is crime). Second, income received by Bachmann is marital property. Swick v. Swick, 467 N.W.2d 328, 330 (Minn.App.1991), pet. for rev. denied (Minn. May 16, 1991). Thus, Bachmann's husband has a common ownership interest in her income. Minn.Stat. § 518.54, subd. 5 (1992). The Bachmanns have not shown that their proposed wage agreement results in either gain or loss to either person; unlike the typical employment relationship, the economic exchange between the Bachmanns would be purely illusory.

Finally, we note by way of analogy that the legislature has provided that a homemaker whose driver's license has been suspended or revoked may be eligible for a limited license under certain conditions. Minn.Stat. § 171.30, subd. 1(2) (1992). In doing so, it explicitly included homemakers in the list of persons eligible for a limited license, a step it has not taken in regard to the work-release statute. Moreover, the fact that within this statutory scheme homemakers are a class distinct from drivers who need a license for their livelihood further suggests that the legislature generally considers homemaking to be distinct from employment. See Minn.Stat. § 171.30, subd. 1(1) (1992) (driver may be eligible for limited license if necessary for livelihood). We therefore conclude that homemaking is not employment as contemplated by Minn.Stat. § 631.425 (1992).

DECISION

The district court properly concluded that Bachmann was not eligible for work-release [889] to perform homemaking responsibilities for her family.

Affirmed.

Paul Poe et al., Appellants, v. Abraham Ullman, State's Attorney. Jane Doe, Appellant, v. Abraham Ullman, State's Attorney. C. Lee Buxton, Appellant, v. Abraham ULLMAN, State's Attorney.

Argued March 1, 2, 1961.

Decided June 19, 1961.

Rehearing Denied Oct. 9, 1961.

See 82 S.Ct. 21, 22.

Mr. Fowler V. Harper, New Haven, Conn., for appellants in both cases.

Mrs. Harriet Pilpel, New York City, for Planned Parenthood Federation of America, Inc., as amicus curiae, in both cases.

Mr. Raymond J. Cannon, Hartford, Conn., for appellee in both cases.

*498Mr. Justice FRANKFURTER announced the judgment of the Court and an opinion in which THE CHIEF JUSTICE, Mr. Justice CLARK and Mr. Justice WHITTAKER join.

These appeals challenge the constitutionality, under the Fourteenth Amendment, of Connecticut statutes which, as authoritatively construed by the Connecticut Supreme Court of Errors, prohibit the use of contraceptive devices and the giving of medical advice in the use of such devices. In proceedings seeking declarations of law, not on review of convictions for violation of the statutes, that court has ruled that these statutes would be applicable in the case of married couples and even under claim that conception would constitute a serious threat to the health or life of the female spouse.

No. 60 combines two actions brought in a Connecticut Superior Court for declaratory relief. The complaint in the first alleges that the plaintiffs, Paul and Pauline Poe,1 are a husband and wife, thirty and twenty-six years old respectively, who live together and have no children. Mrs. Poe has had three consecutive pregnancies terminating in infants with multiple congenital abnormalities from which each died shortly after birth. Plaintiffs have consulted Dr. Buxton, an obstetrician and gynecologist of eminence, and it is Dr. Buxton's opinion that the cause of the infants' abnormalities is genetic, although the*499 underlying 'mechanism' is unclear. In view of the great emotional stress already suffered by plaintiffs, the probable consequence of another pregnancy is psychological strain extremely disturbing to the physical and mental health of both husband and wife. Plaintiffs know that it is Dr. Buxton's opinion that the best and safest medical treatment which could be prescribed for their situation is advice in methods of preventing conception. Dr. Buxton knows of drugs, medicinal articles and instruments which can be safely used to effect contraception. Medically, the use of these devices is indicated as the best and safest preventive measure necessary for the protection of plaintiffs' health. Plaintiffs, however, have been unable to obtain this information for the sole reason that its delivery and use may or will be claimed by the defendant State's Attorney (appellee in this Court) to constitute offenses against Connecticut law. The State's Attorney intends to prosecute offenses against the State's laws, and claims that the giving of contraceptive advice and the use of contraceptive devices would be offenses forbidden by Conn.Gen.Stat.Rev.1958, §§ 53—32 and 54—196.2*500 Alleging irreparable injury and a substantial uncertainty of legal relations (a local procedural requisite for a declaration), plaintiffs ask a declaratory judgment that §§ 53—32 and 54—196 are unconstitutional, in that they deprive the plaintiffs of life and liberty without due process of law.

The second action in No. 60 is brought by Jane Doe, a twenty-five-year-old housewife. Mrs. Doe, it is alleged, lives with her husband, they have no children; Mrs. Doe recently underwent a pregnancy which induced in her a critical physical illness—two weeks' unconsciousness and a total of nine weeks' acute sickness which left her with partial paralysis, marked impairment of speech, and emotional instability. Another pregnancy would be exceedingly perilous to her life. She, too, has consulted Dr. Buxton, who believes that the best and safest treatment for her is contraceptive advice. The remaining allegations of Mrs. Doe's complaint, and the relief sought, are similar to those in the case of Mr. and Mrs. Poe.

In No. 61, also a declaratory judgment action, Dr. Buxton is the plaintiff. Setting forth facts identical to those alleged by Jane Doe, he asks that the Connecticut statutes prohibiting his giving of contraceptive advice to Mrs. Doe be adjudged unconstitutional, as depriving him of liberty and property without due process.

In all three actions, demurrers were advanced, inter alia, on the ground that the statutes attacked had been previously construed and sustained by the Supreme Court of Errors of Connecticut, and thus there did not exist the uncertainty of legal relations requisite to maintain suits for declaratory judgment. While the Connecticut Supreme Court of Errors in sustaining the demurrers referred to this local procedural ground, relying on State v. Nelson, 126 Conn. 412, 11 A.2d 856, and Tileston v. Ullman, 129 Conn. 84, 26 A.2d 582, appeal dismissed 318 U.S. 44, 63 S.Ct. 493, 87 L.Ed. 603, we cannot say that its decision rested on it. 147 Conn.

*50148, 156 A.2d 508. We noted probable jurisdiction. 362 U.S. 987, 80 S.Ct. 1077, 4 L.Ed.2d 1020.

Appellants' complaints in these declaratory judgment proceedings do not clearly, and certainly do not in terms, allege that appellee Ullman threatens to prosecute them for use of, or for giving advice concerning, contraceptive devices. The allegations are merely that, in the course of his public duty, he intends to prosecute any offenses against Connecticut law, and that he claims that use of and advice concerning contraceptives would constitute offenses. The lack of immediacy of the threat described by these allegations might alone raise serious questions of non-justiciability of appellants' claims. See United Public Workers of America (C.I.O.) v. Mitchell, 330 U.S. 75, 88, 67 S.Ct. 556, 564, 91 L.Ed. 754. But even were we to read the allegations to convey a clear threat of imminent prosecutions, we are not bound to accept as true all that is alleged on the face of the complaint and admitted, technically, by demurrer, any more than the Court is bound by stipulation of the parties. Swift & Co. v. Hocking Valley R. Co., 243 U.S. 281, 289, 37 S.Ct. 287, 289, 61 L.Ed. 722. Formal agreement between parties that collides with plausibility is too fragile a foundation for indulging in constitutional adjudication.

The Connecticut law prohibiting the use of contraceptives has been on the State's books since 1879. Conn.Acts 1879, c. 78. During the more than three-quarters of a century since its enactment, a prosecution for its violation seems never to have been initiated, save in State v. Nelson, 126 Conn. 412, 11 A.2d 856. The circumstances of that case, decided in 1940, only prove the abstract character of what is before us. There, a test case was brought to determine the constitutionality of the Act as applied against two doctors and a nurse who had allegedly disseminated contraceptive information. After the Supreme Court of Errors sustained the legislation on appeal from a demurrer to the information, the State*502 moved to dismiss the information. Neither counsel nor our own researches have discovered any other attempt to enforce the prohibition of distribution or use of contraceptive devices by criminal process.3 The unreality of these law suits is illumined by another circumstance. We were advised by counsel for appellants that contraceptives are commonly and notoriously sold in Connecticut drug stores.4 Yet no prosecutions are recorded; and certainly such ubiquitous, open, public sales would mere quickly invite the attention of enforcement officials than the conduct in which the present appellants wish to engage—the giving of private medical advice by a doctor to his individual patients, and their private use of the devices prescribed. The undeviating policy of nullification by Connecticut of its anti-contraceptive laws throughout all the long years that they have been on the statute books bespeaks more than prosecutorial paralysis. What was said in another context is relevant here. 'Deeply embedded traditional ways of carrying out state policy * * *'—or not carrying it out 'are often tougher and truer law than the dead words of the written text.' Nashville, C. & St. L.R. Co. v. Browning, 310 U.S. 362, 369, 60 S.Ct. 968, 972, 84 L.Ed. 1254.

The restriction of our jurisdiction to cases and controversies within the meaning of Article III of the Constitution, see Muskrat v. United States, 219 U.S. 346, 31 S.Ct. 250, 55 L.Ed. 246, is not the sole limitation on the exercise of our appellate powers, especially in cases raising constitutional ques*503tions. The policy reflected in numerous cases and over a long period was thus summarized in the oft-quoted statement of Mr. Justice Brandeis: 'The Court (has) developed, for its own governance in the cases confessedly within its jurisdiction, a series of rules under which it has avoided passing upon a large part of all the constitutional questions pressed upon it for decision.' Ashwander v. Tennessee alley Authority, 297 U.S. 288, 341, 346, 56 S.Ct. 466, 482, 80 L.Ed. 688 (concurring opinion). In part the rules summarized in the Ashwander opinion have derived from the historically defined, limited nature and function of courts and from the recognition that, within the framework of our adversary system, the adjudicatory process is most securely founded when it is exercised under the impact of a lively conflict between antagonistic demands, actively pressed, which make resolution of the controverted issue a practical necessity. See Little v. Bowers, 134 U.S. 547, 558, 10 S.Ct. 620, 623, 33 L.Ed. 1016; People of State of California v. San Pablo & Tulare R. Co., 149 U.S. 308, 314, 13 S.Ct. 876, 878, 37 L.Ed. 747; United States v. Fruehauf, 365 U.S. 146, 157, 81 S.Ct. 547, 554, 5 L.Ed.2d 476. In part they derive from the fundamental federal and tripartite character of our National Government and from the role—restricted by its very responsibility—of the federal courts, and particularly this Court, within that structure. See the Note to Hayburn's Case, 2 Dall. 409, 1 L.Ed. 436; Commonwealth of Massachusetts v. Mellon, 262 U.S. 447, 488—489, 43 S.Ct. 597, 601, 67 L.Ed. 1078; Watson v. Buck, 313 U.S. 387, 400—403, 61 S.Ct. 962, 966—968, 85 L.Ed. 1416; Alabama State Federation of Labor, etc. v. McAdory, 325 U.S. 450, 471, 65 S.Ct. 1384, 1394, 89 L.Ed. 1725.

These considerations press with special urgency in cases challenging legislative action or state judicial action as repugnant to the Constitution. 'The best teaching of this Court's experience admonishes us not to entertain constitutional questions in advance of the strictest necessity.' Parker v. County of Los Angeles, 338 U.S. 327, 333, 70 S.Ct. 161, 163, 94 L.Ed. 144. See also Liverpool, N.Y. & P.S.S. Co. v. Commissioners, 113 U.S. 33, 39, 5 S.Ct. 352, 355, 28 L.Ed. 899. The various doctrines of 'stand*504ing,'5 'ripeness,' 6 and 'mootness,'7 which this Court has evolved with particular, though not exclusive, reference to such cases are but several manifestations—each having its own 'varied application'8—of the primary conception that federal judicial power is to be exercised to strike down legislation, whether state or federal, only at the instance of one who is himself immediately harmed, or immediately threatened with harm, by the challenged action. Stearns v. Wood, 236 U.S. 75, 35 S.Ct. 229, 59 L.Ed. 475; State of Texas v. Interstate Commerce Comm., 258 U.S. 158, 42 S.Ct. 261, 66 L.Ed. 531; United Public Workers of America (C.I.O.) v. Mitchell, 330 U.S. 75, 89—90, 67 S.Ct. 556, 564—565, 91 L.Ed. 754. 'This court can have no right to pronounce an abstract opinion upon the constitutionality of a State law. Such law must be brought into actual or threatened operation upon rights properly falling under judicial cognizance, or a remedy is not to be had here.' State of Georgia v. Stanton, 6 Wall. 50, 75, 18 L.Ed. 721, approvingly quoting Mr. Justice Thompson, dissenting, in Cherokee Nation v. State of Georgia, 5 Pet. 1, 75, 8 L.Ed. 25; also quoted in State of New Jersey v. Sargent, 269 U.S. 328, 331, 46 S.Ct. 122, 70 L.Ed. 289. 'The party who invokes the power (to annul legislation on grounds*505 of its unconstitutionality) must be able to show not only that the statute is invalid, but that he has sustained or is immediately in danger of sustaining some direct injury as the result of its enforcement * * *.' Commonwealth of Massachusetts v. Mellon, 262 U.S. 447, 488, 43 S.Ct. 597, 601, 67 L.Ed. 1078.9

This principle was given early application and has been recurringly enforced in the Court's refusal to entertain cases which disclosed a want of a truly adversary contest, of a collision of actively asserted and differing claims. See, e.g., Cleveland v. Chamberlain, 1 Black 419, 17 L.Ed. 93; Wood-Paper Co. v. Heft, 8 Wall. 333, 19 L.Ed. 379. Such cases may not be 'collusive' in the derogatory sense of Lord v. Veazie, 8 How. 251, 12 L.Ed. 1067—in the sense of merely colorable disputes got up to secure an advantageous ruling from the Court. See South Spring Hill Gold Mining Co. v. Amador Medean Gold Mining Co., 145 U.S. 300, 301, 12 S.Ct. 921, 36 L.Ed. 712. The Court has found unfit for adjudication any cause that 'is not in any real sense adversary,' that 'does not assume the 'honest and actual antagonistic assertion of rights' to be adjudicated—a safeguard essential to the integrity of the judicial process, and one which we have held to be indispensable to adjudication of constitutional questions by this Court.' United States v. Johnson, 319 U.S. 302, 305, 63 S.Ct. 1075, 1076, 87 L.Ed. 1413. The requirement for adversity was classically expounded in Chicago & Grand Trunk R. Co. v. Wellman, 143 U.S. 339, 344—345, 12 S.Ct. 400, 402, 36 L.Ed. 176:

'* * * The theory upon which, apparently, this suit was brought is that parties have an appeal from the*506 legislature to the courts; and that the latter are given an immediate and general supervision of the constitutionality of the acts of the former. Such is not true. Whenever, in pursuance of an honest and actual antagonistic assertion of rights by one individual against another, there is presented a question involving the validity of any act of any legislature, State or Federal, and the decision necessarily rests on the competency of the legislature to so enact, the court must, in the exercise of its solemn duties, determine whether the act be constitutional or not; but such an exercise of power is the ultimate and supreme function of courts. It is legitimate only in the last resort, and as a necessity in the determination of real, earnest and vital controversy between individuals. It never was the thought that, by means of a friendly suit, a party beaten in the legislature could transfer to the courts an inquiry as to the constitutionality of the legislative act.'

What was said in the Wellman case found ready application in proceedings brought under modern declaratory judgment procedures. For just as the declaratory judgment device does not 'purport to alter the character of the controversies which are the subject of the judicial power under the Constitution,' United States v. State of West Virginia, 295 U.S. 463, 475, 55 S.Ct. 789, 793, 79 L.Ed. 1546, it does not permit litigants to invoke the power of this Court to obtain constitutional rulings in advance of necessity. Electric Bond & Share Co. v. Securities and Exchange Comm., 303 U.S. 419, 443, 58 S.Ct. 678, 687, 82 L.Ed. 936. The Court has been on the alert against use of the declaratory judgment device for avoiding the rigorous insistence on exigent adversity as a condition for evoking Court adjudication. This is as true of state court suits for declaratory judgments as of federal. By exercising their jurisdiction, state courts cannot determine the jurisdiction to be exercised by this Court. Tyler*507 v. Judges of the Court of Registration, 179 U.S. 405, 21 S.Ct. 206, 45 L.Ed. 252; Doremus v. Board of Education, 342 U.S. 429, 72 S.Ct. 394, 96 L.Ed. 475. Although we have held that a state declaratory-judgment suit may constitute a case or controversy within our appellate jurisdiction, it is to be reviewed here only 'so long as the case retains the essentials of an adversary proceeding, involving a real, not a hypothetical, controversy, which is finally determined by the judgment below.' Nashville, C. & St. L.R. Co. v. Wallace, 288 U.S. 249, 264, 53 S.Ct. 345, 348, 77 L.Ed. 730. It was with respect to a state-originating declaratory judgment proceeding that we said, in Alabama State Federation of Labor, etc. v. McAdory, 325 U.S. 450, 471, 65 S.Ct. 1384, 1394, 89 L.Ed. 1725, that 'The extent to which the declaratory judgment procedure may be used in the federal courts to control state action lies in the sound discretion of the Court. * * *' Indeed, we have recognized, in such cases, that '* * * the discretionary element characteristic of declaratory jurisdiction, and imported perhaps from equity jurisdiction and practice without the remedial phase, offers a convenient instrument for making * * * effective * * *.' the policy against premature constitutional decision. Rescue Army v. Municipal Court, 331 U.S. 549, 573, note 41, 67 S.Ct. 1409, 1422, 91 L.Ed. 1666.

Insofar as appellants seek to justify the exercise of our declaratory power by the threat of prosecution, facts which they can no more negative by complaint and demurrer than they could by stipulation preclude our determining their appeals on the merits. Cf. Bartemeyer v. State of Iowa, 18 Wall. 129, 134—135, 21 L.Ed. 929. It is clear that the mere existence of a state penal statute would constitute insufficient grounds to support a federal court's adjudication of its constitutionality in proceedings brought against the State's prosecuting officials if real threat of enforcement is wanting. See Ex parte La Prade, 289 U.S. 444, 458, 53 S.Ct. 682, 77 L.Ed. 1311. If the prosecutor expressly agrees not to prosecute, a suit against him for declaratory and injunctive relief is not such an adversary case as will be reviewed here. C.I.O.

*508v. McAdory, 325 U.S. 472, 475, 65 S.Ct. 1395, 1397, 89 L.Ed. 1741. Eighty years of Connecticut history demonstrate a similar, albeit tacit agreement. The fact that Connecticut has not chosen to press the enforcement of this statute deprives these controversies of the immediacy which is an indispensable condition of constitutional adjudication. This Court cannot be umpire to debates concerning harmless, empty shadows. To find it necessary to pass on these statutes now, in order to protect appellants from the hazards of prosecution, would be to close our eyes to reality.

Nor does the allegation by the Poes and Doe that they are unable to obtain information concerning contraceptive devices from Dr. Buxto, 'for the sole reason that the delivery and use of such information and advice may or will be claimed by the defendant State's Attorney to constitute offenses,' disclose a necessity for present constitutional decision. It is true that this Court has several times passed upon criminal statutes challenged by persons who claimed that the effects of the statutes were to deter others from maintaining profitable or advantageous relations with the complainants. See, e.g., Truax v. Raich, 239 U.S. 33, 36 S.Ct. 7, 60 L.Ed. 131; Pierce v. Society of Sisters, 268 U.S. 510, 45 S.Ct. 571, 69 L.Ed. 1070. But in these cases the deterrent effect complained of was one which was grounded in a realistic fear of prosecution. We cannot agree that if Dr. Buxton's compliance with these statutes is uncoerced by the risk of their enforcement, his patients are entitled to a declaratory judgment concerning the statutes' validity. And, with due regard to Dr. Buxton's standing as a physician and to his personal sensitiveness, we cannot accept, as the basis of constitutional adjudication, other than as chimerical the fear of enforcement of provisions that have during so many years gone uniformly and without exception unenforced.

Justiciability is of course not a legal concept with a fixed content or susceptible of scientific verification. Its utilization is the resultant of many subtle pressures,*509 including the appropriateness of the issues for decision by this Court and the actual hardship to the litigants of denying them the relief sought. Both these factors justify withholding adjudication of the constitutional issue raised under the circumstances and in the manner in which they are now before the Court.

Dismissed.

Mr. Justice BLACK dissents because he believes that the constitutional questions should be reached and decided.

1

Plaintiffs in the two cases composing No. 60 sue under fictitious names. The Supreme Court of Errors of Connecticut approved this procedure in the special circumstances of the cases.

2

As a matter of specific legislation, Connecticut outlaws only the use of contraceptive materials. Conn.Gen.Stat.Rev.1958, § 53—32 provides:

'Use of drugs or instruments to prevent conception. Any person who uses any drug, medicinal article or instrument for the purpose of preventing conception shall be fined not less than fifty dollars or imprisoned not less than sixty days nor more than one year or be both fined and imprisoned.'

There are no substantive provisions dealing with the sale or distribution of such devices, nor with the giving of information concerning their use. These activities are deemed to be involved in law solely because of the general criminal accessory enactment of Connecticut. This is Conn.Gen.Stat.Rev.1958, § 54—196:

'Accessories. Any person who assists, abets, counsels, causes, hires or commands another to commit any offense may be prosecuted and punished as if he were the principal offender.'

3

The assumption of prosecution of spouses for use of contraceptives is not only inherently bizarre, as was admitted by counsel, but is underscored in its implausibility by the disability of spouses, under Connecticut law, from being compelled to testify against one another.

4

It is also worthy of note that the Supreme Court of Errors has held that contraceptive devices could not be seized and destroyed as nuisances under the State's seizure statutes. See State v. Certain Contraceptive Materials, 126 Conn. 428, 11 A.2d 803, decided on the same day as the Nelson case.

5

See, e.g., Braxton County Court v. State of West Virginia, 208 U.S. 192, 28 S.Ct. 275, 52 L.Ed. 450; Yazoo & Mississippi Valley R. Co. v. Jackson Vinegar Co., 226 U.S. 217, 33 S.Ct. 40, 57 L.Ed. 193; Fairchild v. Hughes, 258 U.S. 126, 42 S.Ct. 274, 66 L.Ed. 499; Tileston v. Ullman, 318 U.S. 44, 63 S.Ct. 493, 87 L.Ed. 603; United States v. Raines, 362 U.S. 17, 80 S.Ct. 519, 4 L.Ed.2d 524. Cf. Owings v. Norwood's Lessee, 5 Cranch 344, 3 L.Ed. 120.

6

See, e.g. State of New Jersey v. Sargent, 269 U.S. 328, 46 S.Ct. 122, 70 L.Ed. 289; State of Arizona v. State of California, 283 U.S. 423, 51 S.Ct. 522, 75 L.Ed. 1154; International Longshoremen's and Warehousemen's Union, Local 37 v. Boyd, 347 U.S. 222, 74 S.Ct. 447, 98 L.Ed. 650. Cf. Coffman v. Breeze Corporations, 323 U.S. 316, 65 S.Ct. 298, 89 L.Ed. 264.

7

See, e.g., San Mateo County v. Southern Pacific R. Co., 116 U.S. 138, 6 S.Ct. 317, 29 L.Ed. 589; Singer Mfg. Co. v. Wright, 141 U.S. 696, 12 S.Ct. 103, 35 L.Ed. 906; Mills v. Green, 159 U.S. 651, 16 S.Ct. 132, 40 L.Ed. 293; Kimball v. Kimball, 174 U.S. 158, 19 S.Ct. 639, 43 L.Ed. 932; State of Tennessee v. Condon, 189 U.S. 64, 23 S.Ct. 579, 47 L.Ed. 709; American Book Co. v. State of Kansas, 193 U.S. 49, 24 S.Ct. 394, 48 L.Ed. 613; Jones v. Montague, 194 U.S. 147, 24 S.Ct. 611, 48 L.Ed. 913; Security Mutual Life Ins. Co. v. Prewitt, 200 U.S. 446, 26 S.Ct. 314, 50 L.Ed. 545; Richardson v. McChesney, 218 U.S. 487, 31 S.Ct. 43, 54 L.Ed. 1121; Berry v. Davis, 242 U.S. 468, 37 S.Ct. 208, 61 L.Ed. 441; Atherton Mills v. Johnston, 259 U.S. 13, 42 S.Ct. 422, 66 L.Ed. 814.

8

Mr. Justice Brandeis, concurring, in Ashwander v. Tennessee Valley Authority, 297 U.S. 288, 341, 347, 56 S.Ct. 466, 480, 483, 80 L.Ed. 688.

9

The Mellon cases involved what is technically designated as the problem of 'standing,' but the concern which they exemplify that constitutional issues be determined only at the suit of a person immediately injured has equal application here. It makes little sense to insist that only the parties themselves whom legislation immediately threatens may sue to strike it down and, at the same time, permit such suit when there is not even a remote likelihood that the threat to them will in fact materialize.

Mr. Justice BRENNAN, concurring in the judgment.

I agree that this appeal must be dismissed for failure to present a real and substantial controversy which unequivocally calls for adjudication of the rights claimed in advance of any attempt by the State to curtail them by criminal prosecution. I am not convinced, on this skimpy record, that these appellants as individuals are truly caught in an inescapable dilemma. The true controversy in this case is over the opening of birth-control clinics on a large scale; it is that which the State has prevented in the past, not the use of contraceptives by isolated and individual married couples. It will be time enough to decide the constitutional questions urged upon us when, if ever, that real controversy flares up again. Until it does, or until the State makes a definite and concrete threat to enforce these laws against individual married couples—a threat which it has never made in the past except under the provocation of litigation—this Court may not be compelled to exercise its most delicate power of constitutional adjudication.

Mr. Justice DOUGLAS, dissenting.

I.

These cases are dismissed because a majority of the members of this Court conclude, for varying reasons, that*510 this controversy does not present a justiciable question. That conclusion is too transparent to require an extended reply. The device of the declaratory judgment is an honored one. Its use in the federal system is restricted to 'cases' or 'controversies' within the meaning of Article III. The question must be 'appropriate for judicial determination,' not hypothetical, abstract, academic or moot. Aetna Life Ins. Co. of Hartford, Conn. v. Haworth, 300 U.S. 227, 240, 57 S.Ct. 461, 464, 81 L.Ed. 617. It must touch 'the legal relations of parties having adverse legal interests.' Id., 300 U.S. at pages 240—241, 57 S.Ct. at page 464. It must be 'real and substantial' and admit of 'specific relief through a decree of a conclusive character.' Id., 300 U.S. at page 241, 57 S.Ct. at page 464. The fact that damages are not awarded or an injunction does not issue, the fact that there are no allegations of irreparable injury are irrelevant. Id., 300 U.S. at page 241, 57 S.Ct. at page 464. This is hornbook law. The need for this remedy in the federal field was summarized in a Senate Report as follows:

'* * * it is often necessary, in the absence of the declaratory judgment procedure, to violate or purport to violate a statute in order to obtain a judicial determination of its meaning or validity.' S.Rep. No. 1005, 73d Cong., 2d Sess., pp. 2—3.

If there is a case where the need for this remedy in the shadow of a criminal prosecution is shown, it is this one, as Mr. Justice HARLAN demonstrates. Plaintiffs in No. 60 are two sets of husband and wife. One wife is pathetically ill, having delivered a stillborn fetus. If she becomes pregnant again, her life will be gravely jeopardized. This couple have been unable to get medical advice concerning the 'best and safest' means to avoid pregnancy from their physician, plaintiff in No. 61, because if he gave it he would commit a crime. The use of contraceptive devices would also constitute a crime. And it is alleged—and admitted by the State—that the State's Attorney intends to enforce the law by prosecuting offenses under the laws.

*511A public clinic dispensing birth-control information has indeed been closed by the State. Doctors and a nurse working in that clinic were arrested by the police and charged with advising married women on the use of contraceptives. That litigation produced State v. Nelson, 126 Conn. 412, 11 A.2d 856, which upheld these statutes. That same police raid on the clinic resulted in the seizure of a quantity of the clinic's contraception literature and medical equipment and supplies. The legality of that seizure was in question in State v. Certain Contraceptive Materials, 126 Conn. 428, 11 A.2d 863.

The Court refers to the Nelson prosecution as a 'test case' and implies that it had little impact. Yet its impact was described differently by a contemporary observer who concluded his comment with this sentence: 'This serious setback to the birth control movement (the Nelson case) led to the closing of all the clinics in the state, just as they had been previously closed in the state of Massachusetts.'1 At oral argument, counsel for appellants confirmed that the clinics are still closed. In response to a question from the bench, he affirmed that 'no public or private clinic' has dared give birth-control advice since the decision in the Nelson case.2

These, then, are the circumstances in which the Court feels that it can, contrary to every principle of American or English common law,3 go outside the record to con*512clude that there exists a 'tacit agreement' that these statutes will not be enforced. No lawyer, I think, would advise his clients to rely on that 'tacit agreement.' No police official, I think, would feel himself bound by that 'tacit agreement.' After our national experience during the prohibition era, it would be absurd to pretend that all criminal statutes are adequately enforced. But that does not mean that bootlegging was the less a crime. Cf. Costello v. United States, 365 U.S. 265, 81 S.Ct. 534, 5 L.Ed.2d 551. In fact, an arbitrary administrative pattern of non-enforcement may increase the hardships of those subject to the law. See J. Goldstein, Police Discretion Not to Invoke the Criminal Process, 69 Yale L.J. 543.

When the Court goes outside the record to determine that Connecticut has adopted 'The undeviating policy of nullification * * * of its anti-contraceptive laws,' it selects a particularly poor case in which to exercise such a novel power. This is not a law which is a dead letter. Twice since 1940, Connecticut has reenacted these laws as part of general statutory revisions. Consistently, bills to remove the statutes from the books have been rejected by the legislature. In short, the statutes—far from being the accidental left-overs of another era—are the center of a continuing controversy in the State. See, e.g., The New Republic, May 19, 1947, p. 8.

Again, the Court relies on the inability of counsel to show any attempts, other than the Nelson case, 'to enforce the prohibition of distribution or use of contraceptive devices by criminal process.' Yet, on oral argument, counsel for the appellee stated on his own knowl*513edge that several proprietors had been prosecuted in the 'minor police courts of Connecticut' after they had been 'picked up' for selling contraceptives. The enforcement of criminal laws in minor courts has just as much impact as in those cases where appellate courts are resorted to. The need of the protection of constitutional guarantees, and the right to them, are not less because the matter is small or the court lowly. See Thompson v. City of Louisville, 362 U.S. 199, 80 S.Ct. 624, 4 L.Ed.2d 654; Tumey v. State of Ohio, 273 U.S. 510, 47 S.Ct. 437, 71 L.Ed. 749. Nor is the need lacking because the dispensing of birth-control information is by a single doctor rather than by birth-control clinics. The nature of the controversy would not be changed one iota had a dozen doctors, representing a dozen birth-control clinics, sued for remedial relief.

What are these people—doctor and patients—to do? Flout the law and go to prison? Violate the law surreptitiously and hope they will not get caught? By today's decision we leave them no other alternatives. It is not the choice they need have under the regime of the declaratory judgment and our constitutional system. It is not the choice worthy of a civilized society. A sick wife, a concerned husband, a conscientious doctor seek a dignified, discrete, orderly answer to the critical problem confronting them. We should not turn them away and make them flout the law and get arrested to have their constitutional rights determined. See Railway Mail Ass'n v. Corsi, 326 U.S. 88, 65 S.Ct. 1483, 89 L.Ed. 2072. They are entitled to an answer to their predicament here and now.

II.

The right of the doctor to advise his patients according to his best lights seems so obviously within First Amendment rights as to need no extended discussion. The leading cases on freedom of expression are generally framed*514 with reference to public debate and discourse. But as Chafee said, 'the First Amendment and other parts of the law erect a fence inside which men can talk. The law-makers, legislators and officials stay on the outside of that fence. But what the men inside the fence say when they are let alone is no concern of the law.' The Blessings of Liberty (1956), p. 108.

The teacher (Sweezy v. State of New Hampshire, 354 U.S. 234, 77 S.Ct. 1203, 1 L.Ed.2d 1311) as well as the public speaker (Thomas v. Collins, 323 U.S. 516, 65 S.Ct. 315, 89 L.Ed. 430) is included. The actor on stage or screen, the artist whose creation is in oil or clay or marble, the poet whose reading public may be practically nonexistent, the musician and his musical scores, the counselor whether priest, parent or teacher no matter how small his audience—these too are beneficiaries of freedom of expression. The remark by President James A. Garfield that his ideal of a college was al og in the woods with a student at one end and Mark Hopkins at another (9 Dict.Am Biog., p. 216) puts the present problem in proper First Amendment dimensions. Of course a physician can talk freely and fully with his patient without threat of retaliation by the State. The contrary thought—the one endorsed sub silentio by the courts below—has the cast of regimentation about it, a cast at war with the philosophy and presuppositions of this free society.

We should say with Kant that 'It is absurd to expect to be enlightened by Reason, and at the same time to prescribe to her what side of the question she must adopt.'4 Leveling the discourse of medical men to the morality of a particular community is a deadening influence. Mill spoke of the pressures of intolerant groups that produce 'either mere conformers to commonplace, or time-servers for truth.'5 We witness in this case a sealing of the lips of a doctor because he desires to observe*515 the law, obnoxious as the law may be. The State has no power to put any sanctions of any kind on him for any views or beliefs that he has or for any advice he renders. These are his professional domains into which the State may not intrude. The chronicles are filled with sad attempts of government to stomp out ideas, to ban thoughts because they are heretical or obnoxious. As Mill stated, 'Our merely social intolerance kills no one, roots out no opinions, but induces men to disguise them, or to abstain from any active effort for their diffusion.'6 When that happens society suffers. Freedom working underground, freedom bootlegged around the law is freedom crippled. A society that tells its doctors under pain of criminal penalty what they may not tell their patients is not a free society. Only free exchange of views and information is consistent with 'a civilization of the dialogue,' to borrow a phrase from Dr. Robert M. Hutchins. See Wieman v. Updegraff, 344 U.S. 183, 197, 73 S.Ct. 215, 222, 97 L.Ed. 216 (concurring opinion).

III.

I am also clear that this Connecticut law as applied to this married couple deprives them of 'liberty' without due process of law, as that concept is used in the Fourteenth Amendment.

The first eight Amendments to the Constitution have been made applicable to the States only in part. My view has been that when the Fourteenth Amendment was adopted, its Due Process Clause incorporated all of those Amendments. See Adamson v. People of State of California, 332 U.S. 46, 68, 67 S.Ct. 1672, 1684, 91 L.Ed. 1903 (dissenting opinion). Although the history of the Fourteenth Amendment may not be conclusive, the words 'due process' acquired specific meaning from Anglo-American experience.7 As Mr. Justice BRENNAN re*516cently stated, 'The Bill of Rights is the primary source of expressed information as to what is meant by constitutional liberty. The safeguards enshrined in it are deeply etched in the foundations of America's freedoms.' The Bill of Rights and the States (1961), 36 N.Y.U.L.Rev. 761, 776. When the Framers wrote the Bill of Rights they enshrined in the form of constitutional guarantees those rights—in part substantive, in part procedural which experience indicated were indispensable to a free society. Some would disagree as to their importance; the debate concerning them did indeed start before their adoption and has continued to this day. Yet the constitutional conception of 'due process' must, in my view, include them all until and unless there are amendments that remove them. That has indeed been the view of a full court of nine Justices, though the members who make up that court unfortunately did not sit at the same time.8

Though I believe that 'due process' as used in the Fourteenth Amendment includes all of the first eight Amendments, I do not think it is restricted and confined to them. We recently held that the undefined 'liberty' in the Due Process Clause of the Fifth Amendment includes freedom to travel. Kent v. Dulles, 357 U.S. 116, 125-127, 78 S.Ct. 1113, 1118—1119, 2 L.Ed.2d 1204. Cf. Edwards v. People of State of California, 314 U.S. 160,*517 177, 178, 62 S.Ct. 164, 169, 86 L.Ed. 119 (concurring opinion). The right 'to marry, establish a home and bring up children' was said in Meyer v. State of Nebraska, 262 U.S. 390, 399, 43 S.Ct. 625, 626, 67 L.Ed. 1042, to come within the 'liberty' of the person protected by the Due Process Clause of the Fourteenth Amendment. As I indicated in my dissent in Public Utilities Commission of District of Columbia v. Pollak, 343 U.S. 451, 467, 72 S.Ct. 813, 823, 96 L.Ed. 1068, 'liberty' within the purview of the Fifth Amendment includes the right of 'privacy,' a right I thought infringed in that case because a member of a 'captive audience' was forced to listen to a government-sponsored radio program. 'Liberty' is a conception that sometimes gains content from the emanations of other specific guarantees (N.A.A.C.P. v. State of Alabama, 357 U.S. 449, 460, 78 S.Ct. 1163, 1171, 2 L.Ed.2d 1488) or from experience with the requirements of a free society.

For years the Court struck down social legislation when a particular law did not fit the notions of a majority of Justices as to legislation appropriate for a free enterprise system. Mr. Justice Holmes, dissenting, rightly said that 'a constitution is not intended to embody a particular economic theory, whether of paternalism and the organic relation of the citizen to the State or of laissez faire. It is made for people of fundamentally differing views, and the accident of our finding certain opinions natural and familiar or novel and even shocking ought not to conclude our judgment upon the question whether statutes embodying them conflict with the Constitution of the United States.' Lochner v. State of New York, 198 U.S. 45, 75—76, 25 S.Ct. 539, 547, 49 L.Ed. 937.

The error of the old Court, as I see it, was not in entertaining inquiries concerning the constitutionality of social legislation but in applying the standards that it did. See Tot v. United States, 319 U.S. 463, 63 S.Ct. 1241, 87 L.Ed. 1519; Giboney v. Empire Storage & Ice Co., 336 U.S. 490, 69 S.Ct. 684, 93 L.Ed. 834. Social legislation dealing with business and economic matters touches no particularized prohibition of the Constitution, unless it be*518 the provision of the Fifth Amendment that private property should not be taken for public use without just compensation. If it is free of the latter guarantee, it has a wide scope for application. Soem go so far as to suggest that whatever the majority in the legislature says goes (cf. United States v. Chandler-Dunbar Water Power Co., 229 U.S. 53, 64, 33 S.Ct. 667, 672, 57 L.Ed. 1063), that there is no other standard of constitutionality. That reduces the legislative power to sheer voting strength and the judicial function to a matter of statistics. As Robert M. Hutchins has said, 'It is obviously impossible to raise questions of freedom and justice if the sole duty of the court is to decide whether the case at bar falls within the scope of the duly issued command of a duly constituted sovereign.' Two Faces of Federalism (1960), p. 18. While the legislative judgment on economic and business matters is 'well-nigh conclusive' (Berman v. Parker, 348 U.S. 26, 32, 75 S.Ct. 98, 102, 99 L.Ed. 27), it is not beyond judicial inquiry. Cf. United States v. Oregon, 366 U.S. 643, 649, 81 S.Ct. 1278, 1281, 6 L.Ed.2d 575 (dissenting opinion).

The regime of a free society needs room for vast experimentation. Crises, emergencies, experience at the individual and community levels produce new insights; problems emerge in new dimensions; needs, once never imagined, appear. To stop experimentation and the testing of new decrees and controls is to deprive society of a needed versatility. Yet to say that a legislature may do anything not within a specific guarantee of the Constitution may be as crippling to a free society as to allow it to override specific guarantees so long as what it does fails to shock the sensibilities of a majority of the Court.9*519 The present legislation is an excellent example. If a State banned completely the sale of contraceptives in drug stores, the case would be quite different. It might seem to some or to all judges an unreasonable restriction. Yet it might not be irrational to conclude that a better way of dispensing those articles is through physicians. The same might be said of a state law banning the manufacture of contraceptives. Health, religious, and moral arguments might be marshalled pro and con. Yet it is not for judges to weigh the evidence. Where either the sale or the manufacture is put under regulation, the strictures are on business and commercial dealings that have had a long history with the police power of the States.

The present law, however, deals not with sale, not with manufacture, but with use. It provides:

'Any person who uses any drug, medicinal article or instrument for the purpose of preventing conception shall be fined not less than fifty dollars or imprisoned not less than sixty days nor more than one year or be both fined and imprisoned.' Conn.Gen.Stat.1958, § 53—32.

The regulation as applied in this case touches the relationship between man and wife. It reaches into the intimacies of the marriage relationship. If we imagine a regime of full enforcement of the law in the manner of*520 an Anthony Comstock,10 we would reach the point where search warrants issued and officers appeared in bedrooms to find out what went on.11 It is said that this is not that case. And so it is not. But when the State makes 'use' a crime and applies the criminal sanction to man*521 and wife, the State has entered the innermost sanctum of the home. If it can make this law, it can enforce it. And proof of its violation necessarily involves an inquiry into the relations between man and wie .

That is an invasion of the privacy that is implicit in a free society. A noted theologian who conceives of the use of a contraceptive as a 'sin' nonetheless admits that a 'use' statute such as this enters a forbidden domain.

'* * * the Connecticut statute confuses the moral and legal, in that it transposes without further ado a private sin into a public crime. The criminal act here is the private use of contraceptives. The real area where the coercions of law might, and ought to, be applied, at least to control an evil namely, the contraceptive industry—is quite overlooked. As it stands, the statute is, of course, unenforceable without police invasion of the bedroom, and is therefore indefensible as a piece of legal draughtsmanship.' Murray, We Hold These Truths (1960), pp. 157—158.

This notion of privacy is not drawn from the blue.12 It emanates from the totality of the constitutional scheme under which we live.13

'One of the earmarks of the totalitarian understanding of society is that it seeks to make all*522 subcommunities—family, school, business, press, church completely subject to control by the State. The State then is not one vital institution among others: a policeman, a referee, and a source of initiative for the common good. Instead, it seeks to be coextensive with family and school, press, business community, and the Church, so that all of these component interest groups are, in principle, reduced to organs and agencies of the State. In a democratic political order, this megatherian concept is expressly rejected as out of accord with the democratic understanding of social good, and with the actual make-up of the human community.'14

Can there be any doubt that a Bill of Rights that in time of peace bars soldiers from being quartered in a home 'without the consent of the Owner' 15 should also bar the police from investigating the intimacies of the marriage relation? The idea of allowing the State that leeway is congenial only to a totalitarian regime.

I dissent from a dismissal of these cases and our refusal to strike down this law.

1

Himes, A Decade of Progress in Birth Control, 212 Annals Am.Acad.Pol. & Soc.Sci. 88, 94 (1940).

2

It may be, as some suggest, that these bizarre laws are kept on the books solely to insure that traffic in contraceptives will be furtive, or will be limited to those who, by the accident of their education, travels, or wealth, need not rely on local public clinics for instruction and supply. Yet these laws—as the decision below shows—are not limited to such situations.

3

'On the continent there was some speculation during the middle ages as to whether a law could become inoperative through long-continued desuetude. In England, however, the idea of prescription and h e acquisition or loss of rights merely by the lapse of a particular length of time found little favour. * * * There was consequently no room for any theory that statutes might become obsolete.' Plucknett, A Concise History of the Common Law (1956), pp. 337—338.

4

The Critique of Pure Reason, 42 Great Books, p. 221.

On Liberty of Thought and Discussion, 43 Great Books, p. 282.

6

Ibid.

7

See Konvitz, Fundamental Liberties of a Free People (1957), pp. 37—39; Green, The Bill of Rights, the Fourteenth Amendment and the Supreme Court, 46 Mich.L.Rev. 869, 904 et seq. (9 48); Holmes, The Fourteenth Amendment and the Bill of Rights, 7 S.C.L.Q.Rev. 596 (1955).

And see Mr. Justice Rutledge (concurring) in In re Oliver, 333 U.S. 257, 280—281, 68 S.Ct. 499, 511, 92 L.Ed. 682.

8

I start with Justices Bradley, Swayne, Field, Clifford and Harlan. To this number, Mr. Justice Brewer can probably be joined on the basis of his agreement 'in the main' with Mr. Justice Harlan in O'Neil v. State of Vermont, 144 U.S. 323, 371, 12 S.Ct. 693, 711, 36 L.Ed. 450. See the Appendix to Mr. Justice Black's dissent in Adamson v. People of State of California, supra, 332 U.S. 120—123, 67 S.Ct. 1709—1711. To these I add Mr. Justice Black, Mr. Justice Murphy, Mr. Justice Rutledge and myself (Adamson v. People of State of California, supra, 332 U.S. 68, 123, 67 S.Ct. 1684, 1683).

9

'The due process clause is said to exact from the states all that is 'implicit in the concept of ordered liberty.' It is further said that the concept is a living one, that it guarantees basic rights, not because they have become petrified as of any one time, but because due process follows the advancing standards of a free society as to what is deemed reasonable and right. It is to be applied, according to this view, to facts and circumstances as they arise, the cases falling on one side of the line or the other as a majority of nine justices appraise conduct as either implicit in the concept of ordered liberty or as lying without the confines of that vague concept. Of course, in this view, the due process clause of the Fifth Amendment, which confessedly must be construed like that of the Fourteenth, may be repetitious of many of the other guaranties of the first eight amendments and may render many of their provisions superfluous.' Roberts, The Court and the Constitution (1951), p. 80.

10

Anthony Comstock (1844—1915)—the Congregationalist who inspired the foundation of the New York Society for the Suppression of Vice in 1873 and the Watch and Ward Society of Boston in 1876 and who inspired George Bernard Shaw to use the opprobrious word 'comstockery' in Mrs. Warren's Profession—was responsible for the passage in 1879 of this Connecticut law.

'Anthony Comstock had moral earnestness and it can't be faked. His concern was with Puritan theology rather than Puritan ethics. Righteousness seemed to him less important than salvation and consequently tricks which seemed shabby to enutrals left him without shame. A man who fights for the safety of his immortal soul can hardly be expected to live up to the best Queensberry traditions in the clinches. To grant the major premises of Comstock's religious and social philosophy is to acquit him of any lack of logic. Obscenity was to Anthony poison to soul and body, and anything remotely touching upon sex was to his mind obscene. He seems to have believed implicitly in medical theories which have since his time been discarded. Even in his day beliefs were changing, but Comstock was loyal to the old-line ideas. It was his notion that idiocy, epilepsy and locomotor-ataxia were among the ailments for which auto-eroticism was responsible. Since death and damnation might be, according to his belief, the portion of the girl or boy who read a ribald story, it is easy to understand why he was so impatient with those who advanced the claims of art. Even those who love beauty would hardly be prepared to burn in hell forever in its service. Comstock's decision was even easier, for he did not know, understand or care anything about beauty.' Broun and Leech, Anthony Comstock (1927), pp. 265—266.

11

Those warrants would, I think, go beyond anything so far known in our law. The law has long known the writ de ventre inspiciendo authorizing matrons to inspect the body of a woman to determine if she is pregnant. This writ was issued to determine before a hanging whether a convicted famale was pregnant or to ascertain whether rightful succession of property was to be defeated by assertion of a suppositions heir. See 1 Blackstone Commentaries (Jones ed. 1915), p. 651.

12

The right 'to be let alone' had many common-law overtones. See Cooley, Torts (2d ed. 1888), p. 29; Warren and Brandeis, Right To Privacy, 4 Harv.L.Rev. 192. Cf. Ohio Rev.Code, § 2905.34, which makes criminal knowing 'possession' of 'a drug, medicine, article, or thing intended for the prevention of conception,' doctors and druggists being excepted. § 2905.37.

13

Mr. Justice Murphy dissenting in Adamson v. People of State of California, 332 U.S. 46, 124, 67 S.Ct. 1672, 1683, 91 L.Ed. 1903, said:

'I agree that the specific guarantees of the Bill of Rights should be carried over intact into the first section of the Fourteenth Amendment. But I am not prepared to say that the latter is entirely and necessarily limited by the Bill of Rights. Occasions may arise where a proceeding falls so far short of conforming to fundamental standards of procedure as to warrant constitutional condemnation in terms of a lack of due process despite the absence of a specific provision in the Bill of Rights.'

14

Calhoun, Democracy and Natural Law, 5 Nat.Law Forum, 31, 36 (1960).

15

The Third Amendment provides:

'No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law.'

Mr. Justice HARLAN, dissenting.

I am compelled, with all respect, to dissent from the dismissal of these appeals. In my view the course which the Court has taken does violence to established concepts*523 of 'justiciability,' and unjustifiably leaves these appellants under the threat of unconstitutional prosecution. Regrettably, an adequate exposition of my views calls for a dissenting opinion of unusual length.

Between them these suits seek declaratory relief against the threatened enforcement of Connecticut's antibirth-control laws making criminal the use of contraceptives, insofar as such laws relate to the use of contraceptives by married persons and the giving of advice to married persons in their use.1 The appellants, a married couple, a married woman, and a doctor, ask that it be adjudged, contrary to what the Connecticut courts have held, that such laws, as threatened to be applied to them in circumstances described in the opinion announcing the judgment of the Court (ante, 367 U.S. at pages 498—500, 81 S.Ct. at pages 1753—1754), violate the Fourteenth Amendment, in that they deprive appellants of life, liberty, or property without due process.

The plurality opinion of the Court gives, as the basis for dismissing the appeals, the reason that, as to the two married appellants, the lack of demonstrated enforcement of the Connecticut statute bespeaks an absence of exigent adversity which is posited as the condition for evoking adjudication from us, and, as to the doctor, that his compliance with the state statute is uncoerced by any 'realistic fear of prosecution,' giving due recognition to his 'standing as a physician and to his personal sensitiveness.' With these reasons it appears that the concurring opinion agrees.

In Alabama State Federation of Labor, etc. v. McAdory, 325 U.S. 450, 462, 65 S.Ct. 1384, 1390, 89 L.Ed. 1725, it was said that 'declaratory judgment procedure may be resorted to only in the sound discretion of the Court and where the interests of justice will be*524 advanced and an adequate and effective judgment may be rendered.' In my view of these cases a present determination of the Constitutional issues is the n ly course which will advance justice, and I can find no sound reason born of considerations as to the possible inadequacy or ineffectiveness of the judgment that might be rendered which justifies the Court's contrary disposition. While ordinarily I would not deem it appropriate to deal, in dissent, with Constitutional issues which the Court has not reached, I shall do so here because such issues, as I see things, are entangled with the Court's conclusion as to the nonjusticiability of these appeals.

Part One.

Justiciability.

There can be no quarrel with the plurality opinion's statement that 'Justiciability is of course not a legal concept with a fixed content or susceptible of scientific verification,' but, with deference, the fact that justiciability is not precisely definable does not make it ineffable. Although a large number of cases are brought to bear on the conclusion that is reached, I think it is fairly demonstrable that the authorities fall far short of compelling dismissal of these appeals.2 Even so, it is suggested that the cases*525 do point the way to a 'rigorous insistence on exigent adversity' and a 'policy against premature constitutional decision,' which properly understood does indeed demand that result.

The policy referred to is one to which I unreservedly subscribe. Without undertaking to be definitive, I would suppose it is a policy the wisdom of which is woven of several strands: (1) Due regard for the fact that the source of the Court's power lies ultimately in its duty to decide, in conformity with the Constitution, the particular controversies which come to it, and does not arise from some generalized power of supervision over state and national legislatures; (2) therefore it should insist that litigants bring to the Court interests and rights which require present recognition and controversies demanding immediate resolution; (3) also it follows that the controversy must be one which is in truth and fact the litigant's own, so that the clash of adversary contest which is needed to sharpen and illuminate issues is present and gives that aid on which our adjudicatory system has come to rely; (4) finally, it is required that other means of redress for the particular right claimed be unavailable, so that the process of the Court may not become overburdened and conflicts with other courts or departments of government may not needlessly be created, which might come about if either those truly affected are not the ones demanding relief, or if the relief we can give is not truly needed.

In particularization of this composite policy the Court, in the course of its decisions on matters of justiciability, has developed and given expression to a number of important limitations on the exercise of its jurisdiction, the*526 presence or absence of which here should determine the justiciability of these appeals. Since all of them are referred to here in one way or another, it is well to proceed to a disclosure of those which are not involved in the present appeals, thereby focusing attention on the one factor on which reliance appears to be placed by both the plurality and concurring opinions in this instance.

First: It should by now be abundantly clear that the fact that only Constitutional claims are presented in proceedings seeking anticipatory relief against state criminal statutes does not for that reason alone make the claims premature. See, e.g., Terrace v. Thompson, 263 U.S. 197, 44 S.Ct. 15, 68 L.Ed. 255; Pierce v. Society of Sisters, 268 U.S. 510, 45 S.Ct. 571, 69 L.Ed. 1070; Euclid, Ohio v. Ambler Realty Co., 272 U.S. 365, 47 S.Ct. 114, 71 L.Ed. 303. Whatever general pronouncements may be found to the contrary must, in context, be seen to refer to considerations quite different from anything present in these cases.

Thus in Alabama State Federation of Labor, etc. v. McAdory, supra, anticipatory relief was withheld for the precise reason that normally this Court ought not to consider the Constitutionality of a state statute in the absence of a controlling interpretation of its meaning and effect by the state courts. To the same effect see Parker v. Los Angeles County, 338 U.S. 327, 70 S.Ct. 161, 94 L.Ed. 144; Watson v. Buck, 313 U.S. 387, 61 S.Ct. 962, 85 L.Ed. 1416; Beal v. Missouri Pacific R. Co., 312 U.S. 45, 61 S.Ct. 418, 85 L.Ed. 577. Indeed, without belaboring the point, the principle that anticipatory relief against state criminal statutes is not unavailable as a general matter may best be illustrated by several cases recently decided in this Court. In Harrison v. N.A.A.C.P., 360 U.S. 167, 79 S.Ct. 1025, 3 L.Ed.2d 1152, the premise of our action was that anticipatory relief should be obtained, if possible—with review here on certiorari or appeal—in a state court which could then authoritatively construe a new and ambiguous state statute; only if such relief were unavailable, should a Federal District Court exercise its*527 statutory jurisdiction. And in our recent decisions upholding the Constitutionality of state Sunday-closing laws, 366 U.S. 420 et seq., 81 S.Ct. 1101 et seq., not one of the opinions paused even slightly over the appropriateness of anticipatory relief, although in one case that issue was argued, Gallagher v. Crown Kosher Super Market, 366 U.S. 617, 81 S.Ct. 1122.

Hence, any language in the cases where the Court has abstained from exercising its jurisdiction, to the effect that we should not 'entertain constitutional questions in advance of the strictest necessity,' Parker v. Los Angeles County, supra, 338 U.S. at page 333, 70 S.Ct. at page 164, is not at all apposite in the present cases. For these appeals come to us from the highest court of Connecticut, thus affording us—in company with previous state interpretations of the same statute—a clear construction of the scope of the statute, thereby in effect assuring that our review constitutes no greater interference with state administration than the state procedures themselves allow.

Second: I do not think these appeals may be dismissed for want of 'ripeness' as that concept has been understood in its 'varied applications.'3 There is no lack of 'ripeness' in the sense that is exemplified by cases such as Stearns v. Wood, 236 U.S. 75, 35 S.Ct. 229, 59 L.Ed. 475; Electric Bond & Share Co. v. Securities & Exchange Comm., 303 U.S. 419, 58 S.Ct. 678, 82 L.Ed. 936; United Public Workers of America (C.I.O.) v. Mitchell, 330 U.S. 75, 67 S.Ct. 556, 91 L.Ed. 754; Inter*528national Longshoremen's and Warehousemen's Union, Local 37 Union v. Boyd, 347 U.S. 222, 74 S.Ct. 447, 98 L.Ed. 650; and perhaps again Parker v. Los Angeles County, supra. In all of those cases the lack of ripeness inhered in the fact that the need for some further procedure, some further contingency of application or interpretation, whether judicial, administrative or executive, or some further clarification of the intentions of the claimant, served to make remote the issue which was sought to be presented to the Court. Certainly the appellants have stated in their pleadings fully and unequivocally what it is that they intend to do; no clarifying or resolving contingency stands in their way before they may embark on that conduct. Thus there is no circumstance besides that of detection or prosecution to make remote the particular controversy. And it is clear beyond cavil that the mere fact that a controversy such as this is rendered still more unavoidable by an actual prosecution, is not alone sufficient to make the case too remote, not ideally enough 'ripe' for adjudication, at the prior stage of anticipatory relief.

Moreover, it follows from what has already been said that there is no such want of ripeness as was presented in Rescue Army v. Municipal Court, 331 U.S. 549, 67 S.Ct. 1409, 91 L.Ed. 1666, or in our recent decisions dismissing the appeals in Atlanta Newspapers, Inc. v. Grimes, 364 U.S. 290, 81 S.Ct. 63, 5 L.Ed.2d 39, and United States v. Fruehauf, 365 U.S. 146, 81 S.Ct. 547, 5 L.Ed.2d 476, where the records presented for adjudication a controversy so artifically truncated as to make the cases not susceptible to intelligent decision. I cannot see what further elaboration is required to enable us to decide the appellants' claims, and indeed neither the plurality opinion nor the concurring opinion—not-withstanding the latter's characterization of this record as 'skimpy'—suggests what mere grist is needed before the judicial mill could turn.

Third: This is not a feigned, hypothetical, friendly or colorable suit such as discloses 'a want of a truly adversary*529 contest.' Clearly these cases are not analogous to Wood-Paper Co. v. Heft, 8 Wall. 333, 19 L.Ed. 379, or South Spring Hill Gold Mining Co. v. Amador Medean Gold Mining Co., 145 U.S. 300, 12 S.Ct. 921, 36 L.Ed. 712, where prior to consideration the controversy in effect became moot by the merger of the two contesting interests. Nor is there any question of collusion as in Lord v. Veazie, 8 How. 251, 12 L.Ed. 1067, or in United States v. Johnson, 319 U.S. 302, 63 S.Ct. 1075, 87 L.Ed. 1413. And there is nothing to suggest that the parties by their conduct of this litigation have cooperated to force an adjudication of a Constitutional issue which—were the parties interested solely in winning their cases rather than obtaining a Constitutional decision—might not arise in an arm's-length contested proceeding. Such was the situation in Chicago & Grand Trunk R. Co. v. Wellman, 143 U.S. 339, 12 S.Ct. 400, 36 L.Ed. 176, where the parties sought a ruling as to whether a particular passenger rate was unconstitutionally confiscatory, having stipulated all the debatable and contingent facts which otherwise might have rendered a Constitutional decision unnecessary.

In the present appeals no more is alleged or conceded than is consistent with undisputed facts and with ordinary practice in deciding a case for anticipatory relief on demurrer. I think it is unjustifiably stretching things to assume that appellants are not deterred by the threat of prosecution from eg aging in the conduct in which they assert a right to engage, or to assume that appellee's demurrer to the proposition that he asserts the right to enforce the statute against appellants at any time he chooses is anything but a candid one.

Indeed, as will be developed below, I think both the plurality and concurring opinions confuse on this score the predictive likelihood that, had they not brought themselves to appellee's attention, he would not enforce the statute against them, with some entirely suppositious 'tacit agreement' not to prosecute, thereby ignoring the*530 prosecutor's claim, asserted in these very proceedings, of a right, at his unbounded prosecutorial discretion, to enforce the statute.

Fourth: The doctrine of the cases dealing with a litigant's lack of standing to raise a Constitutional claim is said to justify the dismissal of these appeals. The precedents put forward as examples of this doctrine, see the plurality opinion, note 5, as well as cases such as Commonwealth of Massachusetts v. Mellon (Frothingham v. Mellon) 262 U.S. 447, 43 S.Ct. 597, 67 L.Ed. 1078, and State of Texas v. Interstate Commerce Comm., 258 U.S. 158, 42 S.Ct. 261, 66 L.Ed. 531, do indeed stand for the proposition that a legal claim will not be considered at the instance of one who has no real and concrete interest in its vindication. This is well in accord with the grounds for declining jurisdiction suggested above. But this doctrine in turn needs further particularization lest it become a catchall for an unarticulated discretion on the part of this Court to decline to adjudicate appeals involving Constitutional issues.

There is no question but that appellants here are asserting rights which are peculiarly their own, and which, if they are to be raised at all, may be raised most appropriately by them. Cf. Tileston v. Ullman, 318 U.S. 44, 63 S.Ct. 493, 87 L.Ed. 603; State of Texas v. Interstate Commerce Comm., supra; Yazoo & Mississippi Valley R. Co. v. Jackson Vinegar Co., 226 U.S. 217, 33 S.Ct. 40, 57 L.Ed. 193; Ashwander v. Tennessee Valley Authority, 297 U.S. 288, 341, 56 S.Ct. 466, 480, 80 L.Ed. 688 (concurring opinion). Nor do I understand the argument to be that this is the sort of claim which is too remote ever to be pressed by anyone, because no one is ever sufficiently involved. Cf. Commonwealth of Massachusetts v. Mellon (Frothingham v. Mellon), supra. Thus, in truth, it is not the parties pressing this claim but the occasion chosen for pressing it which is objected to. But as has been shown the fact that it is anticipatory relief which is asked cannot of itself make the occasion objectionable.

*531We are brought, then, to the precise failing in these proceedings which is said to justify refusal to exercise our mandatory appellate jurisdiction: that there has been but one recorded Connecticut case dealing with a prosecution under the statute.4 The significance of this lack of recorded evidence of prosecutions is said to make the presentation of appellants' rights too remote, too contingent, too hypothetical for adjudication in the light of the policies already considered. See 367 U.S. at pages 526—530, 81 S.Ct. at pages 1768—1770, supra. In my view it is only as a result of misconceptions both about the purport of the record before us and about the nature of the rights appellants put forward that this conclusion can be reached.

As far as the record is concerned, I think it is pure conjecture, and indeed conjecture which to me seems contrary to realities, that an open violation of the statute by a doctor (or more obviously still by a birth-control clinic) would not resul in a substantial threat of prosecution. Crucial to the opposite conclusion is the description of the 1940 prosecution instituted in State v. Nelson, 126 Conn. 412, 11 A.2d 856, as a 'test case' which, as it is viewed, scarcely even punctuates the uniform state practice of nonenforcement of this statute. I read the history of Connecticut enforcement in a very different light. The Nelson case, as appears from the state court's opinion, was a prosecution of two doctors and a nurse for aiding and abetting violations of this statute by married women in prescribing and advising the use of contraceptive materials by them. It is true that there is*532 evidence of a customary unwillingness to enforce the statute prior to Nelson, for in that case the prosecutor stated to the trial court in a later motion to discontinue the prosecutions that 'When this Waterbury clinic (operated by the defendants) was opened there were in open operation elsewhere in the State at least eight other contraceptive clinics which had been in existence for a long period of time and no questions as to their right to operate had been raised * * *.'5

What must also be noted is that the prosecutor followed this statement with an explanation that the primary purpose of the prosecution was to provide clear warning to all those who, like Nelson, might rely on this practice of nonenforcement. He stated that the purpose of the prosecution was:

'the establishment of the constitutional validity and efficacy of the statutes under which these accused are informed against. Henceforth any person, whether a physician or layman, who violates the provisions of these statutes, must expect to be prosecuted and punished in accordance with the literal provisions of the law.'6*533 Thus the respect in which Nelson was a test case is only that it was brought for the purpose of making entirely clear the State's power and willingness to enforce against 'any person, whether a physician or layman' (emphasis supplied), the statute and to eliminate from future cases the very doubt about the existence of these elements which had resulted in eight open birth-control clinics, and which would have made unfair the conviction of Nelson.

The plurality opinion now finds, and the concurring opinion must assume, that the only explanation of the absence of recorded prosecutions subsequent to the Nelson case is that Connecticut has renounced that intention to prosecute and punish 'any person * * * in accordance with the literal provisions of the law' which it announced in Nelson. But if renunciation of the purposes of the Nelson prosecution is consistent with a lack of subsequent prosecutions, success of that purpose is no less consistent with this lack. I find it difficult to believe that doctors generally and not just those operating specialized clinics—would continue openly to disseminate advice about contraceptives after Nelson in reliance on the State's supposed unwillingness to prosecute, or to consider that high-minded members of the profession would in consequence of such inaction deem themselves warranted in disrespecting this law so long as it is on the books. Nor can I regard as 'chimerical' the fear of enforcement of these provisions that seems to have caused the disappearance of at least nine birth-control clinics.7 In short, I fear that the Court has indulged in a bit of sleight of hand to be rid of this case. It has treated the significance of the absence of prosecutions during the twenty years since Nelson as identical with that of the absence of prosecutions during the years before*534 Nelson. It has ignored the fact that the very purpose of the Nelson prosecution was to change defiance into compliance. It has ignored the very possibility that this purpose may have been successful.8 The result is to postu*535late a security from prosecution for open defiance of the statute which I do not believe the record supports.9

These considerations alone serve to bring appellants so squarely within the rule of Pierce v. Society of Sisters, 268 U.S. 510, 45 S.Ct. 571, 69 L.Ed. 1070, and Tra x v. Raich, 239 U.S. 33, 36 S.Ct. 7, 60 L.Ed. 131, that further demonstration would be pointless.

But even if Dr. Buxton were not in the litigation and appellants the Poes and Doe were seeking simply to use contraceptives without any need of consulting a physician beforehand—which is not the case we have, although it is the case which the plurality opinion of the Court is primarily concerned to discuss—even then I think that it misconceives the concept of justiciability and the nature of these appellants' rights to say that the failure of the State to carry through any criminal prosecution requires dismissal of their appeals.

The Court's disposition assumes that to decide the case now, in the absence of any consummated prosecutions, is unwise because it forces a difficult decision in advance of any exigent necessity therefor. Of course it is abundantly clear that this requisite necessity can exist prior to any actual prosecution, for that is the theory of anticipatory relief, and is by now familiar law. What must be relied on, therefore, is that the historical absence of prosecutions in some way leaves these appellants free to violate the statute without fear of prosecution, whether or not the law is Constitutional, and thus absolves us from the duty of deciding if it is. Despite the sug*536gestion of a 'tougher and truer law' of immunity from criminal prosection and despite speculation as to a 'tacit agreement' that this law will not be enforced, there is, of course, no suggestion of an estoppel against the State if it should attempt to prosecute appellants. Neither the plurality nor the concurring opinion suggests that appellants have some legally cognizable right not to be prosecuted if the statute is Constitutional. What is meant is simply that the appellants are more or less free to act without fear of prosecution because the prosecuting authorities of the State, in their discretion and at their whim, are, as a matter of prediction, unlikely to decide to prosecute.

Here is the core of my disagreement with the present disposition. As I will develop later in this opinion, the most substantial claim which these married persons press is their right to enjoy the privacy of their marital relations free of the enquiry of the criminal law, whether it be in a prosecution of them or of a doctor whom they have consulted. And I cannot agreed that their enjoyment of this privacy is not substantially impinged upon, when they are told that if they use contraceptives, indeed whether they do so or not, the only thing which stands between them and being forced to render criminal account of their marital privacy is the whim of the prosecutor.10 Connecticut's highest court has told us in the clearest terms that, given proof, the prosecutor will succeed if he decides to bring a proceeding against one of the appellants for taking*537 the precise actions appellants have announced they intend to take. The State Court does not agree that there has come into play a 'tougher and truer law than the dead words of the written text,' and in the light of twelve unsuccessful attempts since 1943 to change this legislation, Poe v. Ullman, 147 Conn. 48, 56, note 2, 156 A.2d 508, 513, this position is not difficult to understand. Prosecution and conviction for the clearly spelled-out actions the appellants wish to take is not made unlikely by any fortuitous factor outside the control of the parties, nor is it made uncertain by possible variations in the actions appellants actually take from those the state courts have already passed upon. All that stands between the appellants and jail is the legally unfettered whim of the prosecutor and the Constitutional issue this Court today refuses to decide.

If we revert again to the reasons underlying our reluctance to exercise a jurisdiction which technically we possess, and the concrete expression of those underlying reasons in our cases, see 367 U.S. at pages 526—531, 81 S.Ct. at pages 1768—1770, supra, then I think it must become clear that there is no justification for failing to decide these married persons's appeals. The controversy awaits nothing but an actual prosecution, and, as will be shown, the substantial damage against which these appellants, Mrs. Doe and the Poes, are entitled to protection will be accomplished by such a prosecution, whatever its outcome in the state courts or here. By the present decision, although as a general matter the parties would be entitled to our review in an anticipatory proceeding which the State allowed to be instituted in its courts, these appellants are made to await actual prosecution before we will hear them. Indeed it appears that whereas appellants would surely have been entitled to review were this a new statute, see Harrison v. N.A.A.C.P., supra, the State here is enabled to maintain at least some substantial measure of compliance with*538 this statute and still obviate any review in this Court, by the device of purely discretionary prosecutorial inactivity. It seems to me to destroy the whole purpose of anticipatory relief to consider the prosecutor's discretion, once all legal and administrative channels have been cleared, as in any way analogous to those other contingencies which make remote a controversy presenting Constitutional claims.

In this light it is not surprising that the Court's position is without support in the precedents.11 Indeed it seems to me that Pierce v. Society of Sisters, 268 U.S. 510, 45 S.Ct. 571, 69 L.Ed. 1070, provides very clear authority contrary to the position of the Court in this case, for there a Court which included Justices Holmes, Brandeis, and Stone rejected a claim of prematureness and then passed upon and held unconstitutional a state statute whose sanctions were not even to become effective for more than seventeen months after the time the case was argued to this Court. The Court found allegations of present loss of business, caused by the threat of the statute's future enforcement against the Society's clientele, sufficient to make the injury to the Society 'present and very real.' 268 U.S. at page 536, 45 S.Ct. at page 574. I cannot regard as less present, or less real, the tendency to discourage the exercise of the liberties of these appellants, caused by reluctance to submit their freedoms from prose*539cution and conviction to the discretion of the Connecticut prosecuting authorities. I therefore think it incumbent on us to consider the merits of appellants' Constitutional claims.

Part Two.

Constitutionality.

I consider that this Connecticut legislation, as construed to apply to these appellants, violates the Fourteenth Amendment. I believe that a statute making it a criminal offense for married couples to use contraceptives is an intolerable and unjustifiable invasion of privacy in the conduct of the most intimate concerns of an individual's personal life. I reach this conclusion, even though I find it difficult and unnecessary at this juncture to accept appellants' other argument that the judgment of policy behind the statute, so applied, is so arbitrary and unreasonable as to render the enactment invalid for that reason alone. Since both the contentions draw their basis from no explicit language of the Constitution, and have yet to find expression in any decision of this Court, I feel it desirable at the outset to state the framework of Constitutional principles in which I think the issue must be judged.

I.

In reviewing state legislation, whether considered to be in the exercise of the State's police powers, or in provision for the health, safety, morals or welfare of its people, it is clear that what is concerned are 'the powers of government inherent in every sovereignty.' The License Cases, 5 How. 504, 583, 12 L.Ed. 256. Only to the extent that the Constitution so requires may this Court interfere with the exercise of this plenary power of government. Barron for Use of Tiernan v. Mayor and City Council of City of Baltimore, 7 Pet. 243, 8 L.Ed. 672. But precisely because it is the Constitution alone which warrants judicial interference in sovereign operations of the State,*540 the basis of judgment as to the Constitutionality of state action must be a rational one, approaching the text which is the only commission for our power not in a literalistic way, as if we had a tax statute before us, but as the basic charter of our society, setting out in spare but meaningful terms the principles of government. M'Culloch v. Maryland, 4 Wheat. 316, 4 L.Ed. 579. But as inescapable as is the rational process in Constitutional adjudication in general, nowhere is it more so than in giving meaning to the prohibitions of the Fourteenth Amendment and, where the Federal Government is involved, the Fifth Amendment, against the deprivation of life, liberty or property without due process of law.

It is but a truism to say that this provision of both Amendments is not self-explanatory. As to the Fourteenth, which is involved here, the history of the Amendment also sheds little light on the meaning of the provision. Fairman, Does the Fourteenth Amendment Incorporate the Bill of Rights, 2 Stan.L.Rev. 15. It is important to note, however, that two views of the Amendment have not been accepted by this Court as delineating its scope. One view, which was ably and insistently argued in response to what were felt to be abuses by this Court of its reviewing power, sought to limit the provision to a guarantee of procedural fairness. See Davidson v. City of New Orleans, 96 U.S. 97, 105, 24 L.Ed. 616; Brandeis, J., in Whitney v. People of State of California, 274 U.S. 357, at page 373, 47 S.Ct. 641, at page 647, 71 L.Ed. 1095; Warren, The New 'Liberty' under the 14th Amendment, 39 Harv.L.Rev. 431; Reeder, The Due Process Clauses and 'The Substance of Individual Rights,' 58 U.Pa.L.Rev. 191; Shattuck, The True Meaning of the Term 'Liberty' in Those Clauses in the Federal and State Constitutions Which Protect 'Life, Liberty, and Property,' 4 Harv.L.Rev. 365. The other view which has been rejected would have it that the Fourteenth Amendment, whether by way of the Privileges and Immunities Clause or the Due*541 Process Clause, applied against the States only and precisely those restraints which had prior to the Amendment been applicable merely to federal action. However, 'due process' in the consistent view of this Court has even been a broader concept than the first view and more flexible than the second.

Were due process merely a procedural safeguard it would fail to reach those situations where the deprivation of life, liberty or property was accomplished by legislation which by operating in the future could, given even the fairest possible procedure in application to individuals, nevertheless destroy the enjoyment of all three. Compare, e.g., Selective Draft Law Cases, 245 U.S. 366, 38 S.Ct. 159, 62 L.Ed. 349; Butler v. Perry, 240 U.S. 328, 36 S.Ct. 258, 60 L.Ed. 672; Korematsu v. United States, 323 U.S. 214, 65 S.Ct. 193, 89 L.Ed. 194. Thus the guaranties of due process, though having their roots in Magna Carta's 'per legem terrae' and considered as procedural safeguards 'against executive usurpation and tyranny,' have in this country 'become bulwarks also against arbitrary legislation.' Hurtado v. People of State of California, 110 U.S. 516, at page 532, 4 S.Ct. 111, at page 119, 28 L.Ed. 232.

However it is not the particular enumeration of rights in the first eight Amendments which spells out the reach of Fourteenth Amendment due process, but rather, as was suggested in another context long before the adoption of that Amendment, those concepts which are considered to embrace those rights 'which are * * * fundamental; which belong * * * to the citizens of all free governments,' Corfield v. Coryell, Fed.Cas.No.3,230, 4 Wash.C.C. 371, 380, for 'the purposes (of securing) which men enter into society,' Calder v. Bull, 3 Dall. 386, 388, 1 L.Ed. 648. Again and again this Court has resisted the notion that the Fourteenth Amendment is no more than a shorthand reference to what is explicitly set out elsewhere in the Bill of Rights. The Slaughter-House Cases, 16 Wall. 36, 21 L.Ed. 394; Walker v. Sauvinet, 92 U.S. 90, 23 L.Ed. 678; Hurtado v. People of State of California, 110 U.S. 516, 4 S.Ct. 111, 28 L.Ed. 232; Presser v. State of Illinois, 116 U.S. 252, 6 S.Ct. 580, 29 L.Ed. 615; In re Kemmler, 136 U.S. 436, 10 S.Ct. 930, 34 L.Ed. 519;*542 Twining v. State of New Jersey, 211 U.S. 78, 29 S.Ct. 14, 53 L.Ed. 97; Palko v. State of Connecticut, 302 U.S. 319, 58 S.Ct. 149, 82 L.Ed. 288. Indeed the fact that an identical provision limiting federal action is found among the first eight Amendments, applying to the Federal Government, suggests that due process is a discrete concept which subsists as an independent guaranty of liberty and procedural fairness, more general and inclusive than the specific prohibitions. See Mormon Church v. United States, 136 U.S. 1, 10 S.Ct. 792, 34 L.Ed. 481; Downes v. Bidwell, 182 U.S. 244, 21 S.Ct. 770, 45 L.Ed. 1088; Territory of Hawaii v. Mankichi, 190 U.S. 197, 23 S.Ct. 787, 47 L.Ed. 1046; Balzac v. People of Porto Rico, 258 U.S. 298, 42 S.Ct. 343, 66 L.Ed. 627; Farrington v. T. Tokushige, 273 U.S. 284, 47 S.Ct. 406, 71 L.Ed. 646; Bolling v. Sharpe, 347 U.S. 497, 74 S.Ct. 693, 98 L.Ed. 884.

Due process has not been reduced to any formula; its content cannot be determined by reference to any code. The best that can be said is that through the course of this Court's decisions it has represented the balance which our Nation, built upon postulates of respect for the liberty of the individual, has struck between that liberty and the demands of organized society. If the supplying of content to this Constitutional concept has of necessity been a rational process, it certainly has not been one where judges have felt free to roam where unguided speculation might take them. The balance of which I speak is the balance struck by this country, having regard to what history teaches are the traditions from which it developed as well as the traditions from which it broke. That tradition is a living thing. A decision of this Court which radically departs from it could not long survive, while a decision which builds on what has survived is likely to be sound. No formula could serve as a substitute, in this area, for judgment and restraint.

It is this outlook which has led the Court continuingly to perceive distinctions in the imperative character of Constitutional provisions, since that character must be discerned from a particular provision's larger context. And inasmuch as this context is one not of words, but of*543 history and purposes, the full scope of the liberty guaranteed by the Due Process Clause cannot be found in or limited by the precise terms of the specific guarantees elsewhere provided in the Constitution. This 'liberty' is not a series of isolated points pricked out in terms of the taking of property; the freedom of speech, press, and religion; the right to keep and bear arms; the freedom from unreasonable searches and seizures; and so on. It is a rational continuum which, broadly speaking, includes a freedom from all substantial arbitrary impositions and purposeless restraints, see Allgeyer v. State of Louisiana, 165 U.S. 578, 17 S.Ct. 427, 41 L.Ed. 832; Holden v. Hardy, 169 U.S. 366, 18 S.Ct. 383, 42 L.Ed. 780; Booth v. People of State of Illinois, 184 U.S. 425, 22 S.Ct. 425, 46 L.Ed. 623; Nebbia v. People of State of New York, 291 U.S. 502, 54 S.Ct. 505, 78 L.Ed. 940; Skinner v. State of Oklahoma, 316 U.S. 535, 544, 62 S.Ct. 1110, 1114, 86 L.Ed. 1655 (concurring opinion); Schware v. Board of Bar Examiners, 353 U.S. 232, 77 S.Ct. 752, 1 L.Ed.2d 796, and which also recognizes, what a reasonable and sensitive judgment must, that certain interests require particularly careful scrutiny of the state needs asserted to justify their abridgment. Cf. Skinner v. State of Oklahoma, supra; Bolling v. Sharpe, supra.

