SAENZ, DIRECTOR, CALIFORNIA DEPARTMENT OF SOCIAL SERVICES, et al. v. ROE et al., on behalf of themselves and all others similarly situated

No. 98-97.

Argued January 13, 1999

Decided May 17, 1999

Stevens, J., delivered the opinion of the Court, in which O’Connor, Scalia, Kennedy, Souter, Ginsburg, and Breyer, JJ., joined. Rehnquist, G. J., filed a dissenting opinion, in which Thomas, J., joined, post, p. 511. Thomas, J., filed a dissenting opinion, in which Rehnquist, C. J., joined, post, p. 521.

Theodore Garelis, Deputy Attorney General of California, argued the cause for petitioners. With him on the briefs were Daniel E. Lungren, Attorney General, Charlton G. Holland III, Senior Assistant Attorney General, Frank S. Furtek, Supervising Deputy Attorney General, and Janie L. Daigle, Deputy Attorney General.

General Waxman argued the cause for the United States as amicus curiae in support of petitioners in part and respondents in part. With him on the brief were Assistant Attorney General Hunger, Deputy Solicitor General Kneedler, Edward C. DuMont, Mark B. Stem, Kathleen Moriarty Mueller, and Peter J. Smith.

cause respondents. With him on the brief were David S. Schwartz, Daniel P. Tokaji, Evan H. Caminker, Laurence H. Tribe, Martha F. Davis, Karl Manheim, Steven R. Shapiro, Alan L. Schlosser, Richard Rothschild, Clare Pastore, and Jordan C. Budd.*

*

Briefs of amici curiae urging reversal were filed for the Commonwealth of Pennsylvania et al. by D. Michael Fisher, Attorney General, John G. Knorr III, Chief Deputy Attorney General, Betty D. Montgomery, Attorney General of Ohio, and Jeffrey S. Sutton, State Solicitor, and by the Attorneys General for their respective States as follows: Bill Pryor of Alabama, Robert A Butterworth of Florida, Thurbert E. Bhker of Georgia, Margery S. Bronster of Hawaii, J. Joseph Curran, Jr., of Maryland, Hubert H. Humphrey III of Minnesota, Joseph P. Mazurek of Montana, Frankie Sue Del Papa of Nevada, Philip T. McLaughlin of New Hampshire, Dennis C. Vacco of New York, Michael F. Easley of North Carolina, Heidi Heitkamp of North Dakota, Jeffrey B. Pine of Rhode Island, and Christine 0. Gregoire of Washington; for the Institute for Justice by Douglas W. Kmiec, William H. Mellor, and Clint Bolick; for the National Governors’ Association et al. by Richard Ruda and James I. Crowley; for the Pacific Legal Foundation by Sharon L. Browne and Deborah J. La Fetra; and for the Washington Legal Foundation et al. by Daniel J. Popeo and Richard A Samp.

Briefs of amici curiae urging by Paul M. Dodyk and Henry A Freedman; for the American Bar Association by Philip S. Anderson and Paul M. Smith; for the Brennan Center for Justice at New York University School of Law et al. by Burt Neubome and Deborah Goldberg; for Catholic Charities USA et al. by Louis R. Cohen; for the National Law Center on Homelessness and Poverty by Ann E. Bushmiller; for Sixty-six Organizations Serving Domestic Violence Survivors by Susan Frietsche; for Social Scientists by Lawrence S. Lust-berg; and for William Cohen et al. by Roderick M. Hills, Jr., and Charles S. Sims.

Justice Stevens

delivered the opinion of the Court.

In 1992, California enacted a statute limiting the maximum welfare benefits available to newly arrived residents. The scheme limits the amount payable to a family that has resided in the State for less than 12 months to the amount payable by the State of the family’s prior residence. The questions presented by this case are whether the 1992 statute was constitutional when it was enacted and, if not, whether an amendment to the Social Security Act enacted by Congress in 1996 affects that determination.

1 — 1

California is not only one of the largest, most populated, and most beautiful States in the Nation; it is also one of the most generous. Like all other States, California has participated in several welfare programs authorized by the Social Security Act and partially funded by the Federal Government. Its programs, however, provide a higher level of benefits and serve more needy citizens than those of most other States. In one year the most expensive of those programs, Aid to Families with Dependent Children (AFDC), which was replaced in 1996 with Temporary Assistance to Needy Families (TANF), provided benefits for an average of 2,645,814 persons per month at an annual cost to the State of $2.9 billion. In California the cash benefit for a family of two — a mother and one child — is $456 a month, but in the neighboring State of Arizona, for example, it is only $275.

a relatively modest reduction in its vast welfare budget, the California Legislature enacted § 11450.03 of the state Welfare and Institutions Code. That section sought to change the California AFDC program by limiting new residents, for the first year they live in California, to the benefits they would have received in the State of their prior residence.1 Because in 1992 a state program either had to conform to federal specifications or receive a waiver from the Secretary of Health and Human Services in order to qualify for federal reimbursement, § 11450.03 required approval by the Secretary to take effect. In October 1992, the Secretary issued a waiver purporting to grant such approval.

On December 21, 1992, three California residents who were eligible for AFDC benefits filed an action in the Eastern District of California challenging the constitutionality of the durational residency requirement in § 11450.03. Each plaintiff alleged that she had recently moved to California to live with relatives in order to escape abusive family circumstances. One returned to California after living in Louisiana for seven years, the second had been living in Oklahoma for six weeks and the third came from Colorado. Each alleged that her monthly AFDC grant for the ensuing 12 months would be substantially lower under § 11450.03 than if the statute were not in effect. Thus, the former residents of Louisiana and Oklahoma would receive $190 and $341 respectively for a family of three even though the Ml California grant was $641; the former resident of Colorado, who had just one child, was limited to $280 a month as opposed to the Ml California grant of $504 for a family of two.

The District Court a and, after a hearing, preliminarily enjoined implementation of the statute. District Judge Levi found that the statute “produces substantial disparities in benefit levels and makes no accommodation for the different costs of living that exist in different states.”2 Relying primarily on our decisions in Shapiro v. Thompson, 394 U. S. 618 (1969), and Zobel v. Williams, 457 U. S. 55 (1982), he concluded that the statute placed “a penalty on the decision of new residents to migrate to the State and be treated on an equal basis with existing residents.” Green v. Anderson, 811 F. Supp. 516, 521 (ED Cal. 1993). In his view, if the purpose of the measure was to deter migration by poor people into the State, it would be unconstitutional for that reason. And even if the purpose was only to conserve limited funds, the State had failed to explain why the entire burden of the saving should be imposed on new residents. The Court of Appeals summarily affirmed for the reasons stated by the District Judge. Green v. Anderson, 26 F. 3d 95 (CA9 1994).

petition for certiorari. 513 U. S. 922 (1994). We were, however, unable to reach the merits because the Secretary’s approval of § 11450.03 had been invalidated in a separate proceeding,3 and the State had acknowledged that the Act would not be implemented without further action by the Secretary. We vacated the judgment and directed that the case be dismissed. Anderson v. Green, 513 U. S. 557 (1995) (per curiam).4 Accordingly, § 11450.03 remained inoperative until after Congress enacted the Personal Responsibility and Work Opportunity Reconciliation Act of 1996 (PRWORA), 110 Stat. 2105.

replaced the AFDC program with TANF. The new statute expressly authorizes any State that receives a block grant under TANF to “apply to a family the rules (including benefit amounts) of the [TANF] program ... of another State if the family has moved to the State from the other State and has resided in the State for less than 12 months.” 110 Stat. 2124, 42 U. S. C. § 604(c) (1994 ed., Supp. II). With this federal statutory provision in effect, California no longer needed specific approval from the Secretary to implement § 11450.03. The California Department of Social Services therefore issued an “All County Letter” announcing that the enforcement of § 11450.03 would commence on April 1,1997.

The All County Letter clarifies certain aspects of the statute. Even if members of an eligible family had lived in California all of their lives, but left the State “on January 29th, intending to reside in another state, and returned on April 15th,” their benefits are determined by the law of their State of residence from January 29 to April 15, assuming that that level was lower than California’s.5 Moreover, the lower level of benefits applies regardless of whether the family was on welfare in the State of prior residence and regardless of the family’s motive for moving to California. The instructions also explain that the residency requirement is inapplicable to families that recently arrived from another country.

II

On April 1, 1997, the two respondents filed this action in the Eastern District of California making essentially the same claims asserted by the plaintiffs in Anderson v. Green,6 but also challenging the constitutionality of PRWORA’s approval of the durational residency requirement. As in Green, the District Court issued a temporary restraining order and certified the case as a class action.7 The court also advised the Attorney General of the United States that the constitutionality of a federal statute had been drawn into question, but she did not seek to intervene or to file an amicus brief. Reasoning that PRWORA permitted, but did not require, States to impose durational residency requirements, Judge Levi concluded that the existence of the federal statute did not affect the legal analysis in his prior opinion in Green.

He did, however, make certain parties’ factual contentions. He noted that the State did not challenge plaintiffs’ evidence indicating that, although California benefit levels were the sixth highest in the Nation in absolute terms,8 when housing costs are factored in, they rank 18th; that new residents coming from 43 States would face higher costs of living in California; and that welfare benefit levels actually have little, if any, impact on the residential choices made by poor people. On the other hand, he noted that the availability of other programs such as homeless assistance and an additional food stamp allowance of $1 in stamps for every $3 in reduced welfare benefits partially offset the disparity between the benefits for new and old residents. Notwithstanding those ameliorating facts, the State did not disagree with plaintiffs’ contention that § 11450.03 would create significant disparities between newcomers and welfare recipients who have resided in the State for over one year.

The State relied squarely on the undisputed fact that the statute would save some $10.9 million in annual welfare costs — an amount that is surely significant even though only a relatively small part of its annual expenditures of approximately $2.9 billion for the entire program. It contended that this cost saving was an appropriate exercise of budgetary authority as long as the residency requirement did not penalize the right to travel. The State reasoned that the payment of the same benefits that would have been received in the State of prior residency eliminated any potentially punitive aspects of the measure. Judge Levi concluded, however, that the relevant comparison was not between new residents of California and the residents of their former States, but rather between the new residents and longer term residents of California. He therefore again enjoined the implementation of the statute.

deciding the merits, the Court of Appeals affirmed his issuance of a preliminary injunction. Roe v. Anderson, 134 F. 3d 1400 (CA9 1998). It agreed with the District Court’s view that the passage of PRWORA did not affect the constitutional analysis, that respondents had established a probability of success on the merits, and that class members might suffer irreparable harm if §11450.03 became operative. Although the decision of the Court of Appeals is consistent with the views of other federal courts that have addressed the issue,9 we granted certiorari because of the importance of the case. Anderson v. Roe, 524 U. S. 982 (1998).10 We now affirm.

I — ! HH

The word “travel” is not found in the text of the Constitution. Yet the “constitutional right to travel from one State to another” is firmly embedded in our jurisprudence. United States v. Guest, 383 U. S. 745, 757 (1966). Indeed, as Justice Stewart reminded us in Shapiro v. Thompson, 394 U. S. 618 (1969), the right is so important that it is “assert-able against private interference as well as governmental action ... a virtually unconditional personal right, guaranteed by the Constitution to us all.” Id., at 643 (concurring opinion).

In Shapiro, we reviewed the constitutionality of three statutory provisions that denied welfare assistance to residents of Connecticut, the District of Columbia, and Pennsylvania, who had resided within those respective jurisdictions less than one year immediately preceding their applications for assistance. Without pausing to identify the specific source of the right, we began by noting that the Court had long “recognized that the nature of our Federal Union and our constitutional concepts of personal liberty unite to require that all citizens be free to travel throughout the length and breadth of our land uninhibited by statutes, rules, or regulations which unreasonably burden or restrict this movement.” Id., at 629. We squarely held that it was “constitutionally impermissible” for a State to enact dura-tional residency requirements for the purpose of inhibiting the migration by needy persons into the State.11 We further held that a classification that had the effect of imposing a penalty on the exercise of the right to travel violated the Equal Protection Clause “unless shown to be necessary to promote a compelling governmental interest,” id., at 634, and that no such showing had been made.

case argues that §11450.03 was not enacted for the impermissible purpose of inhibiting migration by needy persons and that, unlike the legislation reviewed in Shapiro, it does not penalize the right to travel because new arrivals are not ineligible for benefits during their first year of residence. California submits that, instead of being subjected to the strictest scrutiny, the statute should be upheld if it is supported by a rational basis and that the State’s legitimate interest in saving over $10 million a year satisfies that test. Although the United States did not elect to participate in the proceedings in the District Court or the Court of Appeals, it has participated as amicus curiae in this Court. It has advanced the novel argument that the enactment of PRWORA allows the States to adopt a “specialized choice-of-law-type provision” that “should be subject to an intermediate level of constitutional review,” merely requiring that durational residency requirements be “substantially related to an important governmental objective.”12 The debate about the appropriate standard of review, together with the potential relevance of the federal statute, persuades us that it will be useful to focus on the source of the constitutional right on which respondents rely.

IV

The “right to travel” discussed in our cases embraces at least three different components. It protects the right of a citizen of one State to enter and to leave another State, the right to be treated as a welcome visitor rather than an unfriendly alien when temporarily present in the second State, and, for those travelers who elect to become permanent residents, the right to be treated like other citizens of that State.

It was the right to go from one place to another, including the right to cross state borders while en route, that was vindicated in Edwards v. California, 314 U. S. 160 (1941), which invalidated a state law that impeded the free interstate passage of the indigent. We reaffirmed that right in United States v. Guest, 383 U. S. 745 (1966), which afforded protection to the “Tight to travel freely to and from the State of Georgia and to use highway facilities and other instrumentalities of interstate commerce within the State of Georgia.’ ” Id., at 757. Given that § 11450.03 imposed no obstacle to respondents’ entry into California, we think the State is correct when it argues that the statute does not directly impair the exercise of the right to free interstate movement. For the purposes of this case, therefore, we need not identify the source of that particular right in the text of the Constitution. The right of “free ingress and regress to and from” neighboring States, which was expressly mentioned in the text of the Articles of Confederation,13 may simply have been “conceived from the beginning to be a necessary concomitant of the stronger Union the Constitution created.” Id., at 758.

The second component of the right to travel is, however, expressly protected by the text of the Constitution. The first sentence of Article IV, §2, provides:

“The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States.”

Thus, by virtue of a person’s state citizenship, a citizen of one State who travels in other States, intending to return home at the end of his journey, is entitled to enjoy the “Privileges and Immunities of Citizens in the several States” that he visits.14 This provision removes “from the citizens of each State the disabilities of alienage in the other States.” Paul v. Virginia, 8 Wall. 168, 180 (1869) (“[Wjithout some provision . . . removing from the citizens of each State the disabilities of alienage in the other States, and giving them equality of privilege with citizens of those States, the Repub-lie would have constituted little more than a league of States; it would not have constituted the Union which now exists”)* It provides important protections for nonresidents who enter a State whether to obtain employment, Hicklin v. Orbeck, 437 U. S. 518 (1978), to procure medical services, Doe v. Bolton, 410 U. S. 179, 200 (1973), or even to engage in commercial shrimp fishing, Toomer v. Witsell, 334 U. S. 385 (1948). Those protections are not “absolute,” but the Clause “does bar discrimination against citizens of other States where there is no substantial reason for the discrimination beyond the mere fact that they are citizens of other States.” Id., at 396. There may be a substantial reason for requiring the nonresident to pay more than the resident for a hunting license, see Baldwin v. Fish and Game Comm’n of Mont., 436 U. S. 371, 390-391 (1978), or to enroll in the state university, see Vlandis v. Kline, 412 U. S. 441, 445 (1973), but our cases have not identified any acceptable reason for qualifying the protection afforded by the Clause for “the ‘citizen of State A who ventures into State B’ to settle there and establish a home.” Zobel, 457 U. S., at 74 (O’Connor, J., concurring in judgment). Permissible justifications for discrimination between residents and nonresidents are simply inapplicable to a nonresident’s exercise of the right to move into another State and become a resident of that State.

What is at issue in this case, then, is this third aspect of the right to travel — the right of the newly arrived citizen to the same privileges and immunities enjoyed by other citizens of the same State. That right is protected not only by the new arrival’s status as a state citizen, but also by her status as a citizen of the United States.15 That additional source of protection is plainly identified in the opening words of the Fourteenth Amendment:

“All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States;...16

Despite fundamentally differing views concerning the coverage of the Privileges or Immunities Clause of the Fourteenth Amendment, most notably expressed in the majority and dissenting opinions in the Slaughter-House Cases, 16 Wall. 36 (1873), it has always been common ground that this Clause protects the third component of the right to travel. Writing for the majority in the Slaughter-House Cases, Justice Miller explained that one of the privileges conferred by this Clause “is that a citizen of the United States can, of his own volition, become a citizen of any State of the Union by a bond fide residence therein, with the same rights as other citizens of that State.” Id., at 80. Justice Bradley, in dissent, used even stronger language to make the same point:

“The states have not now, if they ever had, any power to restrict their citizenship to any classes or persons. A citizen of the United States has a perfect constitutional right to go to and reside in any State he chooses, and to claim citizenship therein, and an equality of rights with every other citizen; and the whole power of the nation is pledged to sustain him in that right. He is not bound to cringe to any superior, or to pray for any act of grace, as a means of enjoying all the rights and privileges enjoyed by other citizens.” Id., at 112-113.

That newly arrived citizens “have two political capacities, one state and one federal,” adds special force to their claim that they have the same rights as others who share their citizenship.17 Neither mere rationality nor some intermediate standard of review should be used to judge the constitutionality of a state rule that discriminates against some of its citizens because they have been domiciled in the State for less than a year. The appropriate standard may be more categorical than that articulated in Shapiro, see supra, at 499, but it is surely no less strict.

Y

Because this case involves discrimination against citizens who have completed their interstate travel, the State’s argument that its welfare scheme affects the right to travel only “incidentally” is beside the point. Were we concerned solely with actual deterrence to migration, we might be persuaded that a partial withholding of benefits constitutes a lesser incursion on the right to travel than an outright denial of all benefits. See Dunn v. Blumstein, 405 U. S. 330, 339 (1972). But since the right to travel embraces the citizen’s right to. be treated equally in her new State of residence, the discriminatory classification is itself a penalty.

that respondents and the members of the class that they represent are citizens of California and that their need for welfare benefits is unrelated to the length of time that they have resided in California. We thus have no occasion to consider what weight might be given to a citizen’s length of residence if the bona fides of her claim to state citizenship were questioned. Moreover, because whatever benefits they receive will be consumed while they remain in California, there is no danger that recognition of their claim will encourage citizens of other States to establish residency for just long enough to acquire some readily portable benefit, such as a divorce or a. college education, that will be enjoyed after they return to their original domicile. See, e. g., Sosna v. Iowa, 419 U. S. 393 (1975); Vlandis v. Kline, 412 U. S. 441 (1973).

The classifications challenged in this case — and there are many — are defined entirely by (a) the period of residency in California and (b) the location of the prior residences of the disfavored class members. The favored class of beneficiaries includes all eligible California citizens who have resided there for at least one year, plus those new arrivals who last resided in another country or in a State that provides benefits at least as generous as California’s. Thus, within the broad category of citizens who resided in California for less than a year, there are many who are treated like lifetime residents. And within the broad subeategory of new arrivals who are treated less favorably, there are many smaller classes whose benefit levels are determined by the law of the States from whence they came. To justify § 11450.03, California must therefore explain not only why it is sound fiscal policy to discriminate against those who have been citizens for less than a year, but also why it is permissible to apply such a variety of rules within that class.

These classifications may not be justified by a purpose to deter welfare applicants from migrating to California for three reasons. First, although it is reasonable to assume that some persons may be motivated to move for the purpose of obtaining higher benefits, the empirical evidence reviewed by the District Judge, which takes into account the high cost of living in California, indicates that the number of such persons is quite small — surely not large enough to justify a burden on those who had no such motive.18 Second, California has represented to the Court that the legislation was not enacted for any such reason.19 Third, even if it were, as we squarely held in Shapiro v. Thompson, 394 U. S. 618 (1969), such a purpose would be unequivocally impermissible.

Disavowing any desire to nia has instead advanced an entirely fiscal justification for its multitiered scheme. The enforcement of § 11450.03 will save the State approximately $10.9 million a year. The question is not whether such saving is a legitimate purpose but whether the State may accomplish that end by the discriminatory means it has chosen. An evenhanded, across-the-board reduction of about 72 cents per month for every beneficiary would produce the same result. But our negative answer to the question does not rest on the weakness of the State's purported fiscal justification. It rests on the fact that the Citizenship Clause of the Fourteenth Amendment expressly equates citizenship with residence: “That Clause does not provide for, and does not allow for, degrees of citizenship based on length of residence.” Zobel, 457 U. S., at 69. It is equally clear that the Clause does not tolerate a hierarchy of 45 subclasses of similarly situated citizens based on the location of their prior residence.20 Thus § 11450.03 is doubly vulnerable: Neither the duration of respondents’ California residence, nor the identity of their prior States of residence, has any relevance to their need for benefits. Nor do those factors bear any relationship to the State’s interest in making an equitable allocation of the funds to be distributed among its needy citizens. As in Shapiro, we reject any contributory rationale for the denial of benefits to new residents:

“But we need not rest on the particular facts of these cases. Appellants’ reasoning would logically permit the State to bar new residents from schools, parks, and libraries or deprive them of police and fire protection. Indeed it would permit the State to apportion all benefits and services according to the past tax contributions of its citizens.” 394 U. S., at 632-633.

See also Zobel, 457 U. S., at 64. In short, the State’s legitimate interest in saving money provides no justification for its decision to discriminate among equally eligible citizens.

<

The question that remains is whether congressional approval of durational residency requirements in the 1996 amendment to the Social Security Act somehow resuscitates the constitutionality of § 11450.03. That question is readily answered, for we have consistently held that Congress may not authorize the States to violate the Fourteenth Amendment.21 Moreover, the protection afforded to the citizen by the Citizenship Clause of that Amendment is a limitation on the powers of the National Government as well as the States.

Article I of the Constitution grants Congress power to legislate in certain areas. Those legislative powers are, however, limited not only by the scope of the Framers’ affirmative delegation, but also by the principle “that they may not be exercised in a way that violates other specific provisions of the Constitution. For example, Congress is granted broad power to ‘lay and collect Taxes,’ but the taxing power, broad as it is, may not be invoked in such a way as to violate the privilege against self-incrimination.” Williams v. Rhodes, 893 U. S. 23, 29 (1968) (footnote omitted). Congress has no affirmative power to authorize the States to violate the Fourteenth Amendment and is implicitly prohibited from passing legislation that purports to validate any such violation.

“Section 5 of the Fourteenth Amendment gives Congress broad power indeed to enforce the command of the amendment and ‘to secure to all persons the enjoyment of perfect equality of civil rights and the equal protection of the laws against State denial or invasion....’ Ex parte Virginia, 100 U. S. 339,346 (1880). Congress’ power under § 5, however, ‘is limited to adopting measures to enforce the guarantees of the Amendment; §5 grants Congress no power to restrict, abrogate, or dilute these guarantees.’ Katzenback v. Morgan, 384 U. S. 641, 651, n. 10 (1966). Although we give deference to congressional decisions and classifications, neither Congress nor a State can validate a law that denies the rights guaranteed by the Fourteenth Amendment. See, e. g., Califano v. Goldfarb, 430 U. S. 199, 210 (1977); Williams v. Rhodes, 393 U. S. 23, 29 (1968).” Mississippi Univ. for Women v. Hogan, 458 U. S. 718, 732-733 (1982).

The Solicitor General does not unequivocally defend the constitutionality of § 11450.03. But he has argued that two features of PRWORA may provide a sufficient justification for state durational requirements to warrant further inquiry before finally passing on the section’s validity, or perhaps that it is only invalid insofar as it applies to new arrivals who were not on welfare before they arrived in California.22

He first points out that because the TANF program gives the States broader discretion than did AFDC, there will be significant differences among the States which may provide new incentives for welfare recipients to change their residences. He does not, however, persuade us that the disparities under the new program will necessarily be any greater than the differences under AFDC, which included such examples as the disparity between California’s monthly benefit of $673 for a family of four with Mississippi’s benefit of $144 for a comparable family. Moreover, we are not convinced that a policy of eliminating incentives to move to California provides a more permissible justification for classifying California citizens than a policy of imposing special burdens on new arrivals to deter them from moving into the State. Nor is the discriminatory impact of §11450.03 abated by repeatedly characterizing it as “a sort of specialized choice-of-law rule.”23 California law alone discriminates among its own citizens on the basis of their prior residence.

The Solicitor General also suggests that we should recognize the congressional concern addressed in the legislative history of PRWORA that the “States might engage in a 'race to the bottom’ in setting the benefit levels in their TANF programs.”24 Again, it is difficult to see why that concern should be any greater under TANF than under AFDC. The evidence reviewed by the District Court indicates that the savings resulting from the discriminatory policy, if spread equitably throughout the entire program, would have only a miniscule impact on benefit levels. Indeed, as one of the legislators apparently interpreted this concern, it would logically prompt the States to reduce benefit levels sufficiently “to encourage emigration of benefit recipients.”25 But speculation about such an unlikely eventuality provides no basis for upholding § 11450.03.

Finally, the Solicitor General suggests discrimination might be acceptable if California had limited the disfavored subcategories of new citizens to those who had received aid in their prior State of residence at any time within the year before their arrival in California. The suggestion is ironic for at least three reasons: It would impose the most severe burdens on the neediest members of the disfavored classes; it would significantly reduce the savings that the State would obtain, thus making the State’s claimed justification even less tenable; and, it would confine the effect of the statute to what the Solicitor General correctly characterizes as “the invidious purpose of discouraging poor people generally from settling in the State.”26

* * *

Citizens of the United States, whether rich or poor, have the right to choose to be citizens “of the State wherein they reside.” U. S. Const., Arndt. 14, § 1. The States, however, do not have any right to select their citizens.27 The Fourteenth Amendment, like the Constitution itself, was, as Justice Cardozo put it, “framed upon the theory that the peoples of the several states must sink or swim together, and that in the long run prosperity and salvation are in union and not division.” Baldwin v. G. A. F. Seelig, Inc., 294 U. S. 511, 523 (1935).

The judgment of the Court of Appeals is affirmed.

It is so ordered.

1

California Welf. & Inst. Code Ann. §11450.03 (West Supp. 1999) provides:

“(a) Notwithstanding the máximum aid payments specified in paragraph (1) of subdivision (a) of Section 11450, families that have resided in this state for less than 12 months shall be paid an amount calculated in accordance with paragraph (1) of subdivision (a) of Section 11450, not to exceed the maximum aid payment that would have been received by that family from the state of prior residence.

shall not become operative until the date of approval by the United States Secretary of Health and Human Services necessary to implement the provisions of this section so as to ensure the continued compliance of the state plan for the following:

Security Act (Subchapter 4 (commencing with Section 601) of Chapter 7 of Title 42 of the United States Code).

Security Act (Subchapter 19 (commencing with Section 1396) of Chapter 7 of Title 42 of the United States Code).”

2

The District Court referred to an official table of fair market rents indicating that California’s housing costs are higher than any other State except Massachusetts. See Green v. Anderson, 811 F. Supp. 516, 521, n. 13 (ED Cal. 1993); see also Declaration of Robert Greenstein, App. 91-94.

3

Beno v. Shalala, 30 F. 3d 1057 (CA9 1994).

4

February 1996, the Secretary 4granted waivers for certain changes in California’s welfare program, but she declined to authorize any distinction between old and new residents. App. to Pet. for Cert. 46-52.

5

Record 30 (Plaintiffs’ Exh. 3, Attachment 1).

6

One of the respondents is a former moved to California from the District of Columbia. In both of those jurisdictions the benefit levels are substantially lower than in California.

7

On the stipulation of the defined as “‘all present and future AFDC and TANF applicants and recipients who have applied or will apply for AFDC or TANF on or after April 1,1997, and who will be denied full California AFDC or TANF benefits because they have not resided in California for twelve consecutive months immediately preceding their application for aid.’” App. to Pet. for Cert. 20.

8

Forty-four States and the District of Columbia have lower benefit levels than California. Id., at 22, n. 10.

9

See Maldonado v. Houston, 157 F. 3d 179 (CA3 1998) (finding two-tier durational residency requirement an unconstitutional infringement on the right to travel); Anderson v. Green, 26 F. 3d 95 (CA9 1994), vacated as unripe, 513 U. S. 557 (1995) (per curiam); Hicks v. Peters, 10 F. Supp. 2d 1003 (ND III. 1998) (granting injunction against enforcement of dura-tional residency requirement); Westenfelder v. Ferguson, 998 F. Supp. 146 (RI 1998) (holding durational residency requirement a penalty on right to travel incapable of surviving rational-basis review). Two state courts have reached the same conclusion. See Mitchell v. Steffen, 504 N. W. 2d 198 (Minn. 1993), cert. denied, 510 U. S. 1081 (1994) (striking down a similar provision in Minnesota law); Sanchez v. Department of Human Services, 314 N. J. Super. 11, 713 A. 2d 1056 (1998) (striking down two-tier welfare system); cf. Jones v. Milwaukee County, 168 Wis. 2d 892, 485 N. W. 2d 21 (1992) (holding that a 60-day waiting period for applicant for general relief is not a penalty and therefore not unconstitutional).

10

After this case was argued, petitioner Rita L. Saenz replaced Eloise Anderson as Director, California Department of Social Services.

11

“We do not doubt that the one-year waiting-period device is well suited to discourage the influx of poor families in need of assistance.... But the purpose of inhibiting migration by needy persons into the State is constitutionally impermissible.” 394 U. S., at 629.

“Thus, the purpose of deterring the in-migration of indigents cannot serve as justification for the classification created by the one-year waiting period_ If a law has ‘no other purpose ... than to chill the assertion of constitutional rights by penalizing those who choose to exercise them, then it [is] patently unconstitutional.’ United States v. Jackson, 390 U. S. 570, 581 (1968).” Id., at 631.

12

Brief for United States as Amicus Curiae 8,10.

13

“The 4th article, respecting the [sic] extending the rights of the Gitizens of each State, throughout the United States ... is formed exactly upon the principles of the 4th article of the present Confederation.” 3 Records of the Federal Convention of 1787, p. 112 (M. Farrand ed. 1966). Article IV of the Articles of Confederation provided that “the people of each State shall have free ingress and regress to and from any other State.”

14

Corfield v. Coryell, 6 F. Cas. 546 (No. 3,230) (CCED Pa. 1823) (Washington, J., on circuit) (“fundamental” rights protected by the Privileges and Immunities Clause include “the right of a citizen of one state to pass through, or to reside in any other state”).

15

The Framers of the Fourteenth Amendment modeled this Clause upon •the “Privileges and Immunities” Clause found in Article IV. Cong. Globe, 39th Cong., 1st Sess., 1033-1034 (1866) (statement of Rep. Bingham). In Dred Scott v. Sandford, 19 How. 393 (1857), this Court had limited the protection of Article IV to rights under state law and concluded that free blacks could not claim citizenship. The Fourteenth Amendment overruled this decision. The Amendment’s Privileges or Immunities Clause and Citizenship Clause guaranteed the rights of newly freed black citizens by ensuring that they could claim the state citizenship of any State in which they resided and by precluding that State from abridging their rights of national citizenship.

16

U. S. Const., Amdt. §1. The remainder of the section provides: “nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

17

“Federalism was our Nation’s own discovery. The Framers split the atom of sovereignty. It was the genius of .their idea that our citizens would have 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.” U S. Term Limits, Inc. v. Thornton, 514 U. S. 779, 838 (1995) (Kennedy, J., concurring).

18

App. 21-26.

19

The District Court and the Court of Appeals concluded, however, that the “apparent purpose of § 11450.03 was to deter migration of poor people to California.” Roe v. Anderson, 134 F. 3d 1400, 1404 (CA9 1998).

20

See Cohen, Discrimination Against New State Citizens: An Update, 11 Const. Comm. 73, 79 (1994) (“[Jjust as it would violate the Constitution to deny these new arrivals state citizenship, it would violate the Constitution to concede their citizenship in name only while treating them as if they were still citizens of other states”).

21

“‘Congress is without power to enlist state cooperation in a joint federal-state program by legislation which authorizes the States to violate the Equal Protection Clause.’ Shapiro v. Thompson, 394 U. S. 618, 641 (1969).” Townsend v. Swank, 404 U. S. 282, 291 (1971).

22

Brief for United States as Amicus Curiae 29, n. 10.

23

Id., at 9; see also id., at 3, 8,14,15,20, 22,23,24, 27, 28,28-29.

24

Id., at 8. See H. R. Rep. No. 104-651, p. 1387 (1996) (“States that want to pay higher benefits should not be deterred from doing so by the fear that they will attract large numbers of recipients from bordering States”).

25

Brief for United States as Amicus Curiae 16. See States’ Perspective on Welfare Reform: Hearing before the Senate Committee on Finance, ' 104th Cong., 1st Sess., 9 (1995).

26

Brief for United States as Amicus Curiae 30, n. 11.

27

As Justice Jackson observed: “[I]t is a privilege of citizenship of the United States, protected from state abridgment, to enter any State of the Union, either for temporary sojourn or for the establishment of permanent residence therein and for gaining resultant citizenship thereof If national citizenship means less than this, it means nothing.” Edwards v. California, 314 U. S. 160, 183 (1941) (concurring opinion).

Ghief Justice Rehnquist,

with whom Justice Thomas joins, dissenting.

The Court today breathes new life into the previously dormant Privileges or Immunities Clause of the Fourteenth Amendment — a Clause relied upon by this Court in only one other decision, Colgate v. Harvey, 296 U. S. 404 (1935), overruled five years later by Madden v. Kentucky, 309 U. S. 83 (1940). It uses this Clause to strike down what I believe is a reasonable measure falling under the head of a “good-faith residency requirement.” Because I do not think any provision of the Constitution — and surely not a provision relied upon for only the second time since its enactment 130 years ago — requires this result, I dissent.

i — Í

Much of the Court’s opinion is unremarkable and sound. The right to travel clearly embraces the right to go from one place to another, and prohibits States from impeding the free interstate passage of citizens. The state law in Edwards v. California, 314 U. S. 160 (1941), which prohibited the transport of any indigent person into California, was a classic harrier to travel or migration and the Court rightly struck it down. Indeed, for most of this country’s history, what the Court today calls the first “component” of the right to travel, ante, at 500, was the entirety of this right. As Chief Justice Taney stated in his dissent in the Passenger Cases, 7 How. 283 (1849):

“We are all citizens of the United States; and, as members of the same community, must have the right to pass and repass through every part of it without interruption, as freely as in our own States. And a tax imposed by a State for entering its territories or harbours is inconsistent with the rights which belong to the citizens of other States as members of the Union, and with the objects which that Union was intended to attain. Such a power in the States could produce nothing but discord and mutual irritation, and they very clearly do not possess it.” Id., at 492.