As was said in Meyer v. State of Nebraska, 262 U.S. 390, 399, 43 S.Ct. 625, 626, 67 L.Ed. 1042, 'this court has not attempted to define with exactness the liberty thus guaranteed * * *. Without doubt, it denotes, not merely freedom from bodily restraint * * *.' Thus, for instance, when in that case and in Pierce v. Society of Sisters, 268 U.S. 510, 45 S.Ct. 571, 69 L.Ed. 1070, the Court struck down laws which sought not to require what children must learn in schools, but to prescribe, in the first case, what they must not learn, and in the second, where they must acquire their learning, I do not think it was wrong to put those decisions on 'the right of the individual to * * * establish a home and bring up children,' Meyer v. State of Nebraska, ibid., or on the basis that 'The fundamental theory of liberty upon which all governments in this Union repose excludes any general power of the State to standardize its children by forcing them to accept instruc*544tion from public teachers only,' Pierce v. Society of Sisters, 268 U.S. at page 535, 45 S.Ct. at page 573. I consider this so, even though today those decisions would probably have gone by reference to the concepts of freedom of expression and conscience assured against state action by the Fourteenth Amendment, concepts that are derived from the explicit guarantees of the First Amendment against federal encroachment upon freedom of speech and belief. See West Virginia State Board of Education v. Barnette, 319 U.S. 624 and 656, 63 S.Ct. 1178 and 1193, 87 L.Ed. 1628 (dissenting opinion); Prince v. Commonwealth of Massachusetts, 321 U.S. 158, 166, 64 S.Ct. 438, 442, 88 L.Ed. 645. For it is the purposes of those guarantees and not their text, the reasons for their statement by the Framers and not the statement itself, see Palko v. State of Connecticut, 302 U.S. 319, 324—327, 58 S.Ct. 149, 151 153, 82 L.Ed. 288; United States v. Carolene Products Co., 304 U.S. 144, 152—153, 58 S.Ct. 778, 783—784, 82 L.Ed. 1234, which have led to their present status in the compendious notion of 'liberty' embraced in the Fourteenth Amendment.

Each new claim to Constitutional protection must be considered against a background of Constitutional purposes, as they have been rationally perceived and historically developed. Though we exercise limited and sharply restrained judgment, yet there is no 'mechanical yard-stick,' no 'mechanical answer.' The decision of an apparently novel claim must depend on grounds which follow closely on well-accepted principles and criteria. The new decision must take 'its place in relation to what went before and further (cut) a channel for what is to come.' Irvine v. People of State of California, 347 U.S. 128, 147, 74 S.Ct. 381, 391, 98 L.Ed. 561 (dissenting opinion). The matter was well put in Rochin v. People of State of California, 342 U.S. 165, 170—171, 72 S.Ct. 205, 208, 96 L.Ed. 183:

'The vague contours of the Due Process Clause do not leave judges at large. We may not draw on our merely personal and private notions and disregard the limits that bind judges in their judicial function. Even though the concept of due process of law is not final and fixed, these limits are derived from con*545siderations that are fused in the whole nature of our judicial process. * * * These are considerations deeply rooted in reason and in the compelling traditions of the legal profession.'

On these premises I turn to the particular Constitutional claim in this case.

II.

Appellants contend that the Connecticut statute deprives them, as it unquestionably does, of a substantial measure of liberty in carrying on the most intimate of all personal relationships, and that it does so arbitrarily and without any rational, justifying purpose. The State, on the other hand, asserts that it is acting to protect the moral welfare of its citizenry, both directly, in that it considers the practice of contraception immoral in itself, and instrumentally, in that the availability of contraceptive materials tends to minimize 'the disastrous consequence of dissolute action,' that is fornication and adultery.

It is argued by appellants that the judgment, implicit in this statute—that the use of contraceptives by married couples is immoral—is an irrational one, that in effect it subjects them in a very important matter to the arbitrary whim of the legislature, and that it does so for no good purpose. Where, as here, we are dealing with what must be considered 'a basic liberty,' cf. Skinner v. State of Oklahoma, supra, 316 U.S. at page 541, 62 S.Ct. at page 1113, 'There are limits to the extent to which the presumption of constitutionality can be pressed,' id., 316 U.S. at page 544, 62 S.Ct. at page 1115, (concurring opinion), and the mere assertion that the action of the State finds justification in the controversial realm of morals cannot justify alone any and every restriction it imposes. See Alberts v. State of California, 354 U.S. 476, 77 S.Ct. 1304, 1 L.Ed.2d 1498.

Yet the very inclusion of the category of morality among state concerns indicates that society is not limited in its objects only to the physical well-being of the com*546munity, but has traditionally concerned itself with the moral soundness of its people as well. Indeed to attempt a line between public behavior and that which is purely consensual or solitary would be to withdraw from community concern a range of subjects with which every society in civilized times has found it necessary to deal. The laws regarding marriage which provide both when the sexual powers may be used and the legal and societal context in which children are born and brought up, as well as laws forbidding adultery, fornication and homosexual practices which express the negative of the proposition, confining sexuality to lawful marriage, form a pattern so deeply pressed into the substance of our social life that any Constitutional doctrine in this area must build upon that basis. Compare McGowan v. Maryland, 366 U.S. 420, 81 S.Ct. 1101, 1153, 1218.

It is in this area of sexual morality, which contains many proscriptions of consensual behavior having little or no direct impact on others, that the State of Connecticut has expressed its moral judgment that all use of contraceptives is improper. Appellants cite an impressive list of authorities who, from a great variety of points of view, commend the considered use of contraceptives by married couples. What they do not emphasize is that not too long ago the current of opinion was very probably quite the opposite,12 and that even today the issue is not*547 free of controversy. Certainly, Connecticut's judgment is no more demonstrably correct or incorrect than are the varieties of judgment, expressed in law, on marriage and divorce, on adult consensual homosexuality, abortion, and sterilization, or euthanasia and suicide. If we had a case before us which required us to decide simply, and in abstraction, whether the moral judgment implicit in the application of the present statute to married couples was a sound one, the very controversial nature of these questions would, I think, require us to hesitate long before concluding that the Constitution precluded Connecticut from choosing as it has among these various views. Cf. Alberts v. State of California, 354 U.S. 476, 500—503, 77 S.Ct. 1304, 1317—1319, 1 L.Ed.2d 1498 (concurring opinion).

But, as might be expected, we are not presented simply with this moral judgment to be passed on as an abstract proposition. The secular state is not an examiner of consciences: it must operate in the realm of behavior, of overt actions, and where it does so operate, not only the underlying, moral purpose of its operations, but also the choice of means becomes relevant to any Constitutional judgment on what is done. The moral presupposition on which appellants ask us to pass judgment could form the basis of a variety of legal rules and administrative choices, each presenting a different issue for adjudication. For example, one practical expression of the moral view propounded here might be the rule that a marriage in which*548 only contraceptive relations had taken place had never been consummated and could be annulled. Compare, e.g., 2 Bouscaren, Canon Law Digest, 307—313. Again, the use of contraceptives might be made a ground for divorce, or perhaps tax benefits and subsidies could be provided for large families. Other examples also readily suggest themselves.

III.

Precisely what is involved here is this: the State is asserting the right to enforce its moral judgment by intruding upon the most intimate details of the marital relation with the full power of the criminal law. Potentially, this could allow the deployment of all the incidental machinery of the criminal law, arrests, searches and seizures; inevitably, it must mean at the very least the lodging of criminal charges, a public trial, and testimony as to the corpus delicti. Nor could any imaginable elaboration of presumptions, testimonial privileges, or other safeguards, alleviate the necessity for testimony as to the mode and manner of the married couples' sexual relations, or at least the opportunity for the accused to make denial of the charges. In sum, the statute allows the State to enquire into, prove and punish married people for the private use of their marital intimacy.

This, then, is the precise character of the enactment whose Constitutional measure we must take. The statute must pass a more rigorous Constitutional test than that going merely to the plausibility of its underlying rationale. See 367 U.S. at pages 542—545, 81 S.Ct. at pages 1776—1778, supra. This enactment involves what, by common understanding throughout the English-speaking world, must be granted to be a most fundamental aspect of 'liberty,' the privacy of the home in its most basic sense, and it is this which requires that the statute be subjected to 'strict scrutiny.' Skinner v. State of Oklahoma, supra, 316 U.S. at page 541, 62 S.Ct. at page 1113.

*549That aspect of liberty which embraces the concept of the privacy of the home receives explicit Constitutional protection at two places only. These are the Third Amendment, relating to the quartering of soldiers,13 and the Fourth Amendment, prohibiting unreasonable searches and seizures.14 While these Amendments reach only the Federal Government, this Court has held in the strongest terms, and today again confirms, that the concept of 'privacy' embodied in the Fourth Amendment is part of the 'ordered liberty' assured against state action by the Fourteenth Amendment. See Wolf v. People of State of Colorado, 338 U.S. 25, 69 S.Ct. 1359, 93 L.Ed. 1782; Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684.

It is clear, of course, that this Connecticut statute does not invade the privacy of the home in the usual sense, since the invasion involved here may, and doubtless usually would, be accomplished without any physical intrusion whatever into the home. What the statute undertakes to do, however, is to create a crime which is grossly offensive to this privacy, while the Constitution refers only to methods of ferreting out substantive wrongs, and the procedure it requires presupposes that substantive offenses may be committed and sought out in the privacy of the home. But such an analysis forecloses any claim to Constitutional protection against this form of deprivation of privacy, only if due process in this respect is limited to what is explicitly provided in the Constitution, divorced from the rational purposes, historical roots, and subsequent developments of the relevant provisions.

*550Perhaps the most comprehensive statement of the principle of liberty underlying these aspects of the Constitution was given by Mr. Justice Brandeis, dissenting in Olmstead v. United States, 277 U.S. 438, at page 478, 48 S.Ct. 564, at page 572, 72 L.Ed. 944:

'The protection guaranteed by the (Fourth and Fifth) Amendments is much broader in scope. The makers of our Constitution undertook to secure conditions favorable to the pursuit of happiness. They recognized the significance of man's spiritual nature, of his feelings and of his intellect. They knew that only a part of the pain, pleasure and satisfactions of life are to be found in material things. They sought to protect Americans in their beliefs, their thoughts, their emotions and their sensations. They conferred, as against the government, the right to be let alone—the most comprehensive of rights and the right most valued by civilized men. To protect that right, every unjustifiable intrusion by the government upon the privacy of the individual whatever the means employed, must be deemed a violation of the Fourth Amendment. * * *'

I think the sweep of the Court's decisions, under both the Fourth and Fourteenth Amendments, amply shows that the Constitution protects the privacy of the home against all unreasonable intrusion of whatever character. '(These) principles * * * affect the very essence of constitutional liberty and security. They reach farther than (a) concrete form of the case * * * before the court, with its adventitious circumstances; they apply to all invasions on the part of the government and its employes of the sanctity of a man's home and the privacies of life. * * *' Boyd v. United States, 116 U.S. 616, 630, 6 S.Ct. 524, 532, 29 L.Ed. 746. 'The security of one's privacy against arbitrary intrusion by the police—which is at the core of the Fourth Amendment—is basic to a free society.' Wolf v. People of State of Colorado, supra, 338 U.S. at page 27, 69 S.Ct. at page 1361. In addition, see, e.g., Davis v. United States, 328 U.S. 58i, 587, 66 S.Ct. 1256, 1258, 90 L.Ed. 1453;*551 Oklahoma Press Pub. Co. v. Walling, 327 U.S. 186, 202—203, 66 S.Ct. 494, 502, 90 L.Ed. 614; Frank v. State of Maryland, 359 U.S. 360, 365—366, 79 S.Ct. 804, 808—809, 3 L.Ed.2d 877; Silverman v. United States, 365 U.S. 505, 511, 81 S.Ct. 679, 682, 5 L.Ed.2d 734.

It would surely be an extreme instance of sacrificing substance to form were it to be held that the Constitutional principle of privacy against arbitrary official intrusion comprehends only physical invasions by the police. To be sure, the times presented the Framers with two particular threats to that principle, the general warrant, see Boyd v. United States, supra, and the quartering of soldiers in private homes. But though 'Legislation, both statutory and constitutional, is enacted, * * * from an experience of evils * * * its general language should not, therefore, be necessarily confined to the form that evil had theretofore taken. * * * (A) principle, to be vital, must be capable of wider application than the mischief which gave it birth.' Weems v. United States, 217 U.S. 349, 373, 30 S.Ct. 544, 551, 54 L.Ed. 793.

Although the form of intrusion here—the enactment of a substantive offense—does not, in my opinion, preclude the making of a claim based on the right of privacy embraced in the 'liberty' of the Due Process Clause, it must be acknowledged that there is another sense in which it could be argued that this intrusion on privacy differs from what the Fourth Amendment, and the similar concept of the Fourteenth, were intended to protect: here we have not an intrusion into the home so much as on the life which characteristically has its place in the home. But to my mind such a distinction is so insubstantial as to be captious: if the physical curtilage of the home is protected, it is surely as a result of solicitude to protect the privacies of the life within. Certainly the safeguarding of the home does not follow merely from the sanctity of property rights. The home derives its pre-eminence as the seat of family life. And the integrity of that life is something so fundamental that it has been found to draw*552 to its protection the principles of more than one explicitly granted Constitutional right. Thus, Mr. Justice Brandeis, writing of a statute which made 'it punishable to teach (pacifism) in any place (to) a single person * * * no matter what the relation of the parties may be,' found such a 'statute invades the privacy and freedom of the home. Father and mother may not follow the promptings of religious belief, of conscience or of conviction, and teach son or daughter the doctrine of pacifism. If they do, any police officer may summarily arrest them.' Gilbert v. State of Minnesota, 254 U.S. 325, 335—336, 41 S.Ct. 125, 128, 65 L.Ed. 287 (dissenting opinion). This same principle is expressed in the Pierce and Meyer cases, supra. These decisions, as was said in Prince v. Commonwealth of Massachusetts, 321 U.S. 158, at page 166, 64 S.Ct. 438, at page 442, 88 L.Ed. 645, 'have respected the private realm of family life which the state cannot enter.'

Of this whole 'private realm of family life' it is difficult to imagine what is more private or more intimate than a husband and wife's marital relations. We would indeed be straining at a gnat and swallowing a camel were we to show concern for the niceties of property law involved in our recent decision, under the Fourth Amendment, in Chapman v. United States, 365 U.S. 610, 81 S.Ct. 776, 5 L.Ed.2d 828, and yet fail at least to see any substantial claim here.

Of course, just as the requirement of a warrant is not inflexible in carrying out searches and seizures, see Abel v. United States, 362 U.S. 217, 80 S.Ct. 683, 4 L.Ed.2d 668; United States v. Rabinowitz, 339 U.S. 56, 70 S.Ct. 430, 94 L.Ed. 653, so there are countervailing considerations at this more fundamental aspect of the right involved. '(T)he family * * * is not beyond regulation,' Prince v. Commonwealth of Massachusetts, supra, and it would be an absurdity to suggest either that offenses may not be committed in the bosom of the family or that the home can be made a sanctuary for crime. The right of privacy most manifestly is not an absolute. Thus, I would not suggest that adultery, homosexuality, fornication and incest are immune from criminal enquiry, however privately practiced. So much*553 has been explicitly recognized in acknowledging the State's rightful concern for its people's moral welfare. See 367 U.S. at pages 545—548, 81 S.Ct. at pages 1778—1780, supra. But not to discriminate between what is involved in this case and either the traditional offenses against good morals or crimes which, though they may be committed anywhere, happen to have been committed or concealed in the home, would entirely misconceive the argument that is being made.

Adultery, homosexuality and the like are sexual intimacies which the State forbids altogether, but the intimacy of husband and wife is necessarily an essential and accepted feature of the institution of marriage, an institution which the State not only must allow, but which always and in every age it has fostered and protected. It is one thing when the State exerts its power either to forbid extra-marital sexuality altogether, or to say who may marry, but it is quite another when, having acknowledged a marriage and the intimacies inherent in it, it undertakes to regulate by means of the criminal law the details of that intimacy.

In sum, even though the State has determined that the use of contraceptives is as iniquitous as any act of extra-marital sexual immorality, the intrusion of the whole machinery of the criminal law into the very heart of marital privacy, requiring husband and wife to render account before a criminal tribunal of their uses of that intimacy, is surely a very different thing indeed from punishing those who establish intimacies which the law has always forbidden and which can have no claim to social protection.

In my view the appellants have presented a very pressing claim for Constitutional protection. Such difficulty as the claim presents lies only in evaluating it against the State's countervailing contention that it be allowed to enforce, by whatever means it deems appropriate, its judgment of the immorality of the practice this law con*554demns. In resolving this conflict a number of factors compel me to conclude that the decision here must most emphatically be for the appellants. Since, as it appears to me, the statute marks an abridgment of important fundamental liberties protected by the Fourteenth Amendment, it will not do to urge in justification of that abridgment simply that the statute is rationally related to the effectuation of a proper state purpose. A closer scrutiny and stronger justification than that are required. See 367 U.S. at pages 542—545, 81 S.Ct. at pages 1776—1778, supra.

Though the State has argued the Constitutional permissibility of the moral judgment underlying this statute, neither its brief, nor its argument, nor anything in n y of the opinions of its highest court in these or other cases even remotely suggests a justification for the obnoxiously intrusive means it has chosen to effectuate that policy. To me the very circumstance that Connecticut has not chosen to press the enforcement of this statute against individual users, while it nevertheless persists in asserting its right to do so at any time—in effect a right to hold this statute as an imminent threat to the privacy of the households of the State—conduces to the inference either that it does not consider the policy of the statute a very important one, or that it does not regard the means it has chosen for its effectuation as appropriate or necessary.

But conclusive, in my view, is the utter novelty of this enactment. Although the Federal Government and many States have at one time or other had on their books statutes forbidding or regulating the distribution of contraceptives, none, so far as I can find, has made the use of contraceptives a crime.15 Indeed, a diligent search has*555 revealed that no nation, including several which quite evidently share Connecticut's moral policy,16 has seen fit to effectuate that policy by the means presented here.

Though undoubtedly the States are and should be left free to reflect a wide variety of policies, and should be allowed broad scope in experimenting with various means of promoting those policies, I must agree with Mr. Justice Jackson that 'There are limits to the extent to which a legislatively represented majority may conduct * * * experiments at the expense of the dignity and personality' of the individual. Skinner v. State of Oklahoma, supra (316 U.S. 535, 62 S.Ct. 1116). In this instance these limits are, in my view, reached and passed.

I would adjudicate these appeals and hold this statute unconstitutional, insofar as it purports to make criminal the conduct contemplated by these married women. It follows that if their conduct cannot be a crime, appellant Buxton cannot be an accomplice thereto. I would reverse the judgment in each of these cases.

1

These statutes, Conn.Gen.Stat.Rev.1958, § 53—32 (forbidding the use of contraceptives), and Conn.Gen.Stat.Rev.1958, § 54—196 (the general accessory law), are set forth in note 2 of the plurality opinion, ante, 367 U.S. at page 499, 81 S.Ct. at page 1753.

2

Only two cases are squarely relied on, C.I.O. v. McAdory, 325 U.S. 472, 65 S.Ct. 1395, 89 L.Ed. 1741, a companion case to Alabama State Federation of Labor, etc. v. McAdory, supra, discussed at pages 526—527 of 367 U.S., at page 1768 of 81 S.Ct., infra, and tendering the same issues; and Ex parte La Prade, 289 U.S. 444, 53 S.Ct. 682, 77 L.Ed. 1311. The appeal in the principal McAdory case was dismissed because the state statute there challenged had not yet been construed by the state courts, and it was thought that state construction might remove some Constitutional doubts. In the companion McAdory case, the appeal was likewise dismissed, the State having 'agreed not to enforce § 7 of the Act (there challenged) until the final decision as to the section's validity by this Court in Alabama State Federation of Labor v. McAdory * * *.' Id., 325 U.S. at page 475, 65 S.Ct. at page 1397. In the present appeals there is no agreement not to prosecute, no companion case awaiting disposition, and no uncertainty about state law due to lack of state construction.

As to Ex parte La Prade, supra, see note 11, infra.

3

Manifestly the type of ripeness found wanting in cases such as Commonwealth of Massachusetts v. Mellon, 262 U.S. 447, 43 S.Ct. 597, 67 L.Ed. 1078; State of Texas v. Interstate Commerce Comm., 258 U.S. 158, 42 S.Ct. 261, 66 L.Ed. 531; State of New Jersey v. Sargent, 269 U.S. 328, 46 S.Ct. 122, 70 L.Ed. 289, and State of Arizona v. State of California, 283 U.S. 423, 51 S.Ct. 522, 75 L.Ed. 1154, is not lacking in the cases before us. For the recurrent theme of those cases, all of which challenge federal action as an encroachment on state sovereignty, is the fact that the mere existence of state sovereign powers and prerogatives which may bear generally upon individual rights raises no such concrete and practical issues as courts are accustomed to consider, so that adjudication upon their validity in such circumstances would take place in the most abstract kind of setting.

4

Some support is sought to be drawn for the supposition of state acquiescence in violation of the statute from the case of State v. Certain Contraceptive Materials, 126 Conn. 428, 11 A.2d 863. But that case held no more than that contraceptive materials could not be seized under the authority of a statute interpreted to deal with the seizure of gambling paraphernalia.

5

The 'circumstances' of the Nelson case may best be gathered from the remarks of the State's prosecuting attorney, Mr. Fitzgerald, seeking the approval of the trial judge for a nolle prosequi in that case after the decision of the State Supreme Court. In an affidavit accompanying a transcript of the proceedings on the State's motion, the attorney for the defendants stated that 'said criminal prosecutions were prosecutions instituted by the State upon complaint of a citizen and were instituted in no sense with the prior knowledge or approval of the accused and there was no pre-trial acquiescence by the accused that said actions would be instituted to test the constitutionality of the statutes in question.'

6

This statement was made in the same proceedings referred to in note 5, supra.

7

See Brief of Planned Parenthood Federation of America, Inc., as amicus curiae, p. 4, and Appendix f.

8

The concurring opinion concludes, apparently on the basis of the Nelson episode, that the 'true controversy in this case is over the opening of birth-control clinics on a large scale * * *.' It should be said at once that as to these appeals this is an entirely unwarranted assumption. The amicus curiae in this case, the Planned Parenthood Federation of America, Inc., is indeed interested in such clinics, see note 7, supra, but as to the actual parties here, there is not one word in the record or their briefs to suggest that their interest is anything other than they say it is. The Nelson prosecution, it is true, involved a doctor and nurses at a birth-control clinic, but there is nothing about these statutes as they have been authoritatively construed in this and previous cases, that limits their application to advice given by a doctor in a clinic of that sort, as opposed to advice given by a doctor in some less specialized clinic, a hospital or in his own office.

The only conceivable sense in which 'The true controversy in this case is over the opening of birth-control clinics' must lie in the circumstance that since the notorious and avowed purpose of such a clinic is the violation of these statutes, there would not be the same problem of detection or proof of violations as might otherwise present itself. The relevance in turn of this circumstances must be that, in the view of the concurring opinion there is a present threat of enforcement against any such clinic which I too believe—but coupled with a further assumption—one shared by the plurality opinion though lacking any factual warrant whatever—that these statutes do not also deter members of the medical profession in general from violating these statutes. Furthermore both opinions must share the assumption that the appellants may be required to hold what may be their constitutional rights at the whim and pleasure of the prosecutor. In sum, the strong implication of the concurring opinion that a suit for anticipatory relief brought by a birth-control clinic (though it would raise no different issues and present a record no less 'skimpy') would succeed in invoking our jurisdiction where these suits fail, exposes the fallacy underlying the Court's disposition: the unprecedented doctrine that a suit for anticipatory relief will be entertained at the instance of one who is forced to violate a statute flagrantly, but not at the urging of one who may violate it surreptitiously with a high probability of avoiding detection.

9

In this regard it is worth comparing the record of the Federal Communications Commission in enforcing its regulations by means of a threat of revocation of station licenses. The Commission has not, as is generally known, used this sanction much more readily than Connecticut has invoked criminal penalties to enforce the laws here in question, but no one would discount entirely the efficacy of the threat or suggest that open defiance of Commission regulations is without substantial risks.

10

It is suggested that prosecution is unlikely because of an interspousal testimonial privilege in Connecticut. Assuming that such a privilege exists and is applicable here, the testimony of either spouse is not necessary to a conviction. Furthermore, as will be argued, the rea incursion here inheres in the institution of a prosecution in this matter at all, with the consequent need of an opportunity for the parties—guilty or innocent—to defend themselves against the charges. See 367 U.S. at page 548, 81 S.Ct. at page 1779, infra.

11

There is a much discredited dictum in Ex parte La Prade, 289 U.S. 444, 53 S.Ct. 682, 77 L.Ed. 1311, that in an injunction action there must be an allegation of threatened immediate enforcement of the statute. See 50 Yale L.J. 1278; Borchard, Challenging 'Penal' Statutes by Declaratory Action, 52 Yale L.J. 445; 62 Harv.L.Rev. 870—871. But against this dictum (which even in its context was justified only as a natural consequence of the rule of Ex parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714, involving suits against state officers) one can array numerous cases in which proof of any such immediate threat was considered unnecessary and the Court proceeded to a determination of the merits. See, e.g., Commonwealth of Pennsylvania v. State of West Virginia, 262 U.S. 553, 43 S.Ct. 658, 67 L.Ed. 1117; Euclid, Ohio v. Ambler Realty Co., 272 U.S. 365, 47 S.Ct. 114, 71 L.Ed. 303; Carter v. Carter Coal Co., 298 U.S. 238, 56 S.Ct. 855, 80 L.Ed. 1160; Currin v. Wallace, 30 U.S. 1, 59 S.Ct. 379, 83 L.Ed. 441.

12

The so-called Comstock Law, 17 Stat. 598, may be regarded as characteristic of the attitude of a large segment of public opinion on this matter through the end of the last century. It was only by judicial interpretation at a later date that the absolute prohibitions of the law were qualified to exclude professional medical use. Youngs Rubber Corp. v. C. I. Lee & Co., 2 Cir., 45 F.2d 103; Davis v. United States, 6 Cir., 62 F.2d 473; United States v. One Package, 2 Cir., 86 F.2d 737; 50 Harv.L.Rev. 1312. However, the Comstock Law in its original form 'started a fashion' and many States enacted similar legislation, some of which is still on the books. See Stone and Pilpel, The Social and Legal Status of Contraception, 22 N.C.L.Rev. 212; Legislation Note, 45 Harv.L.Rev. 723; Note, 6 U. of Chi.L.Rev. 260; Murray, America's Four Conspiracies, at 32—33, in Religion in America (Cogley ed.). Indeed the criticism of these measures assume that they represented general public opinion, though of a bygone day. See, e.g., Knopf, Various Aspects of Birth Control; Birth Control Clinical Research Bureau, Laws Relating to Birth Control in the United States and its Territories, foreword and introduction; Stone and Pilpel, supra; Hearings on H.R. 11082, 72d Cong., 1st Sess. See generally, Broun and Leech, Anthony Comstock; Dennett, Birth Control Laws.

13

'No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law.'

14

'The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.'

15

See tabulation of statutes in Birth Control Legislation, 9 Cleveland-Marshall Law Review, 245 (1960); Legislation Note, 45 Harv.L.Rev. 723 (1932); Birth Control Clinical Research Bureau, Laws Relating to Birth Control in the United States and its Territories (1938).

16

Unqualified disapproval of contraception is implicit in the laws of Belgium, Droit Penal, § 383; France, Code Penal, Art. 317; Ireland, Censorship of Publications Act of 1929, §§ 16, 17, Criminal Law Amendment Act of 1935, § 17; Italy, Codice Penale, Arts. 553, 555; and Spain, Codigo Penal, Art. 416. Compare the more permissive legislation in Canada, Criminal Code, § 150; Germany, Strafgesetzbuch, § 184; Switzerland, Code Penal, Art. 211.

Mr. Justice STEWART, dissenting.

For the reasons so convincingly advanced by both Mr. Justice DOUGLAS and Mr. Justice HARLAN, I join them in dissenting from the dismissal of these appeals. Since the appeals are nonetheless dismissed, my dissent need go no further. However, in refraining from a discussion of the constitutional issues, I in no way imply that the ultimate result I would reach on the merits of these controversies would differ from the conclusions of my dissenting Brothers.

64 N.Y.2d 152 (1984)

Barbara Howe, Rose H. Sconiers and James A. W. McLeod for appellant.

Richard J. Arcara, Erie County District Attorney (John J. DeFranks and Jo W. Faber of counsel), for respondent.

Sarah Wunsch, Anne E. Simon, Laurie Woods, Joanne Schulman and Rhonda Copelon for Center for Constitutional Rights and others, amici curiae.

Elizabeth Holtzman, Kings County District Attorney (Barbara D. Underwood and Evan Wolfson of counsel), for Elizabeth Holtzman, amicus curiae.

Chief Judge COOKE and Judges JASEN, JONES, MEYER and KAYE concur; Judge SIMONS taking no part.

[158] WACHTLER, J.

The defendant, while living apart from his wife pursuant to a Family Court order, forcibly raped and sodomized her in the presence of their 2½ year old son. Under the New York Penal Law a married man ordinarily cannot be prosecuted for raping or sodomizing his wife. The defendant, however, though married at the time of the incident, is treated as an unmarried man under the Penal Law because of the Family Court order. On this appeal, he contends that because of the exemption for married men, the statutes for rape in the first degree (Penal Law, § 130.35) and sodomy in the first degree (Penal Law, § 130.50), violate the equal protection clause of the Federal Constitution (US Const, 14th Amdt). The defendant also contends that the rape statute violates equal protection because only men, and not women, can be prosecuted under it.

I

Defendant Mario Liberta and Denise Liberta were married in 1978. Shortly after the birth of their son, in October of that year, Mario began to beat Denise. In early 1980 Denise brought a proceeding in the Family Court in Erie County seeking protection from the defendant. On April 30, 1980 a temporary order of protection was issued to her by the Family Court. Under this order, the defendant was to move out and remain away from the family home, and stay away from Denise. The order provided that the defendant could visit with his son once each weekend.

On the weekend of March 21, 1981, Mario, who was then living in a motel, did not visit his son. On Tuesday, March 24, 1981 he called Denise to ask if he could visit his son on that day. Denise would not allow the defendant to come to her house, but she did agree to allow him to pick up their son and her and take them both back to his motel after being assured that a friend of his would be with them at all times. The defendant and his friend picked up Denise and their son and the four of them drove to defendant's motel.

When they arrived at the motel the friend left. As soon as only Mario, Denise, and their son were alone in the motel room, Mario attacked Denise, threatened to kill her, and forced her to perform fellatio on him and to engage in sexual intercourse with him. The son was in the room during the entire episode, and the [159] defendant forced Denise to tell their son to watch what the defendant was doing to her.

The defendant allowed Denise and their son to leave shortly after the incident. Denise, after going to her parents' home, went to a hospital to be treated for scratches on her neck and bruises on her head and back, all inflicted by her husband. She also went to the police station, and on the next day she swore out a felony complaint against the defendant. On July 15, 1981 the defendant was indicted for rape in the first degree and sodomy in the first degree.

II

Section 130.35 of the Penal Law provides in relevant part that "A male is guilty of rape in the first degree when he engages in sexual intercourse with a female * * * by forcible compulsion". "Female", for purposes of the rape statute, is defined as "any female person who is not married to the actor" (Penal Law, § 130.00, subd 4). Section 130.50 of the Penal Law provides in relevant part that "a person is guilty of sodomy in the first degree when he engages in deviate sexual intercourse with another person * * * by forcible compulsion". "Deviate sexual intercourse" is defined as "sexual conduct between persons not married to each other consisting of contact between the penis and the anus, the mouth and penis, or the mouth and the vulva" (Penal Law, § 130.00, subd 2). Thus, due to the "not married" language in the definitions of "female" and "deviate sexual intercourse", there is a "marital exemption" for both forcible rape and forcible sodomy. The marital exemption itself, however, has certain exceptions. For purposes of the rape and sodomy statutes, a husband and wife are considered to be "not married" if at the time of the sexual assault they "are living apart * * * pursuant to a valid and effective: (i) order issued by a court of competent jurisdiction which by its terms or in its effect requires such living apart, or (ii) decree or judgment of separation, or (iii) written agreement of separation" (Penal Law, § 130.00, subd 4).

Defendant moved to dismiss the indictment, asserting that because he and Denise were still married at the time of the incident^[1] he came within the "marital exemption" to both rape and sodomy. The People opposed the motion, contending that the temporary order of protection required Mario and Denise to live apart, and they in fact were living apart, and thus were "not [160] married" for purposes of the statutes. The trial court granted the defendant's motion and dismissed the indictment, concluding that the temporary order of protection did not require Mario and Denise to live apart from each other, but instead required only that he remain away from her, and that therefore the "marital exemption" applied.

On appeal by the People, the Appellate Division reversed the trial court, reinstated the indictment, and remanded the case for trial. The Appellate Division held that a Family Court order of protection is within the scope of "[an] order * * * which by its terms or in its effect requires such living apart" even though it is directed only at a husband, and thus found that Mario and Denise were "not married" for purposes of the statute at the time of the incident.

The defendant was then convicted of rape in the first degree and sodomy in the first degree and the conviction was affirmed by the Appellate Division. Defendant asserts on this appeal that the temporary order of protection is not the type of order which enables a court to treat him and Denise as "not married" and that thus he is within the marital exemption. Defendant next asserts, assuming that because of the Family Court order he is treated just as any unmarried male would be, that he cannot be convicted of either rape in the first degree or sodomy in the first degree because both statutes are unconstitutional. Specifically, he contends that both statutes violate equal protection because they burden some, but not all males (all but those within the "marital exemption"), and that the rape statute also violates equal protection for burdening only men, and not women. The lower courts rejected the defendant's constitutional arguments, finding that neither statute violated the equal protection clause in the Fourteenth Amendment. Although we affirm the conviction of the defendant, we do not agree with the constitutional analysis of the lower courts and instead conclude that the marital and gender exemptions must be read out of the statutes prohibiting forcible rape and sodomy.

III

We first address the defendant's argument that, despite the order of protection, he was within the "marital exemption" to rape and sodomy and thus could not be prosecuted for either crime. Until 1978, the marital exemption applied as long as the marriage still legally existed. In 1978, the Legislature expanded the definition of "not married" to include those cases where the husband and wife were living apart pursuant to either a court [161] order "which by its terms or in its effect requires such living apart" or a decree, judgment, or written agreement of separation (L 1978, ch 735; see Penal Law, § 130.00, subd 4). We agree with the Appellate Division that the order of protection in the present case falls squarely within the first of these situations.

The legislative memorandum submitted with the original version of the 1978 amendment, after referring to the situations brought within the scope of "not married", stated: "In each of the alternatives set forth in this bill, there must be documentary evidence of a settled and mutual intention to dissolve the marital relationship, or a court determination that the spouses should, for the well-being of one or both, live apart" (NY Legis Ann, 1978, pp 403-404). Although the language of the amendment was subsequently changed to the form in which it was enacted, this legislative memorandum was submitted with the final version of the bill. In addition to this clear statement of legislative intent, the plain language of the statute indicates that an order of protection is within the meaning of an order "which by its terms or in its effect requires [the spouses to live] apart". This language would be virtually meaningless if it did not encompass an order of protection, as the statute separately provides for the other obvious situation where a court order would require spouses to live apart, i.e., where there is a decree or judgment of separation.^[2]

Accordingly, the defendant was properly found to have been statutorily "not married" to Denise at the time of the rape.

IV

The defendant's constitutional challenges to the rape and sodomy statutes are premised on his being considered "not married" to Denise and are the same challenges as could be made by any unmarried male convicted under these statutes. The defendant's claim is that both statutes violate equal protection because they are underinclusive classifications which burden him, but not others similarly situated (see Tribe, American Constitutional Law, p 997). A litigant has standing to raise this claim even though he does not contend that under no circumstances could the burden of the statute be imposed upon him (see Michael M. v Sonoma County Superior Ct., 450 US 464, 472, n 8, 473; Orr v Orr, 440 US 268, 272-273). This rule of standing applies as well to a defendant in a criminal prosecution who, [162] while conceding that it is within the power of a State to make criminal the behavior covered by a statute, asserts that the statute he is prosecuted under violates equal protection because it burdens him but not others (see Linda R. S. v Richard D., 410 US 614, 619, n 5; Skinner v Oklahoma, 316 US 535; People v Illardo, 48 N.Y.2d 408, 417; Clancy, Equal Protection Considerations of the Spousal Sexual Assault Exclusion, 16 N Eng L Rev 1, 4-8). Thus, defendant's constitutional claims are properly before this court.

A. THE MARITAL EXEMPTION

As noted above, under the Penal Law a married man ordinarily cannot be convicted of forcibly raping or sodomizing his wife. This is the so-called marital exemption for rape^[3] (see 1881 Penal Code, tit X, ch II, § 278). Although a marital exemption was not explicit in earlier rape statutes (see 1863 Rev Stats, part 4, ch I, tit 2, art 2, § 22), an 1852 treatise stated that a man could not be guilty of raping his wife (Barbour, Criminal Law of State of New York [2d ed], p 69). The assumption, even before the marital exemption was codified, that a man could not be guilty of raping his wife, is traceable to a statement made by the 17th century English jurist Lord Hale, who wrote: "[T]he husband cannot be guilty of a rape committed by himself upon his lawful wife, for by their mutual matrimonial consent and contract the wife hath given up herself in this kind unto her husband, which she cannot retract" (1 Hale, History of Pleas of the Crown, p 629). Although Hale cited no authority for his statement it was relied on by State Legislatures which enacted rape statutes with a marital exemption and by courts which established a common-law exemption for husbands.^[4]

The first American case to recognize the marital exemption was decided in 1857 by the Supreme Judicial Court of Massachusetts, which stated in dictum that it would always be a defense to rape to show marriage to the victim (Commonwealth v Fogerty, 74 Mass 489). Decisions to the same effect by other [163] courts followed, usually with no rationale or authority cited other than Hale's implied consent view.^[5] In New York, a 1922 decision noted the marital exemption in the Penal Law and stated that it existed "on account of the matrimonial consent which [the wife] has given, and which she cannot retract" (People v Meli, 193 NYS 365, 366 [Sup Ct]).

Presently, over 40 States still retain some form of marital exemption for rape.^[6] While the marital exemption is subject to an equal protection challenge, because it classifies unmarried men differently than married men, the equal protection clause does not prohibit a State from making classifications, provided the statute does not arbitrarily burden a particular group of individuals (Reed v Reed, 404 US 71, 75-76). Where a statute draws a distinction based upon marital status, the classification must be reasonable and must be based upon "some ground of difference that rationally explains the different treatment" (Eisenstadt v Baird, 405 US 438, 447; People v Onofre, 51 N.Y.2d 476, 491, cert den 451 US 987).

We find that there is no rational basis for distinguishing between marital rape and nonmarital rape. The various rationales which have been asserted in defense of the exemption are either based upon archaic notions about the consent and property rights incident to marriage or are simply unable to withstand even the slightest scrutiny. We therefore declare the [164] marital exemption for rape in the New York statute to be unconstitutional.

Lord Hale's notion of an irrevocable implied consent by a married woman to sexual intercourse has been cited most frequently in support of the marital exemption ("Equal Protection Considerations", supra, n 6, 16 N Eng L Rev, at p 21). Any argument based on a supposed consent, however, is untenable. Rape is not simply a sexual act to which one party does not consent. Rather, it is a degrading, violent act which violates the bodily integrity of the victim and frequently causes severe, long-lasting physical and psychic harm (see Coker v Georgia, 433 US 584, 597-598; Note, Rape Reform and a Statutory Consent Defense, 74 J of Crim L & Criminology 1518, 1519, 1527-1528). To ever imply consent to such an act is irrational and absurd. Other than in the context of rape statutes, marriage has never been viewed as giving a husband the right to coerced intercourse on demand (see De Angelis v De Angelis, 54 AD2d 1088; "Abolishing The Marital Exemption", supra, at n 4, 1983 U of Ill L Rev, at p 207; "Marital Rape Exemption", supra, at n 5, 52 NYU L Rev, at pp 311-312). Certainly, then, a marriage license should not be viewed as a license for a husband to forcibly rape his wife with impunity. A married woman has the same right to control her own body as does an unmarried woman ("Equal Protection Considerations", supra, n 6, 16 N Eng L Rev, at pp 19-20; cf. Planned Parenthood v Danforth, 428 US 52). If a husband feels "aggrieved" by his wife's refusal to engage in sexual intercourse, he should seek relief in the courts governing domestic relations, not in "violent or forceful self-help" (State v Smith, 85 NJ 193, 206).

The other traditional justifications for the marital exemption were the common-law doctrines that a woman was the property of her husband and that the legal existence of the woman was "incorporated and consolidated into that of the husband" (1 Blackstone's Commentaries [1966 ed], p 430; see State v Smith, supra, at pp 204-205; "Marital Rape Exemption", supra, n 5, 52 NYU L Rev, at pp 309-310). Both these doctrines, of course, have long been rejected in this State. Indeed, "[n]owhere in the common-law world — [or] in any modern society — is a woman regarded as chattel or demeaned by denial of a separate legal identity and the dignity associated with recognition as a whole human being" (Trammel v United States, 445 US 40, 52).

Because the traditional justifications for the marital exemption no longer have any validity, other arguments have been advanced in its defense. The first of these recent rationales, [165] which is stressed by the People in this case, is that the marital exemption protects against governmental intrusion into marital privacy and promotes reconciliation of the spouses, and thus that elimination of the exemption would be disruptive to marriages. While protecting marital privacy and encouraging reconciliation are legitimate State interests, there is no rational relation between allowing a husband to forcibly rape his wife and these interests. The marital exemption simply does not further marital privacy because this right of privacy protects consensual acts, not violent sexual assaults (see Griswold v Connecticut, 381 US 479, 485-486; "Equal Protection Considerations", supra, n 6, 16 N Eng L Rev, at p 23). Just as a husband cannot invoke a right of marital privacy to escape liability for beating his wife,^[7] he cannot justifiably rape his wife under the guise of a right to privacy.

Similarly, it is not tenable to argue that elimination of the marital exemption would disrupt marriages because it would discourage reconciliation. Clearly, it is the violent act of rape and not the subsequent attempt of the wife to seek protection through the criminal justice system which "disrupts" a marriage (Weishaupt v Commonwealth, 227 Va 389, 315 SE2d 847, at p 855). Moreover, if the marriage has already reached the point where intercourse is accomplished by violent assault it is doubtful that there is anything left to reconcile (see Trammel v United States, 445 US 40, 52, supra; "Marital Rape Exemption", supra, n 5, 52 NYU L Rev, at p 315). This, of course, is particularly true if the wife is willing to bring criminal charges against her husband which could result in a lengthy jail sentence.

Another rationale sometimes advanced in support of the marital exemption is that marital rape would be a difficult crime to prove. A related argument is that allowing such prosecutions could lead to fabricated complaints by "vindictive" wives. The difficulty of proof argument is based on the problem of showing lack of consent. Proving lack of consent, however, is often the most difficult part of any rape prosecution, particularly where the rapist and the victim had a prior relationship (see "Spousal Exemption to Rape", supra, at n 4, 65 Marq L Rev, at p 125; "Marital Rape Exemption", supra, n 5, 52 NYU L Rev, at p 314). Similarly, the possibility that married women will fabricate complaints would seem to be no greater than the possibility of unmarried women doing so ("Marital Rape Exemption", supra, n 5, 52 NYU L Rev, at p 314; "Equal Protection Considerations", [166] supra, n 6, 16 N Eng L Rev, at p 24).^[8] The criminal justice system, with all of its built-in safeguards, is presumed to be capable of handling any false complaints. Indeed, if the possibility of fabricated complaints were a basis for not criminalizing behavior which would otherwise be sanctioned, virtually all crimes other than homicides would go unpunished.

The final argument in defense of the marital exemption is that marital rape is not as serious an offense as other rape and is thus adequately dealt with by the possibility of prosecution under criminal statutes, such as assault statutes, which provide for less severe punishment. The fact that rape statutes exist, however, is a recognition that the harm caused by a forcible rape is different, and more severe, than the harm caused by an ordinary assault (see "Marital Rape Exemption", supra, n 5, 52 NYU L Rev, at p 316; "Abolishing the Marital Exemption", supra, n 4, 1983 U of Ill L Rev, at p 208). "Short of homicide, [rape] is the `ultimate violation of self'" (Coker v Georgia, 433 US 584, 597 [citation omitted], supra). Under the Penal Law, assault is generally a misdemeanor unless either the victim suffers "serious physical injury" or a deadly weapon or dangerous instrument is used (Penal Law, §§ 120.00, 120.05, 120.10). Thus, if the defendant had been living with Denise at the time he forcibly raped and sodomized her he probably could not have been charged with a felony, let alone a felony with punishment equal to that for rape in the first degree.^[9]

Moreover, there is no evidence to support the argument that marital rape has less severe consequences than other rape. On the contrary, numerous studies have shown that marital rape is frequently quite violent and generally has more severe, traumatic effects on the victim than other rape (see, generally, Russell, Rape In Marriage, pp 190-199; "Rape Prosecution", supra, at n 6, [167] 7 Vt L Rev, at pp 45-46; "Abolishing the Marital Exemption", supra, at n 4, 1983 U of Ill L Rev, at p 209).

Among the recent decisions in this country addressing the marital exemption, only one court has concluded that there is a rational basis for it (see People v Brown, 632 P2d 1025 [Col]).^[10] We agree with the other courts which have analyzed the exemption, which have been unable to find any present justification for it (see People v De Stefano, 121 Misc 2d 113; Commonwealth v Chretien, 383 Mass 123; State v Smith, 85 NJ 193, supra; Weishaupt v Commonwealth, 227 Va 389, supra; State v Rider, 449 So 2d 903 [Fla App]; State v Smith, 401 So 2d 1126 [Fla App]). Justice Holmes wrote: "It 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" (Holmes, The Path of the Law, 10 Harv L Rev 457, 469). This statement is an apt characterization of the marital exemption; it lacks a rational basis, and therefore violates the equal protection clauses of both the Federal and State Constitutions (US Const, 14th Amdt, § 1; NY Const, art I, § 11).

B. THE EXEMPTION FOR FEMALES

Under the Penal Law only males can be convicted of rape in the first degree.^[11] Insofar as the rape statute applies to acts of "sexual intercourse", which, as defined in the Penal Law (see Penal Law, § 130.00) can only occur between a male and a female, it is true that a female cannot physically rape a female and that therefore there is no denial of equal protection when punishing only males for forcibly engaging in sexual intercourse with females.^[12] The equal protection issue, however, stems from the fact that the statute applies to males who forcibly rape females but does not apply to females who forcibly rape males.

Rape statutes historically applied only to conduct by males against females, largely because the purpose behind the proscriptions [168] was to protect the chastity of women and thus their property value to their fathers or husbands (see State v Smith, 85 NJ, at p 204, supra; 2 Burdick, Law of Crime, pp 218-225; Comment, Rape Laws, Equal Protection, and Privacy Rights, 54 Tulane L Rev 456, 457 [hereafter cited as "Rape Laws"]). New York's rape statute has always protected only females, and has thus applied only to males (see Penal Law, § 130.35; 1909 Penal Law, § 2010; 1881 Penal Code, tit X, ch II, § 278). Presently New York is one of only 10 jurisdictions that does not have a gender-neutral statute for forcible rape.^[13]

A statute which treats males and females differently violates equal protection unless the classification is substantially related to the achievement of an important governmental objective (Caban v Mohammed, 441 US 380, 388; Craig v Boren, 429 US 190, 197; People v Whidden, 51 N.Y.2d 457, 460, app dsmd 454 US 803). This test applies whether the statute discriminates against males or against females (Caban v Mohammed, 441 US, at p 394, supra; Orr v Orr, 440 US 268, 279, supra; People v Whidden, supra). The People bear the burden of showing both the existence of an important objective and the substantial relationship between the discrimination in the statute and that objective (Wengler v Druggists Mut. Ins. Co., 446 US 142, 151-152; Caban v Mohammed, 441 US, at p 393, supra). This burden is not met in the present case, and therefore the gender exemption also renders the statute unconstitutional.

The first argument advanced by the People in support of the exemption for females is that because only females can become pregnant the State may constitutionally differentiate between forcible rapes of females and forcible rapes of males. This court and the United States Supreme Court have upheld statutes which subject males to criminal liability for engaging in sexual intercourse with underage females without the converse being true (People v Whidden, supra; Michael M. v Sonoma County Superior Ct., 450 US 464, supra). The rationale behind these decisions was that the primary purpose of such "statutory rape" laws is to protect against the harm caused by teenage pregnancies, there being no need to provide the same protection to young males (see Michael M. v Sonoma County Superior Ct., 450 US, at pp 470-473, supra; People v Whidden, 51 NY2d, at p 461, supra).

[169] There is no evidence, however, that preventing pregnancies is a primary purpose of the statute prohibiting forcible rape, nor does such a purpose seem likely (see "Rape Laws", op. cit., 54 Tulane L Rev, at p 467). Rather, the very fact that the statute proscribes "forcible compulsion" shows that its overriding purpose is to protect a woman from an unwanted, forcible, and often violent sexual intrusion into her body (cf. Ballard v United States, 430 A2d 483 [DC App]; "Rape Laws", op. cit., at p 468).^[14] Thus, due to the different purposes behind forcible rape laws and "statutory" (consensual) rape laws, the cases upholding the gender discrimination in the latter are not decisive with respect to the former, and the People cannot meet their burden here by simply stating that only females can become pregnant.

The People also claim that the discrimination is justified because a female rape victim "faces the probability of medical, sociological, and psychological problems unique to her gender". This same argument, when advanced in support of the discrimination in the statutory rape laws, was rejected by this court in People v Whidden (51 NY2d, at p 461, supra), and it is no more convincing in the present case. "[A]n `"archaic and overbroad" generalization' * * * which is evidently grounded in long-standing stereotypical notions of the differences between the sexes, simply cannot serve as a legitimate rationale for a penal provision that is addressed only to adult males" (id., quoting Craig v Boren, 429 US, at p 198, supra; cf. Orr v Orr, 440 US, at p 283, supra; Tribe, Constitutional Law, p 1066).

Finally, the People suggest that a gender-neutral law for forcible rape is unnecessary, and that therefore the present law is constitutional, because a woman either cannot actually rape a man or such attacks, if possible, are extremely rare. Although the "physiologically impossible" argument has been accepted by several courts (see People v Reilly, 85 Misc 2d 702, 706-707; Brooks v State, 24 Md App 334; Finley v State, 527 SW2d 553 [Tex Crim App]), it is simply wrong. The argument is premised on the notion that a man cannot engage in sexual intercourse unless he is sexually aroused, and if he is aroused then he is consenting to intercourse. "Sexual intercourse" however, "occurs upon any penetration, however slight" (Penal Law, § 130.00); this degree of contact can be achieved without a male being aroused and thus without his consent.

As to the "infrequency" argument, while forcible sexual assaults by females upon males are undoubtedly less common than [170] those by males upon females this numerical disparity cannot by itself make the gender discrimination constitutional. Women may well be responsible for a far lower number of all serious crimes than are men, but such a disparity would not make it permissible for the State to punish only men who commit, for example, robbery (cf. Craig v Boren, 429 US, at pp 200-204, supra).

To meet their burden of showing that a gender-based law is substantially related to an important governmental objective the People must set forth an "`exceedingly persuasive justification'" for the classification (Mississippi Univ. for Women v Hogan, 458 US 718, 724; Kirchberg v Feenstra, 450 US 455, 461), which requires, among other things, a showing that the gender-based law serves the governmental objective better than would a gender-neutral law (Orr v Orr, 440 US, at pp 281-282, supra; "Rape Laws", op. cit., 54 Tulane L Rev, at p 468; cf. Michael M. v Sonoma County Superior Ct., 450 US, at p 464, supra). The fact that the act of a female forcibly raping a male may be a difficult or rare occurrence does not mean that the gender exemption satisfies the constitutional test. A gender-neutral law would indisputably better serve, even if only marginally, the objective of deterring and punishing forcible sexual assaults. The only persons "benefitted" by the gender exemption are females who forcibly rape males. As the Supreme Court has stated, "[a] gender-based classification which, as compared to a gender-neutral one, generates additional benefits only for those it has no reason to prefer cannot survive equal protection scrutiny" (Orr v Orr, 440 US, at pp 282-283, supra).

Accordingly, we find that section 130.35 of the Penal Law violates equal protection because it exempts females from criminal liability for forcible rape.

V

Having found that the statutes for rape in the first degree and sodomy in the first degree are unconstitutionally underinclusive, the remaining issue is the appropriate remedy for these equal protection violations. When a statute is constitutionally defective because of underinclusion, a court may either strike the statute, and thus make it applicable to nobody, or extend the coverage of the statute to those formerly excluded (Califano v Westcott, 443 US 76, 89; Welsh v United States, 398 US 333, 361 [Harlan, J., concurring]; Matter of Burrows v Board of Assessors, 64 N.Y.2d 33; Developments in the Law — Equal Protection, 82 Harv L Rev 1065, 1136). Accordingly, the unconstitutionality of [171] one part of a criminal statute does not necessarily render the entire statute void (see United States v Jackson, 390 US 570, 585; People v Mancuso, 255 N.Y. 463, 473).

This court's task is to discern what course the Legislature would have chosen to follow if it had foreseen our conclusions as to underinclusiveness (Matter of Westinghouse Elec. Corp. v Tully, 63 N.Y.2d 191). As Judge Cardozo wrote over 50 years ago, "`The question is in every case whether the Legislature, if partial invalidity had been foreseen, would have wished the statute to be enforced with the invalid part exscinded, or rejected altogether'" (People v Mancuso, 255 N.Y. 463, 474, supra; cf. United States v Jackson, 390 US 570, 585, supra ["`(u)nless it is evident that the legislature would not have enacted those provisions which are within its power, independently of that which is not, the invalid part may be dropped if what is left is fully operative as a law'"]). These principles of severance apply as well where elimination of an invalid exemption will impose burdens on those not formerly burdened by the statute (see Orr v Orr, 440 US 268, 271-272, 283-284, supra; Goodell v Goodell, 77 AD2d 684; Childs v Childs, 69 AD2d 406), and where the exemption is part of a criminal statute (see Skinner v Oklahoma, 316 US 535, 543, supra; State v Books, 225 NW2d 322, 325 [Iowa]; cf. Welsh v United States, 398 US, at p 361 [Harlan, J., concurring], supra).

The question then is whether the Legislature would prefer to have statutes which cover forcible rape and sodomy, with no exemption for married men who rape or sodomize their wives and no exception made for females who rape males, or instead to have no statutes proscribing forcible rape and sodomy. In any case where a court must decide whether to sever an exemption or instead declare an entire statute a nullity it must look at the importance of the statute, the significance of the exemption within the over-all statutory scheme, and the effects of striking down the statute (Califano v Westcott, 443 US, at p 90, supra; Welsh v United States, 398 US, at pp 365, 366 [Harlan, J., concurring], supra; Developments in the Law — Equal Protection, 82 Harv L Rev 1065, 1136-1137). Forcible sexual assaults have historically been treated as serious crimes and certainly remain so today (see, generally, Coker v Georgia, 433 US 584, supra; 1 Callaghan's Criminal Law in New York [Groble, 3d ed], § 19:01). Statutes prohibiting such behavior are of the utmost importance, and to declare such statutes a nullity would have a disastrous effect on the public interest and safety. The inevitable conclusion is that the Legislature would prefer to eliminate [172] the exemptions and thereby preserve the statutes. Accordingly we choose the remedy of striking the marital exemption from sections 130.35 and 130.50 of the Penal Law and the gender exemption from section 130.35 of the Penal Law, so that it is now the law of this State that any person who engages in sexual intercourse or deviate sexual intercourse with any other person by forcible compulsion is guilty of either rape in the first degree or sodomy in the first degree. Because the statutes under which the defendant was convicted are not being struck down, his conviction is affirmed.

Though our decision does not "create a crime", it does, of course, enlarge the scope of two criminal statutes. We recognize that a court should be reluctant to expand criminal statutes, due to the danger of usurping the role of the Legislature, but in this case overriding policy concerns dictate our following such a course in light of the catastrophic effect that striking down the statutes and thus creating a hiatus would have (cf. Goodell v Goodell, 77 AD2d, at p 685, supra). Courts in other States have in numerous cases applied these same principles in eliminating an unconstitutional exception from a criminal statute and thereby enlarging the scope of the statute.^[15] The decision most similar factually to the present one comes from the Alaska Supreme Court in Plas v State (598 P2d 966). That court addressed an equal protection challenge by a female prostitute to a statute which criminalized prostitution, and defined it as a female offering her body for sexual intercourse for hire. The court agreed with the defendant that the statute violated equal protection because it covered only females, but chose to remedy this underinclusion by striking the definition, thereby expanding the statute to cover any person who engaged in prostitution, and affirmed her conviction.^[16]

The defendant cannot claim that our decision to retain the rape and sodomy statutes, and thereby affirm his conviction, denies him due process of the law. The due process clause of the [173] Fourteenth Amendment requires that an accused have had fair warning at the time of his conduct that such conduct was made criminal by the State (see Bouie v City of Columbia, 378 US 347). Defendant did not come within any of the exemptions which we have stricken, and thus his conduct was covered by the statutes as they existed at the time of his attack on Denise.

Neither can it be said that by the affirmance of his conviction the defendant is deprived of a constitutionally protected right to equal protection. The remedy chosen by our opinion is to extend the coverage of the provisions for forcible rape and sodomy to all those to whom these provisions can constitutionally be applied. While this remedy does treat the defendant differently than, for example, a married man who, while living with his wife, raped her prior to this decision, the distinction is rational inasmuch as it is justified by the limitations imposed on our remedy by the notice requirements of the due process clause (US Const, 14th Amdt), and the prohibition against ex post facto laws (US Const, art I, § 10). Thus, for purposes of choosing the proper remedy, the defendant is simply not similarly situated to those persons who were not within the scope of the statutes as they existed prior to our decision.

To reverse the defendant's conviction would mean that all those persons now awaiting trial for forcible rape or sodomy would be entitled to dismissal of the indictment. Indeed if we were to reverse no person arrested for forcible rape or sodomy prior to the date of this decision could be prosecuted for that offense, and every person already convicted of forcible rape or sodomy who raised the equal protection challenge would be entitled to have the conviction vacated. As the equal protection clause does not require us to reach such a result, we decline to do so.

Accordingly, the order of the Appellate Division should be affirmed.

Order affirmed.

[1] The defendant and Denise were divorced several months after the assault in the motel room.

[2] The other prerequisite for finding a husband and wife to be "not married" based on an order of protection is that they were in fact living apart at the time of the incident. This is a question of fact which was resolved against the defendant by the jury and will not be disturbed by this court.

[3] Although the discussion of the marital exemption will focus on rape, the constitutional analysis is applicable to sodomy as well.

[4] The influence of Hale's statement, despite its failure to cite any authority has been discussed by several courts and commentators (see State v Smith, 85 NJ 193, 199; Commonwealth v Chretien, 383 Mass 123, 124, n 1; State v Rider, 449 So 2d 903, 904 [Fla App]; Note, Abolishing The Marital Exemption For Rape: A Statutory Proposal, 1983 U of Ill L Rev 201, 202 [hereafter cited as "Abolishing the Marital Exemption"]; Note, Spousal Exemption To Rape, 65 Marq L Rev 120, 121 [hereafter cited as "Spousal Exemption"]). Interestingly, Hale's statement has not been fully accepted in England (see Weishaupt v Commonwealth, 227 Va 389, 315 SE2d 847, 850-852).

[5] See, generally, State v Smith, 85 NJ, at p 200; "Spousal Exemption", supra, at n 4, at pp 129-130; Note, Marital Rape Exemption, 52 NYU L Rev 306, 309 (hereafter cited as "Marital Rape Exemption").

[6] Statutes in nine States provide a complete exemption to rape as long as there is a valid marriage (Alabama, Arkansas, Kansas, Montana, South Dakota, Texas, Vermont, Washington, West Virginia). In 26 other States, statutes provide for a marital exemption but with certain exceptions, most typically where the spouses are living apart pursuant to either a court order or a separation agreement (Alaska, Arizona, Colorado, Idaho, Indiana, Kentucky, Louisiana, Maine, Maryland, Michigan, Minnesota, Missouri, Nevada, New Mexico, New York, North Carolina, North Dakota, Ohio, Oklahoma, Pennsylvania, Rhode Island, South Carolina, Tennessee, Utah, Wyoming, Wisconsin). In three other States (Georgia, Mississippi, Nebraska) and the District of Columbia the exemption appears to still exist as a common-law doctrine, and it may still have a limited application in Virginia (see Weishaupt v Commonwealth, 227 Va 389). Finally, in Connecticut, Delaware, Hawaii, and Iowa, there is a marital exemption for some, but not all degrees of forcible rape (see, generally, for statutory references, Schwartz, Spousal Exemption for Criminal Rape Prosecution, 7 Vt L Rev 33, 38-41 [hereafter cited as "Rape Prosecution"]; Note, Clancy, Equal Protection Considerations of the Spousal Sexual Assault Exclusion, 16 N Eng L Rev 1, 2-3, n 4 [hereafter cited as "Equal Protection Considerations"]; "Abolishing the Marital Exemption", supra, at n 4, at pp 203-205).

[7] A wife may sue her husband for torts he commits against her, including assault and battery (General Obligations Law, § 3-313).

[8] The stigma and other difficulties associated with a woman reporting a rape and pressing charges probably deter most attempts to fabricate an incident; rape remains a grossly under-reported crime (see Note, Rape Reform and a Statutory Consent Defense, 74 J of Crim L & Criminology 1518, 1519, n 7; "Marital Rape Exemption", supra, n 5, 52 NYU L Rev, at pp 314-315; "Spousal Exemption", supra, n 4, 65 Marq L Rev, at p 126).

[9] Rape in the first degree and sodomy in the first degree are "Class B violent felony offenses", the minimum sentence for which is a jail term of 2-6 years, and the maximum sentence for which is a jail term of 8 1/3-25 years (Penal Law, § 70.02). The defendant possibly could have been charged with coercion in the first degree, a class D felony (Penal Law, § 135.65), but not all forcible rapes meet all the elements of the coercion statute (see People v Greer, 42 N.Y.2d 170, 174-175), and thus if a husband cannot be prosecuted under the rape statute when he forcibly rapes his wife he may be able to escape prosecution for any felony.

[10] The Colorado Supreme Court, relying on a 1954 Law Review comment, stated that the marital exemption "may remove a substantial obstacle to the resumption of normal marital relations" and "averts difficult emotional issues and problems of proof inherent in this sensitive area" (632 P2d, at p 1027). We have considered, and rejected, both of these arguments.

[11] The sodomy statute applies to any "person" and is thus gender neutral. Defendant's gender-based equal protection challenge is therefore addressed only to the rape statute.

[12] A female can, however, be convicted under the present statute as an accomplice to a forcible rape of a female (Penal Law, §§ 20.00, 20.05, subd 3; People v Evans, 58 AD2d 919).

[13] The other nine jurisdictions are Alabama, Delaware, District of Columbia, Georgia, Idaho, Kansas, Mississippi, Oregon, and Virginia. Some of these other States, like New York (see Penal Law, § 130.65), have other statutes which proscribe conduct including the forcible rape of a male by a female and which have less severe punishments than for forcible rape of a female by a male.

[14] In at least two States there is a specific statute which states that "[t]he essential guilt of rape consists in the outrage to the person and feelings of the female" (Okla Stats Ann, tit 21, § 1113; Idaho Code Ann, § 18-6103).

[15] See Plas v State, 598 P2d 966 (Alaska); People v Henry, 131 Cal App 82; State v Books, 225 NW2d 322 (Iowa); City of Duluth v Sarette, 283 NW2d 533 (Minn); Tom & Jerry v Nebraska Liq. Control Comm., 183 Neb 410; State v Fowler, 193 NC 290; State v McLeary, 65 NC App 174, affd 311 NC 397; State v Burgun, 49 Ohio App 2d 112; State v Watkins, 259 SC 285, vacated on other grounds 413 US 905; Matter of Tullos, 541 SW2d 167 (Tex Crim App).

[16] We note also that in the decision previously discussed which found a rational basis for the marital exemption, People v Brown (632 P2d 1025 [Col]), the court stated that if it did find that the exemption was unconstitutional it would strike just the exemption and leave intact the sexual assault statute which would then cover all persons (id., at p 1027).

No. 07-290.

DISTRICT OF COLUMBIA et al. v. HELLER

Decided June 26, 2008

Argued March 18, 2008

Walter Dellinger argued the cause for petitioners. With him on the briefs were Peter J. Nickles, Attorney General for the District of Columbia, Linda Singer, former Attorney General for the District of Columbia, Alan B. Morrison, Todd S. Kim, Solicitor General, Donna M. Murasky, Deputy Solicitor General, Lutz Alexander Prager, Robert A. Long, Jr., Jonathan L. Marcus, Thomas C. Goldstein, Matthew M. Shors, and Mark S. Davies.

Alan Gura argued the cause for respondent. With him on the brief were Robert A. Levy and Clark M. Neily III.

Former Solicitor General Clement argued the cause for the United States as amicus curiae urging affirmance. With him on the brief were Acting Solicitor General Garre, Assistant Attorney General Fisher, Acting Assistant Attor­ney General Bucholtz, Malcolm L. Stewart, and Stephen R. Rubenstein.*

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT

& alia, J., delivered the opinion of the Court, in which Roberts, C. J., and Kennedy, Thomas, and Auto, JJ., joined. Stevens, J., filed a dis­senting opinion, in which Souter, Ginsburg, and Breyer, JJ., joined, post, p. 636. Breyer, J., filed a dissenting opinion, in which Stevens, Souter, and Ginsburg, JJ., joined, post, p. 681.

*

Briefs of amici curiae urging reversal were filed for the City of Chi­cago et al. by Andrew L. Frey, David M. Gossett, Benna Ruth Solomon, Patrick J. Rocks, and Lee Ann Lowder; for the American Academy of Pediatrics et al. by Bert H. Deixler and Lary Alan Rappaport; for the American Bar Association by William H. Neukom, Robert N. Weiner, and John A. Freedman; for the American Jewish Committee et al. by Jeffrey A. Lamken, Allyson N. Ho, D. Randall Benn, Jeffrey L. Kessler, William C. Heuer, Robert E. Cortes, and Sayre Weaver; for the Brady Center to Prevent Gun Violence et al. by John Payton, Jonathan G. Cedarbaum, Dennis A. Henigan, Brian J. Siebel, and Jonathan E. Lowy; for the DC Appleseed Center for Law and Justice et al. by Jonathan S. Franklin; for District Attorneys by Alexis S. Coil-Very, Simona G. Strauss, the Honor­able Robert M. Morgenthau, Mark Dwyer, the Honorable Charles J. Hynes, and Laurie L. Levenson; for Former Department of Justice Offi­cials by Messrs. Long and Marcus; for Major American Cities et al. by Jeffrey L. Bleich, George A. Nilson, William R. Phelan, Jr., Debra Lynn Gonzales, Michael A. Cardozo, Leonard J. Koerner, Richard Feder, Den­nis J. Herrera, Danny Chou, and John Daniel Reaves; for Members of Congress by Scott E. Gant and Christopher L. Hayes; for the NAACP Legal Defense & Educational Fund, Inc., by Theodore M. Shaw, Jacque­line A. Berrien, Victor A. Bolden, Debo P. Adegbile, Michael B. due Leeuw, and Darcy M. Goddard; for the National Network to End Domestic Vio­lence et al. by Bruce D. Sokler; for Professors of Criminal Justice by Al­bert W. Wallis; for Professors of Linguistics and English by Charles M. Dyke, Charles M. English, Jeffrey R. Gans, Elizabeth M. Walsh, and Frederick L. Whitmer; for the Violence Policy Center et al. by Daniel G. Jarcho; and for Jack N. Rakove et al. by Carl T. Bogus.

Briefs of amici curiae urging affirmance were filed for the State of New York et al. by Andrew M. Cuomo, Attorney General of New York, Barbara D. Underwood, Solicitor General, Michelle Aronowitz, Deputy Solicitor General, Sasha Samberg-Champion, Assistant Solicitor General, by Ro­berto J. Sdnchez-Ramos, Secretary of Justice of Puerto Rico, and by the Attorneys General for their respective States as follows: Mark J. Bennett of Hawaii, Douglas F. Gansler of Maryland, Martha Coakley of Massachu­setts, and Anne Milgram of New Jersey; for the State of Texas et al. by Greg Abbott, Attorney General of Texas, R. Ted Cruz, Solicitor General, Kent C. Sullivan, First Assistant Attorney General, David S. Morales, Deputy Attorney General for Civil Litigation, Sean D. Jordan, Deputy Solicitor General, Michael P. Murphy, Assistant Solicitor General, and by the Attorneys General for their respective States as follows: Troy King of Alabama, Talis J. Colberg of Alaska, Dustin McDaniel of Arkansas, John W. Suthers of Colorado, Bill McCollum of Florida, Thurbert E. Baker of Georgia, Lawrence G. Wasden of Idaho, Steve Carter of Indiana, Stephen N. Six of Kansas, Jack Conway of Kentucky, James D. Caldwell of Louisi­ana, Michael A. Cox of Michigan, Lori Swanson of Minnesota, Jim Hood of Mississippi, Jeremiah W (Jay) Nixon of Missouri, Mike McGrath of Montana, Jon Bruning of Nebraska, Kelly A. Ayotte of New Hampshire, Gary K. King of New Mexico, Wayne Stenehjem of North Dakota, Marc Dann of Ohio, W. A. Drew Edmondson of Oklahoma, Thomas W. Corbett, Jr., of Pennsylvania, Henry McMaster of South Carolina, Lawrence E. Long of South Dakota, Mark L. Shurtleff of Utah, Robert F. McDonnell of Virginia, Robert M. McKenna of Washington, Darrell V. McGraw, Jr., of West Virginia, and Bruce A. Salzburg of Wyoming; for the State of Wisconsin by J. B. Van Hollen, Attorney General of Wisconsin, and Chris­topher G. Wren and Steven R Means, Assistant Attorneys General; for Academics et al. by Richard E. Gardiner; for Academics for the Second Amendment by David T. Hardy, Joseph Edward Olson, Daniel D. Polsby, Henry C. Karlson, Randy E. Barnett, and Michael Ian Krauss; for the Alaska Outdoor Council et al. by Jack Brian McGee; for the American Center for Law and Justice by Jay Alan Sekulow, Stuart J. Roth, Colby M. May, and James M. Henderson, Sr.; for the American Civil Rights Union by Peter J. Ferrara; for the American Legislative Exchange by Robert Dowlut; for the Association of American Physicians and Surgeons, Inc., by Andrew L. Schlafly; for the Cato Institute et al. by C. Kevin Marshall; for the Center for Individual Freedom by Renee L. Giachino; for the Citizens Committee for the Right to Keep and Bear Arms et al. by Jeffrey B. Teichert; for the Congress of Racial Equality by Stefan Bijan Tahmassebi; for Criminologists et al. by Marc James Ayers and Don B. Kates; for Disabled Veterans for Self-Defense et al. by James H. Warner; for the Eagle Forum Education & Legal Defense Fund by Douglas G. Smith; for the Foundation for Free Expression by Deborah J. Dewart and James L. Hirsen; for the Foundation for Moral Law by Gregory M. Jones and Benjamin D. DuPré; for the Goldwater Institute by Bradford A. Ber­enson, Ileana Maria Ciobanu, and Clint Bolick; for Grass Roots of South Carolina, Inc., by R. Jeffords Barham; for Gun Owners of America, Inc., et al. by Herbert W. Titus and William J. Olson; for the Heartland Insti­tute by Richard K Willard; for the Institute for Justice by Erik S. Jaffe, William H. Mellor, and Steven M. Simpson; for the International Law Enforcement Educators and Trainers Association et al. by David B. Kopel and C. D. Michel; for International Scholars by James R. Schaller; for Jews for the Preservation of Firearms Ownership by Daniel L. Schmutter; for the Libertarian National Committee, Inc., by Bob Barr; for the Mari­copa County Attorney’s Office et al. by Daryl Manhart, Andrew P. Thomas, Arthur E. Mallory, Hy Forgeron, and Bryan A. Skoric; for the Mountain States Legal Foundation by William Perry Pendley; for the National Rifle Association et al. by Stephen D. Poss, Kevin P. Martin, and Scott B. Nardi; for the National Shooting Sports Foundation, Inc., by Lawrence G. Keane, Christopher P. Johnson, and Kanchana Wangkeo Leung; for Ohio Concealed Carry Permitholders et al. by Jeanette M. Moll; for the Paragon Foundation, Inc., by Paul M. Kienzle III; for Pink Pistols et al. by Michael B. Minton; for Retired Military Officers by Andrew G. McBride; for the Rutherford Institute by John W. Whitehead; for the Second Amendment Foundation by Nelson Lund; for the Southeastern Legal Foundation, Inc., et al. by Shannon Lee Goessling; for State Fire­arm Associations by David J. Schenck; for Virginial774.org by Richard E. Hill, Jr.; for Major General John D. Altenburg, Jr., et al. by C. Allen Foster, Robert P. Charrow, John D. Altenburg, Jr., and John P. Ein­wechter; for Dr. Suzanna Gratia Hupp, D. C., et al. by Kelly J. Shackelford; for the President Pro Tempore of the Senate of Pennsylvania Joseph B. Scarnati III by John P. Krill, Jr., and Linda J. Shorey; and for 55 Members of the United States Senate et al. by Stephen P. Halbrook.

Briefs of amici curiae were filed for the American Public Health Associ­ation et al. by Alison M. Tucher; for GeorgiaCarry.Org, Inc., by John R. Monroe and Edward A. Stone; for Erwin Chemerinsky et al. by Mr. Chemerinsky, pro se; and for 126 Women State Legislators et al. by M. Carol Bambery.

Justice Scalia

delivered the opinion of the Court.

We consider whether a District of Columbia prohibition on the possession of usable handguns in the home violates the Second Amendment to the Constitution.

I

The District of Columbia generally prohibits the posses­sion of handguns. It is a crime to carry an unregistered firearm, and the registration of handguns is prohibited. See D. C. Code §§7-2501.01(12), 7-2502.01(a), 7-2502.02(a)(4) (2001). Wholly apart from that prohibition, no person may carry a handgun without a license, but the chief of police may issue licenses for 1-year periods. See §§22-4504(a), 22-4506. District of Columbia law also requires residents to keep their lawfully owned firearms, such as registered long guns, “unloaded and disassembled or bound by a trigger lock or similar device” unless they are located in a place of business or are being used for lawful recreational activities. See § 7-2507.02.1

Respondent Dick Heller is a D. C. special police officer au­thorized to carry a handgun while on duty at the Thurgood Marshall Judiciary Building. He applied for a registration certificate for a handgun that he wished to keep at home, but the District refused. He thereafter filed a lawsuit in the Federal District Court for the District of Columbia seeking, on Second Amendment grounds, to enjoin the city from en­forcing the bar on the registration of handguns, the licensing requirement insofar as it prohibits the carrying of a firearm in the home without a license, and the trigger-lock require­ment insofar as it prohibits the use of “functional firearms within the home.” App. 59a. The District Court dismissed respondent’s complaint, see Parker v. District of Columbia, 311 F. Supp. 2d 103, 109 (2004). The Court of Appeals for the District of Columbia Circuit, construing his complaint as seeking the right to render a firearm operable and carry it about his home in that condition only when necessary for self-defense,2 reversed, see Parker v. District of Columbia, 478 F. 3d 370, 401 (2007). It held that the Second Amend­ment protects an individual right to possess firearms and that the city’s total ban on handguns, as well as its require­ment that firearms in the home be kept nonfunctional even when necessary for self-defense, violated that right. See id., at 395, 399-401. The Court of Appeals directed the Dis­trict Court to enter summary judgment for respondent.

We granted certiorari. 552 U. S. 1035 (2007).

II

We turn first to the meaning of the Second Amendment.

A

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.” In interpreting this text, we are guided by the principle that “[t]he Constitution was written to be understood by the vot­ers; its words and phrases were used in their normal and ordinary as distinguished from technical meaning.” United States v. Sprague, 282 U. S. 716, 731 (1931); see also Gibbons v. Ogden, 9 Wheat. 1, 188 (1824). Normal meaning may of course include an idiomatic meaning, but it excludes secret or technical meanings that would not have been known to ordinary citizens in the founding generation.

The two sides in this case have set out very different in­terpretations of the Amendment. Petitioners and today’s dissenting Justices believe that it protects only the right to possess and carry a firearm in connection with militia service. See Brief for Petitioners 11-12; post, at 636-637 (Stevens, J., dissenting). Respondent argues that it pro­tects an individual right to possess a firearm unconnected with service in a militia, and to use that arm for traditionally lawful purposes, such as self-defense within the home. See Brief for Respondent 2-4.

The Second Amendment is naturally divided into two parts: its prefatory clause and its operative clause. The for­mer does not limit the latter grammatically, but rather an­nounces a purpose. The Amendment could be rephrased, “Because a well regulated Militia is necessary to the security of a free State, the right of the people to keep and bear Arms shall not be infringed.” See J. Tiffany, A Treatise on Gov­ernment and Constitutional Law §585, p. 394 (1867); Brief for Professors of Linguistics and English as Amici Curiae 3 (hereinafter Linguists’ Brief). Although this structure of the Second Amendment is unique in our Constitution, other legal documents of the founding era, particularly individual-­rights provisions of state constitutions, commonly included a prefatory statement of purpose. See generally Volokh, The Commonplace Second Amendment, 73 N. Y. U. L. Rev. 793, 814-821 (1998).

Logic demands that there be a link between the stated purpose and the command. The Second Amendment would be nonsensical if it read, “A well regulated Militia, being nec­essary to the security of a free State, the right of the people to petition for redress of grievances shall not be infringed.” That requirement of logical connection may cause a prefa­tory clause to resolve an ambiguity in the operative clause. (“The separation of church and state being an important ob­jective, the teachings of canons shall have no place in our jurisprudence.” The preface makes clear that the operative clause refers not to canons of interpretation but to clergy­men.) But apart from that clarifying function, a prefatory clause does not limit or expand the scope of the operative clause. See F. Dwarris, A General Treatise on Statutes 268-269 (P. Potter ed. 1871); T. Sedgwick, The Interpretation and Construction of Statutory and Constitutional Law 42-45 (2d ed. 1874).3 “ ‘It is nothing unusual in acts ... for the enacting part to go beyond the preamble; the remedy often extends beyond the particular act or mischief which first sug­gested the necessity of the law.'” J. Bishop, Commentaries on Written Laws and Their Interpretation § 51, p. 49 (1882) (quoting Rex v. Marks, 3 East 157, 165, 102 Eng. Rep. 557, 560 (K. B. 1802)). Therefore, while we will begin our textual analysis with the operative clause, we will return to the pref­atory clause to ensure that our reading of the operative clause is consistent with the announced purpose.4

1. Operative Clause.

a. “Right of the People.” The first salient feature of the operative clause is that it codifies a “right of the people.” The unamended Constitution and the Bill of Rights use the phrase “right of the people” two other times, in the First Amendment’s Assembly-and-Petition Clause and in the Fourth Amendment’s Search-and-Seizure Clause. The Ninth Amendment uses very similar terminology (“The enu­meration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the peo­ple”). All three of these instances unambiguously refer to individual rights, not “collective” rights, or rights that may be exercised only through participation in some corporate body.5

Three provisions of the Constitution refer to “the people” in a context other than “rights” — the famous preamble (“We the people”), § 2 of Article I (providing that “the people” will choose members of the House), and the Tenth Amendment (providing that those powers not given the Federal Govern­ment remain with “the States” or “the people”). Those pro­visions arguably refer to “the people” acting collectively— but they deal with the exercise or reservation of powers, not rights. Nowhere else in the Constitution does a “right” attributed to “the people” refer to anything other than an individual right.6

What is more, in all six other provisions of the Consti­tution that mention “the people,” the term unambiguously refers to all members of the political community, not an un­specified subset. As we said in United States v. Verdugo-­Urquidez, 494 U. S. 259, 265 (1990):

“ ‘[T]he people’ seems to have been a term of art em­ployed in select parts of the Constitution. . . . [Its uses] sugges[t] that ‘the people’ protected by the Fourth Amendment, and by the First and Second Amendments, and to whom rights and powers are reserved in the Ninth and Tenth Amendments, refers to a class of per­sons who are part of a national community or who have otherwise developed sufficient connection with this country to be considered part of that community.”

This contrasts markedly with the phrase “the militia” in the prefatory clause. As we will describe below, the “militia” in colonial America consisted of a subset of “the people” — those who were male, able bodied, and within a certain age range. Reading the Second Amendment as protecting only the right to “keep and bear Arms” in an organized militia therefore fits poorly with the operative clause’s description of the holder of that right as “the people.”

We start therefore with a strong presumption that the Second Amendment right is exercised individually and be­longs to all Americans.

b. “Keep and Bear Arms.” We move now from the holder of the right — “the people” — to the substance of the right: “to keep and bear Arms.”

Before addressing the verbs “keep” and “bear,” we inter­pret their object: “Arms.” The 18th-century meaning is no different from the meaning today. The 1773 edition of Sam­uel Johnson’s dictionary defined “arms” as “[wjeapons of of-­fence, or armour of defence.” 1 Dictionary of the English Language 106 (4th ed.) (reprinted 1978) (hereinafter John­son). Timothy Cunningham’s important 1771 legal diction­ary defined “arms” as “any thing that a man wears for his defence, or takes into his hands, or useth in wrath to cast at or strike another.” 1 A New and Complete Law Dictionary; see also N. Webster, American Dictionary of the English Language (1828) (reprinted 1989) (hereinafter Webster) (similar).

The term was applied, then as now, to weapons that were not specifically designed for military use and were not em­ployed in a military capacity. For instance, Cunningham’s legal dictionary gave as an example of usage: “Servants and labourers shall use bows and arrows on Sundays, &c. and not bear other arms.” See also, e.g., An Act for the trial of Negroes, 1797 Del. Laws ch. XLIII, § 6, in 1 First Laws of the State of Delaware 102, 104 (J. Cushing ed. 1981 (pt. 1)); see generally State v. Duke, 42 Tex. 455, 458 (1874) (citing decisions of state courts construing “arms”). Although one founding-era thesaurus limited “arms” (as opposed to “weap­ons”) to “instruments of offence generally made use of in war,” even that source stated that all firearms constituted “arms.” 1 J. Trusler, The Distinction Between Words Es­teemed Synonymous in the English Language 37 (3d ed. 1794) (emphasis added).

Some have made the argument, bordering on the frivolous, that only those arms in existence in the 18th century are protected by the Second Amendment. We do not interpret constitutional rights that way. Just as the First Amend­ment protects modern forms of communications, e. g., Reno v. American Civil Liberties Union, 521 U. S. 844, 849 (1997), and the Fourth Amendment applies to modern forms of search, e. g., Kyllo v. United States, 533 U. S. 27, 35-36 (2001), the Second Amendment extends, prima facie, to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding.

We turn to the phrases “keep arms” and “bear arms.” Johnson defined “keep” as, most relevantly, “[t]o retain; not to lose,” and “[t]o have in custody.” Johnson 1095. Web­ster defined it as “[t]o hold; to retain in one’s power or pos­session.” No party has apprised us of an idiomatic meaning of “keep Arms.” Thus, the most natural reading of “keep Arms” in the Second Amendment is to “have weapons.”

The phrase “keep arms” was not prevalent in the written documents of the founding period that we have found, but there are a few examples, all of which favor viewing the right to “keep Arms” as an individual right unconnected with militia service. William Blackstone, for example, wrote that Catholics convicted of not attending service in the Church of England suffered certain penalties, one of which was that they were not permitted to “keep arms in their houses.” 4 Commentaries on the Laws of England 55 (1769) (hereinafter Blackstone); see also 1 W. & M., ch. 15, §4, in 3 Eng. Stat. at Large 422 (1689) (“[N]o Papist... shall or may have or keep in his House ... any Arms ... ”); 1 W. Hawkins, Treatise on the Pleas of the Crown 26 (1771) (similar). Peti­tioners point to militia laws of the founding period that re­quired militia members to “keep” arms in connection with militia service, and they conclude from this that the phrase “keep Arms” has a militia-related connotation. See Brief for Petitioners 16-17 (citing laws of Delaware, New Jersey, and Virginia). This is rather like saying that, since there are many statutes that authorize aggrieved employees to “file complaints” with federal agencies, the phrase “file com­plaints” has an employment-related connotation. “Keep arms” was simply a common way of referring to possessing arms, for militiamen and everyone else7

At the time of the founding, as now, to “bear” meant to “carry.” See Johnson 161; Webster; T. Sheridan, A Com­plete Dictionary of the English Language (1796); 2 Oxford English Dictionary 20 (2d ed. 1989) (hereinafter Oxford). When used with “arms,” however, the term has a meaning that refers to carrying for a particular purpose—confronta­tion. In Muscarello v. United States, 524 U. S. 125 (1998), in the course of analyzing the meaning of “carries a firearm” in a federal criminal statute, Justice Ginsburg wrote that “[s]urely a most familiar meaning is, as the Constitution’s Second Amendment. . . indicate^]: ‘wear, bear, or carry . . . upon the person or in the clothing or in a pocket, for the purpose ... of being armed and ready for offensive or defen­sive action in a case of conflict with another person.’ ” Id., at 143 (dissenting opinion) (quoting Black’s Law Dictionary 214 (6th ed. 1990)). We think that Justice Ginsburg accu­rately captured the natural meaning of “bear arms.” Al­though the phrase implies that the carrying of the weapon is for the purpose of “offensive or defensive action,” it in no way connotes participation in a structured military organization.

From our review of founding-era sources, we conclude that this natural meaning was also the meaning that “bear arms” had in the 18th century. In numerous instances, “bear arms” was unambiguously used to refer to the carrying of weapons outside of an organized militia. The most promi­nent examples are those most relevant to the Second Amend­ment: nine state constitutional provisions written in the 18th century or the first two decades of the 19th, which en­shrined a right of citizens to “bear arms in defense of them­selves and the state” or “bear arms in defense of himself and the state.”8 It is clear from those formulations that “bear arms” did not refer only to carrying a weapon in an orga­nized military unit. Justice James Wilson interpreted the Pennsylvania Constitution’s arms-bearing right, for example, as a recognition of the natural right of defense “of one’s per­son or house” — what he called the law of “self preservation.” 2 Collected Works of James Wilson 1142, and n. x (K. Hall & M. Hall eds. 2007) (citing Pa. Const., Art. IX, §21 (1790)); see also T. Walker, Introduction to American Law 198 (1837) (“Thus the right of self-defence [is] guaranteed by the [Ohio] constitution”); see also id., at 157 (equating Second Amend­ment with that provision of the Ohio Constitution). That was also the interpretation of those state constitutional pro­visions adopted by pre-Civil War state courts.9 These pro­visions demonstrate — again, in the most analogous linguistic context — that “bear arms” was not limited to the carrying of arms in a militia.

The phrase “bear Arms” also had at the time of the found­ing an idiomatic meaning that was significantly different from its natural meaning: “to serve as a soldier, do military service, fight” or “to wage war.” See Linguists’ Brief 18; post, at 646 (Stevens, J., dissenting). But it unequivocally bore that idiomatic meaning only when followed by the prep­osition “against,” which was in turn followed by the target of the hostilities. See 2 Oxford 21. (That is how, for exam­ple, our Declaration of Independence ¶ 28 used the phrase: “He has constrained our fellow Citizens taken Captive on the high Seas to bear Arms against their Country ....”) Every example given by petitioners’ amici for the idiomatic mean­ing of “bear arms” from the founding period either includes the preposition “against” or is not clearly idiomatic. See Linguists’ Brief 18-23. Without the preposition, “bear arms” normally meant (as it continues to mean today) what Justice Ginsburg’s opinion in Muscarello said.

In any event, the meaning of “bear arms” that petitioners and Justice Stevens propose is not even the (sometimes) idiomatic meaning. Rather, they manufacture a hybrid definition, whereby “bear arms” connotes the actual carrying of arms (and therefore is not really an idiom) but only in the service of an organized militia. No dictionary has ever adopted that definition, and we have been apprised of no source that indicates that it carried that meaning at the time of the founding. But it is easy to see why petitioners and the dissent are driven to the hybrid definition. Giving “bear Arms” its idiomatic meaning would cause the protected right to consist of the right to be a soldier or to wage war — an absurdity that no commentator has ever endorsed. See L. Levy, Origins of the Bill of Rights 135 (1999). Worse still, the phrase “keep and bear Arms” would be incoherent. The word “Arms” would have two different meanings at once: “weapons” (as the object of “keep”) and (as the object of “bear”) one-half of an idiom. It would be rather like saying “He filled and kicked the bucket” to mean “He filled the bucket and died.” Grotesque.

Petitioners justify their limitation of “bear arms” to the military context by pointing out the unremarkable fact that it was often used in that context — the same mistake they made with respect to “keep arms.” It is especially unre­markable that the phrase was often used in a military con­text in the federal legal sources (such as records of congres­sional debate) that have been the focus of petitioners’ inquiry. Those sources would have had little occasion to use it except in discussions about the standing army and the mili­tia. And the phrases used primarily in those military dis­cussions include not only “bear arms” but also “carry arms,” “possess arms,” and “have arms” — though no one thinks that those other phrases also had special military meanings. See Barnett, Was the Right to Keep and Bear Arms Conditioned on Service in an Organized Militia? 83 Texas L. Rev. 237, 261 (2004). The common references to those “fit to bear arms” in congressional discussions about the militia are matched by use of the same phrase in the few nonmilitary federal con­texts where the concept would be relevant. See, e. g., 30 Journals of Continental Congress 349-351 (J. Fitzpatrick ed. 1934). Other legal sources frequently used “bear arms” in nonmilitary contexts.10 Cunningham’s legal dictionary, cited above, gave as an example of its usage a sentence unrelated to military affairs (“Servants and labourers shall use bows and arrows on Sundays, &c. and not bear other arms”). And if one looks beyond legal sources, “bear arms” was frequently used in nonmilitary contexts. See Cramer & Olson, What Did “Bear Arms” Mean in the Second Amendment? 6 Georgetown J. L. & Pub. Pol’y 511 (2008) (identifying numer­ous nonmilitary uses of “bear arms” from the founding period).

Justice Stevens points to a study by amici supposedly showing that the phrase “bear arms” was most frequently used in the military context. See post, at 647-648, n. 9; Lin­guists’ Brief 24. Of course, as we have said, the fact that the phrase was commonly used in a particular context does not show that it is limited to that context, and, in any event, we have given many sources where the phrase was used in nonmilitary contexts. Moreover, the study’s collection ap­pears to include (who knows how many times) the idiomatic phrase “bear arms against,” which is irrelevant. The amici also dismiss examples such as “‘bear arms ... for the pur­pose of killing game’” because those uses are “expressly qualified.” Linguists’ Brief 24. (Justice Stevens uses the same excuse for dismissing the state constitutional provi­sions analogous to the Second Amendment that identify private-use purposes for which the individual right can be asserted. See post, at 647.) That analysis is faulty. A purposive qualifying phrase that contradicts the word or phrase it modifies is unknown this side of the looking glass (except, apparently, in some courses on linguistics). If “bear arms” means, as we think, simply the carrying of arms, a modifier can limit the purpose of the carriage (“for the pur­pose of self-defense” or “to make war against the King”). But if “bear arms” means, as the petitioners and the dissent think, the carrying of arms only for military purposes, one simply cannot add “for the purpose of killing game.” The right “to carry arms in the militia for the purpose of killing game” is worthy of the Mad Hatter. Thus, these purposive qualifying phrases positively establish that “to bear arms” is not limited to military use.11

Justice Stevens places great weight on James Madison’s inclusion of a conscientious-objector clause in his original draft of the Second Amendment: “but no person religiously scrupulous of bearing arms, shall be compelled to render mil­itary service in person.” Creating the Bill of Rights 12 (H. Veit, K. Bowling, & C. Bickford eds. 1991) (hereinafter Veit). He argues that this clause establishes that the drafters of the Second Amendment intended “bear Arms” to refer only to military service. See post, at 660-661. It is always per­ilous to derive the meaning of an adopted provision from another provision deleted in the drafting process.12 In any case, what Justice Stevens would conclude from the de­leted provision does not follow. It was not meant to exempt from military service those who objected to going to war but had no scruples about personal gunfights. Quakers opposed the use of arms not just for militia service, but for any vio­lent purpose whatsoever — so much so that Quaker frontiers­men were forbidden to use arms to defend their families, even though “[i]n such circumstances the temptation to seize a hunting rifle or knife in self-defense . . . must sometimes have been almost overwhelming.” P. Brock, Pacifism in the United States 359 (1968); see M. Hirst, The Quakers in Peace and War 336-339 (1923); 3 T. Clarkson, Portraiture of Quak­erism 103-104 (3d ed. 1807). The Pennsylvania Militia Act of 1757 exempted from service those “scrupling the use of arms” — a phrase that no one contends had an idiomatic meaning. See 5 Stat. at Large of Pa. 613 (J. Mitchell & H. Flanders comm’rs 1898) (emphasis in original). Thus, the most natural interpretation of Madison's deleted text is that those opposed to carrying weapons for potential violent con­frontation would not be “compelled to render military serv­ice,” in which such cárrying would be required.13

Finally, Justice Stevens suggests that “keep and bear Arms” was some sort of term of art, presumably akin to “hue and cry” or “cease and desist.” (This suggestion usefully evades the problem that there is no evidence whatsoever to support a military reading of “keep arms.”) Justice Ste­vens believes that the unitary meaning of “keep and bear Arms” is established by the Second Amendment’s calling it a “right” (singular) rather than “rights” (plural). See post, at 651. There is nothing to this. State constitutions of the founding period routinely grouped multiple (related) guar­antees under a singular “right,” and the First Amendment protects the “right [singular] of the people peaceably to as­semble, and to petition the Government for a redress of grievances.” See, e. g., Pa. Declaration of Rights §§ IX, XII, XVI, in 5 Thorpe 3083-3084; Ohio Const., Art. VIII, §§ 11, 19 (1802), in id., at 2910-2911.14 And even if “keep and bear Arms” were a unitary phrase, we find no evidence that it bore a military meaning. Although the phrase was not at all common (which would be unusual for a term of art), we have found instances of its use with a clearly nonmilitary connotation. In a 1780 debate in the House of Lords, for example, Lord Richmond described an order to disarm pri­vate citizens (not militia members) as “a violation of the con­stitutional right of Protestant subjects to keep and bear arms for their own defence.” 49 The London Magazine or Gentleman’s Monthly Intelligencer 467 (1780). In response, another member of Parliament referred to “the right of bear­ing arms for personal defence,” making clear that no special military meaning for “keep and bear arms” was intended in the discussion. Id., at 467-468.15

c. Meaning of the Operative Clause. Putting all of these textual elements together, we find that they guarantee the individual right to possess and carry weapons in case of confrontation. This meaning is strongly confirmed by the historical background of the Second Amendment. We look to this because it has always been widely understood that the Second Amendment, like the First and Fourth Amendments, codified a pre-existing right. The very text of the Second Amendment implicitly recognizes the pre-existence of the right and declares only that it “shall not be infringed.” As we said in United States v. Cruikshank, 92 U. S. 542, 553 (1876), “[t]his is not a right granted by the Constitution. Neither is it in any manner dependent upon that instrument for its existence. The second amendment declares that it shall not be infringed . . . .”16

Between the Restoration and the Glorious Revolution, the Stuart Kings Charles II and James II succeeded in using select militias loyal to them to suppress political dissidents, in part by disarming their opponents. See J. Malcolm, To Keep and Bear Arms 31-53 (1994) (hereinafter Malcolm); L. Schwoerer, The Declaration of Rights, 1689, p. 76 (1981). Under the auspices of the 1671 Game Act, for example, the Catholic Charles II had ordered general disarmaments of re­gions home to his Protestant enemies. See Malcolm 103-­106. These experiences caused Englishmen to be extremely wary of concentrated military forces run by the state and to be jealous of their arms. They accordingly obtained an assurance from William and Mary, in the Declaration of Right (which was codified as the English Bill of Rights), that Protestants would never be disarmed: “That the Subjects which are Protestants, may have Arms for their Defence suit­able to their Conditions, and as allowed by Law.” 1 W. & M., ch. 2, § 7, in 3 Eng. Stat. at Large 441. This right has long been understood to be the predecessor to our Second Amendment. See E. Dumbauld, The Bill of Rights and What It Means Today 51 (1957); W. Rawle, A View of the Constitution of the United States of America 122 (1825) (hereinafter Rawle). It was clearly an individual right, hav­ing nothing whatever to do with service in a militia. To be sure, it was an individual right not available to the whole population, given that it was restricted to Protestants, and like all written English rights it was held only against the Crown, not Parliament. See Schwoerer, To Hold and Bear Arms: The English Perspective, in Bogus 207, 218; but see 3 J. Story, Commentaries on the Constitution of the United States § 1858 (1833) (hereinafter Story) (contending that the “right to bear arms” is a “limitatio[n] upon the power of par­liament” as well). But it was secured to them as individuals, according to “libertarian political principles,” not as mem­bers of a fighting force. Schwoerer, Declaration of Rights, at 283; see also id., at 78; G. Jellinek, The Declaration of the Rights of Man and of Citizens 49, and n. 7 (1901) (reprinted 1979).

By the time of the founding, the right to have arms had become fundamental for English subjects. See Malcolm 122-134. Blackstone, whose works, we have said, “consti­tuted the preeminent authority on English law for the found­ing generation,” Alden v. Maine, 527 U. S. 706, 715 (1999), cited the arms provision of the Bill of Rights as one of the fundamental rights of Englishmen. See 1 Blackstone 136, 139-140 (1765). His description of it cannot possibly be thought to tie it to militia or military service. It was, he said, “the natural right of resistance and self-preservation,” id., at 139, and “the right of having and using arms for self-­preservation and defence,” id., at 140; see also 3 id., at 2-4 (1768). Other contemporary authorities concurred. See G. Sharp, Tracts, Concerning the Ancient and Only True Legal Means of National Defence, by a Free Militia 17-18, 27 (3d ed. 1782); 2 J. de Lolme, The Rise and Progress of the Eng­lish Constitution 886-887 (1784) (A. Stephens ed. 1838); W. Blizard, Desultory Reflections on Police 59-60 (1785). Thus, the right secured in 1689 as a result of the Stuarts’ abuses was by the time of the founding understood to be an individual right protecting against both public and private violence.

And, of course, what the Stuarts had tried to do to their political enemies, George III had tried to do to the colonists. In the tumultuous decades of the 1760’s and 1770’s, the Crown began to disarm the inhabitants of the most rebellious areas. That provoked polemical reactions by Americans in­voking their rights as Englishmen to keep arms. A New York article of April 1769 said that “[i]t is a natural right which the people have reserved to themselves, confirmed by the Bill of Rights, to keep arms for their own defence.” A Journal of the Times: Mar. 17, New York Journal, Supp. 1, Apr. 13, 1769, in Boston Under Military Rule 79 (0. Dicker­son ed. 1936) (reprinted 1970); see also, e. g., Shippen, Boston Gazette, Jan. 30, 1769, in 1 The Writings of Samuel Adams 299 (H. Cushing ed. 1904) (reprinted 1968). They under­stood the right to enable individuals to defend themselves. As the most important early American edition of Black­stone’s Commentaries (by the law professor and former Anti-­federalist St. George Tucker) made clear in the notes to the description of the arms right, Americans understood the “right of self-preservation” as permitting a citizen to “repe[l] force by force” when “the intervention of society in his be­half, may be too late to prevent an injury.” 1 Blackstone’s Commentaries 145-146, n. 42 (1803) (hereinafter Tucker’s Blackstone). See also W. Duer, Outlines of the Constitu­tional Jurisprudence of the United States 31-32 (1833).

There seems to us no doubt, on the basis of both text and history, that the Second Amendment conferred an individual right to keep and bear arms. Of course the right was not unlimited, just as the First Amendment’s right of free speech was not, see, e. g., United States v. Williams, 553 U. S. 285 (2008). Thus, we do not read, the Second Amendment to protect the right of citizens to carry arms for any sort of confrontation, just as we do not read the First Amendment to protect the right of citizens to speak for any purpose. Before turning to limitations upon the individual right, how­ever, we must determine whether the prefatory clause of the Second Amendment comports with our interpretation of the operative clause.

2. Prefatory Clause.

The prefatory clause reads: “A well regulated Militia, being necessary to the security of a free State .. . .”

a. “Well-Regulated Militia.” In United States v. Mil­ler, 307 U. S. 174, 179 (1939), we explained that “the Militia comprised all males physically capable of acting in concert for the common defense.” That definition comports with founding-era sources. See, e. g., Webster (“The militia of a country are the able bodied men organized into companies, regiments and brigades . . . and required by law to attend military exercises on certain days only, but at other times left to pursue their usual occupations”); The Federalist No. 46, pp. 329, 334 (B. Wright ed. 1961) (J. Madison) (“near half a million of citizens with arms in their hands”); Letter to Destutt de Tracy (Jan. 26, 1811), in The Portable Thomas Jefferson 520, 524 (M. Peterson ed. 1975) (“the militia of the State, that is to say, of every man in it able to bear arms”).

Petitioners take a seemingly narrower view of the militia, stating that “[mjilitias are the state- and congressionally­regulated military forces described in the Militia Clauses (art. I, § 8, cls. 15-16).” Brief for Petitioners 12. Although we agree with petitioners’ interpretive assumption that “mi­litia” means the same thing in Article I and the Second Amendment, we believe that petitioners identify the wrong thing, namely, the organized militia. Unlike armies and na­vies, which Congress is given the power to create (“to raise . . . Armies”; “to provide ... a Navy,” Art. I, § 8, cls. 12-13), the militia is assumed by Article I already to be in existence. Congress is given the power to “provide for call­ing forth the Militia,” § 8, cl. 15; and the power not to create, but to “organiz[eJ” it — and not to organize “a” militia, which is what one would expect if the militia were to be a federal creation, but to organize “the” militia, connoting a body al­ready in existence, ibid., cl. 16. This is fully consistent with the ordinary definition of the militia as all able-bodied men. From that pool, Congress has plenary power to organize the units that will make up an effective fighting force. That is what Congress did in the first Militia Act, which specified that “each and every free able-bodied white male citizen of the respective states, resident therein, who is or shall be of the age of eighteen years, and under the age of forty-five years (except as is herein after excepted) shall severally and respectively be enrolled in the militia.” Act of May 8,1792, 1 Stat. 271. To be sure, Congress need not conscript every able-bodied man into the militia, because nothing in Article I suggests that in exercising its power to organize, discipline, and arm the militia, Congress must focus upon the entire body. Although the militia consists of all able-bodied men, the federally organized militia may consist of a subset of them.

Finally, the adjective “well-regulated” implies nothing more than the imposition of proper discipline and training. See Johnson 1619 (“Regulate”: “To adjust by rule or method”); Rawle 121-122; cf. Va. Declaration of Rights § 13 (1776), in 7 Thorpe 3812, 3814 (referring to “a well-regulated militia, composed of the body of the people, trained to arms”).

b. “Security of a Free State.” The phrase “security of a free State” meant “security of a free polity,” not security of each of the several States as the dissent below argued, see 478 F. 3d, at 405, and n. 10. Joseph Story wrote in his trea­tise on the Constitution that “the word ‘state’ is used in vari­ous senses [and in] its most enlarged sense it means the peo­ple composing a particular nation or community.” 1 Story § 208; see also 3 id., § 1890 (in reference to the Second Amendment’s prefatory clause: “The militia is the natural defence of a free country”). It is true that the term “State” elsewhere in the Constitution refers to individual States, but the phrase “security of a free State” and close variations seem to have been terms of art in 18th-century political dis­course, meaning a “ ‘free country’ ” or free polity. See Vo­lokh, “Necessary to the Security of a Free State,” 83 Notre Dame L. Rev. 1, 5 (2007); see, e. g., 4 Blackstone 151 (1769); Brutus Essay III (Nov. 15,1787), in The Essential Antifeder­alist 251, 253 (W. Allen & G. Lloyd eds., 2d ed. 2002). More­over, the other instances of “state” in the Constitution are typically accompanied by modifiers making clear that the ref­erence is to the several States — “each state,” “several states,” “any state,” “that state,” “particular states,” “one state,” “no state.” And the presence of the term “foreign state” in Article I and Article III shows that the word “state” did not have a single meaning in the Constitution.

There are many reasons why the militia was thought to be “necessary to the security of a free State.” See 3 Story § 1890. First, of course, it is useful in repelling invasions and suppressing insurrections. Second, it renders large standing armies unnecessary — an argument that Alexan­der Hamilton made in favor of federal control over the mi­litia. The Federalist No. 29, pp. 226, 227 (B. Wright ed. 1961). Third, when the able-bodied men of a nation are trained in arms and organized, they are better able to re­sist tyranny.

3. Relationship Between Prefatory Clause and Opera­tive Clause.

We reach the question, then: Does the preface fit with an operative clause that creates an individual right to keep and bear arms? It fits perfectly, once one knows the history that the founding generation knew and that we have described above. That history showed that the way tyrants had elimi­nated a militia consisting of all the able-bodied men was not by banning the militia but simply by taking away the peo­ple’s arms, enabling a select militia or standing army to sup­press political opponents. This is what had occurred in Eng­land that prompted codification of the right to have arms in the English Bill of Rights.

The debate with respect to the right to keep and bear arms, as with other guarantees in the Bill of Rights, was not over whether it was desirable (all agreed that it was) but over whether it needed to be codified in the Constitution. During the 1788 ratification debates, the fear that the Fed­eral Government would disarm the people in order to impose rule through a standing army or select militia was pervasive in Antifederalist rhetoric. See, e. g., Letters from The Fed­eral Farmer III (Oct. 10, 1787), in 2 The Complete Anti-­Federalist 234, 242 (H. Storing ed. 1981). John Smilie, for example, worried not only that Congress’s “command of the militia” could be used to create a “select militia,” or to have “no militia at all,” but also, as a separate concern, that “[w]hen a select militia is formed; the people in general may be disarmed.” 2 Documentary History of the Ratification of the Constitution 508-509 (M. Jensen ed. 1976) (hereinafter Documentary Hist.). Federalists responded that because Congress was given no power to abridge the ancient right of individuals to keep and bear arms, such a force could never oppress the people. See, e. g., A Pennsylvanian III (Feb. 20, 1788), in The Origin of the Second Amendment 275, 276 (D. Young ed., 2d ed. 2001) (hereinafter Young); White, To the Citizens of Virginia (Feb. 22,1788), in id., at 280, 281; A Citi­zen of America (Oct. 10,1787), in id., at 38, 40; Foreign Spec­tator, Remarks on the Amendments to the Federal Constitu­tion, Nov. 7, 1788, in id., at 556. It was understood across the political spectrum that the right helped to secure the ideal of a citizen militia, which might be necessary to op­pose an oppressive military force if the constitutional order broke down.

It is therefore entirely sensible that the Second Amend­ment’s prefatory clause announces the purpose for which the right was codified: to prevent elimination of the militia. The prefatory clause does not suggest that preserving the militia was the only reason Americans valued the ancient right; most undoubtedly thought it even more important for self-­defense and hunting. But the threat that the new Federal Government would destroy the citizens’ militia by taking away their arms was the reason that right—unlike some other English rights — was codified in a written Constitution. Justice Breyer’s assertion that individual self-defense is merely a “subsidiary interest” of the right to keep and bear arms, see post, at 714 (dissenting opinion), is profoundly mis­taken. He bases that assertion solely upon the prologue— but that can only show that self-defense had little to do with the right’s codification; it was the central component of the right itself.

Besides ignoring the historical reality that the Second Amendment was not intended to lay down a “novel princi­ple]” but rather codified a right “inherited from our English ancestors,” Robertson v. Baldwin, 165 U. S. 275, 281 (1897), petitioners’ interpretation does not even achieve the nar­rower purpose that prompted codification of the right. If, as they believe, the Second Amendment right is no more than the right to keep and use weapons as a member of an organized militia, see Brief for Petitioners 8—if, that is, the organized militia is the sole institutional beneficiary of the Second Amendment’s guarantee — it does not assure the ex­istence of a “citizens’ militia” as a safeguard against tyranny. For Congress retains plenary authority to organize the mili­tia, which must include the authority to say who will belong to the organized force.17 That is why the first Militia Act's requirement that only whites enroll caused States to amend their militia laws to exclude free blacks. See Siegel, The Federal Government’s Power to Enact Color-Conscious Laws, 92 Nw. U. L. Rev. 477, 521-525 (1998). Thus, if peti­tioners are correct, the Second Amendment protects citizens’ right to use a gun in an organization from which Congress has plenary authority to exclude them. It guarantees a se­lect militia of the sort the Stuart kings found useful, but not the people’s militia that was the concern of the founding generation.

B

Our interpretation is confirmed by analogous arms-­bearing rights in state constitutions that preceded and im­mediately followed adoption of the Second Amendment. Four States adopted analogues to the Federal Second Amendment in the period between independence and the ratification of the Bill of Rights. Two of them — Pennsylva­nia and Vermont — clearly adopted individual rights uncon­nected to militia service. Pennsylvania’s Declaration of Rights of 1776 said: “That the people have a right to bear arms for the defence of themselves and the state . . . .” § XIII, in 5 Thorpe 3082, 3083 (emphasis added). In 1777, Vermont adopted the identical provision, except for inconse­quential differences in punctuation and capitalization. See Vt. Const., ch. 1, § XV, in 6 id., at 3741.

North Carolina also codified a right to bear arms in 1776: “That the people have a right to bear arms, for the defence of the State .. ..” Declaration of Rights § XVII, in 5 id., at 2787, 2788. This could plausibly be read to support only a right to bear arms in a militia — but that is a peculiar way to make the point in a constitution that elsewhere repeatedly mentions the militia explicitly. See N. C. Const., §§ XIV, XVIII, XXXV, in id., at 2789, 2791, 2793. Many colonial statutes required individual arms bearing for public-safety reasons — such as the 1770 Georgia law that “for the security and defence of this province from internal dangers and insur­rections” required those men who qualified for militia duty individually “to carry fire arms” “to places of public wor­ship.” 19 Colonial Records of the State of Georgia 137-139 (A. Candler ed. 1911 (pt. 1)) (emphasis added). That broad public-safety understanding was the connotation given to the North Carolina right by that State’s Supreme Court in 1843. See State v. Huntly, 25 N. C. 418, 422-423.

The 1780 Massachusetts Constitution presented another variation on the theme: “The people have a right to keep and to bear arms for the common defence. ...” Pt. First, Art. XVII, in 3 Thorpe 1888, 1892. Once again, if one gives narrow meaning to the phrase “common defence” this can be thought to limit the right to the bearing of arms in a state-organized military force. But once again the State’s highest court thought otherwise. Writing for the court in an 1825 libel case, Chief Justice Parker wrote: “The liberty of the press was to be unrestrained, but he who used it was to be responsible in cases of its abuse; like the right to keep fire arms, which does not protect him who uses them for annoyance or destruction.” Commonwealth v. Blanding, 20 Mass. 304, 313-314. The analogy makes no sense if firearms could not be used for any individual purpose at all. See also Kates, Handgun Prohibition and the Original Meaning of the Second Amendment, 82 Mich. L. Rev. 204, 244 (1983) (19th-­century courts never read “common defence” to limit the use of weapons to militia service).

We therefore believe that the most likely reading of all four of these pre-Second Amendment state constitutional provisions is that they secured an individual right to bear arms for defensive purposes. Other States did not include rights to bear arms in their pre-1789 constitutions — although in Virginia a Second Amendment analogue was proposed (un­successfully) by Thomas Jefferson. (It read: “No freeman shall ever be debarred the use of arms [within his own lands or tenements].”18 1 The Papers of Thomas Jefferson 344 (J. Boyd ed. 1950).)

Between 1789 and 1820, nine States adopted Second Amendment analogues. Four of them—Kentucky, Ohio, In­diana, and Missouri—referred to the right of the people to “bear arms in defence of themselves and the State.” See n. 8, supra. Another three States — Mississippi, Connecti­cut, and Alabama—used the even more individualistic phras­ing that each citizen has the “right to bear arms in defence of himself and the State.” See ibid. Finally, two States—­Tennessee and Maine—used the “common defence” language of Massachusetts. See Tenn. Const., Art. XI, § 26 (1796), in 6 Thorpe 3414, 3424; Me. Const., Art. I, § 16 (1819), in 3 id., at 1646, 1648. That of the nine state constitutional protec­tions for the right to bear arms enacted immediately after 1789 at least seven unequivocally protected an individual citi­zen’s right to self-defense is strong evidence that that is how the founding generation conceived of the right. And with one possible exception that we discuss in Part II-D-2, 19th-­century courts and commentators interpreted these state constitutional provisions to protect an individual right to use arms for self-defense. See n. 9, supra; Simpson v. State, 5 Yer. 356, 360 (Tenn. 1833).

The historical narrative that petitioners must endorse would thus treat the Federal Second Amendment as an odd outlier, protecting a right unknown in state constitutions or at English common law, based on little more than an over-­reading of the prefatory clause.

C

Justice Stevens relies on the drafting history of the Sec­ond Amendment — the various proposals in the state con­ventions and the debates in Congress. It is dubious to rely on such history to interpret a text that was widely under­stood to codify a pre-existing right, rather than to fashion a new one. But even assuming that this legislative history is relevant, Justice Stevens flatly misreads the historical record.

It is true, as Justice Stevens says, that there was con­cern that the Federal Government would abolish the institu­tion of the state militia. See post, at 655. That concern found expression, however, not in the various Second Amendment precursors proposed in the state conventions, but in separate structural provisions that would have given the States concurrent and seemingly non-pre-emptible au­thority to organize, discipline, and arm the militia when the Federal Government failed to do so. See Veit 17, 20 (Vir­ginia proposal); 4 J. Eliot, The Debates in the Several State Conventions on the Adoption of the Federal Constitution 244, 245 (2d ed. 1836) (reprinted 1941) (North Carolina proposal); see also 2 Documentary Hist. 624 (Pennsylvania minority’s proposal). The Second Amendment precursors, by contrast, referred to the individual English right already codified in two (and probably four) state constitutions. The Federalist-dominated first Congress chose to reject virtually all major structural revisions favored by the Antifederalists, including the proposed militia amendments. Rather, it adopted primarily the popular and uncontroversial (though, in the Federalists’ view, unnecessary) individual-rights amendments. The Second Amendment right, protecting only individuals’ liberty to keep and carry arms, did nothing to assuage Antifederalists’ concerns about federal control of the militia. See, e. g., Centinel, Revived, No. XXIX, Phila­delphia Independent Gazetteer, Sept. 9, 1789, in Young 711, 712.

Justice Stevens thinks it significant that the Virginia, New York, and North Carolina Second Amendment propos­als were “embedded ... within a group of principles that are distinctly military in meaning,” such as statements about the danger of standing armies. Post, at 657. But so was the highly influential minority proposal in Pennsylvania, yet that proposal, with its reference to hunting, plainly referred to an individual right. See 2 Documentary Hist. 624. Other than that erroneous point, Justice Stevens has brought forward absolutely no evidence that those proposals conferred only a right to carry arms in a militia. By contrast, New Hamp­shire’s proposal, the Pennsylvania minority’s proposal, and Samuel Adams’ proposal in Massachusetts unequivocally re­ferred to individual rights, as did two state constitutional provisions at the time. See Veit 16, 17 (New Hampshire proposal); 6 Documentary Hist. 1452, 1453 (J. Kaminski & G. Saladino eds. 2000) (Samuel Adams’ proposal). Justice Stevens’ view thus relies on the proposition, unsupported by any evidence, that different people of the founding period had vastly different conceptions of the right to keep and bear arms. That simply does not comport with our longstanding view that the Bill of Rights codified venerable, widely under­stood liberties.

D

We now address how the Second Amendment was inter­preted from immediately after its ratification through the end of the 19th century. Before proceeding, however, we take issue with Justice Stevens’ equating of these sources with postenactment legislative history, a comparison that be­trays a fundamental misunderstanding of a court’s interpre­tive task. See post, at 662, n. 28. “ ‘[Legislative history,’ ” of course, refers to the preenactment statements of those who drafted or voted for a law; it is considered persuasive by some, not because they reflect the general understanding of the disputed terms, but because the legislators who heard or read those statements presumably voted with that un­derstanding. Ibid. “[P]ostenactment legislative history,” ibid., a deprecatory contradiction in terms, refers to state­ments of those who drafted or voted for the law that are made after its enactment and hence could have had no effect on the congressional vote. It most certainly does not refer to the examination of a variety of legal and other sources to determine the public understanding of a legal text in the period after its enactment or ratification. That sort of in­quiry is a critical tool of constitutional interpretation. As we will show, virtually all interpreters of the Second Amend­ment in the century after its enactment interpreted the Amendment as we do.

1. Postratification Commentary.

Three important founding-era legal scholars interpreted the Second Amendment in published writings. All three un­derstood it to protect an individual right unconnected with militia service.

St. George Tucker’s version of Blackstone’s Commentaries, as we explained above, conceived of the Blackstonian arms right as necessary for self-defense. He equated that right, absent the religious and class-based restrictions, with the Second Amendment. See 2 Tucker’s Blackstone 143. In Note D, entitled, “View of the Constitution of the United States,” Tucker elaborated on the Second Amendment: “This may be considered as the true palladium of liberty .... The right to self defence is the first law of nature: in most governments it has been the study of rulers to confine the right within the narrowest limits possible. Wherever standing armies are kept up, and the right of the people to keep and bear arms is, under any colour or pretext whatso­ever, prohibited, liberty, if not already annihilated, is on the brink of destruction.” 1 id., at App. 300 (ellipsis in original). He believed that the English game laws had abridged the right by prohibiting “keeping a gun or other engine for the destruction of game.” Ibid.; see also 2 id., at 143, and nn. 40 and 41. He later grouped the right with some of the individ­ual rights included in the First Amendment and said that if “a law be passed by congress, prohibiting” any of those rights, it would “be the province of the judiciary to pro­nounce whether any such act were constitutional, or not; and if not, to acquit the accused . . . .” 1 id., at App. 357. It is unlikely that Tucker was referring to a person’s being “ac­cused” of violating a law making it a crime to bear arms in a state militia.19

In 1825, William Rawle, a prominent lawyer who had been a member of the Pennsylvania Assembly that ratified the Bill of Rights, published an influential treatise, which analyzed the Second Amendment as follows:

“The first [principle] is a declaration that a well regu­lated militia is necessary to the security of a free state; a proposition from which few will dissent. . . .

“The corollary, from the first position is, that the right of the people to keep and bear arms shall not be infringed.

“The prohibition is general. No clause in the consti­tution could by any rule of construction be conceived to give to congress a power to disarm the people. Such a flagitious attempt could only be made under some gen­eral pretence by a state legislature. But if in any blind pursuit of inordinate power, either should attempt it, this amendment may be appealed to as a restraint on both.” Rawle 121-122.20

Like Tucker, Rawle regarded the English game laws as vio­lating the right codified in the Second Amendment. See id., at 122-123. Rawle clearly differentiated between the peo­ple’s right to bear arms and their service in a militia: “In a people permitted and accustomed to bear arms, we have the rudiments of a militia, which properly consists of armed citi­zens, divided into military bands, and instructed at least in part, in the use of arms for the purposes of war.” Id., at 140. Rawle further said that the Second Amendment right ought not “be abused to the disturbance of the public peace,” such as by assembling with other armed individuals “for an unlawful purpose” — statements that make no sense if the right does not extend to any individual purpose. Id., at 123.

Joseph Story published his famous Commentaries on the Constitution of the United States in 1833. Justice Ste­vens suggests that “[t]here is not so much as a whisper” in Story’s explanation of the Second Amendment that favors the individual-rights view. Post, at 668. That is wrong. Story explained that the English Bill of Rights had also in­cluded a “right to bear arms,” a right that, as we have dis­cussed, had nothing to do with militia service. 3 Story § 1858. He then equated the English right with the Second Amendment:

“§1891. A similar provision [to the Second Amend­ment] in favour of protestants (for to them it is confined) is to be found in the bill of rights of 1688, it being de­clared, ‘that the subjects, which are protestants, may have arms for their defence suitable to their condition, and as allowed by law.’ But under various pretences the effect of this provision has been greatly narrowed; and it is at present in England more nominal than real, as a defensive privilege.” (Footnotes omitted.)

This comparison to the Declaration of Right would not make sense if the Second Amendment right was the right to use a gun in a militia, which was plainly not what the English right protected. As the Tennessee Supreme Court recog­nized 38 years after Story wrote his Commentaries, “[t]he passage from Story, shows clearly that this right was intended ... and was guaranteed to, and to be exercised and enjoyed by the citizen as such, and not by him as a soldier, or in defense solely of his political rights.” Andrews v. State, 50 Tenn. 165, 183-184 (1871). Story’s Commentaries also cite as support Tucker and Rawle, both of whom clearly viewed the right as unconnected to militia service. See 3 Story § 1890, n. 2, § 1891, n. 3. In addition, in a shorter 1840 work Story wrote: “One of the ordinary modes, by which tyrants accomplish their purposes without resistance, is, by disarming the people, and making it an offence to keep arms, and by substituting a regular army in the stead of a resort to the militia.” A Familiar Exposition of the Constitution of the United States § 450 (reprinted 1986).

Antislavery advocates routinely invoked the right to bear arms for self-defense. Joel Tiffany, for example, citing Blackstone’s description of the right, wrote that “the right to keep and bear arms, also implies the right to use them if necessary in self defence; without this right to use the guar­anty would have hardly been worth the paper it consumed.” A Treatise on the Unconstitutionality of American Slavery 117-118 (1849); see also L. Spooner, The Unconstitutionality of Slavery 116 (1845) (right enables “personal defence”). In his famous Senate speech about the 1856 “Bleeding Kansas” conflict, Charles Sumner proclaimed:

“The rifle has ever been the companion of the pioneer and, under God, his tutelary protector against the red man and the beast of the forest. Never was this effi­cient weapon more needed in just self-defense, than now in Kansas, and at least one article in our National Con­stitution must be blotted out, before the complete right to it can in any way be impeached. And yet such is the madness of the hour, that, in defiance of the solemn guarantee, embodied in the Amendments to the Consti­tution, that The right of the people to keep and bear arms shall not be infringed,’ the people of Kansas have been arraigned for keeping and bearing them, and the Senator from South Carolina has had the face to say openly, on this floor, that they should be disarmed — of course, that the fanatics of Slavery, his allies and constit­uents, may meet no impediment.” The Crime Against Kansas, May 19-20, 1856, in American Speeches: Politi­cal Oratory From the Revolution to the Civil War 553, 606-607 (T. Widmer ed. 2006).

We have found only one early-19th-century commentator who clearly conditioned the right to keep and bear arms upon service in the militia — and he recognized that the prevailing view was to the contrary. “The provision of the constitu­tion, declaring the right of the people to keep and bear arms, &c. was probably intended to apply to the right of the people to bear arms for such [militia-related] purposes only, and not to prevent congress or the legislatures of the differ­ent states from enacting laws to prevent the citizens from always going armed. A different construction however has been given to it.” B. Oliver, The Rights of an American Citizen 177 (1832).

2. Pre-Civil War Case Law.

The 19th-century cases that interpreted the Second Amendment universally support an individual right uncon­nected to militia service. In Houston v. Moore, 5 Wheat. 1, 24 (1820), this Court held that States have concurrent power over the militia, at least where not pre-empted by Congress. Agreeing in dissent that States could “organize, arm, and discipline” the militia in the absence of conflicting federal regulation, Justice Story said that the Second Amendment “may not, perhaps, be thought to have any important bearing on this point. If it have, it confirms and illustrates, rather than impugns the reasoning already suggested.” Id., at 51-­53. Of course, if the Amendment simply “protected] the right of the people of each of the several States to maintain a well-regulated militia,” post, at 637 (Stevens, J., dissent­ing), it would have enormous and obvious bearing on the point. But the Court and Story derived the States’ power over the militia from the nonexclusive nature of federal power, not from the Second Amendment, whose preamble merely “confirms and illustrates” the importance of the mili­tia. Even clearer was Justice Baldwin. In the famous fugitive-slave case of Johnson v. Tompkins, 13 F. Cas. 840, 850, 852 (CC Pa. 1833), Baldwin, sitting as a Circuit Judge, cited both the Second Amendment and the Pennsylvania ana­logue for his conclusion that a citizen has “a right to carry arms in defence of his property or person, and to use them, if either were assailed with such force, numbers or violence as made it necessary for the protection or safety of either.”

Many early-19th century state cases indicated that the Second Amendment right to bear arms was an individual right unconnected to militia service, though subject to cer­tain restrictions. A Virginia case in 1824 holding that the Constitution did not extend to free blacks explained: “[N]u­merous restrictions imposed on [blacks] in our Statute Book, many of which are inconsistent with the letter and spirit of the Constitution, both of this State and of the United States as respects the free whites, demonstrate, that, here, those instruments have not been considered to extend equally to both classes of our population. We will only instance the restriction upon the migration of free blacks into this State, and upon their right to bear arms.” Aldridge v. Common­wealth, 2 Va. Cas. 447, 449 (Gen. Ct.). The claim was obvi­ously not that blacks were prevented from carrying guns in the militia.21 See also Waters v. State, 1 Gill 302, 309 (Md. 1843) (because free blacks were treated as a “dangerous pop­ulation,” “laws have been passed to prevent their migration into this State; to make it unlawful for them to bear arms; to guard even their religious assemblages with peculiar watchfulness”). An 1829 decision by the Supreme Court of Michigan said: “The constitution of the United States also grants to the citizen the right to keep and bear arms. But the grant of this privilege cannot be construed into the right in him who keeps a gun to destroy his neighbor. No rights are intended to be granted by the constitution for an unlaw­ful or unjustifiable purpose.” United States v. Sheldon, in 5 Transactions of the Supreme Court of the Territory of Michi­gan 337, 346 (W. Blume ed. 1940) (hereinafter Blume). It is not possible to read this as discussing anything other than an individual right unconnected to militia service. If it did have to do with militia service, the limitation upon it would not be any “unlawful or unjustifiable purpose,” but any non­military purpose whatsoever.

In Nunn v. State, 1 Ga. 243, 251 (1846), the Georgia Su­preme Court construed the Second Amendment as protect­ing the “natural right of self-defence” and therefore struck down a ban on carrying pistols openly. Its opinion perfectly captured the way in which the operative clause of the Second Amendment furthers the purpose announced in the prefatory clause, in continuity with the English right:

“The right of the whole people, old and young, men, women and boys, and not militia only, to keep and bear arms of every description, and not such merely as are used by the militia, shall not be infringed, curtailed, or broken in upon, in the smallest degree; and all this for the important end to be attained: the rearing up and qualifying a well-regulated militia, so vitally necessary to the security of a free State. Our opinion is, that any law, State or Federal, is repugnant to the Constitution, and void, which contravenes this right, originally be­longing to our forefathers, trampled under foot by Charles I. and his two wicked sons and successors, re­established by the revolution of 1688, conveyed to this land of liberty by the colonists, and finally incorporated conspicuously in our own Magna Charta!” Ibid.

Likewise, in State v. Chandler, 5 La. Ann. 489, 490 (1850), the Louisiana Supreme Court held that citizens had a right to carry arms openly: “This is the right guaranteed by the Constitution of the United States, and which is calculated to incite men to a manly and noble defence of themselves, if necessary, and of their country, without any tendency to se­cret advantages and unmanly assassinations.”

Those who believe that the Second Amendment preserves only a militia-centered right place great reliance on the Ten­nessee Supreme Court’s 1840 decision in Aymette v. State, 21 Tenn. 154. The case does not stand for that broad propo­sition; in fact, the case does not mention the word “militia” at all, except in its quoting of the Second Amendment. Aymette held that the state constitutional guarantee of the right to “bear” arms did not prohibit the banning of con­cealed weapons. The opinion first recognized that both the state right and the federal right were descendents of the 1689 English right, but (erroneously, and contrary to virtu­ally all other authorities) read that right to refer only to “protection of] the public liberty” and “keeping) in awe those who are in power,” id., at 158. The court then adopted a sort of middle position, whereby citizens were permitted to carry arms openly, unconnected with any service in a formal militia, but were given the right to use them only for the military purpose of banding together to oppose tyranny. This odd reading of the right is, to be sure, not the one we adopt — but it is not petitioners’ reading either. More im­portantly, seven years earlier the Tennessee Supreme Court had treated the state constitutional provision as conferring a right “to all the free citizens of the State to keep and bear arms for their defence,” Simpson, 5 Yer., at 360; and 21 years later the court held that the “keep” portion of the state con­stitutional right included the right to personal self-defense: “[T]he right to keep arms involves, necessarily, the right to use such arms for all the ordinary purposes, and in all the ordinary modes usual in the country, and to which arms are adapted, limited by the duties of a good citizen in times of peace.” Andrews, 50 Tenn., at 178-179; see also ibid, (equat­ing state provision with Second Amendment).

3. Post-Civil War Legislation.

In the aftermath of the Civil War, there was an outpouring of discussion of the Second Amendment in Congress and in public discourse, as people debated whether and how to se­cure constitutional rights for newly free slaves. See gener­ally S. Halbrook, Freedmen, the Fourteenth Amendment, and the Right to Bear Arms, 1866-1876 (1998) (hereinafter Halbrook); Brief for Institute for Justice as Amicus Curiae. Since those discussions took place 75 years after the ratifica­tion of the Second Amendment, they do not provide as much insight into its original meaning as earlier sources. Yet those born and educated in the early 19th century faced a widespread effort to limit arms ownership by a large number of citizens; their understanding of the origins and continuing significance of the Amendment is instructive.

Blacks were routinely disarmed by Southern States after the Civil War. Those who opposed these injustices fre­quently stated that they infringed blacks’ constitutional right to keep and bear arms. Needless to say, the claim was not that blacks were being prohibited from carrying arms in an organized state militia. A Report of the Commission of the Freedmen’s Bureau in 1866 stated plainly: “[T]he civil law [of Kentucky] prohibits the colored man from bearing arms. . . . Their arms are taken from them by the civil authorities. . . . Thus, the right of the people to keep and bear arms as provided in the Constitution is infringed.” H. R. Exec. Doc. No. 70, 39th Cong., 1st Sess., 233, 236. A joint congressional Report decried:

“[I]n some parts of [South Carolina,] armed parties are, without proper authority, engaged in seizing all fire­arms found in the hands of the freedmen. Such conduct is in plain and direct violation of their personal rights as guaranteed by the Constitution of the United States, which declares that ‘the right of the people to keep and bear arms shall not be infringed.’ The freedmen of South Carolina have shown by their peaceful and or­derly conduct that they can safely be trusted with fire­arms, and they need them to kill game for subsistence, and to protect their crops from destruction by birds and animals.” Joint Comm, on Reconstruction, H. R. Rep. No. 30, 39th Cong., 1st Sess., pt. 2, p. 229 (1866) (Pro­posed Circular of Brigadier General R. Saxton).

The view expressed in these statements was widely re­ported and was apparently widely held. For example, an editorial in The Loyal Georgian (Augusta) on February 3, 1866, assured blacks that “[a]ll men, without distinction of color, have the right to keep and bear arms to defend their homes, families or themselves.” Halbrook 19.

Congress enacted the Freedmen’s Bureau Act on July 16, 1866. Section 14 stated:

“[T]he right... to have full and equal benefit of all laws and proceedings concerning personal liberty, personal security, and the acquisition, enjoyment, and disposition of estate, real and personal, including the constitutional right to bear arms, shall be secured to and enjoyed by all the citizens . . . without respect to race or color, or previous condition of slavery. ...” 14 Stat. 176-177.

The understanding that the Second Amendment gave freed blacks the right to keep and bear arms was reflected in con­gressional discussion of the bill, with even an opponent of it saying that the founding generation “were for every man bearing his arms about him and keeping them in his house, his castle, for his own defense.” Cong. Globe, 39th Cong., 1st Sess., 362, 371 (1866) (Sen. Davis).

Similar discussion attended the passage of the Civil Rights Act of 1871 and the Fourteenth Amendment. For example, Representative Butler said of the Act: “Section eight is in­tended to enforce the well-known constitutional provision guaranteeing the right of the citizen to ‘keep and bear arms/ and provides that whoever shall take away, by force or vio­lence, or by threats and intimidation, the arms and weapons which any person may have for his defense, shall be deemed guilty of larceny of the same.” H. R. Rep. No. 37, 41st Cong., 3d Sess., 7-8 (1871). With respect to the proposed Amendment, Senator Pomeroy described as one of the three “indispensable” “safeguards of liberty . . . under the Consti­tution” a man’s “right to bear arms for the defense of himself and family and his homestead.” Cong. Globe, 39th Cong., 1st Sess., 1182 (1866). Representative Nye thought the Fourteenth Amendment unnecessary because “[a]s citizens of the United States [blacks] have equal right to protection, and to keep and bear arms for self-defense.” Id., at 1073.

It was plainly the understanding in the post-Civil War Congress that the Second Amendment protected an individ­ual right to use arms for self-defense.

4. Post-Civil War Commentators.

Every late-19th-century legal scholar that we have read interpreted the Second Amendment to secure an individual right unconnected with militia service. The most famous was the judge and professor Thomas Cooley, who wrote a massively popular 1868 Treatise on Constitutional Limita­tions. Concerning the Second Amendment it said:

“Among the other defences to personal liberty should be mentioned the right of the people to keep and bear arms. . . . The alternative to a standing army is ‘a well-­regulated militia/ but this cannot exist unless the people are trained to bearing arms. How far it is in the power of the legislature to regulate this right, we shall not un­dertake to say, as happily there has been very little occa­sion to discuss that subject by the courts.” Id., at 350.

That Cooley understood the right not as connected to militia service, but as securing the militia by ensuring a populace familiar with arms, is made even clearer in his 1880 work, General Principles of Constitutional Law. The Second Amendment, he said, “was adopted with some modification and enlargement from the English Bill of Rights of 1688, where it stood as a protest against arbitrary action of the overturned dynasty in disarming the people.” Id., at 270. In a section entitled “The Right in General,” he continued:

“It might be supposed from the phraseology of this pro­vision that the right to keep and bear arms was only guaranteed to the militia; but this would be an interpre­tation not warranted by the intent. The militia, as has been elsewhere explained, consists of those persons who, under the law, are liable to the performance of military duty, and are officered and enrolled for service when called upon. But the law may make provision for the enrolment of all who are fit to perform military duty, or of a small number only, or it may wholly omit to make any provision at all; and if the right were limited to those enrolled, the purpose of this guaranty might be defeated altogether by the action or neglect to act of the government it was meant to hold in check. The mean­ing of the provision undoubtedly is, that the people, from whom the militia must be taken, shall have the right to keep and bear arms; and they need no permission or regulation of law for the purpose. But this enables gov­ernment to have a well-regulated militia; for to bear arms implies something more than the mere keeping; it implies the learning to handle and use them in a way that makes those who keep them ready for their efficient use; in other words, it implies the right to meet for vol­untary discipline in arms, observing in doing so the laws of public order.” Id., at 271.

All other post-Civil War 19th-century sources we have found concurred with Cooley. One example from each dec­ade will convey the general flavor:

“[The purpose of the Second Amendment is] to secure a well-armed militia. . . . But a militia would be useless unless the citizens were enabled to exercise themselves in the use of warlike weapons. To preserve this privi­lege, and to secure to the people the ability to oppose themselves in military force against the usurpations of government, as well as against enemies from without, that government is forbidden by any law or proceeding to invade or destroy the right to keep and bear arms____ The clause is analogous to the one securing the freedom of speech and of the press. Freedom, not license, is se­cured; the fair use, not the libellous abuse, is protected.” J. Pomeroy, An Introduction to the Constitutional Law of the United States § 239, pp. 152-153 (1868) (herein­after Pomeroy).

“As the Constitution of the United States, and the con­stitutions of several of the states, in terms more or less comprehensive, declare the right of the people to keep and bear arms, it has been a subject of grave discussion, in some of the state courts, whether a statute prohibit­ing persons, when not on a journey, or as travellers, from wearing or carrying concealed weapons, be constitu­tional. There has been a great difference of opinion on the question.” 2 J. Kent, Commentaries on American Law *340, n. 2 (0. Holmes ed., 12th ed. 1873) (herein­after Kent).

“Some general knowledge of firearms is important to the public welfare; because it would be impossible, in case of war, to organize promptly an efficient force of volunteers unless the people had some familiarity with weapons of war. The Constitution secures the right of the people to keep and bear arms. No doubt, a citizen who keeps a gun or pistol under judicious precautions, practises in safe places the use of it, and in due time teaches his sons to do the same, exercises his individual right. No doubt, a person whose residence or duties involve pecu­liar peril may keep a pistol for prudent self-defence.” B. Abbott, Judge and Jury: A Popular Explanation of the Leading Topics in the Law of the Land 333 (1880) (hereinafter Abbott).

“The right to bear arms has always been the distinc­tive privilege of freemen. Aside from any necessity of self-protection to the person, it represents among all na­tions power coupled with the exercise of a certain jurisdiction. . . . [I]t was not necessary that the right to bear arms should be granted in the Constitution, for it had always existed.” J. Ordronaux, Constitutional Leg­islation in the United States 241-242 (1891).

E

We now ask whether any of our precedents forecloses the conclusions we have reached about the meaning of the Sec­ond Amendment.

United States v. Cruikskank, 92 U. S. 542, in the course of vacating the convictions of members of a white mob for depriving blacks of their right to keep and bear arms, held that the Second Amendment does not by its own force apply to anyone other than the Federal Government. The opinion explained that the right “is not a right granted by the Con­stitution [or] in any manner dependent upon that instrument for its existence. The second amendment... means no more than that it shall not be infringed by Congress.” Id., at 553. States, we said, were free to restrict or protect the right under their police powers. The limited discussion of the Second Amendment in Cruikshank supports, if anything, the individual-rights interpretation. There was no claim in Cruikshank that the victims had been deprived of their right to carry arms in a militia; indeed, the Governor had dis­banded the local militia unit the year before the mob’s attack, see C. Lane, The Day Freedom Died 62 (2008). We de­scribed the right protected by the Second Amendment as “‘bearing arms for a lawful purpose’”22 and said that “the people [must] look for their protection against any violation by their fellow-citizens of the rights it recognizes” to the States’ police power. 92 U. S., at 553. That discussion makes little sense if it is only a right to bear arms in a state militia.23

Presser v. Illinois, 116 U. S. 252 (1886), held that the right to keep and bear arms was not violated by a law that forbade “bodies of men to associate together as military organiza­tions, or to drill or parade with arms in cities and towns unless authorized by law.” Id., at 264-265. This does not refute the individual-rights interpretation of the Amend­ment; no one supporting that interpretation has contended that States may not ban such groups. Justice Stevens presses Presser into service to support his view that the right to bear arms is limited to service in the militia by join­ing Presser1s brief discussion of the Second Amendment with a later portion of the opinion making the seemingly relevant (to the Second Amendment) point that the plaintiff was not a member of the state militia. Unfortunately for Justice Stevens’ argument, that later portion deals with the Four­teenth Amendment; it was the Fourteenth Amendment to which the plaintiff’s nonmembership in the militia was rele­vant. Thus, Justice Stevens’ statement that Presser “suggested that . . . nothing in the Constitution protected the use of arms outside the context of a militia,” post, at 674-675, is simply wrong. Presser said nothing about the Second Amendment's meaning or scope, beyond the fact that it does not prevent the prohibition of private paramilitary organizations.

Justice Stevens places overwhelming reliance upon this Court’s decision in Miller, 307 U. S. 174. “[H]undreds of judges,” we are told, “have relied on the view of the Amend­ment we endorsed there,” post, at 638, and “[e]ven if the textual and historical arguments on both sides of the issue were evenly balanced, respect for the well-settled views of all of our predecessors on this Court, and for the rule of law itself . . . would prevent most jurists from endorsing such a dramatic upheaval in the law,” post, at 639. And what is, according to Justice Stevens, the holding of Miller that demands such obeisance? That the Second Amendment “protects the right to keep and bear arms for certain mili­tary purposes, but that it does not curtail the Legislature’s power to regulate the nonmilitary use and ownership of weapons.” Post, at 637.

Nothing so clearly demonstrates the weakness of Justice Stevens’ case. Miller did not hold that and cannot possibly be read to have held that. The judgment in the case upheld against a Second Amendment challenge two men’s federal indictment for transporting an unregistered short-barreled shotgun in interstate commerce, in violation of the National Firearms Act, 48 Stat. 1236. It is entirely clear that the Court’s basis for saying that the Second Amendment did not apply was not that the defendants were “bearing] arms” not “for . . . military purposes” but for “nonmilitary use,” post, at 637. Rather, it was that the type of weapon at issue was not eligible for Second Amendment protection: “In the ab­sence of any evidence tending to show that the possession or use of a [short-barreled shotgun] at this time has some reasonable relationship to the preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear suck an instrument.” 307 U. S., at 178 (emphasis added). “Cer­tainly,” the Court continued, “it is not within judicial notice that this weapon is any part of the ordinary military equip­ment or that its use could contribute to the common de­fense.” Ibid. Beyond that, the opinion provided no expla­nation of the content of the right.

This holding is not only consistent with, but positively suggests, that the Second Amendment confers an individual right to keep and bear arms (though only arms that “have some reasonable relationship to the preservation or effi­ciency of a well regulated militia”). Had the Court believed that the Second Amendment protects only those serving in the militia, it would have been odd to examine the character of the weapon rather than simply note that the two crooks were not militiamen. Justice Stevens can say again and again that Miller did not “turn on the difference between muskets and sawed-off shotguns; it turned, rather, on the basic difference between the military and nonmilitary use and possession of guns,” post, at 677, but the words of the opinion prove otherwise. The most Justice Stevens can plausibly claim for Miller is that it declined to decide the nature of the Second Amendment right, despite the Solicitor General’s argument (made in the alternative) that the right was collective, see Brief for United States, O. T. 1938, No. 696, pp. 4-5. Miller stands only for the proposition that the Second Amendment right, whatever its nature, extends only to certain types of weapons.

It is particularly wrongheaded to read Miller for more than what it said, because the case did not even purport to be a thorough examination of the Second Amendment. Jus­tice Stevens claims, post, at 676-677, that the opinion reached its conclusion “[a]fter reviewing many of the same sources that are discussed at greater length by the Court today.” Not many, which was not entirely the Court’s fault. The defendants made no appearance in the case, neither fil­ing a brief nor appearing at oral argument; the Court heard from no one but the Government (reason enough, one would think, not to make that case the beginning and the end of this Court’s consideration of the Second Amendment). See Frye, The Peculiar Story of United States v. Miller, 3 N. Y. U. J. L. & Liberty 48, 65-68 (2008). The Government’s brief spent two pages discussing English legal sources, concluding “that at least the carrying of weapons without lawful occa­sion or excuse was always a crime” and that (because of the class-based restrictions and the prohibition on terrorizing people with dangerous or unusual weapons) “the early Eng­lish law did not guarantee an unrestricted right to bear arms.” Brief for United States, O. T. 1938, No. 696, at 9-11. It then went on to rely primarily on the discussion of the English right to bear arms in Aymette v. State, 21 Tenn. 154, for the proposition that the only uses of arms protected by the Second Amendment are those that relate to the militia, not self-defense. See Brief for United States, O. T. 1938, No. 696, at 12-18. The final section of the brief recognized that “some courts have said that the right to bear arms in­cludes the right of the individual to have them for the protec­tion of his person and property,” and launched an alternative argument that “weapons which are commonly used by crimi­nals,” such as sawed-off shotguns, are not protected. See id., at 18-21. The Government’s Miller brief thus provided scant discussion of the history of the Second Amendment— and the Court was presented with no counterdiscussion. As for the text of the Court’s opinion itself, that discusses none of the history of the Second Amendment. It assumes from the prologue that the Amendment was designed to preserve the militia, 307 U. S., at 178 (which we do not dispute), and then reviews some historical materials dealing with the na­ture of the militia, and in particular with the nature of the arms their members were expected to possess, id., at 178-­182. Not a word (not a word) about the history of the Sec­ond Amendment. This is the mighty rock upon which the dissent rests its case.24

We may as well consider at this point (for we will have to consider eventually) what types of weapons Miller permits. Read in isolation, Miller’s phrase “part of ordinary military equipment” could mean that only those weapons useful in warfare are protected. That would be a startling reading of the opinion, since it would mean that the National Fire­arms Act’s restrictions on machineguns (not challenged in Miller) might be unconstitutional, machineguns being useful in warfare in 1939. We think that Miller’s “ordinary mili­tary equipment” language must be read in tandem with what comes after: “[0]rdinarily when called for [militia] service [able-bodied] men were expected to appear bearing arms supplied by themselves and of the kind in common use at the time.” 307 U. S., at 179. The traditional militia was formed from a pool of men bringing arms “in common use at the time” for lawful purposes like self-defense. “In the colonial and revolutionary war era, [smáll-arms] weapons used by mi­litiamen and weapons used in defense of person and home were one and the same.” State v. Kessler, 289 Ore. 359, 368, 614 P. 2d 94, 98 (1980) (citing G. Neumann, Swords and Blades of the American Revolution 6-15, 252-254 (1973)). Indeed, that is precisely the way in which the Second Amendment’s operative clause furthers the purpose an­nounced in its preface. We therefore read Miller to say only that the Second Amendment does not protect those weapons not typically possessed by law-abiding citizens for lawful purposes, such as short-barreled shotguns. That accords with the historical understanding of the scope of the right, see Part III, infra.25

We conclude that nothing in our precedents forecloses our adoption of the original understanding of the Second Amend­ment. It should be unsurprising that such a significant mat­ter has been for so long judicially unresolved. For most of our history, the Bill of Rights was not thought applicable to the States, and the Federal Government did not significantly regulate the possession of firearms by law-abiding citizens. Other provisions of the Bill of Rights have similarly re­mained unilluminated for lengthy periods. This Court first held a law to violate the First Amendment’s guarantee of freedom of speech in 1931, almost 150 years after the Amendment was ratified, see Near v. Minnesota ex rel. Olson, 283 U. S. 697 (1931), and it was not until after World War II that we held a law invalid under the Establishment Clause, see Illinois ex rel. McCollum v. Board of Ed. of School Dish No. 71, Champaign Cty., 333 U. S. 203 (1948). Even a question as basic as the scope of proscribable libel was not addressed by this Court until 1964, nearly two cen­turies after the founding. See New York Times Co. v. Sulli­van, 376 U. S. 254 (1964). It is demonstrably not true that, as Justice Stevens claims, post, at 676, “for most of our history, the invalidity of Second-Amendment-based objec­tions to firearms regulations has been well settled and un­controversial.” For most of our history the question did not present itself.

III

Like most rights, the right secured by the Second Amend­ment is not unlimited. From Blackstone through the 19th-­century cases, commentators and courts routinely explained that the right was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever pur­pose. See, e. g., Sheldon, in 5 Blume 346; Rawle 123; Pom­eroy 152-153; Abbott 333. For example, the majority of the 19th-century courts to consider the question held that prohi­bitions on carrying concealed weapons were lawful under the Second Amendment or state analogues. See, e. g., State v. Chandler, 5 La. Ann., at 489-490; Nunn v. State, 1 Ga., at 251; see generally 2 Kent *340, n. 2; The American Students’ Blackstone 84, n. 11 (G. Chase ed. 1884). Although we do not undertake an exhaustive historical analysis today of the full scope of the Second Amendment, nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws impos­ing conditions and qualifications on the commercial sale of arms.26

We also recognize another important limitation on the right to keep and carry arms. Miller said, as we have ex­plained, that the sorts of weapons protected were those “in common use at the time.” 307 U. S., at 179. We think that limitation is fairly supported by the historical tradition of prohibiting the carrying of “dangerous and unusual weap­ons.” See 4 Blackstone 148-149 (1769); 3 B. Wilson, Works of the Honourable James Wilson 79 (1804); J. Dunlap, The New-York Justice 8 (1815); C. Humphreys, A Compendium of the Common Law in Force in Kentucky 482 (1822); 1 W. Russell, A Treatise on Crimes and Indictable Misdemeanors 271-272 (1831); H. Stephen, Summary of the Criminal Law 48 (1840); E. Lewis, An Abridgment of the Criminal Law of the United States 64 (1847); F. Wharton, A Treatise on the Criminal Law of the United States 726 (1852). See also State v. Langford, 10 N. C. 381, 383-384 (1824); O’Neill v. State, 16 Ala. 65, 67 (1849); English v. State, 35 Tex. 473, 476 (1871); State v. Lanier, 71 N. C. 288, 289 (1874).

It may be objected that if weapons that are most useful in military service — M-16 rifles and the like — may be banned, then the Second Amendment right is completely detached from the prefatory clause. But as we have said, the concep­tion of the militia at the time of the Second Amendment’s ratification was the body of all citizens capable of military service, who would bring the sorts of lawful weapons that they possessed at home to militia duty. It may well be true today that a militia, to be as effective as militias in the 18th century, would require sophisticated arms that are highly unusual in society at large. Indeed, it may be true that no amount of small arms could be useful against modern-day bombers and tanks. But the fact that modern developments have limited the degree of fit between the prefatory clause and the protected right cannot change our interpretation of the right.

IV

We turn finally to the law at issue here. As we have said, the law totally bans handgun possession in the home. It also requires that any lawful firearm in the home be disas­sembled or bound by a trigger lock at all times, rendering it inoperable.

As the quotations earlier in this opinion demonstrate, the inherent right of self-defense has been central to the Second Amendment right. The handgun ban amounts to a prohibi­tion of an entire class of “arms” that is overwhelmingly cho­sen by American society for that lawful purpose. The prohi­bition extends, moreover, to the home, where the need for defense of self, family, and property is most acute. Under any of the standards of scrutiny that we have applied to enu­merated constitutional rights,27 banning from the home “the most preferred firearm in the nation to ‘keep’ and use for protection of one’s home and family,” 478 F. 3d, at 400, would fail constitutional muster.

New laws in the history of our Nation have come close to the severe restriction of the District’s handgun ban. And some of those few have been struck down. In Nunn v. State, the Georgia Supreme Court struck down a prohibition on carrying pistols openly (even though it upheld a prohibi­tion on carrying concealed weapons). See 1 Ga., at 251. In Andrews v. State, the Tennessee Supreme Court likewise held that a statute that forbade openly carrying a pistol “publicly or privately, without regard to time or place, or circumstances,” 50 Tenn., at 187, violated the state constitu­tional provision (which the court equated with the Second Amendment). That was so even though the statute did not restrict the carrying of long guns. Ibid. See also State v. Reid, 1 Ala. 612, 616-617 (1840) (“A statute which, under the pretence of regulating, amounts to a destruction of the right, or which requires arms to be so borne as to render them wholly useless for the purpose of defence, would be clearly unconstitutional”).

It is no answer to say, as petitioners do, that it is permissi­ble to ban the possession of handguns so long as the posses­sion of other firearms (i. e., long guns) is allowed. It is enough to note, as we have observed, that the American peo­ple have considered the handgun to be the quintessential self-defense weapon. There are many reasons that a citizen may prefer a handgun for home defense: It is easier to store in a location that is readily accessible in an emergency; it cannot easily be redirected or wrestled away by an attacker; it is easier to use for those without the upper-body strength to lift and aim a long gun; it can be pointed at a burglar with one hand while the other hand dials the police. Whatever the reason, handguns are the most popular weapon chosen by Americans for self-defense in the home, and a complete prohibition of their use is invalid.

We must also address the District’s requirement (as ap­plied to respondent’s handgun) that firearms in the home be rendered and kept inoperable at all times. This makes it impossible for citizens to use them for the core lawful pur­pose of self-defense and is hence unconstitutional. The Dis­trict argues that we should interpret this element of the statute to contain an exception for self-defense. See Brief for Petitioners 56-57. But we think that is precluded by the unequivocal text, and by the presence of certain other enumerated exceptions: “Except for law enforcement per­sonnel . . . , each registrant shall keep any firearm in his possession unloaded and disassembled or bound by a trigger lock or similar device unless such firearm is kept at his place of business, or while being used for lawful recreational pur­poses within the District of Columbia.” D. C. Code §7-­2507.02. The nonexistence of a self-defense exception is also suggested by the D. C. Court of Appeals’ statement that the statute forbids residents to use firearms to stop intruders, see McIntosh v. Washington, 395 A. 2d 744, 755-756 (1978).28

Apart from his challenge to the handgun ban and the trigger-lock requirement respondent asked the District Court to enjoin petitioners from enforcing the separate li­censing requirement “in such a manner as to forbid the car­rying of a firearm within one’s home or possessed land with­out a license.” App. 59a. The Court of Appeals did not invalidate the licensing requirement, but held only that the District “may not prevent [a handgun] from being moved throughout one’s house.” 478 F. 3d, at 400. It then ordered the District Court to enter summary judgment “consistent with [respondent’s] prayer for relief.” Id., at 401. Before this Court petitioners have stated that “if the handgun ban is struck down and respondent registers a handgun, he could obtain a license, assuming he is not otherwise disqualified,” by which they apparently mean if he is not a felon and is not insane. Brief for Petitioners 58. Respondent conceded at oral argument that he does not “have a problem with . . . licensing” and that the District’s law is permissible so long as it is “not enforced in an arbitrary and capricious manner.” Tr. of Oral Arg. 74-75. We therefore assume that petition­ers’ issuance of a license will satisfy respondent’s prayer for relief and do not address the licensing requirement.

Justice Breyer has devoted most of his separate dissent to the handgun ban. He says that, even assuming the Sec­ond Amendment is a personal guarantee of the right to bear arms, the District’s prohibition is valid. He first tries to establish this by founding-era historical precedent, pointing to various restrictive laws in the colonial period. These demonstrate, in his view, that the District’s law “imposes a burden upon gun owners that seems proportionately no greater than restrictions in existence at the time the Second Amendment was adopted.” Post, at 682. Of the laws he cites, only one offers even marginal support for his assertion. A 1783 Massachusetts law forbade the residents of Boston to “take into” or “receive into” “any Dwelling-House, Stable, Barn, Out-house, Ware-house, Store, Shop or other Building” loaded firearms, and permitted the seizure of any loaded firearms that “shall be found” there. Act of Mar. 1, 1783, ch. XIII, 1783 Mass. Acts p. 218. That statute’s text and its prologue, which makes clear that the purpose of the prohibi­tion was to eliminate the danger to firefighters posed by the “depositing of loaded Arms” in buildings, give reason to doubt that colonial Boston authorities would have enforced that general prohibition against someone who temporarily loaded a firearm to confront an intruder (despite the law’s application in that case). In any case, we would not stake our interpretation of the Second Amendment upon a single law, in effect in a single city, that contradicts the overwhelm­ing weight of other evidence regarding the right to keep and bear arms for defense of the home. The other laws Justice Breyer cites are gunpowder-storage laws that he concedes did not clearly prohibit loaded weapons, but required only that excess gunpowder be kept in a special container or on the top floor of the home. Post, at 686. Nothing about those fire-safety laws undermines our analysis; they do not remotely burden the right of self-defense as much as an abso­lute ban on handguns. Nor, correspondingly, does our anal­ysis suggest the invalidity of laws regulating the storage of firearms to prevent accidents.

Justice Breyer points to other founding-era laws that he says “restricted the firing of guns within the city limits to at least some degree” in Boston, Philadelphia, and New York. Post, at 683 (citing Churchill, Gun Regulation, the Po­lice Power, and the Right to Keep Arms in Early America, 25 Law & Hist. Rev. 139, 162 (2007)). Those laws provide no support for the severe restriction in the present case. The New York law levied a fine of 20 shillings on anyone who fired a gun in certain places (including houses) on New Year’s Eve and the first two days of January, and was aimed at preventing the “great Damages ... frequently done on [those days] by persons going House to House, with Guns and other Fire Arms and being often intoxicated with Liquor.” Ch. 1501, 5 Colonial Laws of New York 244-246 (1894). It is inconceivable that this law would have been enforced against a person exercising his right to self-defense on New Year’s Day against such drunken hooligans. The Pennsylva­nia law to which Justice Breyer refers levied a fine of five shillings on one who fired a gun or set off fireworks in Phila­delphia without first obtaining a license from the Governor. See Act of Aug. 26,1721, ch. CCXLV, § IV, in 3 Stat. at Large of Pa. 253-254 (1896). Given Justice Wilson’s explanation that the right to self-defense with arms was protected by the Pennsylvania Constitution, it is unlikely that this law (which in any event amounted to at most a licensing regime) would have been enforced against a person who used firearms for self-defense. Justice Breyer cites a Rhode Island law that simply levied a 5-shilling fine on those who fired guns in streets and taverns, a law obviously inapplicable to this case. See An Act for preventing Mischief being done in the town of Newport, or in any other Town in this Government, 1731 Rhode Island Session Laws pp. 240-241. Finally, Jus­tice Breyer points to a Massachusetts law similar to the Pennsylvania law, prohibiting “discharging] any Gun or Pis­tol charged with Shot or Ball in the Town of Boston” Act of May 28, 1746, ch. X, Acts and Laws of Mass. Bay p. 208. It is again implausible that this would have been enforced against a citizen acting in self-defense, particularly given its preambulatory reference to “the indiscreet firing of Guns.” Ibid, (preamble) (emphasis added).