See also Crandall v. Nevada, 6 Wall. 35, 44 (1868); Williams v. Fears, 179 U. S. 270, 274 (1900); Memorial Hospital v. Maricopa County, 415 U. S. 250, 280-288 (1974) (Rehnquist, J., dissenting) (collecting and discussing cases). The Court wisely holds that because Cal. Welf. & Inst. Code Ann. § 11450,03 (West Supp. 1999) imposes no obstacle to respondents’ entry into California, the statute does not infringe upon the right to travel. See ante, at 501: Thus, the traditional conception of the right to travel is simply not an issue in this case.

I also have no difficulty with aligning the right to travel with the protections afforded by the Privileges and Immunities Clause of Article IV, §2, to nonresidents who enter other States “intending to return home at the end of [their] journey.” See ante, at 501. Nonresident visitors of other States should not be subject to discrimination solely because they live out of State. See Paul v. Virginia, 8 Wall. 168 (1869); Hicklin v. Orbeck, 437 U. S. 518 (1978). Like the traditional right-to-travel guarantees discussed above, however, this Clause has no application here, because respondents expressed a desire to stay in California and become citizens of that State. Respondents therefore plainly fall outside the protections of Article IV, §2.

Finally, I agree with the proposition that a “citizen of the United States can, of his own volition, become a citizen of any State of the Union by a bona fide residence therein, with the same rights as other citizens of that State.” SlaughterHouse Cases, 16 Wall. 36, 80 (1873).

see the right to become a citizen of another State is a necessary “component” of the right to travel, or why the Court tries to marry these separate and distinct rights. A person is no longer “traveling” in any sense of the word when he finishes his journey to a State which he plans to make his home. Indeed, under the Court’s logic, the protections of the Privileges or Immunities Glause recognized in this ease come into play only when an individual stops traveling with the intent to remain and become a citizen of a new State. The right to travel and the right to become a citizen are distinct, their relationship is not reciprocal, and one is not a “component” of the other. Indeed, the same dicta from the Slaughter-House Cases quoted by the Court actually treat the right to become a citizen and the right to travel as separate and distinct rights under the Privileges or Immunities Clause of the Fourteenth Amendment. See id., at 79-80.1 At most, restrictions on an individual’s right to become a citizen indirectly affect his calculus in deciding whether to exercise his right to travel in the first place, but such an attenuated and uncertain relationship is no ground for folding one right into the other.

No doubt the Court has, in the past years, conflated the right to travel with the right to equal state citizenship in striking down durational residence requirements similar to the one challenged here. See, e. g., Shapiro v. Thompson, 394 U. S. 618 (1969) (striking down 1-year residence before receiving any welfare benefit); Dunn v. Blumstein, 405 U. S. 330 (1972) (striking down 1-year residence before receiving the right to vote in state elections); Mari-copa County, 415 U. S., at 280-283 (striking down 1-year county residence before receiving entitlement to nonemer-gency hospitalization or emergency care). These cases marked a sharp departure from the Court’s prior right-to-travel cases because in none of them was travel itself prohibited. See id., at 254-255 (“Whatever its ultimate scope ... the right to travel was involved in only a limited sense in Shapiro”); Shapiro, supra, at 671-672 (Harlan, J., dissenting).

Instead, the Court in these cases held that provision of welfare benefits, votes, or certain medical benefits to new citizens for a limited time impermissibly “penalized” them under the Equal Protection Clause of the Fourteenth Amendment for having exercised their right to travel. See Maricopa County, supra, at 257. The Court thus settled for deciding what restrictions amounted to “deprivations of very important benefits and rights” that operated to indirectly “penalize” the right to travel. See Attorney General of K Y. v. Soto-Lopez, 476 U. S. 898, 907 (1986) (plurality opinion). In other eases, the Court recognized that laws dividing new and old residents had little to do with the right to travel and merely triggered an inquiry into whether the resulting classification rationally furthered a legitimate government purpose. See Zobel v. Williams, 457 U. S. 55, 60, n. 6 (1982); Hooper v. Bernalillo County Assessor, 472 U. S. 612, 618 (1985).2 While Zobel and Hooper reached the wrong result in my view, they at least put the Court on the proper track in identifying exactly what interests it was protecting; namely, the right of individuals not to be subject to unjustifiable classifications as opposed to infringements on the right to travel.

today tries to clear much of the underbrush created by these prior right-to-travel eases, abandoning its effort to define what residence requirements deprive individuals of “important rights and benefits” or “penalize” the right to travel. See ante, at 504-507. Under its new analytical framework, a State, outside certain ill-defined circumstances, cannot classify its citizens by the length of their residence in the State without offending the Privileges or Immunities Clause of the Fourteenth Amendment. The Court thus departs from Shapiro and its progeny, and, while paying lipserviee to the right to travel, the Court does little to explain how the right to travel is involved at all. Instead, as the Court’s analysis clearly demonstrates, see ante, at 504-507, this case is only about respondents’ right to immediately enjoy all the privileges of being a California citizen in relation to that State’s ability to test the good-faith assertion of this right. The Court has thus come fall circle by effectively disavowing the analysis of Shapiro, segregating the right to travel and the rights secured by Article IV from the right to become a citizen under the Privileges or Immunities Clause, and then testing the residence requirement here against this latter right. For all its misplaced efforts to fold the right to become a citizen into the right to travel, the Court has essentially returned to its original understanding of the right to travel.

II

In unearthing from its tomb the right to become a state citizen and to be treated equally in the new State of residence, however, the Court ignores a State’s need to assure that only persons who establish a bona fide residence receive the benefits provided to current residents of the State. The Slaughter-House dicta at the core, of the Court’s analysis specifically condition a United States citizen’s right to “become a citizen of any state of the Union” and to enjoy the “same rights as other citizens of that State” on the establishment of a “bond fide residence therein.” 16 Wall., at 80 (emphasis added). Even when redefining the right to travel in Shapiro and its progeny, the Court has “always carefully distinguished between bona fide residence requirements, which seek to differentiate between residents and nonresidents, and residence requirements, such as durational, fixed date, and fixed point residence requirements, which treat established residents differently based on the time they migrated into the State.” Soto-Lopez, supra, at 903, n. 3 (citing eases).

Thus, the Court has consistently recognized that while new citizens must have the same opportunity to enjoy the privileges of being a citizen of a State, the States retain the ability to use bona fide residence requirements to ferret out those who intend to take the privileges and run. As this Court explained in Martinez v. Bynum, 461 U. S. 321, 328-329 (1983): “A bona fide residence requirement, appropriately defined and uniformly applied, furthers the substantial state interest in assuring that services provided for its residents are enjoyed only by residents. ... A bona fide residence requirement simply requires that the person does establish residence before demanding the services that are restricted to residents.” The Martinez Court explained that “residence” requires “both physical presence and an intention to remain,” see id., at 330, and approved a Texas law that restricted eligibility for tuition-free education to families who met this minimum definition of residence, id., at 332-333.

While the physical presence element of a bona fide residence is easy to police, the subjective intent element is not. It is simply unworkable and futile to require States to inquire into each new resident’s subjective intent to remain. Hence, States employ objective criteria such as durational residence requirements to test a new resident’s resolve to remain before these new citizens can enjoy certain in-state benefits. Recognizing the practical appeal of such criteria, this Court has repeatedly sanctioned the State’s use of du-rational residence requirements before new residents receive in-state tuition rates at state universities. Starns v. Malkerson, 401 U. S. 985 (1971), summarily aff’g 326 F. Supp. 234 (Minn. 1970) (upholding 1-year residence requirement for instate tuition); Sturgis v. Washington, 414 U. S. 1057, summarily aff’g 368 F. Supp. 38 (WD Wash. 1973) (same). The Court has declared: “The State can establish such reasonable criteria for in-state status as to make virtually certain that students who are not, in fact, bona fide residents of the State, but have come there solely for educational purposes, cannot take advantage of the in-state rates.” Vlandis v. Kline, 412 U. S. 441, 453-464 (1973). The Court has done the same in upholding a 1-year residence requirement for eligibility to obtain a divorce in state courts, see Sosna v. Iowa, 419 U. S. 393, 406-409 (1975), and in upholding political party registration restrictions that amounted to a durational residency requirement for voting in primary elections, see Rosario v. Rockefeller, 410 U. S. 752, 760-762 (1973).

If States can require year before exercising the right to educational benefits, the right to terminate a marriage, or the right to vote in primary elections that all other state citizens enjoy, then States may surely do the same for welfare benefits. Indeed, there is no material difference between a 1-year residence requirement applied to the level of welfare benefits given out by a State, and the same requirement applied to the level of tuition subsidies at a state university. The welfare payment here and in-state tuition rates are cash subsidies provided to a limited class of people, and California’s standard of living and higher education system make both subsidies quite attractive. Durational residence requirements were upheld when used to regulate the provision of higher education subsidies, and the same deference should be given in the case of welfare payments. See Dandridge v. Williams, 397 U. S. 471, 487 (1970) (“[T]he Constitution does not empower this Court to second-guess state officials charged with the difficult responsibility of allocating limited public welfare funds among the myriad of potential recipients”).

The Court today recognizes that States to determine the bona fides of an individual’s claim to residence, see ante, at 505, but then tries to avoid the issue. It asserts that because respondents’ need for welfare benefits is unrelated to the length of time they have resided in California, it has “no occasion to consider what weight might be given to a citizen’s length of residence if the bona fides of her claim to state citizenship were questioned.” See ibid. But I do not understand how the absence of a link between need and length of residency bears on the State’s ability to objectively test respondents’ resolve to stay in California. There is no link between the need for an education or for a divorce and the length of residence, and yet States may use length of residence as an objective yardstick to channel their benefits to those whose intent to stay is legitimate.

has a greater need to require a durational residence for welfare benefits than for college eligibility. The impact of a large number of new residents who immediately seek welfare payments will have a far greater impact on a State’s operating budget than the impact of new residents seeking to attend a state university. In the ease of the welfare recipients, a modest durational residence requirement to allow for the completion of an annual legislative budget cycle gives the State time to decide how to finance the increased obligations.

tries to distinguish education and divorce benefits by contending that the welfare payment here will be consumed in California, while a college education or a divorce produces benefits that are “portable” and can be enjoyed after individuals return to their original domicile. Ibid. But this “you can’t take it with you” distinction is more apparent than real, and offers little guidance to lower courts who must apply this rationale in the future. Welfare payments are a form of insurance, giving impoverished individuals and their families the means to meet the demands of daily life while they receive the necessary training, education, and time to look for a job. The cash itself will no doubt be spent in California, but the benefits from receiving this income and having the opportunity to become employed or employable will stick with the welfare recipients if they stay in California or go back to their true domicile. Similarly, tuition subsidies are “consumed” in-state but the recipient takes the benefits of a college education with him wherever he goes. A welfare subsidy is thus as much an investment in human capital as is a tuition subsidy, and their attendant benefits are just as “portable.”3 More importantly, this foray into social economics demonstrates that the line drawn by the Court borders on the metaphysical, and requires lower courts to plumb the policies animating certain benefits like welfare to define their “essence” and hence their “portability.” As this Court wisely recognized almost 30 years ago, “[t]he intractable economic, social, and even philosophical problems presented by public welfare assistance programs are not the business of this Court.” Dandridge, supra, at 487.

I therefore believe ment challenged here is a permissible exercise of the State’s power to “assur[e] that services provided for its residents are enjoyed only by residents.” Martinez, 461 U. S., at 328. The 1-year period established in § 11450.03 is the same period this Court approved in Stams and Sosa. The requirement does not deprive welfare recipients of all benefits; indeed, the limitation has no effect whatsoever on a recipient’s ability to enjoy the full 5-year period of welfare eligibility; to enjoy the full range of employment, training, and accompanying supportive services; or to take full advantage of health care benefits under Medicaid. See Brief for Petitioners 7-8,27. This waiting period does not preclude new residents from all cash payments, but merely limits them to what they received in their prior State of residence. Moreover, as the Court recognizes, see ante, at 497, any pinch resulting from this limitation during the 1-year period is mitigated by other programs such as homeless assistance and an increase in food stamp allowance. The 1-year period thus permissibly balances the new resident’s needs for subsistence with the State’s need to ensure the bona fides of their claim to residence.

Finally, Congress’ express approval in 42 U. S. C. § 604(c) of durational residence requirements for welfare recipients like the one established by California only goes to show the reasonableness of a law like § 11450.03. The National Legislature, where people from Mississippi as well as California are represented, has recognized the need to protect state resources in a time of experimentation and welfare reform. As States like California revamp their total welfare packages, see Brief for Petitioners 5-6, they should have the authority and flexibility to ensure that their new programs are not exploited. Congress has decided that it makes good welfare policy to give the States this power. California has reasonably exercised it through an objective, narrowly tailored residence requirement. I see nothing in the Constitution that should prevent the enforcement of that requirement.

1

The Court’s decision in the Slaughter-House Cases only confirms my view that state infringement on the right to travel is limited to the kind of barrier established in Edwards v. California, 314 U. S. 160 (1941), and its discussion is worth quoting in full:

should be said that no such privileges and immunities are to be found if those we have been considering are excluded, we venture to suggest some which own their existence to the Federal government, its National character, its Constitution, or its laws.

“One of these is well described in the case of v. Wall. 35 (1868)]. It is said to be the right of the citizen of this great-country, protected by implied guarantees of its Constitution, ‘to come to the seat of government to assert any claim he may have upon that government, to transact any business he may have with it, to seek its protection, to share its offices, to engage in administering its functions. He has the right of free access to its seaports, through which all operations of foreign commerce are conducted, to the subtreasuries, land offices, and courts of justice in the several States.’ And quoting from the language of Chief Justice Taney in another case, it is said ‘that for all the great purposes for which, the Federal government was established, we are one people, with one common country, we are all citizens of the United States;’ and it is, as such citizens, that their rights are supported in this court in Crandall v. Nevada.” 16 Wall., at 79 (footnote omitted).

2

As Chief Justice Burger aptly stated in Zobel: "In reality, right to travel analysis refers to little more than a particular application of equal protection analysis. Right to travel cases have examined, in equal protection terms, state distinctions between newcomers and longer term residents.” 457 U. S., at 60, n. 6.

3

The same analysis applies to divorce.

Justice Thomas,

with whom The Chief Justice joins, dissenting.

I join The Chief Justice’s dissent. I write separately to address the majority’s conclusion that California has violated “the right of the newly arrived citizen to the same privileges and immunities enjoyed by other citizens of the same State.” Ante, at 502. In my view, the majority attributes a meaning to the Privileges or Immunities Clause that likely was unintended when the Fourteenth Amendment was enacted and ratified.

The Privileges or Immunities Clause of the Fourteenth Amendment provides that “[n]o State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.” U. S. Const., Arndt. 14, § 1. Unlike the Equal Protection and Due Process Clauses, which have assumed near-talismanic status in modern constitutional law, the Court all but read the Privileges or Immunities Clause out of the Constitution in the Slaughter-House Cases, 16 Wall. 36 (1873). There, the Court held that the State of Louisiana had not abridged the Privileges or Immunities Clause by granting a partial monopoly of the slaughtering business to one company. Id., at 59-63, 66. The Court reasoned that the Privileges or Immunities Clause was not intended “as a protection to the citizen of a State against the legislative power of his own State.” Id., at 74. Rather the “privileges or immunities of citizens” guaranteed by the Fourteenth Amendment were limited to those “belonging to a citizen of the United States as such.” Id., at 75. The Court declined to specify the privileges or immunities that fell into this latter category, but it made clear that few did. See id., at 76 (stating that “nearly every civil right for the establishment and protection of which organized government is instituted,” including “those rights which are fundamental,” are not protected by the Clause).

Unlike the majority, I the original meaning of the Clause.1 At least in American law, the phrase (or its close approximation) appears to stem from the 1606 Charter of Virginia, which provided that “all and every the Persons being our Subjects, which shall dwell and inhabit within every or any of the said several Colonies . . . shall HAVE and enjoy all Liberties, Franchises, and Immunities ... as if they had been abiding and born, within this our Realme of England” 7 Federal and State Constitutions, Colonial Charters and Other Organic Laws 3788 (F. Thorpe ed. 1909). Other colonial charters contained similar guarantees.2 Years later, as tensions between England and the American Colonies increased, the colonists adopted resolutions reasserting their entitlement to the privileges or immunities of English citizenship.3

The colonists’ repeated assertions that they maintained the rights, privileges, and immunities of persons “born within the realm of England” and “natural born” persons suggests that, at the time of the founding, the terms “privileges” and “immunities” (and their counterparts) were understood to refer to those fundamental rights and liberties specifically enjoyed by English citizens and, more broadly, by all persons. Presumably members of the Second Continental Congress so understood these terms when they employed them in the Articles of Confederation, which guaranteed that “the free inhabitants of each of these States, paupers, vagabonds and fugitives from justice excepted, shall be entitled to all privileges and immunities of free citizens in the several States.” Art. IV. The Constitution, whieh superceded the Articles of Confederation, similarly guarantees that “[t]he Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States.” Art. IV, §2, cl. 1.

Justice Bushrod Washington’s landmark opinion in Corfield v. Coryell, 6 F. Cas. 546 (No. 3,230) (CCED Pa. 1825), refleets this historical understanding. In Coifield, a citizen of Pennsylvania challenged a New Jersey law that prohibited any person who was not an “actual inhabitant and resident” of New Jersey from harvesting oysters from New Jersey waters. Id., at 550. Justice Washington, sitting as Circuit Justice, rejected the argument that the New Jersey law violated Article IV’s Privileges and Immunities Clause. He reasoned, “we cannot accede to the proposition ... that, under this provision of the constitution, the citizens of the several states are permitted to participate in all the rights which belong exclusively to the citizens of any other particular state, merely upon the ground that they are enjoyed by those citizens.” Id., at 552. Instead, Washington concluded:

“We feel no hesitation in confining these expressions to those privileges and immunities which are, in their nature, fundamental; which belong, of right, to the citizens of all free governments; and which have, at all times, been enjoyed by the citizens of the several states which compose this Union, from the time of their becoming free, independent, and sovereign. What these fundamental principles are, it would perhaps be more tedious than difficult to enumerate. They may, however, be all comprehended under the following general heads: Protection by the government; the enjoyment of life and liberty, with the right to acquire and possess property of every kind, and to pursue and obtain happiness and safety; subject nevertheless to such restraints as the government may justly prescribe for the general good of the whole. The right of a citizen of one state to pass through, or to reside in any other state, for purposes of trade, agriculture, professional pursuits, or otherwise; to claim the benefit of the writ of habeas corpus; to institute and maintain actions of any kind in the courts of the state; . . . and an exemption from higher taxes or impositions than are paid by the other citizens of the state;... the elective franchise, as regulated and established by the laws or constitution of the state in which it is to be exercised. These, and many others which might be mentioned, are, strictly speaking, privileges and immunities.” Id., at 551-552.

Washington rejected the proposition that the Privileges and Immunities Clause guaranteed equal access to all public benefits (such as the right to harvest oysters in public waters) that a State chooses to make available. Instead, he endorsed the colonial-era conception of the terms “privileges” and “immunities,” concluding that Article IV encompassed only fundamental rights that belong to all citizens of the United States.4 Id., at 552.

Justice Washington’s opinion in Corfield indisputably influenced the Members of Congress who enacted the Fourteenth Amendment. When Congress gathered to debate the Fourteenth Amendment, Members frequently, if not as a matter of course, appealed to Corfield, arguing that the Amendment was necessary to guarantee the fundamental rights that Justice Washington identified in his opinion. See Harrison, Reconstructing the Privileges or Immunities Clause, 101 Yale L. J. 1385, 1418 (1992) (referring to a Member’s “obligatory quotation from Corfield”). For just one example, in a speech introducing the Amendment to the Senate, Senator Howard explained the Privileges or Immunities Clause by quoting at length from Corfield.5 Cong. Globe, 39th Cong., 1st Sess., 2765 (1866). Furthermore, it appears that no Member of Congress refuted the notion that Washington’s analysis in Corfield undergirded the meaning of the Privileges or Immunities Clause.6

That Members of the 39th Congress appear to have endorsed the wisdom of Justice Washington’s opinion does not, standing alone, provide dispositive insight into their understanding of the Fourteenth Amendment’s Privileges or Immunities Clause. Nevertheless, their repeated references to the Corjield decision, combined with what appears to be the historical understanding of the Clause’s operative terms, supports the inference that, at the time the Fourteenth Amendment was adopted, people understood that “privileges or immunities of citizens” were fundamental rights, rather than every public benefit established by positive law. Accordingly, the majority’s conclusion — that a State violates the Privileges or Immunities Clause when it “discriminates” against citizens who have been domiciled in the State for less than a year in the distribution of welfare benefits — appears contrary to the original understanding and is dubious at best.

As The ChieF Justice points out, ante, at 511, it comes as quite a surprise that the majority relies on the Privileges or Immunities Clause at all in this case. That is because, as I have explained supra, at 521-522, the Slaughter-House Cases sapped the Clause of any meaning. Although the majority appears to breathe new life into the Clause today, it fails to address its historical underpinnings or its place in our constitutional jurisprudence. Because I believe that the demise of the Privileges or Immunities Clause has contributed in no small part to the current disarray of our Fourteenth Amendment jurisprudence, I would be open to reevaluating its meaning in an appropriate ease. Before invoking the Clause, however, we should endeavor to understand what the Framers of the Fourteenth Amendment thought that it meant. We should also consider whether the Clause should displace, rather than augment, portions of our equal protection and substantive due process jurisprudence. The majority’s failure to consider these important questions raises the specter that the Privileges or Immunities Clause will become yet another convenient tool for inventing new rights, limited solely by the “predilections of those who happen at the time to be Members of this Court.” Moore v. East Cleveland, 481 U. S. 494, 502 (1977).

I respectfully dissent.

1

Legal scholars agree on little beyond the conclusion that the Clause does not mean what the Court said it meant in 1873. See, e. g., Harrison, Reconstructing the Privileges or Immunities Clause, 101 Yale L. J. 1385, 1418 (1992) (Clause is an antidiscrimination provision); D. Currie, The Constitution in the Supreme Court 341-351 (1985) (same); 2 W. Crosskey, Politics and the Constitution in the History of the United States 1089-1095 (1958) (Clause incorporates first eight Amendments of the Bill of Rights); M. Curtis, No State Shall Abridge 100 (1986) (Clause protects the rights included in the Bill of Rights as well as other fundamental rights); B. Siegan, Supreme Court’s Constitution 46-71 (1987) (Clause guarantees Lockean conception of natural rights); Ackerman, Constitutional Politics/Constitutional Law, 99 Yale L. J. 453, 521-536 (1989) (same); J. Ely, Democracy and Distrust 28 (1980) (Clause “was a delegation to future constitutional decision-makers to protect certain rights that the document neither lists ... or in any specific way gives directions for finding”); R. Berger, Government by Judiciary 30 (2d ed. 1997) (Clause forbids race discrimination with respect to rights listed in the Civil Rights Act of 1866); R. Bork, The Tempting of America 166 (1990) (Clause is inscrutable and should be treated as if it had been obliterated by an ink blot).

2

See 1620 Charter of New England, in 3 Thorpe, at 1839 (guaranteeing “[liberties, and ffranchizes, and Immunities of free Denizens and naturall Subjects”); 1622 Charter of Connecticut, reprinted in 1 id, at 553 (guaranteeing "[liberties and Immunities of free and natural Subjects”); 1629 Charter of the Massachusetts Bay Colony, in 3 id, at 1857 (guaranteeing the “liberties and Immunities of free and naturall subjects”); 1632 Charter of Maine, in 3 id, at 1635 (guaranteeing “[l]iberties[,] Francheses and Immunityes of or belonging to any of the naturall borne subjects”); 1632 Charter of Maryland, in 3 id, at 1682 (guaranteeing “Privileges, Franchises and Liberties”); 1663 Charter of Carolina, in 5 id., at 2747 (holding “liberties, franchises, and privileges” inviolate); 1663 Charter of the Rhode Island and Providence Plantations, in 6 id, at 3220 (guaranteeing “lib-ertyes and immunityes of ffree and naturall subjects”); 1732 Charter of Georgia, in 2 id, at 773 (guaranteeing “liberties, franchises and immunities of free denizens and natural bom subjects”). 3

3

Seee.g., Massachusetts Resolves, in Prologue to Revolution: Sources and Documents on the Stamp Act Crisis 56 (E. Morgan ed. 1959) (“Resolved, That there are certain essential Rights of the British Constitution of Government, which are founded in the Law of God and Nature, and are the common Rights of Mankind — Therefore, . . . Resolved that no Man can justly take the Properly of another without his Consent... this inherent Right, together with all other essential Rights, Liberties, Privileges and Immunities of the People of Great Britain have been fully confirmed to them by Magna Charla”); The Virginia Resolves, id., at 47-48 (“[Tjhe Colonists aforesaid are declared entitled to all Liberties, Privileges, and Immunities of Denizens and natural Subjects, to all Intents and Purposes, as if they had been abiding and bom within the Realm of England”)’, 1774 Statement of Violation of Rights, 1 Journals of the Continental Congress 68 (1904) (“[0]ur ancestors, who first settled these colonies, were at the time of their emigration from the mother country, entitled to all the rights, liberties, and immunities of free and natural-born subjects, within the realm of England . . . Resolved . . . [t]hat by such emigration they by no means forfeited, surrendered or lost any of those rights”).

4

During the first half of the 19th century, a number of legal scholars and state courts endorsed Washington's conclusion that the Clause protected only fundamental rights. See, e. g., Campbell v. Morris, 3 H. & McH. 535, 554 (Md. 1797) (Chase, J.) (Clause protects property and personal rights); Douglass v. Stephens, 1 Del. Ch. 465, 470 (1821) (Clause protects the “absolute rights” that “all men by nature have”); 2 J. Kent, Commentaries on American Law 71-72 (1836) (Clause “confined to those [rights] which were, in their nature, fundamental”). See generally Antieau, Paul’s Perverted Privileges or the True Meaning of the Privileges and Immunities Clause of Article Four, 9 Wm. & Mary L. Rev. 1,18-21 (1967) (collecting sources).

5

He also observed that, while the Supreme Court had not “undertaken to define either the nature or extent of the privileges and immunities,” Washington’s opinion gave “some intimation of what probably will be the opinion of the judiciary.” Cong. Globe, 39th Cong., 1st Sess., 2765 (1866).

6

During debates on the Civil Rights Act of 1866, Members Congress also repeatedly invoked Corfield to support the legislation. See generally Siegan, Supreme Court’s Constitution, at 46-56. The Act’s sponsor, Senator Trumbull, quoting from Corfield, explained that the legislation protected the “fundamental rights belonging to every man as a free man, and which under the Constitution as it now exists we have a right to protect every man in.” Cong. Globe, supra, at 476. The Civil Rights Act is widely regarded as the precursor to the Fourteenth Amendment. See, e. g., J. tenBroek, Equal Under Law 201 (rev. ed. 1965) (“The one point upon which historians of the Fourteenth Amendment agree, and, indeed, which the evidence places beyond cavil, is that the Fourteenth Amendment was designed to place the constitutionality of the Freedmen’s Bureau and civil rights bills, particularly the latter, beyond doubt”).

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.

BROWN et al. v. BOARD OF EDUCATION OF TOPEKA et al.

NO. 1.

Argued December 9, 1952.

Reargued December 8, 1953.

Decided May 17, 1954.

*484Robert L. Carter argued the cause for appellants in No. 1 on the original argument and on the reargument. Thurgood Marshall argued the cause for appellants in No. 2 on the original argument and Spottswood W. Robinson, III, for appellants in No. 4 on the original argument, and both argued the causes for appellants in Nos. 2 and 4 on the reargument. Louis L. Redding and Jack Green-berg argued the cause for respondents in No. 10 on the original argument and Jack Greenberg and Thurgood Marshall on the reargument.

On the briefs were Robert L. Carter, Thurgood Marshall, Spottswood W. Robinson, III, Louis L. Redding, Jack Greenberg, George E. C. Hayes, William R. Ming, Jr., Constance Baker Motley, James M. Nabrit, Jr., Charles S. Scott, Frank D. Reeves, Harold R. Boulware and Oliver W. Hill for appellants in Nos. 1, 2 and 4 and respondents in No. 10; George M. Johnson for appellants in Nos. 1, 2 and 4; and Loren Miller for appellants in Nos. 2 and 4. Arthur D. Shores and A. T. Walden were on the Statement as to Jurisdiction and a brief opposing a Motion to Dismiss or Affirm in No. 2.

Paul E. Wilson, Assistant Attorney General of Kansas, argued the cause for appellees in No. 1 on the original argument and on the reargument. With him on the briefs was Harold R. Fatzer, Attorney General.

John W. Davis argued the cause for appellees in No. 2 on the original argument and for appellees in Nos. 2 and 4 on the reargument. With him on the briefs in No. 2 were T. C. Callison, Attorney General of South Carolina, Robert McC. Figg, Jr., S. E. Rogers, William R. Meagher and Taggart Whipple.

*485J. Lindsay Almond, Jr., Attorney General of Virginia, and T. Justin Moore argued the cause for appellees in No. 4 on the original argument and for appellees in Nos. 2 and 4 on the reargument. On the briefs in No. 4 were J. Lindsay Almond, Jr., Attorney General, and Henry T. Wickham, Special Assistant Attorney General, for the State of Virginia, and T. Justin Moore, Archibald O. Robertson, John W. Riely and T. Justin Moore, Jr. for the Prince Edward County School Authorities, appellees.

H. Albert Young, Attorney General of Delaware, argued the cause for petitioners in No. 10 on the original argument and on the reargument. With him on the briefs was Louis J. Finger, Special Deputy Attorney General.

By special leave of Court, Assistant Attorney General Rankin argued the cause for the United States on the reargument, as amicus curiae, urging reversal in Nos. 1, 2 and 4 and affirmance in No. 10. With him on the brief were Attorney General Brownell, Philip Elman, Leon Ulman, William J. Lamont and M. Magdelena Schoch. James P. McGranery, then Attorney General, and Philip Elman filed a brief for the United States on the original argument, as amicus curiae, urging reversal in Nos. 1, 2 and 4 and affirmance in No. 10.

Briefs of amici curiae supporting appellants in No. 1 were filed by Shad Polier, Will Maslow and Joseph B. Robison for the American Jewish Congress; by Edwin J. Lukas, Arnold Forster, Arthur Garfield Hays, Frank E. Karelsen, Leonard Haas, Saburo Kido and Theodore Leskes for the American Civil Liberties Union et al.; and by John Ligtenberg and Selma M. Borchardt for the American Federation of Teachers. Briefs of amici curiae supporting appellants in No. 1 and respondents in No. 10 were filed by Arthur J. Goldberg and Thomas E. Harris *486for the Congress of Industrial Organizations and by Phineas Indritz for the American Veterans Committee, Inc.

Mr. Chief Justice Warren

delivered the opinion of the Court.

These cases come to us from the States of Kansas, South Carolina, Virginia, and Delaware. They are premised on different facts and different local conditions, but a common legal question justifies their consideration together in this consolidated opinion.1

*487In each of the cases, minors of the Negro race, through their legal representatives, seek the aid of the courts in obtaining admission to the public schools of their community on a nonsegregated basis. In each instance, *488they had been denied admission to schools attended by white children under laws requiring or permitting segregation according to race. This segregation was alleged to deprive the plaintiffs of the equal protection of the laws under the Fourteenth Amendment. In each of the cases other than the Delaware case, a three-judge federal district court denied relief to the plaintiffs on the so-called “separate but equal” doctrine announced by this Court in Plessy v. Ferguson, 163 U. S. 537. Under that doctrine, equality of treatment is accorded when the races are provided substantially equal facilities, even though these facilities be separate. In the Delaware case, the Supreme Court of Delaware adhered to that doctrine, but ordered that the plaintiffs be admitted to the white schools because of their superiority to the Negro schools.

The plaintiffs contend that segregated public schools are not “equal” and cannot be made “equal,” and that hence they are deprived of the equal protection of the laws. Because of the obvious importance of the question presented, the Court took jurisdiction.2 Argument was heard in the 1952 Term, and reargument was heard this Term on certain questions propounded by the Court.3

*489Reargument was largely devoted to the circumstances surrounding the adoption of the Fourteenth Amendment in 1868. It covered exhaustively consideration of the Amendment in Congress, ratification by the states, then existing practices in racial segregation, and the views of proponents and opponents of the Amendment. This discussion and our own investigation convince us that, although these sources cast some light, it is not enough to resolve the problem with which we are faced. At best, they are inconclusive. The most avid proponents of the post-War Amendments undoubtedly intended them to remove all legal distinctions among “all persons born or naturalized in the United States.” Their opponents, just as certainly, were antagonistic to both the letter and the spirit of the Amendments and wished them to have the most limited effect. What others in Congress and the state legislatures had in mind cannot be determined with any degree of certainty.

An additional reason for the inconclusive nature of the Amendment’s history, with respect to segregated schools, is the status of public education at that time.4 In the South, the movement toward free common schools, sup*490ported by general taxation, had not yet taken hold. Education of white children was largely in the hands of private groups. Education of Negroes was almost nonexistent, and practically all of the race were illiterate. In fact, any education of Negroes was forbidden by law in some states. Today, in contrast, many Negroes have achieved outstanding success in the arts and sciences as well as in the business and professional world. It is true that public school education at the time of the Amendment had advanced further in the North, but the effect of the Amendment on Northern States was generally ignored in the congressional debates. Even in the North, the conditions of public education did not approximate those existing today. The curriculum was usually rudimentary ; ungraded schools were common in rural areas; the school term was but three months a year in many states; and compulsory school attendance was virtually unknown. As a consequence, it is not surprising that there should be so little in the history of the Fourteenth Amendment relating to its intended effect on public education.

In the first cases in this Court construing the Fourteenth Amendment, decided shortly after its adoption, the Court interpreted it as proscribing all state-imposed discriminations against the Negro race.5 The doctrine of *491“separate but equal” did not make its appearance in this Court until 1896 in the case of Plessy v. Ferguson, supra, involving not education but transportation.6 American courts have since labored with the doctrine for over half a century. In this Court, there have been six cases involving the “separate but equal” doctrine in the field of public education.7 In Cumming v. County Board of Education, 175 U. S. 528, and Gong Lum v. Rice, 275 U. S. 78, the validity of the doctrine itself was not challenged.8 In more recent cases, all on the graduate school *492level, inequality was found in that specific benefits enjoyed by white students were denied to Negro students of the same educational qualifications. Missouri ex rel. Gaines v. Canada, 305 U. S. 337; Sipuel v. Oklahoma, 332 U. S. 631; Sweatt v. Painter, 339 U. S. 629; McLaurin v. Oklahoma State Regents, 339 U. S. 637. In none of these cases was it necessary to re-examine the doctrine to grant relief to the Negro plaintiff. And in Sweatt v. Painter, supra, the Court expressly reserved decision on the question whether Plessy v. Ferguson should be held inapplicable to public education.

In the instant cases, that question is directly presented. Here, unlike Sweatt v. Painter, there are findings below that the Negro and white schools involved have been equalized, or are being equalized, with respect to buildings, curricula, qualifications and salaries of teachers, and other “tangible” factors.9 Our decision, therefore, cannot turn on merely a comparison of these tangible factors in the Negro and white schools involved in each of the cases. We must look instead to the effect of segregation itself on public education.