A broader point about the laws that Justice Breyer cites: All of them punished the discharge (or loading) of guns with a small fine and forfeiture of the weapon (or in a few cases a very brief stay in the local jail), not with significant criminal penalties.29 They are akin to modern penalties for minor public-safety infractions like speeding or jaywalking. And although such public-safety laws may not contain excep­tions for self-defense, it is inconceivable that the threat of a jaywalking ticket would deter someone from disregarding a “Do Not Walk” sign in order to flee an attacker, or that the government would enforce those laws under such circum­stances. Likewise, we do not think that a law imposing a 5-shilling fine and forfeiture of the gun would have pre­vented a person in the founding era from using a gun to protect himself or his family from violence, or that if he did so the law would be enforced against him. The District law, by contrast, far from imposing a minor fine, threatens citi­zens with a year in prison (five years for a second violation) for even obtaining a gun in the first place. See D. C. Code § 7-2507.06.

Justice Breyer moves on to make a broad jurispruden­tial point: He criticizes us for declining to establish a level of scrutiny for evaluating Second Amendment restrictions. He proposes, explicitly at least, none of the traditionally ex­pressed levels (strict scrutiny, intermediate scrutiny, rational basis), but rather a judge-empowering “interest-balancing inquiry” that “asks whether the statute burdens a protected interest in a way or to an extent that is out of proportion to the statute’s salutary effects upon other important govern­mental interests.” Post, at 689-690. After an exhaustive discussion of the arguments for and against gun control, Jus­tice Breyer arrives at his interest-balanced answer: Be­cause handgun violence is a problem, because the law is lim­ited to an urban area, and because there were somewhat similar restrictions in the founding period (a false proposi­tion that we have already discussed), the interest-balancing inquiry results in the constitutionality of the handgun ban. QED.

We know of no other enumerated constitutional right whose core protection has been subjected to a freestanding “interest-balancing” approach. The very enumeration of the right takes out of the hands of government — even the Third Branch of Government — the power to decide on a case-by-case basis whether the right is really worth insisting upon. A constitutional guarantee subject to future judges’ assessments of its usefulness is no constitutional guarantee at all. Constitutional rights are enshrined with the scope they were understood to have when the people adopted them, whether or not future legislatures or (yes) even future judges think that scope too broad. We would not apply an “interest-balancing” approach to the prohibition of a peace­ful neo-Nazi march through Skokie. See National Socialist Party of America v. Skokie, 432 U. S. 43 (1977) (per curiam). The First Amendment contains the freedom-of-speech guar­antee that the people ratified, which included exceptions for obscenity, libel, and disclosure of state secrets, but not for the expression of extremely unpopular and wrongheaded views. The Second Amendment is no different. Like the First, it is the very product of an interest balancing by the people — which Justice Breyer would now conduct for them anew. And whatever else it leaves to future evalua­tion, it surely elevates above all other interests the right of law-abiding, responsible citizens to use arms in defense of hearth and home.

Justice Breyer chides us for leaving so many applica­tions of the right to keep and bear arms in doubt, and for not providing extensive historical justification for those reg­ulations of the right that we describe as permissible. See post, at 720-721. But since this case represents this Court’s first in-depth examination of the Second Amendment, one should not expect it to clarify the entire field, any more than Reynolds v. United States, 98 U. S. 145 (1879), our first in-­depth Free Exercise Clause case, left that area in a state of utter certainty. And there will be time enough to expound upon the historical justifications for the exceptions we have mentioned if and when those exceptions come before us.

In sum, we hold that the District’s ban on handgun posses­sion in the home violates the Second Amendment, as does its prohibition against rendering any lawful firearm in the home operable for the purpose of immediate self-defense. Assum­ing that Heller is not disqualified from the exercise of Second Amendment rights, the District must permit him to register his handgun and must issue him a license to carry it in the home.

* * *

We are aware of the problem of handgun violence in this country, and we take seriously the concerns raised by the many amici who believe that prohibition of handgun owner­ship is a solution. The Constitution leaves the District of Columbia a variety of tools for combating that problem, in­cluding some measures regulating handguns, see supra, at 626-627, and n. 26. But the enshrinement of constitutional rights necessarily takes certain policy choices off the table. These include the absolute prohibition of handguns held and used for self-defense in the home. Undoubtedly some think that the Second Amendment is outmoded in a society where our standing army is the pride of our Nation, where well-­trained police forces provide personal security, and where gun violence is a serious problem. That is perhaps debat­able, but what is not debatable is that it is not the role of this Court to pronounce the Second Amendment extinct.

We affirm the judgment of the Court of Appeals.

It is so ordered.

1

There are minor exceptions to all of these prohibitions, none of which is relevant here.

2

That construction has not been challenged here.

3

As Sutherland explains, the key 18th-century English ease on the effect of preambles, Copeman v. Gallant, 1 P. Wms. 314, 24 Eng. Rep. 404 (1716), stated that “the preamble could not be used to restrict the effect of the words used in the purview.” 2A N. Singer, Sutherland on Statutory Con­struction § 47.04, pp. 145-146 (rev. 5th ed. 1992). This rule was modified in England in an 1826 ease to give more importance to the preamble, but in America “the settled principle of law is that the preamble cannot control the enacting part of the statute in cases where the enacting part is ex­pressed in clear, unambiguous terms.” Id., at 146.

Justice Stevens says that we violate the general rule that every clause in a statute must have effect. Post, at 643. But where the text of a clause itself indicates that it does not have operative effect, such as “whereas” clauses in federal legislation or the Constitution’s preamble, a court has no license to make it do what it was not designed to do. Or to put the point differently, operative provisions should be given effect as operative provisions, and prologues as prologues.

4

Justice Stevens criticizes us for discussing the prologue last. Ibid. But if a prologue can be used only to clarify an ambiguous operative provi­sion, surely the first step must be to determine whether the operative provision is ambiguous. It might be argued, we suppose, that the pro­logue itself should be one of the factors that go into the determination of whether the operative provision is ambiguous — but that would cause the prologue to be used to produce ambiguity rather than just to resolve it. In any event, even if we considered the prologue along with the operative provision we would reach the same result we do today, since (as we ex­plain) our interpretation of “the right of the people to keep and bear arms” furthers the purpose of an effective militia no less than (indeed, more than) the dissent’s interpretation. See infra, at 599-600.

5

Justice Stevens is of course correct, post, at 645, that the right to assemble cannot be exercised alone, but it is still an individual right, and not one conditioned upon membership in some defined “assembly,” as he contends the right to bear arms is conditioned upon membership in a de­fined militia. And Justice Stevens is dead wrong to think that the right to petition is “primarily collective in nature.” Ibid. See McDon­ald v. Smith, 472 U. S. 479, 482-484 (1985) (describing historical origins of right to petition).

6

If we look to other founding-era documents, we find that some state constitutions used the term “the people” to refer to the people collectively, in contrast to “citizen,” which was used to invoke individual rights. See Heyman, Natural Rights and the Second Amendment, in The Second Amendment in Law and History 179,193-195 (C. Bogus ed. 2000) (herein­after Bogus). But that usage was not remotely uniform. See, e. g., N. C. Declaration of Rights § XIV (1776), in 5 The Federal and State Constitu­tions, Colonial Charters, and Other Organic Laws 2787,2788 (F. Thorpe ed. 1909) (hereinafter Thorpe) (jury trial); Md. Declaration of Rights § XVIII (1776), in 3 id., at 1686, 1688 (vicinage requirement); Vt. Declaration of Rights, ch. 1, §XI (1777), in 6 id., at 3737, 3741 (searches and seizures); Pa. Declaration of Rights § XII (1776), in 5 id., at 3082, 3083 (free speech). And, most importantly, it was clearly not the terminology used in the Federal Constitution, given the First, Fourth, and Ninth Amendments.

7

See, e.g., 3 A Compleat Collection of State-Tryals 185 (1719) (“Hath not every Subject power to keep Arms, as well as Servants in his House for defence of his Person?”); T. Wood, A New Institute of the Imperial or Civil Law 282 (4th ed. corrected 1730) (“Those are guilty of publick Force, who keep Arms in their Houses, and make use of them otherwise than upon Journeys or Hunting, or for Sale .. . ”); A Collection of All the Acts of Assembly, Now in Force, in the Colony of Virginia 596 (1733) (“Free Negros, Mulattos, or Indians, and Owners of Slaves, seated at Frontier Plantations, may obtain Licence from a Justice of Peace, for keeping Arms, c£e.”); J. Ayliffe, A New Pandect of Roman Civil Law 195 (1734) (“Yet a Person might keep Arms in his House, or on his Estate, on the Account of Hunting, Navigation, Travelling, and on the Score of Selling them in the way of Trade or Commerce, or such Arms as accrued to him by way of Inheritance”); J. Trusler, A Concise View of the Common Law and Statute Law of England 270 (1781) (“[I]f [papists] keep arms in their houses, such arms may be seized by a justice of the peace”); Some Consid­erations on the Game Laws 54 (1796) (“Who has been deprived by [the law] of keeping arms for his own defence? What law forbids the veriest pauper, if he can raise a sum sufficient for the purchase of it, from mount­ing his Gun on his Chimney Piece . . . ?”); 3 B. Wilson, The Works of the Honourable James Wilson 84 (1804) (with reference to state constitutional right: “This is one of our many renewals of the Saxon regulations. ‘They were bound,’ says Mr. Selden, ‘to keep arms for the preservation of the kingdom, and of their own persons’ ”); W. Duer, Outlines of the Constitu­tional Jurisprudence of the United States 31-32 (1833) (with reference to colonists’ English rights: “The right of every individual to keep arms for his defence, suitable to his condition and degree; which was the public allowance, under due restrictions of the natural right of resistance and self-preservation”); 3 R. Burn, Justice of the Peace and Parish Officer 88 (29th ed. 1845) (“It is, however, laid down by Serjeant Hawkins, . . . that if a lessee, after the end of the term, keep arms in his house to oppose the entry of the lessor,... ”); State v. Dempsey, 31 N. C. 384, 385 (1849) (citing 1840 state law making it a misdemeanor for a member of certain racial groups “to carry about his person or keep in his house any shot gun or other arms”).

8

See Pa. Declaration of Rights § XIII, in 5 Thorpe 3083 (“That the peo­ple have a right to bear arms for the defence of themselves and the state . . . ”); Vt. Declaration of Rights, ch. 1, § XV, in 6 id., at 3741 (“That the people have a right to bear arms for the defence of themselves and the State . . . ”); Ky. Const., Art. XII, § 23 (1792), in 3 id., at 1264, 1275 (“That the right of the citizens to bear arms in defence of themselves and the State shall not be questioned”); Ohio Const., Art. VIII, § 20 (1802), in 5 id., at 2901, 2911 (“That the people have a right to bear arms for the defence of themselves and the State ... ”); Ind. Const., Art. I, § 20 (1816), in 2 id., at 1057, 1059 (“That the people have a right to bear arms for the defense of themselves and the State ... ”); Miss. Const., Art. I, § 23 (1817), in 4 id., at 2032, 2034 (“Every citizen has a right to bear arms, in defence of himself and the State”); Conn. Const., Art. First, § 17 (1818), in 1 id., at 536, 538 (“Every citizen has a right to bear arms in defense of himself and the state”); Ala. Const., Art. I, § 23 (1819), in id., at 96, 98 (“Every citizen has a right to bear arms in defence of himself and the State”); Mo. Const., Art. XIII, § 3 (1820), in 4 id., at 2150, 2163 (“[T]hat their right to bear arms in defence of themselves and of the State cannot be questioned”). See generally Volokh, State Constitutional Rights to Keep and Bear Arms, 11 Tex. Rev. L. & Polities 191 (2006).

9

See Bliss v. Commonwealth, 2 Litt. 90, 91-92 (Ky. 1822); State v. Reid, 1 Ala. 612, 616-617 (1840); State v. Schoultz, 25 Mo. 128, 155 (1857); see also Simpson v. State, 5 Yer. 356, 360 (Tenn. 1833) (interpreting similar provision with “ ‘common defence’ ” purpose); State v. Huntly, 25 N. C. 418, 422-423 (1843) (same); cf. Nunn v. State, 1 Ga. 243, 250-251 (1846) (con­struing Second Amendment); State v. Chandler, 5 La. Ann. 489, 489-490 (1850) (same).

10

See J. Brydall, Privilegia Magnatud apud Anglos 14 (1704) (Privilege XXXIII) (“In the 21st Year of King Edward the Third, a Proclamation Issued, that no Person should bear any Arms within London, and the Sub­urbs”); J. Bond, A Compleat Guide to Justices of the Peace 43 (3d ed. 1707) (“Sheriffs, and all other Officers in executing their Offices, and all other persons pursuing Hu[e] and Cry may lawfully bear Arms”); 1 An Abridg­ment of the Public Statutes in Force and Use Relative to Scotland (1755) (entry for “Arms”: “And if any person above described shall have in his custody, use, or bear arms, being thereof convicted before one justice of peace, or other judge competent, summarily, he shall for the first offense forfeit all such arms” (citing 1 Geo., ch. 54, § 1, in 5 Eng. Stat. at Large 90 (1668))); Statute Law of Scotland Abridged 132-133 (2d ed. 1769) (“Acts for disarming the highlands” but “exempting those who have particular licenses to bear arms”); E. de Vattel, The Law of Nations, or, Principles of the Law of Nature 144 (1792) (“Since custom has allowed persons of rank and gentlemen of the army to bear arms in time of peace, strict care should be taken that none but these should be allowed to wear swords”); E. Roche, Proceedings of a Court-Martial, Held at the Council-Chamber, in the City of Cork 3 (1798) (charge VI: “With having held traitorous con­ferences, and with having conspired, with the like intent, for the purpose of attacking and despoiling of the arms of several of the King’s subjects, qualified by law to bear arms”); C. Humphreys, A Compendium of the Common Law in Force in Kentucky 482 (1822) ("[I]n this country the con­stitution guarranties to all persons the right to bear arms; then it can only be a crime to exercise this right in such a manner, as to terrify people unnecessarily”).

11

Justice Stevens contends, post, at 650, that since we assert that adding “against” to “bear arms” gives it a military meaning we must con­cede that adding a purposive qualifying phrase to “bear arms” can alter its meaning. But the difference is that we do not maintain that “against” alters the meaning of “bear arms” but merely that it clarifies which of various meanings (one of which is military) is intended. Justice Ste­vens, however, argues that “[t]he term ‘bear arms’ is a familiar idiom; when used unadorned by any additional words, its meaning is ‘to serve as a soldier, do military service, fight.’” Post, at 646. He therefore must establish that adding a contradictory purposive phrase can alter a word’s meaning.

12

Justice Stevens finds support for his legislative history inference from the recorded views of one Antifederalist member of the House. Post, at 660, n. 25. “The claim that the best or most representative read­ing of the [language of the] amendments would conform to the understand­ing and concerns of [the Antifederalists] is . . . highly problematic.” Ra­kove, The Second Amendment: The Highest Stage of Originalism, in Bogus 74, 81.

13

The same applies to the conscientious-objector amendments proposed by Virginia and North Carolina, which said: “That any person religiously scrupulous of bearing arms ought to be exempted upon payment of an equivalent to employ another to bear arms in his stead.” See Veit 19; 4 J. Eliot, The Debates in the Several State Constitutions on the Adoption of the Federal Constitution 243, 244 (2d ed. 1836) (reprinted 1941). Cer­tainly their second use of the phrase (“bear arms in his stead”) refers, by reason of context, to compulsory bearing of arms for military duty. But their first use of the phrase (“any person religiously scrupulous of bearing arms”) assuredly did not refer to people whose God allowed them to bear arms for defense of themselves but not for defense of their country.

14

Faced with this clear historical usage, Justice Stevens resorts to the bizarre argument that because the word “to” is not included before “bear” (whereas it is included before “petition” in the First Amendment), the unitary meaning of “ ‘to keep and bear’ ” is established. Post, at 651, n. 13. We have never heard of the proposition that omitting repetition of the “to” causes two verbs with different meanings to become one. A promise “to support and to defend the Constitution of the United States” is not a whit different from a promise “to support and defend the Constitu­tion of the United States.”

15

Cf. 21 Geo. II, ch. 34, § 3, in 7 Eng. Stat. at Large 126 (1748) (“That the Prohibition contained ... in this Act, of having, keeping, bearing, or wearing any Arms or Warlike Weapons . . . shall not extend ... to any Officers or their Assistants, employed in the Execution of Justice . . . ”).

16

Contrary to Justice Stevens’ wholly unsupported assertion, post, at 636, 652, there was no pre-existing right in English law “to use weapons for certain military purposes” or to use arms in an organized militia.

17

Article I, § 8, cl. 16, of the Constitution gives Congress the power “[t]o provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress.”

It could not be clearer that Congress’s “organizing" power, unlike its “gov­erning” power, can be invoked even for that part of the militia not “em­ployed in the Service of the United States.” Justice Stevens provides no support whatever for his contrary view, see post, at 654, n. 20. Both the Federalists and Antifederalists read the provision as it was written, to permit the creation of a “select” militia. See The Federalist No. 29, pp. 226, 227 (B. Wright ed. 1961); Centinel, Revived, No. XXIX, Philadel­phia Independent Gazetteer, Sept. 9, 1789, in Young 711, 712.

18

Justice Stevens says that the drafters of the Virginia Declaration of Rights rejected this proposal and adopted “instead” a provision written by George Mason stressing the importance of the militia. See post, at 659, and n. 24. There is no evidence that the drafters regarded the Mason proposal as a substitute for the Jefferson proposal.

19

Justice Stevens quotes some of Tucker’s unpublished notes, which he claims show that Tucker had ambiguous views about the Second Amendment. See post, at 666, and n. 32. But it is clear from the notes that Tucker located the power of States to arm their militias in the Tenth Amendment, and that he cited the Second Amendment for the proposition that such armament could not run afoul of any power of the Federal Gov­ernment (since the Amendment prohibits Congress from ordering disar­mament). Nothing in the passage implies that the Second Amendment pertains only to the carrying of arms in the organized militia.

20

Rawle, writing before our decision in Barron ex rel. Tiernan v. Mayor of Baltimore, 7 Pet. 248 (1833), believed that the Second Amendment could be applied against the States. Such a belief would of course be nonsensi­cal on petitioners’ view that it protected only a right to possess and carry arms when conscripted by the State itself into militia service.

21

Justice Stevens suggests that this is not obvious because free blacks in Virginia had been required to muster without arms. See post, at 663, n. 29 (citing Siegel, The Federal Government’s Power to Enact Color-­Conscious Laws, 92 Nw. U. L. Rev. 477, 497 (1998)). But that could not have been the type of law referred to in Aldridge, because that practice had stopped 30 years earlier when blacks were excluded entirely from the militia by the first Militia Act. See Siegel, supra, at 498, n. 120. Jus­tice Stevens further suggests that laws barring blacks from militia serv­ice could have been said to violate the “right to bear arms.” But under Justice Stevens’ reading of the Second Amendment (we think), the pro­tected right is the right to carry arms to the extent one is enrolled in the militia, not the right to be in the militia. Perhaps Justice Stevens really does adopt the full-blown idiomatic meaning of “bear arms,” in which case every man and woman in this country has a right “to be a soldier” or even “to wage war.” In any case, it is clear to us that Al­dridge’s allusion to the existing Virginia “restriction” upon the right of free blacks “to bear arms” could only have referred to “laws prohibiting free blacks from keeping weapons,” Siegel, supra, at 497-498.

22

Justice Stevens’ accusation that this is “not accurate,” post, at 673, is wrong. It is true it was the indictment that described the right as “bearing arms for a lawful purpose.” But, in explicit reference to the right described in the indictment, the Court stated that “[t]he second amendment declares that it [i. e., the right of bearing arms for a lawful purpose] shall not be infringed.” 92 U. S., at 553.

23

With respect to Cruikshank’s continuing validity on incorporation, a question not presented by this case, we note that Cruikshank also said that the First Amendment did not apply against the States and did not engage in the sort of Fourteenth Amendment inquiry required by our later cases. Our later decisions in Presser v. Illinois, 116 U. S. 252, 265 (1886), and Miller v. Texas, 153 U. S. 535, 538 (1894), reaffirmed that the Second Amendment applies only to the Federal Government.

24

As for the “hundreds of judges,” post, at 638, who have relied on the view of the Second Amendment Justice Stevens claims we endorsed in Miller: If so, they overread Miller. And their erroneous reliance upon an uncontested and virtually unreasoned case cannot nullify the reliance of millions of Americans (as our historical analysis has shown) upon the true meaning of the right to keep and bear arms. In any event, it should not be thought that the cases decided by these judges would necessarily have come out differently under a proper interpretation of the right.

25

Miller was briefly mentioned in our decision in Lewis v. United States, 445 U. S. 55 (1980), an appeal from a conviction for being a felon in posses­sion of a firearm. The challenge was based on the contention that the prior felony conviction had been unconstitutional. No Second Amend­ment claim was raised or briefed by any party. In the course of rejecting the asserted challenge, the Court commented gratuitously, in a footnote, that “[t]hese legislative restrictions on the use of firearms are neither based upon constitutionally suspect criteria, nor do they trench upon any constitutionally protected liberties. See United States v. Miller .. . (the Second Amendment guarantees no right to keep and bear a firearm that does not have ‘some reasonable relationship to the preservation or effi­ciency of a well regulated militia’).” Id., at 65-66, n. 8. The footnote then cites several Court of Appeals cases to the same effect. It is incon­ceivable that we would rest our interpretation of the basic meaning of any guarantee of the Bill of Rights upon such a footnoted dictum in a case where the point was not at issue and was not argued.

26

We identify these presumptively lawful regulatory measures only as examples; our list does not purport to be exhaustive.

27

Justice Breyer correctly notes that this law, like almost all laws, would pass rational-basis scrutiny. Post, at 687-688. But rational-basis scrutiny is a mode of analysis we have used when evaluating laws under constitutional commands that are themselves prohibitions on irrational laws. See, e. g., Engquist v. Oregon Dept. of Agriculture, 553 U. S. 591, 602 (2008). In those cases, “rational basis” is not just the standard of scrutiny, but the very substance of the constitutional guarantee. Obvi­ously, the same test could not be used to evaluate the extent to which a legislature may regulate a specific, enumerated right, be it the freedom of speech, the guarantee against double jeopardy, the right to counsel, or the right to keep and bear arms. See United States v. Carotene Products Co., 304 U. S. 144, 152, n. 4 (1938) (“There may be narrower scope for operation of the presumption of constitutionality [i. e., narrower than that provided by rational-basis review] when legislation appears on its face to be within a specific prohibition of the Constitution, such as those of the first ten amendments . . . ”). If all that was required to overcome the right to keep and bear arms was a rational basis, the Second Amendment would be redundant with the separate constitutional prohibitions on irrational laws, and would have no effect.

28

McIntosh upheld the law against a claim that it violated the Equal Protection Clause by arbitrarily distinguishing between residences and businesses. See 395 A. 2d, at 755. One of the rational bases listed for that distinction was the legislative finding “that for each intruder stopped by a firearm there are four gun-related accidents within the home.” Ibid. That tradeoff would not bear mention if the statute did not prevent stop­ping intruders by firearms.

29

The Supreme Court of Pennsylvania described the amount of five shil­lings in a contract matter in 1792 as “nominal consideration.” Morris’s Lessee v. Smith, 4 Dali. 119, 120 (Pa. 1792). Many of the laws cited pun­ished violation with fine in a similar amount; the 1783 Massachusetts gunpowder-storage law carried a somewhat larger fine of £10 (200 shil­lings) and forfeiture of the weapon.

Justice Stevens, with whom Justice Souter, Justice Ginsburg, and Justice Breyer

join, dissenting.

The question presented by this case is not whether the Second Amendment protects a “collective right” or an “indi­vidual right.” Surely it protects a right that can be en­forced by individuals. But a conclusion that the Second Amendment protects an individual right does not tell us any­thing about the scope of that right.

Guns are used to hunt, for self-defense, to commit crimes, for sporting activities, and to perform military duties. The Second Amendment plainly does not protect the right to use a gun to rob a bank; it is equally clear that it does encompass the right to use weapons for certain military purposes. Whether it also protects the right to possess and use guns for nonmilitary purposes like hunting and personal self-­defense is the question presented by this case. The text of the Amendment, its history, and our decision in United States v. Miller, 307 U. S. 174 (1939), provide a clear answer to that question.

The Second Amendment was adopted to protect the right of the people of each of the several States to maintain a well-regulated militia. It was a response to concerns raised during the ratification of the Constitution that the power of Congress to disarm the state militias and create a national standing army posed an intolerable threat to the sovereignty of the several States. Neither the text of the Amendment nor the arguments advanced by its proponents evidenced the slightest interest in limiting any legislature’s authority to regulate private civilian uses of firearms. Specifically, there is no indication that the Framers of the Amendment in­tended to enshrine the common-law right of self-defense in the Constitution.

In 1934, Congress enacted the National Firearms Act, the first major federal firearms law.1 Sustaining an indictment under the Act, this Court held that, “[i]n the absence of any evidence tending to show that possession or use of a ‘shotgun having a barrel of less than eighteen inches in length’ at this time has some reasonable relationship to the preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument.” Miller, 307 U. S., at 178. The view of the Amendment we took in Miller—that it protects the right to keep and bear arms for certain military purposes, but that it does not curtail the Legislature’s power to regu­late the nonmilitary use and ownership of weapons — is both the most natural reading of the Amendment’s text and the interpretation most faithful to the history of its adoption.

Since our decision in Miller, hundreds of judges have re­lied on the view of the Amendment we endorsed there;2 we ourselves affirmed it in 1980. See Lewis v. United States, 445 U. S. 55, 65-66, n. 8 (1980).3 No new evidence has sur­faced since 1980 supporting the view that the Amendment was intended to curtail the power of Congress to regulate civilian use or misuse of weapons. Indeed, a review of the drafting history of the Amendment demonstrates that its Framers rejected proposals that would have broadened its coverage to include such uses.

The opinion the Court announces today fails to identify any new evidence supporting the view that the Amendment was intended to limit the power of Congress to regulate civil­ian uses of weapons. Unable to point to any such evidence, the Court stakes its holding on a strained and unpersuasive reading of the Amendment’s text; significantly different pro­visions in the 1689 English Bill of Rights, and in various 19th-century State Constitutions; postenactment commen­tary that was available to the Court when it decided Miller; and, ultimately, a feeble attempt to distinguish Miller that places more emphasis on the Court’s decisional process than on the reasoning in the opinion itself.

Even if the textual and historical arguments on both sides of the issue were evenly balanced, respect for the well-­settled views of all of our predecessors on this Court, and for the rule of law itself, see Mitchell v. W. T. Grant Co., 416 U. S. 600, 636 (1974) (Stewart, J., dissenting), would prevent most jurists from endorsing such a dramatic upheaval in the law.4 As Justice Cardozo observed years ago, the “labor of judges would be increased almost to the breaking point if every past decision could be reopened in every case, and one could not lay one’s own course of bricks on the secure founda­tion of the courses laid by others who had gone before him.” The Nature of the Judicial Process 149 (1921).

In this dissent I shall first explain why our decision in Miller was faithful to the text of the Second Amendment and the purposes revealed in its drafting history. I shall then comment on the postratification history of the Amend­ment, which makes abundantly clear that the Amendment should not be interpreted as limiting the authority of Con­gress to regulate the use or possession of firearms for purely civilian purposes.

I

The text of the Second Amendment is brief. It 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.”

Three portions of that text merit special focus: the intro­ductory language defining the Amendment’s purpose, the class of persons encompassed within its reach, and the uni­tary nature of the right that it protects.

“A well regulated Militia, being necessary to the security of a free State”

The preamble to the Second Amendment makes three im­portant points. It identifies the preservation of the militia as the Amendment’s purpose; it explains that the militia is necessary to the security of a free State; and it recognizes that the militia must be “well regulated.” In all three re­spects it is comparable to provisions in several State Decla­rations of Rights that were adopted roughly contemporane­ously with the Declaration of Independence.5 Those state provisions highlight the importance members of the founding generation attached to the maintenance of state militias; they also underscore the profound fear shared by many in that era of the dangers posed by standing armies.6 While the need for state militias has not been a matter of significant public interest for almost two centuries, that fact should not obscure the contemporary concerns that animated the Framers.

The parallels between the Second Amendment and these state declarations, and the Second Amendment’s omission of any statement of purpose related to the right to use firearms for hunting or personal self-defense, is especially striking in light of the fact that the Declarations of Rights of Pennsylva­nia and Vermont did expressly protect such civilian uses at the time. Article XIII of Pennsylvania’s 1776 Declaration of Rights announced that “the people have a right to bear arms for the defence of themselves and the state,” 1 Schwartz 266 (emphasis added); § 43 of the Declaration ensured that “[t]he inhabitants of this state shall have the liberty to fowl and hunt in seasonable times on the lands they hold, and on all other lands therein not inclosed,” id., at 274. And Article XV of the 1777 Vermont Declaration of Rights guaranteed “[t]hat the people have a right to bear arms for the defence of themselves and the State.” Id., at 324 (emphasis added). The contrast between those two declarations and the Second Amendment reinforces the clear statement of purpose an­nounced in the Amendment’s preamble. It confirms that the Framers’ single-minded focus in crafting the constitutional guarantee “to keep and bear Arms” was on military uses of firearms, which they viewed in the context of service in state militias.

The preamble thus both sets forth the object of the Amendment and informs the meaning of the remainder of its text. Such text should not be treated as mere surplusage, for “[i]t cannot be presumed that any clause in the constitu­tion is intended to be without effect.” Marbury v. Madison, 1 Cranch 137, 174 (1803).

The Court today tries to denigrate the importance of this clause of the Amendment by beginning its analysis with the Amendment’s operative provision and returning to the pre­amble merely “to ensure that our reading of the operative clause is consistent with the announced purpose.” Ante, at 578. That is not how this Court ordinarily reads such texts, and it is not how the preamble would have been viewed at the time the Amendment was adopted. While the Court makes the novel suggestion that it need only find some “logical connection” between the preamble and the operative provision, it does acknowledge that a prefatory clause may resolve an ambiguity in the text. Ante, at 577.7 Without identifying any language in the text that even mentions civil­ian uses of firearms, the Court proceeds to “find” its pre­ferred reading in what is at best an ambiguous text, and then concludes that its reading is not foreclosed by the preamble. Perhaps the Court’s approach to the text is acceptable advo­cacy, but it is surely an unusual approach for judges to follow.

“[TJhe right of the people”

The centerpiece of the Court’s textual argument is its in­sistence that the words “the people” as used in the Second Amendment must have the same meaning, and protect the same class of individuals, as when they are used in the First and Fourth Amendments. According to the Court, in all three provisions — as well as the Constitution’s preamble, § 2 of Article I, and the Tenth Amendment — “the term unambig­uously refers to all members of the political community, not an unspecified subset.” Ante, at 580. But the Court itself reads the Second Amendment to protect a “subset” signifi­cantly narrower than the class of persons protected by the First and Fourth Amendments; when it finally drills down on the substantive meaning of the Second Amendment, the Court limits the protected class to “law-abiding, responsible citizens,” ante, at 635. But the class of persons protected by the First and Fourth Amendments is not so limited; for even felons (and presumably irresponsible citizens as well) may invoke the protections of those constitutional provi­sions. The Court offers no way to harmonize its conflicting pronouncements.

The Court also overlooks the significance of the way the Framers used the phrase “the people” in these constitutional provisions. In the First Amendment, no words define the class of individuals entitled to speak, to publish, or to wor­ship; in that Amendment it is only the right peaceably to assemble, and to petition the Government for a redress of grievances, that is described as a right of “the people.” These rights contemplate collective action. While the right peaceably to assemble protects the individual rights of those persons participating in the assembly, its concern is with ac­tion engaged in by members of a group, rather than any sin­gle individual. Likewise, although the act of petitioning the Government is a right that can be exercised by individuals, it is primarily collective in nature. For if they are to be effective, petitions must involve groups of individuals acting in concert.

Similarly, the words “the people” in the Second Amend­ment refer back to the object announced in the Amendment’s preamble. They remind us that it is the collective action of individuals having a duty to serve in the militia that the text directly protects and, perhaps more importantly, that the ul­timate purpose of the Amendment was to protect the States’ share of the divided sovereignty created by the Constitution.

As used in the Fourth Amendment, “the people” describes the class of persons protected from unreasonable searches and seizures by Government officials. It is true that the Fourth Amendment describes a right that need not be exer­cised in any collective sense. But that observation does not settle the meaning of the phrase “the people” when used in the Second Amendment. For, as we have seen, the phrase means something quite different in the Petition and Assem­bly Clauses of the First Amendment. Although the abstract definition of the phrase “the people” could carry the same meaning in the Second Amendment as in the Fourth Amend­ment, the preamble of the Second Amendment suggests that the uses of the phrase in the First and Second Amendments are the same in referring to a collective activity. By way of contrast, the Fourth Amendment describes a right against governmental interference rather than an affirmative right to engage in protected conduct, and so refers to a right to protect a purely individual interest. As used in the Second Amendment, the words “the people” do not enlarge the right to keep and bear arms to encompass use or ownership of weapons outside the context of service in a well-regulated militia.

“[T]o keep and bear Arms”

Although the Court’s discussion of these words treats them as two “phrases” — as if they read “to keep” and “to bear” — they describe a unitary right: to possess arms if needed for military purposes and to use them in conjunction with military activities.

As a threshold matter, it is worth pausing to note an odd­ity in the Court’s interpretation of “to keep and bear Arms.” Unlike the Court of Appeals, the Court does not read that phrase to create a right to possess arms for “lawful, private purposes.” Parker v. District of Columbia, 478 F. 3d 370, 382 (CADC 2007). Instead, the Court limits the Amend­ment’s protection to the right “to possess and carry weapons in case of confrontation.” Ante, at 592. No party or ami­cus urged this interpretation; the Court appears to have fashioned it out of whole cloth. But although this novel limi­tation lacks support in the text of the Amendment, the Amendment’s text does justify a different limitation: The “right to keep and bear Arms” protects only a right to pos­sess and use firearms in connection with service in a state-­organized militia.

The term “bear arms” is a familiar idiom; when used un­adorned by any additional words, its meaning is “to serve as a soldier, do military service, fight.” 1 Oxford English Dictionary 634 (2d ed. 1989). It is derived from the Latin arma ferre, which, translated literally, means “to bear [ferre] war equipment [arma]” Brief for Professors of Linguistics and English as Amici Curiae 19. One 18th-­century dictionary defined “arms” as “[w]eapons of offence, or armour of defence,” 1 S. Johnson, A Dictionary of the Eng­lish Language (1755), and another contemporaneous source explained that “[b]y arms, we understand those instruments of offence generally made use of in war; such as firearms, swords, &c. By weapons, we more particularly mean in­struments of other kinds (exclusive of fire-arms), made use of as offensive, on special occasions.” 1 J. Trusler, The Dis­tinction Between Words Esteemed Synonymous in the Eng­lish Language 37 (3d ed. 1794).8 Had the Framers wished to expand the meaning of the phrase “bear arms” to encompass civilian possession and use, they could have done so by the addition of phrases such as “for the defense of themselves,” as was done in the Pennsylvania and Vermont Declarations of Rights. The unmodified use of “bear arms,” by contrast, refers most naturally to a military purpose, as evidenced by its use in literally dozens of contemporary texts.9 The ab­sence of any reference to civilian uses of weapons tailors the text of the Amendment to the purpose identified in its pre­amble.10 But when discussing these words, the Court sim­ply ignores the preamble.

The Court argues that a “qualifying phrase that contra­dicts the word or phrase it modifies is unknown this side of the looking glass.” Ante, at 589. But this fundamentally fails to grasp the point. The stand-alone phrase “bear arms” most naturally conveys a military meaning unless the addition of a qualifying phrase signals that a different mean­ing is intended. When, as in this case, there is no such qual­ifier, the most natural meaning is the military one; and, in the absence of any qualifier, it is all the more appropriate to look to the preamble to confirm the natural meaning of the text. 11 The Court’s objection is particularly puzzling in light of its own contention that the addition of the modifier “against” changes the meaning of “bear arms.” Compare ante, at 584 (defining “bear arms” to mean “carrying [a weapon] for a particular purpose — confrontation”), with ante, at 586 (“The phrase ‘bear Arms’ also had at the time of the founding an idiomatic meaning that was significantly differ­ent from its natural meaning: to serve as a soldier, do mili­tary service, fight or to wage war. But it unequivocally bore that idiomatic meaning only when followed by the preposi­tion ‘against’ ” (emphasis deleted; citations and some internal quotation marks omitted)).

The Amendment’s use of the term “keep” in no way con­tradicts the military meaning conveyed by the phrase “bear arms” and the Amendment’s preamble. To the contrary, a number of state militia laws in effect at the time of the Sec­ond Amendment’s drafting used the term “keep” to describe the requirement that militia members store their arms at their homes, ready to be used for service when necessary. The Virginia military law, for example, ordered that “every one of the said officers, non-commissioned officers, and pri­vates, shall constantly keep the aforesaid arms, accoutre­ments, and ammunition, ready to be produced whenever called for by his commanding officer.” Act ... for Regu­lating and Disciplining the Militia, 1785 Va. Acts ch. 1, § III, p. 2 (emphasis added).12 “[K]eep and bear arms” thus per­fectly describes the responsibilities of a framing-era militia member.

This reading is confirmed by the fact that the clause pro­tects only one right, rather than two. It does not describe a right “to keep ... Arms” and a separate right “to bear . .. Arms.” Rather, the single right that it does describe is both a duty and a right to have arms available and ready for military service, and to use them for military purposes when necessary.13 Different language surely would have been used to protect nonmilitary use and possession of weapons from regulation if such an intent had played any role in the drafting of the Amendment.

* * *

When each word in the text is given full effect, the Amendment is most naturally read to secure to the people a right to use and possess arms in conjunction with service in a well-regulated militia. So far as appears, no more than that was contemplated by its drafters or is encompassed within its terms. Even if the meaning of the text were gen­uinely susceptible to more than one interpretation, the bur­den would remain on those advocating a departure from the purpose identified in the preamble and from settled law to come forward with persuasive new arguments or evidence. The textual analysis offered by respondent and embraced by the Court falls far short of sustaining that heavy burden.14 And the Court’s emphatic reliance on the claim “that the Second Amendment . . . codified a pre-existing right,” ante, at 592, is of course beside the point because the right to keep and bear arms for service in a state militia was also a pre­existing right.

Indeed, not a word in the constitutional text even arguably supports the Court’s overwrought and novel description of the Second Amendment as “elevat[ing] above all other inter­ests the right of law-abiding, responsible citizens to use arms in defense of hearth and home.” Ante, at 635.

II

The proper allocation of military power in the new Nation was an issue of central concern for the Framers. The com­promises they ultimately reached, reflected in Article I’s Mi­litia Clauses and the Second Amendment, represent quint­essential examples of the Framers’ “splitting] the atom of sovereignty.”15

Two themes relevant to our current interpretive task ran through the debates on the original Constitution. “On the one hand, there was a widespread fear that a national stand­ing Army posed an intolerable threat to individual liberty and to the sovereignty of the separate States.” Perpich v. Department of Defense, 496 U. S. 334, 340 (1990).16 Gover­nor Edmund Randolph, reporting on the Constitutional Con­vention to the Virginia Ratification Convention, explained: “With respect to a standing army, I believe there was not a member in the federal Convention, who did not feel indigna­tion at such an institution.” 3 J. Elliot, Debates in the Sev­eral State Conventions on the Adoption of the Federal Con­stitution 401 (2d ed. 1863) (hereinafter Elliot). On the other hand, the Framers recognized the dangers inherent in rely­ing on inadequately trained militia members “as the primary means of providing for the common defense,” Perpich, 496 U. S., at 340; during the Revolutionary War, “[t]his force, though armed, was largely untrained, and its deficiencies were the subject of bitter complaint.” Wiener, The Militia Clause of the Constitution, 54 Harv. L. Rev. 181, 182 (1940).17 In order to respond to those twin concerns, a compromise was reached: Congress would be authorized to raise and sup­port a national Army18 and Navy, and also to organize, arm, discipline, and provide for the calling forth of “the Militia.” U. S. Const., Art. I, § 8, cls. 12-16. The President, at the same time, was empowered as the “Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States.” Art. II, §2. But, with respect to the militia, a significant reservation was made to the States: Al­though Congress would have the power to call forth,19 orga­nize, arm, and discipline the militia, as well as to govern “such Part of them as may be employed in the Service of the United States,” the States respectively would retain the right to appoint the officers and to train the militia in accord­ance with the discipline prescribed by Congress. Art. I, § 8, cl. 16.20

But the original Constitution’s retention of the militia and its creation of divided authority over that body did not prove sufficient to allay fears about the dangers posed by a stand­ing army. For it was perceived by some that Article I con­tained a significant gap: While it empowered Congress to organize, arm, and discipline the militia, it did not prevent Congress from providing for the militia’s disarmament. As George Mason argued during the debates in Virginia on the ratification of the original Constitution:

“The militia may be here destroyed by that method which has been practised in other parts of the world before; that is, by rendering them useless — by disarming them. Under various pretences, Congress may neglect to provide for arming and disciplining the militia; and the state governments cannot do it, for Congress has the exclusive right to arm them.” 3 Elliot 379.

This sentiment was echoed at a number of state ratifica­tion conventions; indeed, it was one of the primary objections to the original Constitution voiced by its opponents. The Antifederalists were ultimately unsuccessful in persuading state ratification conventions to condition their approval of the Constitution upon the eventual inclusion of any particu­lar amendment. But a number of States did propose to the first Federal Congress amendments reflecting a desire to en­sure that the institution of the militia would remain pro­tected under the new Government. The proposed amend­ments sent by the States of Virginia, North Carolina, and New York focused on the importance of preserving the state militias and reiterated the dangers posed by standing ar­mies. New Hampshire sent a proposal that differed signifi­cantly from the others; while also invoking the dangers of a standing army, it suggested that the Constitution should more broadly protect the use and possession of weapons, without tying such a guarantee expressly to the maintenance of the militia. The States of Maryland, Pennsylvania, and Massachusetts sent no relevant proposed amendments to Congress, but in each of those States a minority of the dele­gates advocated related amendments. While the Maryland minority proposals were exclusively concerned with standing armies and conscientious objectors, the unsuccessful propos­als in both Massachusetts and Pennsylvania would have pro­tected a more broadly worded right, less clearly tied to serv­ice in a state militia. Faced with all of these options, it is telling that James Madison chose to craft the Second Amend­ment as he did.

The relevant proposals sent by the Virginia Ratifying Con­vention read as follows:

“17th. That the people have a right to keep and bear arms; that a well-regulated militia, composed of the body of the people trained to arms, is the proper, natu­ral, and safe defence of a free state; that standing ar­mies, in time of peace, are dangerous to liberty, and therefore ought to be avoided, as far as the circum­stances and protection of the community will admit; and that, in all cases, the military should be under strict sub­ordination to, and be governed by, the civil power.” Id., at 659.

“19th. That any person religiously scrupulous of bearing arms ought to be exempted, upon payment of an equivalent to employ another to bear arms in his stead.” Ibid.

North Carolina adopted Virginia’s proposals and sent them to Congress as its own, although it did not actually ratify the original Constitution until Congress had sent the proposed Bill of Rights to the States for ratification. 2 Schwartz 932-­933; see The Complete Bill of Rights 182-183 (N. Cogan ed. 1997) (hereinafter Cogan).

New York produced a proposal with nearly identical lan­guage. It read:

“That the people have a' right to keep and bear Arms; that a well regulated Militia, including the body of the People capable of bearing Arms, is the proper, nat­ural and safe defence of a free State. . . . That stand­ing Armies, in time of Peace, are dangerous to Lib­erty, and ought not to be kept up, except in Cases of necessity; and that at all times, the Military should be kept under strict Subordination to the civil Power.” 2 Schwartz 912.

Notably, each of these proposals used the phrase “keep and bear arms,” which was eventually adopted by Madison. And each proposal embedded the phrase within a group of principles that are distinctly military in meaning.21

By contrast, New Hampshire’s proposal, although it fol­lowed another proposed amendment that echoed the familiar concern about standing armies,22 described the protection in­volved in more clearly personal terms. Its proposal read:

“Twelfth, Congress shall never disarm any Citizen un­less such as are or have been in Actual Rebellion.” Id., at 758, 761.

The proposals considered in the other three States, al­though ultimately rejected by their respective ratification conventions, are also relevant to our historical inquiry. First, the Maryland proposal, endorsed by a minority of the delegates and later circulated in pamphlet form, read:

“4. That no standing army shall be kept up in time of peace, unless with the consent of two thirds of the mem­bers present of each branch of Congress.

“10. That no person conscientiously scrupulous of bearing arms, in any case, shall be compelled personally to serve as a soldier.” Id., at 729, 735.

The rejected Pennsylvania proposal, which was later in­corporated into a critique of the Constitution titled “The Ad­dress and Reasons of Dissent of the Minority of the Conven­tion of the State of Pennsylvania to Their Constituents, 1787,” signed by a minority of the State’s delegates (those who had voted against ratification of the Constitution), id., at 628, 662, read:

“7. That the people have a right to bear arms for the defense of themselves and their own State, or the United States, or for the purpose of killing game; and no law shall be passed for disarming the people or any of them unless for crimes committed, or real danger of public injury from individuals; and as standing armies in the time of peace are dangerous to liberty, they ought not to be kept up; and that the military shall be kept under strict subordination to, and be governed by the civil powers.” Id., at 665.

Finally, after the delegates at the Massachusetts Ratifica­tion Convention had compiled a list of proposed amendments and alterations, a motion was made to add to the list the following language: “that the said Constitution be never con­strued to authorize Congress to . . . prevent the people of the United States, who are peaceable citizens, from keeping their own arms.” Cogan 181. This motion, however, failed to achieve the necessary support, and the proposal was ex-­eluded from the list of amendments the State sent to Con­gress. 2 Schwartz 674-675.

Madison, charged with the task of assembling the propos­als for amendments sent by the ratifying States, was the principal draftsman of the Second Amendment.23 He had before him, or at the very least would have been aware of, all of these proposed formulations. In addition, Madison had been a member, some years earlier, of the committee tasked with drafting the Virginia Declaration of Rights. That committee considered a proposal by Thomas Jefferson that would have included within the Virginia Declaration the following language: “No freeman shall ever be debarred the use of arms [within his own lands or tenements].” 1 Papers of Thomas Jefferson 363 (J. Boyd ed. 1950). But the commit­tee rejected that language, adopting instead the provision drafted by George Mason.24

With all of these sources upon which to draw, it is strik­ingly significant that Madison’s first draft omitted any men­tion of nonmilitary use or possession of weapons. Rather, his original draft repeated the essence of the two proposed amendments sent by Virginia, combining the substance of the two provisions succinctly into one, which read: “The right of the people to keep and bear arms shall not be in­fringed; a well armed, and well regulated militia being the best security of a free country; but no person religiously scrupulous of bearing arms, shall be compelled to render mil­itary service in person.” Cogan 169.

Madison’s decision to model the Second Amendment on the distinctly military Virginia proposal is therefore revealing, since it is clear that he considered and rejected formulations that would have unambiguously protected civilian uses of firearms. When Madison prepared his first draft, and when that draft was debated and modified, it is reasonable to as­sume that all participants in the drafting process were fully aware of the other formulations that would have protected civilian use and possession of weapons and that their choice to craft the Amendment as they did represented a rejection of those alternative formulations.

Madison’s initial inclusion of an exemption for conscien­tious objectors sheds revelatory light on the purpose of the Amendment. It confirms an intent to describe a duty as well as a right, and it unequivocally identifies the mili­tary character of both. The objections voiced to the conscientious-objector clause only confirm the central mean­ing of the text. Although records of the debate in the Sen­ate, which is where the conscientious-objector clause was re­moved, do not survive, the arguments raised in the House illuminate the perceived problems with the clause: Specifi­cally, there was concern that Congress “can declare who are those religiously scrupulous, and prevent them from bearing arms.”25 The ultimate removal of the clause, therefore, only serves to confirm the purpose of the Amendment — to protect against congressional disarmament, by whatever means, of the States’ militias.

The Court also contends that because “Quakers opposed the use of arms not just for militia service, but for any vio­lent purpose whatsoever,” ante, at 590, the inclusion of a conscientious-objector clause in the original draft of the Amendment does not support the conclusion that the phrase “bear Arms” was military in meaning. But that claim can­not be squared with the record. In the proposals cited supra, at 656, both Virginia and North Carolina included the following language: “That any person religiously scrupulous of bearing arms ought to be exempted, upon payment of an equivalent to employ another to bear arms in his stead” (em­phasis added).26 There is no plausible argument that the use of “bear arms” in those provisions was not unequivocally and exclusively military: The State simply does not compel its citizens to carry arms for the purpose of private “confronta­tion,” ante, at 584, or for self-defense.

The history of the adoption of the Amendment thus de­scribes an overriding concern about the potential threat to state sovereignty that a federal standing army would pose, and a desire to protect the States’ militias as the means by which to guard against that danger. But state militias could not effectively check the prospect of a federal standing army so long as Congress retained the power to disarm them, and so a guarantee against such disarmament was needed.27 As we explained in Miller: “With obvious purpose to assure the continuation and render possible the effectiveness of such forces the declaration and guarantee of the Second Amend­ment were made. It must be interpreted and applied with that end in view.” 307 U. S., at 178. The evidence plainly refutes the claim that the Amendment was motivated by the Framers’ fears that Congress might act to regulate any civil­ian uses of weapons. And even if the historical record were genuinely ambiguous, the burden would remain on the par­ties advocating a change in the law to introduce facts or ar­guments “ ‘newly ascertained,’ ” Vasquez, 474 U. S., at 266; the Court is unable to identify any such facts or arguments.

Ill

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.28 All of these sources shed only in­direct light on the question before us, and in any event offer little support for the Court’s conclusion.29

The English Bill of Rights

The Court’s reliance on Article VII of the 1689 English Bill of Rights—which, like most of the evidence offered by the Court today, was considered in Miller30—is misguided both because Article VII was enacted in response to differ­ent concerns from those that motivated the Framers of the Second Amendment, and because the guarantees of the two provisions were by no means coextensive. Moreover, the English text contained no preamble or other provision identi­fying a narrow, militia-related purpose.

The English Bill of Rights responded to abuses by the Stu­art monarchs; among the grievances set forth in the Bill of Rights was that the King had violated the law “[b]y causing several good Subjects being Protestants to be disarmed at the same time when Papists were both armed and Employed contrary to Law.” L. Sehwoerer, The Declaration of Rights, 1689, App. 1, p. 295 (1981). Article VII of the Bill of Rights was a response to that selective disarmament; it guaranteed that “the Subjects which are Protestants may have Armes for their defence Suitable to their condition and as allowed by Law.” Id., at 297. This grant did not establish a gen­eral right of all persons, or even of all Protestants, to possess weapons. Rather, the right was qualified in two distinct ways: First, it was restricted to those of adequate social and economic status (“suitable to their Condition”); second, it was only available subject to regulation by Parliament (“as al­lowed by Law”).31

The Court may well be correct that the English Bill of Rights protected the right of some English subjects to use some arms for personal self-defense free from restrictions by the Crown (but not Parliament). But that right — adopted in a different historical and political context and framed in markedly different language — tells us little about the mean­ing of the Second Amendment.

Blackstone’s Commentaries

The Court’s reliance on Blaekstone’s Commentaries on the Laws of England is unpersuasive for the same reason as its reliance on the English Bill of Rights. Blackstone’s in­vocation of “‘the natural right of resistance and self-­preservation,’ ” ante, at 594, and “ ‘the right of having and using arms for self-preservation and defence,’” ibid., re­ferred specifically to Article VII in the English Bill of Rights. The excerpt from Blackstone offered by the Court, therefore, is, like Article VII itself, of limited use in inter­preting the very differently worded, and differently histori­cally situated, Second Amendment.

What is important about Blackstone is the instruction he provided on reading the sort of text before us today. Black­stone described an interpretive approach that gave far more weight to preambles than the Court allows. Counseling that “[t]he fairest and most rational method to interpret the will of the legislator, is by exploring his intentions at the time when the law was made, by signs the most natural and probable,” Blackstone explained: “If words happen to be still dubious, we may establish their meaning from the context; with which it may be of singular use to compare a word, or a sentence, whenever they are ambiguous, equivocal, or intricate. Thus, the proeme, or preamble, is often called in to help the construction of an act of parliament.” 1 Com­mentaries on the Laws of England 59-60 (1765). In light of the Court’s invocation of Blackstone as “ ‘the preeminent authority on English law for the founding generation,’ ” ante, at 593-594 (quoting Alden v. Maine, 527 U. S. 706, 715 (1999)), its disregard for his guidance on matters of interpre­tation is striking.

Postenactment Commentary

The Court also excerpts, without any real analysis, com­mentary by a number of additional scholars, some near in time to the framing and others postdating it by close to a century. Those scholars are for the most part of limited rel­evance in construing the guarantee of the Second Amend­ment: Their views are not altogether clear,32 they tended to collapse the Second Amendment with Article VII of the Eng­lish Bill of Rights, and they appear to have been unfamiliar with the drafting history of the Second Amendment.33

The most significant of these commentators was Joseph Story. Contrary to the Court’s assertions, however, Story actually supports the view that the Amendment was de­signed to protect the right of each of the States to maintain a well-regulated militia. When Story used the term “palla­dium” in discussions of the Second Amendment, he merely echoed the concerns that animated the Framers of the Amendment and led to its adoption. An excerpt from his 1833 Commentaries on the Constitution of the United States — the same passage cited by the Court in Miller34— merits reproducing at some length:

“The importance of [the Second Amendment] will scarcely be doubted by any persons who have duly re­flected upon the subject. The militia is the natural de­fence of a free country against sudden foreign invasions, domestic insurrections, and domestic usurpations of power by rulers. It is against sound policy for a free people to keep up large military establishments and standing armies in time of peace, both from the enor­mous expenses with which they are attended and the facile means which they afford to ambitious and unprin­cipled rulers to subvert the government, or trample upon the rights of the people. The right of the citizens to keep and bear arms has justly been considered as the palladium of the liberties of a republic, since it offers a strong moral check against the usurpation and arbitrary power of rulers, and will generally, even if these are successful in the first instance, enable the people to re­sist and triumph over them. And yet, though this truth would seem so clear, and the importance of a well-­regulated militia would seem so undeniable, it cannot be disguised that, among the American people, there is a growing indifference to any system of militia discipline, and a strong disposition, from a sense of its burdens, to be rid of all regulations. How it is practicable to keep the people duly armed without some organization, it is difficult to see. There is certainly no small danger that indifference may lead to disgust, and disgust to con­tempt; and thus gradually undermine all the protection intended by the clause of our national bill of rights.” 2 J. Story, Commentaries on the Constitution of the United States § 1897, pp. 620-621 (4th ed. 1873) (foot­note omitted).

Story thus began by tying the significance of the Amend­ment directly to the paramount importance of the militia. He then invoked the fear that drove the Framers of the Sec­ond Amendment — specifically, the threat to liberty posed by a standing army. An important check on that danger, he suggested, was a “well-regulated militia,” id., at 621, for which he assumed that arms would have to be kept and, when necessary, borne. There is not so much as a whisper in the passage above that Story believed that the right se­cured by the Amendment bore any relation to private use or possession of weapons for activities like hunting or personal self-defense.

After extolling the virtues of the militia as a bulwark against tyranny, Story went on to decry the “growing indif­ference to any system of militia discipline.” Ibid. When he wrote, “[h]ow it is practicable to keep the people duly armed without some organization it is difficult to see,” ibid., he un­derscored the degree to which he viewed the arming of the people and the militia as indissolubly linked. Story warned that the “growing indifference” he perceived would “gradu­ally undermine all the protection intended by this clause of our national bill of rights,” ibid. In his view, the importance of the Amendment was directly related to the continuing vi­tality of an institution in the process of apparently becom­ing obsolete.

In an attempt to downplay the absence of any reference to nonmilitary uses of weapons in Story’s commentary, the Court relies on the fact that Story characterized Article VII of the English Declaration of Rights as a “‘similar provi­sion,”’ ante, at 608. The two provisions were indeed simi­lar, in that both protected some uses of firearms. But Sto­ry’s characterization in no way suggests that he believed that the provisions had the same scope. To the contrary, Story’s exclusive focus on the militia in his discussion of the Second Amendment confirms his understanding of the right pro­tected by the Second Amendment as limited to military uses of arms.

Story’s writings as a Justice of this Court, to the extent that they shed light on this question, only confirm that Jus­tice Story did not view the Amendment as conferring upon individuals any “self-defense” right disconnected from serv­ice in a state militia. Justice Story dissented from the Court’s decision in Houston v. Moore, 5 Wheat. 1, 24 (1820), which held that a state court “had a concurrent jurisdiction” with the federal courts “to try a militia man who had dis­obeyed the call of the President, and to enforce the laws of Congress against such delinquent.” Id., at 32. Justice Story believed that Congress’ power to provide for the or­ganizing, arming, and disciplining of the militia was, when Congress acted, plenary; but he explained that in the absence of congressional action, “I am certainly not prepared to deny the legitimacy of such an exercise of [state] authority.” Id., at 52. As to the Second Amendment, he wrote that it “may not, perhaps, be thought to have any important bearing on this point. If it have, it confirms and illustrates, rather than impugns the reasoning already suggested.” Id., at 52-53. The Court contends that had Justice Story understood the Amendment to have a militia purpose, the Amendment would have had “enormous and obvious bearing on the point.” Ante, at 610. But the Court has it quite back­wards: If Story had believed that the purpose of the Amend­ment was to permit civilians to keep firearms for activities like personal self-defense, what “confirm[ation] and illustra­tion],” Houston, 5 Wheat., at 53, could the Amendment pos­sibly have provided for the point that States retained the power to organize, arm, and discipline their own militias?

Post-Civil War Legislative History

The Court suggests that by the post-Civil War period, the Second Amendment was understood to secure a right to firearm use and ownership for purely private purposes like personal self-defense. While it is true that some of the leg­islative history on which the Court relies supports that con­tention, see ante, at 614-616, such sources are entitled to limited, if any, weight. All of the statements the Court cites were made long after the framing of the Amendment and cannot possibly supply any insight into the intent of the Framers; and all were made during pitched political debates, so that they are better characterized as advocacy than good-­faith attempts at constitutional interpretation.

What is more, much of the evidence the Court offers is decidedly less clear than its discussion allows. The Court notes: “Blacks were routinely disarmed by Southern States after the Civil War. Those who opposed these injustices frequently stated that they infringed blacks' constitutional right to keep and bear arms.” Ante, at 614. The Court hastily concludes that “[n]eedless to say, the claim was not that blacks were being prohibited from carrying arms in an organized state militia,” ibid. But some of the claims of the sort the Court cites may have been just that. In some Southern States, Reconstruction-era Republican govern­ments created state militias in which both blacks and whites were permitted to serve. Because “[t]he decision to allow blacks to serve alongside whites meant that most southern­ers refused to join the new militia,” the bodies were dubbed “‘Negro militia[s].’’’ S. Cornell, A Well-Regulated Militia 177 (2006). The “arming of the Negro militias met with es­pecially fierce resistance in South Carolina. .. . The sight of organized, armed freedmen incensed opponents of Recon­struction and led to an intensified campaign of Klan terror. Leading members of the Negro militia were beaten or lynched and their weapons stolen.” Id., at 176-177.

One particularly chilling account of Reconstruction-era Klan violence directed at a black militia member is recounted in the memoir of Louis F. Post, A “Carpetbagger” in South Carolina, 10 Journal of Negro History 10 (1925). Post de­scribes the murder by local Klan members of Jim Williams, the captain of a “Negro militia company,” id., at 59, this way:

“[A] cavalcade of sixty cowardly white men, completely disguised with face masks and body gowns, rode up one night in March, 1871, to the house of Captain Wil­liams ... in the wood [they] hanged [and shot] him . . . [and on his body they] then pinned a slip of paper in­scribed, as I remember it, with these grim words: ‘Jim Williams gone to his last muster.’ ” Id., at 61.

In light of this evidence, it is quite possible that at least some of the statements on which the Court relies actually did mean to refer to the disarmament of black militia members.

IV

The brilliance of the debates that resulted in the Second Amendment faded into oblivion during the ensuing years, for the concerns about Article I’s Militia Clauses that generated such pitched debate during the ratification process and led to the adoption of the Second Amendment were short lived.

In 1792, the year after the Amendment was ratified, Con­gress passed a statute that purported to establish “an Uni­form Militia throughout the United States.” 1 Stat. 271. The statute commanded every able-bodied white male citizen between the ages of 18 and 45 to be enrolled therein and to “provide himself with a good musket or firelock” and other specified weaponry.35 Ibid. The statute is significant, for it confirmed the way those in the founding generation viewed firearm ownership: as a duty linked to military service. The statute they enacted, however, “was virtually ignored for more than a century,” and was finally repealed in 1901. See Perpich, 496 U. S., at 341.

The postratification history of the Second Amendment is strikingly similar. The Amendment played little role in any legislative debate about the civilian use of firearms for most of the 19th century, and it made few appearances in the decisions of this Court. Two 19th-century cases, however, bear mentioning.

In United States v. Cruikshank, 92 U. S. 542 (1876), the Court sustained a challenge to respondents’ convictions under the Enforcement Act of 1870 for conspiring to deprive any individual of “ ‘any right or privilege granted or secured to him by the constitution or laws of the United States.’” Id., at 548. The Court wrote, as to counts 2 and 10 of re­spondents’ indictment:

“The right there specified is that of ‘bearing arms for a lawful purpose.’ This is not a right granted by the Constitution. Neither is it in any manner dependent on that instrument for its existence. The second amend­ment declares that it shall not be infringed; but this, as has been seen, means no more than that it shall not be infringed by Congress. This is one of the amendments that has no other effect than to restrict the powers of the national government.” Id., at 553.

The majority’s assertion that the Court in Cruikshank “described the right protected by the Second Amendment a­s “bearing arms for a lawful purpose,” ’ ” ante, at 620 (quoting Cruikshank, 92 U. S., at 553), is not accurate. The Cruik­shank Court explained that the defective indictment con­tained such language, but the Court did not itself describe the right, or endorse the indictment’s description of the right.

Moreover, it is entirely possible that the basis for the in­dictment’s counts 2 and 10, which charged respondents with depriving the victims of rights secured by the Second Amendment, was the prosecutor’s belief that the victims— members of a group of citizens, mostly black but also white, who were rounded up by the sheriff, sworn in as a posse to defend the local courthouse, and attacked by a white mob— bore sufficient resemblance to members of a state militia that they were brought within the reach of the Second Amend­ment. See generally C. Lane, The Day Freedom Died: The Colfax Massacre, The Supreme Court, and the Betrayal of Reconstruction (2008).

Only one other 19th-century case in this Court, Presser v. Illinois, 116 U. S. 252 (1886), engaged in any significant discussion of the Second Amendment. The petitioner in Presser was convicted of violating a state statute that pro­hibited organizations other than the Illinois National Guard from associating together as military companies or parading with arms. Presser challenged his conviction, asserting, as relevant, that the statute violated both the Second and the Fourteenth Amendments. With respect to the Second Amendment, the Court wrote:

“We think it clear that the sections under consider­ation, which only forbid bodies of men to associate to­gether as military organizations, or to drill or parade with arms in cities and towns unless authorized by law, do not infringe the right of the people to keep and bear arms. But a conclusive answer to the contention that this amendment prohibits the legislation in question lies in the fact that the amendment is a limitation only upon the power of Congress and the National government, and not upon that of the States.” Id., at 264-265.

And in discussing the Fourteenth Amendment, the Court explained:

“The plaintiff in error was not a member of the orga­nized volunteer militia of the State of Illinois, nor did he belong to the troops of the United States or to any organization under the militia law of the United States. On the contrary, the fact that he did not belong to the organized militia or the troops of the United States was an ingredient in the offence for which he was convicted and sentenced. The question is, therefore, had he a right as a citizen of the United States, in disobedience of the State law, to associate with others as a military company, and to drill and parade with arms in the towns and cities of the State? If the plaintiff in error has any such privilege he must be able to point to the provision of the Constitution or statutes of the United States by which it is conferred.” Id., at 266.

Presser, therefore, both affirmed Cruikskank’s holding that the Second Amendment posed no obstacle to regulation by state governments, and suggested that in any event noth­ing in the Constitution protected the use of arms outside the context of a militia “authorized by law” and organized by the State or Federal Government.36

In 1901, the President revitalized the militia by creating “‘the National Guard of the several States/” Perpick, 496 U. S., at 341, and nn. 9-10; meanwhile, the dominant under­standing of the Second Amendment’s inapplicability to pri­vate gun ownership continued well into the 20th century. The first two federal laws directly restricting civilian use and possession of firearms—the 1927 Act prohibiting mail delivery of “pistols, revolvers, and other firearms capable of being concealed on the person,” eh. 75,44 Stat. 1059, and the 1934 Act prohibiting the possession of sawed-off shotguns and machineguns — were enacted over minor Second Amend­ment objections dismissed by the vast majority of the legisla­tors who participated in the debates.37 Members of Con­gress clashed over the wisdom and efficacy of such laws as crime-control measures. But since the statutes did not in­fringe upon the military use or possession of weapons, for most legislators they did not even raise the specter of possi­ble conflict with the Second Amendment.

Thus, for most of our history, the invalidity of Second-­Amendment-based objections to firearms regulations has been well settled and uncontroversial.38 Indeed, the Second Amendment was not even mentioned in either full House of Congress during the legislative proceedings that led to the passage of the 1934 Act. Yet enforcement of that law produced the judicial decision that confirmed the status of the Amendment as limited in reach to military usage. After reviewing many of the same sources that are discussed at greater length by the Court today, the Miller Court unani­mously concluded that the Second Amendment did not apply to the possession of a firearm that did not have “some reason­able relationship to the preservation or efficiency of a well regulated militia.” 307 U. S., at 178.

The key to that decision did not, as the Court belatedly suggests, ante, at 622-625, turn on the difference between muskets and sawed-off shotguns; it turned, rather, on the basic difference between the military and nonmilitary use and possession of guns. Indeed, if the Second Amendment were not limited in its coverage to military uses of weapons, why should the Court in Miller have suggested that some weapons but not others were eligible for Second Amendment protection? If use for self-defense were the relevant stand­ard, why did the Court not inquire into the suitability of a particular weapon for self-defense purposes?

Perhaps in recognition of the weakness of its attempt to distinguish Miller, the Court argues in the alternative that Miller should be discounted because of its decisional history. It is true that the appellees in Miller did not file a brief or make an appearance, although the court below had held that the relevant provision of the National Firearms Act violated the Second Amendment (albeit without any reasoned opin­ion). But, as our decision in Marbury v. Madison, 1 Cranch 137, in which only one side appeared and presented argu­ments, demonstrates, the absence of adversarial presenta­tion alone is not a basis for refusing to accord stare decisis effect to a decision of this Court. See Bloch, Marbury Redux, in Arguing Marbury v. Madison 59, 63 (M. Tushnet ed. 2005). Of course, if it can be demonstrated that new evi­dence or arguments were genuinely not available to an ear­lier Court, that fact should be given special weight as we consider whether to overrule a prior case. But the Court does not make that claim, because it cannot. Although it is true that the drafting history of the Amendment was not discussed in the Government’s brief, see ante, at 623-624, it is certainly not the drafting history that the Court’s decision today turns on. And those sources upon which the Court today relies most heavily were available to the Miller Court. The Government cited the English Bill of Rights and quoted a lengthy passage from Aymette v. State, 21 Tenn. 154 (1840), detailing the history leading to the English guarantee, Brief for United States in United States v. Miller, O. T. 1938, No. 696, pp. 12-13; it also cited Blackstone, id., at 9, n. 2, Cooley, id., at 12, 15, and Story, id., at 15. The Court is reduced to critiquing the number of pages the Government devoted to exploring the English legal sources. Only two (in a brief 21 pages in length)! Would the Court be satisfied with four? Ten?

The Court is simply wrong when it intones that Miller contained “not a word” about the Amendment’s history. Ante, at 624. The Court plainly looked to history to con­strue the term “Militia,” and, on the best reading of Miller, the entire guarantee of the Second Amendment. After not­ing the original Constitution’s grant of power to Congress and to the States over the militia, the Court explained:

“With obvious purpose to assure the continuation and render possible the effectiveness of such forces the dec­laration and guarantee of the Second Amendment were made. It must be interpreted and applied with that end in view.

“The Militia which the States were expected to main­tain and train is set in contrast with Troops which they were forbidden to keep without the consent of Congress. The sentiment of the time strongly disfavored standing armies; the common view was that adequate defense of country and laws could be secured through the Militia— civilians primarily, soldiers on occasion.

“The signification attributed to the term Militia ap­pears from the debates in the Convention, the history and legislation of Colonies and States, and the writings of approved commentators.” Miller, 307 U. S., at 178-179.

The majority cannot seriously believe that the Miller Court did not consider any relevant evidence; the majority simply does not approve of the conclusion the Miller Court reached on that evidence. Standing alone, that is insufficient reason to disregard a unanimous opinion of this Court, upon which substantial reliance has been placed by legislators and citi­zens for nearly 70 years.

V

The Court concludes its opinion by declaring that it is not the proper role of this Court to change the meaning of rights “enshrine[d]” in the Constitution. Ante, at 636. But the right the Court announces was not “enshrined” in the Second Amendment by the Framers; it is the product of today’s law-­changing decision. The majority’s exegesis has utterly failed to establish that as a matter of text or history, “the right of law-abiding, responsible citizens to use arms in de­fense of hearth and home” is “elevate[d] above all other in­terests” by the Second Amendment. Ante, at 635.

Until today, it has been understood that legislatures may regulate the civilian use and misuse of firearms so long as they do not interfere with the preservation of a well-­regulated militia. The Court’s announcement of a new con­stitutional right to own and use firearms for private pur­poses upsets that settled understanding, but leaves for future cases the formidable task of defining the scope of permissible regulations. Today judicial craftsmen have confidently asserted that a policy choice that denies a “law-abiding, responsible citize[n]” the right to keep and use weapons in the home for self-defense is “off the table.” Ante, at 636. Given the presumption that most citizens are law abiding, and the reality that the need to defend oneself may suddenly arise in a host of locations outside the home, I fear that the District’s policy choice may well be just the first of an unknown number of dominoes to be knocked off the table.39

I do not know whether today’s decision will increase the labor of federal judges to the “breaking point” envisioned by Justice Cardozo, but it will surely give rise to a far more active judicial role in making vitally important national pol­icy decisions than was envisioned at any time in the 18th, 19th, or 20th centuries.

The Court properly disclaims any interest in evaluating the wisdom of the specific policy choice challenged in this case, but it fails to pay heed to a far more important policy choice — the choice made by the Framers themselves. The Court would have us believe that over 200 years ago, the Framers made a choice to limit the tools available to elected officials wishing to regulate civilian uses of weapons, and to authorize this Court to use the common-law process of case-­by-case judicial lawmaking to define the contours of accept­able gun-control policy. Absent compelling evidence that is nowhere to be found in the Court’s opinion, I could not possi­bly conclude that the Framers made such a choice.

For these reasons, I respectfully dissent.

1

There was some limited congressional activity earlier: A 10% federal excise tax on firearms was passed as part of the Revenue Act of 1918, 40 Stat. 1057, and in 1927 a statute was enacted prohibiting the shipment of handguns, revolvers, and other concealable weapons through the United States mails. Ch. 75, 44 Stat. 1059-1060 (hereinafter 1927 Act).

2

Until the Fifth Circuit’s decision in United States v. Emerson, 270 F. 3d 203 (2001), every Court of Appeals to consider the question had understood Miller to hold that the Second Amendment does not protect the right to possess and use guns for purely private, civilian purposes. See, e.g., United States v. Haney, 264 F. 3d 1161, 1164-1166 (CA10 2001); United States v. Napier, 233 F. 3d 394, 402-404 (CA6 2000); Gillespie v. Indianap­olis, 185 F. 3d 693, 710-711 (CA7 1999); United States v. Scanio, No. 97-­1584, 1998 WL 802060, *2 (CA2, Nov. 12, 1998) (unpublished opinion); United States v. Wright, 117 F. 3d 1265, 1271-1274 (CA11 1997); United States v. Rybar, 103 F. 3d 273, 285-286 (CA3 1996); Hickman v. Block, 81 F. 3d 98, 100-103 (CA9 1996); United States v. Hale, 978 F. 2d 1016, 1018-­1020 (CA8 1992); Thomas v. City Council of Portland, 730 F. 2d 41, 42 (CA1 1984) (per curiam); United States v. Johnson, 497 F. 2d 548, 550 (CA4 1974) (per curiam); United States v. Johnson, 441 F. 2d 1134, 1136 (CA5 1971); see also Sandidge v. United States, 520 A. 2d 1057, 1058-1059 (DC App. 1987). And a number of courts have remained firm in their prior positions, even after considering Emerson. See, e. g., United States v. Lippman, 369 F. 3d 1039, 1043-1045 (CA8 2004); United States v. Parker, 362 F. 3d 1279, 1282-1284 (CA10 2004); United States v. Jackubowski, 63 Fed.Appx. 959, 961 (CA7 2003) (unpublished opinion); Silveira v. Lockyer, 312 F. 3d 1052, 1060-1066 (CA9 2002); United States v. Milheron, 231 F. Supp. 2d 376, 378 (Me. 2002); Bach v. Pataki, 289 F. Supp. 2d 217, 224-­226 (NDNY 2003); United States v. Smith, 56 M. J. 711, 716 (Air Force Ct. Crim. App. 2001).

3

Our discussion in Leivis was brief but significant. Upholding a convic­tion for receipt of a firearm by a felon, we wrote: “These legislative restric­tions on the use of firearms are neither based upon constitutionally suspect criteria, nor do they trench upon any constitutionally protected liberties. See United States v. Miller, 307 U. S. 174, 178 (1939) (the Second Amend­ment guarantees no right to keep and bear a firearm that does not have ‘some reasonable relationship to the preservation or efficiency of a well regulated militia’).” 445 U. S., at 65-66, n. 8.

4

See Vasquez v. Hillery, 474 U. S. 254, 265-266 (1986) (“[Stare decisis] permits society to presume that bedrock principles are founded in the law rather than in the proclivities of individuals, and thereby contributes to the integrity of our constitutional system of government, both in appear­ance and in fact. While stare decisis is not an inexorable command, the careful observer will discern that any detours from the straight path of stare decisis in our past have occurred for articulable reasons, and only when the Court has felt obliged ‘to bring its opinions into agreement with experience and with facts newly ascertained.’ Burnet v. Coronado Oil & Gas Co., 285 U. S. 393, 412 (1932) (Brandeis, J., dissenting)”); Pollock v. Farmers’ Loan & Trust Co., 157 U. S. 429, 652 (1895) (White, J., dissenting) (“The fundamental conception of a judicial body is that of one hedged about by precedents which are binding on the court without regard to the personality of its members. Break down this belief in judicial continuity, and let it be felt that on great constitutional questions this court is to depart from the settled conclusions of its predecessors, and to determine them all according to the mere opinion of those who temporarily fill its bench, and our Constitution will, in my judgment, be bereft of value and become a most dangerous instrument to the rights and liberties of the people”).

5

The Virginia Declaration of Rights ¶ 13 (1776) provided: “That a well-­regulated Militia, composed of the body of the people, trained to arms, is the proper, natural, and safe defence of a free State; that Standing Armies, in time of peace, should be avoided, as dangerous to liberty; and that, in all cases, the military should be under strict subordination to, and gov­erned by, the civil power.” 1 B. Schwartz, The Bill of Rights 235 (1971) (hereinafter Schwartz).

Maryland’s Declaration of Rights, Arts. XXV-XXVII (1776), provided: “That a well-regulated militia is the proper and natural defence of a free government”; “That standing armies are dangerous to liberty, and ought not to be raised or kept up, without consent of the Legislature”; “That in all cases, and at all times, the military ought to be under strict subordina­tion to and control of the civil power.” 1 Schwartz 282.

Delaware’s Declaration of Rights §§ 18-20 (1776) provided: “That a well regulated militia is the proper, natural, and safe defence of a free govern­ment”; “That standing armies are dangerous to liberty, and ought not to be raised or kept up without the consent of the Legislature”; “That in all cases and at all times the military ought to be under strict subordination to and governed by the civil power.” 1 Schwartz 278.

Finally, New Hampshire’s Bill of Rights, Arts. XXIV-XXVI (1783), read: “A well regulated militia is the proper, natural, and sure defence of a state”; “Standing armies are dangerous to liberty, and ought not to be raised or kept up without consent of the legislature”; “In all cases, and at all times, the military ought to be under strict subordination to, and gov­erned by the civil power.” 1 Schwartz 378. It elsewhere provided: “No person who is conscientiously scrupulous about the lawfulness of bearing arms, shall be compelled thereto, provided he will pay an equivalent.” Id., at 377 (Art. XIII).

6

The language of the Amendment’s preamble also closely tracks the lan­guage of a number of contemporaneous state militia statutes, many of which began with nearly identical statements. Georgia’s 1778 militia stat­ute, for example, began, “[w]hereas a well ordered and disciplined Militia, is essentially necessary, to the Safety, peace and prosperity, of this State.” Act of Nov. 15, 1778, 19 Colonial Records of the State of Georgia 103 (Can­dler ed. 1911 (pt. 2)). North Carolina’s 1777 militia statute started with this language: “[w]jhereas a well regulated Militia is absolutely necessary for the defending and securing the Liberties of a free State.” N. C. Sess. Laws ch. 1, § I, p. 1. And Connecticut’s 1782 “Acts and Laws Regulating the Militia” began, “[w]hereas the Defence and Security of all free States depends (under God) upon the Exertions of a well regulated Militia, and the Laws heretofore enacted have proved inadequate to the End de­signed.” Conn. Acts and Laws p. 585 (hereinafter 1782 Conn. Acts).