In approaching this problem, we cannot turn the clock back to 1868 when the Amendment was adopted, or even to 1896 when Plessy v. Ferguson was written. We must consider public education in the light of its full development and its present place in American life throughout *493the Nation. Only in this way can it be determined if segregation in public schools deprives these plaintiffs of the equal protection of the laws.

Today, education is perhaps the most important function of state and local governments. Compulsory school attendance laws and the great expenditures for education both demonstrate our recognition of the importance of education to our democratic society. It is required in the performance of our most basic public responsibilities, even service in the armed forces. It is the very foundation of good citizenship. Today it is a principal instrument in awakening the child to cultural values, in preparing him for later professional training, and in helping him to adjust normally to his environment. In these days, it is doubtful that any child may reasonably be expected to succeed in life if he is denied the opportunity of an education. Such an opportunity, where the state has undertaken to provide it, is a right which must be made available to all on equal terms.

We come then to the question presented: Does segregation of children in public schools solely on the basis of race, even though the physical facilities and other “tangible” factors may be equal, deprive the children of the minority group of equal educational opportunities? We believe that it does.

In Sweatt v. Painter, supra, in finding that a segregated law school for Negroes could not provide them equal educational opportunities, this Court relied in large part on “those qualities which are incapable of objective measurement but which make for greatness in a law school.” In McLaurin v. Oklahoma State Regents, supra, the Court, in requiring that a Negro admitted to a white graduate school be treated like all other students, again resorted to intangible considerations: “. . . his ability to study, to engage in discussions and exchange views with other students, and, in general, to learn his profession.” *494Such considerations apply with added force to children in grade and high schools. To separate them from others of similar age and qualifications solely because of their race generates a feeling of inferiority as to their status in the community that may affect their hearts and minds in a way unlikely ever to be undone. The effect of this separation on their educational opportunities was well stated by a finding in the Kansas case by a court which nevertheless felt compelled to rule against the Negro plaintiffs:

“Segregation of white and colored children in public schools has a detrimental effect upon the colored children. The impact is greater when it has the sanction of the law; for the policy of separating the races is usually interpreted as denoting the inferiority of the negro group. A sense of inferiority affects the motivation of a child to learn. Segregation with the sanction of law, therefore, has a tendency to [retard] the educational and mental development of negro children and to deprive them of some of the benefits they would receive in a racial [ly] integrated school system.” 10

Whatever may have been the extent of psychological knowledge at the time of Plessy v. Ferguson, this finding is amply supported by modern authority.11 Any lan*495guage in Plessy v. Ferguson contrary to this finding is rejected.

We conclude that in the field of public education the doctrine of “separate but equal” has no place. Separate educational facilities are inherently unequal. Therefore, we hold that the plaintiffs and others similarly situated for whom the actions have been brought are, by reason of the segregation complained of, deprived of the equal protection of the laws guaranteed by the Fourteenth Amendment. This disposition makes unnecessary any discussion whether such segregation also violates the Due Process Clause of the Fourteenth Amendment.12

Because these are class actions, because of the wide applicability of this decision, and because of the great variety of local conditions, the formulation of decrees in these cases presents problems of considerable complexity. On reargument, the consideration of appropriate relief was necessarily subordinated to the primary question— the constitutionality of segregation in public education. We have now announced that such segregation is a denial of the equal protection of the laws. In order that we may have the full assistance of the parties in formulating decrees, the cases will be restored to the docket, and the parties are requested to present further argument on Questions 4 and 5 previously propounded by the Court for the reargument this Term.13 The Attorney General *496of the United States is again invited to participate. The Attorneys General of the states requiring or permitting segregation in public education will also be permitted to appear as amici curiae upon request to do so by September 15,1954, and submission of briefs by October 1, 1954.14

It is so ordered.

1

In the Kansas case, Brown v. Board of Education, the plaintiffs are Negro children of elementary school age residing in Topeka. They brought this action in the United States District Court for the District of Kansas to enjoin enforcement of a Kansas statute which permits, but does not require, cities of more than 15,000 population to maintain separate school facilities for Negro and white students. Kan. Gen. Stat. §72-1724 (1949). Pursuant to that authority, the Topeka Board of Education elected to establish segregated elementary schools. Other public schools in the community, however, are operated on a nonsegregated basis. The three-judge District Court, convened under 28 U. S. C. §§ 2281 and 2284, found that segregation in public education has a detrimental effect upon Negro children, but denied relief on the ground that the Negro and white schools were substantially equal with respect to buildings, transportation, curricula, and educational qualifications of teachers. 98 F. Supp. 797. The case is here on direct appeal under 28 U. S. C. § 1253.

In the South Carolina case, Briggs v. Elliott, the plaintiffs are Negro children of both elementary and high school age residing in Clarendon County. They brought this action in the United States District Court for the Eastern District of South Carolina to enjoin enforcement of provisions in the state constitution and statutory code which require the segregation of Negroes and whites in public schools. S. C. Const., Art. XI, §7; S. C. Code §5377 (1942). The three-judge District Court, convened under 28 U. S. C. §§ 2281 and 2284, denied the requested relief. The court found that the Negro schools were inferior to the white schools and ordered the defendants to begin immediately to equalize the facilities. But the court sustained the validity of the contested provisions and denied the plaintiffs admis*487sion to the white schools during the equalization program. 98 F. Supp. 529. This Court vacated the District Court’s judgment and remanded the case for the purpose of obtaining the court’s views on a report filed by the defendants concerning the progress made in the equalization program. 342 U. S. 350. On remand, the District Court found that substantial equality had been achieved except for buildings and that the defendants were proceeding to rectify this inequality as well. 103 F. Supp. 920. The case is again here on direct appeal under 28 U. S. C. § 1253.

In the Virginia case, Davis v. County School Board, the plaintiffs are Negro children of high school age residing in Prince Edward County. They brought this action in the United States District Court for the Eastern District of Virginia to enjoin enforcement of provisions in the state constitution and statutory code which require the segregation of Negroes and whites in public schools. Va. Const., §140; Va. Code §22-221 (1950). The three-judge District Court, convened under 28 U. S. C. §§ 2281 and 2284, denied the requested relief. The court found the Negro school inferior in physical plant, curricula, and transportation, and ordered the defendants forthwith to provide substantially equal curricula and transportation and to “proceed with all reasonable diligence and dispatch to remove” the inequality in physical plant. But, as in the South Carolina case, the court sustained the validity of the contested provisions and denied the plaintiffs admission to the white schools during the equalization program. 103 F. Supp. 337. The case is here on direct appeal under 28 U. S. C. § 1253.

In the Delaware case, Gebhart v. Belton, the plaintiffs are Negro children of both elementary and high school age residing in New Castle County. They brought this action in the Delaware Court of Chancery to enjoin enforcement of provisions in the state constitution and statutory code which require the segregation of Negroes and whites in public schools. Del. Const., Art. X, §2; Del. Rev. Code §2631 (1935). The Chancellor gave judgment for the plaintiffs and ordered their immediate admission to schools previously attended only by white children, on the ground that the Negro schools were inferior with respect to teacher training, pupil-teacher ratio, extracurricular activities, physical plant, and time and distance in*488volved in travel. 87 A. 2d 862. The Chancellor also found that segregation itself results in an inferior education for Negro children (see note 10, infra), but did not rest his decision on that ground. Id., at 865. The Chancellor’s decree was affirmed by the Supreme Court of Delaware, which intimated, however, that the defendants might be able to obtain a modification of the decree after equalization of the Negro and white schools had been accomplished. 91 A. 2d 137, 152. The defendants, contending only that the Delaware courts had erred in ordering the immediate admission of the Negro plaintiffs to the white schools, applied to this Court for certiorari. The writ was granted, 344 U. S. 891. The plaintiffs, who were successful below, did not submit a cross-petition.

2

344 U. S. 1, 141, 891.

3

345 U. S. 972. The Attorney General of the United States participated both Terms as amicus curiae.

4

For a general study of the development of public education prior to the Amendment, see Butts and Cremin, A History of Education in American Culture (1953), Pts. I, II; Cubberley, Public Education in the United States (1934 ed.), cc. II-XII. School practices current at the time of the adoption of the Fourteenth Amendment are described in Butts and Cremin, supra, at 269-275; Cubberley, supra, at 288-339, 408-431; Knight, Public Education in the South (1922), cc. VIII, IX. See also H. Ex. Doc. No. 315, 41st Cong., 2d Sess. (1871). Although the demand for free public schools followed substantially the same pattern in both the North and the South, the development in the South did not begin to gain momentum until about 1850, some twenty years after that in the North. The reasons for the somewhat slower development in the South (e. g., the rural character of the South and the different regional attitudes toward state assistance) are well explained in Cubberley, supra, at 408-423. In the country as a whole, but particularly in the South, the War *490virtually stopped all progress in public education. Id., at 427-428. The low status of Negro education in all sections of the country, both before and immediately after the War, is described in Beale, A History of Freedom of Teaching in American Schools (1941), 112— 132, 175-195. Compulsory school attendance laws were not generally adopted until after the ratification of the Fourteenth Amendment, and it was not until 1918 that such laws were in force in all the states. Cubberley, supra, at 563-565.

5

Slaughter-House Cases, 16 Wall. 36, 67-72 (1873); Strauder v. West Virginia, 100 U. S. 303, 307-308 (1880):

“It ordains that no State shall deprive any person of life, liberty, or property, without due process of law, or deny to any person within its jurisdiction the equal protection of the laws. What is this but *491declaring that the law in the States shall be the same for the black as for the white; that all persons, whether colored or white, shall stand equal before the laws of the States, and, in regard to the colored race, for whose protection the amendment was primarily designed, that no discrimination shall be made against them by law because of their color? The words of the amendment, it is true, are prohibitory, but they contain a necessary implication of a positive immunity, or right, most valuable to the colored race, — the right to exemption from unfriendly legislation against them distinctively as colored, — exemption from legal discriminations, implying inferiority in civil society, lessening the security of their enjoyment of the rights which others enjoy, and discriminations which are steps towards reducing them to the condition of a subject race.”

See also Virginia v. Rives, 100 U. S. 313, 318 (1880); Ex parte Virginia, 100 U. S. 339, 344-345 (1880).

6

The doctrine apparently originated in Roberts v. City of Boston, 59 Mass. 198, 206 (1850), upholding school segregation against attack as being violative of a state constitutional guarantee of equality. Segregation in Boston public schools was eliminated in 1855. Mass. Acts 1855, c. 256. But elsewhere in the North segregation in public education has persisted in some communities until recent years. It is apparent that such segregation has long been a nationwide problem, not merely one of sectional concern.

7

See also Berea College v. Kentucky, 211 U. S. 45 (1908).

8

In the Cumming case, Negro taxpayers sought an injunction requiring the defendant school board to discontinue the operation of a high school for white children until the board resumed operation of a high school for Negro children. Similarly, in the Gong Lum case, the plaintiff, a child of Chinese descent, contended only that state authorities had misapplied the doctrine by classifying him with Negro children and requiring him to attend a Negro school.

9

In the Kansas ease, the court below found substantial equality as to all such factors. 98 F. Supp. 797, 798. In the South Carolina case, the court below found that the defendants were proceeding “promptly and in good faith to comply with the court’s decree.” 103 F. Supp. 920, 921. In the Virginia case, the court below noted that the equalization program was already “afoot and progressing” (103 F. Supp. 337, 341); since then, we have been advised, in the Virginia Attorney General’s brief on reargument, that the program has now been completed. In the Delaware case, the court below similarly noted that the state’s equalization program was well under way. 91 A. 2d 137, 149.

10

A similar finding was made in the Delaware case: “I conclude from the testimony that in our Delaware society, State-imposed segregation in education itself results in the Negro children, as a class, receiving educational opportunities which are substantially inferior to those available to white children otherwise similarly situated.” 87 A. 2d 862, 865.

11

K. B. Clark, Effect of Prejudice and Discrimination on Personality Development (Midcentury White House Conference on Children and Youth, 1950); Witmer and Kotinsky, Personality in the Making (1952), c. VI; Deutscher and Chein, The Psychological Effects of Enforced Segregation: A Survey of Social Science Opinion, 26 J. Psychol. 259 (1948); Chein, What are the Psychological Effects of *495Segregation Under Conditions of Equal Facilities?, 3 Int. J. Opinion and Attitude Res. 229 (1949); Brameld, Educational Costs, in Discrimination and National Welfare (MacIver, ed., 1949), 44-48; Frazier, The Negro in the United States (1949), 674-681. And see generally Myrdal, An American Dilemma (1944).

12

See Bolling v. Sharpe, post, p. 497, concerning the Due Process Clause of the Fifth Amendment.

13

“4. Assuming it is decided that segregation in public schools violates the Fourteenth Amendment

“(a) would a decree necessarily follow providing that, within the *496limits set by normal geographic school districting, Negro children should forthwith be admitted to schools of their choice, or

“(b) may this Court, in the exercise of its equity powers, permit an effective gradual adjustment to be brought about from existing segregated systems to a system not based on color distinctions?

“5. On the assumption on which questions 4 (a) and (b) are based, and assuming further that this Court will exercise its equity powers to the end described in question 4 (&),

“(a) should this Court formulate detailed decrees in these cases;

“(b) if so, what specific issues should the decrees reach;

“(c) should this Court appoint a special master to hear evidence with a view to recommending specific terms for such decrees;

“(d) should this Court remand to the courts of first instance with directions to frame decrees in these cases, and if so what general directions should the decrees of this Court include and what procedures should the courts of first instance follow in arriving at the specific terms of more detailed decrees?”

14

See Rule 42, Revised Rules of this Court (effective July 1,1954).

          Respondents Harley and Sellers, both Negroes (hereinafter respondents), whose applications to become police officers in the District of Columbia had been rejected, in an action against District of Columbia officials (petitioners) and others, claimed that the Police Department's recruiting procedures, including a written personnel test (Test 21), were racially discriminatory and violated the Due Process Clause of the Fifth Amendment, 42 U.S.C. § 1981, and D.C.Code § 1-320. Test 21 is administered generally to prospective Government employees to determine whether applicants have acquired a particular level of verbal skill. Respondents contended that the test bore no relationship to job performance and excluded a disproportionately high number of Negro applicants. Focusing solely on Test 21, the parties filed cross-motions for summary judgment. The District Court, noting the absence of any claim of intentional discrimination, found that respondents' evidence supporting their motion warranted the conclusions that (a) the number of black police officers, while substantial, is not proportionate to the city's population mix; (b) a higher percentage of blacks fail the test than whites; and (c) the test has not been validated to establish its reliability for measuring subsequent job performance. While that showing sufficed to shift the burden of proof to the defendants in the action, the court concluded that respondents were not entitled to relief, and granted petitioners' motion for summary judgment, in view of the facts that 44% Of new police recruits were black, a figure proportionate to the blacks on the total force and equal to the number of 20- to 29-year-old blacks in the recruiting area; that the Police Department had affirmatively sought to recruit blacks, many of whom passed the test but failed to report for duty; and that the test was a useful indicator of training school performance (precluding the need to show validation in terms of job performance) and was not designed to, and did not, discriminate against otherwise qualified blacks. Respondents on

Page 230

appeal contended that their summary judgment motion (which was based solely on the contention that Test 21 invidiously discriminated against Negroes in violation of the Fifth Amendment) should have been granted. The Court of Appeals reversed, and directed summary judgment in favor of respondents, having applied to the constitutional issue the statutory standards enunciated in Griggs v. Duke Power Co., 401 U.S. 424, 91 S.Ct. 849, 28 L.Ed.2d 158, which held that Title VII of the Civil Rights Act of 1964, as amended, prohibits the use ofests that operate to exclude members of minority groups, unless the employer demonstrates that the procedures are substantially related to job performance. The court held that the lack of discriminatory intent in the enactment and administration of Test 21 was irrelevant; that the critical fact was that four times as many blacks as whites failed the test; and that such disproportionate impact sufficed to establish a constitutional violation, absent any proof by petitioners that the test adequately measured job performance. Held:

          1. The Court of Appeals erred in resolving the Fifth Amendment issue by applying standards applicable to Title VII cases. Pp. 238-248.

          (a) Though the Due Process Clause of the Fifth Amendment contains an equal protection component prohibiting the Government from invidious discrimination, it does not follow that a law or other official act is unconstitutional Solely because it has a racially disproportionate impact regardless of whether it reflects a racially discriminatory purpose. Pp. 239-245.

          (b) The Constitution does not prevent the Government from seeking through Test 21 modestly to upgrade the communicative abilities of its employees rather than to be satisfied with some lower level of competence, particularly where the job requires special abilities to communicate orally and in writing; and respondents, as Negroes, could no more ascribe their failure to pass the test to denial of equal protection than could whites who also failed. Pp. 245-246.

          (c) The disproportionate impact of Test 21, which is neutral on its face, does not warrant the conclusion that the test was a purposely discriminatory device, and on the facts before it the District Court properly held that any inference of discrimination was unwarranted. P. 246.

          (d) The rigorous statutory standard of Title VII involves a more probing judicial review of, and less deference to, the seemingly reasonable acts of administrators and executives than is

Page 231

appropriate under the Constitution where, as in this case, special racial impact but no discriminatory purpose is claimed. Any extension of that statutory standard should await legislative prescription. Pp. 246-248.

          2. Statutory standards similar to those obtaining under Title VII were also satisfied here. The District Court's conclusion that Test 21 was directly related to the requirements of the police training program and that a positive relationship between the test and that program was sufficient to validate the test (wholly aside from its possible relationship to actual performance as a police officer) is fully supported on the record in this case, and no remand to establish further validation is appropriate. Pp. 248-252.

          168 U.S.App.D.C. 42, 512 F.2d 956, reversed.

          David P. Sutton, Washington, D. C., for petitioners.

          Mark L. Evans, Washington, D. C., for the federal respondents.

          Richard B. Sobol, Washington, D. C., for respondents Davis et al.

Page 232

           Mr. Justice WHITE delivered the opinion of the Court.

          This case involves the validity of a qualifying test administered to applicants for positions as police officers in the District of Columbia Metropolitan Police Department. The test was sustained by the District Court but invalidated by the Court of Appeals. We are in agreement with the District Court and hence reverse the judgment of the Court of Appeals.

          This action began on April 10, 1970, when two Negro police officers filed suit against the then Commissioner of the District of Columbia, the Chief of the District's Metropolitan Police Department, and the Commissioners of the United States Civil Service Commission.¹ An amended complaint, filed December 10, alleged that the promotion policies of the Department were racially discriminatory and sought a declaratory judgment and an injunction. The respondents Harley and Sellers were permitted to intervene, their amended complaint assert-

Page 233

ing that their applications to become officers in the Department had been rejected, and that the Department's recruiting procedures discriminated on the basis of race against black applicants by a series of practices including, but not limited to, a written personnel test which excluded a disproportionately high number of Negro applicants. These practices were asserted to violate respondents' rights "under the due process clause of the Fifth Amendment to the United States Constitution, under 42 U.S.C. § 1981 and under D.C.Code § 1-320."² Defendants answered, and discovery and

Page 234

various other proceedings followed.³Respondents then filed a motion for partial summary judgment with respect to the recruiting phase of the case, seeking a declaration that the test administered to those applying to become police officers is "unlawfully discriminatory and thereby in violation of the due process clause of the Fifth Amendment . . . ." No issue under any statute or regulation was raised by the motion. The District of Columbia defendants, petitioners here, and the federal parties also filed motions for summary judgment with respect to the recruiting aspects of the case, asserting that respondents were entitled to relief on neither constitutional nor statutory grounds.⁴ The District Court granted petitioners' and denied respondents' motions. 348 F.Supp. 15 (DC1972).

          According to the findings and conclusions of the District Court, to be accepted by the Department and to enter an intensive 17-week training program, the police recruit was required to satisfy certain physical and character standards, to be a high school graduate or its equivalent, and to receive a grade of at least 40 out of 80 on "Test 21," which is "an examination that is used generally throughout the federal service," which "was developed by the Civil Service Commission, not the Police Department,"

Page 235

and which was "designed to test verbal ability, vocabulary, reading and comprehension." Id., at 16.

          The validity of Test 21 was the sole issue before the court on the motions for summary judgment. The District Court noted that there was no claim of "an intentional discrimination or purposeful discriminatory acts" but only a claim that Test 21 bore no relationship to job performance and "has a highly discriminatory impact in screening out black candidates." Ibid. Respondents' evidence, the District Court said, warranted three conclusions: "(a) The number of black police officers, while substantial, is not proportionate to the population mix of the city. (b) A higher percentage of blacks fail the Test than whites. (c) The Test has not been validated to establish its reliability for measuring subsequent job performance." Ibid. This showing was deemed sufficient to shift the burden of proof to the defendants in the action, petitioners here; but the court nevertheless concluded that on the undisputed facts respondents were not entitled to relief. The District Court relied on several factors. Since August 1969, 44% Of new police force recruits had been black; that figure also represented the proportion of blacks on the total force and was roughly equivalent to 20- to 29-year-old blacks in the 50-mile radius in which the recruiting efforts of the Police Department had been concentrated. It was undisputed that the Department had systematically and affirmatively sought to enroll black officers many of whom passed the test but failed to report for duty. The District Court rejected the assertion that Test 21 was culturally slanted to favor whites and was "satisfied that the undisputable facts prove the test to be reasonably and directly related to the requirements of the police recruit training program and that it is neither so designed nor operates (Sic ) to discriminate

Page 236

against otherwise qualified blacks' Id., at 17. It was thus not necessary to show that Test 21 was not only a useful indicator of training school performance but had also been validated in terms of job performance "The lack of job performance validation does not defeat the Test, given its direct relationship to recruiting and the valid part it plays in this process." Ibid. The District Court ultimately concluded that "(t)he proof is wholly lacking that a police officer qualifies on the color of his skin rather than ability" and that the Department "should not be required on this showing to lower standards or to abandon efforts to achieve excellence." ⁵ Id., at 18.

          Having lost on both constitutional and statutory issues in the District Court, respondents brought the case to the Court of Appeals claiming that their summary judgment motion, which rested on purely constitutional grounds, should have been granted. The tendered constitutional issue was whether the use of Test 21 invidiously discriminated against Negroes and hence denied them due process of law contrary to the commands of the Fifth Amendment. The Court of Appeals, addressing that issue, announced that it would be guided by Griggs v. Duke Power Co., 401 U.S. 424, 91 S.Ct. 849, 28 L.Ed.2d 158 (1971), a case involving the interpretation and application of Title VII of the Civil Rights Act of 1964, and held that the statutory standards elucidated in that case were to govern the due process question tendered in this one.⁶ 168 U.S.App.D.C. 42,

Page 237

512 F.2d 956 (1975). e court went on to declare that lack of discriminatory intent in designing and administering Test 21 was irrelevant; the critical fact was rather that a far greater proportion of blacks four times as many failed the test than did whites. This disproportionate impact, standing alone and without regard to whether it indicated a discriminatory purpose, was held sufficient to establish a constitutional violation, absent proof by petitioners that the test was an adequate measure of job performance in addition to being an indicator of probable success in the training program, a burden which the court ruled petitioners had failed to discharge. That the Department had made substantial efforts to recruit blacks was held beside the point and the fact that the racial distribution of recent hirings and of the Department itself might be roughly equivalent to the racial makeup of the surrounding community, broadly conceived, was put aside as a "comparison (not) material to this appeal." Id., at 46 n. 24, 512 F.2d, at 960 n. 24. The Court of Appeals, over a dissent, accordingly reversed the judgment of the District Court and directed that respondents' motion for partial summary judgment be granted. We granted the petition for certiorari, 423 U.S. 820, 96 S.Ct. 33, 46 L.Ed.2d 37 (1975), filed by the District of Columbia officials.⁷

Page 238

          Because the Court of Appeals erroneously applied the legal standards applicable to Title VII cases in resolving the constitutional issue before it, we reverse its judgment in respondents' favor. Although the petition for certiorari did not present this ground for reversal,⁸ our Rule 40(1)(d)(2) provides that we "may notice a plain error not presented"; ⁹ and this is an appropriate occasion to invoke the Rule.

          As the Court of Appeals understood Title VII,¹⁰ employees or applicants proceeding under it need not concern themselves with the employer's possibly discriminatory purpose but instead may focus solely on the racially differential impact of the challenged hiring or promotion

Page 239

practices. This is not the constitutional rule. We have never held that the constitutional standard for adjudicating claims of invidious racial discrimination is identical to the standards applicable under Title VII, and we decline to do so today.

          The central purpose of the Equal Protection Clause of the Fourteenth Amendment is the prevention of official conduct discriminating on the basis of race. It is also true that the Due Process Clause of the Fifth Amendment contains an equal protection component prohibiting the United States from invidiously discriminating between individuals or groups. Bolling v. Sharpe, 347 U.S. 497, 74 S.Ct. 693, 98 L.Ed. 884 (1954). But our cases have not embraced the proposition that a law or other official act, without regard to whether it reflects a racially discriminatory purpose, is unconstitutional Solely because it has a racially disproportionate impact.

          Almost 100 years ago, Strauder v. West Virginia, 100 U.S. 303, 25 L.Ed. 664 (1880), established that the exclusion of Negroes from grand and petit juries in criminal proceedings violated the Equal Protection Clause, but the fact that a particular jury or a series of juries does not statistically reflect the racial composition of the community does not in itself make out an invidious discrimination forbidden by the Clause. "A purpose to discriminate must be present which may be proven by systematic exclusion of eligible jurymen of the proscribed race or by unequal application of the law to such an extent as to show intentional discrimination." Akins v. Texas, 325 U.S. 398, 403-404, 65 S.Ct. 1276, 1279, 89 L.Ed. 1692, 1696 (1945). A defendant in a criminal case is entitled "to require that the State not deliberately and systematically deny to members of his race the right to participate as jurors in the administration of justice." Alexander v. Louisiana, 405 U.S. 625, 628-629, 92 S.Ct. 1221, 1224, 31 L.Ed.2d 536 (1972). See also Carter v. Jury Comm'n, 396 U.S. 320, 335-

Page 240

337, 339, 90 S.Ct. 5, 526-528, 529, 24 L.Ed.2d 549, 560-561, 562 (1970); Cassell v. Texas, 339 U.S. 282, 287-290, 70 S.Ct. 629, 631-633, 94 L.Ed. 839, 847-849 (1950); Patton v. Mississippi, 332 U.S. 463, 468-469, 68 S.Ct. 184, 187, 92 L.Ed. 76, 80 (1947).

          The rule is the same in other contexts. Wright v. Rockefeller, 376 U.S. 52, 84 S.Ct. 603, 11 L.Ed.2d 512 (1964), upheld a New York congressional apportionment statute against claims that district lines had been racially gerrymandered. The challenged districts were made up predominantly of whites or of minority races, and their boundaries were irregularly drawn. The challengers did not prevail because they failed to prove that the New York Legislature "was either motivated by racial considerations or in fact drew the districts on racial lines"; the plaintiffs had not shown that the statute "was the product of a state contrivance to segregate on the basis of race or place of origin." Id., at 56, 58, 84 S.Ct., at 605, 11 L.Ed.2d, at 515. The dissenters were in agreement that the issue was whether the "boundaries . . . were purposefully drawn on racial lines." Id., at 67, 84 S.Ct., at 611, 11 L.Ed.2d, at 522.

          The school desegregation cases have also adhered to the basic equal protection principle that the invidious quality of a law claimed to be racially discriminatory must ultimately be traced to a racially discriminatory purpose. That there are both predominantly black and predominantly white schools in a community is not alone violative of the Equal Protection Clause. The essential element of De jure segregation is "a current condition of segregation resulting from intentional state action. Keyes v. School Dist. No. 1, 413 U.S. 189, 205, 93 S.Ct. 2686, 2696, 37 L.Ed.2d 548 (1973). The differentiating factor between De jure segregation and so-called De facto segregation . . . is Purpose or Intent to segregate." Id., at 208, 93 S.Ct., at 2696, 37 L.Ed.2d, at 561. See also Id., at 199, 211, 213, 93 S.Ct. at 2692, 2698, 2699, 37 L.Ed.2d, at 558, 564, 566. The Court has also recently rejected allegations of racial discrimination based solely on the statistically disproportionate racial impact of various provisions of the Social Security Act because "(t)he acceptance of appellants'

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constitutional theory would render suspect each difference in treatment among the grant classes, however lacking in racial motivation and however otherwise rational the treatment might be." Jefferson v. Hackney, 406 U.S. 535, 548, 92 S.Ct. 1724, 1732, 32 L.Ed.2d 285, 297 (1972). And compare Hunter v. Erickson, 393 U.S. 385, 89 S.Ct. 557, 21 L.Ed.2d 616 (1969), with James v. Valtierra, 402 U.S. 137, 91 S.Ct. 1331, 28 L.Ed.2d 678 (1971).

          This is not to say that the necessary discriminatory racial purpose must be express or appear on the face of the statute, or that a law's disproportionate impact is irrelevant in cases involving Constitution-based claims of racial discrimination. A statute, otherwise neutral on its face, must not be applied so as invidiously to discriminate on the basis of race. Yick Wo v. Hopkins, 118 U.S. 356, 6 S.Ct. 1064, 30 L.Ed. 220 (1886). It is also clear from the cases dealing with racial discrimination in the selection of juries that the systematic exclusion of Negroes is itself such an "unequal application of the law . . . as to show intentional discrimination." Akins v. Texas, supra, 325 U.S., at 404, 65 S.Ct., at 1279, 89 L.Ed., at 1696. Smith v. Texas, 311 U.S. 128, 61 S.Ct. 164, 85 L.Ed. 84 (1940); Pierre v. Louisiana, 306 U.S. 354, 59 S.Ct. 536, 83 L.Ed. 757 (1939); Neal v. Delaware, 103 U.S. 370, 26 L.Ed. 567 (1881). A prima facie case of discriminatory purpose may be proved as well by the absence of Negroes on a particular jury combined with the failure of the jury commissioners to be informed of eligible Negro jurors in a community, Hill v. Texas, 316 U.S. 400, 404, 62 S.Ct. 1159, 1161, 86 L.Ed. 1559, 1562 (1942), or with racially non-neutral selection procedures, Alexander v. Louisiana, supra ; Avery v. Georgia, 345 U.S. 559, 73 S.Ct. 891, 97 L.Ed. 1244 (1953); Whitus v. Georgia, 385 U.S. 545, 87 S.Ct. 643, 17 L.Ed.2d 599 (1967). With a prima facie case made out, "the burden of proof shifts to the State to rebut the presumption of unconstitutional action by showing that permissible racially neutral selection criteria and procedures have produced the monochromatic result." Alexander, supra, 405 U.S., at 632, 92 S.Ct., at 1226, 31 L.Ed.2d, at 542. See also Turner v. Fouche, 396 U.S. 346, 361, 90 S.Ct. 532, 540, 24 L.Ed.2d 567, 579 (1970); Eubanks v. Louisiana, 356 U.S. 584, 587, 78 S.Ct. 970, 973, 2 L.Ed.2d 991, 994 (1958).

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          Necessarily, an invidious discriminatory purpose may often be inferred from the totality of the relevant facts, including the fact, if it is true, that the law bears more heavily on one race than another. It is also not infrequently true that the discriminatory impact in the jury cases for example, the total or seriously disproportionate exclusion of Negroes from jury venires may for all practical purposes demonstrate unconstitutionality because in various circumstances the discrimination is very difficult to explain on nonracial grounds. Nevertheless, we have not held that a law, neutral on its face and serving ends otherwise within the power of government to pursue, is invalid under the Equal Protection Clause simply because it may affect a greater proportion of one race than of another. Disproportionate impact is not irrelevant, but it is not the sole touchstone of an invidious racial discrimination forbidden by the Constitution. Standing alone, it does not trigger the rule, McLaughlin v. Florida, 379 U.S. 184, 85 S.Ct. 283, 13 L.Ed.2d 222 (1964), that racial classifications are to be subjected to the strictest scrutiny and are justifiable only by the weightiest of considerations.

          There are some indications to the contrary in our cases. In Palmer v. Thompson, 403 U.S. 217, 91 S.Ct. 1940, 29 L.Ed.2d 438 (1971), the city of Jackson, Miss., following a court decree to this effect, desegregated all of its public facilities save five swimming pools which had been operated by the city and which, following the decree, were closed by ordinance pursuant to a determination by the city council that closure was necessary to preserve peace and order and that integrated pools could not be economically operated. Accepting the finding that the pools were closed to avoid violence and economic loss, this Court rejected the argument that the abandonment of this service was inconsistent with the outstanding desegregation decree and that the otherwise seemingly permissible ends served by the ordinance could be impeached by demonstrating that

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racially invidious motivations had prompted the city council's action. The holding was that the city was not overtly or covertly operating segregated pools and was extending identical treatment to both whites and Negroes. The opinion warned against grounding decision on legislative purpose or motivation, thereby lending support for the proposition that the operative effect of the law rather than its purpose is the paramount factor. But the holding of the case was that the legitimate purposes of the ordinance to preserve peace and avoid deficits were not open to impeachment by evidence that the councilmen were actually motivated by racial considerations. Whatever dicta the opinion may contain, the decision did not involve, much less invalidate, a statute or ordinary having neutral purposes but disproportionate racial consequences.

          Wright v. Council of City of Emporia, 407 U.S. 451, 92 S.Ct. 2196, 33 L.Ed.2d 51 (1972), also indicates that in proper circumstances, the racial impact of a law, rather than its discriminatory purpose, is the critical factor. That case involved the division of a school district. The issue was whether the division was consistent with an outstanding order of a federal court to desegregate the dual school system found to have existed in the area. The constitutional predicate for the District Court's invalidation of the divided district was "the enforcement until 1969 of racial segregation in a public school system of which Emporia had always been a part." Id., at 459, 92 S.Ct., at 2202, 33 L.Ed.2d, at 60. There was thus no need to find "an independent constitutional violation." Ibid. Citing Palmer v. Thompson, we agreed with the District Court that the division of the district had the effect of interfering with the federal decree and should be set aside.

          That neither Palmer Nor Wright was understood to have changed the prevailing rule is apparent from Keyes v. School Dist. No. 1, supra, where the principal issue

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in litigation was whether to what extent there had been purposeful discrimination resulting in a partially or wholly segregated school system. Nor did other later cases, Alexander v. Louisiana, supra, and Jefferson v. Hackney, supra, indicate that either Palmer or Wright had worked a fundamental change in equal protection law.¹¹

          Both before and after Palmer v. Thompson, however, various Courts of Appeals have held in several contexts, including public employment, that the substantially disproportionate racial impact of a statute or official practice standing alone and without regard to discriminatory purpose, suffices to prove racial discrimination violating the Equal Protection Clause absent some justification going substantially beyond what would be necessary to validate most other legislative classifications.¹² The

Page 245

cases impressively demonstrate that there is another side to the issue; but, with all due respect, to the extent that those cases rested on or expressed the view that proof of discriminatory racial purpose is unnecessary in making out an equal protection violation, we are in disagreement.