These state militia statutes give content to the notion of a “well-­regulated militia.” They identify those persons who compose the State’s militia; they create regiments, brigades, and divisions; they set forth com­mand structures and provide for the appointment of officers; they describe how the militia will be assembled when necessary and provide for training; and they prescribe penalties for nonappearance, delinquency, and failure to keep the required weapons, ammunition, and other necessary equip­ment. The obligation of militia members to “keep” certain specified arms is detailed further, n. 12, infra, and accompanying text.

7

The sources the Court cites simply do not support the proposition that some “logical connection” between the two clauses is all that is required. The Dwarris treatise, for example, merely explains that “[t]he general pur­view of a statute is not . . . necessarily to be restrained by any words introductory to the enacting clauses.” F. Dwarris, A General Treatise on Statutes 268 (P. Potter ed. 1871) (emphasis added). The treatise proceeds to caution that “the preamble cannot control the enacting part of a statute, which is expressed in clear and unambiguous terms, yet, if any doubt arise on the words of the enacting part, the preamble may be resorted to, to explain it.” Id., at 269. Sutherland makes the same point. Explaining that “[i]n the United States preambles are not as important as they are in England,” the treatise notes that in the United States “the settled princi­ple of law is that the preamble cannot control the enacting part of the statute in cases where the enacting part is expressed in clear, unambigu­ous terms.” 2A N. Singer, Sutherland on Statutory Construction § 47.04, p. 146 (rev. 5th ed. 1992) (emphasis added). Surely not even the Court believes that the Amendment’s operative provision, which, though only 14 words in length, takes the Court the better part of 18 pages to parse, is perfectly “clear and unambiguous.”

8

The Court’s repeated citation to the dissenting opinion in Muscarello v. United States, 524 U. S. 125 (1998), ante, at 584, 586, as illuminating the meaning of “bear arms,” borders on the risible. At issue in Muscarello was the proper construction of the word “carries” in 18 U. S. C. § 924(c) (1994 ed.); the dissent in that case made passing reference to the Second Amendment only in the course of observing that both the Constitution and Black’s Law Dictionary suggested that something more active than placement of a gun in a glove compartment might be meant by the phrase “ ‘carries a firearm.’ ” 524 U. S., at 143.

9

Amici professors of linguistics and English reviewed uses of the term “bear arms” in a compilation of books, pamphlets, and other sources dis­seminated in the period between the Declaration of Independence and the adoption of the Second Amendment. See Brief for Professors of Linguis­tics and English 23-25. Amici determined that of 115 texts that em­ployed the term, all but five usages were in a clearly military context, and in four of the remaining five instances, further qualifying language con­veyed a different meaning.

The Court allows that the phrase “bear Arms” did have as an idiomatic meaning, “ ‘to serve as a soldier, do military service, fight,’ ” ante, at 586, but asserts that it “unequivocally bore that idiomatic meaning only when followed by the preposition ‘against,’ which was in turn followed by the target of the hostilities,” ibid. But contemporary sources make clear that the phrase “bear arms” was often used to convey a military meaning with­out those additional words. See, e. g., To the Printer, Providence Gazette (May 27, 1775) (“By the common estimate of three millions of people in America, allowing one in five to bear arms, there will be found 600,000 fighting men”); Letter of Henry Laurens to the Mass. Council (Jan. 21, 1778), in Letters of Delegates to Congress 1774-1789, p. 622 (P. Smith ed. 1981) (“Congress were yesterday informed . . . that those Canadians who returned from Saratoga... had been compelled by Sir Guy Carleton to bear Arms”); Of the Manner of Making War Among the Indians of North-America, Connecticut Courant (May 23, 1785) (“The Indians begin to bear arms at the age of fifteen, and lay them aside when they arrive at the age of sixty. Some nations to the southward, I have been informed, do not continue their military exercises after they are fifty”); 28 Journals of the Continental Congress 1030 (G. Hunt ed. 1910) (“That hostages be mutually given as a security that the Convention troops and those re­ceived in exchange for them do not bear arms prior to the first day of May next”); H. R. J., 9th Cong., 1st Sess., 217 (Feb. 12, 1806) (“Whereas the commanders of British armed vessels have impressed many American sea­men, and compelled them to bear arms on board said vessels, and assist in fighting their battles with nations in amity and peace with the United States”); H. R. J., 15th Cong., 2d Sess., 182-183 (Jan. 14,1819) (“[The peti­tioners] state that they were residing in the British province of Canada, at the commencement of the late war, and that owing to their attachment to the United States, they refused to bear arms, when called upon by the British authorities . .. ”).

10

Aymette v. State, 21 Tenn. 154, 156 (1840), a case we cited in Miller, further confirms this reading of the phrase. In Aymette, the Tennessee Supreme Court construed the guarantee in Tennessee’s 1834 Constitution that “ ‘the free white men of this State, have a right to keep and bear arms for their common defence.’” Explaining that the provision was adopted with the same goals as the Federal Constitution’s Second Amend­ment, the court wrote: “The words ‘bear arms’... have reference to their military use, and were not employed to mean wearing them about the person as part of the dress. As the object for which the right to keep and bear arms is secured, is of general and public nature, to be exercised by the people in a body, for their common defence, so the arms, the right to keep which is secured, are such as are usually employed in civilized warfare, and that constitute the ordinary military equipment.” 21 Tenn., at 158. The court elaborated: “[W]e may remark, that the phrase, ‘bear arms' is used in the Kentucky Constitution as well as our own, and im­plies, as has already been suggested, their military use.... A man in the pursuit of deer, elk, and buffaloes, might carry his rifle every day, for forty years, and, yet, it would never be said of him, that he had borne arms, much less could it be said, that a private citizen bears arms, because he has a dirk or pistol concealed under his clothes, or a spear in a cane.” Id., at 161.

11

As lucidly explained in the context of a statute mandating a sentencing enhancement for any person who “uses” a firearm during a crime of vio­lence or drug trafficking crime:

“To use an instrumentality ordinarily means to use it for its intended purpose. When someone asks, ‘Do you use a cane?,’ he is not inquiring whether you have your grandfather’s silver-handled walking stick on dis­play in the hall; he wants to know whether you walk with a cane. Simi­larly, to speak of ‘using a firearm’ is to speak of using it for its distinctive purpose, i. e., as a weapon. To be sure, one can use a firearm in a number of ways, including as an article of exchange, just as one can ‘use’ a cane as a hall decoration — but that is not the ordinary meaning of ‘using’ the one or the other. The Court does not appear to grasp the distinction between how a word can be used and how it ordinarily is used.” Smith v. United States, 508 U. S. 223,242 (1993) (Scalia, J., dissenting) (some internal quo­tation marks, footnotes, and citations omitted).

12

See also Act for the regulating, training, and arraying of the Militia, ... of the State, 1781 N. J. Laws, ch. XIII, § 12, p. 43 (“And be it Enacted, That each Person enrolled as aforesaid, shall also keep at his Place of Abode one Pound of good merchantable Gunpowder and three Pounds of Ball sized to his Musket or Rifle” (emphasis added)); An Act for establishing a Militia, 1785 Del. Laws § 7, p. 59 (“And be it enacted, That every person between the ages of eighteen and fifty . . . shall at his own expence, provide himself . . . with a musket or firelock, with a bayonet, a cartouch box to contain twenty three cartridges, a priming wire, a brush and six flints, all in good order, on or before the first day of April next, under the penalty of forty shillings, and shall keep the same by him at all times, ready and fit for service, under the penalty of two shillings and six pence for each neglect or default thereof on every muster day” (second emphasis added)); 1782 Conn. Acts p. 590 (“And it shall be the duty of the Regional Quarter-Master to provide and keep a sufficient quantity of Ammunition and warlike stores for the use of their respective Regiments, to be kept in such Place or Places as shall be ordered by the Field Officers” (emphasis added)).

13

The Court notes that the First Amendment protects two separate rights with the phrase “the ‘right [singular] of the people peaceably to assemble, and to petition the Government for a redress of grievances.’ ” Ante, at 591. But this only proves the point: In contrast to the language quoted by the Court, the Second Amendment does not protect a “right to keep and to bear arms,” but rather a “right to keep and bear Arms.” The State Constitutions cited by the Court are distinguishable on the same ground.

14

The Court’s atomistic, word-by-word approach to construing the Amendment calls to mind the parable of the six blind men and the ele­phant, famously set in verse by John Godfrey Saxe. The Poems of John Godfrey Saxe 135-136 (1873). In the parable, each blind man approaches a single elephant; touching a different part of the elephant’s body in isola­tion, each concludes that he has learned its true nature. One touches the animal’s leg, and concludes that the elephant is like a tree; another touches the trunk and decides that the elephant is like a snake; and so on. Each of them, of course, has fundamentally failed to grasp the nature of the creature.

15

By “‘splitting] the atom of sovereignty,’” the Framers created ‘“two political capacities, one state and one federal, each protected from incur­sion by the other. The resulting Constitution created a legal system un­precedented in form and design, establishing two orders of government, each with its own direct relationship, its own privity, its own set of mu­tual rights and obligations to the people who sustain it and are governed by it.’” Saenz v. Roe, 526 U. S. 489, 504, n. 17 (1999) (quoting U. S. Term Limits, Inc. v. Thornton, 514 U. S. 779, 838 (1995) (Kennedy, J., concurring)).

16

Indeed, this was one of the grievances voiced by the colonists: Para­graph 13 of the Declaration of Independence charged of King George, “He has kept among us, in times of peace, Standing Armies without the Con­sent of our legislatures.”

17

George Washington, writing to Congress on September 24, 1776, warned that for Congress “[t]o place any dependance upon Militia, is, as­suredly, resting upon a broken staff.” 6 Writings of George Washington 106, 110 (J. Fitzpatrick ed. 1932). Several years later he reiterated this view in another letter to Congress: “Regular Troops alone are equal to the exigencies of modern war, as well for defence as offence .... No Militia will ever acquire the habits necessary to resist a regular force.... The firmness requisite for the real business of fighting is only to be at­tained by a constant course of discipline and service.” 20 id,., at 49,49-50 (Sept. 15, 1780). And Alexander Hamilton argued this view in many de­bates. In 1787, he wrote:

“Here I expect we shall be told that the militia of the country is its natural bulwark, and would be at all times equal to the national de­fense. This doctrine, in substance, had like to have lost us our independ­ence. . . . War, like most other things, is a science to be acquired and perfected by diligence, by perseverance, by time, and by practice.” The Federalist No. 25, p. 166 (C. Rossiter ed. 1961).

18

“[B]ut no Appropriation of Money to that Use [raising and supporting Armies] shall be for a longer Term than two Years.” U. S. Const., Art. I, § 8, cl. 12.

19

This “calling forth” power was only permitted in order for the militia “to execute the Laws of the Union, suppress Insurrections and repel Inva­sions.” Art. I, § 8, cl. 15.

20

The Court assumes — incorrectly, in my view — that even when a state militia was not called into service, Congress would have had the power to exclude individuals from enlistment in that state militia. See ante, at 600. That assumption is not supported by the text of the Militia Clauses of the original Constitution, which confer upon Congress the power to “orga­niz[e], ar[m], and discipline], the Militia,” Art. I, § 8, cl. 16, but not the power to say who will be members of a state militia. It is also flatly inconsistent with the Second Amendment. The States’ power to create their own militias provides an easy answer to the Court’s complaint that the right as I have described it is empty because it merely guarantees “citizens’ right to use a gun in an organization from which Congress has plenary authority to exclude them.” Ante, at 600.

21

In addition to the cautionary references to standing armies and to the importance of civil authority over the military, each of the proposals contained a guarantee that closely resembled the language of what later became the Third Amendment. The 18th proposal from Virginia and North Carolina read: “That no soldier in time of peace ought to be quar­tered in any house without the consent of the owner, and in time of war in such manner only as the law directs.” 3 Elliot 659. And New York’s language read: “That in time of Peace no Soldier ought to be quartered in any House without the consent of the Owner, and in time of War only by the Civil Magistrate in such manner as the Laws may direct.” 2 Schwartz 912.

22

“Tenth, That no standing Army shall be Kept up in time of Peace unless with the consent of three fourths of the Members of each branch of Congress, nor shall Soldiers in Time of Peace be quartered upon private Houses with out the consent of the Owners.” Id., at 761.

23

Madison explained in a letter to Richard Peters, Aug. 19, 1789, the paramount importance of preparing a list of amendments to placate those States that had ratified the Constitution in reliance on a commitment that amendments would follow: “In many States the [Constitution] was adopted under a tacit compact in [favor] of some subsequent provisions on this head. In [Virginia], It would have been certainly rejected, had no as­surances been given by its advocates that such provisions would be pur­sued. As an honest man I feel my self bound by this consideration.” Creating the Bill of Rights 281, 282 (H. Veit, K. Bowling, & C. Bickford eds. 1991) (hereinafter Veit).

24

The adopted language, Virginia Declaration of Rights ¶ 13 (1776), read as follows: “That a well-regulated Militia, composed of the body of the people, trained to arms, is the proper, natural, and safe defence of a free State; that Standing Armies, in time of peace, should be avoided as dan­gerous to liberty; and that, in all cases, the military should be under strict subordination to, and governed by, the civil power.” 1 Schwartz 235.

25

Veit 182. This was the objection voiced by Elbridge Gerry, who went on to remark, in the next breath: “What, sir, is the use of a militia? It is to prevent the establishment of a standing army, the bane of liberty. . . . Whenever government mean to invade the rights and liberties of the peo­ple, they always attempt to destroy the militia, in order to raise an army upon their ruins.” Ibid.

26

The failed Maryland proposals contained similar language. See supra, at 656.

27

The Court suggests that this historical analysis casts the Second Amendment as an “odd outlier,” ante, at 603; if by “outlier,” the Court means that the Second Amendment was enacted in a unique and novel context, and responded to the particular challenges presented by the Framers’ federalism experiment, I have no quarrel with the Court’s eharacterizati on.

28

The Court’s fixation on the last two types of sources is particularly puzzling, since both have the same characteristics as postenactment legis­lative history, which is generally viewed as the least reliable source of authority for ascertaining the intent of any provision’s drafters. As has been explained:

“The legislative history of a statute is the history of its consideration and enactment. ‘Subsequent legislative history’ — which presumably means the post-enactment history of a statute’s consideration and enact­ment — is a contradiction in terms. The phrase is used to smuggle into judicial consideration legislators’ expression not of what a bill currently under consideration means (which, the theory goes, reflects what their colleagues understood they were voting for), but of what a law previously enacted means. ... In my opinion, the views of a legislator concerning a statute already enacted are entitled to no more weight than the views of a judge concerning a statute not yet passed.” Sullivan v. Finkelstein, 496 U. S. 617, 631-632 (1990) (Scalia, J., concurring in part).

29

The Court stretches to derive additional support from scattered state-court cases primarily concerned with state constitutional provisions. See ante, at 611-614. To the extent that those state courts assumed that the Second Amendment was coterminous with their differently worded state constitutional arms provisions, their discussions were of course dicta. Moreover, the cases on which the Court relies were decided between 30 and 60 years after the ratification of the Second Amendment, and there is no indication that any of them engaged in a careful textual or historical analysis of the federal constitutional provision. Finally, the interpreta­tion of the Second Amendment advanced in those cases is not as clear as the Court apparently believes. In Aldridge v. Commonwealth, 2 Va. Cas. 447 (Gen. Ct. 1824), for example, a Virginia court pointed to the restriction on free blacks’ “right to bear arms” as evidence that the protections of the State and Federal Constitutions did not extend to free blacks. The Court asserts that “[t]he claim was obviously not that blacks were prevented from carrying guns in the militia. ” Ante, at 611. But it is not obvious at all. For in many States, including Virginia, free blacks during the colonial period were prohibited from carrying guns in the militia, instead being required to “mustefr] without arms”; they were later barred from serving in the militia altogether. See Siegel, The Federal Government’s Power to Enact Color-Conscious Laws: An Originalist Inquiry, 92 Nw. U. L. Rev. 477, 497-498, and n. 120 (1998). But my point is not that the Aldridge court endorsed my view of the Amendment — plainly it did not, as the premise of the relevant passage was that the Second Amendment applied to the States. Rather, my point is simply that the court could have under­stood the Second Amendment to protect a militia-focused right, and thus that its passing mention of the right to bear arms provides scant support for the Court’s position.

30

The Government argued in its brief:

“[I]t would seem that the early English law did not guarantee an unre­stricted right to bear arms. Such recognition as existed of a right in the people to keep and bear arms appears to have resulted from oppression by rulers who disarmed their political opponents and who organized large standing armies which were obnoxious and burdensome to the people. This right, however, it is clear, gave sanction only to the arming of the people as a body to defend their rights against tyrannical and unprincipled rulers. It did not permit the keeping of arms for purposes of private defense.” Brief for United States in United States v. Miller, O. T. 1938, No. 696, pp. 11-12 (citations omitted). The Government then cited at length the Tennessee Supreme Court’s opinion in Aymette, 21 Term. 154, which further situated the English Bill of Rights in its historical context. See n. 10, supra.

31

Moreover, it was the Crown, not Parliament, that was bound by the English provision; indeed, according to some prominent historians, Article VII is best understood not as announcing any individual right to unregu­lated firearm ownership (after all, such a reading would fly in the face of the text), but as an assertion of the concept of parliamentary supremacy. See Brief for Jack N. Rakove et al. as Amici Curiae 6-9.

32

For example, St. George Tucker, on whom the Court relies heavily, did not consistently adhere to the position that the Amendment was de­signed to protect the “Blaekstonian” self-defense right, ante, at 606. In a series of unpublished lectures, Tucker suggested that the Amendment should be understood in the context of the compromise over military power represented by the original Constitution and the Second and Tenth Amendments:

“If a State chooses to incur the expense of putting arms into the Hands of its own Citizens for their defense, it would require no small ingenuity to prove that they have no right to do it, or that it could by any means contravene the Authority of the federal Govt. It may be alleged indeed that this might be done for the purpose of resisting the laws of the federal Government, or of shaking off the Union: to which the plainest answer seems to be, that whenever the States think proper to adopt either of these measures, they will not be with-held by the fear of infringing any of the powers of the federal Government. But to contend that such a power would be dangerous for the reasons above-mentioned, would be subversive of every principle of Freedom in our Government; of which the first Congress appears to have been sensible by proposing an Amendment to the Constitution, which has since been ratified and has become part of it, viz., ‘That a well regulated militia being necessary to the Security of a free State, the right of the people to keep & bear arms shall not be in­fringed.’ To this we may add that this power of arming the militia, is not one of those prohibited to the States by the Constitution, and, conse­quently, is reserved to them under the twelfth Article of the ratified aments.” 4 S. Tucker, Ten Notebooks of Law Lectures, 1790s, pp. 127-­128, in Tucker-Coleman Papers (College of William and Mary).

See also Cornell, St. George Tucker and the Second Amendment: Origi­nal Understandings and Modern Misunderstandings, 47 Wm. & Mary L. Rev. 1123 (2006).

33

The Court does acknowledge that at least one early commentator de­scribed the Second Amendment as creating a right conditioned upon serv­ice in a state militia. See ante, at 610 (citing B. Oliver, The Rights of an American Citizen (1832)). Apart from the fact that Oliver is the only commentator in the Court’s exhaustive survey who appears to have in­quired into the intent of the drafters of the Amendment, what is striking about the Court’s discussion is its failure to refute Oliver’s description of the meaning of the Amendment or the intent of its drafters; rather, the Court adverts to simple nose counting to dismiss his view.

34

Miller, 307 U. S., at 182, n. 3.

35

The additional specified weaponry included: “a sufficient bayonet and belt, two spare flints, and a knapsack, a pouch with a box therein to contain not less than twenty-four cartridges, suited to the bore of his musket or firelock, each cartridge to contain a proper quantity of powder and ball: or with a good rifle, knapsack, shot-pouch and powder-horn, twenty balls suited to the bore of his rifle and a quarter of a pound of powder.” 1 Stat. 271.

36

In another case the Court endorsed, albeit indirectly, the reading of Miller that has been well settled until today. In Burton v. Sills, 394 U. S. 812 (1969) (per curiam), the Court dismissed for want of a substantial federal question an appeal from a decision of the New Jersey Supreme Court upholding, against a Second Amendment challenge, New Jersey’s gun-control law. Although much of the analysis in the New Jersey court’s opinion turned on the inapplicability of the Second Amendment as a con­straint on the States, the court also quite correctly read Miller to hold that “Congress, though admittedly governed by the second amendment, may regulate interstate firearms so long as the regulation does not impair the maintenance of the active, organized militia of the states.” Burton v. Sills, 53 N. J. 86, 99, 248 A. 2d 521, 527 (1968).

37

The 1927 Act was enacted with no mention of the Second Amendment as a potential obstacle, although an earlier version of the bill had gener­ated some limited objections on Second Amendment grounds, see 66 Cong. Rec. 725-735 (1924). And the 1934 Act featured just one colloquy, during the course of lengthy Committee debates, on whether the Second Amend­ment constrained Congress’ ability to legislate in this sphere, see Hearings on H. R. 9066 before the House Committee on Ways and Means, 73d Cong., 2d Sess., 19 (1934).

38

The majority appears to suggest that even if the meaning of the Sec­ond Amendment has been considered settled by courts and legislatures for over two centuries, that settled meaning is overcome by the “reliance of millions of Americans” “upon the true meaning of the right to keep and bear arms.” Ante, at 624, n. 24. Presumably by this the Court means that many Americans own guns for self-defense, recreation, and other law­ful purposes, and object to government interference with their gun owner­ship. I do not dispute the correctness of this observation. But it is hard to see how Americans have “relied,” in the usual sense of the word, on the existence of a constitutional right that, until 2001, had been rejected by every federal court to take up the question. Rather, gun owners have “relied” on the laws passed by democratically elected legislatures, which have generally adopted only limited gun-control measures.

Indeed, reliance interests surely cut the other way: Even apart from the reliance of judges and legislators who properly believed, until today, that the Second Amendment did not reach possession of firearms for purely private activities, “millions of Americans” have relied on the power of government to protect their safety and well-being, and that of their fami­lies. With respect to the case before us, the legislature of the District of Columbia has relied on its ability to act to “reduce the potentiality for gun-related crimes and gun-related deaths from occurring within the Dis­trict of Columbia,” Firearms Control Regulations Act of 1975 (Council Act No. 1-142), Hearing and Disposition before the House Committee on the District of Columbia, 94th Cong., 2d Sess., on H. Con. Res. 694, Ser. No. 94-24, p. 25 (1976); see post, at 693-696 (Breyer, J., dissenting); so, too, have the residents of the District.

39

It was just a few years after the decision in Miller that Justice Frank­furter (by any measure a true judicial conservative) warned of the perils that would attend this Court’s entry into the ‘‘political thicket” of legisla­tive districting. Colegrove v. Green, 328 U. S. 549, 556 (1946) (plurality opinion). The equally controversial political thicket that the Court has decided to enter today is qualitatively different from the one that con­cerned Justice Frankfurter: While our entry into that thicket was justified because the political process was manifestly unable to solve the problem of unequal districts, no one has suggested that the political process is not working exactly as it should in mediating the debate between the advo­cates and opponents of gun control. What impact the Court’s unjustified entry into this thicket will have on that ongoing debate — or indeed on the Court itself — is a matter that future historians will no doubt discuss at length. It is, however, clear to me that adherence to a policy of judicial restraint would be far wiser than the bold decision announced today.

Justice Breyer, with whom Justice Stevens, Justice

Souter, and Justice Ginsburg

join, dissenting.

We must decide whether a District of Columbia law that prohibits the possession of handguns in the home violates the Second Amendment. The Court, relying upon its view that the Second Amendment seeks to protect a right of per­sonal self-defense, holds that this law violates that Amend­ment. In my view, it does not.

I

The majority’s conclusion is wrong for two independ­ent reasons. The first reason is that set forth by Justice Stevens — namely, that the Second Amendment protects militia-related, not self-defense-related, interests. These two interests are sometimes intertwined. To assure 18th-­century citizens that they could keep arms for militia pur­poses would necessarily have allowed them to keep arms that they could have used for self-defense as well. But self-­defense alone, detached from any militia-related objective, is not the Amendment’s concern.

The second independent reason is that the protection the Amendment provides is not absolute. The Amendment per­mits government to regulate the interests that it serves. Thus, irrespective of what those interests are — whether they do or do not include an independent interest in self-defense— the majority’s view cannot be correct unless it can show that the District’s regulation is unreasonable or inappropriate in Second Amendment terms. This the majority cannot do.

In respect to the first independent reason, I agree with Justice Stevens, and I join his opinion. In this opinion I shall focus upon the second reason. I shall show that the District’s law is consistent with the Second Amendment even if that Amendment is interpreted as protecting a wholly separate interest in individual self-defense. That is so be­cause the District’s regulation, which focuses upon the pres­ence of handguns in high-crime urban areas, represents a permissible legislative response to a serious, indeed life-­threatening, problem.

Thus I here assume that one objective (but, as the major­ity concedes, ante, at 599, not the primary objective) of those who wrote the Second Amendment was to help assure citi­zens that they would have arms available for purposes of self-defense. Even so, a legislature could reasonably con­clude that the law will advance goals of great public impor­tance, namely, saving lives, preventing injury, and reducing crime. The law is tailored to the urban crime problem in that it is local in scope and thus affects only a geographic area both limited in size and entirely urban; the law concerns handguns, which are specially linked to urban gun deaths and injuries, and which are the overwhelmingly favorite weapon of armed criminals; and at the same time, the law imposes a burden upon gun owners that seems proportion­ately no greater than restrictions in existence at the time the Second Amendment was adopted. In these circum­stances, the District’s law falls within the zone that the Sec­ond Amendment leaves open to regulation by legislatures.

II

The Second Amendment says: “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.” In interpreting and applying this Amendment, I take as a starting point the following four propositions, based on our precedent and today’s opinions, to which I believe the entire Court subscribes:

(1) The Amendment protects an “individual” right — i. e., one that is separately possessed, and may be separately en­forced, by each person on whom it is conferred. See, e. g., ante, at 595 (opinion of the Court); ante, at 636 (Stevens, J., dissenting).

(2) As evidenced by its preamble, the Amendment was adopted “[w]ith obvious purpose to assure the continuation and render possible the effectiveness of [militia] forces.” United States v. Miller, 307 U. S. 174, 178 (1939); see ante, at 599 (opinion of the Court); ante, at 637 (Stevens, J., dissenting).

(3) The Amendment “must be interpreted and applied with that end in view.” Miller, supra, at 178.

(4) The right protected by the Second Amendment is not absolute, but instead is subject to government regulation. See Robertson v. Baldwin, 165 U. S. 275, 281-282 (1897); ante, at 595, 626-627 (opinion of the Court).

My approach to this case, while involving the first three points, primarily concerns the fourth. I shall, as I said, as­sume with the majority that the Amendment, in addition to furthering a militia-related purpose, also furthers an interest in possessing guns for purposes of self-defense, at least to some degree. And I shall then ask whether the Amendment nevertheless permits the District handgun restriction at issue here.

Although I adopt for present purposes the majority’s posi­tion that the Second Amendment embodies a general concern about self-defense, I shall not assume that the Amendment contains a specific untouchable right to keep guns in the house to shoot burglars. The majority, which presents evi­dence in favor of the former proposition, does not, because it cannot, convincingly show that the Second Amendment seeks to maintain the latter in pristine, unregulated form.

To the contrary, colonial history itself offers important ex­amples of the kinds of gun regulation that citizens would then have thought compatible with the “right to keep and bear arms,” whether embodied in Federal or State Constitu­tions, or the background common law. And those examples include substantial regulation of firearms in urban areas, in­cluding regulations that imposed obstacles to the use of fire­arms for the protection of the home.

Boston, Philadelphia, and New York City, the three largest cities in America during that period, all restricted the firing of guns within city limits to at least some degree. See Churchill, Gun Regulation, the Police Power, and the Right To Keep Arms in Early America, 25 Law & Hist. Rev. 139, 162 (2007); Dept, of Commerce, Bureau of Census, C. Gibson, Population of the 100 Largest Cities and Other Urban Places in the United States: 1790 to 1990 (1998) (Table 2), online at http://www.census.gov/population/www/documentation/ twps0027/tab02.txt (all Internet materials as visited June 19, 2008, and available in Clerk of Court’s case file). Boston in 1746 had a law prohibiting the “discharge” of “any Gun or Pistol charged with Shot or Ball in the Town” on penalty of 40 shillings, a law that was later revived in 1778. See Act of May 28, 1746, ch. X, Acts and Laws of Mass. Bay, p. 208; An Act for Reviving and Continuing Sundry Laws that are Expired, and Near Expiring, 1778 Mass. Sess. Laws, ch. V, pp. 193, 194. Philadelphia prohibited, on penalty of five shil­lings (or two days in jail if the fine were not paid), firing a gun or setting off fireworks in Philadelphia without a “gover­nor’s special license.” See Act of Aug. 26, 1721, § IV, in 3 Stat. at Large of Pa. 253-254 (J. Mitchell & H. Flanders comm’rs 1896). And New York City banned, on penalty of a 20-shilling fine, the firing of guns (even in houses) for the three days surrounding New Year’s Day. 5 Colonial Laws of New York, ch. 1501, pp. 244-246 (1894); see also An Act to Suppress the Disorderly Practice of Firing Guns, & e., on the Times Therein Mentioned (1774), in 8 Stat. at Large of Pa. 410-412 (1902) (similar law for all “inhabited parts” of Penn­sylvania). See also An Act for preventing Mischief being done in the Town of Newport, or in any other Town in this Government, 1731 Rhode Island Session Laws pp. 240-241 (prohibiting, on penalty of five shillings for a first offense and more for subsequent offenses, the firing of “any Gun or Pistol... in the Streets of any of the Towns of this Govern­ment, or in any Tavern of the same, after dark, on any Night whatsoever”).

Furthermore, several towns and cities (including Philadel­phia, New York, and Boston) regulated, for fire-safety rea­sons, the storage of gunpowder, a necessary component of an operational firearm. See Cornell & DeDino, A Well Regu­lated Right, 73 Ford. L. Rev. 487, 510-512 (2004). Boston’s law in particular impacted the use of firearms in the home very much as the District’s law does today. Boston’s gun­powder law imposed a £10 fine upon “any Person” who “shall take into any Dwelling-House, Stable, Barn, Out-house, Ware-house, Store, Shop, or other Building, within the Town of Boston, any . . . Fire-Arm, loaded with, or having Gun­Powder.” An Act in Addition to the several Acts already made for the prudent Storage of Gun-Powder within the Town of Boston, ch. XIII, 1783 Mass. Acts pp. 218-219; see also 1 S. Johnson, A Dictionary of the English Language 751 (4th ed. 1773) (defining “firearms” as “[a]rms which owe their efficacy to fire; guns”). Even assuming, as the majority does, see ante, at 631-632, that this law included an implicit self-defense exception, it would nevertheless have prevented a homeowner from keeping in his home a gun that he could immediately pick up and use against an intruder. Rather, the homeowner would have had to get the gunpowder and load it into the gun, an operation that would have taken a fair amount of time to perform. See Hicks, United States Military Shoulder Arms, 1795-1935, 1 Journal of Am. Mili­tary Hist. Foundation 23, 30 (1937) (experienced soldier could, with specially prepared cartridges as opposed to plain gunpowder and ball, load and fire musket 3-to-4 times per minute); id., at 26-30 (describing the loading process); see also Grancsay, The Craft of the Early American Gunsmith, 6 Metropolitan Museum of Art Bulletin 54, 60 (1947) (noting that rifles were slower to load and fire than muskets).

Moreover, the law would, as a practical matter, have pro­hibited the carrying of loaded firearms anywhere in the city, unless the carrier had no plans to enter any building or was willing to unload or discard his weapons before going inside. And Massachusetts residents must have believed this kind of law compatible with the provision in the Massachusetts Constitution that granted “[t]he people ... a right to keep and to bear arms for the common defence”—a provision that the majority says was interpreted as “securing] an individ­ual right to bear arms for defensive purposes.” Art. XVII (1780), in 3 The Federal and State Constitutions, Colonial Charters, and Other Organic Laws 1888, 1892 (F. Thorpe ed. 1909) (hereinafter Thorpe); ante, at 602 (opinion of the Court).

The New York City law, which required that gunpowder in the home be stored in certain sorts of containers, and laws in certain Pennsylvania towns, which required that gunpow­der be stored on the highest story of the home, could well have presented similar obstacles to in-home use of firearms. See Act of Apr. 13, 1784, ch. 28, 1784 N. Y. Laws p. 627; An Act for Erecting the Town of Carlisle, in the County of Cumberland, into a Borough, ch. XIV, § XLII, 1782 Pa. Laws p. 49; An Act for Erecting the Town of Reading, in the County of Berks, into a Borough, ch. LXXVI, § XLII, 1783 Pa. Laws p. 211. Although it is unclear whether these laws, like the Boston law, would have prohibited the storage of gunpowder inside a firearm, they would at the very least have made it difficult to reload the gun to fire a second shot unless the homeowner happened to be in the portion of the house where the extra gunpowder was required to be kept. See 7 United States Encyclopedia of History 1297 (P. Oehser ed. 1967) (“Until 1835 all small arms [were] single-shot weap­ons, requiring reloading by hand after every shot”). And Pennsylvania, like Massachusetts, had at the time one of the self-defense-guaranteeing state constitutional provisions on which the majority relies. See ante, at 601 (citing Pa. Decla­ration of Rights, § XIII (1776), in 5 Thorpe 3083).

The majority criticizes my citation of these colonial laws. See ante, at 631-634. But, as much as it tries, it cannot ignore their existence. I suppose it is possible that, as the majority suggests, see ante, at 631-633, they all in practice contained self-defense exceptions. But none of them expressly pro­vided one, and the majority’s assumption that such excep­tions existed relies largely on the preambles to these acts— an interpretive methodology that it elsewhere roundly de­rides. Compare ante, at 631-632 (interpreting 18th-century statutes in light of their preambles), with ante, at 578, and n. 3 (contending that the operative language of an 18th-­century enactment may extend beyond its preamble). And in any event, as I have shown, the gunpowder-storage laws would have burdened armed self-defense, even if they did not completely prohibit it.

This historical evidence demonstrates that a self-defense assumption is the beginning, rather than the end, of any constitutional inquiry. That the District law impacts self-­defense merely raises questions about the law’s constitution­ality. But to answer the questions that are raised (that is, to see whether the statute is unconstitutional) requires us to focus on practicalities, the statute’s rationale, the problems that called it into being, its relation to those objectives — in a word, the details. There are no purely logical or conceptual answers to such questions. All of which to say that to raise a self-defense question is not to answer it.

Ill

I therefore begin by asking a process-based question: How is a court to determine whether a particular firearm reg­ulation (here, the District’s restriction on handguns) is consistent with the Second Amendment? What kind of con­stitutional standard should the court use? How high a pro­tective hurdle does the Amendment erect?

The question matters. The majority is wrong when it says that the District’s law is unconstitutional “[ujnder any of the standards of scrutiny that we have applied to enumer­ated constitutional rights.” Ante, at 628. How could that be? It certainly would not be unconstitutional under, for example, a “rational-basis” standard, which requires a court to uphold regulation so long as it bears a “rational relation­ship” to a “legitimate governmental purpose.” Heller v. Doe, 509 U. S. 312, 320 (1993). The law at issue here, which in part seeks to prevent gun-related accidents, at least bears a “rational relationship” to that “legitimate” life-saving ob­jective. And nothing in the three 19th-century state cases to which the majority turns for support mandates the conclu­sion that the present District law must fall. See Andrews v. State, 50 Tenn. 165, 177, 186-187, 192 (1871) (striking down, as violating a state constitutional provision adopted in 1870, a statewide ban on carrying a broad class of weapons, insofar as it applied to revolvers); Nunn v. State, 1 Ga. 243, 246, 250-251 (1846) (striking down similarly broad ban on openly carrying weapons, based on erroneous view that the Federal Second Amendment applied to the States); State v. Reid, 1 Ala. 612, 614-615,622 (1840) (upholding a concealed-­weapon ban against a state constitutional challenge). These cases were decided well (80, 55, and 49 years, respectively) after the framing; they neither claim nor provide any special insight into the intent of the Framers; they involve laws much less narrowly tailored than the one before us; and state cases in any event are not determinative of federal consti­tutional questions, see, e. g., Garcia v. San Antonio Metro­politan Transit Authority, 469 U. S. 528, 549 (1985) (citing Martin v. Hunter’s Lessee, 1 Wheat. 304 (1816)).

Respondent proposes that the Court adopt a “strict scru­tiny” test, which would require reviewing with care each gun law to determine whether it is “narrowly tailored to achieve a compelling governmental interest.” Abrams v. Johnson, 521 U. S. 74, 82 (1997); see Brief for Respondent 54-62. But the majority implicitly, and appropriately, rejects that sug­gestion by broadly approving a set of laws — prohibitions on concealed weapons, forfeiture by criminals of the Second Amendment right, prohibitions on firearms in certain locales, and governmental regulation of commercial firearm sales— whose constitutionality under a strict-scrutiny standard would be far from clear. See ante, at 626-627.

Indeed, adoption of a true strict-scrutiny standard for evaluating gun regulations would be impossible. That is be­cause almost every gun-control regulation will seek to ad­vance (as the one here does) a “primary concern of every government — a concern for the safety and indeed the lives of its citizens.” United States v. Salerno, 481 U. S. 739, 755 (1987). The Court has deemed that interest, as well as “the Government’s general interest in preventing crime,” to be “compelling,” see id., at 750, 754, and the Court has in a wide variety of constitutional contexts found such public-safety concerns sufficiently forceful to justify restrictions on indi­vidual liberties, see, e. g., Brandenburg v. Ohio, 395 U. S. 444, 447 (1969) (per curiam) (First Amendment free speech rights); Sherbert v. Verner, 374 U. S. 398, 403 (1963) (First Amendment religious rights); Brigham City v. Stuart, 547 U. S. 398, 403-404 (2006) (Fourth Amendment protection of the home); New York v. Quarles, 467 U. S. 649, 655 (1984) (Fifth Amendment rights under Miranda v. Arizona, 384 U. S. 436 (1966)); Salerno, supra, at 755 (Eighth Amendment bail rights). Thus, any attempt in theory to apply strict scrutiny to gun regulations will in practice turn into an interest-balancing inquiry, with the interests protected by the Second Amendment on one side and the governmental public-safety concerns on the other, the only question being whether the regulation at issue impermissibly burdens the former in the course of advancing the latter.

I would simply adopt such an interest-balancing inquiry explicitly. The fact that important interests lie on both sides of the constitutional equation suggests that review of gun-control regulation is not a context in which a court should effectively presume either constitutionality (as in rational-basis review) or unconstitutionality (as in strict scrutiny). Rather, “where a law significantly implicates competing constitutionally protected interests in complex ways,” the Court generally asks whether the statute burdens a protected interest in a way or to an extent that is out of proportion to the statute’s salutary effects upon other impor­tant governmental interests. See Nixon v. Shrink Mis­souri Government PAC, 528 U. S. 377, 402 (2000) (Breyer, J., concurring). Any answer would take account both of the statute’s effects upon the competing interests and the exist­ence of any clearly superior less restrictive alternative. See ibid. Contrary to the majority’s unsupported suggestion that this sort of “proportionality” approach is unprece­dented, see ante, at 634, the Court has applied it in various constitutional contexts, including election-law cases, speech cases, and due process cases. See 528 U. S., at 403 (citing examples where the Court has taken such an approach); see also, e. g., Thompson v. Western States Medical Center, 535 U. S. 357, 388 (2002) (Breyer, J., dissenting) (commercial speech); Burdick v. Takushi, 504 U. S. 428, 433 (1992) (elec­tion regulation); Mathews v. Eldridge, 424 U. S. 319, 339-349 (1976) (procedural due process); Pickering v. Board of Ed. of Township High School Dish 205, Will Cty., 391 U. S. 563, 568 (1968) (government employee speech).

In applying this kind of standard the Court normally de­fers to a legislature’s empirical judgment in matters where a legislature is likely to have greater expertise and greater institutional factfinding capacity. See Turner Broadcasting System, Inc. v. FCC, 520 U. S. 180, 195-196 (1997); see also Nixon, supra, at 403 (Breyer, J., concurring). Nonethe­less, a court, not a legislature, must make the ultimate con­stitutional conclusion, exercising its “independent judicial judgment” in light of the whole record to determine whether a law exceeds constitutional boundaries. Randall v. Sorrell, 548 U. S. 230, 249 (2006) (opinion of Breyer, J.) (citing Bose Corp. v. Consumers Union of United States, Inc., 466 U. S. 485, 499 (1984)).

The above-described approach seems preferable to a more rigid approach here for a further reason. Experience as much as logic has led the Court to decide that in one area of constitutional law or another the interests are likely to prove stronger on one side of a typical constitutional case than on the other. See, e. g., United States v. Virginia, 518 U. S. 515, 531-534 (1996) (applying heightened scrutiny to gender-­based classifications, based upon experience with prior cases); Williamson v. Lee Optical of Okla., Inc., 348 U. S. 483, 488 (1955) (applying rational-basis scrutiny to economic legislation, based upon experience with prior cases). Here, we have little prior experience. Courts that do have experi­ence in these matters have uniformly taken an approach that treats empirically based legislative judgment with a degree of deference. See Winkler, Scrutinizing the Second Amend­ment, 105 Mich. L. Rev. 683, 687, 716-718 (2007) (describing hundreds of gun-law decisions issued in the last half century by Supreme Courts in 42 States, which courts with “surpris­ingly little variation” have adopted a standard more deferen­tial than strict scrutiny). While these state cases obviously are not controlling, they are instructive. Cf., e. g., Bartkus v. Illinois, 359 U. S. 121, 134 (1959) (looking to the “experi­ence of state courts” as informative of a constitutional ques­tion). And they thus provide some comfort regarding the practical wisdom of following the approach that I believe our constitutional precedent would in any event suggest.

IV

The present suit involves challenges to three separate Dis­trict firearm restrictions. The first requires a license from the District’s chief of police in order to carry a “pistol,” i. e., a handgun, anywhere in the District. See D. C. Code § 22-­4504(a) (2001); see also §§ 22-4501(a), 22-4506. Because the District assures us that respondent could obtain such a li­cense so long as he meets the statutory eligibility criteria, and because respondent concedes that those criteria are facially constitutional, I, like the majority, see no need to address the constitutionality of the licensing requirement. See ante, at 630-631.

The second District restriction requires that the lawful owner of a firearm keep his weapon “unloaded and disassem­bled or bound by a trigger lock or similar device" unless it is kept at his place of business or being used for lawful recre­ational purposes. See § 7-2507.02. The only dispute re­garding this provision appears to be whether the Constitu­tion requires an exception that would allow someone to render a firearm operational when necessary for self-defense (i. e., that the firearm may be operated under circumstances where the common law would normally permit a self-defense justification in defense against a criminal charge). See Par­ker v. District of Columbia, 478 F. 3d 370, 401 (2007) (case below); ante, at 630 (opinion of the Court); Brief for Re­spondent 52-54. The District concedes that such an excep­tion exists. See Brief for Petitioners 56-57. This Court has final authority (albeit not often used) to definitively in­terpret District law, which is, after all, simply a species of federal law. See, e. g., Whalen v. United States, 445 U. S. 684, 687-688 (1980); see also Griffin v. United States, 336 U. S. 704, 716-718 (1949). And because I see nothing in the District law that would preclude the existence of a back­ground common-law self-defense exception, I would avoid the constitutional question by interpreting the statute to in­clude it. See Ashwander v. TVA, 297 U. S. 288, 348 (1936) (Brandeis, J., concurring).

I am puzzled by the majority’s unwillingness to adopt a similar approach. It readily reads unspoken self-defense ex­ceptions into every colonial law, but it refuses to accept the District’s concession that this law has one. Compare ante, at 631-633, with ante, at 630. The one District case it cites to support that refusal, McIntosh v. Washington, 395 A. 2d 744, 755-756 (1978), merely concludes that the District Leg­islature had a rational basis for applying the trigger-lock law in homes but not in places of business. Nowhere does that case say that the statute precludes a self-defense exception of the sort that I have just described. And even if it did, we are not bound by a lower court’s interpretation of federal law.

The third District restriction prohibits (in most cases) the registration of a handgun within the District. See § 7-2502.02(a)(4). Because registration is a prerequisite to fire­arm possession, see § 7-2502.01(a), the effect of this provision is generally to prevent people in the District from possessing handguns. In determining whether this regulation violates the Second Amendment, I shall ask how the statute seeks to further the governmental interests that it serves, how the statute burdens the interests that the Second Amendment seeks to protect, and whether there are practical less bur­densome ways of furthering those interests. The ultimate question is whether the statute imposes burdens that, when viewed in light of the statute’s legitimate objectives, are dis­proportionate. See Nixon, 528 U. S., at 402 (Breyer, J., concurring).

A

No one doubts the constitutional importance of the stat­ute’s basic objective, saving lives. See, e. g., Salerno, 481 U. S., at 755. But there is considerable debate about whether the District’s statute helps to achieve that objective. I begin by reviewing the statute’s tendency to secure that objective from the perspective of (1) the legislature (namely, the Council of the District of Columbia (hereinafter Council)) that enacted the statute in 1976, and (2) a court that seeks to evaluate the Council’s decision today.

1

First, consider the facts as the legislature saw them when it adopted the District statute. As stated by the local coun­cil committee that recommended its adoption, the major sub­stantive goal of the District’s handgun restriction is “to re­duce the potentiality for gun-related crimes and gun-related deaths from occurring within the District of Columbia.” Firearms Control Regulations Act of 1975 (Council Act No. 1-142), Hearing and Disposition before the House Committee on the District of Columbia, 94th Cong., 2d Sess., on H. Con. Res. 694, Ser. No. 94-24, p. 25 (1976) (hereinafter DC Rep.) (reproducing, inter alia, the Council Committee Report). The Committee concluded, on the basis of “extensive public hearings” and “lengthy research,” that “[t]he easy availabil­ity of firearms in the United States has been a major factor contributing to the drastic increase in gun-related violence and crime over the past 40 years.” Id., at 24, 25. It re­ported to the Council “startling statistics,” id., at 26, regard­ing gun-related crime, accidents, and deaths, focusing partic­ularly on the relation between handguns and crime and the proliferation of handguns within the District. See id., at 25-26.

The Committee informed the Council that guns were “re­sponsible for 69 deaths in this country each day,” for a total of “[a]pproximately 25,000 gun-deaths . . . each year,” along with an additional 200,000 gun-related injuries. Id., at 25. Three thousand of these deaths, the report stated, were acci­dental. Ibid. A quarter of the victims in those accidental deaths were children under the age of 14. Ibid. And ac­cording to the Committee, “[f]or every intruder stopped by a homeowner with a firearm, there are 4 gun-related accidents within the home.” Ibid.

In respect to local crime, the Committee observed that there were 285 murders in the District during 1974 — a rec­ord number. Id., at 26. The Committee also stated that, “[c]ontrary to popular opinion on the subject, firearms are more frequently involved in deaths and violence among rela­tives and friends than in premeditated criminal activities.” Ibid. Citing an article from the American Journal of Psy­chiatry, the Committee reported that “[m]ost murders are committed by previously law-abiding citizens, in situations where spontaneous violence is generated by anger, passion or intoxication, and where the killer and victim are ac­quainted.” Ibid. “Twenty-five percent of these murders,” the Committee informed the Council, “occur within fami­lies.” Ibid.

The Committee Report furthermore presented statistics strongly correlating handguns with crime. Of the 285 mur­ders in the District in 1974, 155 were committed with hand­guns. Ibid. This did not appear to be an aberration, as the report revealed that “handguns [had been] used in roughly 54% of all murders” (and 87% of murders of law enforcement officers) nationwide over the preceding several years. Ibid. Nor were handguns only linked to murders, as statistics showed that they were used in roughly 60% of robberies and 26% of assaults. Ibid. “A crime committed with a pistol,” the Committee reported, “is 7 times more likely to be lethal than a crime committed with any other weapon.” Id., at 25. The Committee furthermore presented statistics regarding the availability of handguns in the United States, ibid., and noted that they had “become easy for juveniles to obtain,” even despite then-current District laws prohibiting juveniles from possessing them, id., at 26.

In the Committee’s view, the current District firearms laws were unable “to reduce the potentiality for gun-related violence,” or to “cope with the problems of gun control in the District” more generally. Ibid. In the absence of adequate federal gun legislation, the Committee concluded, it “becomes necessary for local governments to act to protect their citi­zens, and certainly the District of Columbia as the only totally urban statelike jurisdiction should be strong in its approach.” Id., at 27. It recommended that the Council adopt a restriction on handgun registration to reflect “a legislative decision that, at this point in time and due to the gun-control tragedies and horrors enumerated pre­viously” in the Committee Report, “pistols ... are no longer justified in this jurisdiction.” Id., at 81; see also ibid, (hand­gun restriction “denotes a policy decision that handguns . . . have no legitimate use in the purely urban environment of the District”).

The District’s special focus on handguns thus reflects the fact that the Committee Report found them to have a partic­ularly strong link to undesirable activities in the District’s exclusively urban environment. See id., at 25-26. The District did not seek to prohibit possession of other sorts of weapons deemed more suitable for an “urban area.” See id., at 25. Indeed, an original draft of the bill, and the original Committee recommendations, had sought to prohibit regis­tration of shotguns as well as handguns, but the Council as a whole decided to narrow the prohibition. Compare id., at 30 (describing early version of the bill), with D. C. Code § 7-2502.02).

2

Next, consider the facts as a court must consider them looking at the matter as of today. See, e. g., Turner, 520 U. S., at 195 (discussing role of court as factfinder in a consti­tutional case). Petitioners, and their amici, have presented us with more recent statistics that tell much the same story that the Committee Report told 30 years ago. At the least, they present nothing that would permit us to second-guess the Council in respect to the numbers of gun crimes, injuries, and deaths, or the role of handguns.

From 1993 to 1997, there were 180,533 firearm-related deaths in the United States, an average of over 36,000 per year. Dept. of Justice, Bureau of Justice Statistics, M. Za­witz & K. Strom, Firearm Injury and Death From Crime, 1993-97, p. 2 (Oct. 2000), online at http://www.ojp.usdoj.gov/ bjs/pub/pdf/fidc9397.pdf (hereinafter Firearm Injury and Death From Crime). Fifty-one percent were suicides, 44% were homicides, 1% were legal interventions, 3% were unin­tentional accidents, and 1% were of undetermined causes. See ibid. Over that same period there were an additional 411,800 nonfatal firearm-related injuries treated in U. S. hos­pitals, an average of over 82,000 per year. Ibid. Of these, 62% resulted from assaults, 17% were unintentional, 6% were suicide attempts, 1% were legal interventions, and 13% were of unknown causes. Ibid.

The statistics are particularly striking in respect to chil­dren and adolescents. In over one in every eight firearm-­related deaths in 1997, the victim was someone under the age of 20. American Academy of Pediatrics, Firearm-­Related Injuries Affecting the Pediatric Population, 105 Pe­diatrics 888 (2000) (hereinafter Firearm-Related Injuries). Firearm-related deaths account for 22.5% of all injury deaths between the ages of 1 and 19. Ibid. More male teenagers die from firearms than from all natural causes combined. Dresang, Gun Deaths in Rural and Urban Settings, 14 J. Am. Bd. Family Practice 107 (2001). Persons under 25 accounted for 47% of hospital-treated firearm injuries between June 1, 1992, and May 31, 1993. Firearm-Related Injuries 891.

Handguns are involved in a majority of firearm deaths and injuries in the United States. Id., at 888. From 1993 to 1997, 81% of firearm-homicide victims were killed by handgun. Firearm Injury and Death From Crime 4; see also Dept, of Justice, Bureau of Justice Statistics, C. Perkins, Weapon Use and Violent Crime 8 (Sept. 2003) (Table 10), http://www.ojp.usdoj.gov/bjs/pub/pdf/wuvc01.pdf (hereinaf­ter Weapon Use and Violent Crime) (statistics indicating roughly the same rate for 1993-2001). In the same period, for the 41% of firearm injuries for which the weapon type is known, 82% of them were from handguns. Firearm Injury and Death from Crime 4. And among children under the age of 20, handguns account for approximately 70% of all unintentional firearm-related injuries and deaths. Firearm-Related Injuries 890. In particular, 70% of all firearm-related teenage suicides in 1996 involved a handgun. Id., at 889; see also Zwerling, Lynch, Burmeister, & Goertz, The Choice of Weapons in Firearm Suicides in Iowa, 83 Am. J. Pub. Health 1630, 1631 (1993) (Table 1) (handguns used in 36.6% of all firearm suicides in Iowa from 1980-1984 and 43.8% from 1990-1991).

Handguns also appear to be a very popular weapon among criminals. In a 1997 survey of inmates who were armed during the crime for which they were incarcerated, 83.2% of state inmates and 86.7% of federal inmates said that they were armed with a handgun. See Dept. of Justice, Bureau of Justice Statistics, C. Harlow, Firearm Use by Offenders 3 (Nov. 2001), online at http://www.ojp.usdoj.gov/bjs/pub/pdf/ fuo.pdf; see also Weapon Use and Violent Crime 2 (Table 2) (statistics indicating that handguns were used in over 84% of nonlethal violent crimes involving firearms from 1993 to 2001). And handguns are not only popular tools for crime, but popular objects of it as well: the Federal Bureau of In­vestigation received on average over 274,000 reports of sto­len guns for each year between 1985 and 1994, and almost 60% of stolen guns are handguns. Dept. of Justice, Bureau of Justice Statistics, M. Zawitz, Guns Used in Crime 3 (July 1995), online at http://www.ojp.usdoj.gov/bjs/pub/pdf/guic. pdf. Department of Justice studies have concluded that sto­len handguns in particular are an important source of weap­ons for both adult and juvenile offenders. Ibid.

Statistics further suggest that urban areas, such as the District, have different experiences with gun-related death, injury, and crime than do less densely populated rural areas. 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. See Dept, of Justice, Bureau of Justice Statistics, D. Duhart, Urban, Suburban, and Rural Victimiza­tion, 1993-98, pp. 1, 9 (Oct. 2000), online at http://www.ojp. usdoj.gov/bjs/pub/pdf/usrv98.pdf. Homicide appears to be a much greater issue in urban areas; from 1985 to 1993, for example, “half of all homicides occurred in 63 cities with 16% of the nation’s population.” Wintemute, The Future of Fire­arm Violence Prevention, 282 JAMA 475 (1999). One study concluded that although the overall rate of gun death be­tween 1989 and 1999 was roughly the same in urban and rural areas, the urban homicide rate was three times as high; even after adjusting for other variables, it was still twice as high. Branas, Nance, Elliott, Richmond, & Schwab, Urban-­Rural Shifts in Intentional Firearm Death, 94 Am. J. Pub. Health 1750, 1752 (2004); see also ibid, (noting that rural areas appear to have a higher rate of firearm suicide). And a study of firearm injuries to children and adolescents in Pennsylvania between 1987 and 2000 showed an injury rate in urban counties 10 times higher than in nonurban counties. Nance et al., The Rural-Urban Continuum, 156 Archives of Pediatrics & Adolescent Medicine 781, 782 (2002).

Finally, the linkage of handguns to firearms deaths and injuries appears to be much stronger in urban than in rural areas. “[S]tudies to date generally support the hypothesis that the greater number of rural gun deaths are from rifles or shotguns, whereas the greater number of urban gun deaths are from handguns.” Dresang, supra, at 108. And the Pennsylvania study reached a similar conclusion with re­spect to firearm injuries — they are much more likely to be caused by handguns in urban areas than in rural areas. See Nance et al., supra, at 784.

3

Respondent and his many amici for the most part do not disagree about the figures set forth in the preceding subsec­tion, but they do disagree strongly with the District’s predic­tive judgment that a ban on handguns will help solve the crime and accident problems that those figures disclose. In particular, they disagree with the District Council’s assess­ment that “freezing the pistol.. . population within the Dis­trict,” DC Rep., at 26, will reduce crime, accidents, and deaths related to guns. And they provide facts and figures designed to show that it has not done so in the past, and hence will not do so in the future.

First, they point out that, since the ban took effect, violent crime in the District has increased, not decreased. See Brief for Criminologists et al. as Amici Curiae 4-8, 3a (hereinafter Criminologists’ Brief); Brief for Congress of Racial Equality as Amicus Curiae 35-36; Brief for National Rifle Association et al. as Amici Curiae 28-30 (hereinafter NRA Brief). Indeed, a comparison with 49 other major cities re­veals that the District’s homicide rate is actually substan­tially higher relative to these other cities than it was before the handgun restriction went into effect. See Brief for Aca­demics et al. as Amici Curiae 7-10 (hereinafter Academics’ Brief); see also Criminologists’ Brief 6-9, 3a-4a, 7a. Re­spondent’s amici report similar results in comparing the District’s homicide rates during that period to that of the neighboring States of Maryland and Virginia (neither of which restricts handguns to the same degree), and to the homicide rate of the Nation as a whole. See Academics’ Brief 11-17; Criminologists’ Brief 6a, 8a.

Second, respondent’s amici point to a statistical analysis that regresses murder rates against the presence or absence of strict gun laws in 20 European nations. See Criminolo­gists’ Brief 23 (citing Kates & Mauser, Would Banning Fire­arms Reduce Murder and Suicide? 30 Harv. J. L. & Pub. Pol’y 649,651-694 (2007)). That analysis concludes that strict gun laws are correlated with more murders, not fewer. See Criminologists’ Brief 23; see also id., at 25-28. They also cite domestic studies, based on data from various cities, States, and the Nation as a whole, suggesting that a reduc­tion in the number of guns does not lead to a reduction in the amount of violent crime. See id., at 17-20. They fur­ther argue that handgun bans do not reduce suicide rates, see id., at 28-31, 9a, or rates of accidents, even those in­volving children, see App. to Brief for International Law Enforcement Educators and Trainers Association et al. as Amici Curiae App. 7-15 (hereinafter ILEETA Brief).

Third, they point to evidence indicating that firearm own­ership does have a beneficial self-defense effect. Based on a 1993 survey, the authors of one study estimated that there were 2.2-to-2.5 million defensive uses of guns (mostly bran­dishing, about a quarter involving the actual firing of a gun) annually. See Kleck & Gertz, Armed Resistance to Crime, 86 J. Crim. L. & C. 150, 164 (1995); see also ILEETA Brief App. 1-6 (summarizing studies regarding defensive uses of guns). Another study estimated that for a period of 12 months ending in 1994, there were 503,481 incidents in which a burglar found himself confronted by an armed homeowner, and that in 497,646 (98.8%) of them, the intruder was success­fully scared away. See Ikeda, Dahlberg, Sacks, Mercy, & Powell, Estimating Intruder-Related Firearms Retrievals in U. S. Households, 12 Violence & Victims 363 (1997). A third study suggests that gun-armed victims are substantially less likely than non-gun-armed victims to be injured in resisting robbery or assault. Barnett & Kates, Under Fire, 45 Emory L. J. 1139,1243-1244, n. 478 (1996). And additional evidence suggests that criminals are likely to be deterred from bur­glary and other crimes if they know the victim is likely to have a gun. See Kleck, Crime Control Through the Private Use of Armed Force, 35 Social Problems 1,15 (1988) (report­ing a substantial drop in the burglary rate in an Atlanta sub­urb that required heads of households to own guns); see also ILEETA Brief 17-18 (describing decrease in sexual assaults in Orlando when women were trained in the use of guns).

Fourth, respondent’s amici argue that laws criminalizing gun possession are self-defeating, as evidence suggests that they will have the effect only of restricting law-abiding citi­zens, but not criminals, from acquiring guns. See, e. g., Brief for President Pro Tempore of Senate of Pennsylvania as Amicus Curiae 35,36, and n. 15. That effect, they argue, will be especially pronounced in the District, whose proxim­ity to Virginia and Maryland will provide criminals with a steady supply of guns. See Brief for Heartland Institute as Amicus Curiae 20.

In the view of respondent’s amici, this evidence shows that other remedies — such as less restriction on gun owner­ship, or liberal authorization of law-abiding citizens to carry concealed weapons — better fit the problem. See, e. g., Crim­inologists’ Brief 35-37 (advocating easily obtainable gun li­censes); Brief for Southeastern Legal Foundation, Inc., et al. as Amici Curiae 15 (hereinafter SLF Brief) (advocating “widespread gun ownership” as a deterrent to crime); see also J. Lott, More Guns, Less Crime (2d ed. 2000). They further suggest that at a minimum the District fails to show that its remedy, the gun ban, bears a reasonable relation to the crime and accident problems that the District seeks to solve. See, e. g., Brief for Respondent 59-61.

These empirically based arguments may have proved strong enough to convince many legislatures, as a matter of legislative policy, not to adopt total handgun bans. But the question here is whether they are strong enough to destroy judicial confidence in the reasonableness of a legislature that rejects them. And that they are not. For one thing, they can lead us more deeply into the uncertainties that surround any effort to reduce crime, but they cannot prove either that handgun possession diminishes crime or that handgun bans are ineffective. The statistics do show a soaring District crime rate. And the District’s crime rate went up after the District adopted its handgun ban. But, as students of ele­mentary logic know, after it does not mean because of it. What would the District’s crime rate have looked like with­out the ban? Higher? Lower? The same? Experts dif­fer; and we, as judges, cannot say.

What about the fact that foreign nations with strict gun laws have higher crime rates? Which is the cause and which the effect? The proposition that strict gun laws cause crime is harder to accept than the proposition that strict gun laws in part grow out of the fact that a nation already has a higher crime rate. And we are then left with the same question as before: What would have happened to crime without the gun laws—a question that respondent and his amici do not convincingly answer.

Further, suppose that respondent’s amici are right when they say that householders’ possession of loaded handguns help to frighten away intruders. On that assumption, one must still ask whether that benefit is worth the potential death-related cost. And that is a question without a directly provable answer.

Finally, consider the claim of respondent’s amici that handgun bans cannot work; there are simply too many illegal guns already in existence for a ban on legal guns to make a difference. In a word, they claim that, given the urban sea of pre-existing legal guns, criminals can readily find arms regardless. Nonetheless, a legislature might respond, we want to make an effort to try to dry up that urban sea, drop by drop. And none of the studies can show that effort is not worthwhile.

In a word, the studies to which respondent’s amici point raise policy-related questions. They succeed in proving that the District’s predictive judgments are controversial. But they do not by themselves show that those judgments are incorrect; nor do they demonstrate a consensus, academic or otherwise, supporting that conclusion.

Thus, it is not surprising that the District and its amici support the District’s handgun restriction with studies of their own. One in particular suggests that, statistically speaking, the District’s law has indeed had positive life­saving effects. See Loftin, McDowall, Wiersema, & Cottey, Effects of Restrictive Licensing of Handguns on Homicide and Suicide in the District of Columbia, 325 New England J. Med. 1615 (1991) (hereinafter Loftin study). Others suggest that firearm restrictions as a general matter reduce homi­cides, suicides, and accidents in the home. See, e. g., Dug­gan, More Guns, More Crime, 109 J. Pol. Econ. 1086 (2001); Kellermann, Somes, Rivara, Lee, & Banton, Injuries and Deaths Due to Firearms in the Home, 45 J. Trauma: Injury, Infection & Critical Care 263 (1998); Miller, Azrael, & He­menway, Household Firearm Ownership and Suicide Rates in the United States, 13 Epidemiology 517 (2002). Still others suggest that the defensive uses of handguns are not as great in number as respondent’s amici claim. See, e. g., Brief for American Public Health Association et al. as Amici Curiae 17-19 (hereinafter APHA Brief) (citing studies).

Respondent and his amici reply to these responses; and in doing so, they seek to discredit as methodologically flawed the studies and evidence relied upon by the District. See, e. g., Criminologists’ Brief 9-17, 20-24; Brief for Association of American Physicians and Surgeons, Inc., as Amicus Cu­riae 12-18; SLF Brief 17-22; Britt, Kleck, & Bordua, A Reas­sessment of the D. C. Gun Law, 30 Law & Soc. Rev. 361 (1996) (criticizing the Loftin study). And, of course, the District’s amici produce counterrejoinders, referring to articles that defend their studies. See, e. g., APHA Brief 23, n. 5 (citing McDowall, Loftin, & Wiersema, Using Quasi-Experiments To Evaluate Firearm Laws, 30 Law & Soc. Rev. 381 (1996)).

The upshot is a set of studies and counterstudies that, at most, could leave a judge uncertain about the proper policy conclusion. But from respondent’s perspective any such un­certainty is not good enough. That is because legislators, not judges, have primary responsibility for drawing policy conclusions from empirical fact. And, given that constitu­tional allocation of decisionmaking responsibility, the empiri­cal evidence presented here is sufficient to allow a judge to reach a firm legal conclusion.

In particular this Court, in First Amendment cases applying intermediate scrutiny, has said that our “sole obli­gation” in reviewing a legislature’s “predictive judgments” is “to assure that, in formulating its judgments,” the legisla­ture “has drawn reasonable inferences based on substantial evidence.” Turner, 520 U. S., at 195 (internal quotation marks omitted). And judges, looking at the evidence before us, should agree that the District Legislature’s predictive judgments satisfy that legal standard. That is to say, the District’s judgment, while open to question, is nevertheless supported by “substantial evidence.”

There is no cause here to depart from the standard set forth in Turner, for the District’s decision represents the kind of empirically based judgment that legislatures, not courts, are best suited to make. See Nixon, 528 U. S., at 402 (Breyer, J., concurring). In fact, deference to legislative judgment seems particularly appropriate here, where the judgment has been made by a local legislature, with particu­lar knowledge of local problems and insight into appropriate local solutions. See Los Angeles v. Alameda Books, Inc., 535 U. S. 425, 440 (2002) (plurality opinion) (“[W]e must ac­knowledge that the Los Angeles City Council is in a better position than the Judiciary to gather and evaluate data on local problems”); cf. DC Rep., at 67 (statement of Rep. Gude) (describing District’s law as “a decision made on the local level after extensive debate and deliberations”). Different localities may seek to solve similar problems in different ways, and a “city must be allowed a reasonable opportunity to experiment with solutions to admittedly serious prob­lems.” Renton v. Playtime Theatres, Inc., 475 U. S. 41, 52 (1986) (internal quotation marks omitted). “The Framers recognized that the most effective democracy occurs at local levels of government, where people with firsthand knowl­edge of local problems have more ready access to public offi­cials responsible for dealing with them.” Garcia v. San An­tonio Metropolitan Transit Authority, 469 U. S. 528, 575, n. 18 (1985) (Powell, J., dissenting) (citing The Federalist No. 17, p. 107 (J. Cooke ed. 1961) (A. Hamilton)). We owe that democratic process some substantial weight in the con­stitutional calculus.

For these reasons, I conclude that the District’s statute properly seeks to further the sort of life-preserving and public-safety interests that the Court has called “compel­ling.” Salerno, 481 U. S., at 750, 754.

B

I next assess the extent to which the District’s law bur­dens the interests that the Second Amendment seeks to pro­tect. Respondent and his amici, as well as the majority, suggest that those interests include: (1) the preservation of a “well regulated Militia”; (2) safeguarding the use of fire­arms for sporting purposes, e. g., hunting and marksmanship; and (3) assuring the use of firearms for self-defense. For argument’s sake, I shall consider all three of those interests here.

1

The District’s statute burdens the Amendment’s first and primary objective hardly at all. As previously noted, there is general agreement among the Members of the Court that the principal (if not the only) purpose of the Second Amend­ment is found in the Amendment’s text: the preservation of a “well regulated Militia.” See supra, at 682-683. What scant Court precedent there is on the Second Amendment teaches that the Amendment was adopted “[w]ith obvious pur­pose to assure the continuation and render possible the ef­fectiveness of [militia] forces” and “must be interpreted and applied with that end in view.” Miller, 307 U. S., at 178. Where that end is implicated only minimally (or not at all), there is substantially less reason for constitutional concern. Compare ibid. (“In the absence of any evidence tending to show that possession or use of a ‘shotgun having a barrel of less than eighteen inches in length’ at this time has some rea­sonable relationship to the preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument”).

To begin with, the present case has nothing to do with actual military service. The question presented presumes that respondent is “not affiliated with any state-regulated militia.” 552 U. S. 1035 (2007) (emphasis added). I am aware of no indication that the District either now or in the recent past has called up its citizenry to serve in a militia, that it has any inkling of doing so anytime in the foreseeable future, or that this law must be construed to prevent the use of handguns during legitimate militia activities. Moreover, even if the District were to call up its militia, respondent would not be among the citizens whose service would be re­quested. The District does not consider him, at 66 years of age, to be a member of its militia. See D. C. Code § 49-401 (2001) (militia includes only male residents ages 18 to 45); App. to Pet. for Cert. 120a (indicating respondent’s date of birth).

Nonetheless, as some amici claim, the statute might inter­fere with training in the use of weapons, training useful for military purposes. The 19th-century constitutional scholar, Thomas Cooley, wrote that the Second Amendment protects “learning to handle and use [arms] in a way that makes those who keep them ready for their efficient use” during mili­tia service. General Principles of Constitutional Law 271 (1880); ante, at 618 (opinion of the Court); see also ante, at 618-619 (citing other scholars agreeing with Cooley on that point). And former military officers tell us that “private ownership of firearms makes for a more effective fighting force” because “[m]ilitary recruits with previous firearms ex­perience and training are generally better marksmen, and accordingly, better soldiers.” Brief for Retired Military Of­ficers as Amici Curiae 1-2 (hereinafter Military Officers’ Brief). An amicus brief filed by retired Army generals adds that a “well-regulated militia — whether ad hoc or as part of our organized military — depends on recruits who have familiarity and training with firearms—rifles, pistols, and shotguns.” Brief for Major General John D. Altenburg, Jr., et al. as Amici Curiae 4 (hereinafter Generals’ Brief). Both briefs point out the importance of handgun training. Military Officers’ Brief 26-28; Generals’ Brief 4. Handguns are used in military service, see Military Officers’ Brief 26, and “civilians who are familiar with handgun marksmanship and safety are much more likely to be able to safely and accurately fire a rifle or other firearm with minimal training upon entering military service,” id., at 28.

Regardless, to consider the military-training objective a modern counterpart to a similar militia-related colonial ob­jective and to treat that objective as falling within the Amendment’s primary purposes makes no difference here. That is because the District’s law does not seriously affect military-training interests. The law permits residents to engage in activities that will increase their familiarity with firearms. They may register (and thus possess in their homes) weapons other than handguns, such as rifles and shotguns. See D. C. Code §§ 7-2502.01, 7-2502.02(a) (only weapons that cannot be registered are sawed-off shotguns, machineguns, short-barreled rifles, and pistols not registered before 1976); compare Generals’ Brief 4 (listing “rifles, pis­tols, and shotguns” as useful military weapons (emphasis added)). And they may operate those weapons within the District “for lawful recreational purposes.” § 7-2507.02; see also § 7-2502.01(b)(3) (nonresidents “participating in any law­ful recreational firearm-related activity in the District, or on his way to or from such activity in another jurisdiction,” may carry even weapons not registered in the District). These permissible recreations plainly include actually using and firing the weapons, as evidenced by a specific D. C. Code provision contemplating the existence of local firing ranges. See § 7-2507.03.

And while the District law prevents citizens from training with handguns within the District, the District consists of only 61.4 square miles of urban area. See Dept. of Com­merce, Bureau of Census, United States: 2000 (pt. 1), p. 11 (2002) (Table 8). The adjacent States do permit the use of handguns for target practice, and those States are only a brief subway ride away. See Md. Crim. Law Code Ann. § 4-­203(b)(4) (Lexis Supp. 2007) (general handgun restriction does not apply to “the wearing, carrying, or transporting by a person of a handgun used in connection with,” inter alia, “a target shoot, formal or informal target practice, sport shooting event, hunting, [or] a Department of Natural Resources-sponsored firearms and hunter safety class”); Va. Code Ann. § 18.2-287.4 (Lexis Supp. 2007) (general restric­tion on carrying certain loaded pistols in certain public areas does not apply “to any person actually engaged in lawful hunting or lawful recreational shooting activities at an estab­lished shooting range or shooting contest”); Washington Met­ropolitan Area Transit Authority, Metrorail System Map, on­line at http://www.wmata.com/metrorail/systemmap.cfm.

Of course, a subway rider must buy a ticket, and the ride takes time. It also costs money to store a pistol, say, at a target range, outside the District. But given the costs al­ready associated with gun ownership and firearms training, I cannot say that a subway ticket and a short subway ride (and storage costs) create more than a minimal burden. Cf. Crawford v. Marion County Election Bd., 553 U. S. 181, 238-239 (2008) (Breyer, J., dissenting) (acknowledging travel burdens on indigent persons in the context of voting where public transportation options were limited). Indeed, respondent and two of his coplaintiffs below may well use handguns outside the District on a regular basis, as their declarations indicate that they keep such weapons stored there. See App. to Pet. for Cert. 77a (respondent); see also id., at 78a, 84a (coplaintiffs). I conclude that the District’s law burdens the Second Amendment’s primary objective lit­tle, or not at all.

2

The majority briefly suggests that the “right to keep and bear Arms” might encompass an interest in hunting. See, e. g., ante, at 599. But in enacting the present provisions, the District sought to “take nothing away from sportsmen.” DC Rep., at 33. And any inability of District residents to hunt near where they live has much to do with the jurisdic­tion’s exclusively urban character and little to do with the District’s firearm laws. For reasons similar to those I dis­cussed in the preceding subsection — that the District’s law does not prohibit possession of rifles or shotguns, and the presence of opportunities for sporting activities in nearby States — I reach a similar conclusion, namely, that the Dis­trict’s law burdens any sports-related or hunting-related ob­jectives that the Amendment may protect little, or not at all.

3

The District’s law does prevent a resident from keeping a loaded handgun in his home. And it consequently makes it more difficult for the householder to use the handgun for self-defense in the home against intruders, such as burglars. As the Court of Appeals noted, statistics suggest that hand­guns are the most popular weapon for self-defense. See 478 F. 3d, at 400 (citing Kleck & Gertz, 86 J. Crim. L. & C., at 182-183). And there are some legitimate reasons why that would be the case: Amici suggest (with some empirical sup­port) that handguns are easier to hold and control (particu­larly for persons with physical infirmities), easier to carry, easier to maneuver in enclosed spaces, and that a person using one will still have a hand free to dial 911. See ILEETA Brief 37-39;. NR A Brief 32-33; see also ante, at 629. But see Brief for Petitioners 54-55 (citing sources preferring shotguns and rifles to handguns for purposes of self-defense). To that extent the law burdens to some degree an interest in self-defense that for present purposes I have assumed the Amendment seeks to further.

C

In weighing needs and burdens, we must take account of the possibility that there are reasonable, but less restrictive, alternatives. Are there other potential measures that might similarly promote the same goals while imposing lesser re­strictions? See Nixon, 528 U. S., at 402 (Breyer, J., concur­ring) (“existence of a clearly superior, less restrictive alter­native” can be a factor in determining whether a law is constitutionally proportionate). Here I see none.

The reason there is no clearly superior, less restrictive al­ternative to the District’s handgun ban is that the ban’s very objective is to reduce significantly the number of handguns in the District, say, for example, by allowing a law enforce­ment officer immediately to assume that any handgun he sees is an illegal handgun. And there is no plausible way to achieve that objective other than to ban the guns.

It does not help respondent’s case to describe the District’s objective more generally as an “effort to diminish the dan­gers associated with guns.” That is because the very attrib­utes that make handguns particularly useful for self-defense are also what make them particularly dangerous. That they are easy to hold and control means that they are easier for children to use. See Brief for American Academy of Pediat­rics et al. as Amici Curiae 19 (“[C]hildren as young as three are able to pull the trigger of most handguns”). That they are maneuverable and permit a free hand likely contrib­utes to the fact that they are by far the firearm of choice for crimes such as rape and robbery. See Weapon Use and Violent Crime 2 (Table 2). That they are small and light makes them easy to steal, see supra, at 698, and conceal­able, cf. ante, at 626 (opinion of the Court) (suggesting that concealed-weapon bans are constitutional).

This symmetry suggests that any measure less restrictive in respect to the use of handguns for self-defense will, to that same extent, prove less effective in preventing the use of handguns for illicit purposes. If a resident has a handgun in the home that he can use for self-defense, then he has a handgun in the home that he can use to commit suicide or engage in acts of domestic violence. See supra, at 697 (hand­guns prevalent in suicides); Brief for National Network to End Domestic Violence et al. as Amici Curiae 27 (handguns prevalent in domestic violence). If it is indeed the case, as the District believes, that the number of guns contributes to the number of gun-related crimes, accidents, and deaths, then, although there may be less restrictive, less effective substitutes for an outright ban, there is no less restrictive equivalent of an outright ban.

Licensing restrictions would not similarly reduce the handgun population, and the District may reasonably fear that even if guns are initially restricted to law-abiding citi­zens, they might be stolen and thereby placed in the hands of criminals. See supra, at 698. Permitting certain types of handguns, but not others, would affect the commercial market for handguns, but not their availability. And requir­ing safety devices such as trigger locks, or imposing safe-­storage requirements would interfere with any self-defense interest while simultaneously leaving operable weapons in the hands of owners (or others capable of acquiring the weapon and disabling the safety device) who might use them for domestic violence or other crimes.

The absence of equally effective alternatives to a complete prohibition finds support in the empirical fact that other States and urban centers prohibit particular types of weap­ons. Chicago has a law very similar to the District’s, and many of its suburbs also ban handgun possession under most circumstances. See Chicago, Ill., Municipal Code §§ 8-20-030(k), 8-20-40, 8-20-50(c) (2008); Evanston, Ill., City Code § 9-8-2 (2007); Morton Grove, Ill, Village Code § 6-2-3(C) (2007); Oak Park, Ill, Village Code § 27-2-1 (2007); Winnetka, Ill., Village Ordinance § 9.12.020(B) (2008), online at http:// www.amlegal.com/library/il/winnetka.shtml; Wilmette, Ill., Ordinance § 12-24(b) (2008), online at http://www.amlegal. com/library/il/wilmette.shtml. Toledo bans certain types of handguns. Toledo, Ohio, Municipal Code § 549.25 (2008).