          As an initial matter, we have difficulty understanding how a law establishing a racially neutral qualification for employment is nevertheless racially discriminatory and denies "any person . . . equal protection of the laws" simply because a greater proportion of Negroes fail to qualify than members of other racial or ethnic groups. Had respondents, along with all others who had failed Test 21, whether white or black, brought an action claiming that the test denied each of them equal protection of the laws as compared with those who had passed with high enough scores to qualify them as police recruits, it is most unlikely that their challenge would have been sustained. Test 21, which is administered generally to prospective Government employees, concededly seeks to ascertain whether those who take it have acquired a particular level of verbal skill; and it is untenable that

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the Constitution prevents the Government from seeking modestly to upgrade the communicative abilities of its employees rather than to be satisfied with some lower level of competence, particularly where the job requires special ability to communicate orally and in writing. Respondents, as Negroes, could no more successfully claim that the test denied them equal protection than could white applicants who also failed. The conclusion would not be different in the face of proof that more Negroes than whites had been disqualified by Test 21. That other Negroes also failed to score well would, alone, not demonstrate that respondents individually were being denied equal protection of the laws by the application of an otherwise valid qualifying test being administered to prospective police recruits.

          Nor on the facts of the case before us would the disproportionate impact of Test 21 warrant the conclusion that it is a purposeful device to discriminate against Negroes and hence an infringement of the constitutional rights of respondents as well as other black applicants. As we have said, the test is neutral on its face and rationally may be said to serve a purpose the Government is constitutionally empowered to pursue. Even agreeing with the District Court that the differential racial effect of Test 21 called for further inquiry, we think the District Court correctly held that the affirmative efforts of the Metropolitan Police Department to recruit black officers, the changing racial composition of the recruit classes and of the force in general, and the relationship of the test to the training program negated any inference that the Department discriminated on the basis of race or that "a police officer qualifies on the color of his skin rather than ability." 348 F.Supp., at 18.

          Under Title VII, Congress provided that when hiring

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and promotion practices disqualifying substantially disprortionate numbers of blacks are challenged, discriminatory purpose need not be proved, and that it is an insufficient response to demonstrate some rational basis for the challenged practices. It is necessary, in addition, that they be "validated" in terms of job performance in any one of several ways, perhaps by ascertaining the minimum skill, ability, or potential necessary for the position at issue and determining whether the qualifying tests are appropriate for the selection of qualified applicants for the job in question.¹³ However this process proceeds, it involves a more probing judicial review of, and less deference to, the seemingly reasonable acts of administrators and executives than is appropriate under the Constitution where special racial impact, without discriminatory purpose, is claimed. We are not disposed to adopt this more rigorous standard for the purposes

Page 248

of applying the Fifth and the Fourteenth Amendments in cases such as this

          A rule that a statute designed to serve neutral ends is nevertheless invalid, absent compelling justification, if in practice it benefits or burdens one race more than another would be far-reaching and would raise serious questions about, and perhaps invalidate, a whole range of tax, welfare, public service, regulatory, and licensing statutes that may be more burdensome to the poor and to the average black than to the more affluent white.¹⁴

            Given that rule, such consequences would perhaps be likely to follow. However, in our view, extension of the rule beyond those areas where it is already applicable by reason of statute, such as in the field of public employment, should await legislative prescription.

          As we have indicated, it was error to direct summary judgment for respondents based on the Fifth Amendment.

          We also hold that the Court of Appeals should have affirmed the judgment of the District Court granting the motions for summary judgment filed by petitioners and the federal parties. Respondents were entitled to relief on neither constitutional nor statutory grounds.

Page 249

          The submission of the defendants in the District Court was that Test 21 complied with all applicable statutory as well as constitutional requirements; and they appear not to have disputed that under the statutes and regulations governing their conduct standards similar to those obtaining under Title VII had to be satisfied.¹⁵ The District Court also assumed that Title VII standards were to control the case identified the determinative issue as whether Test 21 was sufficiently job related and proceeded to uphold use of the test because it was "directly related to a determination of whether the applicant possesses sufficient skills requisite to the demands of the curriculum a recruit must master at the police academy." 348 F.Supp., at 17. The Court of Appeals reversed because the relationship between Test 21 and training school success, if demonstrated at all, did not satisfy what it deemed to be the crucial requirement

Page 250

of a direct relationship between performance on Test 21 and performance on the policeman's job.

          We agree with petitioners and the federal parties that this was error. The advisability of the police recruit training course informing the recruit about his upcoming job, acquainting him with its demands, and attempting to impart a modicum of required skills seems conceded. It is also apparent to us, as it was to the District Judge, that some minimum verbal and communicative skill would be very useful, if not essential, to satisfactory progress in the training regimen. Based on the evidence before him, the District Judge concluded that Test 21 was directly related to the requirements of the police training program and that a positive relationship between the test and training-course performance was sufficient to validate the former, wholly aside from its possible relationship to actual performance as a police officer. This conclusion of the District Judge that training-program validation may itself be sufficient is supported by regulations of the Civil Service Commission, by the opinion evidence placed before the District Judge, and by the current views of the Civil Service Commissioners who were parties to the case.¹⁶ Nor is the

Page 251

conclusion closed by either Griggs or Albemarle Paper Co. v. Moody, 422 U.S. 405, 95 S.Ct. 2362, 45 L.Ed.2d 280 (1975); and it seems to us the much more sensible construction of the job-relatedness requirement.

          The District Court's accompanying conclusion that Test 21 was in fact directly related to the requirements of the police training program was supported by a validation study, as well as by other evidence of record; ¹⁷

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and we are not convinced that this conclusion was erroneous.

          The federal parties, whose views have somewhat changed since the decision of the Court of Appeals and who still insist that training-program validation is sufficient, now urge a remand to the District Court for the purpose of further inquiry into whether the training-program test scores, which were found to correlate with Test 21 scores, are themselves an appropriate measure of the trainee's mastership of the material taught in the course and whether the training program itself is sufficiently related to actual performance of the police officer's task. We think a remand is inappropriate. The District Court's judgment was warranted by the record before it, and we perceive no good reason to reopen it, particularly since we were informed at oral argument that although Test 21 is still being administered, the training program itself has undergone substantial modification in the course of this litigation. If there are now deficiencies in the recruiting practices under prevailing Title VII standards, those deficiencies are to be directly addressed in accordance with appropriate procedures mandated under that Title.

          The judgment of the Court of Appeals accordingly is reversed.

          So ordered.

          Mr. Justice STEWART joins Parts I and II of the Court's opinion.

           Mr. Justice STEVENS, concurring.

          While I agree with the Court's disposition of this case, I add these comments on the constitutional issue dis-

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cussed in Part II and the statutory issue discussed in Part III of the Court's opinion.

          The requirement of purposeful discrimination is a common thread running through the cases summarized in Part II. These cases include criminal convictions which were set aside because blacks were excluded from the grand jury, a reapportionment case in which political boundaries were obviously influenced to some extent by racial considerations, a school desegregation case, and a case involving the unequal administration of an ordinance purporting to prohibit the operation of laundries in frame buildings. Although it may be proper to use the same language to describe the constitutional claim in each of these contexts, the burden of proving a prima facie case may well involve differing evidentiary considerations. The extent of deference that one pays to the trial court's determination of the factual issue, and indeed, the extent to which one characterizes the intent issue as a question of fact or a question of law, will vary in different contexts.

          Frequently the most probative evidence of intent will be objective evidence of what actually happened rather than evidence describing the subjective state of mind of the actor. For normally the actor is presumed to have intended the natural consequences of his deeds. This is particularly true in the case of governmental action which is frequently the product of compromise, of collective decisionmaking, and of mixed motivation. It is unrealistic, on the one hand, to require the victim of alleged discrimination to uncover the actual subjective intent of the decisionmaker or, conversely, to invalidate otherwise legitimate action simply because an improper motive affected the deliberation of a participant in the decisional process. A law conscripting clerics should not be invalidated because an atheist voted for it.

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          My point in making this observation is to suggest that the line between discriminatory purpose and discriminatory impact is not nearly as bright, and perhaps not quite as critical, as the reader of the Court's opinion might assume. I agree, of course, that a constitutional issue does not arise every time some disproportionate impact is shown. On the other hand, when the disproportion is as dramatic as in Gomillion v. Lightfoot, 364 U.S. 339, 81 S.Ct. 125, 5 L.Ed.2d 110 or Yick Wo v. Hopkins, 118 U.S. 356, 6 S.Ct. 1064, 30 L.Ed. 220 (1886), it really does not matter whether the standard is phrased in terms of purpose or effect. Therefore, although I accept the statement of the general rule in the Court's opinion, I am not yet prepared to indicate how that standard should be applied in the many cases which have formulated the governing standard in different language.^*

          My agreement with the conclusion reached in Part II of the Court's opinion rests on a ground narrower than the Court describes. I do not rely at all on the evidence of good-faith efforts to recruit black police officers. In my judgment, neither those efforts nor the subjective good faith of the District administration, would save Test 21 if it were otherwise invalid.

          There are two reasons why I am convinced that the challenge to Test 21 is insufficient. First, the test serves the neutral and legitimate purpose of requiring all applicants to meet a uniform minimum standard of literacy. Reading ability is manifestly relevant to the police function, there is no evidence that the required passing grade was set at an arbitrarily high level, and there is sufficient disparity among high schools and high school graduates to justify the use of a separate uniform test. Second,

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the same test is used throughout the federal service. The applicants for employment in the District of Columbia Police Department represent such a small fraction of the total number of persons who have taken the test that their experience is of minimal probative value in assessing the neutrality of the test itself. That evidence, without more, is not sufficient to overcome the presumption that a test which is this widely used by the Federal Government is in fact neutral in its effect as well as its "purposes" that term is used in constitutional adjudication.

          My study of the statutory issue leads me to the same conclusion reached by the Court in Part III of its opinion. Since the Court of Appeals set aside the portion of the District Court's summary judgment granting the defendants' motion, I agree that we cannot ignore the statutory claims even though as the Court makes clear, Ante, at 238 n.10, there is not Title VII question in this case. The actual statutory holdings are limited to 42 U.S.C. § 1981 and § 1-320 of the District of Columbia Code, to which regulations of the Equal Employment Opportunity Commission have no direct application.

          The parties argued the case as though Title VII standards were applicable. In a general way those standards shed light on the issues, but there is sufficient individuality and complexity to that statute, and to the regulations promulgated under it, to make it inappropriate simply to transplant those standards in their entirety into a different statutory scheme having a different history. Moreover, the subject matter of this case the validity of qualifications for the law enforcement profession is one in which federal district judges have a greater expertise than in many others. I therefore do not regard this as a case in which the District Court was required to apply Title VII standards as strictly as would

Page 256

be necessary either in other contexts or in litigation actually arising under that statute.

          The Court's specific holding on the job-relatedness question contains, I believe, two components. First, as a matter of law, it is permissible for the police department to use a test for the purpose of predicting ability to master a training program even if the test does not otherwise predict ability to perform on the job. I regard this as a reasonable proposition and not inconsistent with the Court's prior holdings, although some of its prior language obviously did not contemplate this precise problem. Second, as a matter of fact, the District Court's finding that there was a correlation between success on the test and success in the training program has sufficient evidentiary support to withstand attack under the "clearly erroneous" standard mandated by Fed.Rule Civ.Proc. 52(a). Whether or not we would have made the same finding of fact, the opinion evidence identified in n. 17 of the Court's opinion and indeed the assumption made by the Court of Appeals quoted therein is surely adequate to support the finding under the proper standard of appellate review.

          On the understanding that nothing which I have said is inconsistent with the Court's reasoning, I join the opinion of the Court except to the extent that it expresses an opinion on the merits of the cases cited Ante, at 244-245, n. 12.

           Mr. Justice BRENNAN, with whom Mr. Justice MARSHALL joins, dissenting.

          The Court holds that the job qualification examination (Test 21) given by the District of Columbia Metropolitan Police Department does not unlawfully discriminate on the basis of race under either constitutional or statutory standards.

Page 257

          Initially, it seems to me that the Court should not pass on the statutory questions, because they are not presented by this case. The Court says that respondents' summary judgment motion "rested on purely constitutional grounds," Ante, at 236, and that "the Court of Appeals erroneously applied the legal standards applicable to Title VII cases in resolving the constitutional issue before it," Ante, at 238. There is a suggestion, however, that petitioners are entitled to prevail because they met the burden of proof imposed by 5 U.S.C. § 3304. Ante, at 249 n. 15. As I understand the opinion, the Court therefore holds that Test 21 is job-related under § 3304, but not necessarily under Title VII. But that provision, by the Court's own analysis, is no more in the case than Title VII; respondents' "complaint asserted no claim under § 3304." Ante, at 234 n. 2. Cf. Ante, at 238 n. 10. If it was "plain error" for the Court of Appeals to apply a statutory standard to this case, as the Court asserts, Ante, at 238-239, then it is unfortunate that the Court does not recognize that it is also plain error to address the statutory issues in Part III of its opinion.

          Nevertheless, although it appears unnecessary to reach the statutory questions, I will accept the Court's conclusion that respondents were entitled to summary judgment if they were correct in their statutory arguments, and I would affirm the Court of Appeals because petitioners have failed to prove that Test 21 satisfies the applicable statutory standards.¹ All parties' arguments and

Page 258

both lower court decisions were based on Title VII standards. In this context, I think it wrong to focus on § 3304 to the exclusion of the Title VII standards, particularly because the Civil Service Commission views the job-relatedness standards of Title VII and § 3304 as identical.² See also Infra, at 263.

          In applying a Title VII test,³ both the District Court and the Court of Appeals held that respondents had offered sufficient evidence of discriminatory impact to shift to petitioners the burden of proving job relatedness. 348 F.Supp. 15, 16; 168 U.S.App.D.C. 42, 45-47, 512 F.2d 956, 959-961. The Court does not question these rulings, and the only issue before us is what petitioners were required to show and whether they carried their burden. The Court agrees with the District Court's conclusion that Test 21 was validated by a positive relationship between Test 21 scores and performance in police training courses. This result is based upon the Court's reading of the record, its interpretation of in-

Page 259

structions governing testing practices issued by the Civil Service Commission (CSC), and "the current views of the Civil Service Commissioners who were parties to the case." We are also assured that today's result is not foreclosed by Griggs v. Duke Power Co., 401 U.S. 424, 91 S.Ct. 849, 28 L.Ed.2d 158 (1971), and Albermarle Paper Co. v. Moody, 422 U.S. 405, 95 S.Ct. 2362, 45 L.Ed.2d 280 (1975). Finally, the Court asserts that its conclusion is "the much more sensible construction of the job relatedness requirement." Ante, at 251.

          But the CSC instructions cited by the Court do not support the District Court's conclusion. More importantly, the brief filed in this Court by the CSC takes the position that petitioners did not satisfy the burden of proof imposed by the CSC guidelines. It also appears that longstanding regulations of the Equal Employment Opportunity Commission (EEOC) previously endorsed by this Court require a result contrary to that reached by the Court. Furthermore, the Court's conclusion is inconsistent with my understanding of the interpretation of Title VII in Griggs and Albemarle. I do not find this conclusion "much more sensible" and with all respect I suggest that today's decision has the potential of significantly weakening statutory safeguards against discrimination in employment.

          On October 12, 1972, the CSC issued a supplement to the Federal Personnel Manual containing instructions for compliance with its general regulations concerning employment practices.⁴ The provision cited by the Court

Page 260

requires that Test 21 "have a demonstrable and rational relationship to important job-related performance objectives identified by management." "Success in training" is one example of a possible objective. The statistical correlation established by the Futransky validity study, Ante, at 251 n. 17, was between applicants' scores on Test 21 and recruits' average scores on final examinations given during the police training course.

          It is hornbook law that the Court accord deference to the construction of an administrative regulation when that construction is made by the administrative authority responsible for the regulation. E. g., Udall v. Tallman, 380 U.S. 1, 16, 85 S.Ct. 792, 801, 13 L.Ed.2d 616, 625 (1965). It is worthy of note, therefore, that the brief filed by the CSC in this case interprets the instructions in a manner directly contrary to the Court, despite the Court's claim that its result is supported by the Commissioners' "current views."

          "Under Civil Service Commission regulations and current professional standards governing criterion-related test validation procedures, the job-relatedness of an entrance examination may be demonstrated by proof that scores on the examination predict properly measured success in job-relevant training (regardless of whether they predict success on the job itself).

          "The documentary evidence submitted in the district court demonstrates that scores on Test 21 are predictive of Recruit School Final Averages. There

Page 261

          is little evidence, however, concerning the relationship between the Recruit School tests and the substance of the training program, and between the substance of the training program and the post-training job of a police officer. It cannot be determined, therefore, whether the Recruit School Final Averages are a proper measure of success in training and whether the training program is job-relevant." Brief for CSC 14-15 (emphasis added).

          The CSC maintains that a positive correlation between scores on entrance examinations and the criterion of success in training may establish the job relatedness of an entrance test thus relieving an employer from the burden of providing a relationship to job performance after training but only subject to certain limitations.

          "Proof that scores on an entrance examination predict scores on training school achievement tests, however, does not, by itself, satisfy the burden of demonstrating the job-relatedness of the entrance examination. There must also be evidence the nature of which will depend on the particular circumstances of the case showing that the achievement test scores are an appropriate measure of the trainee's mastery of the material taught in the training program and that the training program imparts to a new employee knowledge, skills, or abilities required for performance of the post-training job." Id., at 24-25.

          Applying its standards ⁵ the CSC concludes that none of

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the evidence presented in the District Court established "the appropriateness of using Recruit School Final Averages as the measure of training performance or the relationship of the Recruit School program to the job of a police officer." Id., at 30.⁶

          The CSC's standards thus recognize that Test 21 can be validated by a correlation between Test 21 scores and recruits' averages on training examinations only if (1) the training averages predict job performance or (2) the averages are proved to measure performance in job-related training. There is no proof that the recruits' average is correlated with job performance after completion of training. See n. 10, Infra. And although a positive relationship to the recruits' average might be sufficient to validate Test 21 if the average were proved to reflect mastery of material on the training curriculum that was in turn demonstrated to be relevant to job performance, the record is devoid of proof in this regard. First, there is no demonstration by petitioners that the training-course examinations measure comprehension of the training curriculum; indeed, these examinations do not even appear in the record. Furthermore, the Futransky study simply designated an average of 85 on the

Page 263

examination as a "good" performance and assumed that a recruit with such an average learned the material taught in the training course.⁷ Without any further proof of the significance of a score of 85, and there is none in the record, I cannot agree that Test 21 is predictive of "success in training."

          Today's decision is also at odds with EEOC regulations issued pursuant to explicit authorization in Title VII, 42 U.S.C. § 2000e-12(a). Although the dispute in this case is not within the EEOC's jurisdiction, as I noted above, the proper construction of Title VII nevertheless is relevant. Moreover, the 1972 extension of Title VII to public employees gave the same substantive protection to those employees as had previously been accorded in the private sector, Morton v. Mancari, 417 U.S. 535, 546-547, 94 S.Ct. 2474, 2480-2481, 41 L.Ed.2d 290, 298-299 (1974), and it is therefore improper to maintain different standards in the public and private sectors. Chandler v. Roudebush, 425 U.S. 840, 864, 96 S.Ct. 1949, 1961, 48 L.Ed.2d 416, 433 (1976). See n. 2, Supra.

          As with an agency's regulations, the construction of a statute by the agency charged with its administration is entitled to great deference. Trafficante v. Metropolitan Life Ins. Co., 409 U.S. 205, 210, 93 S.Ct. 364, 367, 34 L.Ed.2d 415, 419 (1972); Udall v. Tallman, 380 U.S., at 16, 85 S.Ct., at 801, 13 L.Ed.2d, at 625; Power Reactor Co. v. Electricians, 367 U.S. 396, 408, 81 S.Ct. 1529, 1535, 6 L.Ed.2d 924, 932 (1961). The defer-

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ence due the pertinent EEOC regulations is enhanced by the fact that they were neither altered nor disapproved when Congress extensively amended Title VII in 1972.⁸ Chemehuevi Tribe of Indians v. FPC, 420 U.S. 395, 410, 95 S.Ct. 1066, 1075, 43 L.Ed.2d 279, 290 (1975); Cammarano v. United States, 358 U.S. 498, 510, 79 S.Ct. 524, 531, 3 L.Ed.2d 462, 470 (1959); Allen v. Grand Central Aircraft Co., 347 U.S. 535, 547, 74 S.Ct. 745, 752, 98 L.Ed. 933, 943 (1954); Massachusetts Mut. Life Ins. Co. v. United States, 288 U.S. 269, 273, 53 S.Ct. 337, 339, 77 L.Ed. 739, 742 (1933). These principles were followed in Albemarle where the Court explicitly endorsed various regulations no fewer than eight times in its opinion, 422 U.S., at 431-436, 95 S.Ct., at 2378-2381, 45 L.Ed.2d, at 304-307 ⁹ and Griggs, 401 U.S., at 433-434, 91 S.Ct., at 854-855, 28 L.Ed.2d, at 165-166.

          The EEOC regulations require that the validity of a job qualification test be proved by "empirical data demonstrating that the test is predictive of or significantly correlated with important elements of work behavior which comprise or are relevant to the job or jobs for which candidates are being evaluated." 29 CFR § 1607.4(c) (1975). This construction of Title VII was approved in Albemarle, where we quoted this provision and remarked that "(t)he message of these Guidelines is the same as that of the Griggs case." 422 U.S., at 431, 95 S.Ct., at 2378, 45 L.Ed.2d, at 304. The regulations also set forth minimum standards for

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validation and delineate the criteria that may be used for this purpose.

          "The work behaviors or other criteria of employee adequacy which the test is intended to predict or identify must be fully described; and, additionally, in the case of rating techniques, the appraisal form(s) and instructions to the rater(s) must be included as a part of the validation evidence. Such criteria may include measures other than actual work proficiency, such as training time, supervisory ratings, regularity of attendance and tenure. Whatever criteria are used they must represent major or critical work behaviors as revealed by careful job analyses." 29 CFR § 1607.5(b)(3) (1975).

          This provision was also approved in Albemarle, 422 U.S., at 432, 95 S.Ct., at 2379, 45 L.Ed.2d, at 304, and n. 30.

          If we measure the validity of Test 21 by this standard, which I submit we are bound to do, petitioners' proof is deficient in a number of ways similar to those noted above. First, the criterion of final training examination averages does not appear to be "fully described." Although the record contains some general discussion of the training curriculum, the examinations are not in the record, and there is no other evidence completely elucidating the subject matter tested by the training examinations. Without this required description we cannot determine whether the correlation with training examination averages is sufficiently related to petitioners' need to ascertain "job-specific ability." See Albemarle, 422 U.S., at 433, 95 S.Ct., at 2379, 45 L.Ed.2d, at 305. Second, the EEOC regulations do not expressly permit validation by correlation to training performance, unlike the CSC instructions. Among the specified criteria the closest to training performance is "training time." All recruits to the Metropolitan Police Department, however, go through the

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same training course in the same amount of time, including those who experience some difficulty. See n. 7, supra. Third, the final requirement of § 1607.5(b)(3) has not been met. There has been no job analysis establishing the significance of scores on training examinations, nor is there any other type of evidence showing that these scores are of 'major or critical" importance.

          Accordingly, EEOC regulations that have previously been approved by the Court set forth a construction of Title VII that is distinctly opposed to today's statutory result.

          The Court also says that its conclusion is not foreclosed by Griggs and Albemarle, but today's result plainly conflicts with those cases. Griggs held that "(i)f an employment practice which operates to exclude Negroes cannot be shown to be Related to job performance, the practice is prohibited." 401 U.S., at 431, 91 S.Ct., at 853, 28 L.Ed.2d, at 164 (emphasis added). Once a discriminatory impact is shown, the employer carries the burden of proving that the challenged practice "bear(s) a Demonstrable relationship to successful performance of the jobs for which it was used." Ibid. (emphasis added). We observed further:

          "Nothing in the Act precludes the use of testing or measuring procedures; obviously they are useful. What Congress has forbidden is giving these devices and mechanisms controlling force unless they are demonstrably a reasonable measure of job performance. . . . What Congress has commanded is that any tests used must measure the person for the job and not the person in the abstract." Id., at 436, 91 S.Ct., at 856, 28 L.Ed.2d, at 167.

          Albemarle read Griggs to require that a discriminatory test be validated through proof "by professionally acceptable methods" that it is " 'predictive of or signifi-

Page 267

cantly correlated with important elements of work behavior which comprise or are relevant to the job or jobs for which candidates are being evaluated.' " 422 U.S., at 431, 95 S.Ct., at 2378, 45 L.Ed.2d, at 304 (emphasis added), quoting 29 CFR § 1607.4(c) (1975). Further, we rejected the employer's attempt to validate a written test by proving that it was related to supervisors' job performance ratings, because there was no demonstration that the ratings accurately reflected job performance. We were unable "to determine whether the criteria Actually considered were sufficiently related to the (employer's) legitimate interest in job-specific ability to justify a testing system with a racially discriminatory impact." 422 U.S., at 433, 95 S.Ct., at 2379, 45 L.Ed.2d, at 305 (emphasis in original). To me, therefore, these cases read Title VII as requiring proof of a significant relationship to job performance to establish the validity of a discriminatory test. See also McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 1824, 36 L.Ed.2d 668, 678 and n. 14 (1973). Petitioners do not maintain that there is a demonstrated correlation between Test 21 scores and job performance. Moreover, their validity study was unable to discern a significant positive relationship between training averages and job performance.¹⁰ Thus, there is no proof of a correlation either direct or indirect between Test 21 and performance of the job of being a police officer.

          It may well be that in some circumstances, proof of a relationship between a discriminatory qualification test and training performance is an acceptable substitute for establishing a relationship to job performance. But this question is not settled, and it should not be re-

Page 268

solved by the minimal analysis in the Court's opinion.¹¹ Moreover, it is particularly inappropriate to decide the question on this record. "Professionally acceptable methods" apparently recognize validation by proof of a correlation with training performance, rather than of performance, if (1) the training curriculum includes information proved to be important to job performance and (2) the standard used as a measure of training performance is shown to reflect the trainees' mastery of the material included in the training curriculum. See Brief for CSC 24-29; Brief for the Executive Committee of Division 14 of the American Psychological Assn. as Amicus Curiae 37-43. But no authority, whether professional, administrative, or judicial, has accepted the sufficiency of a correlation with training performance in the absence of such proof. For reasons that I have stated above, the record does not adequately establish either factor. As a result, the Court's conclusion cannot be squared with the focus on job performance in Griggs and Albemarle, even if this substitute showing is reconcilable with the holdings in those cases.

          Today's reduced emphasis on a relationship to job performance is also inconsistent with clearly expressed congressional intent. A section-by-section analysis of the 1972 amendments to Title VII states as follows:

          "In any area where the new law does not address itself, or in any areas where a specific contrary intention is not indicated, it was assumed that the present case law as developed by the courts would

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          continue to govern the applicability and construction of Title VII." 118 Cong.Rec. 7166 (1972).

          The pre-1972 judicial decisions dealing with standardized tests used as job qualification requirements uniformly follow the EEOC regulations discussed above and insist upon proof of a relationship to job performance to prove that a test is job related.¹² Furthermore, the Court ignores Congress' explicit hostility toward the use of written tests as job-qualification requirements; Congress disapproved the CSC's "use of general ability tests which are not aimed at any direct relationship to specific jobs." H.R.Rep. No. 92-238, p. 24 (1971). See S.Rep. No. 92-415, pp. 14-15 (1971). Petitioners concede that Test 21 was devised by the CSC for general use and was not designed to be used by police departments.

          Finally, it should be observed that every federal court, except the District Court in this case, presented with proof identical to that offered to validate Test 21 has reached a conclusion directly opposite to that of the

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Court today.¹³ Sound policy considerations support the view that, at a minimum, petitioners should have been required to prove that the police training examinations either measure job-related skills or predict job performance. Where employers try to validate written qualification tests by proving a correlation with written examinations in a training course, there is a substantial danger that people who have good verbal skills will achieve high scores on both tests due to verbal ability, rather than "job-specific ability." As a result, employers could validate any entrance examination that measures only verbal ability by giving another written test that measures verbal ability at the end of a training course. Any contention that the resulting correlation between examination scores would be evidence that the initial test is "job related" is plainly erroneous. It seems to me, however, that the Court's holding in this case can be read as endorsing this dubious proposition. Today's result will prove particularly unfortunate if it is extended to govern Title VII cases.

          Accordingly, accepting the Court's assertion that it is necessary to reach the statutory issue, I would hold that petitioners have not met their burden of proof and affirm the judgment of the Court of Appeals.

^{1. Under § 4-103 of the District of Columbia Code, appointments to the Metropolitan Police force were to be made by the Commissioner subject to the provisions of Title 5 of the United States Code relating to the classified civil service. The District of Columbia Council and the Office of Commissioner of the District of Columbia, established by Reorganization Plan No. 37 of 1967, were abolished as of January 2, 1975, and replaced by the Council of the District of Columbia and the Office of Mayor of the District of Columbia.}

^2. Title 42 U.S.C. § 1981 provides:

"All persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens, and shall be subject to like punishment, pains, penalties, taxes, licenses, and exactions of every kind, and to no other."

Section 1-320 of the District of Columbia Code (1973) provides:

"In any program of recruitment or hiring of individuals to fill positions in the government of the District of Columbia, no officer or employee of the government of the District of Columbia shall exclude or give preference to the residents of the District of Columbia or any State of the United States on the basis of residence, religion, race, color, or national origin."

One of the provisions expressly made applicable to the Metropolitan Police force by § 4-103 is 5 U.S.C. § 3304(a), which provides:

"s 3304. Competitive service; examinations.

"(a) The President may prescribe rules which shall provide, as nearly as conditions of good administration warrant, for

"(1) open, competitive examinations for testing applicants for appointment in the competitive service which are practical in character and as far as possible relate to matters that fairly test the relative capacity and fitness of the applicants for the appointment sought; and

"(2) noncompetitive examinations when competent applicants do not compete after notice has been given of the existence of the vacancy."

The complaint asserted no claim under § 3304.

^3. Those proceedings included a hearing on respondents' motion for an order designating the case as a class action. A ruling on the motion was held in abeyance and was never granted insofar as the record before us reveals.

^4. In support of the motion, petitioners and the federal parties urged that they were in compliance with all applicable constitutional, statutory, and regulatory provisions, including the provisions of the Civil Service Act which since 1883 were said to have established a "job relatedness" standard for employment.

^5. When summary judgment was granted, the case with respect to discriminatory promotions was still pending. The District Court, however, made the determination and direction authorized by Fed.Rule Civ.Proc. 54(b). The promotion issue was subsequently decided adversely to the original plaintiffs. Davis v. Washington, 352 F.Supp. 187 (DC 1972).

^6. "Although appellants' complaint did not allege a violation of Title VII of the Civil Rights Act of 1964, which then was inapplicable to the Federal Government, decisions applying Title VII furnish additional instruction as to the legal standard governing the issues raised in this case. . . . The many decisions disposing of employment discrimination claims on constitutional grounds have made no distinction between the constitutional standard and the statutory standard under Title VII." 168 U.S.App.D.C. 42, 44 n. 2, 512 F.2d 956, 958 n. 2 (1975).

^7. The Civil Service Commissioners, defendants in the District Court, did not petition for writ of certiorari but have filed a brief as respondents. See our Rule 21(4). We shall at times refer to them as the "federal parties."

^8. Apparently not disputing the applicability of the Griggs and Title VII standards in resolving this case, petitioners presented issues going only to whether Griggs v. Duke Power Co., 401 U.S. 424, 91 S.Ct. 849, 28 L.Ed.2d 158 (1971), had been misapplied by the Court of Appeals.

^9. See, E. g., Silber v. United States, 370 U.S. 717, 82 S.Ct. 1287, 8 L.Ed.2d 798 (1962); Carpenters v. United States, 330 U.S. 395, 412, 67 S.Ct. 775, 784, 91 L.Ed. 973, 987 (1947); Sibbach v. Wilson & Co., 312 U.S. 1, 16, 61 S.Ct. 422, 427, 85 L.Ed. 479, 486 (1941); Mahler v. Eby, 264 U.S. 32, 45, 44 S.Ct. 283, 288, 68 L.Ed. 549, 557 (1924); Weems v. United States, 217 U.S. 349, 362, 30 S.Ct. 544, 547, 54 L.Ed. 793, 796 (1910).

^10. Although Title VII standards have dominated this case, the statute was not applicable to federal employees when the complaint was filed; and although the 1972 amendments extending the Title to reach Government employees were adopted prior to the District Court's judgment, the complaint was not amended to state a claim under that Title, nor did the case thereafter proceed as a Title VII case. Respondents' motion for partial summary judgment, filed after the 1972 amendments, rested solely on constitutional grounds; and the Court of Appeals ruled that the motion should have been granted.

At the oral argument before this Court, when respondents' counsel was asked whether "this is just a purely Title VII case as it comes to us from the Court of Appeals without any constitutional overtones," counsel responded: "My trouble honestly with that proposition is the procedural requirements to get into court under Title VII, and this case has not met them." Tr. of Oral Arg. 66.

^11. To the extent that Palmer suggests a generally applicable proposition that legislative purpose is irrelevant in constitutional adjudication, our prior cases as indicated in the text are to the contrary; and very shortly after Palmer, all Members of the Court majority in that case joined the Court's opinion in Lemon v. Kurtzman, 403 U.S. 602, 91 S.Ct. 2105, 29 L.Ed.2d 745 (1971), which dealt with the issue of public financing for private schools and which announced, as the Court had several times before, that the validity of public aid to church-related schools includes close inquiry into the purpose of the challenged statute.

^12. Cases dealing with public employment include: Chance v. Board of Examiners, 458 F.2d 1167, 1176-1177 (CA2 1972); Castro v. Beecher, 459 F.2d 725, 732-733 (CA1 1972); Bridgeport Guardians v. Bridgeport Civil Service Comm'n, 482 F.2d 1333, 1337 (CA2 1973); Harper v. Mayor of Baltimore, 359 F.Supp. 1187, 1200 (D.Md.), aff'd in pertinent part Sub nom. Harper v. Kloster, 486 F.2d 1134 (CA4 1973); Douglas v. Hampton, 168 U.S.App.D.C. 62, 67, 512 F.2d 976, 981 (1975); but cf. Tyler v. Vickery, 517 F.2d 1089, 1096-1097 (CA5 1975), cert. pending, No. 75-1026. There are also District Court cases: Wade v. Mississippi Cooperative Extension Serv., 372 F.Supp. 126, 143 (ND Miss. 1974); Arnold v. Ballard, 390 F.Supp. 723, 736, 737 (N.D. Ohio 1975); United States v. City of Chicago, 385 F.Supp. 543, 553 (N.D. Ill. 1974); Fowler v. Schwarzwalder, 351 F.Supp. 721, 724 (D.Minn. 1972), rev'd on other grounds, 498 F.2d 143 (CA8 1974).

In other contexts there are Norwalk CORE v. Norwalk Redevelopment Agency, 395 F.2d 920 (CA2 1968) (urban renewal); Kennedy Park Homes Assn. v. City of Lackawanna, 436 F.2d 108, 114 (CA2 1970), cert. denied, 401 U.S. 1010, 91 S.Ct. 1256, 28 L.Ed.2d 546 (1971) (zoning); Southern Alameda Spanish Speaking Organization v. Union City, 424 F.2d 291 (CA9 1970) (dictum) (zoning); Metropolitan H. D. Corp. v. Village of Arlington Heights, 517 F.2d 409 (CA7), cert. granted, December 15, 1975, 423 U.S. 1030, 96 S.Ct. 560, 46 L.Ed.2d 404 (1975) (zoning); Gautreaux v. Romney, 448 F.2d 731, 738 (CA7 1971) (dictum) (public housing); Crow v. Brown, 332 F.Supp. 382, 391 (N.D. Ga. 1971), aff'd, 457 F.2d 788 (CA5 1972) (public housing); Hawkins v. Town of Shaw, 437 F.2d 1286 (CA5 1971), aff'd on rehearing en banc, 461 F.2d 1171 (1972) (municipal services).

^13. It appears beyond doubt by now that there is no single method for appropriately validating employment tests for their relationship to job performance. Professional standards developed by the American Psychological Association in its Standards for Educational and Psychological Tests and Manuals (1966), accept three basic methods of validation: "empirical" or "criterion" validity (demonstrated by identifying criteria that indicate successful job performance and then correlating test scores and the criteria so identified); "construct" validity (demonstrated by examinations structured to measure the degree to which job applicants have identifiable characteristics that have been determined to be important in successful job performance); and "content" validity (demonstrated by tests whose content closely approximates tasks to be performed on the job by the applicant). These standards have been relied upon by the Equal Employment Opportunity Commission in fashioning its Guidelines on Employee Selection Procedures, 29 CFR pt. 1607 (1975), and have been judicially noted in cases where validation of employment tests has been in issue. See, E.g., Albemarle Paper Co. v. Moody, 422 U.S. 405, 431, 95 S.Ct. 2362, 2378, 45 L.Ed.2d 280, 304 (1975); Douglas v. Hampton, 168 U.S.App.D.C., at 70, 512 F.2d, at 984; Vulcan Society v. Civil Service Comm'n, 490 F.2d 387, 394 (CA2 1973).

^14. Goodman, De Facto School Segregation: A Constitutional and Empirical Analysis, 60 Calif.L.Rev. 275, 300 (1972), suggests that disproportionate-impact analysis might invalidate "tests and qualifications for voting, draft deferment, public employment, jury service, and other government-conferred benefits and opportunities . . .; (s)ales taxes, bail schedules, utility rates, bridge tolls, license fees, and other state-imposed charges." It has also been argued that minimum wage and usury laws as well as professional licensing requirements would require major modifications in light of the unequal-impact rule. Silverman, Equal Protection, Economic Legislation, and Racial Discrimination, 25 Vand.L.Rev. 1183 (1972). See also Demsetz, Minorities in the Market Place, 43 N.C.L.Rev. 271 (1965).

^15. In their memorandum supporting their motion for summary judgment, the federal parties argued:

"In Griggs, supra, the Supreme Court set a job-relationship standard for the private sector employers which has been a standard for federal employment since the passage of the Civil Service Act in 1883. In that act Congress has mandated that the federal government must use '. . . examinations for testing applicants for appointment . . . which . . . as far as possible relate to matters that fairly test the relative capacity and fitness of the applicants for the appointments sought.' 5 U.S.C. § 3304(a)(1). Defendants contend that they have been following the job-related standards of Griggs, supra, for the past eighty-eight years by virtue of the enactment of the Civil Service Act which guaranteed open and fair competition for jobs."

They went on to argue that the Griggs standard had been satisfied. In granting the motions for summary judgment filed by petitioners and the federal parties, the District Court necessarily decided adversely to respondents the statutory issues expressly or tacitly tendered by the parties.

^16. See n. 17, Infra. Current instructions of the Civil Service Commission on "Examining, Testing, Standards, and Employment Practices" provide in pertinent part:

"S2-2 Use of applicant appraisal procedures

a. Policy. The Commission's staff develops and uses applicant appraisal procedures to assess the knowledges, skills, and abilities of persons for jobs and not persons in the abstract.

"(1) Appraisal procedures are designed to reflect real, reasonable, and necessary qualifications for effective job behavior.

"(2) An appraisal procedure must, among other requirements, have a demonstrable and rational relationship to important job-related performance objectives identified by management, such as:

"(a) Effective job performance;

"(b) Capability;

"(c) Success in training;

"(d) Reduced turnover; or

"(e) Job satisfaction." 37 Fed.Reg. 21557 (1972).

See also Equal Employment Opportunity Commission Guidelines on Employee Selection Procedures, 29 CFR § 1607.5(b)(3) (1975), discussed in Albemarle Paper Co. v. Moody, 422 U.S., at 430-435, 95 S.Ct. 2362, 2378-2380, 45 L.Ed.2d 280, 304-307.

^17. The record includes a validation study of Test 21's relationship to performance in the recruit training program. The study was made by D. L. Futransky of the Standards Division, Bureau of Policies and Standards, United States Civil Service Commission. App., at 99-109. Findings of the study included data "support(ing) the conclusion that T(est) 21 is effective in selecting trainees who can learn the material that is taught at the Recruit School." Id., at 103. Opinion evidence, submitted by qualified experts examining the Futransky study and/or conducting their own research, affirmed the correlation between scores on Test 21 and success in the training program. E. g., Affidavit of Dr. Donald J. Schwartz (personnel research psychologist, United States Civil Service Commission), App. 178, 183 ("It is my opinion . . . that Test 21 has a significant positive correlation with success in the MPD Recruit School for both Blacks and whites and is therefore shown to be job related . . ."); affidavit of Diane E. Wilson (personnel research psychologist, United States Civil Service Commission), App. 185, 186 ("It is my opinion that there is a direct and rational relationship between the content and difficulty of Test 21 and successful completion of recruit school training").

The Court of Appeals was "willing to assume for purposes of this appeal that appellees have shown that Test 21 is predictive of further progress in Recruit School." 168 U.S.App.D.C., at 48, 512 F.2d, at 962.

^* Specifically, I express no opinion on the merits of the cases listed in n. 12 of the Court's opinion.

^1. Although I do not intend to address the constitutional questions considered by the Court in Part II of its opinion, I feel constrained to comment upon the propriety of footnote 12, Ante, at 244-245. One of the cases "disapproved" therein is presently scheduled for plenary consideration by the Court in the 1976 Term, Metropolitan Housing Development Corp. v. Village of Arlington Heights, 517 F.2d 409 (CA7), cert. granted, 423 U.S. 1030, 96 S.Ct. 560, 46 L.Ed.2d 404 (1975). If the Court regarded this case only a few months ago as worthy of full briefing and argument, it ought not be effectively reversed merely by its inclusion in a laundry list of lower court decisions.

^2. The only administrative authority relied on by the Court in support of its result is a regulation of the Civil Service Commission construing the civil service employment standards in Title 5 of the United States Code. Ante, at 250-251 n. 16. I note, however, that 5 U.S.C. § 3304 was brought into this case by the CSC, not by respondents, and the CSC's only reason for referring to that provision was to establish that petitioners had been "following the job-related standards of Griggs (V. Duke Power Co., 401 U.S. 424, 91 S.Ct. 849, 28 L.Ed.2d 158 (1971),) for the past eighty-eight years." Ante, at 249 n. 15.

^3. The provision in Title VII on which petitioners place principal reliance is 42 U.S.C. § 2000e-2(h). See Griggs v. Duke Power Co., supra, 401 U.S., at 433-436, 91 S.Ct., at 854-856, 28 L.Ed.2d, at 165-167.

^4. See 5 CFR § 300.101 Et seq. (1976). These instructions contain the "regulations" that the Court finds supportive of the District Court's conclusion, which was reached under Title VII, but neither the instructions nor the general regulations are an interpretation of Title VII. The instructions were issued "under authority of sections 3301 and 3302 of title 5, United States Code, and E.O. 10577, 3 CFR 1954-58 Comp., p. 218." 37 Fed.Reg. 21552 (1972). The pertinent regulations of the CSC in 5 CFR § 300.101 Et seq. were promulgated pursuant to the same authorities, as well as 5 U.S.C. §§ 7151, 7154 and Exec.Order No. 11478, 3 CFR (1966-1970 Comp.) 803.

^5. The CSC asserts that certain of its guidelines have some bearing on Test 21's job relatedness. Under the CSC instructions, " 'criterion-related' validity," see Douglas v. Hampton, 168 U.S.App.D.C. 62, 70 n. 60, 512 F.2d 976, 984 n. 60 (1975), can be established by demonstrating a correlation between entrance examination scores and "a criterion which is legitimately based on the needs of the Federal Government." P S3-2(a)(2), 37 Fed.Reg. 21558 (1972). Further, to prove validity, statistical studies must demonstrate that Test 21, "to a significant degree, measures performance or qualifications requirements which are relevant to the job or jobs for which candidates are being evaluated." P S3-3(a), 37 Fed.Reg. 21558 (1972). These provisions are ignored in the Court's opinion.

^6. On this basis, the CSC argues that the case ought to be remanded to enable petitioners to try to make such a demonstration, but this resolution seems to me inappropriate. Both lower courts recognized that petitioners had the burden of proof, and as this burden is yet unsatisfied, respondents are entitled to prevail.

^7. The finding in the Futransky study on which the Court relies, Ante, at 251 n. 17, was that Test 21 "is effective in selecting trainees who can learn the material that is taught at the Recruit School," because it predicts averages over 85. On its face, this would appear to be an important finding, but the fact is that Everyone learns the material included in the training course. The study noted that all recruits pass the training examinations; if a particular recruit has any difficulty, he is given assistance until he passes.

^8. Still another factor mandates deference to the EEOC regulations. The House and Senate committees considering the 1972 amendments to Title VII recognized that discrimination in employment, including the use of testing devices, is a "complex and pervasive phenomenon." S.Rep. No. 92-415, p. 5 (1971); H.R.Rep. No. 92-238, p. 8 (1971); U.S.Code Cong. & Admin.News 1972, p. 2137. As a result, both committees noted the need to obtain "expert assistance" in this area. S.Rep. No. 92-415, Supra, at 5; H.R.Rep. No. 92-238, Supra, at 8.

^9. Indeed, two Justices asserted that the Court relied too heavily on the EEOC guidelines. 422 U.S. 449, 95 S.Ct. 2389, 45 L.Ed.2d 316 (Blackmun, J., concurring in judgment); Id., at 451, 95 S.Ct., at 2387, 45 L.Ed.2d, at 317 (Burger, C. J., concurring in part and dissenting in part).

^10. Although the validity study found that Test 21 predicted job performance for white officers, but see Albemarle, 422 U.S., at 433, 95 S.Ct., at 2379, 45 L.Ed.2d, at 305, no similar relationship existed for black officers. The same finding was made as to the relationship between training examination averages and job performance. See Id., at 435, 95 S.Ct., at 2380, 45 L.Ed.2d, at 306.

^11. The Court of Appeals recognized that deciding whether 42 U.S.C. § 2000e-2(h) permitted such proof "is not a simple or insignificant endeavor." 168 U.S.App.D.C. 42, 50 n. 59, 512 F.2d 956, 964 n. 59. The court declined to express any view on this issue on the ground that petitioners had not satisfied this standard even if it were acceptable, which seems to me the proper treatment of the question.

^12. Griggs v. Duke Power Co., 401 U.S. 424, 91 S.Ct. 849, 28 L.Ed.2d 158 (1971); United States v. Jacksonville Terminal Co., 451 F.2d 418, 456-457 (CA5 1971), cert. denied, 406 U.S. 906, 92 S.Ct. 1607, 31 L.Ed.2d 815 (1972); Hicks v. Crown Zellerbach Corp., 319 F.Supp. 314, 319-321 (E.D.La.1970) (issuing preliminary injunction), 321 F.Supp. 1241, 1244 (1971) (issuing permanent injunction). See also Castro v. Beecher, 334 F.Supp. 930 (D.Mass.1971), aff'd in part and rev'd in part on other grounds, 459 F.2d 725 (CA1 1972); Western Addition Community Org. v. Alioto, 330 F.Supp. 536, 539-540 (N.D.Cal.1971), 340 F.Supp. 1351, 1354-1356 (1972) (issuing preliminary injunction), 360 F.Supp. 733 (1973) (issuing permanent injunction); Chance v. Board of Examiners, 330 F.Supp. 203 (S.D.N.Y.1971), aff'd, 458 F.2d 1167 (CA2 1972); Baker v. Columbus Mun. Sep. School Dist., 329 F.Supp. 706, 721-722 (N.D.Miss.1971), aff'd, 462 F.2d 1112 (CA5 1972); Arrington v. Massachusetts Bay Transp. Auth., 306 F.Supp. 1355 (D.Mass.1969).

^13. United States v. City of Chicago, 385 F.Supp. 543, 555-556 (N.D.Ill.1974) (police department); Officers for Justice v. CSC, 371 F.Supp. 1328, 1337 (N.D.Cal.1973) (police department); Smith v. City of East Cleveland, 363 F.Supp. 1131, 1148-1149 (N.D.Ohio 1973) (police department), aff'd in part and rev'd in part on other grounds, 520 F.2d 492 (CA6 1975); Harper v. Mayor of Baltimore, 359 F.Supp. 1187, 1202-1203 (D.Md.) (fire department), modified and aff'd, 486 F.2d 1134 (CA4 1973); Pennsylvania v. O'Neill, 348 F.Supp. 1084, 1090-1091 (E.D.Pa.1972) (police department), aff'd in pertinent part and vacated in part, 473 F.2d 1029 (CA3 1973).

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT

[282] John Charles Boger argued the cause for petitioner. With him on the briefs were Julius L. Chambers, James M. Nabrit III, Vivian Berger, Robert H. Stroup, Timothy K. Ford, and Anthony G. Amsterdam.

Mary Beth Westmoreland, Assistant Attorney General of Georgia, argued the cause for respondent. With her on the brief were Michael J. Bowers, Attorney General, Marion O. Gordon, First Assistant Attorney General, and William B. Hill, Jr., Senior Assistant Attorney General.^[*]

JUSTICE POWELL delivered the opinion of the Court.

This case presents the question whether a complex statistical study that indicates a risk that racial considerations enter [283] into capital sentencing determinations proves that petitioner McCleskey's capital sentence is unconstitutional under the Eighth or Fourteenth Amendment.

I

McCleskey, a black man, was convicted of two counts of armed robbery and one count of murder in the Superior Court of Fulton County, Georgia, on October 12, 1978. McCleskey's convictions arose out of the robbery of a furniture store and the killing of a white police officer during the course of the robbery. The evidence at trial indicated that McCleskey and three accomplices planned and carried out the robbery. All four were armed. McCleskey entered the front of the store while the other three entered the rear. McCleskey secured the front of the store by rounding up the customers and forcing them to lie face down on the floor. The other three rounded up the employees in the rear and tied them up with tape. The manager was forced at gunpoint to turn over the store receipts, his watch, and $6. During the course of the robbery, a police officer, answering a silent alarm, entered the store through the front door. As he was walking down the center aisle of the store, two shots were fired. Both struck the officer. One hit him in the face and killed him.

Several weeks later, McCleskey was arrested in connection with an unrelated offense. He confessed that he had participated in the furniture store robbery, but denied that he had shot the police officer. At trial, the State introduced evidence that at least one of the bullets that struck the officer was fired from a .38 caliber Rossi revolver. This description matched the description of the gun that McCleskey had carried during the robbery. The State also introduced the testimony of two witnesses who had heard McCleskey admit to the shooting.

[284] The jury convicted McCleskey of murder.^[1] At the penalty hearing,^[2] the jury heard arguments as to the appropriate sentence. Under Georgia law, the jury could not consider imposing the death penalty unless it found beyond a reasonable doubt that the murder was accompanied by one of the statutory aggravating circumstances. Ga. Code Ann. § 17-10-30(c) (1982).^[3] The jury in this case found two aggravating [285] circumstances to exist beyond a reasonable doubt: the murder was committed during the course of an armed robbery, § 17-10-30(b)(2); and the murder was committed upon a peace officer engaged in the performance of his duties, § 17-10-30(b)(8). In making its decision whether to impose the death sentence, the jury considered the mitigating and aggravating circumstances of McCleskey's conduct. § 17-10-2(c). McCleskey offered no mitigating evidence. The jury recommended that he be sentenced to death on the murder charge and to consecutive life sentences on the armed robbery charges. The court followed the jury's recommendation and sentenced McCleskey to death.^[4]

On appeal, the Supreme Court of Georgia affirmed the convictions and the sentences. McCleskey v. State, 245 Ga. 108, 263 S. E. 2d 146 (1980). This Court denied a petition for a writ of certiorari. McCleskey v. Georgia, 449 U. S. 891 (1980). The Superior Court of Fulton County denied McCleskey's extraordinary motion for a new trial. McCleskey then filed a petition for a writ of habeas corpus in the [286] Superior Court of Butts County. After holding an evidentiary hearing, the Superior Court denied relief. McCleskey v. Zant, No. 4909 (Apr. 8, 1981). The Supreme Court of Georgia denied McCleskey's application for a certificate of probable cause to appeal the Superior Court's denial of his petition, No. 81-5523, and this Court again denied certiorari. McCleskey v. Zant, 454 U. S. 1093 (1981).

McCleskey next filed a petition for a writ of habeas corpus in the Federal District Court for the Northern District of Georgia. His petition raised 18 claims, one of which was that the Georgia capital sentencing process is administered in a racially discriminatory manner in violation of the Eighth and Fourteenth Amendments to the United States Constitution. In support of his claim, McCleskey proffered a statistical study performed by Professors David C. Baldus, Charles Pulaski, and George Woodworth (the Baldus study) that purports to show a disparity in the imposition of the death sentence in Georgia based on the race of the murder victim and, to a lesser extent, the race of the defendant. The Baldus study is actually two sophisticated statistical studies that examine over 2,000 murder cases that occurred in Georgia during the 1970's. The raw numbers collected by Professor Baldus indicate that defendants charged with killing white persons received the death penalty in 11% of the cases, but defendants charged with killing blacks received the death penalty in only 1% of the cases. The raw numbers also indicate a reverse racial disparity according to the race of the defendant: 4% of the black defendants received the death penalty, as opposed to 7% of the white defendants.

Baldus also divided the cases according to the combination of the race of the defendant and the race of the victim. He found that the death penalty was assessed in 22% of the cases involving black defendants and white victims; 8% of the cases involving white defendants and white victims; 1% of the cases involving black defendants and black victims; and 3% of the cases involving white defendants and black victims. [287] Similarly, Baldus found that prosecutors sought the death penalty in 70% of the cases involving black defendants and white victims; 32% of the cases involving white defendants and white victims; 15% of the cases involving black defendants and black victims; and 19% of the cases involving white defendants and black victims.

Baldus subjected his data to an extensive analysis, taking account of 230 variables that could have explained the disparities on nonracial grounds. One of his models concludes that, even after taking account of 39 nonracial variables, defendants charged with killing white victims were 4.3 times as likely to receive a death sentence as defendants charged with killing blacks. According to this model, black defendants were 1.1 times as likely to receive a death sentence as other defendants. Thus, the Baldus study indicates that black defendants, such as McCleskey, who kill white victims have the greatest likelihood of receiving the death penalty.^[5]

The District Court held an extensive evidentiary hearing on McCleskey's petition. Although it believed that McCleskey's Eighth Amendment claim was foreclosed by the Fifth Circuit's decision in Spinkellink v. Wainwright, 578 F. 2d 582, 612-616 (1978), cert. denied, 440 U. S. 976 (1979), it nevertheless considered the Baldus study with care. It concluded [288] that McCleskey's "statistics do not demonstrate a prima facie case in support of the contention that the death penalty was imposed upon him because of his race, because of the race of the victim, or because of any Eighth Amendment concern." McCleskey v. Zant, 580 F. Supp. 338, 379 (ND Ga. 1984). As to McCleskey's Fourteenth Amendment claim, the court found that the methodology of the Baldus study was flawed in several respects.^[6] Because of these defects, [289] the court held that the Baldus study "fail[ed] to contribute anything of value" to McCleskey's claim. Id., at 372 (emphasis omitted). Accordingly, the court denied the petition insofar as it was based upon the Baldus study.

The Court of Appeals for the Eleventh Circuit, sitting en banc, carefully reviewed the District Court's decision on McCleskey's claim. 753 F. 2d 877 (1985). It assumed the validity of the study itself and addressed the merits of McCleskey's Eighth and Fourteenth Amendment claims. That is, the court assumed that the study "showed that systematic and substantial disparities existed in the penalties imposed upon homicide defendants in Georgia based on race of the homicide victim, that the disparities existed at a less substantial rate in death sentencing based on race of defendants, and that the factors of race of the victim and defendant were at work in Fulton County." Id., at 895. Even assuming the study's validity, the Court of Appeals found the statistics "insufficient to demonstrate discriminatory intent or unconstitutional discrimination in the Fourteenth Amendment context, [and] insufficient to show irrationality, arbitrariness and capriciousness under any kind of Eighth Amendment analysis." Id., at 891. The court noted:

"The very exercise of discretion means that persons exercising discretion may reach different results from exact duplicates. Assuming each result is within the range of discretion, all are correct in the eyes of the law. It would not make sense for the system to require the exercise of discretion in order to be facially constitutional, [290] and at the same time hold a system unconstitutional in application where that discretion achieved different results for what appear to be exact duplicates, absent the state showing the reasons for the difference. . . .

"The Baldus approach . . . would take the cases with different results on what are contended to be duplicate facts, where the differences could not be otherwise explained, and conclude that the different result was based on race alone. . . . This approach ignores the realities.. . . There are, in fact, no exact duplicates in capital crimes and capital defendants. The type of research submitted here tends to show which of the directed factors were effective, but is of restricted use in showing what undirected factors control the exercise of constitutionally required discretion." Id., at 898-899.

The court concluded:

"Viewed broadly, it would seem that the statistical evidence presented here, assuming its validity, confirms rather than condemns the system. . . . The marginal disparity based on the race of the victim tends to support the state's contention that the system is working far differently from the one which Furman [v. Georgia, 408 U. S. 238 (1972)] condemned. In pre-Furman days, there was no rhyme or reason as to who got the death penalty and who did not. But now, in the vast majority of cases, the reasons for a difference are well documented. That they are not so clear in a small percentage of the cases is no reason to declare the entire system unconstitutional." Id., at 899.

The Court of Appeals affirmed the denial by the District Court of McCleskey's petition for a writ of habeas corpus insofar as the petition was based upon the Baldus study, with three judges dissenting as to McCleskey's claims based on [291] the Baldus study. We granted certiorari, 478 U. S. 1019 (1986), and now affirm.

II

McCleskey's first claim is that the Georgia capital punishment statute violates the Equal Protection Clause of the Fourteenth Amendment.^[7] He argues that race has infected the administration of Georgia's statute in two ways: persons who murder whites are more likely to be sentenced to death than persons who murder blacks, and black murderers are more likely to be sentenced to death than white murderers.^[8] [292] As a black defendant who killed a white victim, McCleskey claims that the Baldus study demonstrates that he was discriminated against because of his race and because of the race of his victim. In its broadest form, McCleskey's claim of discrimination extends to every actor in the Georgia capital sentencing process, from the prosecutor who sought the death penalty and the jury that imposed the sentence, to the State itself that enacted the capital punishment statute and allows it to remain in effect despite its allegedly discriminatory application. We agree with the Court of Appeals, and every other court that has considered such a challenge,^[9] that this claim must fail.

A

Our analysis begins with the basic principle that a defendant who alleges an equal protection violation has the burden of proving "the existence of purposeful discrimination." Whitus v. Georgia, 385 U. S. 545, 550 (1967).^[10] A corollary to this principle is that a criminal defendant must prove that the purposeful discrimination "had a discriminatory effect" on him. Wayte v. United States, 470 U. S. 598, 608 (1985). Thus, to prevail under the Equal Protection Clause, McCleskey must prove that the decisionmakers in his case acted with discriminatory purpose. He offers no evidence specific to his own case that would support an inference that racial [293] considerations played a part in his sentence. Instead, he relies solely on the Baldus study.^[11] McCleskey argues that the Baldus study compels an inference that his sentence rests on purposeful discrimination. McCleskey's claim that these statistics are sufficient proof of discrimination, without regard to the facts of a particular case, would extend to all capital cases in Georgia, at least where the victim was white and the defendant is black.

The Court has accepted statistics as proof of intent to discriminate in certain limited contexts. First, this Court has accepted statistical disparities as proof of an equal protection violation in the selection of the jury venire in a particular district. Although statistical proof normally must present a "stark" pattern to be accepted as the sole proof of discriminatory intent under the Constitution,^[12]Arlington Heights v. [294] Metropolitan Housing Dev. Corp., 429 U. S. 252, 266 (1977), "[b]ecause of the nature of the jury-selection task, . . . we have permitted a finding of constitutional violation even when the statistical pattern does not approach [such] extremes." Id., at 266, n. 13.^[13] Second, this Court has accepted statistics in the form of multiple-regression analysis to prove statutory violations under Title VII of the Civil Rights Act of 1964. Bazemore v. Friday, 478 U. S. 385, 400-401 (1986) (opinion of BRENNAN, J., concurring in part).

But the nature of the capital sentencing decision, and the relationship of the statistics to that decision, are fundamentally different from the corresponding elements in the venire-selection or Title VII cases. Most importantly, each particular decision to impose the death penalty is made by a petit jury selected from a properly constituted venire. Each jury is unique in its composition, and the Constitution requires that its decision rest on consideration of innumerable factors that vary according to the characteristics of the individual defendant and the facts of the particular capital offense. See Hitchcock v. Dugger, post, at 398-399; Lockett v. Ohio, 438 U. S. 586, 602-605 (1978) (plurality opinion of Burger, C. J.). Thus, the application of an inference drawn from the general statistics to a specific decision in a trial and sentencing simply is not comparable to the application of an inference drawn from general statistics to a specific venire-selection [295] or Title VII case. In those cases, the statistics relate to fewer entities,^[14] and fewer variables are relevant to the challenged decisions.^[15]

[296] Another important difference between the cases in which we have accepted statistics as proof of discriminatory intent and this case is that, in the venire-selection and Title VII contexts, the decisionmaker has an opportunity to explain the statistical disparity. See Whitus v. Georgia, 385 U. S., at 552; Texas Dept. of Community Affairs v. Burdine, 450 U. S. 248, 254 (1981); McDonnell Douglas Corp. v. Green, 411 U. S. 792, 802 (1973). Here, the State has no practical opportunity to rebut the Baldus study. "[C]ontrolling considerations of . . . public policy," McDonald v. Pless, 238 U. S. 264, 267 (1915), dictate that jurors "cannot be called. . . to testify to the motives and influences that led to their verdict." Chicago, B. & Q. R. Co. v. Babcock, 204 U. S. 585, 593 (1907). Similarly, the policy considerations behind a prosecutor's traditionally "wide discretion"^[16] suggest the impropriety of our requiring prosecutors to defend their decisions to seek death penalties, "often years after they were made."^[17] See Imbler v. Pachtman, 424 U. S. 409, 425-426 (1976).^[18] Moreover, absent far stronger proof, it is unnecessary [297] to seek such a rebuttal, because a legitimate and unchallenged explanation for the decision is apparent from the record: McCleskey committed an act for which the United States Constitution and Georgia laws permit imposition of the death penalty.^[19]

Finally, McCleskey's statistical proffer must be viewed in the context of his challenge. McCleskey challenges decisions at the heart of the State's criminal justice system. "[O]ne of society's most basic tasks is that of protecting the lives of its citizens and one of the most basic ways in which it achieves the task is through criminal laws against murder." Gregg v. Georgia, 428 U. S. 153, 226 (1976) (WHITE, J., concurring). Implementation of these laws necessarily requires discretionary judgments. Because discretion is essential to the criminal justice process, we would demand exceptionally clear proof before we would infer that the discretion has been abused. The unique nature of the decisions at issue in this case also counsels against adopting such an inference from the disparities indicated by the Baldus study. Accordingly, we hold that the Baldus study is clearly insufficient to support an inference that any of the decisionmakers in McCleskey's case acted with discriminatory purpose.

B

McCleskey also suggests that the Baldus study proves that the State as a whole has acted with a discriminatory purpose. He appears to argue that the State has violated the Equal [298] Protection Clause by adopting the capital punishment statute and allowing it to remain in force despite its allegedly discriminatory application. But " `[d]iscriminatory purpose'. . . implies more than intent as volition or intent as awareness of consequences. It implies that the decisionmaker, in this case a state legislature, selected or reaffirmed a particular course of action at least in part `because of,' not merely `in spite of,' its adverse effects upon an identifiable group." Personnel Administrator of Massachusetts v. Feeney, 442 U. S. 256, 279 (1979) (footnote and citation omitted). See Wayte v. United States, 470 U. S., at 608-609. For this claim to prevail, McCleskey would have to prove that the Georgia Legislature enacted or maintained the death penalty statute because of an anticipated racially discriminatory effect. In Gregg v. Georgia, supra, this Court found that the Georgia capital sentencing system could operate in a fair and neutral manner. There was no evidence then, and there is none now, that the Georgia Legislature enacted the capital punishment statute to further a racially discriminatory purpose.^[20]

Nor has McCleskey demonstrated that the legislature maintains the capital punishment statute because of the racially disproportionate impact suggested by the Baldus study. As legislatures necessarily have wide discretion in the choice of criminal laws and penalties, and as there were [299] legitimate reasons for the Georgia Legislature to adopt and maintain capital punishment, see Gregg v. Georgia, supra, at 183-187 (joint opinion of Stewart, POWELL, and STEVENS, JJ.), we will not infer a discriminatory purpose on the part of the State of Georgia.^[21] Accordingly, we reject McCleskey's equal protection claims.

III

McCleskey also argues that the Baldus study demonstrates that the Georgia capital sentencing system violates the Eighth Amendment.^[22] We begin our analysis of this claim by reviewing the restrictions on death sentences established by our prior decisions under that Amendment.

A

The Eighth Amendment prohibits infliction of "cruel and unusual punishments." This Court's early Eighth Amendment cases examined only the "particular methods of execution to determine whether they were too cruel to pass constitutional muster." Gregg v. Georgia, supra, at 170. See In re Kemmler, 136 U. S. 436 (1890) (electrocution); [300] Wilkerson v. Utah, 99 U. S. 130 (1879) (public shooting). Subsequently, the Court recognized that the constitutional prohibition against cruel and unusual punishments "is not fastened to the obsolete but may acquire meaning as public opinion becomes enlightened by a humane justice." Weems, v. United States, 217 U. S. 349, 378 (1910). In Weems, the Court identified a second principle inherent in the Eighth Amendment, "that punishment for crime should be graduated and proportioned to offense." Id., at 367.

Chief Justice Warren, writing for the plurality in Trop v. Dulles, 356 U. S. 86, 99 (1958), acknowledged the constitutionality of capital punishment. In his view, the "basic concept underlying the Eighth Amendment" in this area is that the penalty must accord with "the dignity of man." Id., at 100. In applying this mandate, we have been guided by his statement that "[t]he Amendment must draw its meaning from the evolving standards of decency that mark the progress of a maturing society." Id., at 101. Thus, our constitutional decisions have been informed by "contemporary values concerning the infliction of a challenged sanction," Gregg v. Georgia, 428 U. S., at 173. In assessing contemporary values, we have eschewed subjective judgment, and instead have sought to ascertain "objective indicia that reflect the public attitude toward a given sanction." Ibid. First among these indicia are the decisions of state legislatures, "because the . . . legislative judgment weighs heavily in ascertaining" contemporary standards, id., at 175. We also have been guided by the sentencing decisions of juries, because they are "a significant and reliable objective index of contemporary values," id., at 181. Most of our recent decisions as to the constitutionality of the death penalty for a particular crime have rested on such an examination of contemporary values. E. g., Enmund v. Florida, 458 U. S. 782, 789-796 (1982) (felony murder); Coker v. Georgia, 433 U. S. 584, 592-597 (1977) (plurality opinion of WHITE, J.) (rape); Gregg v. Georgia, supra, at 179-182 (murder).

[301]

B

Two principal decisions guide our resolution of McCleskey's Eighth Amendment claim. In Furman v. Georgia, 408 U. S. 238 (1972), the Court concluded that the death penalty was so irrationally imposed that any particular death sentence could be presumed excessive. Under the statutes at issue in Furman, there was no basis for determining in any particular case whether the penalty was proportionate to the crime: "[T]he death penalty [was] exacted with great infrequency even for the most atrocious crimes and . . . there [was] no meaningful basis for distinguishing the few cases in which it [was] imposed from the many cases in which it [was] not." Id., at 313 (WHITE, J., concurring).

In Gregg, the Court specifically addressed the question left open in Furman — whether the punishment of death for murder is "under all circumstances, `cruel and unusual' in violation of the Eighth and Fourteenth Amendments of the Constitution." 428 U. S., at 168. We noted that the imposition of the death penalty for the crime of murder "has a long history of acceptance both in the United States and in England." Id., at 176 (joint opinion of Stewart, POWELL, and STEVENS, JJ.). "The most marked indication of society's endorsement of the death penalty for murder [was] the legislative response to Furman." Id., at 179. During the 4-year period between Furman and Gregg, at least 35 States had reenacted the death penalty, and Congress had authorized the penalty for aircraft piracy. 428 U. S., at 179-180.^[23] The "actions of juries" were "fully compatible with the legislative judgments." Id., at 182. We noted that any punishment might be unconstitutionally severe if inflicted without penological justification, but concluded:

[302] "Considerations of federalism, as well as respect for the ability of a legislature to evaluate, in terms of its particular State, the moral consensus concerning the death penalty and its social utility as a sanction, require us to conclude, in the absence of more convincing evidence, that the infliction of death as a punishment for murder is not without justification and thus is not unconstitutionally severe." Id., at 186-187.

The second question before the Court in Gregg was the constitutionality of the particular procedures embodied in the Georgia capital punishment statute. We explained the fundamental principle of Furman, that "where discretion is afforded a sentencing body on a matter so grave as the determination of whether a human life should be taken or spared, that discretion must be suitably directed and limited so as to minimize the risk of wholly arbitrary and capricious action." 428 U. S., at 189. Numerous features of the then new Georgia statute met the concerns articulated in Furman.^[24] The Georgia system bifurcates guilt and sentencing proceedings so that the jury can receive all relevant information for sentencing without the risk that evidence irrelevant to the defendant's guilt will influence the jury's consideration of that issue. The statute narrows the class of murders subject to the death penalty to cases in which the jury finds at least one statutory aggravating circumstance beyond a reasonable doubt. Conversely, it allows the defendant to introduce any relevant mitigating evidence that might influence the jury not to impose a death sentence. See 428 U. S., at 163-164. The procedures also require a particularized inquiry into " `the circumstances of the offense together with the character and propensities of the offender.' " Id., at 189 (quoting Pennsylvania ex rel. Sullivan v. Ashe, 302 U. S. 51, 55 (1937)). Thus, "while some jury discretion still exists, `the [303] discretion to be exercised is controlled by clear and objective standards so as to produce non-discriminatory application.' " 428 U. S., at 197-198 (quoting Coley v. State, 231 Ga. 829, 834, 204 S. E. 2d 612, 615 (1974)). Moreover, the Georgia system adds "an important additional safeguard against arbitrariness and caprice" in a provision for automatic appeal of a death sentence to the State Supreme Court. 428 U. S., at 198. The statute requires that court to review each sentence to determine whether it was imposed under the influence of passion or prejudice, whether the evidence supports the jury's finding of a statutory aggravating circumstance, and whether the sentence is disproportionate to sentences imposed in generally similar murder cases. To aid the court's review, the trial judge answers a questionnaire about the trial, including detailed questions as to "the quality of the defendant's representation [and] whether race played a role in the trial." Id., at 167.