And San Francisco in 2005 enacted by popular referendum a ban on most handgun possession by city residents; it has been precluded from enforcing that prohibition, however, by state-court decisions deeming it pre-empted by state law. See Fiscal v. City and County of San Francisco, 158 Cal. App. 4th 895, 900-902, 70 Cal. Rptr. 3d 324, 326-328 (2008). (Indeed, the fact that as many as 41 States may pre-empt local gun regulation suggests that the absence of more regu­lation like the District’s may perhaps have more to do with state law than with a lack of locally perceived need for them. See Legal Community Against Violence, Regulating Guns in America 14 (2006), http://www.lcav.org/Library/reports_ analyses/N ational_Audit_Total_8.16.06.pdf.)

In addition, at least six States and Puerto Rico impose general bans on certain types of weapons, in particular as­sault weapons or semiautomatic weapons. See Cal. Penal Code Ann. § 12280(b) (West Supp. 2008); Conn. Gen. Stat. § 53-202c (2007); Haw. Rev. Stat. § 134-8 (1993); Md. Crim. Law Code Ann. § 4-303(a) (Lexis 2002); Mass. Gen. Laws, ch. 140, § 131M (West 2006); N. Y. Penal Law Ann. § 265.02(7) (West Supp. 2008); 25 Laws P. R. Ann. § 456m (Supp. 2006); see also 18 U. S. C. § 922(o) (federal machinegun ban). And at least 14 municipalities do the same. See Albany, N. Y, Municipal Code § 93-16(A) (2005); Aurora, Ill., Ordinance § 29-49(a) (2007); Buffalo, N. Y, City Code § 180-1(F) (2000); Chicago, Ill., Municipal Code §§ 8-24-025(a), 8-20-030(h); Cincinnati, Ohio, Municipal Code § 708-37(a) (Supp. 2008); Cleveland, Ohio, Ordinance § 628.03(a) (2007); Columbus, Ohio, City Code § 2323.31 (2008); Denver, Colo., Revised Mu­nicipal Code § 38-130(e) (2008); Morton Grove, Ill., Village Code § 6-2-3(B) (2007); N. Y. C. Admin. Code § 10-303.1 (1996 and Supp. 2007); Oak Park, Ill., Village Code § 27-2-1 (2007); Rochester, N. Y, Code § 47—5(f) (2008), online at http://www.ci.rochester.ny.us/index.cfm7id:: 112; South Bend, Ind., Ordinance §§ 13-97(b), 13-98 (2008), online at http:// library2.munieode.comm//default/DocView13974/1/2; Toledo, Ohio, Municipal Code § 549.23(a). These bans, too, suggest that there may be no substitute to an outright prohibition in cases where a governmental body has deemed a particular type of weapon especially dangerous.

D

The upshot is that the District’s objectives are compelling; its predictive judgments as to its law’s tendency to achieve those objectives are adequately supported; the law does im­pose a burden upon any self-defense interest that the Amendment seeks to secure; and there is no clear less re­strictive alternative. I turn now to the final portion of the “permissible regulation” question: Does the District’s law disproportionately burden Amendment-protected interests? Several considerations, taken together, convince me that it does not.

First, the District law is tailored to the life-threatening problems it attempts to address. The law concerns one class of weapons, handguns, leaving residents free to possess shot­guns and rifles, along with ammunition. The area that falls within its scope is totally urban. Cf. Lorillard Tobacco Co. v. Reilly, 533 U. S. 525, 563 (2001) (varied effect of statewide speech restriction in “rural, urban, or suburban” locales “demonstrates a lack of narrow tailoring”). That urban area suffers from a serious handgun-fatality problem. The Dis­trict’s law directly aims at that compelling problem. And there is no less restrictive way to achieve the problem-­related benefits that it seeks.

Second, the self-defense interest in maintaining loaded handguns in the home to shoot intruders is not the primary interest, but at most a subsidiary interest, that the Second Amendment seeks to serve. The Second Amendment’s lan­guage, while speaking of a “Militia,” says nothing of “self-­defense.” As Justice Stevens points out, the Second Amendment’s drafting history shows that the language re­flects the Framers’ primary, if not exclusive, objective. See ante, at 652-662 (dissenting opinion). And the majority itself says that “the threat that the new Federal Government would destroy the citizens’ militia by taking away their arms was the reason that right... was codified in a written Consti­tution.” Ante, at 599 (emphasis added). The way in which the Amendment’s operative clause seeks to promote that in­terest — by protecting a right “to keep and bear Arms” — may in fact help further an interest in self-defense. But a fac­tual connection falls far short of a primary objective. The Amendment itself tells us that militia preservation was first and foremost in the Framers’ minds. See Miller, 307 U. S., at 178 (“With obvious purpose to assure the continuation and render possible the effectiveness of [militia] forces the decla­ration and guarantee of the Second Amendment were made,” and the Amendment “must be interpreted and applied with that end in view”).

Further, any self-defense interest at the time of the fram­ing could not have focused exclusively upon urban-crime-­related dangers. Two hundred years ago, most Americans, many living on the frontier, would likely have thought of self-defense primarily in terms of outbreaks of fighting with Indian tribes, rebellions such as Shays’ Rebellion, maraud­ers, and crime-related dangers to travelers on the roads, on footpaths, or along waterways. See Dept. of Commerce, Bu­reau of Census, Population: 1790 to 1990 (1998) (Table 4), on­line at http://www.census.gov/population/censusdata/table-4. pdf (of the 3,929,214 Americans in 1790, only 201,655—about 5% — lived in urban areas). Insofar as the Framers focused at all on the tiny fraction of the population living in large cities, they would have been aware that these city dwellers were subject to firearm restrictions that their rural counter­parts were not. See supra, at 683-686. They are unlikely then to have thought of a right to keep loaded handguns in homes to confront intruders in urban settings as central. And the subsequent development of modern urban police de­partments, by diminishing the need to keep loaded guns nearby in case of intruders, would have moved any such right even further away from the heart of the Amendment’s more basic protective ends. See, e. g., Sklansky, The Private Police, 46 UCLA L. Rev. 1165, 1206-1207 (1999) (professional urban police departments did not develop until roughly the mid-19th century).

Nor, for that matter, am I aware of any evidence that handguns in particular were central to the Framers’ concep­tion of the Second Amendment. The lists of militia-related weapons in the late-18th-century state statutes appear pri­marily to refer to other sorts of weapons, muskets in par­ticular. See Miller, supra, at 180-182 (reproducing colonial militia laws). Respondent points out in his brief that the Federal Government and two States at the time of the found­ing had enacted statutes that listed handguns as “acceptable” militia weapons. Brief for Respondent 47. But these stat­utes apparently found them “acceptable” only for certain special militiamen (generally, certain soldiers on horseback), while requiring muskets or rifles for the general infantry. See Act of May 8, 1792, ch. XXXIII, 1 Stat. 271; Laws of the State of North Carolina 592 (1791); First Laws of the State of Connecticut 150 (J. Cushing ed. 1982); see also 25 Journals of the Continental Congress 1774-1789, pp. 741-742 (G. Hunt ed. 1922).

Third, irrespective of what the Framers could have thought, we know what they did think. Samuel Adams, who lived in Boston, advocated a constitutional amendment that would have precluded the Constitution from ever being “ ‘construed’ ” to “ ‘prevent the people of the United States, who are peaceable citizens, from keeping their own arms.’” 6 Documentary History of the Ratification of the Constitu­tion 1453 (J. Kaminski & G. Saladino eds. 2000). Samuel Adams doubtless knew that the Massachusetts Constitution contained somewhat similar protection. And he doubtless knew that Massachusetts law prohibited Bostonians from keeping loaded guns in the house. So how could Samuel Adams have advocated such protection unless he thought that the protection was consistent with local regulation that seriously impeded urban residents from using their arms against intruders? It seems unlikely that he meant to de­prive the Federal Government of power (to enact Boston-­type weapons regulation) that he knew Boston had and (as far as we know) he would have thought constitutional under the Massachusetts Constitution. Indeed, since the District of Columbia (the subject of the Seat of Government Clause, U. S. Const., Art. I, § 8, cl. 17) was the only urban area under direct federal control, it seems unlikely that the Framers thought about urban gun control at all. Cf. Palmore v. United States, 411 U. S. 389, 398 (1973) (Congress can “legis­late for the District in a manner with respect to subjects that would exceed its powers, or at least would be very un­usual, in the context of national legislation enacted under other powers delegated to it”).

Of course the District’s law and the colonial Boston law are not identical. But the Boston law disabled an even wider class of weapons (indeed, all firearms). And its exist­ence shows at the least that local legislatures could impose (as here) serious restrictions on the right to use firearms. Moreover, as I have said, Boston’s law, though highly analo­gous to the District’s, was not the only colonial law that could have impeded a homeowner’s ability to shoot a burglar. Pennsylvania’s and New York’s laws could well have had a similar effect. See supra, at 686. And the Massachusetts and Pennsylvania laws were not only thought consistent with an unwritten common-law gun-possession right, but also consistent with written state constitutional provisions pro­viding protections similar to those provided by the Federal Second Amendment. See supra, at 685-686. I cannot agree with the majority that these laws are largely uninfor­mative because the penalty for violating them was civil, rather than criminal. Ante, at 633-634. The Court has long recognized that the exercise of a constitutional right can be burdened by penalties far short of jail time. See, e. g., Murdock v. Pennsylvania, 319 U. S. 105 (1943) (invalidating $7 per week solicitation fee as applied to religious group); see also Forsyth County v. Nationalist Movement, 505 U. S. 123, 136 (1992) (“A tax based on the content of speech does not become more constitutional because it is a small tax”).

Regardless, why would the majority require a precise colo­nial regulatory analogue in order to save a modern gun regu­lation from constitutional challenge? After all, insofar as we look to history to discover how we can constitutionally regulate a right to self-defense, we must look, not to what 18th-century legislatures actually did enact, but to what they would have thought they could enact. There are innu­merable policy-related reasons why a legislature might not act on a particular matter, despite having the power to do so. This Court has “frequently cautioned that it is at best treacherous to find in congressional silence alone the adop­tion of a controlling rule of law.” United States v. Wells, 519 U. S. 482, 496 (1997) (internal quotation marks and brackets omitted). It is similarly “treacherous” to reason from the fact that colonial legislatures did not enact certain kinds of legislation to a conclusion that a modern legislature cannot do so. The question should not be whether a modern re­striction on a right to self-defense duplicates a past one, but whether that restriction, when compared with restrictions originally thought possible, enjoys a similarly strong justifi­cation. At a minimum that similarly strong justification is what the District’s modern law, compared with Boston’s colo­nial law, reveals.

Fourth, a contrary view, as embodied in today’s decision, will have unfortunate consequences. The decision will en­courage legal challenges to gun regulation throughout the Nation. Because it says little about the standards used to evaluate regulatory decisions, it will leave the Nation with­out clear standards for resolving those challenges. See ante, at 626-627, and n. 26. And litigation over the course of many years, or the mere specter of such litigation, threat­ens to leave cities without effective protection against gun violence and accidents during that time.

As important, the majority’s decision threatens severely to limit the ability of more knowledgeable, democratically elected officials to deal with gun-related problems. The ma­jority says that it leaves the District “a variety of tools for combating” such problems. Ante, at 636. It fails to list even one seemingly adequate replacement for the law it strikes down. I can understand how reasonable individuals can disagree about the merits of strict gun control as a crime-control measure, even in a totally urbanized area. But I cannot understand how one can take from the elected branches of government the right to decide whether to insist upon a handgun-free urban populace in a city now facing a serious crime problem and which, in the future, could well face environmental or other emergencies that threaten the breakdown of law and order.

V

The majority derides my approach as “judge-­empowering.” Ante, at 634. I take this criticism seriously, but I do not think it accurate. As I have previously ex­plained, this is an approach that the Court has taken in other areas of constitutional law. See supra, at 690. Applica­tion of such an approach, of course, requires judgment, but the very nature of the approach — requiring careful identifi­cation of the relevant interests and evaluating the law’s ef­fect upon them — limits the judge’s choices; and the method’s necessary transparency lays bare the judge’s reasoning for all to see and to criticize.

The majority’s methodology is, in my view, substantially less transparent than mine. At a minimum, I find it difficult to understand the reasoning that seems to underlie certain conclusions that it reaches.

The majority spends the first 54 pages of its opinion at­tempting to rebut Justice Stevens’ evidence that the Amendment was enacted with a purely militia-related pur­pose. In the majority’s view, the Amendment also protects an interest in armed personal self-defense, at least to some degree. But the majority does not tell us precisely what that interest is. “Putting all of [the Second Amendment’s] textual elements together,” the majority says, “we find that they guarantee the individual right to possess and carry weapons in case of confrontation.” Ante, at 592. Then, three pages later, it says that “we do not read the Second Amendment to permit citizens to carry arms for any sort of confrontation.” Ante, at 595. Yet, with one critical ex­ception, it does not explain which confrontations count. It simply leaves that question unanswered.

The majority does, however, point to one type of confron­tation that counts, for it describes the Amendment as “ele­vating] above all other interests the right of law-abiding, responsible citizens to use arms in defense of hearth and home.” Ante, at 635. What is its basis for finding that to be the core of the Second Amendment right? The only his­torical sources identified by the majority that even appear to touch upon that specific matter consist of an 1866 newspaper editorial discussing the Freedmen’s Bureau Act, see ante, at 615, two quotations from that 1866 Act’s legislative history, see ante, at 615-616, and a 1980 state-court opinion saying that in colonial times the same were used to defend the home as to maintain the militia, see ante, at 624-625. How can citations such as these support the far-reaching proposition that the Second Amendment’s primary concern is not its stated concern about the militia, but rather a right to keep loaded weapons at one’s bedside to shoot intruders?

Nor is it at all clear to me how the majority decides which loaded “arms” a homeowner may keep. The majority says that that Amendment protects those weapons “typically pos­sessed by law-abiding citizens for lawful purposes.” Ante, at 625. This definition conveniently excludes machineguns, but permits handguns, which the majority describes as “the most popular weapon chosen by Americans for self-defense in the home.” Ante, at 629; see also ante, at 626-627. But what sense does this approach make? According to the ma­jority’s reasoning, if Congress and the States lift restrictions on the possession and use of machineguns, and people buy machineguns to protect their homes, the Court will have to reverse course and find that the Second Amendment does, in fact, protect the individual self-defense-related right to pos­sess a machinegun. On the majority’s reasoning, if tomor­row someone invents a particularly useful, highly dangerous self-defense weapon, Congress and the States had better ban it immediately, for once it becomes popular Congress will no longer possess the constitutional authority to do so. In essence, the majority determines what regulations are per­missible by looking to see what existing regulations permit. There is no basis for believing that the Framers intended such circular reasoning.

I am similarly puzzled by the majority’s list, in Part III of its opinion, of provisions that in its view would survive Sec­ond Amendment scrutiny. These consist of (1) “prohibitions on carrying concealed weapons”; (2) “prohibitions on the pos­session of firearms by felons”; (3) “prohibitions on the posses­sion of firearms by ... the mentally ill”; (4) “laws forbidding the carrying of firearms in sensitive places such as schools and government buildings”; and (5) government “conditions and qualifications” attached to “the commercial sale of arms.” Ibid. Why these? Is it that similar restrictions existed in the late-18th century? The majority fails to cite any colonial analogues. And even were it possible to find analogous colonial laws in respect to all these restrictions, why should these colonial laws count, while the Boston loaded-gun restriction (along with the other laws I have identified) apparently does not count? See supra, at 685, 717-718.

At the same time the majority ignores a more important question: Given the purposes for which the Framers enacted the Second Amendment, how should it be applied to modern-day circumstances that they could not have antici­pated? Assume, for argument’s sake, that the Framers did intend the Amendment to offer a degree of self-defense protection. Does that mean that the Framers also intended to guarantee a right to possess a loaded gun near swimming pools, parks, and playgrounds? That they would not have cared about the children who might pick up a loaded gun on their parents’ bedside table? That they (who certainly showed concern for the risk of fire, see supra, at 684-686) would have lacked concern for the risk of accidental deaths or suicides that readily accessible loaded handguns in urban areas might bring? Unless we believe that they intended future generations to ignore such matters, answering ques­tions such as the questions in this case requires judgment— judicial judgment exercised within a framework for constitu­tional analysis that guides that judgment and which makes its exercise transparent. One cannot answer those ques­tions by combining inconclusive historical research with judi­cial ipse dixit.

The argument about method, however, is by far the less important argument surrounding today’s decision. Far more important are the unfortunate consequences that to­day’s decision is likely to spawn. Not least of these, as I have said, is the fact that the decision threatens to throw into doubt the constitutionality of gun laws throughout the United States. I can find no sound legal basis for launching the courts on so formidable and potentially dangerous a mis­sion. In my view, there simply is no untouchable constitu­tional right guaranteed by the Second Amendment to keep loaded handguns in the house in crime-ridden urban areas.

VI

For these reasons, I conclude that the District’s measure is a proportionate, not a disproportionate, response to the compelling concerns that led the District to adopt it. And, for these reasons as well as the independently sufficient rea­sons set forth by Justice Stevens, I would find the Dis­trict’s measure consistent with the Second Amendment’s demands.

With respect, I dissent.

[1408] Melissa Arbus Sherry, Washington, DC, for Petitioner.

Charles A. Rothfeld, Washington, DC, for Respondent.

Steven L. West, West & West Attorneys, Huntingdon, TN, Eugene R. Fidell, New Haven, CT, Charles A. Rothfeld, Counsel of Record, Andrew J. Pincus, Paul W. Hughes, Michael B. Kimberly, Mayer Brown LLP, Washington, DC, for Respondent.

Donald B. Verrilli, Jr., Solicitor General, Mythili Raman, Acting Assistant Attorney General, Michael R. Dreeben, Deputy Solicitor General, Melissa Arbus Sherry, Assistant to the Solicitor General, Counsel of Record, Joseph C. Wyderko, Washington, DC, for Petitioner.

Justice SOTOMAYOR delivered the opinion of the Court.

Recognizing that "[f]irearms and domestic strife are a potentially deadly combination," United States v. Hayes, 555 U.S. 415, 427, 129 S.Ct. 1079, 172 L.Ed.2d 816 (2009), Congress forbade the possession of firearms by anyone convicted of "a misdemeanor crime of domestic violence." 18 U.S.C. § 922(g)(9). The respondent, James Alvin Castleman, pleaded guilty to the misdemeanor offense of having "intentionally or knowingly cause[d] bodily injury to" the mother of his child. App. 27. The question before us is whether this conviction qualifies as "a misdemeanor crime of domestic violence." We hold that it does.

I

A

This country witnesses more than a million acts of domestic violence, and hundreds of deaths from domestic violence, each year.^[1] See Georgia v. Randolph, 547 U.S. 103, 117-118, 126 S.Ct. 1515, 164 L.Ed.2d 208 (2006). Domestic violence often escalates in severity over time, see Brief for Major Cities Chiefs Association et al. as Amici Curiae 13-15; Brief for National Network to End Domestic Violence et al. as Amici Curiae 9-12, and the presence of a firearm increases the likelihood that it will escalate to homicide, see id., at 14-15; Campbell et al., Assessing [1409] Risk Factors for Intimate Partner Homicide, DOJ, Nat. Institute of Justice J., No. 250, p. 16 (Nov. 2003) ("When a gun was in the house, an abused woman was 6 times more likely than other abused women to be killed"). "[A]ll too often," as one Senator noted during the debate over § 922(g)(9), "the only difference between a battered woman and a dead woman is the presence of a gun." 142 Cong. Rec. 22986 (1996) (statement of Sen. Wellstone).

Congress enacted § 922(g)(9), in light of these sobering facts, to "`close [a] dangerous loophole'" in the gun control laws: While felons had long been barred from possessing guns, many perpetrators of domestic violence are convicted only of misdemeanors. Hayes, 555 U.S., at 418, 426, 129 S.Ct. 1079. Section 922(g)(9) provides, as relevant, that any person "who has been convicted ... of a misdemeanor crime of domestic violence" may not "possess in or affecting commerc[e] any firearm or ammunition." With exceptions that do not apply here, the statute defines a "misdemeanor crime of domestic violence" as

"an offense that ... (i) is a misdemeanor under Federal, State, or Tribal law; and (ii) has, as an element, the use or attempted use of physical force, or the threatened use of a deadly weapon, committed by a current or former spouse, parent, or guardian of the victim, by a person with whom the victim shares a child in common, by a person who is cohabiting with or has cohabited with the victim as a spouse, parent, or guardian, or by a person similarly situated to a spouse, parent, or guardian of the victim." § 921(a)(33)(A).

This case concerns the meaning of one phrase in this definition: "the use ... of physical force."

B

In 2001, Castleman was charged in a Tennessee court with having "intentionally or knowingly cause[d] bodily injury to" the mother of his child, in violation of Tenn. Code Ann. § 39-13-111(b) (Supp.2002). App. 27. He pleaded guilty. Id., at 29.

In 2008, federal authorities learned that Castleman was selling firearms on the black market. A grand jury in the Western District of Tennessee indicted him on two counts of violating § 922(g)(9) and on other charges not relevant here. Id., at 13-16.

Castleman moved to dismiss the § 922(g)(9) charges, arguing that his Tennessee conviction did not qualify as a "misdemeanor crime of domestic violence" because it did not "ha[ve], as an element, the use ... of physical force," § 921(a)(33)(A)(ii). The District Court agreed, on the theory that "the `use of physical force' for § 922(g)(9) purposes" must entail "violent contact with the victim." App. to Pet. for Cert. 40a. The court held that a conviction under the relevant Tennessee statute cannot qualify as a "misdemeanor crime of domestic violence" because one can cause bodily injury without "violent contact" — for example, by "deceiving [the victim] into drinking a poisoned beverage." Id., at 41a.

A divided panel of the U.S. Court of Appeals for the Sixth Circuit affirmed, by different reasoning. 695 F.3d 582 (2012). The majority held that the degree of physical force required by § 921(a)(33)(A)(ii) is the same as required by § 924(e)(2)(B)(i), which defines "violent felony." Id., at 587. Applying our decision in Johnson v. United States, 559 U.S. 133, 130 S.Ct. 1265, 176 L.Ed.2d 1 (2010), which held that § 924(e)(2)(B)(i) requires "violent force," id., at 140, 130 S.Ct. 1265, the majority held that Castleman's conviction did not qualify as a "misdemeanor crime of domestic violence" because Castleman could have been convicted for "caus[ing] a slight, nonserious [1410] physical injury with conduct that cannot be described as violent." 695 F.3d, at 590. Judge McKEAGUE dissented, arguing both that the majority erred in extending Johnson's definition of a "violent felony" to the context of a "misdemeanor crime of domestic violence" and that, in any event, Castleman's conviction satisfied the Johnson standard. Id., at 593-597.

The Sixth Circuit's decision deepened a split of authority among the Courts of Appeals. Compare, e.g., United States v. Nason, 269 F.3d 10, 18 (C.A.1 2001) (§ 922(g)(9) "encompass[es] crimes characterized by the application of any physical force"), with United States v. Belless, 338 F.3d 1063, 1068 (C.A.9 2003) (§ 922(g)(9) covers only "the violent use of force"). We granted certiorari to resolve this split, 570 U.S. ___, 134 S.Ct. 49, 186 L.Ed.2d 962 (2013), and now reverse the Sixth Circuit's judgment.

II

A

"It is a settled principle of interpretation that, absent other indication, `Congress intends to incorporate the wellsettled meaning of the common-law terms it uses.'" Sekhar v. United States, 570 U.S. ___, ___, 133 S.Ct. 2720, 2724, 186 L.Ed.2d 794 (2013). Seeing no "other indication" here, we hold that Congress incorporated the common-law meaning of "force" — namely, offensive touching — in § 921(a)(33)(A)'s definition of a "misdemeanor crime of domestic violence."

Johnson resolves this case in the Government's favor — not, as the Sixth Circuit held, in Castleman's. In Johnson, we considered whether a battery conviction was a "violent felony" under the Armed Career Criminal Act (ACCA), § 924(e)(1). As here, ACCA defines such a crime as one that "has as an element the use ... of physical force," § 924(e)(2)(B)(i). We began by observing that at common law, the element of force in the crime of battery was "satisfied by even the slightest offensive touching." 559 U.S., at 139, 130 S.Ct. 1265 (citing 3 W. Blackstone, Commentaries on the Laws of England 120 (1768)).^[2] And we recognized the general rule that "a common-law term of art should be given its established common-law meaning," except "where that meaning does not fit." 559 U.S., at 139, 130 S.Ct. 1265. We declined to read the common-law meaning of "force" into ACCA's definition of a "violent felony," because we found it a "comical misfit with the defined term." Id., at 145, 130 S.Ct. 1265; see United States v. Stevens, 559 U.S. 460, 474, 130 S.Ct. 1577, 176 L.Ed.2d 435 (2010) ("[A]n unclear definitional phrase may take meaning from the term to be defined"). In defining a "`violent felony,'" we held, "the phrase `physical force'" must "mea[n] violent force." Johnson, 559 U.S., at 140, 130 S.Ct. 1265. But here, the common-law meaning of "force" fits perfectly: The very reasons we gave for rejecting that meaning in defining a "violent felony" are reasons to embrace it in defining a "misdemeanor crime of domestic violence."^[3]

[1411] First, because perpetrators of domestic violence are "routinely prosecuted under generally applicable assault or battery laws," Hayes, 555 U.S., at 427, 129 S.Ct. 1079, it makes sense for Congress to have classified as a "misdemeanor crime of domestic violence" the type of conduct that supports a common-law battery conviction. Whereas it was "unlikely" that Congress meant to incorporate in the definition of a "`violent felony' a phrase that the common law gave peculiar meaning only in its definition of a misdemeanor," Johnson, 559 U.S., at 141, 130 S.Ct. 1265, it is likely that Congress meant to incorporate that misdemeanor-specific meaning of "force" in defining a "misdemeanor crime of domestic violence."

Second, whereas the word "violent" or "violence" standing alone "connotes a substantial degree of force," id., at 140, 130 S.Ct. 1265,^[4] that is not true of "domestic violence." "Domestic violence" is not merely a type of "violence"; it is a term of art encompassing acts that one might not characterize as "violent" in a nondomestic context. See Brief for National Network to End Domestic Violence et al. as Amici Curiae 4-9; DOJ, Office on Violence Against Women, Domestic Violence (defining physical forms of domestic violence to include "[h]itting, slapping, shoving, grabbing, pinching, biting, [and] hair pulling"), online at http://www.ovw.usdoj.gov/domviolence.htm.^[5] Indeed, "most physical [1412] assaults committed against women and men by intimates are relatively minor and consist of pushing, grabbing, shoving, slapping, and hitting." DOJ, P. Tjaden & N. Thoennes, Extent, Nature and Consequences of Intimate Partner Violence 11 (2000).

Minor uses of force may not constitute "violence" in the generic sense. For example, in an opinion that we cited with approval in Johnson, the Seventh Circuit noted that it was "hard to describe ... as `violence'" "a squeeze of the arm [that] causes a bruise." Flores v. Ashcroft, 350 F.3d 666, 670 (2003). But an act of this nature is easy to describe as "domestic violence," when the accumulation of such acts over time can subject one intimate partner to the other's control. If a seemingly minor act like this draws the attention of authorities and leads to a successful prosecution for a misdemeanor offense, it does not offend common sense or the English language to characterize the resulting conviction as a "misdemeanor crime of domestic violence."

Justice SCALIA'S concurrence discounts our reference to social-science definitions of "domestic violence," including those used by the organizations most directly engaged with the problem and thus most aware of its dimensions. See post, at 1420-1422. It is important to keep in mind, however, that the operative phrase we are construing is not "domestic violence"; it is "physical force." § 921(a)(33)(A). "Physical force" has a presumptive common-law meaning, and the question is simply whether that presumptive meaning makes sense in defining a "misdemeanor crime of domestic violence."^[6]

A third reason for distinguishing Johnson's definition of "physical force" is that unlike in Johnson — where a determination that the defendant's crime was a "violent felony" would have classified him as an "armed career criminal" — the statute here groups those convicted of "misdemeanor crimes of domestic violence" with others whose conduct does not warrant such a designation. Section 922(g) bars gun possession by anyone "addicted to any controlled substance," § 922(g)(3); by most people who have "been admitted to the United States under a nonimmigrant visa," § 922(g)(5)(B); by anyone who has renounced United States citizenship, § 922(g)(7); and by anyone subject to a domestic restraining order, § 922(g)(8). Whereas we have hesitated (as in Johnson) to apply the Armed Career Criminal Act to "crimes which, though dangerous, are not typically committed by those whom one normally labels `armed career criminals,'" Begay v. United States, 553 U.S. 137, 146, 128 S.Ct. 1581, 170 L.Ed.2d 490 (2008), we see no anomaly in grouping domestic abusers convicted of generic assault or battery offenses together with the others whom § 922(g) disqualifies from gun ownership.

[1413] An additional reason to read the statute as we do is that a contrary reading would have rendered § 922(g)(9) inoperative in many States at the time of its enactment. The "assault or battery laws" under which "domestic abusers were ... routinely prosecuted" when Congress enacted § 922(g)(9), and under which many are still prosecuted today, Hayes, 555 U.S., at 427, 129 S.Ct. 1079, fall generally into two categories: those that prohibit both offensive touching and the causation of bodily injury, and those that prohibit only the latter. See Brief for United States 36-38. Whether or not the causation of bodily injury necessarily entails violent force — a question we do not reach — mere offensive touching does not. See Johnson, 559 U.S., at 139-140, 130 S.Ct. 1265. So if offensive touching did not constitute "force" under § 921(a)(33)(A), then § 922(g)(9) would have been ineffectual in at least 10 States — home to nearly thirty percent of the Nation's population^[7] — at the time of its enactment. See post, at 1419, and n. 5 (SCALIA, J., concurring in part and concurring in judgment) (acknowledging that § 922(g)(9) would have been inapplicable in California and nine other States if it did not encompass offensive touching); App. to Brief for United States 10a-16a (listing statutes prohibiting both offensive touching and the causation of bodily injury, only some of which are divisible); cf. Hayes, 555 U.S., at 427, 129 S.Ct. 1079 (rejecting an interpretation under which "§ 922(g)(9) would have been `a dead letter' in some two-thirds of the States from the very moment of its enactment").

In sum, Johnson requires that we attribute the common-law meaning of "force" to § 921(a)(33)(A)'s definition of a "misdemeanor crime of domestic violence" as an offense that "has, as an element, the use or attempted use of physical force." We therefore hold that the requirement of "physical force" is satisfied, for purposes of § 922(g)(9), by the degree of force that supports a common-law battery conviction.

B

Applying this definition of "physical force," we conclude that Castleman's conviction qualifies as a "misdemeanor crime of domestic violence." In doing so, we follow the analytic approach of Taylor v. United States, 495 U.S. 575, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990), and Shepard v. United States, 544 U.S. 13, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005). We begin with Taylor's categorical approach, under which we look to the statute of Castleman's conviction to determine whether that conviction necessarily "ha[d], as an element, the use or attempted use of physical force, or the threatened use of a deadly weapon," § 921(a)(33)(A).

The Tennessee statute under which Castleman was convicted made it a crime to "commi[t] an assault ... against" a "family or household member" — in Castleman's case, the mother of his child. Tenn.Code Ann. § 39-13-111(b). A provision incorporated by reference, § 39-13-101, defined three types of assault: "(1) [i]ntentionally, knowingly or recklessly caus[ing] bodily injury to another; (2) [i]ntentionally or knowingly caus[ing] another to reasonably fear imminent bodily injury; or (3) [i]ntentionally or knowingly caus[ing] physical contact with another" in a manner that a "reasonable person would regard ... as extremely offensive or provocative." § 39-13-101(a).

It does not appear that every type of assault defined by § 39-13-101 necessarily [1414] involves "the use or attempted use of physical force, or the threatened use of a deadly weapon," § 921(a)(33)(A). A threat under § 39-13-101(2) may not necessarily involve a deadly weapon, and the merely reckless causation of bodily injury under § 39-13-101(1) may not be a "use" of force.^[8]

But we need not decide whether a domestic assault conviction in Tennessee categorically constitutes a "misdemeanor crime of domestic violence," because the parties do not contest that § 39-13-101 is a "`divisible statute,'" Descamps v. United States, 570 U.S. ___, ___, 133 S.Ct. 2276, 2281, 186 L.Ed.2d 438 (2013). We may accordingly apply the modified categorical approach, consulting the indictment to which Castleman pleaded guilty in order to determine whether his conviction did entail the elements necessary to constitute the generic federal offense. Id., at ___, 133 S.Ct., at 2281-2282; see Shepard, 544 U.S., at 26, 125 S.Ct. 1254. Here, that analysis is straightforward: Castleman pleaded guilty to having "intentionally or knowingly cause[d] bodily injury" to the mother of his child, App. 27, and the knowing or intentional causation of bodily injury necessarily involves the use of physical force.

First, a "bodily injury" must result from "physical force." Under Tennessee law, "bodily injury" is a broad term: It "includes a cut, abrasion, bruise, burn or disfigurement; physical pain or temporary illness or impairment of the function of a bodily member, organ, or mental faculty." Tenn.Code Ann. § 39-11-106(a)(2) (1997). Justice SCALIA'S concurrence suggests that these forms of injury necessitate violent force, under Johnson's definition of that phrase. Post, at 1417. But whether or not that is so — a question we do not decide — these forms of injury do necessitate force in the common-law sense.

The District Court thought otherwise, reasoning that one can cause bodily injury "without the `use of physical force'" — for example, by "deceiving [the victim] into drinking a poisoned beverage, without making contact of any kind." App. to Pet. for Cert. 41a. But as we explained in Johnson, "physical force" is simply "force exerted by and through concrete bodies," as opposed to "intellectual force or emotional force." 559 U.S., at 138, 130 S.Ct. 1265. And the common-law concept of "force" encompasses even its indirect application. "Force" in this sense "describ[es] one of the elements of the common-law crime of battery," id., at 139, 130 S.Ct. 1265, and "[t]he force used" in battery "need not be applied directly to the body of the victim." 2 W. LaFave, Substantive Criminal Law § 16.2(b) (2d ed. 2003). "[A] battery may be committed by administering a poison or by infecting with [1415] a disease, or even by resort to some intangible substance," such as a laser beam. Ibid. (footnote omitted) (citing State v. Monroe, 121 N.C. 677, 28 S.E. 547 (1897) (poison); State v. Lankford, 29 Del. 594, 102 A. 63 (1917) (disease); Adams v. Commonwealth, 33 Va.App. 463, 534 S.E.2d 347 (2000) (laser beam)). It is impossible to cause bodily injury without applying force in the common-law sense.

Second, the knowing or intentional application of force is a "use" of force. Castleman is correct that under Leocal v. Ashcroft, 543 U.S. 1, 125 S.Ct. 377, 160 L.Ed.2d 271 (2004), the word "use" "conveys the idea that the thing used (here, `physical force') has been made the user's instrument." Brief for Respondent 37. But he errs in arguing that although "[p]oison may have `forceful physical properties' as a matter of organic chemistry,... no one would say that a poisoner `employs' force or `carries out a purpose by means of force' when he or she sprinkles poison in a victim's drink," ibid. The "use of force" in Castleman's example is not the act of "sprinkl[ing]" the poison; it is the act of employing poison knowingly as a device to cause physical harm. That the harm occurs indirectly, rather than directly (as with a kick or punch), does not matter. Under Castleman's logic, after all, one could say that pulling the trigger on a gun is not a "use of force" because it is the bullet, not the trigger, that actually strikes the victim. Leocal held that the "use" of force must entail "a higher degree of intent than negligent or merely accidental conduct," 543 U.S., at 9, 125 S.Ct. 377; it did not hold that the word "use" somehow alters the meaning of "force."

Because Castleman's indictment makes clear that the use of physical force was an element of his conviction, that conviction qualifies as a "misdemeanor crime of domestic violence."

III

We are not persuaded by Castleman's nontextual arguments against our interpretation of § 922(g)(9).

A

First, Castleman invokes § 922(g)(9)'s legislative history to suggest that Congress could not have intended for the provision to apply to acts involving minimal force. But to the extent that legislative history can aid in the interpretation of this statute, Castleman's reliance on it is unpersuasive.

Castleman begins by observing that during the debate over § 922(g)(9), several Senators argued that the provision would help to prevent gun violence by perpetrators of severe domestic abuse. Senator Lautenberg referred to "serious spousal or child abuse" and to "violent individuals"; Senator Hutchison to "`people who batter their wives'"; Senator Wellstone to people who "brutalize" their wives or children; and Senator Feinstein to "severe and recurring domestic violence." 142 Cong. Rec. 22985-22986, 22988. But as we noted above, see supra, at 1414, the impetus of § 922(g)(9) was that even perpetrators of severe domestic violence are often convicted "under generally applicable assault or battery laws." Hayes, 555 U.S., at 427, 129 S.Ct. 1079. So nothing about these Senators' isolated references to severe domestic violence suggests that they would not have wanted § 922(g)(9) to apply to a misdemeanor assault conviction like Castleman's.

Castleman next observes that § 922(g)(9) is the product of a legislative compromise. The provision originally barred gun possession for any "crime of domestic violence," defined as any "felony or misdemeanor crime of violence, regardless of length, term, or manner of punishment." [1416] 142 Cong. Rec. 5840. Congress rewrote the provision to require the use of physical force in response to the concern "that the term crime of violence was too broad, and could be interpreted to include an act such as cutting up a credit card with a pair of scissors," id., at 26675. See Hayes, 555 U.S., at 428, 129 S.Ct. 1079. Castleman would have us conclude that Congress thus meant "to narrow the scope of the statute to convictions based on especially severe conduct." Brief for Respondent 24. But all Congress meant to do was address the fear that § 922(g)(9) might be triggered by offenses in which no force at all was directed at a person. As Senator Lautenberg noted, the revised text was not only "more precise" than the original but also "probably broader." 142 Cong. Rec. 26675.

B

We are similarly unmoved by Castleman's invocation of the rule of lenity. Castleman is correct that our "construction of a criminal statute must be guided by the need for fair warning." Crandon v. United States, 494 U.S. 152, 160, 110 S.Ct. 997, 108 L.Ed.2d 132 (1990). But "the rule of lenity only applies if, after considering text, structure, history, and purpose, there remains a grievous ambiguity or uncertainty in the statute, such that the Court must simply guess as to what Congress intended." Barber v. Thomas, 560 U.S. 474, 488, 130 S.Ct. 2499, 177 L.Ed.2d 1 (2010) (citation and internal quotation marks omitted). That is not the case here.

C

Finally, Castleman suggests — in a single paragraph — that we should read § 922(g)(9) narrowly because it implicates his constitutional right to keep and bear arms. But Castleman has not challenged the constitutionality of § 922(g)(9), either on its face or as applied to him, and the meaning of the statute is sufficiently clear that we need not indulge Castleman's cursory nod to constitutional avoidance concerns.

* * *

Castleman's conviction for having "intentionally or knowingly cause[d] bodily injury to" the mother of his child qualifies as a "misdemeanor crime of domestic violence." The judgment of the United States Court of Appeals for the Sixth Circuit is therefore reversed, and the case is remanded for further proceedings consistent with this opinion.

It is so ordered.

Justice SCALIA, concurring in part and concurring in the judgment.

I agree with the Court that intentionally or knowingly causing bodily injury to a family member "has, as an element, the use ... of physical force," 18 U.S.C. § § 921(a)(33)(A)(ii), and thus constitutes a "misdemeanor crime of domestic violence," § 922(g)(9). I write separately, however, because I reach that conclusion on narrower grounds.

I

Our decision in Johnson v. United States, 559 U.S. 133, 130 S.Ct. 1265, 176 L.Ed.2d 1 (2010), is the natural place to begin. Johnson is significant here because it concluded that "the phrase `physical force' means violent force — that is, force capable of causing physical pain or injury to another person." Id., at 140, 130 S.Ct. 1265 (second emphasis added). This is an easy case if the phrase "physical force" has the same meaning in § 921(a)(33)(A)(ii), the provision that defines "misdemeanor crime of domestic violence" for purposes of § 922(g)(9), as it does in § 924(e)(2)(B)(ii), the provision interpreted in Johnson, since it is impossible to cause bodily injury without [1417] using force "capable of" producing that result.

There are good reasons to give the phrase Johnson's interpretation. One is the presumption of consistent usage — the rule of thumb that a term generally means the same thing each time it is used. Although the presumption is most commonly applied to terms appearing in the same enactment, e.g., IBP, Inc. v. Alvarez, 546 U.S. 21, 33-34, 126 S.Ct. 514, 163 L.Ed.2d 288 (2005), it is equally relevant "when Congress uses the same language in two statutes having similar purposes," Smith v. City of Jackson, 544 U.S. 228, 233, 125 S.Ct. 1536, 161 L.Ed.2d 410 (2005) (plurality opinion); see also Northcross v. Board of Ed. of Memphis City Schools, 412 U.S. 427, 428, 93 S.Ct. 2201, 37 L.Ed.2d 48 (1973) (per curiam). This case is a textbook candidate for application of the Smith-Northcross branch of the rule. The "physical force" clauses at issue here and in Johnson are worded in nearly identical fashion: The former defines a "misdemeanor crime of domestic violence" as an offense that "has, as an element, the use or attempted use of physical force," § 921(a)(33)(A)(ii), while the latter defines a "violent felony" as an offense that "has as an element the use, attempted use, or threatened use of physical force against the person of another," § 924(e)(2)(B)(i). And both statutes are designed to promote public safety by deterring a class of criminals from possessing firearms.

Respondent's arguments fail to overcome the presumption of consistent usage. In respondent's view, "physical force" cannot mean "any force that produces any pain or bodily injury," Brief for Respondent 25, because § 921(a)(33)(A)(ii) defines a violent crime and one can inflict all sorts of minor injuries — bruises, paper cuts, etc. — by engaging in nonviolent behavior. Respondent therefore reasons that § 921(a)(33)(A)(ii) requires force capable of inflicting "serious" bodily injury. That requirement is more demanding than both of the plausible meanings of "physical force" we identified in Johnson: common-law offensive touching (which Johnson rejected) and force capable of causing physical pain or injury, serious or otherwise. See 559 U.S., at 138-140, 130 S.Ct. 1265. It would be surpassing strange to read a statute defining a "misdemeanor crime of domestic violence" as requiring greater force than the similarly worded statute in Johnson, which defined a "violent felony," and respondent does not make a convincing case for taking that extraordinary step.

For these reasons, I would give "physical force" the same meaning in § 921(a)(33)(A)(ii) as in Johnson. The rest of the analysis is straightforward. Because "intentionally or knowingly caus[ing] bodily injury," App. 27, categorically involves the use of "force capable of causing physical pain or injury to another person," 559 U.S., at 140, 130 S.Ct. 1265, respondent's 2001 domestic-assault conviction qualifies as a "misdemeanor crime of domestic violence" under § 922(g)(9).^[9] I would reverse the judgment below on that basis and remand for further proceedings.

II

Unfortunately, the Court bypasses that narrower interpretation of § 921(a)(33)(A)(ii) in favor of a much broader one that treats any offensive touching, no matter how slight, as sufficient. That expansive common-law definition [1418] cannot be squared with relevant precedent or statutory text.

We have twice addressed the meaning of "physical force" in the context of provisions that define a class of violent crimes. Both times, we concluded that "physical force" means violent force. In Johnson, we thought it "clear that in the context of a statutory definition of `violent felony,' the phrase `physical force' means violent force." Id., at 140, 130 S.Ct. 1265. And we held that common-law offensive touching — the same type of force the Court today holds does constitute "physical force" — is not sufficiently violent to satisfy the Armed Career Criminal Act's "physical force" requirement. See id., at 140-144, 130 S.Ct. 1265. Our analysis in Johnson was premised in large part on our earlier interpretation of the generic federal "crime of violence" statute, 18 U.S.C. § 16. In Leocal v. Ashcroft, 543 U.S. 1, 11, 125 S.Ct. 377, 160 L.Ed.2d 271 (2004), we observed that § 16(a) — which defines a "crime of violence" as "an offense that has as an element the use, attempted use, or threatened use of physical force against the person or property of another" — comprehends "a category of violent, active crimes." The textual similarity between § 921(a)(33)(A)(ii)'s "physical force" clause and the clauses at issue in Johnson and Leocal thus raises the question: Why should the same meaning not apply here?

The Court gives four responses that merit discussion, none of which withstands scrutiny. First, the Court invokes the "`settled principle of interpretation that, absent other indication, "Congress intends to incorporate the well-settled meaning of the common-law terms it uses."'" Ante, at 1410 (quoting Sekhar v. United States, 570 U.S. ___, ___, 133 S.Ct. 2720, 2724, 186 L.Ed.2d 794 (2013)). That principle is of limited relevance, since the presumption of consistent statutory meaning is precisely "other indication" that § 921(a)(33)(A)(ii) does not incorporate the common-law meaning. Anyway, a more accurate formulation of the principle cited by the Court is that when "`a word is obviously transplanted from another legal source, whether the common law or other legislation, it brings the old soil with it.'" Sekhar, supra, at ___, 133 S.Ct., at 2724 (quoting Frankfurter, Some Reflections on the Reading of Statutes, 47 Colum. L. Rev. 527, 537 (1947); emphasis added). Section 921(a)(33)(A)(ii) was enacted after the statutes involved in Johnson and Leocal,^[10] and its "physical force" clause is quite obviously modeled on theirs.

Second, the Court asserts that any interpretation of "physical force" that excludes offensive touching "would have rendered § 922(g)(9) inoperative in many States at the time of its enactment." Ante, at 1413. But there is no interpretive principle to the effect that statutes must be given their broadest possible application, and § 922(g)(9) without offensive touching would have had application in four-fifths of the States. Although domestic violence was "routinely prosecuted" under misdemeanor assault or battery statutes when Congress enacted § 922(g)(9), United States v. Hayes, 555 U.S. 415, 427, 129 S.Ct. 1079, 172 L.Ed.2d 816 (2009), and such statutes generally prohibited "both offensive touching and the causation of bodily injury" or "only the latter," ante, at 1412-1413, it does not follow that interpreting "physical force" to mean violent force would have rendered § 922(g)(9) a [1419] practical nullity. To the contrary, § 922(g)(9) would have worked perfectly well in 38 of the 48 States that had misdemeanor assault or battery statutes at the time of § 922(g)(9)'s enactment. At that point, 19 States had statutes that covered infliction of bodily injury but not offensive touching,^[11] and 19 more had statutes that prohibited both of types of conduct, but did so in a divisible manner — thus making it possible to identify the basis for a conviction by inspecting charging documents and similar materials, see Descamps v. United States, 570 U.S. ___, ___, 133 S.Ct. 2276, 2283-2285, 186 L.Ed.2d 438 (2013).^[12] That leaves only 10 States whose misdemeanor assault or battery statutes (1) prohibited offensive touching, and (2) were framed in such a way that offensive touching was indivisible from physical violence.^[13] The fact that § 922(g)(9) would not have applied immediately in 10 States is hardly enough to trigger the presumption against ineffectiveness — the idea that Congress presumably does not enact useless laws. Compare Hayes, supra, at 427, 129 S.Ct. 1079 (rejecting an interpretation that supposedly would have rendered § 922(g)(9) "`a dead letter' in some two-thirds of the States"). I think it far more plausible that Congress enacted a statute that covered domestic-violence convictions in four-fifths of the States, and left it to the handful of nonconforming States to change their laws (as some have), than that Congress adopted a meaning of "domestic violence" that included the slightest unwanted touching.

Third, the Court seizes on the one and only meaningful distinction between § 921(a)(33)(A)(ii) and the other provisions referred to above: that it defines a violent "misdemeanor" rather than a "violent felony" or an undifferentiated "crime of violence." Ante, at 1410-1411. We properly take account of the term being defined when interpreting "an unclear definitional phrase." United States v. Stevens, 559 U.S. 460, 474, 130 S.Ct. 1577, 176 L.Ed.2d 435 (2010); but see Babbitt v. Sweet Home Chapter, Communities for Great Ore., 515 [1420] U.S. 687, 717-719, 115 S.Ct. 2407, 132 L.Ed.2d 597 (1995) (SCALIA, J., dissenting). But when we do so, we consider the entire term being defined, not just part of it. Here, the term being defined is "misdemeanor crime of domestic violence." Applying the term-to-be-defined canon thus yields the unremarkable conclusion that "physical force" in § 921(a)(33)(A)(ii) refers to the type of force involved in violent misdemeanors (such as bodily-injury offenses) rather than nonviolent ones (such as offensive touching).

Fourth, and finally, the Court seeks to evade Johnson and Leocal on the ground that "`domestic violence' encompasses a range of force broader than that which constitutes `violence' simpliciter." Ante, at 1411, n. 4. That is to say, an act need not be violent to qualify as "domestic violence." That absurdity is not only at war with the English language, it is flatly inconsistent with definitions of "domestic violence" from the period surrounding § 921(a)(33)(A)(ii)'s enactment. At the time, dictionaries defined "domestic violence" as, for instance, "[v]iolence between members of a household, usu. spouses; an assault or other violent act committed by one member of a household against another," Black's Law Dictionary 1564 (7th ed. 1999), and "[v]iolence toward or physical abuse of one's spouse or domestic partner," American Heritage Dictionary 534 (4th ed. 2000).^[14] Those definitions, combined with the absence of "domestic violence" entries in earlier dictionaries, see, e.g., Black's Law Dictionary 484 (6th ed. 1990); American Heritage Dictionary 550 (3d ed. 1992), make it utterly implausible that Congress adopted a "term of art" definition "encompassing acts that one might not characterize as `violent' in a nondomestic context," ante, at 1411.

The Court's inventive, nonviolent definition fares no better when judged against other accepted sources of meaning. Current dictionaries give "domestic violence" the same meaning as above: ordinary violence that occurs in a domestic context. See, e.g., American Heritage Dictionary 533 (5th ed. 2011) ("[p]hysical abuse of a household member, especially one's spouse or domestic partner"). The same goes for definitions of "domestic violence" found in other federal statutes.^[15] Indeed, Congress defined "crime of domestic violence" as a "crime of violence" in another section of the same bill that enacted § 921(a)(33)(A)(ii). See § 350(a), 110 Stat. 3009-639, codified at 8 U.S.C. § 1227(a)(2)(E)(i).

The Court ignores these authorities and instead bases its definition on an amicus brief filed by the National Network to End Domestic Violence and other private organizations,^[16] and two publications issued [1421] by the Department of Justice's Office on Violence Against Women. The amicus brief provides a series of definitions — drawn from law-review articles, foreign-government bureaus, and similar sources — that include such a wide range of nonviolent and even nonphysical conduct that they cannot possibly be relevant to the meaning of a statute requiring "physical force," or to the legal meaning of "domestic violence" (as opposed to the meaning desired by private and governmental advocacy groups). For example, amici's definitions describe as "domestic violence" acts that "humiliate, isolate, frighten, ... [and] blame ... someone"; "acts of omission"; "excessive monitoring of a woman's behavior, repeated accusations of infidelity, and controlling with whom she has contact." Brief for National Network to End Domestic Violence et al. as Amici Curiae 5-8, and nn. 7, 11. The offerings of the Department of Justice's Office on Violence Against Women are equally capacious and (to put it mildly) unconventional. Its publications define "domestic violence" as "a pattern of abusive behavior ... used by one partner to gain or maintain power and control over another," including "[u]ndermining an individual's sense of self-worth," "name-calling," and "damaging one's relationship with his or her children." See, e.g., Domestic Violence, online at http://www.ovw.usdoj.gov/domviolence.htm (all Internet materials as visited Mar. 21, 2014, and available in the Clerk of Court's case file).^[17]

Of course these private organizations and the Department of Justice's (nonprosecuting) Office are entitled to define "domestic violence" any way they want for their own purposes — purposes that can include (quite literally) giving all domestic behavior harmful to women a bad name. (What is more abhorrent than violence against women?) But when they (and the Court) impose their all-embracing definition on the rest of us, they not only distort the law, they impoverish the language. When everything is domestic violence, nothing is. Congress will have to come up with a new word (I cannot imagine what it would be) to denote actual domestic violence.

Although the Justice Department's definitions ought to be deemed unreliable in toto on the basis of their extravagant extensions alone (falsus in uno, falsus in omnibus), the Court chooses to focus only upon the physical actions that they include, viz., "[h]itting, slapping, shoving, grabbing, pinching, biting, [and] hair pulling." Ibid. None of those actions bears any real resemblance to mere offensive touching, and all of them are capable of causing physical pain or injury. Cf. Johnson, 559 U.S., at [1422] 143, 130 S.Ct. 1265 (identifying "a slap in the face" as conduct that might rise to the level of violent force). And in any event, the Department of Justice thankfully receives no deference in our interpretation of the criminal laws whose claimed violation the Department of Justice prosecutes. See Gonzales v. Oregon, 546 U.S. 243, 264, 126 S.Ct. 904, 163 L.Ed.2d 748 (2006) (citing Crandon v. United States, 494 U.S. 152, 177, 110 S.Ct. 997, 108 L.Ed.2d 132 (1990) (SCALIA, J., concurring in judgment)). The same ought to be said of advocacy organizations, such as amici, that (unlike dictionary publishers) have a vested interest in expanding the definition of "domestic violence" in order to broaden the base of individuals eligible for support services.^[18]

* * *

This is a straightforward statutory-interpretation case that the parties and the Court have needlessly complicated. Precedent, text, and common sense all dictate that the term "physical force," when used to define a "misdemeanor crime of domestic violence," requires force capable of causing physical pain or bodily injury.

Justice ALITO, with whom Justice THOMAS joins, concurring in the judgment.

The decision in this case turns on the meaning of the phrase "has, as an element, the use ... of physical force." 18 U.S.C. § 921(a)(33)(A)(ii). In Johnson v. United States, 559 U.S. 133, 130 S.Ct. 1265, 176 L.Ed.2d 1 (2010), the Court interpreted the very same language and held that "physical force" means "violent force." Id., at 140, 130 S.Ct. 1265. I disagreed and concluded that the phrase incorporated the well-established meaning of "force" under the common law of battery, which did not require violent force. See id., at 146, 130 S.Ct. 1265 (dissenting opinion).

The Court of Appeals in the present case understandably followed the reasoning of Johnson, but now this Court holds that Johnson actually dictates that the identical statutory language be interpreted in exactly the same way that the Johnson majority rejected. See ante, at 1410.

In my view, the meaning of the contested statutory language is the same now as it was four years ago in Johnson, and therefore, for the reasons set out in my Johnson dissent, I would not extend the reasoning of Johnson to the question presented here, on which the Johnson Court specifically reserved judgment. 559 U.S., at 143-144, 130 S.Ct. 1265.

[1] See Dept. of Justice (DOJ), Bureau of Justice Statistics (BJS), J. Truman, L. Langton, & M. Planty, Criminal Victimization 2012 (Oct. 2013) (Table 1) (1,259,390 incidents of domestic violence in 2012), online at http://www.bjs.gov/content/pub/pdf/cv12.pdf (all Internet materials as visited Mar. 19, 2014, and available in Clerk of Court's case file); DOJ, BJS, C. Rennison, Crime Data Brief, Intimate Partner Violence, 1993-2001, p. 1 (Feb. 2003) (violence among intimate partners caused deaths of 1,247 women and 440 men in 2000), online at http://www.bjs.gov/content/pub/pdf/ipv01.pdf.

[2] We explained that the word "physical" did not add much to the word "force," except to distinguish "force exerted by and through concrete bodies ... from, for example, intellectual force or emotional force." Johnson, 559 U.S., at 138, 130 S.Ct. 1265.

[3] Johnson specifically reserved the question whether our definition of "physical force" would extend to 18 U.S.C. § 922(g)(9). 559 U.S., at 143-144, 130 S.Ct. 1265. And these reasons for declining to extend Johnson's definition to § 922(g)(9) serve equally to rebut the "presumption of consistent usage" on which Justice SCALIA'S concurrence heavily relies, post, at 1416-1417, 1418.

[4] This portion of Johnson's analysis relied heavily on Leocal v. Ashcroft, 543 U.S. 1, 125 S.Ct. 377, 160 L.Ed.2d 271 (2004), in which we interpreted the meaning of a "crime of violence" under 18 U.S.C. § 16. As in Johnson and here, the statute defines a "crime of violence" in part as one "that has as an element the use ... of physical force," § 16(a). In support of our holding in Johnson, we quoted Leocal's observation that "`[t]he ordinary meaning of [a "crime of violence"]... suggests a category of violent, active crimes.'" 559 U.S., at 140, 130 S.Ct. 1265 (quoting 543 U.S., at 11, 125 S.Ct. 377).

The Courts of Appeals have generally held that mere offensive touching cannot constitute the "physical force" necessary to a "crime of violence," just as we held in Johnson that it could not constitute the "physical force" necessary to a "violent felony." See Karimi v. Holder, 715 F.3d 561, 566-568 (C.A.4 2013); Singh v. Ashcroft, 386 F.3d 1228, 1233 (C.A.9 2004); Flores v. Ashcroft, 350 F.3d 666, 672 (C.A.7 2003); United States v. Venegas-Ornelas, 348 F.3d 1273, 1275 (C.A.10 2003); United States v. Landeros-Gonzales, 262 F.3d 424, 426 (C.A.5 2001); see also United States v. Rede-Mendez, 680 F.3d 552, 558 (C.A.6 2012) (commenting generally that "[i]n the crime of violence context, `the phrase "physical force" means violent force'"); United States v. Haileselassie, 668 F.3d 1033, 1035 (C.A.8 2012) (dicta). But see Hernandez v. U.S. Attorney General, 513 F.3d 1336, 1340, n. 3 (C.A.11 2008) (per curiam). The Board of Immigration Appeals has similarly extended Johnson's requirement of violent force to the context of a "crime of violence" under § 16. Matter of Velasquez, 25 I. & N. Dec. 278, 282 (2010). Nothing in today's opinion casts doubt on these holdings, because — as we explain — "domestic violence" encompasses a range of force broader than that which constitutes "violence" simpliciter.

We note, as does Justice SCALIA'S concurrence, post, at 1420, and n. 7, that federal law elsewhere defines "domestic violence" in more limited terms: For example, a provision of the Immigration and Nationality Act defines a "`crime of domestic violence'" as "any crime of violence (as defined by [18 U.S.C. § 16])" committed against a qualifying relation. 8 U.S.C. § 1227(a)(2)(E)(i). Our view that "domestic violence" encompasses acts that might not constitute "violence" in a nondomestic context does not extend to a provision like this, which specifically defines "domestic violence" by reference to a generic "crime of violence."

[5] See also A. Ganley, Understanding Domestic Violence, in Improving the Health Care Response to Domestic Violence: A Resource Manual for Health Care Providers 18 (2d ed. 1996), online at http://www.futureswithoutviolence.org/userfiles/file/HealthCare/improving_healthcare_manual_1.pdf (physical forms of domestic violence "may include spitting, scratching, biting, grabbing, shaking, shoving, pushing, restraining, throwing, twisting, [or] slapping"); M. McCue, Domestic Violence: A Reference Handbook 6 (1995) (noting that physical forms of domestic violence "may begin with relatively minor assaults such as painful pinching or squeezing").

[6] The concurrence's reliance on definitions of "domestic violence" in other statutory provisions, see post, at 1420, and n. 7, is similarly unpersuasive. These other provisions show that when Congress wished to define "domestic violence" as a type of "violence" simpliciter, it knew how to do so. That it did not do so here suggests, if anything, that it did not mean to. See, e.g., Custis v. United States, 511 U.S. 485, 492, 114 S.Ct. 1732, 128 L.Ed.2d 517 (1994). This also answers the concurrence's suggestion, post, at 1421, that our holding will somehow make it difficult for Congress to define "domestic violence" — where it wants to — as requiring violent force.

[7] See U.S. Census Bureau, Time Series of Intercensal State Population Estimates: April 1, 1990 to April 1, 2000, online at http://www.census.gov/popest/data/intercensal/st-co/files/CO-EST2001-12-00.pdf (estimating state and national populations as of July 1, 1996).

[8] We held in Leocal that "`use' requires active employment," rather "than negligent or merely accidental conduct." 543 U.S., at 9, 125 S.Ct. 377. Although Leocal reserved the question whether a reckless application of force could constitute a "use" of force, id., at 13, 125 S.Ct. 377, the Courts of Appeals have almost uniformly held that recklessness is not sufficient. See United States v. Palomino Garcia, 606 F.3d 1317, 1335-1336 (C.A.11 2010); Jimenez-Gonzalez v. Mukasey, 548 F.3d 557, 560 (C.A.7 2008); United States v. Zuniga-Soto, 527 F.3d 1110, 1124 (C.A.10 2008); United States v. Torres-Villalobos, 487 F.3d 607, 615-616 (C.A.8 2007); United States v. Portela, 469 F.3d 496, 499 (C.A.6 2006); Fernandez-Ruiz v. Gonzales, 466 F.3d 1121, 1127-1132 (C.A.9 2006) (en banc); Garcia v. Gonzales, 455 F.3d 465, 468-469 (C.A.4 2006); Oyebanji v. Gonzales, 418 F.3d 260, 263-265 (C.A.3 2005) (ALITO, J.); Jobson v. Ashcroft, 326 F.3d 367, 373 (C.A.2 2003); United States v. Chapa-Garza, 243 F.3d 921, 926 (C.A.5 2001). But see United States v. Booker, 644 F.3d 12, 19-20 (C.A.1 2011) (noting that the First Circuit had not resolved the recklessness issue under Leocal, but declining to extend Leocal's analysis to § 922(g)(9)).

[9] Respondent argues at length that Tenn.Code Ann. § 39-13-111(b) (2013 Supp.) does not require the "use" of physical force, since it is possible to cause bodily injury through deceit or other nonviolent means. Brief for Respondent 30-42. The argument fails for the reasons given by the Court. See ante, at 1414-1415.

[10] Section § 921(a)(33)(A)(ii) was enacted in 1996. See § 658, 110 Stat. 3009-371. The Armed Career Criminal Act provision interpreted in Johnson was enacted in 1986, see § 1402, 100 Stat. 3207-39, and the "crime of violence" statute discussed in Leocal was enacted in 1984, see § 1001, 98 Stat. 2136.

[11] See Ala.Code § 13A-6-22 (1995); Alaska Stat. § 11.41.230 (1996); Ark.Code Ann. § 5-13-203 (1993); Colo.Rev.Stat. Ann. § 18-3-204 (Westlaw 1996); Conn. Gen.Stat. § 53a-61 (1996); Haw.Rev.Stat. Ann. § 707-712 (1994); Ky.Rev.Stat. Ann. § 508.030 (Michie 1990); Minn.Stat. § 609.224 (Westlaw 1995); Miss.Code Ann. § 97-3-7 (Westlaw 1995); Neb.Rev.Stat. § 28-310 (1995); N.J. Stat. Ann. § 2C:12-1 (West 1995); N.Y. Penal Law Ann. § 120.00 (Westlaw 1995); N.D. Cent. Code Ann. § 12.1-17-01 (Westlaw 1995); Ohio Rev.Code Ann. § 2903.13 (Lexis 1993); Ore.Rev.Stat. § 163.160 (1991); 18 Pa. Cons. Stat. Ann. § 2701 (Westlaw 1995); S.D. Codified Laws § 22-18-1 (1988); Vt. Stat. Ann., Tit. 13, § 1023 (1995); Wis. Stat. Ann. § 940.19 (West Cum. Supp. 1995).

[12] See Ariz.Rev.Stat. Ann. § 13-1203 (Westlaw 1995); Del.Code Ann., Tit. 11, §§ 601, 611 (1995); Fla. Stat. § 784.03 (Westlaw 1995); Ga.Code Ann. § 16-5-23 (1996); Idaho Code § 18-903 (Westlaw 1996); Ill. Comp. Stat., ch. 720, § 5/12-3 (West 1994); Ind.Code § 35-42-2-1 (Michie 1994); Iowa Code § 708.1 (Westlaw 1996); Kan. Stat. Ann. § 21-3142 (1995); Me.Rev.Stat. Ann., Tit. 17-A, § 207 (Westlaw 1996); Mo.Rev.Stat. § 565.070 (Westlaw 1996); Mont.Code Ann. § 45-5-201 (1995); N.H.Rev.Stat. Ann. § 631:2-a (West 1996); N.M. Stat. Ann. §§ 30-3-4, 30-3-5 (Westlaw 1996); Tenn. Code Ann. § 39-13-101 (1991); Tex. Penal Code Ann. § 22.01 (Westlaw 1996); Utah Code Ann. § 76-5-102 (Lexis 1995); W. Va. Code Ann. § 61-2-9 (Lexis 1992); Wyo. Stat. Ann. § 6-2-501 (1996).

[13] See Cal.Penal Code Ann. § 242 (Westlaw 1996); La.Rev.Stat. Ann. § 14:33 (Westlaw 1996); Mass. Gen. Laws, ch. 265, § 13A (West 1994); Mich. Comp. Laws § 750.81 (1991); Nev.Rev.Stat. Ann. § 200.481 (West Cum. Supp. 1995); N.C. Gen.Stat. Ann. § 14-33 (Lexis 1993); Okla. Stat., Tit. 21, § 642 (West 1991); R.I. Gen. Laws § 11-5-3 (Michie 1994); Va.Code Ann. § 18.2-57 (Michie 1996); Wash. Rev.Code Ann. § 9A.36.041 (Michie 1994).

[14] Definitions of "physical force" from the same period are also at odds with the Court's nonviolent interpretation of that phrase. See Black's Law Dictionary 656 (7th ed. 1999) ("[f]orce consisting in a physical act, esp. a violent act directed against a robbery victim"); id., at 1147 (6th ed. 1990) ("[f]orce applied to the body; actual violence").

[15] See, e.g., 18 U.S.C. § 2261(a)(1) (defining as "[i]nterstate domestic violence" certain "crime[s] of violence"); § 3561(b) ("The term `domestic violence crime' means a crime of violence ... in which the victim or intended victim is the [defendant's] spouse" or other qualifying relation); 25 U.S.C.A. § 1304(a)(2) ("The term `domestic violence' means violence committed by a current or former spouse or" other qualifying relation); 42 U.S.C.A. § 13925(a)(8) (Sept. 2013 Supp.) ("The term `domestic violence' includes felony or misdemeanor crimes of violence committed by a current or former spouse" or other qualifying relation).

[16] The other organizations on the brief are the National Domestic Violence Hotline, the Domestic Violence Legal Empowerment and Appeals Project, Legal Momentum, and innumerable state organizations against domestic violence.

[17] The Court refers in a footnote to two additional social-science definitions, neither of which aids the Court's cause. See ante, at 1411-1412, n. 5. The first is drawn from a health-care manual that provides "a behavioral definition of domestic violence ... rather than a legal definition, since a behavioral definition is more comprehensive and more relevant to the health care setting." A. Ganley, Understanding Domestic Violence, in Improving the Health Care Response to Domestic Violence: A Resource Manual for Health Care Providers 18 (2d ed. 1996) (emphasis added), online at http://www.futureswithoutviolence.org/userfiles/file/HealthCare/improving_healthcare_manual_1.pdf. Here, of course, we are concerned with the less comprehensive legal definition. The second definition referred to in the footnote equates domestic violence with "overt violence," which in its least serious form consists of "painful pinching or squeezing." M. McCue, Domestic Violence: A Reference Handbook 6 (1995) (emphasis added). That meaning is consistent with Johnson's definition of "physical force," but it plainly does not include harmless offensive touching.

[18] See, e.g., National Network to End Domestic Violence, Reauthorize The Family Violence Prevention and Services Act 1 (Sept. 22, 2010) (advocating the expansion of a program assisting victims of domestic violence to include victims of "dating violence" and thereby "ensure that all victims in danger can access services"), online at http://nnedv.org/downloads/Policy/FVPSA_fact_sheet_9-22-10.pdf.

[568] Larry R. Forman and Leigh A. Rademacher, of Dixon Dixon & Jessup Ltd., L.L.P., Omaha, for appellant.

Dean J. Jungers, of Hascall, Jungers, Garvey & Delaney, Bellevue, for appellee.

IRWIN, SIEVERS, and MUES, JJ.

SIEVERS, Judge.

The issue in this appeal is whether the evidence in the record supports the decision of the county court for Douglas County that no common-law marriage existed under Iowa law between Joyce Barnes and David S. Schenck, a decision which denied Joyce any interest in David's estate.

FACTUAL BACKGROUND

The decedent, David S. Schenck, began dating Joyce Barnes, a resident of the State of Iowa, in late 1982. In 1985, after a 2%- year courtship, David moved from his home on South 20th Street in Omaha, Nebraska, to reside with Joyce in her mobile home in Carter Lake, Iowa. While residing in Carter Lake, the couple purchased a 1984 Lincoln [569] automobile, which was financed in both their names. David continued to own his home in South Omaha while living with Joyce in Iowa. He kept a separate checking account, continued to register his truck in Nebraska, and maintained a post office box in Omaha.

While the couple lived in Carter Lake, David began experiencing health difficulties. David faced his first problem, addiction to alcohol, by attending a couples' group session with Joyce. She attended as David's "significant other." Other health concerns followed. In July 1989, David suffered the first of two strokes. He was taken to St. Joseph's Hospital. Joyce checked him in and designated herself as "friend. Significant other." Joyce was David's constant companion during his struggle with alcohol and his recovery from the stroke. It was also in 1989 that David executed a deed of trust to Norwest Bank for his Omaha property, which indicated on the certificate that he was "single."

While the couple resided in Iowa, some friends and relatives held the general opinion that David and Joyce were married. These opinions were formed when David and Joyce would introduce the other as his wife or her husband. David's sister, Delphine Castillo, in fact, introduced the couple as husband and wife and often referred to Joyce as her sister-in-law. The couple rarely declared to others that they were in fact "married," but, conversely, they rarely denied that they were husband and wife. However, in 1989, David did tell a former girl friend that he was not married to Joyce. In the same conversation, he indicated he had no intention of marrying Joyce. That same year, David also told his nephew he was not married to Joyce.

In September 1990, approximately 5 years after moving into Joyce's mobile home together, the couple decided to reside at David's South Omaha address. Joyce sold her mobile home 2 years later. The proceeds went to pay joint expenses. The sale also financed a Mercury sedan, jointly titled and financed. Although the couple were financing cars together, they were not paying federal or state taxes as a married couple. David prepared his 1992 and 1993 income tax returns designating himself as "single." His 1994 return, which incidentally was prepared by Joyce, also designated David as "single."

In 1994, David suffered his second stroke. Because of this stroke, David was sent to a long-term nursing home in Clarinda, Iowa. David remained at the Clarinda facility until his death on May 16, 1995. In preparing David for burial, Joyce informed the mortician that she was David's "significant other." She received $26,000 as the sole beneficiary of David's life insurance policy.

PROCEDURAL BACKGROUND

Upon the death of their brother, David, Nancy M. Schroeder and Castillo applied to the county court for Douglas County, Nebraska, for the informal appointment of a personal representative of their brother's estate in intestacy. Schroeder was named personal representative. Joyce petitioned the court to establish her intestate share of David's estate, as his surviving spouse, and to determine any heirs. Schroeder asked that Joyce be denied the status of surviving spouse and that the court decree that Schroeder and Castillo were David's sole heirs.

The county court determined that Joyce was not the common-law wife of David and was not entitled to an intestate share of his estate as such. The county court applied the three-part test for common-law marriage found in In re Marriage of Gebhardt, 426 N.W.2d 651 (Iowa App.1988). The test in In re Marriage of Gebhardt requires a petitioner to prove (1) a present intent and agreement to be married, (2) continuous cohabitation, and (3) a public declaration that the parties are husband and wife. The county court found that the most important factor to demonstrate was that the parties intended to be husband and wife to each other. The court stated that "the primary indicator of the intent of those parties is their own declarations, and, in the case at bar, the declarations of both the Petitioner [Joyce] and the decedent [David] belie that they intended to be a married couple." Evidence that David and Joyce had discussed getting married in a Catholic ceremony indicated to the court an intention to be married in the future. The court said that the testimony of family and [570] friends that neither Joyce nor David ever declared themselves married had been taken into account. The court distinguished declarations of marital status from introductions as husband and wife. Although continuous cohabitation by the parties was established, the county court concluded by finding that Joyce did not establish either the intent of "these parties to be husband and wife to each other, nor that a public declaration of such ever occurred." Accordingly, Joyce was denied the rights of a surviving spouse. Joyce has appealed to this court.

ASSIGNMENTS OF ERROR

Joyce asserts that the trial court erred (1) in improperly excluding certain evidence, (2) "with respect to the burden of proof to be carried by [Joyce] to establish a common-law marriage under the standards of applicable Iowa case law," (3) in finding that Joyce had failed to establish a common-law marriage between herself and David, and (4) "in failing to give sufficient weight to evidence supportive of [her] position."

STANDARD OF REVIEW

In an appeal from a county court's decision in a probate matter as a law action, an appellate court reviews the county court's decision for error appearing on the record in the county court. In re Estate of Disney, 250 Neb. 703, 550 N.W.2d 919 (1996); In re Estate of Soule, 248 Neb. 878, 540 N.W.2d 118 (1995). However, in determining, under Iowa law, the existence of a common-law marriage, the scope of our review is de novo. See In re Marriage ofWinegard, 278 N.W.2d 505 (Iowa 1979).

ANALYSIS

The validity of a marriage is determined by the law of the place where it was contracted. Neb.Rev.Stat. § 42-117 (Reissue 1993). Both parties agreed that § 42-117 controlled and that Iowa law was applicable. A common-law marriage is as valid in Iowa as a ceremonial marriage. Matter of Estate ofStodola, 519 N.W.2d 97 (Iowa App. 1994). Nebraska courts shall take judicial notice of the common law and statutes of other states. Neb.Rev.Stat. § 25-12,101 et seq. (Reissue 1995). The question, thus, turns on whether a common-law marriage existed between David and Joyce under Iowa law.

Exclusion of Evidence.

Joyce argues that the lower court erred in excluding evidence. The evidence at issue was a notice of decision from the Iowa Department of Human Services recognizing Joyce as David's spouse. The notice, in effect, diverted income from an annuity held by David and from Social Security to Joyce, so she could pay his medical expenses. The court took the offer under advisement and indicated at trial that it would "rule on that as part of the overall ruling." The final order makes no mention of this document. The only clue we have that this evidence was not received is its presence in a manila envelope marked "Exhibits Not Received Into Evidence." There was no ruling in the record receiving or excluding the evidence, and from the trial court's written opinion, we cannot determine whether it was considered or impacted the trial court's decision.

Where there is no ruling on objections to evidence, errors relating thereto cannot be considered on appeal. See Plath v. Brunken, 102 Neb. 467, 167 N.W. 567 (1918). In Rueger v. Hawks, 150 Neb. 834, 36 N.W.2d 236 (1949), the defendant objected to the testimony of the plaintiffs physician as to what certain x-rays, which had not been received in evidence, would show with reference to the plaintiffs injuries and moved to strike such testimony, but the court did not definitely rule on the objections and the motion to strike and reserved ruling. The court failed to make a ruling, and the court's attention was not thereafter called to such omission. Therefore, competency of the testimony could not be raised on appeal.

Counsel for Joyce was required to procure a riding in order to appeal and argue this matter as error. Without a ruling, we have nothing to consider on appeal, and the assignment of error is without merit.

Burden of Proof

Joyce next argues that the county court erred with respect to the burden of [571] proof imposed on her. It is well settled under Iowa law that one asserting a claim of common-law marriage must prove such a relationship by clear, consistent, and convincing evidence. Matter of Estate of Stodola, supra. This was the burden of proof expressly set forth in the trial court's order. Having announced the correct standard of proof, the issue on appeal is whether the court considered the evidence and decided the case in accordance with this rather stringent burden of proof.

Three-Prong Test for Common-Law Marriage.

The law governing this case is very straightforward. To establish the existence of a valid common-law marriage in Iowa, the burden is on the petitioner to prove by clear, consistent, and convincing evidence (1) that the parties had a present intent and agreement to be married, (2) that they continuously cohabitated, and (3) that they made general and substantial public declarations that they were husband and wife. In re Marriage of Winegard, 278 N.W.2d 505 (Iowa 1979); Conklin v. MacMillan Oil Co., 557 N.W.2d 102 (Iowa App.1996). But a claim of common-law marriage is regarded with suspicion and is closely scrutinized, and no public policy favoring common-law marriages exists in Iowa. Id.

The second prong of the above test, continuous cohabitation, as said, was established. The record reflects that Joyce and David lived together for over 5 years. But mere proof of cohabitation is not sufficient to prove the existence of a common-law marriage. Coleman v. Graves, 255 Iowa 396, 122 N.W.2d 853 (1963). The Iowa Supreme Court has noted:

It is well settled that, while cohabitation and the reputed relation of husband and wife may be shown as tending to give color to the relation of the parties and the recognition each by the other of the existence of a marriage between them, the fundamental question is whether their minds have met in mutual consent to the status of marriage.... Neither such intention nor consent can be inferred from cohabitation alone....

In re Estate of Boyington, 157 Iowa 467, 470, 137 N.W. 949, 950 (1912).

Turning to the first and third prongs of the test, Joyce argues the lower court failed to give sufficient weight to the evidence showing intent to be married and public declarations of marital status. The requisite intent to enter into a common-law marriage may be shown by circumstantial evidence. In re Marriage of Winegard, supra Joyce relies upon In re Marriage of Winegard to establish the agreement between herself and David to be married. A comparison of the evidence in the instant case with that in In re Marriage of Winegard actually tends to negate the element of intent rather than support it. In In re Marriage of Winegard, the petitioner, Sally, had the burden to prove the existence of a common-law marriage to the respondent, John. The Supreme Court of Iowa discussed many factors bearing on its decision to recognize the existence of a marital relationship. The record in that case included:

"(2) opinions of various witnesses that the community generally regarded the parties as married; (3) continuous cohabitation by the parties ... (4) John's failure to deny his alleged marriage; (5) John's acquiescence in Sally's use of his name and her representations to the community they were in fact married; (6) Sally's receipt of a wedding band from John; (7) hotel registrations and travel reservations wherein the parties were listed as Mr. and Mrs. John Winegard ... (10) mail received and sent by the parties as Mr. and Mrs. John Winegard; (11) John's consent to Sally's ownership of and designation as beneficiary under an insurance policy on his life, wherein Sally was referred to as `insured's wife'...."