C

In the cases decided after Gregg, the Court has imposed a number of requirements on the capital sentencing process to ensure that capital sentencing decisions rest on the individualized inquiry contemplated in Gregg. In Woodson v. North Carolina, 428 U. S. 280 (1976), we invalidated a mandatory capital sentencing system, finding that the "respect for humanity underlying the Eighth Amendment requires consideration of the character and record of the individual offender and the circumstances of the particular offense as a constitutionally indispensable part of the process of inflicting the penalty of death." Id., at 304 (plurality opinion of Stewart, POWELL, and STEVENS, JJ.) (citation omitted). Similarly, a State must "narrow the class of murderers subject to capital punishment," Gregg v. Georgia, supra, at 196, by providing "specific and detailed guidance" to the sentencer.^[25] [304] Proffitt v. Florida, 428 U. S. 242, 253 (1976) (joint opinion of Stewart, POWELL, and STEVENS, JJ.).

In contrast to the carefully defined standards that must narrow a sentencer's discretion to impose the death sentence, the Constitution limits a State's ability to narrow a sentencer's discretion to consider relevant evidence that might cause it to decline to impose the death sentence.^[26] "[T]he sentencer . . . [cannot] be precluded from considering, as a mitigating factor, any aspect of a defendant's character or record and any of the circumstances of the offense that the defendant proffers as a basis for a sentence less than death." Lockett v. Ohio, 438 U. S., at 604 (plurality opinion of Burger, C. J.) (emphasis in original; footnote omitted). See Skipper v. South Carolina, 476 U. S. 1 (1986). Any exclusion of the "compassionate or mitigating factors stemming from the diverse frailties of humankind" that are relevant to the sentencer's decision would fail to treat all persons as "uniquely individual human beings." Woodson v. North Carolina, supra, at 304.

Although our constitutional inquiry has centered on the procedures by which a death sentence is imposed, we have not stopped at the face of a statute, but have probed the application [305] of statutes to particular cases. For example, in Godfrey v. Georgia, 446 U. S. 420 (1980), the Court invalidated a Georgia Supreme Court interpretation of the statutory aggravating circumstance that the murder be "outrageously or wantonly vile, horrible or inhuman in that it involved torture, depravity of mind, or an aggravated battery to the victim." Ga. Code § 27-2534.1(b)(7) (1978).^[27] Although that court had articulated an adequate limiting definition of this phrase, we concluded that its interpretation in Godfrey was so broad that it may have vitiated the role of the aggravating circumstance in guiding the sentencing jury's discretion.

Finally, where the objective indicia of community values have demonstrated a consensus that the death penalty is disproportionate as applied to a certain class of cases, we have established substantive limitations on its application. In Coker v. Georgia, 433 U. S. 584 (1977), the Court held that a State may not constitutionally sentence an individual to death for the rape of an adult woman. In Enmund v. Florida, 458 U. S. 782 (1982), the Court prohibited imposition of the death penalty on a defendant convicted of felony murder absent a showing that the defendant possessed a sufficiently culpable mental state. Most recently, in Ford v. Wainwright, 477 U. S. 399 (1986), we prohibited execution of prisoners who are insane.

D

In sum, our decisions since Furman have identified a constitutionally permissible range of discretion in imposing the death penalty. First, there is a required threshold below which the death penalty cannot be imposed. In this context, the State must establish rational criteria that narrow the decisionmaker's judgment as to whether the circumstances of a particular defendant's case meet the threshold. Moreover, a societal consensus that the death penalty is disproportionate [306] to a particular offense prevents a State from imposing the death penalty for that offense. Second, States cannot limit the sentencer's consideration of any relevant circumstance that could cause it to decline to impose the penalty. In this respect, the State cannot channel the sentencer's discretion, but must allow it to consider any relevant information offered by the defendant.

IV

A

In light of our precedents under the Eighth Amendment, McCleskey cannot argue successfully that his sentence is "disproportionate to the crime in the traditional sense." See Pulley v. Harris, 465 U. S. 37, 43 (1984). He does not deny that he committed a murder in the course of a planned robbery, a crime for which this Court has determined that the death penalty constitutionally may be imposed. Gregg v. Georgia, 428 U. S., at 187. His disproportionality claim "is of a different sort." Pulley v. Harris, supra, at 43. McCleskey argues that the sentences in his case is disproportionate to the sentences in other murder cases.

On the one hand, he cannot base a constitutional claim on an argument that his case differs from other cases in which defendants did receive the death penalty. On automatic appeal, the Georgia Supreme Court found that McCleskey's death sentence was not disproportionate to other death sentences imposed in the State. McCleskey v. State, 245 Ga. 108, 263 S. E. 2d 146 (1980). The court supported this conclusion with an appendix containing citations to 13 cases involving generally similar murders. See Ga. Code Ann. § 17-10-35(e) (1982). Moreover, where the statutory procedures adequately channel the sentencer's discretion, such proportionality review is not constitutionally required. Pulley v. Harris, supra, at 50-51.

On the other hand, absent a showing that the Georgia capital punishment system operates in an arbitrary and capricious manner, McCleskey cannot prove a constitutional [307] violation by demonstrating that other defendants who may be similarly situated did not receive the death penalty. In Gregg, the Court confronted the argument that "the opportunities for discretionary action that are inherent in the processing of any murder case under Georgia law," 428 U. S., at 199, specifically the opportunities for discretionary leniency, rendered the capital sentences imposed arbitrary and capricious. We rejected this contention:

"The existence of these discretionary stages is not determinative of the issues before us. At each of these stages an actor in the criminal justice system makes a decision which may remove a defendant from consideration as a candidate for the death penalty. Furman, in contrast, dealt with the decision to impose the death sentence on a specific individual who had been convicted of a capital offense. Nothing in any of our cases suggests that the decision to afford an individual defendant mercy violates the Constitution. Furman held only that, in order to minimize the risk that the death penalty would be imposed on a capriciously selected group of offenders, the decision to impose it had to be guided by standards so that the sentencing authority would focus on the particularized circumstances of the crime and the defendant." Ibid.^[28]

[308] Because McCleskey's sentence was imposed under Georgia sentencing procedures that focus discretion "on the particularized nature of the crime and the particularized characteristics of the individual defendant," id., at 206, we lawfully may presume that McCleskey's death sentence was not "wantonly and freakishly" imposed, id., at 207, and thus that the sentence is not disproportionate within any recognized meaning under the Eighth Amendment.

B

Although our decision in Gregg as to the facial validity of the Georgia capital punishment statute appears to foreclose McCleskey's disproportionality argument, he further contends that the Georgia capital punishment system is arbitrary and capricious in application, and therefore his sentence is excessive, because racial considerations may influence capital sentencing decisions in Georgia. We now address this claim.

To evaluate McCleskey's challenge, we must examine exactly what the Baldus study may show. Even Professor Baldus does not contend that his statistics prove that race enters into any capital sentencing decisions or that race was a factor in McCleskey's particular case.^[29] Statistics at most may show only a likelihood that a particular factor entered into some decisions. There is, of course, some risk of racial prejudice influencing a jury's decision in a criminal case. There are similar risks that other kinds of prejudice will influence other criminal trials. See infra, at 315-318. The question [309] "is at what point that risk becomes constitutionally unacceptable," Turner v. Murray, 476 U. S. 28, 36, n. 8 (1986). McCleskey asks us to accept the likelihood allegedly shown by the Baldus study as the constitutional measure of an unacceptable risk of racial prejudice influencing capital sentencing decisions. This we decline to do.

Because of the risk that the factor of race may enter the criminal justice process, we have engaged in "unceasing efforts" to eradicate racial prejudice from our criminal justice system. Batson v. Kentucky, 476 U. S. 79, 85 (1986).^[30] Our efforts have been guided by our recognition that "the inestimable privilege of trial by jury . . . is a vital principle, underlying the whole administration of criminal justice," Ex parte Milligan, 4 Wall. 2, 123 (1866). See Duncan v. [310] Louisiana, 391 U. S. 145, 155 (1968).^[31] Thus, it is the jury that is a criminal defendant's fundamental "protection of life and liberty against race or color prejudice." Strauder v. West Virginia, 100 U. S. 303, 309 (1880). Specifically, a capital sentencing jury representative of a criminal defendant's community assures a " `diffused impartiality,' " Taylor v. Louisiana, 419 U. S. 522, 530 (1975) (quoting Thiel v. Southern Pacific Co., 328 U. S. 217, 227 (1946) (Frankfurter, J., dissenting)), in the jury's task of "express[ing] the conscience of the community on the ultimate question of life or death," Witherspoon v. Illinois, 391 U. S. 510, 519 (1968).^[32]

[311] Individual jurors bring to their deliberations "qualities of human nature and varieties of human experience, the range of which is unknown and perhaps unknowable." Peters v. Kiff, 407 U. S. 493, 503 (1972) (opinion of MARSHALL, J.). The capital sentencing decision requires the individual jurors to focus their collective judgment on the unique characteristics of a particular criminal defendant. It is not surprising that such collective judgments often are difficult to explain. But the inherent lack of predictability of jury decisions does not justify their condemnation. On the contrary, it is the jury's function to make the difficult and uniquely human judgments that defy codification and that "buil[d] discretion, equity, and flexibility into a legal system." H. Kalven & H. Zeisel, The American Jury 498 (1966).

McCleskey's argument that the Constitution condemns the discretion allowed decisionmakers in the Georgia capital sentencing system is antithetical to the fundamental role of discretion in our criminal justice system. Discretion in the criminal justice system offers substantial benefits to the criminal defendant. Not only can a jury decline to impose the death sentence, it can decline to convict or choose to convict of a lesser offense. Whereas decisions against a defendant's interest may be reversed by the trial judge or on appeal, these discretionary exercises of leniency are final and unreviewable.^[33] Similarly, the capacity of prosecutorial discretion [312] to provide individualized justice is "firmly entrenched in American law." 2 W. LaFave & J. Israel, Criminal Procedure § 13.2(a), p. 160 (1984). As we have noted, a prosecutor can decline to charge, offer a plea bargain,^[34] or decline to seek a death sentence in any particular case. See n. 28, supra. Of course, "the power to be lenient [also] is the power to discriminate," K. Davis, Discretionary Justice 170 (1973), but a capital punishment system that did not allow for discretionary acts of leniency "would be totally alien to our notions of criminal justice." Gregg v. Georgia, 428 U. S., at 200, n. 50.

C

At most, the Baldus study indicates a discrepancy that appears to correlate with race. Apparent disparities in sentencing are an inevitable part of our criminal justice system.^[35] [313] The discrepancy indicated by the Baldus study is "a far cry from the major systemic defects identified in Furman," Pulley v. Harris, 465 U. S., at 54.^[36] As this Court has recognized, any mode for determining guilt or punishment "has its weaknesses and the potential for misuse." Singer v. United States, 380 U. S. 24, 35 (1965). See Bordenkircher v. Hayes, 434 U. S. 357, 365 (1978). Specifically, "there can be `no perfect procedure for deciding in which cases governmental authority should be used to impose death.' " Zant v. Stephens, 462 U. S. 862, 884 (1983) (quoting Lockett v. Ohio, 438 U. S., at 605 (plurality opinion of Burger, C. J.)). Despite these imperfections, our consistent rule has been that constitutional guarantees are met when "the mode [for determining guilt or punishment] itself has been surrounded with safeguards to make it as fair as possible." Singer v. United States, supra, at 35. Where the discretion that is fundamental to our criminal process is involved, we decline to assume that what is unexplained is invidious. In light of the safeguards designed to minimize racial bias in the process, the fundamental value of jury trial in our criminal justice system, and the benefits that discretion provides to criminal defendants, we hold that the Baldus study does not demonstrate a constitutionally significant risk of racial bias affecting the Georgia capital sentencing process.^[37]

[314]

V

Two additional concerns inform our decision in this case. First, McCleskey's claim, taken to its logical conclusion, [315] throws into serious question the principles that underlie our entire criminal justice system. The Eighth Amendment is not limited in application to capital punishment, but applies to all penalties. Solem v. Helm, 463 U. S. 277, 289-290 (1983); see Rummel v. Estelle, 445 U. S. 263, 293 (1980) (POWELL, J., dissenting). Thus, if we accepted McCleskey's claim that racial bias has impermissibly tainted the capital sentencing decision, we could soon be faced with similar claims as to other types of penalty.^[38] Moreover, the claim that his sentence [316] rests on the irrelevant factor of race easily could be extended to apply to claims based on unexplained discrepancies that correlate to membership in other minority groups,^[39] and [317] even to gender.^[40] Similarly, since McCleskey's claim relates to the race of his victim, other claims could apply with equally logical force to statistical disparities that correlate with the race or sex of other actors in the criminal justice system, such as defense attorneys^[41] or judges.^[42] Also, there is no logical reason that such a claim need be limited to racial or sexual bias. If arbitrary and capricious punishment is the touchstone under the Eighth Amendment, such a claim could — at least in theory — be based upon any arbitrary variable, such as the defendant's facial characteristics,^[43] or the physical attractiveness of the defendant or the victim,^[44] that some statistical [318] study indicates may be influential in jury decisionmaking. As these examples illustrate, there is no limiting principle to the type of challenge brought by McCleskey.^[45] [319] The Constitution does not require that a State eliminate any demonstrable disparity that correlates with a potentially irrelevant factor in order to operate a criminal justice system that includes capital punishment. As we have stated specifically in the context of capital punishment, the Constitution does not "plac[e] totally unrealistic conditions on its use." Gregg v. Georgia, 428 U. S., at 199, n. 50.

Second, McCleskey's arguments are best presented to the legislative bodies. It is not the responsibility — or indeed even the right — of this Court to determine the appropriate punishment for particular crimes. It is the legislatures, the elected representatives of the people, that are "constituted to respond to the will and consequently the moral values of the people." Furman v. Georgia, 408 U. S., at 383 (Burger, C. J., dissenting). Legislatures also are better qualified to weigh and "evaluate the results of statistical studies in terms of their own local conditions and with a flexibility of approach that is not available to the courts," Gregg v. Georgia, supra, at 186. Capital punishment is now the law in more than two-thirds of our States. It is the ultimate duty of courts to determine on a case-by-case basis whether these laws are applied consistently with the Constitution. Despite McCleskey's wide-ranging arguments that basically challenge the validity of capital punishment in our multiracial society, the only question before us is whether in his case, see supra, at 283-285, the law of Georgia was properly applied. We agree with the District Court and the Court of Appeals for the Eleventh Circuit that this was carefully and correctly done in this case.

[320A]

VI

Accordingly, we affirm the judgment of the Court of Appeals for the Eleventh Circuit.

It is so ordered.

[320B] JUSTICE BRENNAN, with whom JUSTICE MARSHALL joins, and with whom JUSTICE BLACKMUN and JUSTICE STEVENS join in all but Part I, dissenting.

I

Adhering to my view that the death penalty is in all circumstances cruel and unusual punishment forbidden by the Eighth and Fourteenth Amendments, I would vacate the decision below insofar as it left undisturbed the death sentence imposed in this case. Gregg v. Georgia, 428 U. S. 153, 227 (1976) (BRENNAN, J., dissenting). The Court observes that "[t]he Gregg-type statute imposes unprecedented safeguards in the special context of capital punishment," which "ensure a degree of care in the imposition of the death penalty that can be described only as unique." Ante, at 315, n. 37. Notwithstanding these efforts, murder defendants in Georgia with white victims are more than four times as likely to receive the death sentence as are defendants with black victims. Petitioner's Exhibit DB 82. Nothing could convey more powerfully the intractable reality of the death penalty: "that the effort to eliminate arbitrariness in the infliction of that ultimate sanction is so plainly doomed to failure that it — and the death penalty — must be abandoned altogether." Godfrey v. Georgia, 446 U. S. 420, 442 (1980) (MARSHALL, J., concurring in judgment).

Even if I did not hold this position, however, I would reverse the Court of Appeals, for petitioner McCleskey has clearly demonstrated that his death sentence was imposed in violation of the Eighth and Fourteenth Amendments. While I join Parts I through IV-A of JUSTICE BLACKMUN'S dissenting opinion discussing petitioner's Fourteenth Amendment claim, I write separately to emphasize how conclusively [321] McCleskey has also demonstrated precisely the type of risk of irrationality in sentencing that we have consistently condemned in our Eighth Amendment jurisprudence.

II

At some point in this case, Warren McCleskey doubtless asked his lawyer whether a jury was likely to sentence him to die. A candid reply to this question would have been disturbing. First, counsel would have to tell McCleskey that few of the details of the crime or of McCleskey's past criminal conduct were more important than the fact that his victim was white. Petitioner's Supplemental Exhibits (Supp. Exh.) 50. Furthermore, counsel would feel bound to tell McCleskey that defendants charged with killing white victims in Georgia are 4.3 times as likely to be sentenced to death as defendants charged with killing blacks. Petitioner's Exhibit DB 82. In addition, frankness would compel the disclosure that it was more likely than not that the race of McCleskey's victim would determine whether he received a death sentence: 6 of every 11 defendants convicted of killing a white person would not have received the death penalty if their victims had been black, Supp. Exh. 51, while, among defendants with aggravating and mitigating factors comparable to McCleskey's, 20 of every 34 would not have been sentenced to die if their victims had been black. Id., at 54. Finally, the assessment would not be complete without the information that cases involving black defendants and white victims are more likely to result in a death sentence than cases featuring any other racial combination of defendant and victim. Ibid. The story could be told in a variety of ways, but McCleskey could not fail to grasp its essential narrative line: there was a significant chance that race would play a prominent role in determining if he lived or died.

The Court today holds that Warren McCleskey's sentence was constitutionally imposed. It finds no fault in a system in which lawyers must tell their clients that race casts a [322] large shadow on the capital sentencing process. The Court arrives at this conclusion by stating that the Baldus study cannot "prove that race enters into any capital sentencing decisions or that race was a factor in McCleskey's particular case." Ante, at 308 (emphasis in original). Since, according to Professor Baldus, we cannot say "to a moral certainty" that race influenced a decision, ante, at 308, n. 29, we can identify only "a likelihood that a particular factor entered into some decisions," ante, at 308, and "a discrepancy that appears to correlate with race." Ante, at 312. This "likelihood" and "discrepancy," holds the Court, is insufficient to establish a constitutional violation. The Court reaches this conclusion by placing four factors on the scales opposite McCleskey's evidence: the desire to encourage sentencing discretion, the existence of "statutory safeguards" in the Georgia scheme, the fear of encouraging widespread challenges to other sentencing decisions, and the limits of the judicial role. The Court's evaluation of the significance of petitioner's evidence is fundamentally at odds with our consistent concern for rationality in capital sentencing, and the considerations that the majority invokes to discount that evidence cannot justify ignoring its force.

III

A

It is important to emphasize at the outset that the Court's observation that McCleskey cannot prove the influence of race on anyparticular sentencing decision is irrelevant in evaluating his Eighth Amendment claim. Since Furman v. Georgia, 408 U. S. 238 (1972), the Court has been concerned with the risk of the imposition of an arbitrary sentence, rather than the proven fact of one. Furman held that the death penalty "may not be imposed under sentencing procedures that create a substantial risk that the punishment will be inflicted in an arbitrary and capricious manner." Godfrey v. Georgia, supra, at 427. As JUSTICE O'CONNOR observed [323] in Caldwell v. Mississippi, 472 U. S. 320, 343 (1985), a death sentence must be struck down when the circumstances under which it has been imposed "creat[e] an unacceptable risk that `the death penalty [may have been] meted out arbitrarily or capriciously' or through `whim or mistake' " (emphasis added) (quoting California v. Ramos, 463 U. S. 992, 999 (1983)). This emphasis on risk acknowledges the difficulty of divining the jury's motivation in an individual case. In addition, it reflects the fact that concern for arbitrariness focuses on the rationality of the system as a whole, and that a system that features a significant probability that sentencing decisions are influenced by impermissible considerations cannot be regarded as rational.^[1] As we said in Gregg v. Georgia, 428 U. S., at 200, "the petitioner looks to the sentencing system as a whole (as the Court did in Furman and we do today)": a constitutional violation is established if a plaintiff demonstrates a "pattern of arbitrary and capricious sentencing." Id., at 195, n. 46 (emphasis added) (joint opinion of Stewart, POWELL, and STEVENS, JJ.).

As a result, our inquiry under the Eighth Amendment has not been directed to the validity of the individual sentences before us. In Godfrey, for instance, the Court struck down the petitioner's sentence because the vagueness of the statutory definition of heinous crimes created a risk that prejudice [324] or other impermissible influences might have infected the sentencing decision. In vacating the sentence, we did not ask whether it was likely that Godfrey's own sentence reflected the operation of irrational considerations. Nor did we demand a demonstration that such considerations had actually entered into other sentencing decisions involving heinous crimes. Similarly, in Roberts v. Louisiana, 428 U. S. 325 (1976), and Woodson v. North Carolina, 428 U. S. 280 (1976), we struck down death sentences in part because mandatory imposition of the death penalty created the risk that a jury might rely on arbitrary considerations in deciding which persons should be convicted of capital crimes. Such a risk would arise, we said, because of the likelihood that jurors reluctant to impose capital punishment on a particular defendant would refuse to return a conviction, so that the effect of mandatory sentencing would be to recreate the unbounded sentencing discretion condemned in Furman. Roberts, supra, at 334-335 (plurality opinion); Woodson, supra, at 303 (plurality opinion). We did not ask whether the death sentences in the cases before us could have reflected the jury's rational consideration and rejection of mitigating factors. Nor did we require proof that juries had actually acted irrationally in other cases.

Defendants challenging their death sentences thus never have had to prove that impermissible considerations have actually infected sentencing decisions. We have required instead that they establish that the system under which they were sentenced posed a significant risk of such an occurrence. McCleskey's claim does differ, however, in one respect from these earlier cases: it is the first to base a challenge not on speculation about how a system might operate, but on empirical documentation of how it does operate.

The Court assumes the statistical validity of the Baldus study, and acknowledges that McCleskey has demonstrated a risk that racial prejudice plays a role in capital sentencing in Georgia, ante, at 291, n. 7. Nonetheless, it finds the probability of prejudice insufficient to create constitutional concern. [325] Ante, at 313. Close analysis of the Baldus study, however, in light of both statistical principles and human experience, reveals that the risk that race influenced McCleskey's sentence is intolerable by any imaginable standard.

B

The Baldus study indicates that, after taking into account some 230 nonracial factors that might legitimately influence a sentencer, the jury more likely than not would have spared McCleskey's life had his victim been black. The study distinguishes between those cases in which (1) the jury exercises virtually no discretion because the strength or weakness of aggravating factors usually suggests that only one outcome is appropriate;^[2] and (2) cases reflecting an "intermediate" level of aggravation, in which the jury has considerable discretion in choosing a sentence.^[3] McCleskey's case falls into the intermediate range. In such cases, death is imposed in 34% of white-victim crimes and 14% of black-victim crimes, a difference of 139% in the rate of imposition of the death penalty. Supp. Exh. 54. In other words, just under 59% — almost 6 in 10 — defendants comparable to McCleskey would not have received the death penalty if their victims had been black.^[4]

[326] Furthermore, even examination of the sentencing system as a whole, factoring in those cases in which the jury exercises little discretion, indicates the influence of race on capital sentencing. For the Georgia system as a whole, race accounts for a six percentage point difference in the rate at which capital punishment is imposed. Since death is imposed in 11% of all white-victim cases, the rate in comparably aggravated black-victim cases is 5%. The rate of capital sentencing in a white-victim case is thus 120% greater than the rate in a black-victim case. Put another way, over half — 55% — of defendants in white-victim crimes in Georgia would not have been sentenced to die if their victims had been black. Of the more than 200 variables potentially relevant to a sentencing decision, race of the victim is a powerful explanation for variation in death sentence rates — as powerful as nonracial aggravating factors such as a prior murder conviction or acting as the principal planner of the homicide.^[5]

These adjusted figures are only the most conservative indication of the risk that race will influence the death sentences of defendants in Georgia. Data unadjusted for the mitigating or aggravating effect of other factors show an even more pronounced disparity by race. The capital sentencing rate for all white-victim cases was almost 11 times greater than [327] the rate for black-victim cases. Supp. Exh. 47. Furthermore, blacks who kill whites are sentenced to death at nearly 22 times the rate of blacks who kill blacks, and more than 7 times the rate of whites who kill blacks. Ibid. In addition, prosecutors seek the death penalty for 70% of black defendants with white victims, but for only 15% of black defendants with black victims, and only 19% of white defendants with black victims. Id., at 56. Since our decision upholding the Georgia capital sentencing system in Gregg, the State has executed seven persons. All of the seven were convicted of killing whites, and six of the seven executed were black.^[6] Such execution figures are especially striking in light of the fact that, during the period encompassed by the Baldus study, only 9.2% of Georgia homicides involved black defendants and white victims, while 60.7% involved black victims.

McCleskey's statistics have particular force because most of them are the product of sophisticated multiple-regression analysis. Such analysis is designed precisely to identify patterns in the aggregate, even though we may not be able to reconstitute with certainty any individual decision that goes to make up that pattern. Multiple-regression analysis is particularly well suited to identify the influence of impermissible considerations in sentencing, since it is able to control for permissible factors that may explain an apparent arbitrary pattern.^[7] While the decisionmaking process of a body such as a jury may be complex, the Baldus study provides a massive compilation of the details that are most relevant to that decision. As we held in the context of Title VII of the Civil Rights Act of 1964 last Term in Bazemore v. Friday, 478 U. S. 385 (1986), a multiple-regression analysis need not include every conceivable variable to establish a party's case, as long as it includes those variables that account for the [328] major factors that are likely to influence decisions. In this case, Professor Baldus in fact conducted additional regression analyses in response to criticisms and suggestions by the District Court, all of which confirmed, and some of which even strengthened, the study's original conclusions.

The statistical evidence in this case thus relentlessly documents the risk that McCleskey's sentence was influenced by racial considerations. This evidence shows that there is a better than even chance in Georgia that race will influence the decision to impose the death penalty: a majority of defendants in white-victim crimes would not have been sentenced to die if their victims had been black. In determining whether this risk is acceptable, our judgment must be shaped by the awareness that "[t]he risk of racial prejudice infecting a capital sentencing proceeding is especially serious in light of the complete finality of the death sentence," Turner v. Murray, 476 U. S. 28, 35 (1986), and that "[i]t is of vital importance to the defendant and to the community that any decision to impose the death sentence be, and appear to be, based on reason rather than caprice or emotion," Gardner v. Florida, 430 U. S. 349, 358 (1977). In determining the guilt of a defendant, a State must prove its case beyond a reasonable doubt. That is, we refuse to convict if the chance of error is simply less likely than not. Surely, we should not be willing to take a person's life if the chance that his death sentence was irrationally imposed is more likely than not. In light of the gravity of the interest at stake, petitioner's statistics on their face are a powerful demonstration of the type of risk that our Eighth Amendment jurisprudence has consistently condemned.

C

Evaluation of McCleskey's evidence cannot rest solely on the numbers themselves. We must also ask whether the conclusion suggested by those numbers is consonant with our understanding of history and human experience. Georgia's legacy of a race-conscious criminal justice system, as well as [329] this Court's own recognition of the persistent danger that racial attitudes may affect criminal proceedings, indicates that McCleskey's claim is not a fanciful product of mere statistical artifice.

For many years, Georgia operated openly and formally precisely the type of dual system the evidence shows is still effectively in place. The criminal law expressly differentiated between crimes committed by and against blacks and whites, distinctions whose lineage traced back to the time of slavery. During the colonial period, black slaves who killed whites in Georgia, regardless of whether in self-defense or in defense of another, were automatically executed. A. Higginbotham, In the Matter of Color: Race in the American Legal Process 256 (1978).^[8]

By the time of the Civil War, a dual system of crime and punishment was well established in Georgia. See Ga. Penal Code (1861). The state criminal code contained separate sections for "Slaves and Free Persons of Color," Pt. 4, Tit. 3, Ch. 1, and for all other persons, Pt. 4, Tit. 1, Divs. 1-16. The code provided, for instance, for an automatic death sentence for murder committed by blacks, Pt. 4, Tit. 1, Art. II, § 4704, but declared that anyone else convicted of murder might receive life imprisonment if the conviction were founded solely on circumstantial testimony or simply if the jury so recommended. Pt. 4, Tit. 1, Div. 4, § 4220. The code established that the rape of a free white female by a black "shall be" punishable by death. § 4704. However, rape by anyone else of a free white female was punishable by [330] a prison term not less than 2 nor more than 20 years. The rape of blacks was punishable "by fine and imprisonment, at the discretion of the court." § 4249. A black convicted of assaulting a free white person with intent to murder could be put to death at the discretion of the court, § 4708, but the same offense committed against a black, slave or free, was classified as a "minor" offense whose punishment lay in the discretion of the court, as long as such punishment did not "extend to life, limb, or health." Art. III, §§ 4714, 4718. Assault with intent to murder by a white person was punishable by a prison term of from 2 to 10 years. Div. 4, § 4258. While sufficient provocation could reduce a charge of murder to manslaughter, the code provided that "[o]bedience and submission being the duty of a slave, much greater provocation is necessary to reduce a homicide of a white person by him to voluntary manslaughter, than is prescribed for white persons." Art. II, § 4711.

In more recent times, some 40 years ago, Gunnar Myrdal's epochal study of American race relations produced findings mirroring McCleskey's evidence:

"As long as only Negroes are concerned and no whites are disturbed, great leniency will be shown in most cases . . . . The sentences for even major crimes are ordinarily reduced when the victim is another Negro.

.....

"For offenses which involve any actual or potential danger to whites, however, Negroes are punished more severely than whites.

.....

"On the other hand, it is quite common for a white criminal to be set free if his crime was against a Negro." G. Myrdal, An American Dilemma 551-553 (1944).

This Court has invalidated portions of the Georgia capital sentencing system three times over the past 15 years. The specter of race discrimination was acknowledged by the Court in striking down the Georgia death penalty statute in Furman. [331] Justice Douglas cited studies suggesting imposition of the death penalty in racially discriminatory fashion, and found the standardless statutes before the Court "pregnant with discrimination." 408 U. S., at 257 (concurring opinion). JUSTICE MARSHALL pointed to statistics indicating that "Negroes [have been] executed far more often than whites in proportion to their percentage of the population. Studies indicate that while the higher rate of execution among Negroes is partially due to a higher rate of crime, there is evidence of racial discrimination." Id., at 364 (concurring opinion). Although Justice Stewart declined to conclude that racial discrimination had been plainly proved, he stated that "[m]y concurring Brothers have demonstrated that, if any basis can be discerned for the selection of these few to be sentenced to die, it is the constitutionally impermissible basis of race." Id., at 310 (concurring opinion). In dissent, Chief Justice Burger acknowledged that statistics "suggest, at least as a historical matter, that Negroes have been sentenced to death with greater frequency than whites in several States, particularly for the crime of interracial rape." Id., at 289, n. 12. Finally, also in dissent, JUSTICE POWELL intimated that an Equal Protection Clause argument would be available for a black "who could demonstrate that members of his race were being singled out for more severe punishment than others charged with the same offense." Id., at 449. He noted that although the Eighth Circuit had rejected a claim of discrimination in Maxwell v. Bishop, 398 F. 2d 138 (1968), vacated and remanded on other grounds, 398 U. S. 262 (1970), the statistical evidence in that case "tend[ed] to show a pronounced disproportion in the number of Negroes receiving death sentences for rape in parts of Arkansas and elsewhere in the South." 408 U. S., at 449. It is clear that the Court regarded the opportunity for the operation of racial prejudice a particularly troublesome aspect of the unbounded discretion afforded by the Georgia sentencing scheme.

[332] Five years later, the Court struck down the imposition of the death penalty in Georgia for the crime of rape. Coker v. Georgia, 433 U. S. 584 (1977). Although the Court did not explicitly mention race, the decision had to have been informed by the specific observations on rape by both the Chief Justice and JUSTICE POWELL in Furman. Furthermore, evidence submitted to the Court indicated that black men who committed rape, particularly of white women, were considerably more likely to be sentenced to death than white rapists. For instance, by 1977 Georgia had executed 62 men for rape since the Federal Government began compiling statistics in 1930. Of these men, 58 were black and 4 were white. See Brief for Petitioner in Coker v. Georgia, O. T. 1976, No. 75-5444, p. 56; see also Wolfgang & Riedel, Rape, Race, and the Death Penalty in Georgia, 45 Am. J. Orthopsychiatry 658 (1975).

Three years later, the Court in Godfrey found one of the State's statutory aggravating factors unconstitutionally vague, since it resulted in "standardless and unchanneled imposition of death sentences in the uncontrolled discretion of a basically uninstructed jury . . . ." 446 U. S., at 429. JUSTICE MARSHALL, concurring in the judgment, noted that "[t]he disgraceful distorting effects of racial discrimination and poverty continue to be painfully visible in the imposition of death sentences." Id., at 439 (footnote omitted).

This historical review of Georgia criminal law is not intended as a bill of indictment calling the State to account for past transgressions. Citation of past practices does not justify the automatic condemnation of current ones. But it would be unrealistic to ignore the influence of history in assessing the plausible implications of McCleskey's evidence. "[A]mericans share a historical experience that has resulted in individuals within the culture ubiquitously attaching a significance to race that is irrational and often outside their awareness." Lawrence, The Id, The Ego, and Equal Protection: Reckoning With Unconscious Racism, 39 Stan. L. [333] Rev. 327 (1987). See generally id., at 328-344 (describing the psychological dynamics of unconscious racial motivation). As we said in Rose v. Mitchell, 443 U. S. 545, 558-559 (1979):

"[W]e . . . cannot deny that, 114 years after the close of the War Between the States and nearly 100 years after Strauder, racial and other forms of discrimination still remain a fact of life, in the administration of justice as in our society as a whole. Perhaps today that discrimination takes a form more subtle than before. But it is not less real or pernicious."

The ongoing influence of history is acknowledged, as the majority observes, by our " `unceasing efforts' to eradicate racial prejudice from our criminal justice system." Ante, at 309 (quoting Batson v. Kentucky, 476 U. S. 79, 85 (1986)). These efforts, however, signify not the elimination of the problem but its persistence. Our cases reflect a realization of the myriad of opportunities for racial considerations to influence criminal proceedings: in the exercise of peremptory challenges, Batson v. Kentucky, supra; in the selection of the grand jury, Vasquez v. Hillery, 474 U. S. 254 (1986); in the selection of the petit jury, Whitus v. Georgia, 385 U. S. 545 (1967); in the exercise of prosecutorial discretion, Wayte v. United States, 470 U. S. 598 (1985); in the conduct of argument, Donnelly v. DeChristoforo, 416 U. S. 637 (1974); and in the conscious or unconscious bias of jurors, Turner v. Murray, 476 U. S. 28 (1986), Ristaino v. Ross, 424 U. S. 589 (1976).

The discretion afforded prosecutors and jurors in the Georgia capital sentencing system creates such opportunities. No guidelines govern prosecutorial decisions to seek the death penalty, and Georgia provides juries with no list of aggravating and mitigating factors, nor any standard for balancing them against one another. Once a jury identifies one aggravating factor, it has complete discretion in choosing life or death, and need not articulate its basis for selecting life imprisonment. The Georgia sentencing system therefore [334] provides considerable opportunity for racial considerations, however subtle and unconscious, to influence charging and sentencing decisions.^[9]

History and its continuing legacy thus buttress the probative force of McCleskey's statistics. Formal dual criminal laws may no longer be in effect, and intentional discrimination may no longer be prominent. Nonetheless, as we acknowledged in Turner, "subtle, less consciously held racial attitudes" continue to be of concern, 476 U. S., at 35, and the Georgia system gives such attitudes considerable room to operate. The conclusions drawn from McCleskey's statistical evidence are therefore consistent with the lessons of social experience.

[335] The majority thus misreads our Eighth Amendment jurisprudence in concluding that McCleskey has not demonstrated a degree of risk sufficient to raise constitutional concern. The determination of the significance of his evidence is at its core an exercise in human moral judgment, not a mechanical statistical analysis. It must first and foremost be informed by awareness of the fact that death is irrevocable, and that as a result "the qualitative difference of death from all other punishments requires a greater degree of scrutiny of the capital sentencing determination." California v. Ramos, 463 U. S., at 998-999. For this reason, we have demanded a uniquely high degree of rationality in imposing the death penalty. A capital sentencing system in which race more likely than not plays a role does not meet this standard. It is true that every nuance of decision cannot be statistically captured, nor can any individual judgment be plumbed with absolute certainty. Yet the fact that we must always act without the illumination of complete knowledge cannot induce paralysis when we confront what is literally an issue of life and death. Sentencing data, history, and experience all counsel that Georgia has provided insufficient assurance of the heightened rationality we have required in order to take a human life.

IV

The Court cites four reasons for shrinking from the implications of McCleskey's evidence: the desirability of discretion for actors in the criminal justice system, the existence of statutory safeguards against abuse of that discretion, the potential consequences for broader challenges to criminal sentencing, and an understanding of the contours of the judicial role. While these concerns underscore the need for sober deliberation, they do not justify rejecting evidence as convincing as McCleskey has presented.

The Court maintains that petitioner's claim "is antithetical to the fundamental role of discretion in our criminal justice [336] system." Ante, at 311. It states that "[w]here the discretion that is fundamental to our criminal process is involved, we decline to assume that what is unexplained is invidious." Ante, at 313.

Reliance on race in imposing capital punishment, however, is antithetical to the very rationale for granting sentencing discretion. Discretion is a means, not an end. It is bestowed in order to permit the sentencer to "trea[t] each defendant in a capital case with that degree of respect due the uniqueness of the individual." Lockett v. Ohio, 438 U. S. 586, 605 (1978). The decision to impose the punishment of death must be based on a "particularized consideration of relevant aspects of the character and record of each convicted defendant." Woodson v. North Carolina, 428 U. S., at 303. Failure to conduct such an individualized moral inquiry "treats all persons convicted of a designated offense not as unique individual human beings, but as members of a faceless, undifferentiated mass to be subjected to the blind infliction of the penalty of death." Id., at 304.

Considering the race of a defendant or victim in deciding if the death penalty should be imposed is completely at odds with this concern that an individual be evaluated as a unique human being. Decisions influenced by race rest in part on a categorical assessment of the worth of human beings according to color, insensitive to whatever qualities the individuals in question may possess. Enhanced willingness to impose the death sentence on black defendants, or diminished willingness to render such a sentence when blacks are victims, reflects a devaluation of the lives of black persons. When confronted with evidence that race more likely than not plays such a role in a capital sentencing system, it is plainly insufficient to say that the importance of discretion demands that the risk be higher before we will act — for in such a case the very end that discretion is designed to serve is being undermined.

[337] Our desire for individualized moral judgments may lead us to accept some inconsistencies in sentencing outcomes. Since such decisions are not reducible to mathematical formulae, we are willing to assume that a certain degree of variation reflects the fact that no two defendants are completely alike. There is thus a presumption that actors in the criminal justice system exercise their discretion in responsible fashion, and we do not automatically infer that sentencing patterns that do not comport with ideal rationality are suspect.

As we made clear in Batson v. Kentucky, 476 U. S. 79 (1986), however, that presumption is rebuttable. Batson dealt with another arena in which considerable discretion traditionally has been afforded, the exercise of peremptory challenges. Those challenges are normally exercised without any indication whatsoever of the grounds for doing so. The rationale for this deference has been a belief that the unique characteristics of particular prospective jurors may raise concern on the part of the prosecution or defense, despite the fact that counsel may not be able to articulate that concern in a manner sufficient to support exclusion for cause. As with sentencing, therefore, peremptory challenges are justified as an occasion for particularized determinations related to specific individuals, and, as with sentencing, we presume that such challenges normally are not made on the basis of a factor such as race. As we said in Batson, however, such features do not justify imposing a "crippling burden of proof," id., at 92, in order to rebut that presumption. The Court in this case apparently seeks to do just that. On the basis of the need for individualized decisions, it rejects evidence, drawn from the most sophisticated capital sentencing analysis ever performed, that reveals that race more likely than not infects capital sentencing decisions. The Court's position converts a rebuttable presumption into a virtually conclusive one.

[338] The Court also declines to find McCleskey's evidence sufficient in view of "the safeguards designed to minimize racial bias in the [capital sentencing] process." Ante, at 313. Gregg v. Georgia, 428 U. S., at 226, upheld the Georgia capital sentencing statute against a facial challenge which JUSTICE WHITE described in his concurring opinion as based on "simply an assertion of lack of faith" that the system could operate in a fair manner (opinion concurring in judgment). JUSTICE WHITE observed that the claim that prosecutors might act in an arbitrary fashion was "unsupported by any facts," and that prosecutors must be assumed to exercise their charging duties properly "[a]bsent facts to the contrary." Id., at 225. It is clear that Gregg bestowed no permanent approval on the Georgia system. It simply held that the State's statutory safeguards were assumed sufficient to channel discretion without evidence otherwise.

It has now been over 13 years since Georgia adopted the provisions upheld in Gregg. Professor Baldus and his colleagues have compiled data on almost 2,500 homicides committed during the period 1973-1979. They have taken into account the influence of 230 nonracial variables, using a multitude of data from the State itself, and have produced striking evidence that the odds of being sentenced to death are significantly greater than average if a defendant is black or his or her victim is white. The challenge to the Georgia system is not speculative or theoretical; it is empirical. As a result, the Court cannot rely on the statutory safeguards in discounting McCleskey's evidence, for it is the very effectiveness of those safeguards that such evidence calls into question. While we may hope that a model of procedural fairness will curb the influence of race on sentencing, "we cannot simply assume that the model works as intended; we must critique its performance in terms of its results." Hubbard, "Reasonable Levels of Arbitrariness" in Death Sentencing Patterns: A Tragic Perspective on Capital Punishment, 18 U. C. D. L. Rev. 1113, 1162 (1985).

[339] The Court next states that its unwillingness to regard petitioner's evidence as sufficient is based in part on the fear that recognition of McCleskey's claim would open the door to widespread challenges to all aspects of criminal sentencing. Ante, at 314-315. Taken on its face, such a statement seems to suggest a fear of too much justice. Yet surely the majority would acknowledge that if striking evidence indicated that other minority groups, or women, or even persons with blond hair, were disproportionately sentenced to death, such a state of affairs would be repugnant to deeply rooted conceptions of fairness. The prospect that there may be more widespread abuse than McCleskey documents may be dismaying, but it does not justify complete abdication of our judicial role. The Constitution was framed fundamentally as a bulwark against governmental power, and preventing the arbitrary administration of punishment is a basic ideal of any society that purports to be governed by the rule of law.^[10]

In fairness, the Court's fear that McCleskey's claim is an invitation to descend a slippery slope also rests on the realization that any humanly imposed system of penalties will exhibit some imperfection. Yet to reject McCleskey's powerful evidence on this basis is to ignore both the qualitatively different character of the death penalty and the particular repugnance of racial discrimination, considerations which may [340] properly be taken into account in determining whether various punishments are "cruel and unusual." Furthermore, it fails to take account of the unprecedented refinement and strength of the Baldus study.

It hardly needs reiteration that this Court has consistently acknowledged the uniqueness of the punishment of death. "Death, in its finality, differs more from life imprisonment than a 100-year prison term differs from one of only a year or two. Because of that qualitative difference, there is a corresponding difference in the need for reliability in the determination that death is the appropriate punishment." Woodson, 428 U. S., at 305. Furthermore, the relative interests of the state and the defendant differ dramatically in the death penalty context. The marginal benefits accruing to the state from obtaining the death penalty rather than life imprisonment are considerably less than the marginal difference to the defendant between death and life in prison. Such a disparity is an additional reason for tolerating scant arbitrariness in capital sentencing. Even those who believe that society can impose the death penalty in a manner sufficiently rational to justify its continuation must acknowledge that the level of rationality that is considered satisfactory must be uniquely high. As a result, the degree of arbitrariness that may be adequate to render the death penalty "cruel and unusual" punishment may not be adequate to invalidate lesser penalties. What these relative degrees of arbitrariness might be in other cases need not concern us here; the point is that the majority's fear of wholesale invalidation of criminal sentences is unfounded.

The Court also maintains that accepting McCleskey's claim would pose a threat to all sentencing because of the prospect that a correlation might be demonstrated between sentencing outcomes and other personal characteristics. Again, such a view is indifferent to the considerations that enter into a determination whether punishment is "cruel and unusual." Race is a consideration whose influence is expressly constitutionally [341] proscribed. We have expressed a moral commitment, as embodied in our fundamental law, that this specific characteristic should not be the basis for allotting burdens and benefits. Three constitutional amendments, and numerous statutes, have been prompted specifically by the desire to address the effects of racism. "Over the years, this Court has consistently repudiated `[d]istinctions between citizens solely because of their ancestry' as being `odious to a free people whose institutions are founded upon the doctrine of equality.' " Loving v. Virginia, 388 U. S. 1, 11 (1967) (quoting Hirabayashi v. United States, 320 U. S. 81, 100 (1943)). Furthermore, we have explicitly acknowledged the illegitimacy of race as a consideration in capital sentencing, Zant v. Stephens, 462 U. S. 862, 885 (1983). That a decision to impose the death penalty could be influenced by race is thus a particularly repugnant prospect, and evidence that race may play even a modest role in levying a death sentence should be enough to characterize that sentence as "cruel and unusual."

Certainly, a factor that we would regard as morally irrelevant, such as hair color, at least theoretically could be associated with sentencing results to such an extent that we would regard as arbitrary a system in which that factor played a significant role. As I have said above, however, supra, at 328-329, the evaluation of evidence suggesting such a correlation must be informed not merely by statistics, but by history and experience. One could hardly contend that this Nation has on the basis of hair color inflicted upon persons deprivation comparable to that imposed on the basis of race. Recognition of this fact would necessarily influence the evaluation of data suggesting the influence of hair color on sentencing, and would require evidence of statistical correlation even more powerful than that presented by the Baldus study.

Furthermore, the Court's fear of the expansive ramifications of a holding for McCleskey in this case is unfounded because it fails to recognize the uniquely sophisticated nature of the Baldus study. McCleskey presents evidence that is [342] far and away the most refined data ever assembled on any system of punishment, data not readily replicated through casual effort. Moreover, that evidence depicts not merely arguable tendencies, but striking correlations, all the more powerful because nonracial explanations have been eliminated. Acceptance of petitioner's evidence would therefore establish a remarkably stringent standard of statistical evidence unlikely to be satisfied with any frequency.

The Court's projection of apocalyptic consequences for criminal sentencing is thus greatly exaggerated. The Court can indulge in such speculation only by ignoring its own jurisprudence demanding the highest scrutiny on issues of death and race. As a result, it fails to do justice to a claim in which both those elements are intertwined — an occasion calling for the most sensitive inquiry a court can conduct. Despite its acceptance of the validity of Warren McCleskey's evidence, the Court is willing to let his death sentence stand because it fears that we cannot successfully define a different standard for lesser punishments. This fear is baseless.

Finally, the Court justifies its rejection of McCleskey's claim by cautioning against usurpation of the legislatures' role in devising and monitoring criminal punishment. The Court is, of course, correct to emphasize the gravity of constitutional intervention and the importance that it be sparingly employed. The fact that "[c]apital punishment is now the law in more than two thirds of our States," ante, at 319, however, does not diminish the fact that capital punishment is the most awesome act that a State can perform. The judiciary's role in this society counts for little if the use of governmental power to extinguish life does not elicit close scrutiny. It is true that society has a legitimate interest in punishment. Yet, as Alexander Bickel wrote:

"It is a premise we deduce not merely from the fact of a written constitution but from the history of the race, and ultimately as a moral judgment of the good society, that government should serve not only what we conceive [343] from time to time to be our immediate material needs but also certain enduring values. This in part is what is meant by government under law." The Least Dangerous Branch 24 (1962).

Our commitment to these values requires fidelity to them even when there is temptation to ignore them. Such temptation is especially apt to arise in criminal matters, for those granted constitutional protection in this context are those whom society finds most menacing and opprobrious. Even less sympathetic are those we consider for the sentence of death, for execution "is a way of saying, `You are not fit for this world, take your chance elsewhere.' " Furman, 408 U. S., at 290 (BRENNAN, J., concurring) (quoting Stephen, Capital Punishments, 69 Fraser's Magazine 753, 763 (1864)).

For these reasons, "[t]he methods we employ in the enforcement of our criminal law have aptly been called the measures by which the quality of our civilization may be judged." Coppedge v. United States, 369 U. S. 438, 449 (1962). Those whom we would banish from society or from the human community itself often speak in too faint a voice to be heard above society's demand for punishment. It is the particular role of courts to hear these voices, for the Constitution declares that the majoritarian chorus may not alone dictate the conditions of social life. The Court thus fulfills, rather than disrupts, the scheme of separation of powers by closely scrutinizing the imposition of the death penalty, for no decision of a society is more deserving of "sober second thought." Stone, The Common Law in the United States, 50 Harv. L. Rev. 4, 25 (1936).

V

At the time our Constitution was framed 200 years ago this year, blacks "had for more than a century before been regarded as beings of an inferior order, and altogether unfit to associate with the white race, either in social or political relations; and so far inferior, that they had no rights which the white man was bound to respect." Dred Scott v. Sandford, [344] 19 How. 393, 407 (1857). Only 130 years ago, this Court relied on these observations to deny American citizenship to blacks. Ibid. A mere three generations ago, this Court sanctioned racial segregation, stating that "[i]f one race be inferior to the other socially, the Constitution of the United States cannot put them upon the same plane." Plessy v. Ferguson, 163 U. S. 537, 552 (1896).

In more recent times, we have sought to free ourselves from the burden of this history. Yet it has been scarcely a generation since this Court's first decision striking down racial segregation, and barely two decades since the legislative prohibition of racial discrimination in major domains of national life. These have been honorable steps, but we cannot pretend that in three decades we have completely escaped the grip of a historical legacy spanning centuries. Warren McCleskey's evidence confronts us with the subtle and persistent influence of the past. His message is a disturbing one to a society that has formally repudiated racism, and a frustrating one to a Nation accustomed to regarding its destiny as the product of its own will. Nonetheless, we ignore him at our peril, for we remain imprisoned by the past as long as we deny its influence in the present.

It is tempting to pretend that minorities on death row share a fate in no way connected to our own, that our treatment of them sounds no echoes beyond the chambers in which they die. Such an illusion is ultimately corrosive, for the reverberations of injustice are not so easily confined. "The destinies of the two races in this country are indissolubly linked together," id., at 560 (Harlan, J., dissenting), and the way in which we choose those who will die reveals the depth of moral commitment among the living.

The Court's decision today will not change what attorneys in Georgia tell other Warren McCleskeys about their chances of execution. Nothing will soften the harsh message they must convey, nor alter the prospect that race undoubtedly will continue to be a topic of discussion. McCleskey's evidence [345A] will not have obtained judicial acceptance, but that will not affect what is said on death row. However many criticisms of today's decision may be rendered, these painful conversations will serve as the most eloquent dissents of all.

[345B] JUSTICE BLACKMUN, with whom JUSTICE MARSHALL and JUSTICE STEVENS join, and with whom JUSTICE BRENNAN joins in all but Part IV-B, dissenting.

The Court today sanctions the execution of a man despite his presentation of evidence that establishes a constitutionally intolerable level of racially based discrimination leading to the imposition of his death sentence. I am disappointed with the Court's action not only because of its denial of constitutional guarantees to petitioner McCleskey individually, but also because of its departure from what seems to me to be well-developed constitutional jurisprudence.

JUSTICE BRENNAN has thoroughly demonstrated, ante, that, if one assumes that the statistical evidence presented by petitioner McCleskey is valid, as we must in light of the Court of Appeals' assumption,^[1] there exists in the Georgia capital sentencing scheme a risk of racially based discrimination that is so acute that it violates the Eighth Amendment. His analysis of McCleskey's case in terms of the Eighth Amendment is consistent with this Court's recognition that because capital cases involve the State's imposition of a punishment that is unique both in kind and degree, the decision in such cases must reflect a heightened degree of reliability under the Amendment's prohibition of the infliction of cruel and unusual punishments. See Woodson v. North Carolina, 428 U. S. 280, 305 (1976) (plurality opinion). I therefore join Parts II through V of JUSTICE BRENNAN'S dissenting opinion.

[346] Yet McCleskey's case raises concerns that are central not only to the principles underlying the Eighth Amendment, but also to the principles underlying the Fourteenth Amendment. Analysis of his case in terms of the Fourteenth Amendment is consistent with this Court's recognition that racial discrimination is fundamentally at odds with our constitutional guarantee of equal protection. The protections afforded by the Fourteenth Amendment are not left at the courtroom door. Hill v. Texas, 316 U. S. 400, 406 (1942). Nor is equal protection denied to persons convicted of crimes. Lee v. Washington, 390 U. S. 333 (1968) (per curiam). The Court in the past has found that racial discrimination within the criminal justice system is particularly abhorrent: "Discrimination on the basis of race, odious in all aspects, is especially pernicious in the administration of justice." Rose v. Mitchell, 443 U. S. 545, 555 (1979). Disparate enforcement of criminal sanctions "destroys the appearance of justice and thereby casts doubt on the integrity of the judicial process." Id., at 555-556. And only last Term JUSTICE POWELL, writing for the Court, noted: "Discrimination within the judicial system is most pernicious because it is `a stimulant to that race prejudice which is an impediment to securing to [black citizens] that equal justice which the law aims to secure to all others.' " Batson v. Kentucky, 476 U. S. 79, 87-88 (1986), quoting Strauder v. West Virginia, 100 U. S. 303, 308 (1880).

Moreover, the legislative history of the Fourteenth Amendment reminds us that discriminatory enforcement of States' criminal laws was a matter of great concern for the drafters. In the introductory remarks to its Report to Congress, the Joint Committee on Reconstruction, which reported out the Joint Resolution proposing the Fourteenth Amendment, specifically noted: "This deep-seated prejudice against color . . . leads to acts of cruelty, oppression, and murder, which the local authorities are at no pains to prevent or punish." H. R. Joint Comm. Rep. No. 30, 39th Cong., 1st Sess., p. XVII (1866). Witnesses who testified before [347] the Committee presented accounts of criminal acts of violence against black persons that were not prosecuted despite evidence as to the identity of the perpetrators.^[2]

I

A

The Court today seems to give a new meaning to our recognition that death is different. Rather than requiring [348] "a correspondingly greater degree of scrutiny of the capital sentencing determination," California v. Ramos, 463 U. S. 992, 998-999 (1983), the Court relies on the very fact that this is a case involving capital punishment to apply a lesser standard of scrutiny under the Equal Protection Clause. The Court concludes that "legitimate" explanations outweigh McCleskey's claim that his death sentence reflected a constitutionally impermissible risk of racial discrimination. The Court explains that McCleskey's evidence is too weak to require rebuttal "because a legitimate and unchallenged explanation for the decision is apparent from the record: McCleskey committed an act for which the United States Constitution and Georgia laws permit imposition of the death penalty." Ante, at 297. The Court states that it will not infer a discriminatory purpose on the part of the state legislature because "there were legitimate reasons for the Georgia Legislature to adopt and maintain capital punishment." Ante, at 298-299.

The Court's assertion that the fact of McCleskey's conviction undermines his constitutional claim is inconsistent with a long and unbroken line of this Court's case law. The Court on numerous occasions during the past century has recognized that an otherwise legitimate basis for a conviction does not outweigh an equal protection violation. In cases where racial discrimination in the administration of the criminal justice system is established, it has held that setting aside the conviction is the appropriate remedy. See, e. g., Rose v. Mitchell, 443 U. S., at 559; Whitus v. Georgia, 385 U. S. 545, 549-550 (1967); Strauder v. West Virginia, 100 U. S. 303 (1880). The Court recently reaffirmed the propriety of invalidating a conviction in order to vindicate federal constitutional rights. Vasquez v. Hillery, 474 U. S. 254 (1986). Invalidation of a criminal conviction on federal constitutional grounds does not necessarily preclude retrial and resentencing of the defendant by the State. Hill v. Texas, 316 U. S., at 406. The Court has maintained a per se reversal [349] rule rejecting application of harmless-error analysis in cases involving racial discrimination that "strikes at the fundamental values of our judicial system and our society as a whole." Rose v. Mitchell, 443 U. S., at 556. We have noted that a conviction "in no way suggests that the discrimination did not impermissibly infect" earlier phases of the criminal prosecution "and, consequently, the nature or very existence of the proceedings to come." Vasquez v. Hillery, 474 U. S., at 263. Hence, McCleskey's conviction and the imposition of his death sentence by the jury do not suggest that discrimination did not impermissibly infect the earlier steps in the prosecution of his case, such as the prosecutor's decision to seek the death penalty.

The Court's reliance on legitimate interests underlying the Georgia Legislature's enactment of its capital punishment statute is likewise inappropriate. Although that reasoning may be relevant in a case involving a facial challenge to the constitutionality of a statute, it has no relevance in a case dealing with a challenge to the Georgia capital sentencing system as applied in McCleskey's case. In Batson v. Kentucky, supra, we rejected such reasoning: "The Constitution requires . . . that we look beyond the face of the statute . . . and also consider challenged selection practices to afford `protection against action of the State through its administrative officers in effecting the prohibited discrimination.' " 476 U. S., at 88, quoting Norris v. Alabama, 294 U. S. 587, 589 (1935).

B

In analyzing an equal protection claim, a court must first determine the nature of the claim and the responsibilities of the state actors involved to determine what showing is required for the establishment of a prima facie case. Castaneda v. Partida, 430 U. S. 482, 493-494 (1977). The Court correctly points out: "In its broadest form, McCleskey's claim of discrimination extends to every actor in the Georgia capital sentencing process, from the prosecutor who [350] sought the death penalty and the jury that imposed the sentence, to the State itself that enacted the capital punishment statute and allows it to remain in effect despite its allegedly discriminatory application." Ante, at 292. Having recognized the complexity of McCleskey's claim, however, the Court proceeds to ignore a significant element of that claim. The Court treats the case as if it is limited to challenges to the actions of two specific decisionmaking bodies — the petit jury and the state legislature. Ante, at 294-295, 297-298. This self-imposed restriction enables the Court to distinguish this case from the venire-selection cases and cases under Title VII of the Civil Rights Act of 1964 in which it long has accepted statistical evidence and has provided an easily applicable framework for review. See e. g., Castaneda v. Partida, supra; Bazemore v. Friday, 478 U. S. 385 (1986) (BRENNAN, J., joined by all other Members of the Court, concurring in part). Considering McCleskey's claim in its entirety, however, reveals that the claim fits easily within that same framework. A significant aspect of his claim is that racial factors impermissibly affected numerous steps in the Georgia capital sentencing scheme between his indictment and the jury's vote to sentence him to death. The primary decisionmaker at each of the intervening steps of the process is the prosecutor, the quintessential state actor in a criminal proceeding.^[3] The District Court expressly stated [351] that there were "two levels of the system that matter to [McCleskey], the decision to seek the death penalty and the decision to impose the death penalty." 580 F. Supp. 338, 379-380 (ND Ga. 1984). I agree with this statement of McCleskey's case. Hence, my analysis in this dissenting opinion takes into account the role of the prosecutor in the Georgia capital sentencing system. I certainly do not address all the alternative methods of proof in the Baldus study. Nor do I review each step in the process which McCleskey challenges. I concentrate on the decisions within the prosecutor's office through which the State decided to seek the death penalty and, in particular, the point at which the State proceeded to the penalty phase after conviction. This is a step at which the evidence of the effect of the racial factors was especially strong, see Supplemental Exhibits (Supp. Exh.) 56, 57; Transcript of Federal Habeas Corpus Hearing in No. C81-2434A (Tr.) 894-926, but is ignored by the Court.

II

A

A criminal defendant alleging an equal protection violation must prove the existence of purposeful discrimination. Washington v. Davis, 426 U. S. 229, 239-240 (1976); Whitus v. Georgia, 385 U. S., at 550. He may establish a prima facie case^[4] of purposeful discrimination "by showing that the [352] totality of the relevant facts gives rise to an inference of discriminatory purpose." Batson v. Kentucky, 476 U. S., at 94.^[5] Once the defendant establishes a prima facie case, the burden shifts to the prosecution to rebut that case. "The State cannot meet this burden on mere general assertions that its officials did not discriminate or that they properly performed their official duties." Ibid. The State must demonstrate that the challenged effect was due to " `permissible racially neutral selection criteria.' " Ibid., quoting Alexander v. Louisiana, 405 U. S. 625, 632 (1972).

Under Batson v. Kentucky and the framework established in Castaneda v. Partida, McCleskey must meet a three-factor standard. First, he must establish that he is a member of a group "that is a recognizable, distinct class, singled out for different treatment." 430 U. S., at 494. Second, he must make a showing of a substantial degree of differential treatment.^[6] Third, he must establish that the allegedly [353] discriminatory procedure is susceptible to abuse or is not racially neutral. Ibid.

B

There can be no dispute that McCleskey has made the requisite showing under the first prong of the standard. The Baldus study demonstrates that black persons are a distinct group that are singled out for different treatment in the Georgia capital sentencing system. The Court acknowledges, as it must, that the raw statistics included in the Baldus study and presented by petitioner indicate that it is much less likely that a death sentence will result from a murder of a black person than from a murder of a white person. Ante, at 286. White-victim cases are nearly 11 times more likely to yield a death sentence than are black-victim cases. Supp. Exh. 46. The raw figures also indicate that even within the group of defendants who are convicted of killing white persons and are thereby more likely to receive a death sentence, black defendants are more likely than white defendants to be sentenced to death. Supp. Exh. 47.

With respect to the second prong, McCleskey must prove that there is a substantial likelihood that his death sentence is due to racial factors. See Hunter v. Underwood, 471 U. S. 222, 228 (1985). The Court of Appeals assumed the validity of the Baldus study and found that it "showed that systemic and substantial disparities existed in the penalties imposed upon homicide defendants in Georgia based on race of the homicide victim, that the disparities existed at a less substantial rate in death sentencing based on race of defendants, and that the factors of race of the victim and defendant were at work in Fulton County." 753 F. 2d 877, 895 (CA11 1985). [354] The question remaining therefore is at what point does that disparity become constitutionally unacceptable. See Turner v. Murray, 476 U. S. 28, 36, n. 8 (1986) (plurality opinion). Recognizing that additional factors can enter into the decisionmaking process that yields a death sentence, the authors of the Baldus study collected data concerning the presence of other relevant factors in homicide cases in Georgia during the time period relevant to McCleskey's case. They then analyzed the data in a manner that would permit them to ascertain the independent effect of the racial factors.^[7]

McCleskey demonstrated the degree to which his death sentence was affected by racial factors by introducing multiple-regression [355] analyses that explain how much of the statistical distribution of the cases analyzed is attributable to the racial factors. McCleskey established that because he was charged with killing a white person he was 4.3 times as likely to be sentenced to death as he would have been had he been charged with killing a black person. Petitioner's Exhibit DB 82. McCleskey also demonstrated that it was more likely than not that the fact that the victim he was charged with killing was white determined that he received a sentence of death — 20 out of every 34 defendants in McCleskey's midrange category would not have been sentenced to be executed if their victims had been black. Supp. Exh. 54.^[8] The most persuasive evidence of the constitutionally significant effect of racial factors in the Georgia capital sentencing system is McCleskey's proof that the race of the victim is more important in explaining the imposition of a death sentence than is the factor whether the defendant was a prime mover in the homicide. Petitioner's Exhibit DB 82.^[9] Similarly, the race-of-victim factor is nearly as crucial as the statutory aggravating circumstance whether the defendant had a prior record of a conviction for a capital crime.^[10]Ibid. See Ga. Code Ann. § 17-10-30(b) (1982), ante, at 284-285, n. 3. The Court has noted elsewhere that Georgia could not attach "the `aggravating' label to factors that are constitutionally impermissible or totally irrelevant to the sentencing process, such as for example the race, religion, or political affiliation of the defendant." Zant v. Stephens, 462 U. S. 862, 885 (1983). What we have held to be unconstitutional if included in the [356] language of the statute surely cannot be constitutional because it is a de facto characteristic of the system.

McCleskey produced evidence concerning the role of racial factors at the various steps in the decisionmaking process, focusing on the prosecutor's decision as to which cases merit the death sentence. McCleskey established that the race of the victim is an especially significant factor at the point where the defendant has been convicted of murder and the prosecutor must choose whether to proceed to the penalty phase of the trial and create the possibility that a death sentence may be imposed or to accept the imposition of a sentence of life imprisonment. McCleskey demonstrated this effect at both the statewide level, see Supp. Exh. 56, 57, Tr. 897-910, and in Fulton County where he was tried and sentenced, see Supp. Exh. 59, 60, Tr. 978-981. The statewide statistics indicated that black-defendant/white-victim cases advanced to the penalty trial at nearly five times the rate of the black-defendant/black-victim cases (70% v. 15%), and over three times the rate of white-defendant/ black-victim cases (70% v. 19%). See Supp. Exh. 56. The multiple-regression analysis demonstrated that racial factors had a readily identifiable effect at a statistically significant level. See id., at 57; Tr. 905. The Fulton County statistics were consistent with this evidence although they involved fewer cases. See Supp. Exh. 59, 60.^[11]

Individualized evidence relating to the disposition of the Fulton County cases that were most comparable to McCleskey's case was consistent with the evidence of the race-of-victim effect as well. Of the 17 defendants, including [357] McCleskey, who were arrested and charged with homicide of a police officer in Fulton County during the 1973-1979 period, McCleskey, alone, was sentenced to death. The only other defendant whose case even proceeded to the penalty phase received a sentence of life imprisonment. That defendant had been convicted of killing a black police officer. See id., at 61-63; Tr. 1050-1062.

As to the final element of the prima facie case, McCleskey showed that the process by which the State decided to seek a death penalty in his case and to pursue that sentence throughout the prosecution was susceptible to abuse. Petitioner submitted the deposition of Lewis R. Slaton, who, as of the date of the deposition, had been the District Attorney for 18 years in the county in which McCleskey was tried and sentenced. Deposition in No. 84-8176 of Lewis R. Slaton, Aug. 4, 1983, p. 5; see McCleskey v. Zant, 580 F. Supp. 338, 377, n. 15 (1984); Tr. 1316. As Mr. Slaton explained, the duties and responsibilities of that office are the prosecution of felony charges within the Atlanta Judicial Circuit that comprises Fulton County. Deposition 7-8. He testified that during his years in the office, there were no guidelines informing the Assistant District Attorneys who handled the cases how they should proceed at any particular stage of the prosecution. There were no guidelines as to when they should seek an indictment for murder as opposed to lesser charges, id., at 10-11; when they should recommend acceptance of a guilty plea to murder, acceptance of a guilty plea to a lesser charge, reduction of charges, or dismissal of charges at the postindictment-preconviction stage, id., at 25-26, 31; or when they should seek the death penalty, id., at 31. Slaton testified that these decisions were left to the discretion of the individual attorneys who then informed Slaton of their decisions as they saw fit. Id., at 13, 24-25, 37-38.

Slaton's deposition proves that, at every stage of a prosecution, the Assistant District Attorney exercised much discretion. The only guidance given was "on-the-job training." [358] Id., at 20. Addressing plea bargaining, for example, Slaton stated that "through the training that the assistant DA's get, I think we pretty much think alike on the cases, on what we suggest." Id., at 25. The sole effort to provide any consistency was Slaton's periodic pulling of files at random to check on the progress of cases. Id., at 28-29. Slaton explained that as far as he knew, he was the only one aware of this checking. Id., at 28. The files contained information only as to the evidence in the case, not any indication as to why an attorney made a particular decision. The attorneys were not required to record why they sought an indictment for murder as opposed to a lesser charge, id., at 19, or why they recommended a certain plea, id., at 29-30.^[12] The attorneys were not required to report to Slaton the cases in which they decided not to seek the death penalty, id., at 34-36, 38, or the cases in which they did seek the death penalty, id., at 41.

When questioned directly as to how the office decided whether to seek the death penalty, Slaton listed several factors he thought relevant to that decision, including the strength of the evidence, the atrociousness of the crime, and the likelihood that a jury would impose the death sentence. Id., at 59. He explained that the attorneys did not seek the death penalty in every case in which statutory aggravating factors existed. Id., at 38-39. Slaton testified that his office still operated in the same manner as it did when he took office in 1965, except that it has not sought the death penalty in any rape cases since this Court's decision in Coker v. Georgia, 433 U. S. 584 (1977). Deposition 60.

In addition to this showing that the challenged system was susceptible to abuse, McCleskey presented evidence of the [359] history of prior discrimination in the Georgia system. JUSTICE BRENNAN has reviewed much of this history in detail in his dissenting opinion, ante, at 328-334, including the history of Georgia's racially based dual system of criminal justice. This historical background of the state action challenged "is one evidentiary source" in this equal protection case. Arlington Heights v. Metropolitan Housing Development Corp., 429 U. S. 252, 267 (1977); see also Rogers v. Lodge, 458 U. S. 613, 618, 623-625 (1982). Although I would agree that evidence of "official actions taken long ago" could not alone establish that the current system is applied in an unconstitutionally discriminatory manner, I disagree with the Court's statement that such evidence is now irrelevant. Ante, at 298, n. 20.