278 N.W.2d at 511. The Iowa Supreme Court, basing its decision on the above factors, found a common-law marriage had existed between Sally and John.

The record in this case contains some of the same factors used by the In re Marriage of Winegard court. There was testimony that the community, consisting of neighbors, coworkers, and family members, generally regarded David and Joyce as husband and wife. In its order, the lower court pointed to 10 witnesses who testified. However, of those 10, "seven testified that [572] neither the decedent [David] nor the Petitioner [Joyce] ever declared or stated themselves to be husband and wife, or that they were married; [an] eighth witness testified that [David] had never declared himself to be married to [Joyce]." The perceptions of a community, while possibly supporting the prong of public declaration, do little to prove the personal intentions of the parties to be married. The personal intentions of David are demonstrated by his words and actions, and the record is replete with evidence that he considered himself single, not married. In a bench trial of a law action, the court, as the trier of fact, is the sole judge of the credibility of witnesses and the weight to be given to their testimony. In re Estate of Disney, 250 Neb. 703, 550 N.W.2d 919 (1996).

The next factor to consider in the three-prong test for common-law marriages is denial of the marriage. In In re Marriage of Winegard, 278 N.W.2d 505 (Iowa 1979), John never denied he was married to Sally. In the instant case, however, the record reveals David denied being married on at least two occasions. First, Deborah Winans, a former girl friend, testified that David informed her that he and Joyce were in fact not married. That same year, when asked by his nephew if he would ever get married again, David replied, "`What in hell would I ever want to get married for?'" Although of some import, the testimony of friends, coworkers, and neighbors is less important on the question of intent than the beliefs and declarations of the individuals themselves. Granted, there is evidence that on occasion, David and Joyce referred to the other as "husband" and "wife," as we have noted in the factual background. But the evidence to prove a common-law marriage under Iowa law must be consistent. See Conklin v. Mac-Millan Oil Co., 557 N.W.2d 102 (Iowa App. 1996). Consistency of evidence proving intent and public declaration required by Iowa law is lacking.

The court in In re Marriage of Winegard, supra, placed some emphasis on the fact that John sanctioned Sally's use of his last name. While this factor is hardly pivotal and perhaps outdated, Joyce never used David's last name. While the couple at issue did purchase wedding rings, David wore his only "[n]ow and then."

In In re Marriage of Winegard, the parties registered at hotels as Mr. and Mrs. and made travel reservations as such. In the present case, on two different occasions, Joyce had the opportunity to publicly declare herself as Mrs. David Schenck or as his "wife." In 1987, she participated in a couples' group session with David as his "significant other," not as his wife. If the parties viewed themselves as husband and wife, and this was their agreement, the group session was a logical situation for Joyce to declare herself David's wife. Two years later, Joyce checked David into St. Joseph's Hospital and designated herself as "friend. Significant other," not as "wife."

Mail received and sent as Mr. and Mrs. is another factor considered by the In re Marriage of Winegard court. Joyce and David did receive one piece of mail as husband and wife. This was a card sent by David's sister which read, "for brother and his wife." This was someone else labeling the couple as married, not a declaration by the couple themselves. There was no evidence of mail sent by Joyce as Mrs. Schenck or sent by the couple as Mr. and Mrs. There was only this one card received by the couple.

Joyce argues her status as sole beneficiary of David's insurance policy is proof of intent and public declaration. There is no evidence in the record, however, that she was designated as the "insured's wife." In In re Marriage of Winegard, Sally was designated as such on John's policy. Moreover, being named as a beneficiary on an insurance policy does not necessarily import a marital relationship between the insured and the beneficiary.

Although there are some facts lending circumstantial support to an intent to be married, there are many facts dispelling that notion. For example, Schroeder, the personal representative of David's estate, introduced tax returns from 1992, 1993, and 1994. In each return, David had designated himself as a single man. Joyce argues he did this because he did not understand that the Internal Revenue Service would recognize a common-law marriage. But this is Joyce's version of what David thought, and, frankly, it is unconvincing. What remains uncontradicted [573] is that on his tax returns, David declared himself single, not married. The weight of the evidence comes down heavily as showing that David had no present intent to be married to Joyce.

CONCLUSION

The petitioner, Joyce, failed to prove by clear, consistent, and convincing evidence that a common-law marriage existed between herself and David, and this is the burden she must carry. See Conklin v. MacMillan Oil Co., 557 N.W.2d 102 (Iowa App.1996). The evidence indicated a lack of intent on the part of David to be married, as well as inconsistent and unconvincing evidence of public declarations. The decision of the county court for Douglas County is affirmed, and Joyce's request for a homestead allowance, family allowances, and an elective share of David's estate was properly denied.

AFFIRMED.

[504] COUNSEL

Andelson & Andelson and Sheldon W. Andelson for Plaintiff and Appellant.

Fred Okrand, Susan McGreivy and Robert R. Murdoch as Amici Curiae on behalf of Plaintiff and Appellant.

Katz, Hoyt & Bell, Louis C. Hoyt and Leslie F. Bell for Defendants and Respondents.

OPINION

LILLIE, J.

Plaintiff appeals from judgment dismissing his action for declaratory and other relief entered after the trial court sustained defendants' demurrer to the complaint without leave to amend.

[505] Defendants are the executors of the estate of James F. Daly, who died in July 1978. The complaint contains seven causes of action. The first cause of action (for declaratory relief) alleges: Plaintiff, Randal Jones, first met James Daly in December 1975. Between that time and March 1976, they "met on frequent occasions, dated, engaged in sexual activities and, in general, acted towards one another as two people do who have discovered a love, one for the other." In March 1976 plaintiff and Daly orally agreed that plaintiff would move into Daly's condominium with Daly, quit his job, go travelling with Daly and "cohabit with him [Daly] as if [they] were, in fact, married." They also entered into an oral agreement (referred to hereinafter, in the language of the complaint, as "cohabitors agreement") whereby each agreed: during the time "they lived and cohabited together," they would combine their efforts and earnings and would share equally any and all property accumulated as a result of their efforts, whether individual or combined, except that Daly would give plaintiff a monthly allowance for his personal use, and they "would hold themselves out to the public at large as cohabiting mates, and [plaintiff] would render his services as a lover, companion, homemaker, traveling companion, housekeeper and cook to Daly"; and "in order that [plaintiff] would be able to devote a substantial portion of his time to Daly's benefit as his lover, companion, homemaker, traveling companion, housekeeper and cook," plaintiff would abandon "a material portion" of his potential career as a model, and in return Daly would furnish financial support to plaintiff for the rest of his life. Pursuant to and in reliance on the "cohabitors agreement," plaintiff and Daly "cohabited and lived together continuously" from March 1976 until Daly's death, and plaintiff allowed himself to be known to the general public "as the lover and cohabitation mate of Daly." Plaintiff performed all of the terms and conditions required to be performed by him under the "cohabitors agreement." During the time that plaintiff and Daly "lived and cohabited together" they acquired, as a result of their efforts and earnings, substantial real and personal property (hereinafter, in the language of the complaint, "cohabitors' equitable property"). Plaintiff does not know the exact nature and extent of such property, but he believes it has a value in excess of $2 million and will amend the complaint to reflect the true value when it is ascertained. Under the "cohabitors agreement," all of the "cohabitors' equitable property" was to be shared and divided equally between plaintiff and Daly. All of such property is in the possession of defendant executors and under their control. Plaintiff has demanded that defendants recognize his interest in the "cohabitors' equitable property," but defendants refuse to do so. On November 1, 1978, plaintiff filed in the [506] proceeding for probate of Daly's estate a creditor's claim, wherein he claimed one-half of the estate; defendants denied the claim. An actual controversy has arisen and now exists between plaintiff and defendants in that plaintiff contends, and defendants deny, that as a result of the "cohabitors agreement" plaintiff is entitled to one-half of all of the "cohabitors' equitable property" as a tenant in common with the estate of Daly and that defendants are under a duty to pay to plaintiff, on behalf of the estate, a reasonable sum for his support. Plaintiff desires a judicial determination of the validity of the "cohabitors agreement" and the respective rights, duties and obligations of plaintiff and defendants under that agreement.

The terms of the "cohabitors agreement" alleged in the first cause of action are incorporated into each of the subsequent causes of action other than the sixth and seventh causes of action. The second and third causes of action seek payment of plaintiff's creditor's claim rejected by defendants. The fourth cause of action seeks half of the "cohabitors' equitable property" on the theory of a constructive trust. The fifth cause of action alleges an implied in fact agreement between plaintiff and Daly for the equal division of all assets standing in Daly's name. The sixth and seventh causes of action are common counts which seek $300,000 as the reasonable value of plaintiff's services to Daly.

(1) (See fn. 1) Defendants demurred specially to the first cause of action on the ground of uncertainty, and demurred generally to all causes of action. The trial court sustained the demurrer to each cause of action without leave to amend^[1] "per moving points and authorities." One of the arguments advanced by defendants in support of their demurrer was that under Marvin v. Marvin (1976) 18 Cal.3d 660 [134 Cal. Rptr. 815, 557 P.2d 106], the "cohabitors agreement" is unenforceable because the complaint shows on its face that plaintiff's rendition of sexual services to Daly was an express and inseparable part of the consideration for the agreement.

In Marvin v. Marvin, supra, 18 Cal.3d 660, a woman sued a man with whom she had lived for approximately six years without marriage [507] alleging: that she and defendant entered into an oral agreement that while the parties lived together they would combine their efforts and earnings and would share equally in any and all property accumulated as a result of their efforts, whether individual or combined, that they would hold themselves out to the general public as husband and wife and that plaintiff would give up her career as an entertainer and singer in order to devote her full time to defendant as his companion, homemaker, housekeeper and cook; in return defendant agreed to provide for all of plaintiff's financial support and needs for the rest of her life. Plaintiff further alleged that after she had lived with defendant for almost six years, he forced her to leave his household and refused to recognize her rights under the contract. Plaintiff prayed for declaratory relief, asking the court to determine her contractual and property rights, and also to impose a constructive trust on half of the property acquired during the course of the relationship. The trial court granted defendant's motion for judgment on the pleadings. (2) The Supreme Court reversed the judgment, stating: "In summary, we base our opinion on the principle that adults who voluntarily live together and engage in sexual relations are nonetheless as competent as any other persons to contract respecting their earnings and property rights. Of course, they cannot lawfully contract to pay for the performance of sexual services, for such a contract is, in essence, an agreement for prostitution and unlawful for that reason. But they may agree to pool their earnings and to hold all property acquired during the relationship in accord with the law governing community property; conversely they may agree that each partner's earnings and the property acquired from those earnings remains the separate property of the earning partner. So long as the agreement does not rest upon illicit meretricious consideration, the parties may order their economic affairs as they choose, and no policy precludes the courts from enforcing such agreements." (18 Cal.3d at p. 674; italics added; fn. omitted.)

In determining whether the "cohabitors agreement" rests upon illicit meretricious consideration, we are guided by the following principles: "[A] contract between nonmarital partners, even if expressly made in contemplation of a common living arrangement, is invalid only if sexual acts form an inseparable part of the consideration for the agreement. (3a) In sum, a court will not enforce a contract for the pooling of property and earnings if it is explicitly and inseparably based upon services as a paramour." (Marvin v. Marvin, supra, 18 Cal.3d 660, 672.) The complaint herein alleges: Following their initial meeting, plaintiff and Daly "dated, engaged in sexual activities and, in general, acted towards [508] one another as two people do who have discovered a love, one for the other"; plaintiff orally agreed "to cohabit with [Daly] as if [they] were, in fact, married"; at the same time they entered into the "cohabitors agreement" whereby they agreed that during the time "they lived and cohabited together" they would hold themselves out to the public at large as "cohabiting mates" and plaintiff would render his services to Daly as "a lover, companion, homemaker, traveling companion, housekeeper and cook" (italics added); in order that plaintiff would be able to devote his time to Daly's benefit "as his lover, companion, homemaker, traveling companion, housekeeper and cook," he would abandon his career; plaintiff and Daly "cohabited and lived together" and pursuant to and in reliance on the "cohabitors agreement," plaintiff allowed himself to be known to the general public as the "lover and cohabitation mate" of Daly. These allegations clearly show that plaintiff's rendition of sexual services to Daly was an inseparable part of the consideration for the "cohabitors agreement," and indeed was the predominant consideration.

Plaintiff argues that the complaint is not subject to the foregoing interpretation because the "accepted California concept of cohabitation is the mutual assumption of those marital rights, duties and obligations which are usually manifested by married people, including but not necessarily dependent upon sexual relations" (Boyd v. Boyd (1964) 228 Cal. App.2d 374, 381 [39 Cal. Rptr. 400]; italics added); and while one meaning of the word "lover" is paramour, it also may mean a person in love or an affectionate or benevolent friend. (Webster's Third New Internat. Dict. (1966) p. 1340.) (4) Pleadings must be reasonably interpreted; they must be read as a whole and each part must be given the meaning that it derives from the context wherein it appears. (Speegle v. Board of Fire Underwriters (1946) 29 Cal.2d 34, 42 [172 P.2d 867]; National Automobile & Cas. Ins. Co. v. Payne (1968) 261 Cal. App.2d 403, 408 [67 Cal. Rptr. 784].) (3b) The complaint alleges that plaintiff and Daly engaged in sexual activities, agreed to cohabit and to hold themselves out to the public as cohabiting mates, and entered into the "cohabitors agreement" whereby plaintiff was to render services to Daly as a lover. Viewed in the context of the complaint as a whole, the words "cohabiting" and "lover" do not have the innocuous meanings which plaintiff ascribes to them. These terms can pertain only to plaintiff's rendition of sexual services to Daly.

Marvin states that "even if sexual services are part of the contractual consideration, any severable portion of the contract supported by independent [509] consideration will still be enforced." (18 Cal.3d at p. 672; italics in original.) That principle is inapplicable in the present case. There is no severable portion of the "cohabitors agreement" supported by independent consideration. According to the allegations of the complaint, the agreement provided that the parties would share equally the earnings and property accumulated as a result of their efforts while they lived together and that Daly would support plaintiff for the rest of his life. Neither the property sharing nor the support provision of the agreement rests upon plaintiff's acting as Daly's traveling companion, housekeeper or cook as distinguished from acting as his lover. The latter service forms an inseparable part of the consideration for the agreement and renders it unenforceable in its entirety.

Since plaintiff's right to relief under the second through the fifth causes of action depends upon the validity of the "cohabitors agreement," the trial court properly sustained the demurrer thereto.

(5) Appellant argues that the sixth and seventh causes of action (labelled, respectively, common counts in quantum meruit and for labor and services rendered) incorporated therein neither the "cohabitors agreement" nor any of the other allegations of the first cause of action relating to sexual services rendered by plaintiff to Daly, thus they are not subject to general demurrer. However, the common counts which are here sufficiently pleaded (see 3 Witkin, Cal. Procedure (2d ed. 1971) Pleading, §§ 431, 436, 440, pp. 2088, 2093, 2094-2095) are so permeated with the same reason for the rendition of the "services rendered" by plaintiff, i.e., the sexual cohabitation of the parties, that it cannot be said that the agreement by Daly to pay for those services does not also rest upon illegal meretricious consideration.

We note that the period covered by the services rendered by plaintiff alleged in the common counts — March 1976 through July 1978 — is the same time span covered by the "cohabitors agreement" alleged in the first cause of action; that the $300,000 prayed for in the common counts as the reasonable value of such services is alleged to be "equivalent approximately to one-half of the total estate of Daly," and that it is a one-half interest in the "cohabitors' equitable property" acquired during the cohabitation of the parties that is prayed for under the "cohabitors agreement" in the other causes of action; and that incorporated into the common counts are allegations of the first cause of action relating to plaintiff's presentation of his creditor's claim to Daly's estate (a copy of which is attached to the complaint and incorporated therein by [510] reference) which expressly rests on an "oral agreement" entered into "[a]bout March, 1976 through in or about July 1978," which "oral agreement" is obviously the precise "cohabitors agreement" described in the first cause of action.

While the simple pleading of the common counts standing alone would appear to be innocuous enough to withstand defendants' challenge, a common sense reading of the entire complaint promptly dispels any notion that the same element of illegal meretricious consideration that so infects the "cohabitors agreement" as to render it unenforceable does not as well dominate the common counts; and the reality of the situation dictates the conclusion that the recovery under the sixth and seventh causes of action is based on the exact set of circumstances specifically pleaded in the first cause of action. It is true that common counts are not subject to a general demurrer (Auckland v. Conlin (1928) 203 Cal. 776, 777 [265 P. 946]; Moya v. Northrup (1970) 10 Cal. App.3d 276, 279 [88 Cal. Rptr. 783]; Miller v. McLaglen (1947) 82 Cal. App.2d 219, 223 [186 P.2d 48]), but here they are subject to the rule that "if plaintiff is not entitled to recover under one count in a complaint wherein all the facts upon which his demand is based are specifically pleaded, it is proper to sustain a demurrer to a common count set forth in the complaint, the recovery under which is obviously based on the set of facts specifically pleaded in the other count." (Hays v. Temple (1937) 23 Cal. App.2d 690, 695 [73 P.2d 1248]; Lambert v. Southern Counties Gas Co. (1959) 52 Cal.2d 347, 353 [340 P.2d 608]; Orloff v. Metropolitan Trust Co. (1941) 17 Cal.2d 484, 489 [110 P.2d 396]; Mitchell v. National Auto. and Casualty Ins. Co. (1974) 38 Cal. App.3d 599, 606 [113 Cal. Rptr. 391]; Zumbrun v. University of Southern California, supra, 25 Cal. App.3d 1, 14.)

The only remaining question is whether the trial court abused its discretion in denying leave to amend.^[2] (6) Ordinarily it is an abuse of discretion to sustain a general demurrer to a complaint without leave to amend if there is a reasonable possibility that the defect in the complaint can be cured by amendment. (Harman v. City and County of San Francisco (1972) 7 Cal.3d 150, 157 [101 Cal. Rptr. 880, 496 P.2d 1248]; Lemoge Electric v. County of San Mateo (1956) 46 Cal.2d 659, 664 [297 P.2d 638].) However, the burden is on the plaintiff to demonstrate that the trial court abused its discretion. (Cooper v. Leslie Salt [511] Co. (1969) 70 Cal.2d 627, 636 [75 Cal. Rptr. 766, 451 P.2d 406].) That burden is not met where, as in the present case, plaintiff does not indicate either in the trial court or in this court the manner in which the complaint is proposed to be amended, and how that amendment will cure the defects in his pleading. (Cooper v. Leslie Salt Co., supra, 70 Cal.2d at p. 636; Hilton v. Board of Supervisors (1970) 7 Cal. App.3d 708, 716 [86 Cal. Rptr. 754].)

(7) A complaint for declaratory relief is sufficient if it sets forth facts showing the existence of an actual controversy relating to the legal rights and duties of the respective parties under a contract and requests that those rights and duties be adjudged by the court. (Bennett v. Hibernia Bank (1956) 47 Cal.2d 540, 549-550 [305 P.2d 20]; Columbia Pictures Corp. v. DeToth (1945) 26 Cal.2d 753, 760 [161 P.2d 217, 162 A.L.R. 747].) (8) The first cause of action meets these requirements and the demurrer to that cause of action therefore was improperly sustained. However, "[w]hile Code of Civil Procedure section 1060 entitles a plaintiff suing pursuant to its provisions to a declaration of rights and duties even if the eventual declaration may be adverse [citations], error of the trial court in refusing to entertain the action is nevertheless not prejudicial if it is clear from the face of the complaint that the plaintiff's position is untenable and that a declaration adverse to the plaintiff will end the matter." (Warren v. Kaiser Foundation Health Plan, Inc. (1975) 47 Cal. App.3d 678, 684-685 [121 Cal. Rptr. 19].) The complaint shows on its face that the "cohabitors agreement" is unenforceable, conferring no rights on plaintiff and imposing no duties upon defendants. Inasmuch as the opinion of this court is the equivalent of an express declaration to that effect, reversal of the judgment of dismissal as to the first cause of action would serve no purpose and would simply constitute an idle act. (See Taschner v. City Council (1973) 31 Cal. App.3d 48, 57 [107 Cal. Rptr. 214]; Haley v. L.A. County Flood Control Dist. (1959) 172 Cal. App.2d 285, 292-294 [342 P.2d 476]; 3 Witkin, Cal. Procedure (2d ed. 1971) Pleading, § 731, pp. 2351-2353.)

The judgment is affirmed.

Spencer, P.J., and Hanson, J., concurred.

[1] It is an abuse of discretion to sustain a special demurrer without leave to amend since it is directed to a defect of form rather than of substance. (Zumbrun v. University of Southern California (1972) 25 Cal. App.3d 1, 8 [101 Cal. Rptr. 499, 51 A.L.R.3d 991].) However, inasmuch as the trial court sustained defendants' demurrer in general terms, we must assume that the court ruled only on the general demurrer and not on the special demurrer. (See Briscoe v. Reader's Digest Association, Inc. (1971) 4 Cal.3d 529, 544 [93 Cal. Rptr. 866, 483 P.2d 34, 57 A.L.R. 301].)

[2] Plaintiff moved for reconsideration of the order sustaining the demurrer without leave to amend, and for an order overruling the demurrer or granting leave to amend the complaint. The motion was denied.

[449] COUNSEL

Hendrix & Aller, Daniel A. Martorella, Norman P. Spevack and Jan Stiglitz for Plaintiff and Appellant.

Barwick & Knowlton, Robert W. Knowlton, Timothy C. Rutherford, Rushall, McGeever & Sappington and Eileen L. McGeever for Defendant and Respondent.

[450] OPINION

WORK, J.

Donnis G. Whorton appeals a judgment dismissing his action against Benjamin F. Dillingham III after the court sustained a demurrer without leave to amend. Whorton claims property rights based on an oral cohabiters' agreement with which he fully complied but which Dillingham breached after approximately seven years. The trial court found the pleadings showed the contract was unenforceable as expressly and inseparably based on sexual services. We conclude Whorton has alleged consideration for the purported contract substantially independent of sexual services, and reverse the judgment.

I

(1) On appeal from a judgment of dismissal arising from the sustaining of a demurrer, we accept the facts pleaded in the complaint as true. (Noguera v. North Monterey County Unified Sch. Dist. (1980) 106 Cal. App.3d 64, 66 [164 Cal. Rptr. 808].)

The alleged facts include the following. At the time the parties began dating and entered into a homosexual relationship, Whorton was studying to obtain his Associate in Arts degree, intending to enroll in a four-year college and obtain a Bachelor of Arts degree. When the parties began living together in 1977, they orally agreed that Whorton's exclusive, full-time occupation was to be Dillingham's chauffeur, bodyguard, social and business secretary, partner and counselor in real estate investments, and to appear on his behalf when requested. Whorton was to render labor, skills, and personal services for the benefit of Dillingham's business and investment endeavors. Additionally, Whorton was to be Dillingham's constant companion, confidant, traveling and social companion, and lover, to terminate his schooling upon obtaining his Associate in Arts degree, and to make no investment without first consulting Dillingham.

In consideration of Whorton's promises, Dillingham was to give him a one-half equity interest in all real estate acquired in their joint names, and in all property thereafter acquired by Dillingham. Dillingham agreed to financially support Whorton for life, and to open bank accounts, maintain a positive balance in those accounts, grant Whorton invasionary powers to savings accounts held in Dillingham's name, and permit Whorton to charge on Dillingham's personal accounts. Dillingham was also to engage in a homosexual relationship with Whorton. Importantly, for the purpose of our analysis, the parties specifically agreed that any portion of the agreement found to be legally unenforceable was severable and the balance of the provisions would remain in full force and effect.

[451] Whorton allegedly complied with all terms of the oral agreement until 1984 when Dillingham barred him from his premises. Dillingham now refuses to perform his part of the contract by giving Whorton the promised consideration for the business services rendered.

II

(2) Adults who voluntarily live together and engage in sexual relations are competent to contract respecting their earnings and property rights. Such contracts will be enforced "unless expressly and inseparably based upon an illicit consideration of sexual services...." (Marvin v. Marvin (1976) 18 Cal.3d 660, 672 [134 Cal. Rptr. 815, 557 P.2d 106].) One cannot lawfully contract to pay for the performance of sexual services since such an agreement is in essence a bargain for prostitution. (Id. at p. 674.)

A standard which inquires whether an agreement involves or contemplates a sexual relationship is vague and unworkable because virtually all agreements between nonmarital (and certainly, marital) cohabiters involve or contemplate a mutual sexual relationship. Further, a compact is not totally invalid merely because the parties may have contemplated creating or continuing a sexual relationship, but is invalid only to the extent it rests upon a consideration of sexual services. (Id. at pp. 670-671.) Thus, "even if sexual services are part of the contractual consideration, any severable portion of the contract supported by independent consideration will still be enforced." (Id. at p. 672.) For instance, contracting parties may make a variety of arrangements regarding their property rights — i.e., agree to pool their earnings and to hold all property in accord with the law governing community property, or to treat monetary earnings and property as separate property of the earning partner, or to keep property separate but compensate one party for services which benefit the other, or to pool only a part of their earnings and property, etc. (Id. at p. 674, fn. 10.) "So long as the agreement does not rest upon illicit meretricious consideration, the parties may order their economic affairs as they choose, and no policy precludes the courts from enforcing such agreements." (Id. at p. 674.)

(3) Regarding the issue of what constitutes adequate consideration, Marvin notes "[a] promise to perform homemaking services is, of course, a lawful and adequate consideration for a contract...." (Id. at p. 670, fn. 5.) Marvin expressly rejects the argument that the partner seeking to enforce the contract must have contributed either property or services additional to ordinary homemaking services. (Ibid.)

In Marvin, the plaintiff alleged the parties orally agreed that while they lived together they would combine their efforts and earnings and would [452] share equally all property accumulated as a result of their efforts, that they would hold themselves out to the general public as husband and wife, that plaintiff would render services as companion, homemaker, housekeeper and cook, that plaintiff would give up her career in order to provide these services full-time, and that in return defendant would provide for all of plaintiff's financial support for the rest of her life. (Id. at p. 666.) The court stated: "... plaintiff alleges that the parties agreed to pool their earnings, that they contracted to share equally in all property acquired, and that defendant agreed to support plaintiff. The terms of the contract as alleged do not rest upon any unlawful consideration." (Id. at pp. 674-675.)

The holding in Marvin suggests the court determined that the contract before it did not expressly include sexual services as part of the consideration, and thus, it did not need to reach the issue of whether there were severable portions of the contract supported by independent consideration. The only reference to sexual services in Marvin's alleged facts was that the parties agreed to hold themselves out to the public as husband and wife, which apparently the court did not interpret as expressly indicating sexual services were part of the consideration. (See Alderson v. Alderson (1986) 180 Cal. App.3d 450, 462-464 [225 Cal. Rptr. 610] [even though couple engaged in sexual relations and plaintiff perceived this as part of her "role," no evidence that implied agreement between the parties explicitly rested upon a consideration of meretricious sexual services].)

III

(4) Unlike the facts of Marvin, here the parties' sexual relationship was an express, rather than implied, part of the consideration for their contract. The contract cannot be enforced to the extent it is dependent on sexual services for consideration, and the complaint does not state a cause of action to the extent it asks for damages from the termination of the sexual relationship.

(5) The issue here is whether the sexual component of the consideration is severable from the remaining portions of the contract.^[1] We reiterate the guiding language of Marvin v. Marvin, supra, 18 Cal.3d at page 672: "[E]ven if sexual services are part of the contractual consideration, any severable portion of the contract supported by independent consideration will still be enforced." One test for determining the enforceability of a contract having both lawful and unlawful factors for consideration is stated in the Restatement Second of Contracts, section 183, "If the parties' performances [453] can be apportioned into corresponding pairs of part performances so that the parts of each pair are properly regarded as agreed equivalents and one pair is not offensive to public policy, that portion of the agreement is enforceable by a party who did not engage in serious misconduct." (See also Civ. Code, § 1599: "Where a contract has several distinct objects, of which one at least is lawful, and one at least is unlawful, in whole or in part, the contract is void as to the latter and valid as to the rest.")

Tyranski v. Piggins (1973) 44 Mich. App. 570 [205 N.W.2d 595, 596-597], evaluates the issue of severability as follows: "Professor Corbin and the drafters of the Restatement of Contracts both write that while bargains in whole or in part in consideration of an illicit relationship are unenforceable, agreements between parties to such a relationship with respect to money or property will be enforced if the agreement is independent of the illicit relationship.

"Neither these authorities nor the large body of case law in other jurisdictions ... articulate a guideline for determining when the consideration will be regarded as `independent' and when it is so coupled with the meretricious acts that the agreement will not be enforced. A pattern does, however, emerge upon reading the cases.

"Neither party to a meretricious relationship acquires, by reason of cohabitation alone, rights in the property accumulations of the other during the period of the relationship. But where there is an express agreement to accumulate or transfer property following a relationship of some permanence and an additional consideration in the form of either money or of services, the courts tend to find an independent consideration.

"Thus, a plaintiff who can show an actual contribution of money, pursuant to an agreement to pool assets and share accumulations, will usually prevail. Services, such as cooking meals, laundering clothes, `caring' for the decedent through sickness, have been found to be adequate and independent considerations in cases where there was an express agreement." (Fns. omitted; italics added.)^[2]

Of particular significance is the decision in Latham v. Latham (1976) 274 Ore. 421 [547 P.2d 144]. In Latham, the court overruled a demurrer where [454] complainant pleaded an agreement to live with defendant, to care for, and to furnish him with all the amenities of married life. The court recognized the alleged agreement specifically included the sexual services implicit in cohabitation. (Id. at p. 145.) Thus, as here, the sexual aspect of the agreement appeared on the face of the complaint. In overruling a demurrer based on public policy, the court stated it was not validating an agreement in which sexual intercourse was the only or primary consideration, but only one of the factors incident to the burdens and amenities of married life. (Id. at p. 147.)

Thus, the crux of our analysis is whether Whorton's complaint negates as a matter of law, a trier of fact finding he made contributions, apart from sexual services, which provided independent consideration for Dillingham's alleged promises pertaining to financial support and property rights. The services which plaintiff alleges he agreed to and did provide included being a chauffeur, bodyguard, secretary, and partner and counselor in real estate investments. If provided, these services are of monetary value, and the type for which one would expect to be compensated unless there is evidence of a contrary intent. Thus, they are properly characterized as consideration independent of the sexual aspect of the relationship. By way of comparison, such services as being a constant companion and confidant are not the type which are usually monetarily compensated nor considered to have a "value" for purposes of contract consideration, and, absent peculiar circumstances, would likely be considered so intertwined with the sexual relationship as to be inseparable. (Cf. Walters v. Calderon (1972) 25 Cal. App.3d 863, 873 [102 Cal. Rptr. 89] [love and affection do not constitute valuable consideration necessary to support validity of contractual promise].)

We hold that Whorton — based on allegations he provided Dillingham with services of a chauffeur, bodyguard, secretary, and business partner — has stated a cause of action arising from a contract supported by consideration independent of sexual services.^[3] Further, by itemizing the mutual promises to engage in sexual activity, Whorton has not precluded the trier of fact from finding those promises are the consideration for each other and independent of the bargained for consideration for Whorton's employment.

We believe our holding does not conflict with that in Jones v. Daly (1981) 122 Cal. App.3d 500, 508 [176 Cal. Rptr. 130], where services provided by [455] the complaining homosexual partner were limited to "lover, companion, homemaker, traveling companion, housekeeper and cook...." The court there found the pleadings unequivocally established that plaintiff's rendition of sex and other services naturally flowing from sexual cohabitation was an inseparable part of the consideration for the so-called cohabitor's agreement. The court stated: "According to the allegations of the complaint, the agreement provided that the parties would share equally the earnings and property accumulated as a result of their efforts while they lived together and that Daly would support plaintiff for the rest of his life. Neither the property sharing nor the support provision of the agreement rests upon plaintiff's acting as Daly's traveling companion, housekeeper or cook as distinguished from acting as his lover. The latter service forms an inseparable part of the consideration for the agreement and renders it unenforceable in its entirety." (Jones v. Daly, supra, 122 Cal. App.3d at p. 509; italics added.)

Jones is factually different in that the complaining party did not allege contracting to provide services apart from those normally incident to the state of cohabitation itself.^[4] Further, Jones's complaint stated the agreement was premised on that they "would hold themselves out to the public at large as cohabiting mates...." (Id. at p. 505.) In contrast, Whorton's complaint separately itemizes services contracted for as companion, chauffeur, bodyguard, secretary, partner and business counselor. These, except for companion, are significantly different than those household duties normally attendant to nonbusiness cohabitation and are those for which monetary compensation ordinarily would be anticipated.^[5] Accepting Whorton's allegations as true, we cannot say as a matter of law any illegal portion of the contract is not severable so as to leave the balance valid and enforceable, especially where it is alleged the parties contemplated such a result when entering into their agreement.

[456] IV

Statute of frauds

(6) Dillingham asserts the oral agreement is invalid under the statute of frauds, requiring agreements not to be performed within one year or for the sale of an interest in real property to be written. (Civ. Code, § 1624, subds. (a) and (c).) In Marvin v. Marvin, supra, 18 Cal.3d at page 674, footnote 10, the court noted in cases involving agreements between nonmarital partners, the majority of the agreements were oral and the courts have expressly rejected defenses grounded upon the statute of frauds.

Marvin cites Cline v. Festersen (1954) 128 Cal. App.2d 380, 386 [275 P.2d 149]. In Cline, the court rejected a statute of frauds argument on the basis of estoppel, reasoning that the nonmarital partner seeking to obtain her promised share of the property had trusted and worked for many years in reliance on the promise, and her partner had never repudiated the agreement. Cline relies on the principle that the doctrine of estoppel to assert the statute of frauds should be applied to prevent fraud and unconscionable injury that would result from refusal to enforce oral contracts in certain circumstances — i.e., after one party has been induced by the other seriously to change position in reliance on the contract, or when unjust enrichment would result if a party who has received the benefits of the other's performance were allowed to rely upon the statute. (Id. at p. 387.)

Whorton alleges he stopped his education earlier than planned to assist Dillingham in his business ventures in exchange for promises of support and sharing of accumulated property. These facts are sufficient to estop Dillingham from raising the statute of frauds by way of demurrer to bar enforcement of the contract.

Statute of limitations

Dillingham meritlessly asserts the action is barred by the statute of limitations.

(7) The general rule is that a cause of action for breach of contract accrues at the time of breach. (See 3 Witkin, Cal. Procedure (3d ed. 1985) Actions, § 375, p. 402.) (8) A Marvin-type contract is breached when one partner terminates the relationship. (Estate of Fincher (1981) 119 Cal. App.3d 343, 352 [174 Cal. Rptr. 18].) The statute of limitations for an action upon a contract not founded on a writing is two years. (Code Civ. Proc., § 339, subd. 1.) (9) The complaint states the breach occurred "on or about the latter part of 1984." The complaint was filed in June 1986. The [457] complaint on its face does not show the contract cause of action is barred by the statute of limitations.

For the same reasons, the complaint on its face does not show the three-year fraud limitation has expired.^[6]

Additionally, a cause of action based on equitable grounds is not barred, for which the statute of limitations is four years. (Nelson v. Nevel (1984) 154 Cal. App.3d 132, 140-141 [201 Cal. Rptr. 93]; Code Civ. Proc., § 343; see generally, Marvin v. Marvin, supra, 18 Cal.3d at p. 684, fn. 25.)

Terminable at will

(10) Finally, Dillingham contends that under Labor Code section 2922, the contract was terminable at will.^[7] That section has no applicability to the issues here. This case does not involve an employment contract within the purview of the Labor Code, but rather a cohabiters' agreement regarding how two nonmarital partners have agreed to regulate their economic affairs. Of course, one partner has a right to end the relationship, and the only issue is whether the facts support a monetary and/or property award to one of the partners.

DISPOSITION

The judgment is reversed.

Wiener, Acting P.J., and Benke, J., concurred.

Respondent's petition for review by the Supreme Court was denied August 31, 1988.

[1] Dillingham does not assert Marvin is inapplicable to same-sex partners, and we see no legal basis to make a distinction.

[2] In Tyranski v. Piggins, supra, 205 N.W.2d at pages 596-597, the plaintiff cleaned the house, did the marketing, cooked the food, did the decedent's personal laundry, acted as his hostess, cared for him when he was sick, and contributed money towards the purchase of a house in which the unmarried plaintiff and the decedent resided. The court held it was proper to enforce the parties' express agreement to convey the house, which was held in the name of the decedent, to the plaintiff.

[3] This is, of course, an appeal from a demurrer where we assume Whorton can prove all the facts as alleged and we liberally construe all the allegations. Whorton will have to prove he in fact did provide compensable services in exchange for the alleged promises, or that he is otherwise entitled to equitable relief. (See, e.g., Marvin v. Marvin, supra, 122 Cal. App.3d at pp. 873-874 [176 Cal. Rptr. 555] and Taylor v. Polackwich (1983) 145 Cal. App.3d 1014, 1022-1023 [194 Cal. Rptr. 8] [no promises made; and no unjust enrichment, wrongdoing, or detriment warranting equitable remedy].)

[4] The reasoning in Jones was followed in Taylor v. Fields (1986) 178 Cal. App.3d 653, 665 [224 Cal. Rptr. 186], where the plaintiff alleged she acted as the decedent's confidante, friend, travel companion and lover in return for promises of lifetime financial care. Taylor holds that, as in Jones, the plaintiff's rendering of sexual services was inseparable from the rest of the contract, since nothing in the alleged oral agreement rested upon her acting as a friend, traveling companion, or confidante as distinguished from her role as a paramour. (Ibid.) Thus, Taylor and Jones both involved the type of services for which the benefits of cohabitation alone are the normal recompense. Taylor's alternative holding concludes no cause of action was stated since the plaintiff, who had been the mistress of the married decedent for 42 years, did not live with the decedent and thus, the element of cohabitation underlying the Marvin case was not present. (Id. at pp. 658, 660-663.)

[5] Most of the numerous cases cited in Marvin where nonmarital cohabiters' oral agreements to pool earnings were upheld involved contributions other than normal homemaking services. However, Marvin states homemaking services alone are lawful consideration. (Marvin v. Marvin, supra, 18 Cal.3d, p. 670, fn. 5; see also Watkins v. Watkins (1983) 143 Cal. App.3d. 651, 655 [192 Cal. Rptr. 54].)

[6] The caption of the complaint does not refer to fraud, stating: "Complaint for damages for breach of express oral contract; breach of implied in fact contract; to impress a constructive trust; for declaratory relief; and for injunctive relief." However, the body of the complaint states facts in support of, and refers to, a fraud cause of action.

[7] Labor Code section 2922 states: "An employment, having no specified term, may be terminated at the will of either party on notice to the other. Employment for a specified term means an employment for a period greater than one month."

ON WRIT OF CERTIORARI TO THE COURT OF APPEALS OF COLORADO.

Kristen K. Waggoner, Scottsdale, AZ, for Petitioners.

Noel J. Francisco, Solicitor General, for the United States as amicus curiae, by special leave of the Court, supporting the petitioners.

Frederick R. Yarger, Denver, CO, for the State Respondent.

David D. Cole, Washington, DC, for the Private Respondents.

David A. Cortman, Rory T, Gray, Alliance Defending Freedom, Lawrenceville, GA, Nicolle H. Martin, Lakewood, CO, Kristen K. Waggoner, Jeremy D. Tedesco, James A. Campbell, Jonathan A. Scruggs, Alliance Defending Freedom, Scottsdale, AZ, for Petitioners.

Cynthia H. Coffman, Attorney General, Frederick R. Yarger, Solicitor General, Office of the Colorado Attorney General, Denver, CO, Vincent E. Morscher, Deputy Attorney General, Glenn E. Roper, Deputy Solicitor General, Stacy L. Worthington, Senior Assistant Attorney General, Grant T. Sullivan, Assistant Solicitor General, for Respondent Colorado Civil Rights Commission.

Mark Silverstein, Sara R. Neel, American Civil Liberties Union Foundation of Colorado, Paula Greisen, King & Greisen, LLC, Denver, CO, Ria Tabacco Mar, James D. Esseks, Leslie Cooper, Rachel Wainer Apter, Louise Melling, Rose A. Saxe, Lee Rowland, American Civil Liberties Union Foundation, New York, NY, David D. Cole, Amanda W. Shanor, Daniel Mach, American Civil Liberties Union Foundation, Washington, DC, for Respondents Charlie Craig and David Mullins.

Syllabus^[*]

Masterpiece Cakeshop, Ltd., is a Colorado bakery owned and operated by Jack Phillips, an expert baker and devout Christian. In 2012 he told a same-sex couple that he would not create a cake for their wedding celebration because of his religious opposition to same-sex marriages — marriages that Colorado did not then recognize — but that he would sell them other baked goods, e.g., birthday cakes. The couple filed a charge with the Colorado Civil Rights Commission (Commission) pursuant to the Colorado Anti-Discrimination Act (CADA), which prohibits, as relevant here, discrimination based on sexual orientation in a "place of business engaged in any sales to the public and any place offering services ... to the public." Under CADA's administrative review system, the Colorado Civil Rights Division first found probable cause for a violation and referred the case to the Commission. The Commission then referred the case for a formal hearing before a state Administrative Law Judge (ALJ), who ruled in the couple's favor. In so doing, the ALJ rejected Phillips' First Amendment claims: that requiring him to create a cake for a same-sex wedding would violate his right to free speech by compelling him to exercise his artistic talents to express a message with which he disagreed and would violate his right to the free exercise of religion. Both the Commission and the Colorado Court of Appeals affirmed.

Held: The Commission's actions in this case violated the Free Exercise Clause. Pp. 1727-1732.

(a) The laws and the Constitution can, and in some instances must, protect gay persons and gay couples in the exercise of their civil rights, but religious and philosophical  objections to gay marriage are protected views and in some instances protected forms of expression. See Obergefell v. Hodges, 576 U.S. ___, ___, 135 S.Ct. 2584, 2594, 192 L.Ed.2d 609. While it is unexceptional that Colorado law can protect gay persons in acquiring products and services on the same terms and conditions as are offered to other members of the public, the law must be applied in a manner that is neutral toward religion. To Phillips, his claim that using his artistic skills to make an expressive statement, a wedding endorsement in his own voice and of his own creation, has a significant First Amendment speech component and implicates his deep and sincere religious beliefs. His dilemma was understandable in 2012, which was before Colorado recognized the validity of gay marriages performed in the State and before this Court issued United States v. Windsor, 570 U.S. 744, 133 S.Ct. 2675, 186 L.Ed.2d 808, or Obergefell. Given the State's position at the time, there is some force to Phillips' argument that he was not unreasonable in deeming his decision lawful. State law at the time also afforded storekeepers some latitude to decline to create specific messages they considered offensive. Indeed, while the instant enforcement proceedings were pending, the State Civil Rights Division concluded in at least three cases that a baker acted lawfully in declining to create cakes with decorations that demeaned gay persons or gay marriages. Phillips too was entitled to a neutral and respectful consideration of his claims in all the circumstances of the case. Pp. 1727-1729.

(b) That consideration was compromised, however, by the Commission's treatment of Phillips' case, which showed elements of a clear and impermissible hostility toward the sincere religious beliefs motivating his objection. As the record shows, some of the commissioners at the Commission's formal, public hearings endorsed the view that religious beliefs cannot legitimately be carried into the public sphere or commercial domain, disparaged Phillips' faith as despicable and characterized it as merely rhetorical, and compared his invocation of his sincerely held religious beliefs to defenses of slavery and the Holocaust. No commissioners objected to the comments. Nor were they mentioned in the later state-court ruling or disavowed in the briefs filed here. The comments thus cast doubt on the fairness and impartiality of the Commission's adjudication of Phillips' case.

Another indication of hostility is the different treatment of Phillips' case and the cases of other bakers with objections to anti-gay messages who prevailed before the Commission. The Commission ruled against Phillips in part on the theory that any message on the requested wedding cake would be attributed to the customer, not to the baker. Yet the Division did not address this point in any of the cases involving requests for cakes depicting anti-gay marriage symbolism. The Division also considered that each bakery was willing to sell other products to the prospective customers, but the Commission found Phillips' willingness to do the same irrelevant. The State Court of Appeals' brief discussion of this disparity of treatment does not answer Phillips' concern that the State's practice was to disfavor the religious basis of his objection. Pp. 1728-1731.

(c) For these reasons, the Commission's treatment of Phillips' case violated the State's duty under the First Amendment not to base laws or regulations on hostility to a religion or religious viewpoint. The government, consistent with the Constitution's guarantee of free exercise, cannot impose regulations that are hostile to the religious beliefs of affected citizens and cannot act in a manner that passes judgment upon or presupposes the illegitimacy of religious beliefs and practices. Church of Lukumi Babalu Aye, Inc. v. Hialeah, 508 U.S. 520, 113 S.Ct. 2217, 124 L.Ed.2d 472. Factors relevant to the assessment of governmental neutrality include "the historical background of the decision under challenge, the specific series of events leading to the enactment or official policy in question, and the legislative or administrative history, including contemporaneous statements made by members of the decisionmaking body." Id., at 540, 113 S.Ct. 2217. In view of these factors, the record here demonstrates that the Commission's consideration of Phillips' case was neither tolerant nor respectful of his religious beliefs. The Commission gave "every appearance," id., at 545, 113 S.Ct. 2217, of adjudicating his religious objection based on a negative normative "evaluation of the particular justification" for his objection and the religious grounds for it, id., at 537, 113 S.Ct. 2217, but government has no role in expressing or even suggesting whether the religious ground for Phillips' conscience-based objection is legitimate or illegitimate. The inference here is thus that Phillips' religious objection was not considered with the neutrality required by the Free Exercise Clause. The State's interest could have been weighed against Phillips' sincere religious objections in a way consistent with the requisite religious neutrality that must be strictly observed. But the official expressions of hostility to religion in some of the commissioners' comments were inconsistent with that requirement, and the Commission's disparate consideration of Phillips' case compared to the cases of the other bakers suggests the same. Pp. 1730-1732.

370 P.3d 272, reversed.

KENNEDY, J., delivered the opinion of the Court, in which ROBERTS, C.J., and BREYER, ALITO, KAGAN, and GORSUCH, JJ., joined. KAGAN, J., filed a concurring opinion, in which BREYER, J., joined. GORSUCH, J., filed a concurring opinion, in which ALITO, J., joined. THOMAS, J., filed an opinion concurring in part and concurring in the judgment, in which GORSUCH, J., joined. GINSBURG, J., filed a dissenting opinion, in which SOTOMAYOR, J., joined.

Justice KENNEDY delivered the opinion of the Court.

In 2012 a same-sex couple visited Masterpiece Cakeshop, a bakery in Colorado, to make inquiries about ordering a cake for their wedding reception. The shop's owner told the couple that he would not create a cake for their wedding because of his religious opposition to same-sex marriages — marriages the State of Colorado itself did not recognize at that time. The couple filed a charge with the Colorado Civil Rights Commission alleging discrimination on the basis of sexual orientation in violation of the Colorado Anti-Discrimination Act.

The Commission determined that the shop's actions violated the Act and ruled in the couple's favor. The Colorado state courts affirmed the ruling and its enforcement order, and this Court now must decide whether the Commission's order violated the Constitution.

The case presents difficult questions as to the proper reconciliation of at least two principles. The first is the authority of a State and its governmental entities to protect the rights and dignity of gay persons who are, or wish to be, married but who face discrimination when they seek goods or services. The second is the right of all persons to exercise fundamental freedoms under the First Amendment, as applied to the States through the Fourteenth Amendment.

The freedoms asserted here are both the freedom of speech and the free exercise of religion. The free speech aspect of this case is difficult, for few persons who have seen a beautiful wedding cake might have thought of its creation as an exercise of protected speech. This is an instructive example, however, of the proposition that the application of constitutional freedoms in new contexts can deepen our understanding of their meaning.

One of the difficulties in this case is that the parties disagree as to the extent of the baker's refusal to provide service. If a baker refused to design a special cake with words or images celebrating the marriage — for instance, a cake showing words with religious meaning — that might be different from a refusal to sell any cake at all. In defining whether a baker's creation can be protected, these details might make a difference.

The same difficulties arise in determining whether a baker has a valid free exercise claim. A baker's refusal to attend the wedding to ensure that the cake is cut the right way, or a refusal to put certain religious words or decorations on the cake, or even a refusal to sell a cake that has been baked for the public generally but includes certain religious words or symbols on it are just three examples of possibilities that seem all but endless.

Whatever the confluence of speech and free exercise principles might be in some cases, the Colorado Civil Rights Commission's consideration of this case was inconsistent with the State's obligation of religious neutrality. The reason and motive for the baker's refusal were based on his sincere religious beliefs and convictions. The Court's precedents make clear that the baker, in his capacity as the owner of a business serving the public, might have his right to the free exercise of religion limited by generally applicable laws. Still, the delicate question of when the free exercise of his religion must yield to an otherwise valid exercise of state power needed to be determined in an adjudication in which religious hostility on the part of the State itself would not be a factor in the balance the State sought to reach. That requirement, however, was not met here. When the Colorado Civil Rights Commission considered this case, it did not do so with the religious neutrality that the Constitution requires.

Given all these considerations, it is proper to hold that whatever the outcome of some future controversy involving facts similar to these, the Commission's actions here violated the Free Exercise Clause; and its order must be set aside.

I

A

Masterpiece Cakeshop, Ltd., is a bakery in Lakewood, Colorado, a suburb of Denver. The shop offers a variety of baked goods, ranging from everyday cookies and brownies to elaborate custom-designed cakes for birthday parties, weddings, and other events.

Jack Phillips is an expert baker who has owned and operated the shop for 24 years. Phillips is a devout Christian. He has explained that his "main goal in life is to be obedient to" Jesus Christ and Christ's "teachings in all aspects of his life." App. 148. And he seeks to "honor God through his work at Masterpiece Cakeshop." Ibid. One of Phillips' religious beliefs is that "God's intention for marriage from the beginning of history is that it is and should be the union of one man and one woman." Id., at 149. To Phillips, creating a wedding cake for a same-sex wedding would be equivalent to participating in a celebration that is contrary to his own most deeply held beliefs.

Phillips met Charlie Craig and Dave Mullins when they entered his shop in the summer of 2012. Craig and Mullins were planning to marry. At that time, Colorado did not recognize same-sex marriages, so the couple planned to wed legally in Massachusetts and afterwards to host a reception for their family and friends in Denver. To prepare for their celebration, Craig and Mullins visited the shop and told Phillips that they were interested in ordering a cake for "our wedding." Id., at 152 (emphasis deleted). They did not mention the design of the cake they envisioned.

Phillips informed the couple that he does not "create" wedding cakes for same-sex weddings. Ibid. He explained, "I'll make your birthday cakes, shower cakes, sell you cookies and brownies, I just don't make cakes for same sex weddings." Ibid.The couple left the shop without further discussion.

The following day, Craig's mother, who had accompanied the couple to the cakeshop and been present for their interaction with Phillips, telephoned to ask Phillips why he had declined to serve her son. Phillips explained that he does not create wedding cakes for same-sex weddings because of his religious opposition to same-sex marriage, and also because Colorado (at that time) did not recognize same-sex marriages. Id., at 153. He later explained his belief that "to create a wedding cake for an event that celebrates something that directly goes against the teachings of the Bible, would have been a personal endorsement and participation in the ceremony and relationship that they were entering into." Ibid. (emphasis deleted).

B

For most of its history, Colorado has prohibited discrimination in places of public accommodation. In 1885, less than a decade after Colorado achieved statehood, the General Assembly passed "An Act to Protect All Citizens in Their Civil Rights," which guaranteed "full and equal enjoyment" of certain public facilities to "all citizens," "regardless of race, color or previous condition of servitude." 1885 Colo. Sess. Laws pp. 132-133. A decade later, the General Assembly expanded the requirement to apply to "all other places of public accommodation." 1895 Colo. Sess. Laws ch. 61, p. 139.

Today, the Colorado Anti-Discrimination Act (CADA) carries forward the state's tradition of prohibiting discrimination in places of public accommodation. Amended in 2007 and 2008 to prohibit discrimination on the basis of sexual orientation as well as other protected characteristics, CADA in relevant part provides as follows:

"It is a discriminatory practice and unlawful for a person, directly or indirectly, to refuse, withhold from, or deny to an individual or a group, because of disability, race, creed, color, sex, sexual orientation, marital status, national origin, or ancestry, the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of a place of public accommodation." Colo. Rev. Stat. § 24-34-601(2)(a) (2017).

The Act defines "public accommodation" broadly to include any "place of business engaged in any sales to the public and any place offering services ... to the public," but excludes "a church, synagogue, mosque, or other place that is principally used for religious purposes." § 24-34-601(1).

CADA establishes an administrative system for the resolution of discrimination claims. Complaints of discrimination in violation of CADA are addressed in the first instance by the Colorado Civil Rights Division. The Division investigates each claim; and if it finds probable cause that CADA has been violated, it will refer the matter to the Colorado Civil Rights Commission. The Commission, in turn, decides whether to initiate a formal hearing before a state Administrative Law Judge (ALJ), who will hear evidence and argument before issuing a written decision. See §§ 24-34-306, 24-4-105(14). The decision of the ALJ may be appealed to the full Commission, a seven-member appointed body. The Commission holds a public hearing and deliberative session before voting on the case. If the Commission determines that the evidence proves a CADA violation, it may impose remedial measures as provided by statute. See § 24-34-306(9). Available remedies include, among other things, orders to cease-and-desist a discriminatory policy, to file regular compliance reports with the Commission, and "to take affirmative action, including the posting of notices setting forth the substantive rights of the public." § 24-34-605. Colorado law does not permit the Commission to assess money damages or fines. §§ 24-34-306(9), 24-34-605.

C

Craig and Mullins filed a discrimination complaint against Masterpiece Cakeshop and Phillips in September 2012, shortly after the couple's visit to the shop. App. 31. The complaint alleged that Craig and Mullins had been denied "full and equal service" at the bakery because of their sexual orientation, id., at 35, 48, and that it was Phillips' "standard business practice" not to provide cakes for same-sex weddings, id., at 43.

The Civil Rights Division opened an investigation. The investigator found that "on multiple occasions," Phillips "turned away potential customers on the basis of their sexual orientation, stating that he could not create a cake for a same-sex wedding ceremony or reception" because his religious beliefs prohibited it and because the potential customers "were doing something illegal" at that time. Id., at 76. The investigation found that Phillips had declined to sell custom wedding cakes to about six other same-sex couples on this basis. Id., at 72. The investigator also recounted that, according to affidavits submitted by Craig and Mullins, Phillips' shop had refused to sell cupcakes to a lesbian couple for their commitment celebration because the shop "had a policy of not selling baked goods to same-sex couples for this type of event." Id., at 73. Based on these findings, the Division found probable cause that Phillips violated CADA and referred the case to the Civil Rights Commission. Id., at 69.

The Commission found it proper to conduct a formal hearing, and it sent the case to a State ALJ. Finding no dispute as to material facts, the ALJ entertained cross-motions for summary judgment and ruled in the couple's favor. The ALJ first rejected Phillips' argument that declining to make or create a wedding cake for Craig and Mullins did not violate Colorado law. It was undisputed that the shop is subject to state public accommodations laws. And the ALJ determined that Phillips' actions constituted prohibited discrimination on the basis of sexual orientation, not simply opposition to same-sex marriage as Phillips contended. App. to Pet. for Cert. 68a-72a.

Phillips raised two constitutional claims before the ALJ. He first asserted that applying CADA in a way that would require him to create a cake for a same-sex wedding would violate his First Amendment right to free speech by compelling him to exercise his artistic talents to express a message with which he disagreed. The ALJ rejected the contention that preparing a wedding cake is a form of protected speech and did not agree that creating Craig and Mullins' cake would force Phillips to adhere to "an ideological point of view." Id., at 75a. Applying CADA to the facts at hand, in the ALJ's view, did not interfere with Phillips' freedom of speech.

Phillips also contended that requiring him to create cakes for same-sex weddings would violate his right to the free exercise of religion, also protected by the First Amendment. Citing this Court's precedent in Employment Div., Dept. of Human Resources of Ore. v. Smith, 494 U.S. 872, 110 S.Ct. 1595, 108 L.Ed.2d 876 (1990), the ALJ determined that CADA is a "valid and neutral law of general applicability" and therefore that applying it to Phillips in this case did not violate the Free Exercise Clause. Id., at 879, 110 S.Ct. 1595; App. to Pet. for Cert. 82a-83a. The ALJ thus ruled against Phillips and the cakeshop and in favor of Craig and Mullins on both constitutional claims.

The Commission affirmed the ALJ's decision in full. Id., at 57a. The Commission ordered Phillips to "cease and desist from discriminating against ... same-sex couples by refusing to sell them wedding cakes or any product [they] would sell to heterosexual couples." Ibid. It also ordered additional remedial measures, including "comprehensive staff training on the Public Accommodations section" of CADA "and changes to any and all company policies to comply with ... this Order." Id., at 58a. The Commission additionally required Phillips to prepare "quarterly compliance reports" for a period of two years documenting "the number of patrons denied service" and why, along with "a statement describing the remedial actions taken." Ibid.

Phillips appealed to the Colorado Court of Appeals, which affirmed the Commission's legal determinations and remedial order. The court rejected the argument that the "Commission's order unconstitutionally compels" Phillips and the shop "to convey a celebratory message about same sex marriage." Craig v. Masterpiece Cakeshop, Inc., 370 P.3d 272, 283 (2015). The court also rejected the argument that the Commission's order violated the Free Exercise Clause. Relying on this Court's precedent in Smith, supra, at 879, 110 S.Ct. 1595, the court stated that the Free Exercise Clause "does not relieve an individual of the obligation to comply with a valid and neutral law of general applicability" on the ground that following the law would interfere with religious practice or belief. 370 P.3d, at 289. The court concluded that requiring Phillips to comply with the statute did not violate his free exercise rights. The Colorado Supreme Court declined to hear the case.

Phillips sought review here, and this Court granted certiorari. 582 U.S. ___, 137 S.Ct. 2290, 198 L.Ed.2d 723 (2017). He now renews his claims under the Free Speech and Free Exercise Clauses of the First Amendment.

II

A

Our society has come to the recognition that gay persons and gay couples cannot be treated as social outcasts or as inferior in dignity and worth. For that reason the laws and the Constitution can, and in some instances must, protect them in the exercise of their civil rights. The exercise of their freedom on terms equal to others must be given great weight and respect by the courts. At the same time, the religious and philosophical objections to gay marriage are protected views and in some instances protected forms of expression. As this Court observed in Obergefell v. Hodges, 576 U.S. ___, 135 S.Ct. 2584, 192 L.Ed.2d 609 (2015), "[t]he First Amendment ensures that religious organizations and persons are given proper protection as they seek to teach the principles that are so fulfilling and so central to their lives and faiths." Id., at ___, 135 S.Ct., at 2607. Nevertheless, while those religious and philosophical objections are protected, it is a general rule that such objections do not allow business owners and other actors in the economy and in society to deny protected persons equal access to goods and services under a neutral and generally applicable public accommodations law. See Newman v. Piggie Park Enterprises, Inc., 390 U.S. 400, 402, n. 5, 88 S.Ct. 964, 19 L.Ed.2d 1263 (1968) (per curiam); see also Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, Inc., 515 U.S. 557, 572, 115 S.Ct. 2338, 132 L.Ed.2d 487 (1995) ("Provisions like these are well within the State's usual power to enact when a legislature has reason to believe that a given group is the target of discrimination, and they do not, as a general matter, violate the First or Fourteenth Amendments").

When it comes to weddings, it can be assumed that a member of the clergy who objects to gay marriage on moral and religious grounds could not be compelled to perform the ceremony without denial of his or her right to the free exercise of religion. This refusal would be well understood in our constitutional order as an exercise of religion, an exercise that gay persons could recognize and accept without serious diminishment to their own dignity and worth. Yet if that exception were not confined, then a long list of persons who provide goods and services for marriages and weddings might refuse to do so for gay persons, thus resulting in a community-wide stigma inconsistent with the history and dynamics of civil rights laws that ensure equal access to goods, services, and public accommodations.

It is unexceptional that Colorado law can protect gay persons, just as it can protect other classes of individuals, in acquiring whatever products and services they choose on the same terms and conditions as are offered to other members of the public. And there are no doubt innumerable goods and services that no one could argue implicate the First Amendment. Petitioners conceded, moreover, that if a baker refused to sell any goods or any cakes for gay weddings, that would be a different matter and the State would have a strong case under this Court's precedents that this would be a denial of goods and services that went beyond any protected rights of a baker who offers goods and services to the general public and is subject to a neutrally applied and generally applicable public accommodations law. See Tr. of Oral Arg. 4-7, 10.

Phillips claims, however, that a narrower issue is presented. He argues that he had to use his artistic skills to make an expressive statement, a wedding endorsement in his own voice and of his own creation. As Phillips would see the case, this contention has a significant First Amendment speech component and implicates his deep and sincere religious beliefs. In this context the baker likely found it difficult to find a line where the customers' rights to goods and services became a demand for him to exercise the right of his own personal expression for their message, a message he could not express in a way consistent with his religious beliefs.

Phillips' dilemma was particularly understandable given the background of legal principles and administration of the law in Colorado at that time. His decision and his actions leading to the refusal of service all occurred in the year 2012. At that point, Colorado did not recognize the validity of gay marriages performed in its own State. See Colo. Const., Art. II, § 31 (2012); 370 P.3d, at 277. At the time of the events in question, this Court had not issued its decisions either in United States v. Windsor, 570 U.S. 744, 133 S.Ct. 2675, 186 L.Ed.2d 808 (2013), or Obergefell. Since the State itself did not allow those marriages to be performed in Colorado, there is some force to the argument that the baker was not unreasonable in deeming it lawful to decline to take an action that he understood to be an expression of support for their validity when that expression was contrary to his sincerely held religious beliefs, at least insofar as his refusal was limited to refusing to create and express a message in support of gay marriage, even one planned to take place in another State.

At the time, state law also afforded storekeepers some latitude to decline to create specific messages the storekeeper considered offensive. Indeed, while enforcement proceedings against Phillips were ongoing, the Colorado Civil Rights Division itself endorsed this proposition in cases involving other bakers' creation of cakes, concluding on at least three occasions that a baker acted lawfully in declining to create cakes with decorations that demeaned gay persons or gay marriages. See Jack v. Gateaux, Ltd., Charge No. P20140071X (Mar. 24, 2015); Jack v. Le Bakery Sensual, Inc., Charge No. P20140070X (Mar. 24, 2015); Jack v. Azucar Bakery, Charge No. P20140069X (Mar. 24, 2015).

There were, to be sure, responses to these arguments that the State could make when it contended for a different result in seeking the enforcement of its generally applicable state regulations of businesses that serve the public. And any decision in favor of the baker would have to be sufficiently constrained, lest all purveyors of goods and services who object to gay marriages for moral and religious reasons in effect be allowed to put up signs saying "no goods or services will be sold if they will be used for gay marriages," something that would impose a serious stigma on gay persons. But, nonetheless, Phillips was entitled to the neutral and respectful consideration of his claims in all the circumstances of the case.

B

The neutral and respectful consideration to which Phillips was entitled was compromised here, however. The Civil Rights Commission's treatment of his case has some elements of a clear and impermissible hostility toward the sincere religious beliefs that motivated his objection.

That hostility surfaced at the Commission's formal, public hearings, as shown by the record. On May 30, 2014, the seven-member Commission convened publicly to consider Phillips' case. At several points during its meeting, commissioners endorsed the view that religious beliefs cannot legitimately be carried into the public sphere or commercial domain, implying that religious beliefs and persons are less than fully welcome in Colorado's business community. One commissioner suggested that Phillips can believe "what he wants to believe," but cannot act on his religious beliefs "if he decides to do business in the state." Tr. 23. A few moments later, the commissioner restated the same position: "[I]f a businessman wants to do business in the state and he's got an issue with the — the law's impacting his personal belief system, he needs to look at being able to compromise." Id., at 30. Standing alone, these statements are susceptible of different interpretations. On the one hand, they might mean simply that a business cannot refuse to provide services based on sexual orientation, regardless of the proprietor's personal views. On the other hand, they might be seen as inappropriate and dismissive comments showing lack of due consideration for Phillips' free exercise rights and the dilemma he faced. In view of the comments that followed, the latter seems the more likely.

On July 25, 2014, the Commission met again. This meeting, too, was conducted in public and on the record. On this occasion another commissioner made specific reference to the previous meeting's discussion but said far more to disparage Phillips' beliefs. The commissioner stated:

"I would also like to reiterate what we said in the hearing or the last meeting. Freedom of religion and religion has been used to justify all kinds of discrimination throughout history, whether it be slavery, whether it be the holocaust, whether it be — I mean, we — we can list hundreds of situations where freedom of religion has been used to justify discrimination. And to me it is one of the most despicable pieces of rhetoric that people can use to — to use their religion to hurt others." Tr. 11-12.

To describe a man's faith as "one of the most despicable pieces of rhetoric that people can use" is to disparage his religion in at least two distinct ways: by describing it as despicable, and also by characterizing it as merely rhetorical — something insubstantial and even insincere. The commissioner even went so far as to compare Phillips' invocation of his sincerely held religious beliefs to defenses of slavery and the Holocaust. This sentiment is inappropriate for a Commission charged with the solemn responsibility of fair and neutral enforcement of Colorado's antidiscrimination law — a law that protects against discrimination on the basis of religion as well as sexual orientation.

The record shows no objection to these comments from other commissioners. And the later state-court ruling reviewing the Commission's decision did not mention those comments, much less express concern with their content. Nor were the comments by the commissioners disavowed in the briefs filed in this Court. For these reasons, the Court cannot avoid the conclusion that these statements cast doubt on the fairness and impartiality of the Commission's adjudication of Phillips' case. Members of the Court have disagreed on the question whether statements made by lawmakers may properly be taken into account in determining whether a law intentionally discriminates on the basis of religion. See Church of Lukumi Babalu Aye, Inc. v. Hialeah, 508 U.S. 520, 540-542, 113 S.Ct. 2217, 124 L.Ed.2d 472 (1993); id., at 558, 113 S.Ct. 2217 (Scalia, J., concurring in part and concurring in judgment). In this case, however, the remarks were made in a very different context — by an adjudicatory body deciding a particular case.

Another indication of hostility is the difference in treatment between Phillips' case and the cases of other bakers who objected to a requested cake on the basis of conscience and prevailed before the Commission.

As noted above, on at least three other occasions the Civil Rights Division considered the refusal of bakers to create cakes with images that conveyed disapproval of same-sex marriage, along with religious text. Each time, the Division found that the baker acted lawfully in refusing service. It made these determinations because, in the words of the Division, the requested cake included "wording and images [the baker] deemed derogatory," Jack v. Gateaux, Ltd.,Charge No. P20140071X, at 4; featured "language and images [the baker] deemed hateful," Jack v. Le Bakery Sensual, Inc., Charge No. P20140070X, at 4; or displayed a message the baker "deemed as discriminatory, Jack v. Azucar Bakery, Charge No. P20140069X, at 4.

The treatment of the conscience-based objections at issue in these three cases contrasts with the Commission's treatment of Phillips' objection. The Commission ruled against Phillips in part on the theory that any message the requested wedding cake would carry would be attributed to the customer, not to the baker. Yet the Division did not address this point in any of the other cases with respect to the cakes depicting anti-gay marriage symbolism. Additionally, the Division found no violation of CADA in the other cases in part because each bakery was willing to sell other products, including those depicting Christian themes, to the prospective customers. But the Commission dismissed Phillips' willingness to sell "birthday cakes, shower cakes, [and] cookies and brownies," App. 152, to gay and lesbian customers as irrelevant. The treatment of the other cases and Phillips' case could reasonably be interpreted as being inconsistent as to the question of whether speech is involved, quite apart from whether the cases should ultimately be distinguished. In short, the Commission's consideration of Phillips' religious objection did not accord with its treatment of these other objections.

Before the Colorado Court of Appeals, Phillips protested that this disparity in treatment reflected hostility on the part of the Commission toward his beliefs. He argued that the Commission had treated the other bakers' conscience-based objections as legitimate, but treated his as illegitimate — thus sitting in judgment of his religious beliefs themselves. The Court of Appeals addressed the disparity only in passing and relegated its complete analysis of the issue to a footnote. There, the court stated that "[t]his case is distinguishable from the Colorado Civil Rights Division's recent findings that [the other bakeries] in Denver did not discriminate against a Christian patron on the basis of his creed" when they refused to create the requested cakes. 370 P.3d, at 282, n. 8. In those cases, the court continued, there was no impermissible discrimination because "the Division found that the bakeries ... refuse[d] the patron's request ... because of the offensive nature of the requested message." Ibid.

A principled rationale for the difference in treatment of these two instances cannot be based on the government's own assessment of offensiveness. Just as "no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion," West Virginia Bd. of Ed. v. Barnette, 319 U.S. 624, 642, 63 S.Ct. 1178, 87 L.Ed. 1628 (1943), it is not, as the Court has repeatedly held, the role of the State or its officials to prescribe what shall be offensive. See Matal v. Tam, 582 U.S. ___, ___-___, 137 S.Ct. 1744, 1762-1764, 198 L.Ed.2d 366 (2017) (opinion of ALITO, J.). The Colorado court's attempt to account for the difference in treatment elevates one view of what is offensive over another and itself sends a signal of official disapproval of Phillips' religious beliefs. The court's footnote does not, therefore, answer the baker's concern that the State's practice was to disfavor the religious basis of his objection.

C

For the reasons just described, the Commission's treatment of Phillips' case violated the State's duty under the First Amendment not to base laws or regulations on hostility to a religion or religious viewpoint.

In Church of Lukumi Babalu Aye, supra, the Court made clear that the government, if it is to respect the Constitution's guarantee of free exercise, cannot impose regulations that are hostile to the religious beliefs of affected citizens and cannot act in a manner that passes judgment upon or presupposes the illegitimacy of religious beliefs and practices. The Free Exercise Clause bars even "subtle departures from neutrality" on matters of religion. Id., at 534, 113 S.Ct. 2217. Here, that means the Commission was obliged under the Free Exercise Clause to proceed in a manner neutral toward and tolerant of Phillips' religious beliefs. The Constitution "commits government itself to religious tolerance, and upon even slight suspicion that proposals for state intervention stem from animosity to religion or distrust of its practices, all officials must pause to remember their own high duty to the Constitution and to the rights it secures." Id., at 547, 113 S.Ct. 2217.

Factors relevant to the assessment of governmental neutrality include "the historical background of the decision under challenge, the specific series of events leading to the enactment or official policy in question, and the legislative or administrative history, including contemporaneous statements made by members of the decisionmaking body." Id., at 540, 113 S.Ct. 2217. In view of these factors the record here demonstrates that the Commission's consideration of Phillips' case was neither tolerant nor respectful of Phillips' religious beliefs. The Commission gave "every appearance," id., at 545, 113 S.Ct. 2217, of adjudicating Phillips' religious objection based on a negative normative "evaluation of the particular justification" for his objection and the religious grounds for it. Id., at 537, 113 S.Ct. 2217. It hardly requires restating that government has no role in deciding or even suggesting whether the religious ground for Phillips' conscience-based objection is legitimate or illegitimate. On these facts, the Court must draw the inference that Phillips' religious objection was not considered with the neutrality that the Free Exercise Clause requires.

 While the issues here are difficult to resolve, it must be concluded that the State's interest could have been weighed against Phillips' sincere religious objections in a way consistent with the requisite religious neutrality that must be strictly observed. The official expressions of hostility to religion in some of the commissioners' comments — comments that were not disavowed at the Commission or by the State at any point in the proceedings that led to affirmance of the order — were inconsistent with what the Free Exercise Clause requires. The Commission's disparate consideration of Phillips' case compared to the cases of the other bakers suggests the same. For these reasons, the order must be set aside.

III

The Commission's hostility was inconsistent with the First Amendment's guarantee that our laws be applied in a manner that is neutral toward religion. Phillips was entitled to a neutral decisionmaker who would give full and fair consideration to his religious objection as he sought to assert it in all of the circumstances in which this case was presented, considered, and decided. In this case the adjudication concerned a context that may well be different going forward in the respects noted above. However later cases raising these or similar concerns are resolved in the future, for these reasons the rulings of the Commission and of the state court that enforced the Commission's order must be invalidated.

The outcome of cases like this in other circumstances must await further elaboration in the courts, all in the context of recognizing that these disputes must be resolved with tolerance, without undue disrespect to sincere religious beliefs, and without subjecting gay persons to indignities when they seek goods and services in an open market.

The judgment of the Colorado Court of Appeals is reversed.

It is so ordered.

Justice KAGAN, with whom Justice BREYER joins, concurring.

"[I]t is a general rule that [religious and philosophical] objections do not allow business owners and other actors in the economy and in society to deny protected persons equal access to goods and services under a neutral and generally applicable public accommodations law." Ante, at 1727. But in upholding that principle, state actors cannot show hostility to religious views; rather, they must give those views "neutral and respectful consideration." Ante, at 1729. I join the Court's opinion in full because I believe the Colorado Civil Rights Commission did not satisfy that obligation. I write separately to elaborate on one of the bases for the Court's holding.

The Court partly relies on the "disparate consideration of Phillips' case compared to the cases of [three] other bakers" who "objected to a requested cake on the basis of conscience." Ante, at 1730, 1732. In the latter cases, a customer named William Jack sought "cakes with images that conveyed disapproval of same-sex marriage, along with religious text"; the bakers whom he approached refused to make them. Ante, at 1730; see post, at 1749 (GINSBURG, J., dissenting) (further describing the requested cakes). Those bakers prevailed before the Colorado Civil Rights Division and Commission, while Phillips — who objected for religious reasons to baking a wedding cake for a same-sex couple — did not. The Court finds that the legal reasoning of the state agencies differed in significant ways as between the Jack cases and the Phillips case. See ante, at 1730. And the Court takes especial note of the suggestion made by the Colorado Court of Appeals, in comparing those cases, that the state agencies found the message Jack requested "offensive [in] nature." Ante, at 1731 (internal quotation marks omitted). As the Court states, a "principled rationale for the difference in treatment" cannot be "based on the government's own assessment of offensiveness." Ibid.

What makes the state agencies' consideration yet more disquieting is that a proper basis for distinguishing the cases was available — in fact, was obvious. The Colorado Anti-Discrimination Act (CADA) makes it unlawful for a place of public accommodation to deny "the full and equal enjoyment" of goods and services to individuals based on certain characteristics, including sexual orientation and creed. Colo. Rev. Stat. § 24-34-601(2)(a) (2017). The three bakers in the Jack cases did not violate that law. Jack requested them to make a cake (one denigrating gay people and same-sex marriage) that they would not have made for any customer. In refusing that request, the bakers did not single out Jack because of his religion, but instead treated him in the same way they would have treated anyone else — just as CADA requires. By contrast, the same-sex couple in this case requested a wedding cake that Phillips would have made for an opposite-sex couple. In refusing that request, Phillips contravened CADA's demand that customers receive "the full and equal enjoyment" of public accommodations irrespective of their sexual orientation. Ibid. The different outcomes in the Jack cases and the Phillips case could thus have been justified by a plain reading and neutral application of Colorado law — untainted by any bias against a religious belief.^[*]

I read the Court's opinion as fully consistent with that view. The Court limits its analysis to the reasoning of the state agencies (and Court of Appeals) — "quite apart from whether the [Phillips and Jack] cases should ultimately be distinguished." Ante, at 1727. And the Court itself recognizes the principle that would properly account for a difference in result between those cases. Colorado law, the Court says, "can protect gay persons, just as it can protect other classes of individuals, in acquiring whatever products and services they choose on the same terms and conditions as are offered to other members of the public." Ante, at 1728. For that reason, Colorado can treat a baker who discriminates based on sexual orientation differently from a baker who does not discriminate on that or any other prohibited ground. But only, as the Court rightly says, if the State's decisions are not infected by religious hostility or bias. I accordingly concur.

Justice GORSUCH, with whom Justice ALITO joins, concurring.

In Employment Div., Dept. of Human Resources of Ore. v. Smith, this Court held that a neutral and generally applicable law will usually survive a constitutional free exercise challenge. 494 U.S. 872, 878-879, 110 S.Ct. 1595, 108 L.Ed.2d 876 (1990). Smith remains controversial in many quarters. Compare McConnell, The Origins and Historical Understanding of Free Exercise of Religion, 103 Harv. L. Rev. 1409 (1990), with Hamburger, A Constitutional Right of Religious Exemption: An Historical Perspective, 60 Geo. Wash. L. Rev. 915 (1992). But we know this with certainty: when the government fails to act neutrally toward the free exercise of religion, it tends to run into trouble. Then the government can prevail only if it satisfies strict scrutiny, showing that its restrictions on religion both serve a compelling interest and are narrowly tailored. Church of Lukumi Babalu Aye, Inc. v. Hialeah, 508 U.S. 520, 546, 113 S.Ct. 2217, 124 L.Ed.2d 472 (1993).

Today's decision respects these principles. As the Court explains, the Colorado Civil Rights Commission failed to act neutrally toward Jack Phillips's religious faith. Maybe most notably, the Commission allowed three other bakers to refuse a customer's request that would have required them to violate their secular commitments. Yet it denied the same accommodation to Mr. Phillips when he refused a customer's request that would have required him to violate his religious beliefs. Ante, at 1729-1731. As the Court also explains, the only reason the Commission seemed to supply for its discrimination was that it found Mr. Phillips's religious beliefs "offensive." Ibid. That kind of judgmental dismissal of a sincerely held religious belief is, of course, antithetical to the First Amendment and cannot begin to satisfy strict scrutiny. The Constitution protects not just popular religious exercises from the condemnation of civil authorities. It protects them all. Because the Court documents each of these points carefully and thoroughly, I am pleased to join its opinion in full.

The only wrinkle is this. In the face of so much evidence suggesting hostility toward Mr. Phillips's sincerely held religious beliefs, two of our colleagues have written separately to suggest that the Commission acted neutrally toward his faith when it treated him differently from the other bakers — or that it could have easily done so consistent with the First Amendment. See post, at 1749-1750, and n. 4 (GINSBURG, J., dissenting); ante, at 1732-1734, and n. (KAGAN, J., concurring). But, respectfully, I do not see how we might rescue the Commission from its error.

A full view of the facts helps point the way to the problem. Start with William Jack's case. He approached three bakers and asked them to prepare cakes with messages disapproving same-sex marriage on religious grounds. App. 233, 243, 252. All three bakers refused Mr. Jack's request, stating that they found his request offensive to their secular convictions. Id., at 231, 241, 250. Mr. Jack responded by filing complaints with the Colorado Civil Rights Division. Id., at 230, 240, 249. He pointed to Colorado's Anti-Discrimination Act, which prohibits discrimination against customers in public accommodations because of religious creed, sexual orientation, or certain other traits. See ibid.; Colo. Rev. Stat. § 24-34-601(2)(a) (2017). Mr. Jack argued that the cakes he sought reflected his religious beliefs and that the bakers could not refuse to make them just because they happened to disagree with his beliefs. App. 231, 241, 250. But the Division declined to find a violation, reasoning that the bakers didn't deny Mr. Jack service because of his religious faith but because the cakes he sought were offensive to their own moral convictions. Id., at 237, 247, 255-256. As proof, the Division pointed to the fact that the bakers said they treated Mr. Jack as they would have anyone who requested a cake with similar messages, regardless of their religion. Id., at 230-231, 240, 249. The Division pointed, as well, to the fact that the bakers said they were happy to provide religious persons with other cakes expressing other ideas. Id., at 237, 247, 257. Mr. Jack appealed to the Colorado Civil Rights Commission, but the Commission summarily denied relief. App. to Pet. for Cert. 326a-331a.

Next, take the undisputed facts of Mr. Phillips's case. Charlie Craig and Dave Mullins approached Mr. Phillips about creating a cake to celebrate their wedding. App. 168. Mr. Phillips explained that he could not prepare a cake celebrating a same-sex wedding consistent with his religious faith. Id., at 168-169. But Mr. Phillips offered to make other baked goods for the couple, including cakes celebrating other occasions. Ibid. Later, Mr. Phillips testified without contradiction that he would have refused to create a cake celebrating a same-sex marriage for any customer, regardless of his or her sexual orientation. Id., at 166-167 ("I will not design and create wedding cakes for a same-sex wedding regardless of the sexual orientation of the customer"). And the record reveals that Mr. Phillips apparently refused just such a request from Mr. Craig's mother. Id., at 38-40, 169. (Any suggestion that Mr. Phillips was willing to make a cake celebrating a same-sex marriage for a heterosexual customer or was not willing to sell other products to a homosexual customer, then, would simply mistake the undisputed factual record. See post, at 1749, n. 2 (GINSBURG, J., dissenting); ante, at 1732-1734, and n. (KAGAN, J., concurring)). Nonetheless, the Commission held that Mr. Phillips's conduct violated the Colorado public accommodations law. App. to Pet. for Cert. 56a-58a.

The facts show that the two cases share all legally salient features. In both cases, the effect on the customer was the same: bakers refused service to persons who bore a statutorily protected trait (religious faith or sexual orientation). But in both cases the bakers refused service intending only to honor a personal conviction. To be sure, the bakers knew their conduct promised the effect of leaving a customer in a protected class unserved. But there's no indication the bakers actually intended to refuse service because of a customer's protected characteristic. We know this because all of the bakers explained without contradiction that they would not sell the requested cakes to anyone, while they would sell other cakes to members of the protected class (as well as to anyone else). So, for example, the bakers in the first case would have refused to sell a cake denigrating same-sex marriage to an atheist customer, just as the baker in the second case would have refused to sell a cake celebrating same-sex marriage to a heterosexual customer. And the bakers in the first case were generally happy to sell to persons of faith, just as the baker in the second case was generally happy to sell to gay persons. In both cases, it was the kind of cake, not the kind of customer, that mattered to the bakers.

The distinction between intended and knowingly accepted effects is familiar in life and law. Often the purposeful pursuit of worthy commitments requires us to accept unwanted but entirely foreseeable side effects: so, for example, choosing to spend time with family means the foreseeable loss of time for charitable work, just as opting for more time in the office means knowingly forgoing time at home with loved ones. The law, too, sometimes distinguishes between intended and foreseeable effects. See, e.g., ALI, Model Penal Code §§ 1.13, 2.02(2)(a)(i) (1985); 1 W. LaFave, Substantive Criminal Law § 5.2(b), pp. 460-463 (3d ed. 2018). Other times, of course, the law proceeds differently, either conflating intent and knowledge or presuming intent as a matter of law from a showing of knowledge. See, e.g., Restatement (Second) of Torts § 8A (1965); Radio Officers v. NLRB, 347 U.S. 17, 45, 74 S.Ct. 323, 98 L.Ed. 455 (1954).

The problem here is that the Commission failed to act neutrally by applying a consistent legal rule. In Mr. Jack's case, the Commission chose to distinguish carefully between intended and knowingly accepted effects. Even though the bakers knowingly denied service to someone in a protected class, the Commission found no violation because the bakers only intended to distance themselves from "the offensive nature of the requested message." Craig v. Masterpiece Cakeshop, Inc., 370 P.3d 272, 282, n. 8 (Colo.App.2015); App. 237, 247, 256; App. to Pet. for Cert. 326a-331a; see also Brief for Respondent Colorado Civil Rights Commission 52 ("Businesses are entitled to reject orders for any number of reasons, including because they deem a particular product requested by a customer to be `offensive'"). Yet, in Mr. Phillips's case, the Commission dismissed this very same argument as resting on a "distinction without a difference." App. to Pet. for Cert. 69a. It concluded instead that an "intent to disfavor" a protected class of persons should be "readily ... presumed" from the knowing failure to serve someone who belongs to that class. Id., at 70a. In its judgment, Mr. Phillips's intentions were "inextricably tied to the sexual orientation of the parties involved" and essentially "irrational." Ibid.

Nothing in the Commission's opinions suggests any neutral principle to reconcile these holdings. If Mr. Phillips's objection is "inextricably tied" to a protected class, then the bakers' objection in Mr. Jack's case must be "inextricably tied" to one as well. For just as cakes celebrating same-sex weddings are (usually) requested by persons of a particular sexual orientation, so too are cakes expressing religious opposition to same-sex weddings (usually) requested by persons of particular religious faiths. In both cases the bakers' objection would (usually) result in turning down customers who bear a protected characteristic. In the end, the Commission's decisions simply reduce to this: it presumed that Mr. Phillip harbored an intent to discriminate against a protected class in light of the foreseeable effects of his conduct, but it declined to presume the same intent in Mr. Jack's case even though the effects of the bakers' conduct were just as foreseeable. Underscoring the double standard, a state appellate court said that "no such showing" of actual "animus" — or intent to discriminate against persons in a protected class — was even required in Mr. Phillips's case. 370 P.3d, at 282.

The Commission cannot have it both ways. The Commission cannot slide up and down the mens rea scale, picking a mental state standard to suit its tastes depending on its sympathies. Either actual proof of intent to discriminate on the basis of membership in a protected class is required (as the Commission held in Mr. Jack's case), or it is sufficient to "presume" such intent from the knowing failure to serve someone in a protected class (as the Commission held in Mr. Phillips's case). Perhaps the Commission could have chosen either course as an initial matter. But the one thing it can't do is apply a more generous legal test to secular objections than religious ones. See Church of Lukumi Babalu Aye, 508 U.S., at 543-544, 113 S.Ct. 2217. That is anything but the neutral treatment of religion.

The real explanation for the Commission's discrimination soon comes clear, too — and it does anything but help its cause. This isn't a case where the Commission self-consciously announced a change in its legal rule in all public accommodation cases. Nor is this a case where the Commission offered some persuasive reason for its discrimination that might survive strict scrutiny. Instead, as the Court explains, it appears the Commission wished to condemn Mr. Phillips for expressing just the kind of "irrational" or "offensive ... message" that the bakers in the first case refused to endorse. Ante, at 1730-1731. Many may agree with the Commission and consider Mr. Phillips's religious beliefs irrational or offensive. Some may believe he misinterprets the teachings of his faith. And, to be sure, this Court has held same-sex marriage a matter of constitutional right and various States have enacted laws that preclude discrimination on the basis of sexual orientation. But it is also true that no bureaucratic judgment condemning a sincerely held religious belief as "irrational" or "offensive" will ever survive strict scrutiny under the First Amendment. In this country, the place of secular officials isn't to sit in judgment of religious beliefs, but only to protect their free exercise. Just as it is the "proudest boast of our free speech jurisprudence" that we protect speech that we hate, it must be the proudest boast of our free exercise jurisprudence that we protect religious beliefs that we find offensive. See Matal v. Tam, 582 U.S. ___, ___, 137 S.Ct. 1744, 1764, 198 L.Ed.2d 366 (2017) (plurality opinion) (citing United States v. Schwimmer, 279 U.S. 644, 655, 49 S.Ct. 448, 73 L.Ed. 889 (1929) (Holmes, J., dissenting)). Popular religious views are easy enough to defend. It is in protecting unpopular religious beliefs that we prove this country's commitment to serving as a refuge for religious freedom. See Church of Lukumi Babalu Aye, supra, at 547, 113 S.Ct. 2217; Thomas v. Review Bd. of Indiana Employment Security Div., 450 U.S. 707, 715-716, 101 S.Ct. 1425, 67 L.Ed.2d 624 (1981); Wisconsin v. Yoder, 406 U.S. 205, 223-224, 92 S.Ct. 1526, 32 L.Ed.2d 15 (1972); Cantwell v. Connecticut, 310 U.S. 296, 308-310, 60 S.Ct. 900, 84 L.Ed. 1213 (1940).

Nor can any amount of after-the-fact maneuvering by our colleagues save the Commission. It is no answer, for example, to observe that Mr. Jack requested a cake with text on it while Mr. Craig and Mr. Mullins sought a cake celebrating their wedding without discussing its decoration, and then suggest this distinction makes all the difference. See post, at 1749-1750, and n. 4 (GINSBURG, J., dissenting). It is no answer either simply to slide up a level of generality to redescribe Mr. Phillips's case as involving only a wedding cake like any other, so the fact that Mr. Phillips would make one for some means he must make them for all. See ante, at 1732-1734, and n. (KAGAN, J., concurring). These arguments, too, fail to afford Mr. Phillips's faith neutral respect.

Take the first suggestion first. To suggest that cakes with words convey a message but cakes without words do not — all in order to excuse the bakers in Mr. Jack's case while penalizing Mr. Phillips — is irrational. Not even the Commission or court of appeals purported to rely on that distinction. Imagine Mr. Jack asked only for a cake with a symbolic expression against same-sex marriage rather than a cake bearing words conveying the same idea. Surely the Commission would have approved the bakers' intentional wish to avoid participating in that message too. Nor can anyone reasonably doubt that a wedding cake without words conveys a message. Words or not and whatever the exact design, it celebrates a wedding, and if the wedding cake is made for a same-sex couple it celebrates a same-sex wedding. See 370 P.3d, at 276 (stating that Mr. Craig and Mr. Mullins "requested that Phillips design and create a cake to celebrate their same-sex wedding") (emphasis added). Like "an emblem or flag," a cake for a same-sex wedding is a symbol that serves as "a short cut from mind to mind," signifying approval of a specific "system, idea, [or] institution." West Virginia Bd. of Ed. v. Barnette, 319 U.S. 624, 632, 63 S.Ct. 1178, 87 L.Ed. 1628 (1943). It is precisely that approval that Mr. Phillips intended to withhold in keeping with his religious faith. The Commission denied Mr. Phillips that choice, even as it afforded the bakers in Mr. Jack's case the choice to refuse to advance a message they deemed offensive to their secular commitments. That is not neutral.

Nor would it be proper for this or any court to suggest that a person must be forced to write words rather than create a symbol before his religious faith is implicated. Civil authorities, whether "high or petty," bear no license to declare what is or should be "orthodox" when it comes to religious beliefs, id., at 642, 63 S.Ct. 1178, or whether an adherent has "correctly perceived" the commands of his religion, Thomas, supra, at 716, 101 S.Ct. 1425. Instead, it is our job to look beyond the formality of written words and afford legal protection to any sincere act of faith. See generally Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, Inc., 515 U.S. 557, 569, 115 S.Ct. 2338. 132 L.Ed.2d 487 (1995) ("[T]he Constitution looks beyond written or spoken words as mediums of expression," which are "not a condition of constitutional protection").

The second suggestion fares no better. Suggesting that this case is only about "wedding cakes" — and not a wedding cake celebrating a same-sex wedding — actually points up the problem. At its most general level, the cake at issue in Mr. Phillips's case was just a mixture of flour and eggs; at its most specific level, it was a cake celebrating the same-sex wedding of Mr. Craig and Mr. Mullins. We are told here, however, to apply a sort of Goldilocks rule: describing the cake by its ingredients is too general; understanding it as celebrating a same-sex wedding is too specific; but regarding it as a generic wedding cake is just right. The problem is, the Commission didn't play with the level of generality in Mr. Jack's case in this way. It didn't declare, for example, that because the cakes Mr. Jack requested were just cakes about weddings generally, and all such cakes were the same, the bakers had to produce them. Instead, the Commission accepted the bakers' view that the specific cakes Mr. Jack requested conveyed a message offensive to their convictions and allowed them to refuse service. Having done that there, it must do the same here.

Any other conclusion would invite civil authorities to gerrymander their inquiries based on the parties they prefer. Why calibrate the level of generality in Mr. Phillips's case at "wedding cakes" exactly — and not at, say, "cakes" more generally or "cakes that convey a message regarding same-sex marriage" more specifically? If "cakes" were the relevant level of generality, the Commission would have to order the bakers to make Mr. Jack's requested cakes just as it ordered Mr. Phillips to make the requested cake in his case. Conversely, if "cakes that convey a message regarding same-sex marriage" were the relevant level of generality, the Commission would have to respect Mr. Phillips's refusal to make the requested cake just as it respected the bakers' refusal to make the cakes Mr. Jack requested. In short, when the same level of generality is applied to both cases, it is no surprise that the bakers have to be treated the same. Only by adjusting the dials just right — fine-tuning the level of generality up or down for each case based solely on the identity of the parties and the substance of their views — can you engineer the Commission's outcome, handing a win to Mr. Jack's bakers but delivering a loss to Mr. Phillips. Such results-driven reasoning is improper. Neither the Commission nor this Court may apply a more specific level of generality in Mr. Jack's case (a cake that conveys a message regarding same-sex marriage) while applying a higher level of generality in Mr. Phillips's case (a cake that conveys no message regarding same-sex marriage). Of course, under Smith a vendor cannot escape a public accommodations law just because his religion frowns on it. But for any law to comply with the First Amendment and Smith, it must be applied in a manner that treats religion with neutral respect. That means the government must apply the same level of generality across cases — and that did not happen here.

There is another problem with sliding up the generality scale: it risks denying constitutional protection to religious beliefs that draw distinctions more specific than the government's preferred level of description. To some, all wedding cakes may appear indistinguishable. But to Mr. Phillips that is not the case — his faith teaches him otherwise. And his religious beliefs are entitled to no less respectful treatment than the bakers' secular beliefs in Mr. Jack's case. This Court has explained these same points "[r]epeatedly and in many different contexts" over many years. Smith, 494 U.S. at 887, 110 S.Ct. 1595. For example, in Thomas a faithful Jehovah's Witness and steel mill worker agreed to help manufacture sheet steel he knew might find its way into armaments, but he was unwilling to work on a fabrication line producing tank turrets. 450 U.S., at 711, 101 S.Ct. 1425. Of course, the line Mr. Thomas drew wasn't the same many others would draw and it wasn't even the same line many other members of the same faith would draw. Even so, the Court didn't try to suggest that making steel is just making steel. Or that to offend his religion the steel needed to be of a particular kind or shape. Instead, it recognized that Mr. Thomas alone was entitled to define the nature of his religious commitments — and that those commitments, as defined by the faithful adherent, not a bureaucrat or judge, are entitled to protection under the First Amendment. Id., at 714-716, 101 S.Ct. 1425; see also United States v. Lee, 455 U.S. 252, 254-255, 102 S.Ct. 1051, 71 L.Ed.2d 127 (1982); Smith, supra, at 887, 110 S.Ct. 1595(collecting authorities). It is no more appropriate for the United States Supreme Court to tell Mr. Phillips that a wedding cake is just like any other — without regard to the religious significance his faith may attach to it — than it would be for the Court to suggest that for all persons sacramental bread is just bread or a kippah is just a cap.

Only one way forward now remains. Having failed to afford Mr. Phillips's religious objections neutral consideration and without any compelling reason for its failure, the Commission must afford him the same result it afforded the bakers in Mr. Jack's case. The Court recognizes this by reversing the judgment below and holding that the Commission's order "must be set aside." Ante, at 1732. Maybe in some future rulemaking or case the Commission could adopt a new "knowing" standard for all refusals of service and offer neutral reasons for doing so. But, as the Court observes, "[h]owever later cases raising these or similar concerns are resolved in the future, ... the rulings of the Commission and of the state court that enforced the Commission's order" in this case "must be invalidated." Ibid. Mr. Phillips has conclusively proven a First Amendment violation and, after almost six years facing unlawful civil charges, he is entitled to judgment.

Justice THOMAS, with whom Justice GORSUCH joins, concurring in part and concurring in the judgment.

I agree that the Colorado Civil Rights Commission (Commission) violated Jack Phillips' right to freely exercise his religion. As Justice GORSUCH explains, the Commission treated Phillips' case differently from a similar case involving three other bakers, for reasons that can only be explained by hostility toward Phillips' religion. See ante, at 1734-1737 (concurring opinion). The Court agrees that the Commission treated Phillips differently, and it points out that some of the Commissioners made comments disparaging Phillips' religion. See ante, at 1728-1731. Although the Commissioners' comments are certainly disturbing, the discriminatory application of Colorado's public-accommodations law is enough on its own to violate Phillips' rights. To the extent the Court agrees, I join its opinion.

While Phillips rightly prevails on his free-exercise claim, I write separately to address his free-speech claim. The Court does not address this claim because it has some uncertainties about the record. See ante, at 1723-1724. Specifically, the parties dispute whether Phillips refused to create a custom wedding cake for the individual respondents, or whether he refused to sell them any wedding cake (including a premade one). But the Colorado Court of Appeals resolved this factual dispute in Phillips' favor. The court described his conduct as a refusal to "design and create a cake to celebrate [a] same-sex wedding." Craig v. Masterpiece Cakeshop, Inc., 370 P.3d 272, 276 (2015); see also id., at 286 ("designing and selling a wedding cake"); id., at 283 ("refusing to create a wedding cake"). And it noted that the Commission's order required Phillips to sell "`any product [he] would sell to heterosexual couples,'" including custom wedding cakes. Id., at 286 (emphasis added).

Even after describing his conduct this way, the Court of Appeals concluded that Phillips' conduct was not expressive and was not protected speech. It reasoned that an outside observer would think that Phillips was merely complying with Colorado's public-accommodations law, not expressing a message, and that Phillips could post a disclaimer to that effect. This reasoning flouts bedrock principles of our free-speech jurisprudence and would justify virtually any law that compels individuals to speak. It should not pass without comment.

I

The First Amendment, applicable to the States through the Fourteenth Amendment, prohibits state laws that abridge the "freedom of speech." When interpreting this command, this Court has distinguished between regulations of speech and regulations of conduct. The latter generally do not abridge the freedom of speech, even if they impose "incidental burdens" on expression. Sorrell v. IMS Health Inc., 564 U.S. 552, 567, 131 S.Ct. 2653, 180 L.Ed.2d 544 (2011). As the Court explains today, public-accommodations laws usually regulate conduct. Ante,at 1727-1728 (citing Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, Inc., 515 U.S. 557, 572, 115 S.Ct. 2338, 132 L.Ed.2d 487 (1995)). "[A]s a general matter," public-accommodations laws do not "target speech" but instead prohibit "the act of discriminating against individuals in the provision of publicly available goods, privileges, and services." Id., at 572, 115 S.Ct. 2338 (emphasis added).

Although public-accommodations laws generally regulate conduct, particular applications of them can burden protected speech. When a public-accommodations law "ha[s] the effect of declaring ... speech itself to be the public accommodation," the First Amendment applies with full force. Id., at 573, 115 S.Ct. 2338; accord, Boy Scouts of America v. Dale, 530 U.S. 640, 657-659, 120 S.Ct. 2446, 147 L.Ed.2d 554 (2000). In Hurley, for example, a Massachusetts public-accommodations law prohibited "`any distinction, discrimination or restriction on account of ... sexual orientation ... relative to the admission of any person to, or treatment in any place of public accommodation.'" 515 U.S., at 561, 115 S.Ct. 2338(quoting Mass. Gen. Laws § 272:98 (1992); ellipsis in original). When this law required the sponsor of a St. Patrick's Day parade to include a parade unit of gay, lesbian, and bisexual Irish-Americans, the Court unanimously held that the law violated the sponsor's right to free speech. Parades are "a form of expression," this Court explained, and the application of the public-accommodations law "alter[ed] the expressive content" of the parade by forcing the sponsor to add a new unit. 515 U.S., at 568, 572-573, 115 S.Ct. 2338. The addition of that unit compelled the organizer to "bear witness to the fact that some Irish are gay, lesbian, or bisexual"; "suggest ... that people of their sexual orientation have as much claim to unqualified social acceptance as heterosexuals"; and imply that their participation "merits celebration." Id., at 574, 115 S.Ct. 2338. While this Court acknowledged that the unit's exclusion might have been "misguided, or even hurtful," ibid., it rejected the notion that governments can mandate "thoughts and statements acceptable to some groups or, indeed, all people" as the "antithesis" of free speech, id., at 579, 115 S.Ct. 2338; accord, Dale, supra, at 660-661, 120 S.Ct. 2446.

The parade in Hurley was an example of what this Court has termed "expressive conduct." See 515 U.S., at 568-569, 115 S.Ct. 2338. This Court has long held that "the Constitution looks beyond written or spoken words as mediums of expression," id., at 569, 115 S.Ct. 2338, and that "[s]ymbolism is a primitive but effective way of communicating ideas," West Virginia Bd. of Ed. v. Barnette, 319 U.S. 624, 632, 63 S.Ct. 1178, 87 L.Ed. 1628 (1943). Thus, a person's "conduct may be `sufficiently imbued with elements of communication to fall within the scope of the First and Fourteenth Amendments.'" Texas v. Johnson, 491 U.S. 397, 404, 109 S.Ct. 2533, 105 L.Ed.2d 342 (1989). Applying this principle, the Court has recognized a wide array of conduct that can qualify as expressive, including nude dancing, burning the American flag, flying an upside-down American flag with a taped-on peace sign, wearing a military uniform, wearing a black armband, conducting a silent sit-in, refusing to salute the American flag, and flying a plain red flag.^[1]

Of course, conduct does not qualify as protected speech simply because "the person engaging in [it] intends thereby to express an idea." United States v. O'Brien, 391 U.S. 367, 376, 88 S.Ct. 1673, 20 L.Ed.2d 672 (1968). To determine whether conduct is sufficiently expressive, the Court asks whether it was "intended to be communicative" and, "in context, would reasonably be understood by the viewer to be communicative." Clark v. Community for Creative Non-Violence, 468 U.S. 288, 294, 104 S.Ct. 3065, 82 L.Ed.2d 221 (1984). But a "`particularized message'" is not required, or else the freedom of speech "would never reach the unquestionably shielded painting of Jackson Pollock, music of Arnold Schöenberg, or Jabberwocky verse of Lewis Carroll." Hurley, 515 U.S., at 569, 115 S.Ct. 2338.

Once a court concludes that conduct is expressive, the Constitution limits the government's authority to restrict or compel it. "[O]ne important manifestation of the principle of free speech is that one who chooses to speak may also decide `what not to say'" and "tailor" the content of his message as he sees fit. Id., at 573, 115 S.Ct. 2338 (quoting Pacific Gas & Elec. Co. v. Public Util. Comm'n of Cal., 475 U.S. 1, 16, 106 S.Ct. 903, 89 L.Ed.2d 1 (1986) (plurality opinion)). This rule "applies not only to expressions of value, opinion, or endorsement, but equally to statements of fact the speaker would rather avoid." Hurley, supra, at 573, 115 S.Ct. 2338. And it "makes no difference" whether the government is regulating the "creati[on], distributi[on], or consum[ption]" of the speech. Brown v. Entertainment Merchants Assn., 564 U.S. 786, 792, n. 1, 131 S.Ct. 2729, 180 L.Ed.2d 708 (2011).

II

A

The conduct that the Colorado Court of Appeals ascribed to Phillips — creating and designing custom wedding cakes — is expressive. Phillips considers himself an artist. The logo for Masterpiece Cakeshop is an artist's paint palette with a paintbrush and baker's whisk. Behind the counter Phillips has a picture that depicts him as an artist painting on a canvas. Phillips takes exceptional care with each cake that he creates — sketching the design out on paper, choosing the color scheme, creating the frosting and decorations, baking and sculpting the cake, decorating it, and delivering it to the wedding. Examples of his creations can be seen on Masterpiece's website. See http://masterpiececakes.com/wedding-cakes (as last visited June 1, 2018).

Phillips is an active participant in the wedding celebration. He sits down with each couple for a consultation before he creates their custom wedding cake. He discusses their preferences, their personalities, and the details of their wedding to ensure that each cake reflects the couple who ordered it. In addition to creating and delivering the cake — a focal point of the wedding celebration — Phillips sometimes stays and interacts with the guests at the wedding. And the guests often recognize his creations and seek his bakery out afterward. Phillips also sees the inherent symbolism in wedding cakes. To him, a wedding cake inherently communicates that "a wedding has occurred, a marriage has begun, and the couple should be celebrated." App. 162.

Wedding cakes do, in fact, communicate this message. A tradition from Victorian England that made its way to America after the Civil War, "[w]edding cakes are so packed with symbolism that it is hard to know where to begin." M. Krondl, Sweet Invention: A History of Dessert 321 (2011) (Krondl); see also ibid. (explaining the symbolism behind the color, texture, flavor, and cutting of the cake). If an average person walked into a room and saw a white, multi-tiered cake, he would immediately know that he had stumbled upon a wedding. The cake is "so standardised and inevitable a part of getting married that few ever think to question it." Charsley, Interpretation and Custom: The Case of the Wedding Cake, 22 Man 93, 95 (1987). Almost no wedding, no matter how spartan, is missing the cake. See id., at 98. "A whole series of events expected in the context of a wedding would be impossible without it: an essential photograph, the cutting, the toast, and the distribution of both cake and favours at the wedding and afterwards." Ibid.Although the cake is eventually eaten, that is not its primary purpose. See id., at 95 ("It is not unusual to hear people declaring that they do not like wedding cake, meaning that they do not like to eat it. This includes people who are, without question, having such cakes for their weddings"); id., at 97 ("Nothing is made of the eating itself"); Krondl 320-321 (explaining that wedding cakes have long been described as "inedible"). The cake's purpose is to mark the beginning of a new marriage and to celebrate the couple.^[2]

Accordingly, Phillips' creation of custom wedding cakes is expressive. The use of his artistic talents to create a well-recognized symbol that celebrates the beginning of a marriage clearly communicates a message — certainly more so than nude dancing, Barnes v. Glen Theatre, Inc., 501 U.S. 560, 565-566, 111 S.Ct. 2456, 115 L.Ed.2d 504 (1991), or flying a plain red flag, Stromberg v. California, 283 U.S. 359, 369, 51 S.Ct. 532, 75 L.Ed. 1117 (1931).^[3] By forcing Phillips to create custom wedding cakes for same-sex weddings, Colorado's public-accommodations law "alter[s] the expressive content" of his message. Hurley, 515 U.S., at 572, 115 S.Ct. 2338. The meaning of expressive conduct, this Court has explained, depends on "the context in which it occur[s]." Johnson, 491 U.S., at 405, 109 S.Ct. 2533. Forcing Phillips to make custom wedding cakes for same-sex marriages requires him to, at the very least, acknowledge that same-sex weddings are "weddings" and suggest that they should be celebrated — the precise message he believes his faith forbids. The First Amendment prohibits Colorado from requiring Phillips to "bear witness to [these] fact[s]," Hurley, 515 U.S., at 574, 115 S.Ct. 2338, or to "affir[m] ... a belief with which [he] disagrees," id., at 573, 115 S.Ct. 2338.

B

The Colorado Court of Appeals nevertheless concluded that Phillips' conduct was "not sufficiently expressive" to be protected from state compulsion. 370 P.3d, at 283. It noted that a reasonable observer would not view Phillips' conduct as "an endorsement of same-sex marriage," but rather as mere "compliance" with Colorado's public-accommodations law. Id., at 286-287 (citing Rumsfeld v. Forum for Academic and Institutional Rights, Inc., 547 U.S. 47, 64-65, 126 S.Ct. 1297, 164 L.Ed.2d 156 (2006) (FAIR); Rosenberger v. Rector and Visitors of Univ. of Va.,515 U.S. 819, 841-842, 115 S.Ct. 2510, 132 L.Ed.2d 700 (1995); PruneYard Shopping Center v. Robins, 447 U.S. 74, 76-78, 100 S.Ct. 2035, 64 L.Ed.2d 741 (1980)). It also emphasized that Masterpiece could "disassociat[e]" itself from same-sex marriage by posting a "disclaimer" stating that Colorado law "requires it not to discriminate" or that "the provision of its services does not constitute an endorsement." 370 P.3d, at 288. This reasoning is badly misguided.

1

The Colorado Court of Appeals was wrong to conclude that Phillips' conduct was not expressive because a reasonable observer would think he is merely complying with Colorado's public-accommodations law. This argument would justify any law that compelled protected speech. And, this Court has never accepted it. From the beginning, this Court's compelled-speech precedents have rejected arguments that "would resolve every issue of power in favor of those in authority." Barnette,319 U.S., at 636, 63 S.Ct. 1178. Hurley, for example, held that the application of Massachusetts' public-accommodations law "requir[ed] [the organizers] to alter the expressive content of their parade." 515 U.S., at 572-573, 115 S.Ct. 2338. It did not hold that reasonable observers would view the organizers as merely complying with Massachusetts' public-accommodations law.

The decisions that the Colorado Court of Appeals cited for this proposition are far afield. It cited three decisions where groups objected to being forced to provide a forum for a third party's speech. See FAIR, supra, at 51, 126 S.Ct. 1297 (law school refused to allow military recruiters on campus); Rosenberger, supra,at 822-823, 115 S.Ct. 2510 (public university refused to provide funds to a religious student paper); PruneYard, supra, at 77, 100 S.Ct. 2035 (shopping center refused to allow individuals to collect signatures on its property). In those decisions, this Court rejected the argument that requiring the groups to provide a forum for third-party speech also required them to endorse that speech. See FAIR, supra, at 63-65, 126 S.Ct. 1297; Rosenberger, supra, at 841-842, 115 S.Ct. 2510; PruneYard, supra, at 85-88, 100 S.Ct. 2035. But these decisions do not suggest that the government can force speakers to alter their own message. See Pacific Gas & Elec., 475 U.S., at 12, 106 S.Ct. 903 ("Notably absent from PruneYard was any concern that access... might affect the shopping center owner's exercise of his own right to speak"); Hurley, supra, at 580, 115 S.Ct. 2338 (similar).

The Colorado Court of Appeals also noted that Masterpiece is a "for-profit bakery" that "charges its customers." 370 P.3d, at 287. But this Court has repeatedly rejected the notion that a speaker's profit motive gives the government a freer hand in compelling speech. See Pacific Gas & Elec., supra, at 8, 16, 106 S.Ct. 903(collecting cases); Virginia Bd. of Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 U.S. 748, 761, 96 S.Ct. 1817, 48 L.Ed.2d 346 (1976) (deeming it "beyond serious dispute" that "[s]peech... is protected even though it is carried in a form that is `sold' for profit"). Further, even assuming that most for-profit companies prioritize maximizing profits over communicating a message, that is not true for Masterpiece Cakeshop. Phillips routinely sacrifices profits to ensure that Masterpiece operates in a way that represents his Christian faith. He is not open on Sundays, he pays his employees a higher-than-average wage, and he loans them money in times of need. Phillips also refuses to bake cakes containing alcohol, cakes with racist or homophobic messages, cakes criticizing God, and cakes celebrating Halloween — even though Halloween is one of the most lucrative seasons for bakeries. These efforts to exercise control over the messages that Masterpiece sends are still more evidence that Phillips' conduct is expressive. See Miami Herald Publishing Co. v. Tornillo, 418 U.S. 241, 256-258, 94 S.Ct. 2831, 41 L.Ed.2d 730 (1974); Walker v. Texas Div., Sons of Confederate Veterans, Inc., 576 U.S. ___, ___, 135 S.Ct. 2239, 2251, 192 L.Ed.2d 274 (2015).

2

The Colorado Court of Appeals also erred by suggesting that Phillips could simply post a disclaimer, disassociating Masterpiece from any support for same-sex marriage. Again, this argument would justify any law compelling speech. And again, this Court has rejected it. We have described similar arguments as "beg[ging] the core question." Tornillo, supra, at 256, 94 S.Ct. 2831. Because the government cannot compel speech, it also cannot "require speakers to affirm in one breath that which they deny in the next." Pacific Gas & Elec., 475 U.S., at 16, 106 S.Ct. 903; see also id., at 15, n. 11, 106 S.Ct. 903 (citing PruneYard, 447 U.S., at 99, 100 S.Ct. 2035 (Powell, J., concurring in part and concurring in judgment)). States cannot put individuals to the choice of "be[ing] compelled to affirm someone else's belief" or "be[ing] forced to speak when [they] would prefer to remain silent." Id., at 99, 100 S.Ct. 2035.

III

Because Phillips' conduct (as described by the Colorado Court of Appeals) was expressive, Colorado's public-accommodations law cannot penalize it unless the law withstands strict scrutiny. Although this Court sometimes reviews regulations of expressive conduct under the more lenient test articulated in O'Brien,^[4] that test does not apply unless the government would have punished the conduct regardless of its expressive component. See, e.g., Barnes, 501 U.S., at 566-572, 111 S.Ct. 2456 (applying O'Brien to evaluate the application of a general nudity ban to nude dancing); Clark, 468 U.S., at 293, 104 S.Ct. 3065(applying O'Brien to evaluate the application of a general camping ban to a demonstration in the park). Here, however, Colorado would not be punishing Phillips if he refused to create any custom wedding cakes; it is punishing him because he refuses to create custom wedding cakes that express approval of same-sex marriage. In cases like this one, our precedents demand "`the most exacting scrutiny.'" Johnson, 491 U.S., at 412, 109 S.Ct. 2533; accord, Holder v. Humanitarian Law Project, 561 U.S. 1, 28, 130 S.Ct. 2705, 177 L.Ed.2d 355 (2010).

The Court of Appeals did not address whether Colorado's law survives strict scrutiny, and I will not do so in the first instance. There is an obvious flaw, however, with one of the asserted justifications for Colorado's law. According to the individual respondents, Colorado can compel Phillips' speech to prevent him from "`denigrat[ing] the dignity'" of same-sex couples, "`assert[ing] [their] inferiority,'" and subjecting them to "`humiliation, frustration, and embarrassment.'" Brief for Respondents Craig et al. 39 (quoting J.E.B. v. Alabama ex rel. T. B., 511 U.S. 127, 142, 114 S.Ct. 1419, 128 L.Ed.2d 89 (1994); Heart of Atlanta Motel, Inc. v. United States, 379 U.S. 241, 292, 85 S.Ct. 348, 13 L.Ed.2d 258 (1964) (Goldberg, J., concurring)). These justifications are completely foreign to our free-speech jurisprudence.

States cannot punish protected speech because some group finds it offensive, hurtful, stigmatic, unreasonable, or undignified. "If there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable." Johnson, supra, at 414, 109 S.Ct. 2533. A contrary rule would allow the government to stamp out virtually any speech at will. See Morse v. Frederick,551 U.S. 393, 409, 127 S.Ct. 2618, 168 L.Ed.2d 290 (2007) ("After all, much political and religious speech might be perceived as offensive to some"). As the Court reiterates today, "it is not ... the role of the State or its officials to prescribe what shall be offensive." Ante, at 1731. "`Indeed, if it is the speaker's opinion that gives offense, that consequence is a reason for according it constitutional protection.'" Hustler Magazine, Inc. v. Falwell, 485 U.S. 46, 55, 108 S.Ct. 876, 99 L.Ed.2d 41 (1988); accord, Johnson, supra, at 408-409, 109 S.Ct. 2533. If the only reason a public-accommodations law regulates speech is "to produce a society free of ... biases" against the protected groups, that purpose is "decidedly fatal" to the law's constitutionality, "for it amounts to nothing less than a proposal to limit speech in the service of orthodox expression." Hurley, 515 U.S., at 578-579, 115 S.Ct. 2338; see also United States v. Playboy Entertainment Group, Inc., 529 U.S. 803, 813, 120 S.Ct. 1878, 146 L.Ed.2d 865 (2000) ("Where the designed benefit of a content-based speech restriction is to shield the sensibilities of listeners, the general rule is that the right of expression prevails"). "[A] speech burden based on audience reactions is simply government hostility ... in a different guise." Matal v. Tam, 582 U.S. ___, ___, 137 S.Ct. 1744, 1767, 198 L.Ed.2d 366 (2017) (KENNEDY, J., concurring in part and concurring in judgment).

Consider what Phillips actually said to the individual respondents in this case. After sitting down with them for a consultation, Phillips told the couple, "`I'll make your birthday cakes, shower cakes, sell you cookies and brownies, I just don't make cakes for same sex weddings.'" App. 168. It is hard to see how this statement stigmatizes gays and lesbians more than blocking them from marching in a city parade, dismissing them from the Boy Scouts, or subjecting them to signs that say "God Hates Fags" — all of which this Court has deemed protected by the First Amendment. See Hurley, supra, at 574-575, 115 S.Ct. 2338; Dale, 530 U.S., at 644, 120 S.Ct. 2446; Snyder v. Phelps, 562 U.S. 443, 448, 131 S.Ct. 1207, 179 L.Ed.2d 172 (2011). Moreover, it is also hard to see how Phillips' statement is worse than the racist, demeaning, and even threatening speech toward blacks that this Court has tolerated in previous decisions. Concerns about "dignity" and "stigma" did not carry the day when this Court affirmed the right of white supremacists to burn a 25-foot cross, Virginia v. Black, 538 U.S. 343, 123 S.Ct. 1536, 155 L.Ed.2d 535 (2003); conduct a rally on Martin Luther King Jr.'s birthday, Forsyth County v. Nationalist Movement, 505 U.S. 123, 112 S.Ct. 2395, 120 L.Ed.2d 101 (1992); or circulate a film featuring hooded Klan members who were brandishing weapons and threatening to "`Bury the niggers,'" Brandenburg v. Ohio,395 U.S. 444, 446, n. 1, 89 S.Ct. 1827, 23 L.Ed.2d 430 (1969) (per curiam).

Nor does the fact that this Court has now decided Obergefell v. Hodges, 576 U.S. ___, 135 S.Ct. 2584, 192 L.Ed.2d 609 (2015), somehow diminish Phillips' right to free speech. "It is one thing ... to conclude that the Constitution protects a right to same-sex marriage; it is something else to portray everyone who does not share [that view] as bigoted" and unentitled to express a different view. Id., at ___, 135 S.Ct., at 2626 (ROBERTS, C.J., dissenting). This Court is not an authority on matters of conscience, and its decisions can (and often should) be criticized. The First Amendment gives individuals the right to disagree about the correctness of Obergefell and the morality of same-sex marriage. Obergefell itself emphasized that the traditional understanding of marriage "long has been held — and continues to be held — in good faith by reasonable and sincere people here and throughout the world." Id., at ___, 135 S.Ct., at 2594 (majority opinion). If Phillips' continued adherence to that understanding makes him a minority after Obergefell,that is all the more reason to insist that his speech be protected. See Dale, supra,at 660, 120 S.Ct. 2446 ("[T]he fact that [the social acceptance of homosexuality] may be embraced and advocated by increasing numbers of people is all the more reason to protect the First Amendment rights of those who wish to voice a different view").

* * *

In Obergefell, I warned that the Court's decision would "inevitabl[y] ... come into conflict" with religious liberty, "as individuals... are confronted with demands to participate in and endorse civil marriages between same-sex couples." 576 U.S., at ___, 135 S.Ct., at 2638 (dissenting opinion). This case proves that the conflict has already emerged. Because the Court's decision vindicates Phillips' right to free exercise, it seems that religious liberty has lived to fight another day. But, in future cases, the freedom of speech could be essential to preventing Obergefellfrom being used to "stamp out every vestige of dissent" and "vilify Americans who are unwilling to assent to the new orthodoxy." Id., at ___, 135 S.Ct., at 2642 (ALITO, J., dissenting). If that freedom is to maintain its vitality, reasoning like the Colorado Court of Appeals' must be rejected.

Justice GINSBURG, with whom Justice SOTOMAYOR joins, dissenting.

There is much in the Court's opinion with which I agree. "[I]t is a general rule that [religious and philosophical] objections do not allow business owners and other actors in the economy and in society to deny protected persons equal access to goods and services under a neutral and generally applicable public accommodations law." Ante, at 1727. "Colorado law can protect gay persons, just as it can protect other classes of individuals, in acquiring whatever products and services they choose on the same terms and conditions as are offered to other members of the public." Ante, at 1727-1728. "[P]urveyors of goods and services who object to gay marriages for moral and religious reasons [may not] put up signs saying `no goods or services will be sold if they will be used for gay marriages.'" Ante, at 1728-1729. Gay persons may be spared from "indignities when they seek goods and services in an open market." Ante, at 1732.^[1] I strongly disagree, however, with the Court's conclusion that Craig and Mullins should lose this case. All of the above-quoted statements point in the opposite direction.

The Court concludes that "Phillips' religious objection was not considered with the neutrality that the Free Exercise Clause requires." Ante, at 1731. This conclusion rests on evidence said to show the Colorado Civil Rights Commission's (Commission) hostility to religion. Hostility is discernible, the Court maintains, from the asserted "disparate consideration of Phillips' case compared to the cases of" three other bakers who refused to make cakes requested by William Jack, an amicus here. Ante, at 1732. The Court also finds hostility in statements made at two public hearings on Phillips' appeal to the Commission. Ante, at 1728-1730. The different outcomes the Court features do not evidence hostility to religion of the kind we have previously held to signal a free-exercise violation, nor do the comments by one or two members of one of the four decisionmaking entities considering this case justify reversing the judgment below.

I

On March 13, 2014 — approximately three months after the ALJ ruled in favor of the same-sex couple, Craig and Mullins, and two months before the Commission heard Phillips' appeal from that decision — William Jack visited three Colorado bakeries. His visits followed a similar pattern. He requested two cakes

"made to resemble an open Bible. He also requested that each cake be decorated with Biblical verses. [He] requested that one of the cakes include an image of two groomsmen, holding hands, with a red `X' over the image. On one cake, he requested [on] one side[,] ... `God hates sin. Psalm 45:7' and on the opposite side of the cake `Homosexuality is a detestable sin. Leviticus 18:2.' On the second cake, [the one] with the image of the two groomsmen covered by a red `X' [Jack] requested [these words]: `God loves sinners' and on the other side `While we were yet sinners Christ died for us. Romans 5:8.'" App. to Pet. for Cert. 319a; see id., at 300a, 310a.

In contrast to Jack, Craig and Mullins simply requested a wedding cake: They mentioned no message or anything else distinguishing the cake they wanted to buy from any other wedding cake Phillips would have sold.

One bakery told Jack it would make cakes in the shape of Bibles, but would not decorate them with the requested messages; the owner told Jack her bakery "does not discriminate" and "accept[s] all humans." Id., at 301a (internal quotation marks omitted). The second bakery owner told Jack he "had done open Bibles and books many times and that they look amazing," but declined to make the specific cakes Jack described because the baker regarded the messages as "hateful." Id., at 310a (internal quotation marks omitted). The third bakery, according to Jack, said it would bake the cakes, but would not include the requested message. Id., at 319a.^[2]

Jack filed charges against each bakery with the Colorado Civil Rights Division (Division). The Division found no probable cause to support Jack's claims of unequal treatment and denial of goods or services based on his Christian religious beliefs. Id., at 297a, 307a, 316a. In this regard, the Division observed that the bakeries regularly produced cakes and other baked goods with Christian symbols and had denied other customer requests for designs demeaning people whose dignity the Colorado Antidiscrimination Act (CADA) protects. See id., at 305a, 314a, 324a. The Commission summarily affirmed the Division's no-probable-cause finding. See id., at 326a-331a.

The Court concludes that "the Commission's consideration of Phillips' religious objection did not accord with its treatment of [the other bakers'] objections." Ante, at 1730. See also ante, at 1736-1737 (GORSUCH, J., concurring). But the cases the Court aligns are hardly comparable. The bakers would have refused to make a cake with Jack's requested message for any customer, regardless of his or her religion. And the bakers visited by Jack would have sold him any baked goods they would have sold anyone else. The bakeries' refusal to make Jack cakes of a kind they would not make for any customer scarcely resembles Phillips' refusal to serve Craig and Mullins: Phillips would notsell to Craig and Mullins, for no reason other than their sexual orientation, a cake of the kind he regularly sold to others. When a couple contacts a bakery for a wedding cake, the product they are seeking is a cake celebrating their wedding — not a cake celebrating heterosexual weddings or same-sex weddings — and that is the service Craig and Mullins were denied. Cf. ante, at 1735-1736, 1738-1739 (GORSUCH, J., concurring). Colorado, the Court does not gainsay, prohibits precisely the discrimination Craig and Mullins encountered. See supra, at 1748. Jack, on the other hand, suffered no service refusal on the basis of his religion or any other protected characteristic. He was treated as any other customer would have been treated — no better, no worse.^[3]

The fact that Phillips might sell other cakes and cookies to gay and lesbian customers^[4] was irrelevant to the issue Craig and Mullins' case presented. What matters is that Phillips would not provide a good or service to a same-sex couple that he would provide to a heterosexual couple. In contrast, the other bakeries' sale of other goods to Christian customers was relevant: It shows that there were no goods the bakeries would sell to a non-Christian customer that they would refuse to sell to a Christian customer. Cf. ante, at 1730.

Nor was the Colorado Court of Appeals' "difference in treatment of these two instances... based on the government's own assessment of offensiveness." Ante,at 1731. Phillips declined to make a cake he found offensive where the offensiveness of the product was determined solely by the identity of the customer requesting it. The three other bakeries declined to make cakes where their objection to the product was due to the demeaning message the requested product would literally display. As the Court recognizes, a refusal "to design a special cake with words or images... might be different from a refusal to sell any cake at all." Ante, at 1723.^[5] The Colorado Court of Appeals did not distinguish Phillips and the other three bakeries based simply on its or the Division's finding that messages in the cakes Jack requested were offensive while any message in a cake for Craig and Mullins was not. The Colorado court distinguished the cases on the ground that Craig and Mullins were denied service based on an aspect of their identity that the State chose to grant vigorous protection from discrimination. See App. to Pet. for Cert. 20a, n. 8 ("The Division found that the bakeries did not refuse [Jack's] request because of his creed, but rather because of the offensive nature of the requested message.... [T]here was no evidence that the bakeries based their decisions on [Jack's] religion... [whereas Phillips] discriminat[ed] on the basis of sexual orientation."). I do not read the Court to suggest that the Colorado Legislature's decision to include certain protected characteristics in CADA is an impermissible government prescription of what is and is not offensive. Cf. ante, at 1727-1728. To repeat, the Court affirms that "Colorado law can protect gay persons, just as it can protect other classes of individuals, in acquiring whatever products and services they choose on the same terms and conditions as are offered to other members of the public." Ante, at 1728.

II

Statements made at the Commission's public hearings on Phillips' case provide no firmer support for the Court's holding today. Whatever one may think of the statements in historical context, I see no reason why the comments of one or two Commissioners should be taken to overcome Phillips' refusal to sell a wedding cake to Craig and Mullins. The proceedings involved several layers of independent decisionmaking, of which the Commission was but one. See App. to Pet. for Cert. 5a-6a. First, the Division had to find probable cause that Phillips violated CADA. Second, the ALJ entertained the parties' cross-motions for summary judgment. Third, the Commission heard Phillips' appeal. Fourth, after the Commission's ruling, the Colorado Court of Appeals considered the case de novo. What prejudice infected the determinations of the adjudicators in the case before and after the Commission? The Court does not say. Phillips' case is thus far removed from the only precedent upon which the Court relies, Church of Lukumi Babalu Aye, Inc. v. Hialeah, 508 U.S. 520, 113 S.Ct. 2217, 124 L.Ed.2d 472 (1993), where the government action that violated a principle of religious neutrality implicated a sole decisionmaking body, the city council, see id., at 526-528, 113 S.Ct. 2217.

* * *

For the reasons stated, sensible application of CADA to a refusal to sell any wedding cake to a gay couple should occasion affirmance of the Colorado Court of Appeals' judgment. I would so rule.

[*] The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Timber & Lumber Co., 200 U.S. 321, 337, 26 S.Ct. 282, 50 L.Ed. 499.

[*] Justice GORSUCH disagrees. In his view, the Jack cases and the Phillips case must be treated the same because the bakers in all those cases "would not sell the requested cakes to anyone." Post, at 1735. That description perfectly fits the Jack cases — and explains why the bakers there did not engage in unlawful discrimination. But it is a surprising characterization of the Phillips case, given that Phillips routinely sells wedding cakes to opposite-sex couples. Justice GORSUCH can make the claim only because he does not think a "wedding cake" is the relevant product. As Justice GORSUCH sees it, the product that Phillips refused to sell here — and would refuse to sell to anyone — was a "cake celebrating same-sex marriage." Ibid.; see post, at 1735, 1736-1737, 1737-1738. But that is wrong. The cake requested was not a special "cake celebrating same-sex marriage." It was simply a wedding cake — one that (like other standard wedding cakes) is suitable for use at same-sex and opposite-sex weddings alike. See ante, at 1724-1725 (majority opinion) (recounting that Phillips did not so much as discuss the cake's design before he refused to make it). And contrary to Justice GORSUCH's view, a wedding cake does not become something different whenever a vendor like Phillips invests its sale to particular customers with "religious significance." Post, at 1728. As this Court has long held, and reaffirms today, a vendor cannot escape a public accommodations law because his religion disapproves selling a product to a group of customers, whether defined by sexual orientation, race, sex, or other protected trait. See Newman v. Piggie Park Enterprises, Inc., 390 U.S. 400, 402, n. 5, 88 S.Ct. 964, 19 L.Ed.2d 1263 (1968) (per curiam) (holding that a barbeque vendor must serve black customers even if he perceives such service as vindicating racial equality, in violation of his religious beliefs); ante,at 1727. A vendor can choose the products he sells, but not the customers he serves — no matter the reason. Phillips sells wedding cakes. As to that product, he unlawfully discriminates: He sells it to opposite-sex but not to same-sex couples. And on that basis — which has nothing to do with Phillips' religious beliefs — Colorado could have distinguished Phillips from the bakers in the Jack cases, who did not engage in any prohibited discrimination.

[1] Barnes v. Glen Theatre, Inc., 501 U.S. 560, 565-566, 111 S.Ct. 2456, 115 L.Ed.2d 504 (1991); Texas v. Johnson, 491 U.S. 397, 405-406, 109 S.Ct. 2533, 105 L.Ed.2d 342 (1989); Spence v. Washington,418 U.S. 405, 406, 409-411, 94 S.Ct. 2727, 41 L.Ed.2d 842 (1974) (per curiam); Schacht v. United States, 398 U.S. 58, 62-63, 90 S.Ct. 1555, 26 L.Ed.2d 44 (1970); Tinker v. Des Moines Independent Community School Dist., 393 U.S. 503, 505-506, 89 S.Ct. 733, 21 L.Ed.2d 731 (1969); Brown v. Louisiana, 383 U.S. 131, 141-142, 86 S.Ct. 719, 15 L.Ed.2d 637 (1966) (opinion of Fortas, J.); West Virginia Bd. of Ed. v. Barnette, 319 U.S. 624, 633-634, 63 S.Ct. 1178, 87 L.Ed. 1628 (1943); Stromberg v. California, 283 U.S. 359, 361, 369, 51 S.Ct. 532, 75 L.Ed. 1117 (1931).

[2] The Colorado Court of Appeals acknowledged that "a wedding cake, in some circumstances, may convey a particularized message celebrating same-sex marriage," depending on its "design" and whether it has "written inscriptions." Craig v. Masterpiece Cakeshop, Inc., 370 P.3d 272, 288 (2015). But a wedding cake needs no particular design or written words to communicate the basic message that a wedding is occurring, a marriage has begun, and the couple should be celebrated. Wedding cakes have long varied in color, decorations, and style, but those differences do not prevent people from recognizing wedding cakes as wedding cakes. See Charsley, Interpretation and Custom: The Case of the Wedding Cake, 22 Man 93, 96 (1987). And regardless, the Commission's order does not distinguish between plain wedding cakes and wedding cakes with particular designs or inscriptions; it requires Phillips to make any wedding cake for a same-sex wedding that he would make for an opposite-sex wedding.

[3] The dissent faults Phillips for not "submitting... evidence" that wedding cakes communicate a message. Post, at 1748, n. 1 (opinion of GINSBURG, J.). But this requirement finds no support in our precedents. This Court did not insist that the parties submit evidence detailing the expressive nature of parades, flags, or nude dancing. See Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, Inc., 515 U.S. 557, 568-570, 115 S.Ct. 2338, 132 L.Ed.2d 487 (1995); Spence, 418 U.S., at 410-411, 94 S.Ct. 2727; Barnes, 501 U.S., at 565-566, 111 S.Ct. 2456. And we do not need extensive evidence here to conclude that Phillips' artistry is expressive, see Hurley, 515 U.S., at 569, 115 S.Ct. 2338, or that wedding cakes at least communicate the basic fact that "this is a wedding," see id., at 573-575, 115 S.Ct. 2338. Nor does it matter that the couple also communicates a message through the cake. More than one person can be engaged in protected speech at the same time. See id., at 569-570, 115 S.Ct. 2338. And by forcing him to provide the cake, Colorado is requiring Phillips to be "intimately connected" with the couple's speech, which is enough to implicate his First Amendment rights. See id., at 576, 115 S.Ct. 2338.

[4] "[A] government regulation [of expressive conduct] is sufficiently justified if it is within the constitutional power of the Government; if it furthers an important or substantial governmental interest; if the governmental interest is unrelated to the suppression of free expression; and if the incidental restriction on alleged First Amendment freedoms is no greater than is essential to the furtherance of that interest." United States v. O'Brien, 391 U.S. 367, 377, 88 S.Ct. 1673, 20 L.Ed.2d 672 (1968).

[1] As Justice THOMAS observes, the Court does not hold that wedding cakes are speech or expression entitled to First Amendment protection. See ante, at 1740 (opinion concurring in part and concurring in judgment). Nor could it, consistent with our First Amendment precedents. Justice THOMAS acknowledges that for conduct to constitute protected expression, the conduct must be reasonably understood by an observer to be communicative. Ante, at 1724-1725 (citing Clark v. Community for Creative Non-Violence, 468 U.S. 288, 294, 104 S.Ct. 3065, 82 L.Ed.2d 221 (1984)). The record in this case is replete with Jack Phillips' own views on the messages he believes his cakes convey. See ante, at 1742-1743 (THOMAS, J., concurring in part and concurring in judgment) (describing how Phillips "considers" and "sees" his work). But Phillips submitted no evidence showing that an objective observer understands a wedding cake to convey a message, much less that the observer understands the message to be the baker's, rather than the marrying couple's. Indeed, some in the wedding industry could not explain what message, or whose, a wedding cake conveys. See Charsley, Interpretation and Custom: The Case of the Wedding Cake, 22 Man 93, 100-101 (1987) (no explanation of wedding cakes' symbolism was forthcoming "even amongst those who might be expected to be the experts"); id., at 104-105 (the cake cutting tradition might signify "the bride and groom ... as appropriating the cake" from the bride's parents). And Phillips points to no case in which this Court has suggested the provision of a baked good might be expressive conduct. Cf. ante, at 1743, n. 2 (THOMAS, J., concurring in part and concurring in judgment); Hurley v. Irish-American Gay, Lesbian, and Bisexual Group of Boston, Inc., 515 U.S. 557, 568-579, 115 S.Ct. 2338, 132 L.Ed.2d 487 (1995) (citing previous cases recognizing parades to be expressive); Barnes v. Glen Theatre, Inc., 501 U.S. 560, 565, 111 S.Ct. 2456, 115 L.Ed.2d 504 (1991) (noting precedents suggesting nude dancing is expressive conduct); Spence v. Washington, 418 U.S. 405, 410, 94 S.Ct. 2727, 41 L.Ed.2d 842 (1974)(observing the Court's decades-long recognition of the symbolism of flags).

[2] The record provides no ideological explanation for the bakeries' refusals. Cf. ante, at 1734-1735, 1738, 1739-1740 (GORSUCH, J., concurring) (describing Jack's requests as offensive to the bakers' "secular" convictions).

[3] Justice GORSUCH argues that the situations "share all legally salient features." Ante, at 1735 (concurring opinion). But what critically differentiates them is the role the customer's "statutorily protected trait," ibid., played in the denial of service. Change Craig and Mullins' sexual orientation (or sex), and Phillips would have provided the cake. Change Jack's religion, and the bakers would have been no more willing to comply with his request. The bakers' objections to Jack's cakes had nothing to do with "religious opposition to same-sex weddings." Ante, at 1736 (GORSUCH, J., concurring). Instead, the bakers simply refused to make cakes bearing statements demeaning to people protected by CADA. With respect to Jack's second cake, in particular, where he requested an image of two groomsmen covered by a red "X" and the lines "God loves sinners" and "While we were yet sinners Christ died for us," the bakers gave not the slightest indication that religious words, rather than the demeaning image, prompted the objection. See supra, at 1749. Phillips did, therefore, discriminate because of sexual orientation; the other bakers did not discriminate because of religious belief; and the Commission properly found discrimination in one case but not the other. Cf. ante, at 1735-1737 (GORSUCH, J., concurring).

[4] But see ante, at 1726 (majority opinion) (acknowledging that Phillips refused to sell to a lesbian couple cupcakes for a celebration of their union).

[5] The Court undermines this observation when later asserting that the treatment of Phillips, as compared with the treatment of the other three bakeries, "could reasonably be interpreted as being inconsistent as to the question of whether speech is involved." Ante, at 1730. But recall that, while Jack requested cakes with particular text inscribed, Craig and Mullins were refused the sale of any wedding cake at all. They were turned away before any specific cake design could be discussed. (It appears that Phillips rarely, if ever, produces wedding cakes with words on them — or at least does not advertise such cakes. See Masterpiece Cakeshop, Wedding, http://www.masterpiececakes.com/wedding-cakes (as last visited June 1, 2018) (gallery with 31 wedding cake images, none of which exhibits words).) The Division and the Court of Appeals could rationally and lawfully distinguish between a case involving disparaging text and images and a case involving a wedding cake of unspecified design. The distinction is not between a cake with text and one without, see ante, at 1737-1738 (GORSUCH, J., concurring); it is between a cake with a particular design and one whose form was never even discussed.

804 S.E.2d 592 (2017)

Marc MALECEK, Plaintiff,
v.
Derek WILLIAMS, Defendant.

No. COA16-830.

Court of Appeals of North Carolina.

Filed: September 5, 2017.

Appeal by plaintiff from order entered 11 May 2016 by Judge L. Todd Burke in Superior Court, Forsyth County, No. 15 CVS 5646. Heard in the Court of Appeals 7 March 2017.

The Law Offices of J. Scott Smith, PLLC, by J. Scott Smith, Winston Salem, and Andrew Newman, for plaintiff-appellant.

Allman Spry Davis Leggett & Crumpler, P.A., by Kim R. Bonuomo, Joslin Davis, Winston-Salem, and Bennett D. Rainey, for defendant-appellee.

DIETZ, Judge.

This case concerns two common law causes of action — alienation of affection and criminal conversation — that permit litigants to sue the lovers of their unfaithful spouses. These laws were born out of misogyny and in modern times are often used as tools for enterprising divorce lawyers seeking leverage over the other side.

Defendant Derek Williams contends that these aging common law torts are facially unconstitutional because they violate individuals' First and Fourteenth Amendment rights to engage in intimate sexual activity, speech, and expression with other consenting adults.

As explained below, we reject this facial constitutional challenge. Claims for alienation of affection and criminal conversation are designed to prevent and remedy personal injury, and to protect the promise of monogamy that accompanies most marriage commitments. This sets these common law claims apart from the discriminatory sodomy law at issue in Lawrence v. Texas, 539 U.S. 558, 123 S.Ct. 2472, 156 L.Ed.2d 508 (2003), which was not supported by any legitimate state interest and instead stemmed from moral disapproval and bigotry. Similarly, these laws (in most applications) seek to prevent personal and societal harms without regard to the content of the intimate expression that occurs in the extra-marital relationship. Thus, under United States v. O'Brien, 391 U.S. 367, 88 S.Ct. 1673, 20 L.Ed.2d 672 (1968), these torts are constitutional despite the possibility that their use burdens forms of protected speech and expression.

Our holding is neither an endorsement nor a critique of these "heart balm" torts. Whether this Court believes these torts are good or bad policy is irrelevant; we cannot hold a law facially unconstitutional because it is bad policy. We instead ask whether there are any applications of these laws that survive scrutiny under the appropriate constitutional standards. As explained below, although there are situations in which these torts likely are unconstitutional as applied, there are also many applications that survive constitutional scrutiny. Thus, the common law torts of alienation of affection and criminal conversation are not facially unconstitutional. We reverse the trial court's order and remand for further proceedings.

Facts and Procedural History

Marc and Amber Malecek were a married couple. Ms. Malecek is a nurse. Defendant Derek Williams is a medical doctor at the hospital where Ms. Malecek works. In early 2015, Dr. Williams and Ms. Malecek began a sexual relationship.

Mr. Malecek discovered the affair and sued Dr. Williams for alienation of affection and criminal conversation. Dr. Williams moved to dismiss Mr. Malecek's claims under Rule 12(b)(6) of the Rules of Civil Procedure on the ground that North Carolina's common law causes of action for alienation of affection and criminal conversation are facially unconstitutional.

The trial court held a hearing on Dr. Williams's motion, accepted his constitutional arguments, and entered a written order granting his motion to dismiss. Mr. Malecek timely appealed.

Analysis

This Court reviews the grant of a Rule 12(b)(6) motion to dismiss de novo. State v. Berger, 368 N.C. 633, 639, 781 S.E.2d 248, 252 (2016). A Rule 12(b)(6) motion "is properly granted where a valid legal defense stands as an insurmountable bar to a plaintiff's recovery." Lupton v. Blue Cross & Blue Shield of N.C., 139 N.C. App. 421, 424, 533 S.E.2d 270, 272 (2000). Because the courts cannot permit a plaintiff to pursue a cause of action that is unconstitutional on its face, Dr. Williams's facial challenge to these common law torts is an appropriate subject for a Rule 12(b)(6) motion.

We begin by examining the elements of these common law claims. "A claim for alienation of affections is comprised of wrongful acts which deprive a married person of the affections of his or her spouse — love, society, companionship and comfort of the other spouse." Darnell v. Rupplin, 91 N.C. App. 349, 350, 371 S.E.2d 743, 744 (1988). To prevail on an alienation of affection claim, the plaintiff must prove (1) that the spouses were happily married and a genuine love and affection existed between them; (2) the love and affection was alienated and destroyed; and (3) the defendant caused the destruction of that marital love and affection. Id. at 350, 371 S.E.2d at 745.

Similarly, a claim for criminal conversation lies against a defendant who engages in sexual relations with a married person. "The elements of the tort are the actual marriage between the spouses and sexual intercourse between defendant and the plaintiff's spouse during the coverture." Johnson v. Pearce, 148 N.C. App. 199, 200-01, 557 S.E.2d 189, 190 (2001).

In the trial court, Dr. Williams argued that both of these causes of action were facially unconstitutional under the First and Fourteenth Amendments. The trial court agreed and granted Dr. Williams's Rule 12(b)(6) motion without identifying the particular constitutional doctrine on which it relied. Because we review the grant of a Rule 12(b)(6) motion to dismiss de novo, we must address all grounds on which Dr. Williams challenged these two common law claims.

I. Substantive Due Process

Dr. Williams first argues that alienation of affection and criminal conversation offend the Due Process Clause of the Fourteenth Amendment by restraining one's liberty to have intimate sexual relations with another consenting adult. In support of this argument, Dr. Williams relies on the U.S. Supreme Court's decision in Lawrence v. Texas.

In Lawrence, the Supreme Court invalidated a Texas law criminalizing intimate sexual conduct between two people of the same sex. 539 U.S. 558, 578, 123 S.Ct. 2472, 156 L.Ed.2d 508 (2003). The Texas statute was rooted in bigotry; it criminalized homosexual sex solely because some found it immoral or distasteful. As the Court observed, the Constitution does not permit a state to degrade the basic liberties of a group of its citizens on moral grounds. Gays, lesbians, and all other people who engage in homosexual sex "are entitled to respect for their private lives. The State cannot demean their existence or control their destiny by making their private sexual conduct a crime." Id. The Court thus invalidated the Texas law because it furthered "no legitimate state interest which can justify its intrusion into the personal and private life of the individual." Id.

We agree with Dr. Williams that Lawrence established (or reaffirmed) that adult individuals have a constitutionally protected interest in engaging in intimate sexual activities free of governmental intrusion or regulation. Id. at 567, 123 S.Ct. 2472. Whatever the bounds of this protected right, it certainly extends to private sexual activities between two consenting adults. Moreover, a civil lawsuit between private parties constitutes "state action" for purposes of the Fourteenth Amendment when enforcement of that cause of action imposes liability for engaging in a constitutionally protected right. New York Times Co. v. Sullivan, 376 U.S. 254, 265, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964). Thus, Dr. Williams correctly contends that a suit against him for alienation of affection and criminal conversation, based on his intimate sexual relationship with Ms. Malecek, implicates his Fourteenth Amendment rights.

But the Supreme Court also added an important caveat in Lawrence. It observed that the Fourteenth Amendment generally prohibits States from regulating private, consensual sexual activity "absent injury to a person or abuse of an institution the law protects." Lawrence, 539 U.S. at 567, 123 S.Ct. 2472. It is well-settled that alienation of affection and criminal conversation seek to remedy an injury to a person. Misenheimer v. Burris, 360 N.C. 620, 624, 637 S.E.2d 173, 176 (2006). Moreover, although the Supreme Court in Lawrence did not explain what it meant by an "institution the law protects," the institution of marriage seems an obvious choice. Marriage is, after all, perhaps the most important institution in human history. "The centrality of marriage to the human condition makes it unsurprising that the institution has existed for millennia and across civilizations." Obergefell v. Hodges, ___ U.S. ___, ___, 135 S.Ct. 2584, 2594, 192 L.Ed.2d 609 (2015). "Its dynamic allows two people to find a life that could not be found alone, for a marriage becomes greater than just the two persons. Rising from the most basic human needs, marriage is essential to our most profound hopes and aspirations." Id.

Importantly, marriage is a commitment. Among the most central vows in a marriage is the promise of fidelity. Id. at 2608. In most marriages, this means a promise of monogamy; an agreement to share romantic intimacy and sexual relations only with one's spouse. Of course, not every marriage carries this commitment, but for those that do, society expects married couples to honor it. If they do not, injury results — personal injury to the still-faithful spouse, but also societal injury, because a broken marriage can mean the loss of all the benefits that a healthy marriage brings to society. See id. at 2595-97. Simply put, the State has a legitimate interest (indeed, a substantial interest) in protecting the institution of marriage, ensuring that married couples honor their vows, and deterring conduct that would cause injury to one of the spouses.

We thus turn to the critical question presented here: is the State's need to protect these interests sufficient to justify private tort actions that restrict one's right to engage in intimate sexual conduct with other consenting adults?

We hold that it is. The Supreme Court in Lawrence recognized a liberty interest in intimate sexual activity, but did not hold that it was a fundamental right. Lawrence,539 U.S. at 578-79, 123 S.Ct. 2472; id. at 605, 123 S.Ct. 2472 (Scalia, J., dissenting). Instead, the Court applied what appears to be a robust form of rational basis review. Lawrence, 539 U.S. 558, 123 S.Ct. 2472, 156 L.Ed.2d 508. Under that standard, instead of merely asking if a law is rationally related to some legitimate governmental interest, courts weigh the government's asserted interest against the right to individual liberty or equal treatment that the challengers contend is violated. See United States v. Windsor, ___ U.S. ___, ___, 133 S.Ct. 2675, 2694-96, 186 L.Ed.2d 808 (2013); Romer v. Evans, 517 U.S. 620, 631-33, 116 S.Ct. 1620, 134 L.Ed.2d 855 (1996); Kadrmas v. Dickinson Public Schools,487 U.S. 450, 461-64, 108 S.Ct. 2481, 101 L.Ed.2d 399, (1988); City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 448, 105 S.Ct. 3249, 87 L.Ed.2d 313 (1985); Plyler v. Doe, 457 U.S. 202, 224-30, 102 S.Ct. 2382, 72 L.Ed.2d 786 (1982). Laws that demean individuals because of lingering prejudices or moral disapproval typically are invalidated under this standard, but laws that further important state interests without being rooted in bigotry or moral disapproval typically are upheld.

Alienation of affection and criminal conversation fall into the latter category. These causes of action do not demean the existence of any group of people. They apply evenly to everyone. Moreover, the State's interest in preserving these torts is strong. As explained above, these torts deter conduct that causes personal injury; they protect promises made during the marriage; and they help preserve the institution of marriage, which provides innumerable benefits to our society.^[1]

To be sure, these common law torts are not the least liberty-restrictive means of vindicating the State's interests. For example, the State could invest in education to deter its citizens from cheating on their spouses. And, of course, these laws only impose liability on the third party. It arguably would be a greater deterrent to marital infidelity to impose liability on both the third party and the cheating spouse.^[2]

If a higher level of scrutiny applied in this case (Dr. Williams wrongly contends that strict scrutiny should apply here) these less liberty-restrictive alternatives would doom the torts. But under the robust rational basis standard applied in Lawrenceand similar cases, Dr. Williams cannot prevail unless he shows that these laws stem from lingering prejudice or moral disapproval that overshadows the State's other reasons for enacting them. Dr. Williams has not made that showing. Thus, under Lawrence, our State's common law causes of action for alienation of affection and criminal conversation do not violate the Fourteenth Amendment.

II. Freedom of Speech, Expression, and Association

Dr. Williams next argues that alienation of affection and criminal conversation violate his rights to free speech, expression, and association guaranteed by the First and Fourteenth Amendments.

We begin with Dr. Williams's challenge based on the First Amendment protection of speech and expression. Dr. Williams conceded at oral argument that the trial court found these causes of action facially unconstitutional. "In a facial challenge, the presumption is that the law is constitutional, and a court may not strike it down if it may be upheld on any reasonable ground." Affordable Care, Inc. v. N.C. State Bd. of Dental Exam'rs, 153 N.C. App. 527, 539, 571 S.E.2d 52, 61 (2002). Thus, Dr. Williams cannot prevail on his facial challenge unless there is no reasonable set of circumstances in which these torts would be constitutional.

We agree with Dr. Williams that, even where the challenged causes of action are based solely on the existence of an extra-marital sexual relationship, they can implicate protected speech and expression. In the past, cases involving the regulation of sexual activity typically have been viewed as regulations of conduct, not speech or expression. For example, in a First Amendment case involving prostitution at an adult bookstore, the Supreme Court noted that "the sexual activity carried on in this case manifests absolutely no element of protected expression." Arcara v. Cloud Books, Inc., 478 U.S. 697, 705, 106 S.Ct. 3172, 92 L.Ed.2d 568 (1986).

But later cases suggest that sexual activity can carry an expressive message. For example, in City of Erie v. Pap's A.M., the Court held that nude, erotic dancing involved expression that fell "within the outer ambit of the First Amendment's protection." 529 U.S. 277, 289, 120 S.Ct. 1382, 146 L.Ed.2d 265 (2000). If using one's naked body to arouse another's sexual desire is a form of protected expression, it is difficult to understand why that expressive conduct would cease once the couple embraced, as opposed to staying at arm's length. Moreover, in Lawrence, the Supreme Court expressly acknowledged that one's sexuality "finds overt expression in intimate conduct with another person." 539 U.S. at 567, 123 S.Ct. 2472. Thus, we agree with Dr. Williams that facing liability for engaging in intimate sexual relations with a married person can implicate the First and Fourteenth Amendment rights to free speech and expression.

But, as with the substantive due process claim discussed above, the mere fact that these common law claims can burden the right to free speech and expression does not mean they must be struck down. In most applications of these torts, the State is not concerned with the content of the intimate speech or expression that occurs in an extra-marital relationship. Instead, the State seeks to deter and remedy the harmful effects that result from acts that cause people to break their marriage vows, inflict personal injury on others, and damage the institution of marriage. Put another way, these torts may restrict certain forms of intimate speech or expression, but they do so for reasons unrelated to the content of that speech or expression.

Courts review laws that only incidentally burden protected expression under the test established in United States v. O'Brien, 391 U.S. 367, 88 S.Ct. 1673, 20 L.Ed.2d 672 (1968). In O'Brien, the Supreme Court held that a ban on burning draft cards did not violate the First Amendment because, although the law burdened the rights of citizens seeking to burn their draft cards in political protest, the government's interest in preventing people from destroying their draft cards was justified by reasons unrelated to the content of that political speech. Id. at 376-77, 88 S.Ct. 1673. As the Court later explained, "[a] regulation that serves purposes unrelated to the content of expression is deemed neutral, even if it has an incidental effect on some speakers or messages but not others." Ward v. Rock Against Racism, 491 U.S. 781, 791, 109 S.Ct. 2746, 105 L.Ed.2d 661 (1989). This type of content-neutral law will be upheld if it "is narrowly drawn to further a substantial governmental interest, and if the interest is unrelated to the suppression of free speech." Clark v. Cmty. for Creative Non-Violence, 468 U.S. 288, 294, 104 S.Ct. 3065, 82 L.Ed.2d 221 (1984).

These common law torts are facially valid under this standard. They further the State's desire to protect a married couple's vow of fidelity and to prevent the personal injury and societal harms that result when that vow is broken. As explained above, preventing these personal injuries and societal harms is a substantial governmental interest. Moreover, the State's interest is unrelated to the content of the protected First Amendment right. If the defendant's actions deprived a married person of the love and affection of his or her spouse, the State will impose liability regardless of what the defendant actually said or did. Cf. City of Cincinnati v. Discovery Network, Inc., 507 U.S. 410, 429, 113 S.Ct. 1505, 123 L.Ed.2d 99 (1993). Indeed, when spouses agree to an "open" marriage that permits extra-marital intimacy or sex, that is a defense to these claims, as is physical separation of the spouses when either spouse intends for the separation to remain permanent. See N.C. Gen. Stat. § 52-13 (2015); Barker v. Dowdy, 223 N.C. 151, 152, 25 S.E.2d 404, 405 (1943); Nunn v. Allen, 154 N.C. App. 523, 536, 574 S.E.2d 35, 44 (2002). This undermines Dr. Williams's argument that these laws target extra-marital intimacy or sex because the State disapproves of expressing that intimacy while married to someone else.

Simply put, these torts are intended to remedy harms that result when marriage vows are broken, not to punish intimate extra-marital speech or expression because of its content. And, because the availability of a tort action to the injured spouse provides both a remedy for that harm and a deterrent effect (one that benefits the State and society without punishing any speech or expression that does not cause these harms), the torts are narrow enough to survive constitutional scrutiny under the O'Brien test.

Dr. Williams also argues that these torts are facially unconstitutional because they violate the First Amendment right to free association. The First Amendment "restricts the ability of the State to impose liability on an individual solely because of his association with another." NAACP v. Claiborne Hardware Co., 458 U.S. 886, 918-19, 102 S.Ct. 3409, 73 L.Ed.2d 1215 (1982). But these torts do not prohibit all conceivable forms of association between a spouse and someone outside the marriage. There are countless ways for one to associate with a married person, form meaningful relationships, and even share feelings and intimacy without incurring liability for alienation of affection or criminal conversation. Moreover, when Dr. Williams articulates the specific associational rights that he contends are impacted, his argument collapses back to arguments about rights to intimate speech and expression. For the reasons discussed above, the incidental burden on those rights does not render these torts facially unconstitutional.

We emphasize that our holding today does not mean that every application of these common law torts is constitutional. There may be situations where an as-applied challenge to these laws could succeed. Take, for example, one who counsels a close friend to abandon a marriage with an abusive spouse. But this case, as the parties concede, is not one of those cases. It was decided as a facial challenge on a motion to dismiss at the pleadings stage. In the future, courts will need to grapple with the reality that these common law torts burden constitutional rights and likely have unconstitutional applications. For now, we hold only that alienation of affection and criminal conversation are not facially invalid under the First and Fourteenth Amendments.^[3]

Conclusion

For the reasons explained above, we reverse the trial court's order and remand this case for further proceedings.

REVERSED AND REMANDED.

Judges ELMORE and TYSON concur.

[1] Our analysis ignores those in "open" marriages where both spouses agree that they may engage in intimacy or sexual activity outside the marriage. When the spouses agree to an open marriage, this is a complete defense to claims of alienation of affection and criminal conversation. See Barker v. Dowdy,223 N.C. 151, 152, 25 S.E.2d 404, 405 (1943); Nunn v. Allen, 154 N.C. App. 523, 536, 574 S.E.2d 35, 44 (2002).

[2] North Carolina has a criminal law that could be used to prosecute unfaithful spouses but the State has chosen not to use it, at least in modern times. See N.C. Gen. Stat. § 14-184. This may be because many other applications of this criminal statute are plainly unconstitutional and the State has concerns that this application would be as well. See Lawrence, 539 U.S. at 578, 123 S.Ct. 2472; Hobbs v. Smith,No. 05 CVS 267, 2006 WL 3103008, at *1 (N.C. Super. Aug. 25, 2006) (unpublished).

[3] Dr. Williams also argues that these torts violate rights to speech, expression, and privacy guaranteed by the North Carolina Constitution. Our State Supreme Court has interpreted these rights as co-extensive with the analogous rights in the U.S. Constitution. State v. Petersilie, 334 N.C. 169, 184, 432 S.E.2d 832, 841 (1993); In re Moore's Sterilization, 289 N.C. 95, 98, 221 S.E.2d 307, 309 (1976). This Court has no authority to overrule our Supreme Court's interpretation of these state constitutional provisions.