The above-described evidence, considered in conjunction with the other record evidence outlined by JUSTICE BRENNAN, ante, at 325-328, and discussed in opinions dissenting from the judgment of the Court of Appeals, 753 F. 2d, at 919 (Hatchett, J., dissenting in part and concurring in part); id., at 920-923 (Clark, J., dissenting in part and concurring in part), gives rise to an inference of discriminatory purpose. See Washington v. Davis, 426 U. S., at 239-242. As in the context of the rule of exclusion, see n. 6, supra, McCleskey's showing is of sufficient magnitude that, absent evidence to the contrary, one must conclude that racial factors entered into the decisionmaking process that yielded McCleskey's death sentence. See Castaneda v. Partida, 430 U. S., at 494, n. 13. The burden, therefore, shifts to the State to explain the racial selections. It must demonstrate that legitimate racially neutral criteria and procedures yielded this racially skewed result.

In rebuttal, the State's expert suggested that if the Baldus thesis was correct then the aggravation level in black-victim cases where a life sentence was imposed would be higher than in white-victim cases. See 580 F. Supp., at 373. The expert analyzed aggravating and mitigating circumstances [360] "one by one, demonstrating that in life sentence cases, to the extent that any aggravating circumstance is more prevalent in one group than the other, there are more aggravating features in the group of white-victim cases than in the group of black-victim cases. Conversely, there were more mitigating circumstances in which black-victim cases had a higher proportion of that circumstance than in white-victim cases." Ibid. The District Court found that the State's suggestion was plausible. It concluded, however, that the State did not conclusively disprove McCleskey's case; yet it reasoned that the State's theory "stands to contradict any prima facie case." Ibid. I find that reasoning wrong as a matter of law, and the conclusion clearly erroneous.

The State did not test its hypothesis to determine if white-victim and black-victim cases at the same level of aggravating circumstances were similarly treated. Tr. 1613-1614, 1664. McCleskey's experts, however, performed this test on their data. Id., at 1297, 1729-1732, 1756-1761. They demonstrated that the racial disparities in the system were not the result of the differences in the average aggravation levels between white-victim and black-victim cases. See Supp. Exh. 72; Tr. 1291-1296; Petitioner's Exhibit DB 92. The State's meager and unsophisticated evidence cannot withstand the extensive scrutiny given the Baldus evidence.^[13] [361] Here, as in Bazemore v. Friday, the State did not "demonstrate that when th[e] factors were properly organized and accounted for there was no significant disparity" between the death sentences imposed on defendants convicted of killing white victims and those imposed on defendants convicted of killing black victims. 478 U. S., at 403-404, n. 14. In Castaneda, we rejected a similar effort by the State to rely on an unsupported countervailing theory to rebut the evidence. 430 U. S., at 500. In sum, McCleskey has demonstrated a clear pattern of differential treatment according to race that is "unexplainable on grounds other than race." Arlington Heights v. Metropolitan Housing Development Corp., 429 U. S., at 266.

III

The Court's explanations for its failure to apply this well-established equal protection analysis to this case are not persuasive. It first reasons that "each particular decision to impose the death penalty is made by a petit jury" and that the "application of an inference drawn from the general statistics to a specific decision in a trial and sentencing simply is not comparable to the application of an inference drawn from general statistics to a specific venire-selection or Title VII [362] case." Ante, at 294-295. According to the Court, the statistical evidence is less relevant because, in the two latter situations, there are fewer variables relevant to the decision and the "statistics relate to fewer entities." Ante, at 295.

I disagree with the Court's assertion that there are fewer variables relevant to the decisions of jury commissioners or prosecutors in their selection of jurors, or to the decisions of employers in their selection, promotion, or discharge of employees. Such decisions involve a multitude of factors, some rational, some irrational. Second, I disagree with the comment that the venire-selection and employment decisions are "made by fewer entities." Certainly in the employment context, personnel decisions are often the product of several levels of decisionmaking within the business or government structure. The Court's statement that the decision to impose death is made by the petit jury also disregards the fact that the prosecutor screens the cases throughout the pretrial proceedings and decides to seek the death penalty and to pursue a capital case to the penalty phase where a death sentence can be imposed. McCleskey's claim in this regard lends itself to analysis under the framework we apply in assessing challenges to other prosecutorial actions. See Batson v. Kentucky, 476 U. S. 79 (1986); see also Wayte v. United States, 470 U. S. 598, 608, n. 10 (1985) (applying Castaneda framework in challenge to prosecutor's allegedly selective enforcement of criminal sanction). It is appropriate to judge claims of racially discriminatory prosecutorial selection of cases according to ordinary equal protection standards. 470 U. S., at 608.

The Court's other reason for treating this case differently from venire-selection and employment cases is that in these latter contexts, "the decisionmaker has an opportunity to explain the statistical disparity," but in the instant case the State had no practical opportunity to rebut the Baldus study. Ante, at 296. According to the Court, this is because jurors cannot be called to testify about their verdict and because [363] policy considerations render it improper to require "prosecutors to defend their decisions to seek death penalties, `often years after they were made.' " Ibid., quoting Imbler v. Pachtman, 424 U. S. 409, 425 (1976).

I agree with the Court's observation as to the difficulty of examining the jury's decisionmaking process. There perhaps is an inherent tension between the discretion accorded capital sentencing juries and the guidance for use of that discretion that is constitutionally required. In his dissenting opinion, JUSTICE BRENNAN demonstrates that the Eighth Amendment analysis is well suited to address that aspect of the case. Ante, at 323. The Court's refusal to require that the prosecutor provide an explanation for his actions, however, is completely inconsistent with this Court's longstanding precedents. The Court misreads Imbler v. Pachtman. In that case, the Court held that a prosecutor who acted within the scope of his duties was entitled to absolute immunity in an action under 42 U. S. C. § 1983 for damages. We recognized that immunity from damages actions was necessary to prevent harassing litigation and to avoid the threat of civil litigation undermining the prosecutor's independence of judgment. We clearly specified, however, that the policy considerations that compelled civil immunity did not mean that prosecutors could not be called to answer for their actions. We noted the availability of both criminal sanctions and professional ethical discipline. 424 U. S., at 429. Prosecutors undoubtedly need adequate discretion to allocate the resources of their offices and to fulfill their responsibilities to the public in deciding how best to enforce the law, but this does not place them beyond the constraints imposed on state action under the Fourteenth Amendment. Cf. Ex parte Virginia, 100 U. S. 339 (1880) (upholding validity of conviction of state judge for discriminating on the basis of race in his selection of jurors).

The Court attempts to distinguish the present case from Batson v. Kentucky, in which we recently reaffirmed the fact [364] that prosecutors' actions are not unreviewable. See ante, at 296, n. 17. I agree with the Court's observation that this case is "quite different" from the Batson case. Ibid. The irony is that McCleskey presented proof in this case that would have satisfied the more burdensome standard of Swain v. Alabama, 380 U. S. 202 (1965), a standard that was described in Batson as having placed on defendants a "crippling burden of proof." 476 U. S., at 92. As discussed above, McCleskey presented evidence of numerous decisions impermissibly affected by racial factors over a significant number of cases. The exhaustive evidence presented in this case certainly demands an inquiry into the prosecutor's actions.

The Court's assertion that, because of the necessity of discretion in the criminal justice system, it "would demand exceptionally clear proof," ante, at 297, before inferring abuse of that discretion thus misses the point of the constitutional challenge in this case. Its conclusory statement that "the capacity of prosecutorial discretion to provide individualized justice is `firmly entrenched in American law,' " ante, at 311-312, quoting 2 W. LaFave & J. Israel, Criminal Procedure § 13.2(a), p. 160 (1984), is likewise not helpful. The issue in this case is the extent to which the constitutional guarantee of equal protection limits the discretion in the Georgia capital sentencing system. As the Court concedes, discretionary authority can be discriminatory authority. Ante, at 312. Prosecutorial decisions may not be " `deliberately based upon an unjustifiable standard such as race, religion, or other arbitrary classification.' " Bordenkircher v. Hayes, 434 U. S. 357, 364 (1978), quoting Oyler v. Boles, 368 U. S. 448, 456 (1962). Judicial scrutiny is particularly appropriate in McCleskey's case because "[m]ore subtle, less consciously held racial attitudes could also influence" the decisions in the Georgia capital sentencing system. Turner v. Murray, 476 U. S. 28, 35 (1986); see n. 13, supra. The Court's rejection of McCleskey's equal protection claims is [365] a far cry from the "sensitive inquiry" mandated by the Constitution.

IV

A

One of the final concerns discussed by the Court may be the most disturbing aspect of its opinion. Granting relief to McCleskey in this case, it is said, could lead to further constitutional challenges. Ante, at 314-319. That, of course, is no reason to deny McCleskey his rights under the Equal Protection Clause. If a grant of relief to him were to lead to a closer examination of the effects of racial considerations throughout the criminal justice system, the system, and hence society, might benefit. Where no such factors come into play, the integrity of the system is enhanced. Where such considerations are shown to be significant, efforts can be made to eradicate their impermissible influence and to ensure an evenhanded application of criminal sanctions.

B

Like JUSTICE STEVENS, I do not believe acceptance of McCleskey's claim would eliminate capital punishment in Georgia. Post, at 367. JUSTICE STEVENS points out that the evidence presented in this case indicates that in extremely aggravated murders the risk of discriminatory enforcement of the death penalty is minimized. Ibid. I agree that narrowing the class of death-eligible defendants is not too high a price to pay for a death penalty system that does not discriminate on the basis of race. Moreover, the establishment of guidelines for Assistant District Attorneys as to the appropriate basis for exercising their discretion at the various steps in the prosecution of a case would provide at least a measure of consistency. The Court's emphasis on the procedural safeguards in the system ignores the fact that there are none whatsoever during the crucial process leading up to trial. As JUSTICE WHITE stated for the plurality in Turner v. Murray, I find "the risk that racial prejudice may [366] have infected petitioner's capital sentencing unacceptable in light of the ease with which that risk could have been minimized." 476 U. S., at 36. I dissent.

JUSTICE STEVENS, with whom JUSTICE BLACKMUN joins, dissenting.

There "is a qualitative difference between death and any other permissible form of punishment," and hence, " `a corresponding difference in the need for reliability in the determination that death is the appropriate punishment in a specific case.' " Zant v. Stephens, 462 U. S. 862, 884-885 (1983), quoting Woodson v. North Carolina, 428 U. S. 280, 305 (1976) (plurality opinion of Stewart, POWELL, and STEVENS, JJ.). Even when considerations far less repugnant than racial discrimination are involved, we have recognized the "vital importance to the defendant and to the community that any decision to impose the death sentence be, and appear to be, based on reason rather than caprice or emotion." Gardner v. Florida, 430 U. S. 349, 358 (1977). "[A]lthough not every imperfection in the deliberative process is sufficient, even in a capital case, to set aside a state-court judgment, the severity of the sentence mandates careful scrutiny in the review of any colorable claim of error." Zant, supra, at 885.

In this case it is claimed — and the claim is supported by elaborate studies which the Court properly assumes to be valid — that the jury's sentencing process was likely distorted by racial prejudice. The studies demonstrate a strong probability that McCleskey's sentencing jury, which expressed "the community's outrage — its sense that an individual has lost his moral entitlement to live," Spaziano v. Florida, 468 U. S. 447, 469 (1984) (STEVENS, J., dissenting) — was influenced by the fact that McCleskey is black and his victim was white, and that this same outrage would not have been generated if he had killed a member of his own race. This sort of disparity is constitutionally intolerable. It flagrantly violates the Court's prior "insistence that capital punishment be [367] imposed fairly, and with reasonable consistency, or not at all." Eddings v. Oklahoma, 455 U. S. 104, 112 (1982).

The Court's decision appears to be based on a fear that the acceptance of McCleskey's claim would sound the death knell for capital punishment in Georgia. If society were indeed forced to choose between a racially discriminatory death penalty (one that provides heightened protection against murder "for whites only") and no death penalty at all, the choice mandated by the Constitution would be plain. Eddings v. Oklahoma, supra. But the Court's fear is unfounded. One of the lessons of the Baldus study is that there exist certain categories of extremely serious crimes for which prosecutors consistently seek, and juries consistently impose, the death penalty without regard to the race of the victim or the race of the offender. If Georgia were to narrow the class of death-eligible defendants to those categories, the danger of arbitrary and discriminatory imposition of the death penalty would be significantly decreased, if not eradicated. As JUSTICE BRENNAN has demonstrated in his dissenting opinion, such a restructuring of the sentencing scheme is surely not too high a price to pay.

Like JUSTICE BRENNAN, I would therefore reverse the judgment of the Court of Appeals. I believe, however, that further proceedings are necessary in order to determine whether McCleskey's death sentence should be set aside. First, the Court of Appeals must decide whether the Baldus study is valid. I am persuaded that it is, but orderly procedure requires that the Court of Appeals address this issue before we actually decide the question. Second, it is necessary for the District Court to determine whether the particular facts of McCleskey's crime and his background place this case within the range of cases that present an unacceptable risk that race played a decisive role in McCleskey's sentencing.

Accordingly, I respectfully dissent.

[*] Briefs of amici curiae urging reversal were filed for the Congressional Black Caucus et al. by Seth P. Waxman, Harold R. Tyler, Jr., James Robertson, Norman Redlich, William L. Robinson, and Grover Hankins; and for the International Human Rights Law Group by Ralph G. Steinhardt.

Briefs of amici curiae urging affirmance were filed for the State of California et al. by Ira Reiner, Harry B. Sondheim, John K. Van de Kamp, Attorney General, Michael C. Wellington, Supervising Deputy Attorney General, and Susan Lee Frierson, Deputy Attorney General; and for the Washington Legal Foundation et al. by Daniel J. Popeo and George C. Smith.

Martin F. Richman filed a brief for Dr. Franklin M. Fisher et al. as amici curiae.

[1] The Georgia Code has been revised and renumbered since McCleskey's trial. The changes do not alter the substance of the sections relevant to this case. For convenience, references in this opinion are to the current sections.

The Georgia Code contains only one degree of murder. A person commits murder "when he unlawfully and with malice aforethought, either express or implied, causes the death of another human being." Ga. Code Ann. § 16-5-1(a) (1984). A person convicted of murder "shall be punished by death or by imprisonment for life." § 16-5-1(d).

[2] Georgia Code Ann. § 17-10-2(c) (1982) provides that when a jury convicts a defendant of murder, "the court shall resume the trial and conduct a presentence hearing before the jury." This subsection suggests that a defendant convicted of murder always is subjected to a penalty hearing at which the jury considers imposing a death sentence. But as a matter of practice, penalty hearings seem to be held only if the prosecutor affirmatively seeks the death penalty. If he does not, the defendant receives a sentence of life imprisonment. See Baldus, Pulaski, & Woodworth, Comparative Review of Death Sentences: An Empirical Study of the Georgia Experience, 74 J. Crim. L. & C. 661, 674, n. 56 (1983).

[3] A jury cannot sentence a defendant to death for murder unless it finds that one of the following aggravating circumstances exists beyond a reasonable doubt:

"(1) The offense . . . was committed by a person with a prior record of conviction for a capital felony;

"(2) The offense . . . was committed while the offender was engaged in the commission of another capital felony or aggravated battery, or the offense of murder was committed while the offender was engaged in the commission of burglary or arson in the first degree;

"(3) The offender, by his act of murder . . . knowingly created a great risk of death to more than one person in a public place by means of a weapon or device which would normally be hazardous to the lives of more than one person;

"(4) The offender committed the offense . . . for himself or another, for the purpose of receiving money or any other thing of monetary value;

"(5) The murder of a judicial officer, former judicial officer, district attorney or solicitor, or former district attorney or solicitor was committed during or because of the exercise of his official duties;

"(6) The offender caused or directed another to commit murder or committed murder as an agent or employee of another person;

"(7) The offense of murder, rape, armed robbery, or kidnapping was outrageously or wantonly vile, horrible, or inhuman in that it involved torture, depravity of mind, or an aggravated battery to the victim;

"(8) The offense . . . was committed against any peace officer, corrections employee, or fireman while engaged in the performance of his official duties;

"(9) The offense . . . was committed by a person in, or who has escaped from, the lawful custody of a peace officer or place of lawful confinement; or

"(10) The murder was committed for the purpose of avoiding, interfering with, or preventing a lawful arrest or custody in a place of lawful confinement, of himself or another." § 17-10-30(b).

[4] Georgia law provides that "[w]here a statutory aggravating circumstance is found and a recommendation of death is made, the court shall sentence the defendant to death." § 17-10-31.

[5] Baldus' 230-variable model divided cases into eight different ranges, according to the estimated aggravation level of the offense. Baldus argued in his testimony to the District Court that the effects of racial bias were most striking in the midrange cases. "[W]hen the cases become tremendously aggravated so that everybody would agree that if we're going to have a death sentence, these are the cases that should get it, the race effects go away. It's only in the mid-range of cases where the decisionmakers have a real choice as to what to do. If there's room for the exercise of discretion, then the [racial] factors begin to play a role." App. 36. Under this model, Baldus found that 14.4% of the black-victim midrange cases received the death penalty, and 34.4% of the white-victim cases received the death penalty. See Exhibit DB 90, reprinted in Supplemental Exhibits 54. According to Baldus, the facts of McCleskey's case placed it within the midrange. App. 45-46.

[6] Baldus, among other experts, testified at the evidentiary hearing. The District Court "was impressed with the learning of all of the experts." 580 F. Supp., at 353 (emphasis omitted). Nevertheless, the District Court noted that in many respects the data were incomplete. In its view, the questionnaires used to obtain the data failed to capture the full degree of the aggravating or mitigating circumstances. Id., at 356. The court criticized the researcher's decisions regarding unknown variables. Id., at 357-358. The researchers could not discover whether penalty trials were held in many of the cases, thus undercutting the value of the study's statistics as to prosecutorial decisions. Id., at 359. In certain cases, the study lacked information on the race of the victim in cases involving multiple victims, on whether or not the prosecutor offered a plea bargain, and on credibility problems with witnesses. Id., at 360. The court concluded that McCleskey had failed to establish by a preponderance of the evidence that the data were trustworthy. "It is a major premise of a statistical case that the data base numerically mirrors reality. If it does not in substantial degree mirror reality, any inferences empirically arrived at are untrustworthy." Ibid.

The District Court noted other problems with Baldus' methodology. First, the researchers assumed that all of the information available from the questionnaires was available to the juries and prosecutors when the case was tried. The court found this assumption "questionable." Id., at 361. Second, the court noted the instability of the various models. Even with the 230-variable model, consideration of 20 further variables caused a significant drop in the statistical significance of race. In the court's view, this undermined the persuasiveness of the model that showed the greatest racial disparity, the 39-variable model. Id., at 362. Third, the court found that the high correlation between race and many of the nonracial variables diminished the weight to which the study was entitled. Id., at 363-364.

Finally, the District Court noted the inability of any of the models to predict the outcome of actual cases. As the court explained, statisticians use a measure called an "r[2]" to measure what portion of the variance in the dependent variable (death sentencing rate, in this case) is accounted for by the independent variables of the model. A perfectly predictive model would have an r[2] value of 1.0. A model with no predictive power would have an r[2] value of 0. The r[2] value of Baldus' most complex model, the 230-variable model, was between .46 and .48. Thus, as the court explained, "the 230-variable model does not predict the outcome in half of the cases." Id., at 361.

[7] Although the District Court rejected the findings of the Baldus study as flawed, the Court of Appeals assumed that the study is valid and reached the constitutional issues. Accordingly, those issues are before us. As did the Court of Appeals, we assume the study is valid statistically without reviewing the factual findings of the District Court. Our assumption that the Baldus study is statistically valid does not include the assumption that the study shows that racial considerations actually enter into any sentencing decisions in Georgia. Even a sophisticated multiple-regression analysis such as the Baldus study can only demonstrate a risk that the factor of race entered into some capital sentencing decisions and a necessarily lesser risk that race entered into any particular sentencing decision.

[8] Although McCleskey has standing to claim that he suffers discrimination because of his own race, the State argues that he has no standing to contend that he was discriminated against on the basis of his victim's race. While it is true that we are reluctant to recognize "standing to assert the rights of third persons," Arlington Heights v. Metropolitan Housing Dev. Corp., 429 U. S. 252, 263 (1977), this does not appear to be the nature of McCleskey's claim. He does not seek to assert some right of his victim, or the rights of black murder victims in general. Rather, McCleskey argues that application of the State's statute has created a classification that is "an irrational exercise of governmental power," Brief for Petitioner 41, because it is not "necessary to the accomplishment of some permissible state objective." Loving v. Virginia, 388 U. S. 1, 11 (1967). See McGowan v. Maryland, 366 U. S. 420, 425 (1961) (statutory classification cannot be "wholly irrelevant to the achievement of the State's objective"). It would violate the Equal Protection Clause for a State to base enforcement of its criminal laws on "an unjustifiable standard such as race, religion, or other arbitrary classification." Oyler v. Boles, 368 U. S. 448, 456 (1962). See Cleveland Bd. of Ed. v. Lafleur, 414 U. S. 632, 652-653 (1974) (POWELL, J., concurring). Because McCleskey raises such a claim, he has standing.

[9] See, e. g., Shaw v. Martin, 733 F. 2d 304, 311-314 (CA4), cert. denied, 469 U. S. 873 (1984); Adams v. Wainwright, 709 F. 2d 1443 (CA11 1983) (per curiam), cert. denied, 464 U. S. 1063 (1984); Smith v. Balkcom, 660 F. 2d 573, 584-585, modified, 671 F. 2d 858, 859-860 (CA5 Unit B 1981) (per curiam), cert. denied, 459 U. S. 882 (1982); Spinkellink v. Wainwright, 578 F. 2d 582, 612-616 (CA5 1978), cert. denied, 440 U. S. 976 (1979).

[10] See Arlington Heights v. Metropolitan Housing Dev. Corp., supra, at 265; Washington v. Davis, 426 U. S. 229, 240 (1976).

[11] McCleskey's expert testified:

"Models that are developed talk about the effect on the average. They do not depict the experience of a single individual. What they say, for example, [is] that on the average, the race of the victim, if it is white, increases on the average the probability . . . (that) the death sentence would be given.

"Whether in a given case that is the answer, it cannot be determined from statistics." 580 F. Supp., at 372.

[12] Gomillion v. Lightfoot, 364 U. S. 339 (1960), and Yick Wo v. Hopkins, 118 U. S. 356 (1886), are examples of those rare cases in which a statistical pattern of discriminatory impact demonstrated a constitutional violation. In Gomillion, a state legislature violated the Fifteenth Amendment by altering the boundaries of a particular city "from a square to an uncouth twenty-eight-sided figure." 364 U. S., at 340. The alterations excluded 395 of 400 black voters without excluding a single white voter. In Yick Wo, an ordinance prohibited operation of 310 laundries that were housed in wooden buildings, but allowed such laundries to resume operations if the operator secured a permit from the government. When laundry operators applied for permits to resume operation, all but one of the white applicants received permits, but none of the over 200 Chinese applicants were successful. In those cases, the Court found the statistical disparities "to warrant and require," Yick Wo v. Hopkins, supra, at 373, a "conclusion [that was] irresistible, tantamount for all practical purposes to a mathematical demonstration," Gomillion v. Lightfoot, supra, at 341, that the State acted with a discriminatory purpose.

[13] See, e. g., Castaneda v. Partida, 430 U. S. 482, 495 (1977) (2-to-1 disparity between Mexican-Americans in county population and those summoned for grand jury duty); Turner v. Fouche, 396 U. S. 346, 359 (1970) (1.6-to-1 disparity between blacks in county population and those on grand jury lists); Whitus v. Georgia, 385 U. S. 545, 552 (1967) (3-to-1 disparity between eligible blacks in county and blacks on grand jury venire).

[14] In venire-selection cases, the factors that may be considered are limited, usually by state statute. See Castaneda v. Partida, supra, at 485 ("A grand juror must be a citizen of Texas and of the county, be a qualified voter in the county, be `of sound mind and good moral character,' be literate, have no prior felony conviction, and be under no pending indictment `or other legal accusation for theft or of any felony' "); Turner v. Fouche, supra, at 354 (jury commissioners may exclude any not "upright" and "intelligent" from grand jury service); Whitus v. Georgia, supra, at 548 (same). These considerations are uniform for all potential jurors, and although some factors may be said to be subjective, they are limited and, to a great degree, objectively verifiable. While employment decisions may involve a number of relevant variables, these variables are to a great extent uniform for all employees because they must all have a reasonable relationship to the employee's qualifications to perform the particular job at issue. Identifiable qualifications for a single job provide a common standard by which to assess each employee. In contrast, a capital sentencing jury may consider any factor relevant to the defendant's background, character, and the offense. See Eddings v. Oklahoma, 455 U. S. 104, 112 (1982). There is no common standard by which to evaluate all defendants who have or have not received the death penalty.

[15] We refer here not to the number of entities involved in any particular decision, but to the number of entities whose decisions necessarily are reflected in a statistical display such as the Baldus study. The decisions of a jury commission or of an employer over time are fairly attributable to the commission or the employer. Therefore, an unexplained statistical discrepancy can be said to indicate a consistent policy of the decisionmaker. The Baldus study seeks to deduce a state "policy" by studying the combined effects of the decisions of hundreds of juries that are unique in their composition. It is incomparably more difficult to deduce a consistent policy by studying the decisions of these many unique entities. It is also questionable whether any consistent policy can be derived by studying the decisions of prosecutors. The District Attorney is elected by the voters in a particular county. See Ga. Const., Art. 6, § 8, ¶ 1. Since decisions whether to prosecute and what to charge necessarily are individualized and involve infinite factual variations, coordination among district attorney offices across a State would be relatively meaningless. Thus, any inference from statewide statistics to a prosecutorial "policy" is of doubtful relevance. Moreover, the statistics in Fulton County alone represent the disposition of far fewer cases than the statewide statistics. Even assuming the statistical validity of the Baldus study as a whole, the weight to be given the results gleaned from this small sample is limited.

[16] See Wayte v. United States, 470 U. S. 598, 607 (1985); United States v. Goodwin, 457 U. S. 368, 380, n. 11 (1982); Bordenkircher v. Hayes, 434 U. S. 357, 365 (1978). See also ABA Standards for Criminal Justice 3-3.8, 3-3.9 (2d ed. 1982).

[17] Requiring a prosecutor to rebut a study that analyzes the past conduct of scores of prosecutors is quite different from requiring a prosecutor to rebut a contemporaneous challenge to his own acts. See Batson v. Kentucky, 476 U. S. 79 (1986).

[18] Although Imbler was decided in the context of damages actions under 42 U. S. C. § 1983 brought against prosecutors, the considerations that led the Court to hold that a prosecutor should not be required to explain his decisions apply in this case as well: "[I]f the prosecutor could be made to answer in court each time . . . a person charged him with wrongdoing, his energy and attention would be diverted from the pressing duty of enforcing the criminal law." 424 U. S., at 425. Our refusal to require that the prosecutor provide an explanation for his decisions in this case is completely consistent with this Court's longstanding precedents that hold that a prosecutor need not explain his decisions unless the criminal defendant presents a prima facie case of unconstitutional conduct with respect to his case. See, e. g., Batson v. Kentucky, supra; Wayte v. United States, supra.

[19] In his dissent, JUSTICE BLACKMUN misreads this statement. See post, at 348-349. We do not suggest that McCleskey's conviction and sentencing by a jury bears on the prosecutor's motivation. Rather, the fact that the United States Constitution and the laws of Georgia authorized the prosecutor to seek the death penalty under the circumstances of this case is a relevant factor to be weighed in determining whether the Baldus study demonstrates a constitutionally significant risk that this decision was motivated by racial considerations.

[20] McCleskey relies on "historical evidence" to support his claim of purposeful discrimination by the State. This evidence focuses on Georgia laws in force during and just after the Civil War. Of course, the "historical background of the decision is one evidentiary source" for proof of intentional discrimination. Arlington Heights v. Metropolitan Housing Dev. Corp., 429 U. S., at 267. But unless historical evidence is reasonably contemporaneous with the challenged decision, it has little probative value. Cf. Hunter v. Underwood, 471 U. S. 222, 228-233 (1985) (relying on legislative history to demonstrate discriminatory motivation behind state statute). Although the history of racial discrimination in this country is undeniable, we cannot accept official actions taken long ago as evidence of current intent.

[21] JUSTICE BLACKMUN suggests that our "reliance on legitimate interests underlying the Georgia Legislature's enactment of its capital punishment statute is . . . inappropriate [because] it has no relevance in a case dealing with a challenge to the Georgia capital sentencing system as applied in McCleskey's case." Post, at 349 (emphasis in original). As the dissent suggests, this evidence is not particularly probative when assessing the application of Georgia's capital punishment system through the actions of prosecutors and juries, as we did in Part II-A, supra. But that is not the challenge that we are addressing here. As indicated above, the question we are addressing is whether the legislature maintains its capital punishment statute because of the racially disproportionate impact suggested by the Baldus study. McCleskey has introduced no evidence to support this claim. It is entirely appropriate to rely on the legislature's legitimate reasons for enacting and maintaining a capital punishment statute to address a challenge to the legislature's intent.

[22] The Eighth Amendment applies to the States through the Due Process Clause of the Fourteenth Amendment. Robinson v. California, 370 U. S. 660, 667 (1962).

[23] Thirty-seven States now have capital punishment statutes that were enacted since our decision in Furman. Thirty-three of these States have imposed death sentences under the new statutes. NAACP Legal Defense and Educational Fund, Death Row, U. S. A. 1 (Oct. 1, 1986). A federal statute, amended in relevant part in 1974, authorizes the death penalty for aircraft piracy in which a death occurs. 49 U. S. C. App. § 1472(i)(1)(b).

[24] We have noted that the Georgia statute generally follows the standards of the ALI Model Penal Code § 201.6 (Proposed Official Draft No. 13, 1961). Gregg v. Georgia, 428 U. S., at 194, n. 44.

[25] Although the Court has recognized that jury sentencing in a capital case "can perform an important societal function," Proffitt v. Florida, 428 U. S. 242, 252 (1976) (joint opinion of Stewart, POWELL, and STEVENS, JJ.) (citing Witherspoon v. Illinois, 391 U. S. 510, 519, n. 15 (1968)), it "has never suggested that jury sentencing [in a capital case] is constitutionally required." 428 U. S., at 252. Under the Florida capital punishment system at issue in Proffitt, the jury's verdict is only advisory. The trial judge determines the final sentence. Unlike in Georgia, a Florida trial judge may impose the death penalty even when the jury recommends otherwise. In Proffitt, we found that the Florida capital sentencing procedures adequately channeled the trial judge's discretion so that the Florida system, like the Georgia system, on its face "satisfie[d] the constitutional deficiencies identified in Furman." Id., at 253.

[26] We have not yet decided whether the Constitution permits a mandatory death penalty in certain narrowly defined circumstances, such as when an inmate serving a life sentence without possibility of parole commits murder. See Shuman v. Wolff, 791 F. 2d 788 (CA9), cert. granted sub nom. Sumner v. Shuman, 479 U. S. 948 (1986).

[27] This section is substantially identical to the current Georgia Code Ann. § 17-10-30(b)(7) (1982), which is reprinted in n. 3, supra.

[28] The Constitution is not offended by inconsistency in results based on the objective circumstances of the crime. Numerous legitimate factors may influence the outcome of a trial and a defendant's ultimate sentence, even though they may be irrelevant to his actual guilt. If sufficient evidence to link a suspect to a crime cannot be found, he will not be charged. The capability of the responsible law enforcement agency can vary widely. Also, the strength of the available evidence remains a variable throughout the criminal justice process and may influence a prosecutor's decision to offer a plea bargain or to go to trial. Witness availability, credibility, and memory also influence the results of prosecutions. Finally, sentencing in state courts is generally discretionary, so a defendant's ultimate sentence necessarily will vary according to the judgment of the sentencing authority. The foregoing factors necessarily exist in varying degrees throughout our criminal justice system.

[29] According to Professor Baldus:

"McCleskey's case falls in [a] grey area where . . . you would find the greatest likelihood that some inappropriate consideration may have come to bear on the decision.

"In an analysis of this type, obviously one cannot say that we can say to a moral certainty what it was that influenced the decision. We can't do that." App. 45-46.

[30] This Court has repeatedly stated that prosecutorial discretion cannot be exercised on the basis of race. Wayte v. United States, 470 U. S., at 608; United States v. Batchelder, 442 U. S. 114 (1979); Oyler v. Boles, 368 U. S. 448 (1962). Nor can a prosecutor exercise peremptory challenges on the basis of race. Batson v. Kentucky, 476 U. S. 79 (1986); Swain v. Alabama, 380 U. S. 202 (1965). More generally, this Court has condemned state efforts to exclude blacks from grand and petit juries. Vasquez v. Hillery, 474 U. S. 254 (1986); Alexander v. Louisiana, 405 U. S. 625, 628-629 (1972); Whitus v. Georgia, 385 U. S., at 549-550; Norris v. Alabama, 294 U. S. 587, 589 (1935); Neal v. Delaware, 103 U. S. 370, 394 (1881); Strauder v. West Virginia, 100 U. S. 303, 308 (1880); Ex parte Virginia, 100 U. S. 339 (1880).

Other protections apply to the trial and jury deliberation process. Widespread bias in the community can made a change of venue constitutionally required. Irvin v. Dowd, 366 U. S. 717 (1961). The Constitution prohibits racially biased prosecutorial arguments. Donnelly v. DeChristoforo, 416 U. S. 637, 643 (1974). If the circumstances of a particular case indicate a significant likelihood that racial bias may influence a jury, the Constitution requires questioning as to such bias. Ristaino v. Ross, 424 U. S. 589, 596 (1976). Finally, in a capital sentencing hearing, a defendant convicted of an interracial murder is entitled to such questioning without regard to the circumstances of the particular case. Turner v. Murray, 476 U. S. 28 (1986).

[31] In advocating the adoption of the Constitution, Alexander Hamilton stated:

"The friends and adversaries of the plan of the convention, if they agree in nothing else, concur at least in the value they set upon the trial by jury; or if there is any difference between them, it consists in this: the former regard it as a valuable safeguard to liberty, the latter represent it as the very palladium of free government." The Federalist No. 83, p. 519 (J. Gideon ed. 1818).

[32] In Witherspoon, JUSTICE BRENNAN joined the opinion of the Court written by Justice Stewart. The Court invalidated a statute that permitted a prosecutor to eliminate prospective jurors by challenging all who expressed qualms about the death penalty. The Court expressly recognized that the purpose of the "broad discretion" given to a sentencing jury is "to decide whether or not death is `the proper penalty' in a given case," noting that "a juror's general views about capital punishment play an inevitable role in any such decision." 391 U. S., at 519 (emphasis omitted). Thus, a sentencing jury must be composed of persons capable of expressing the "conscience of the community on the ultimate question of life or death." Ibid. The Court referred specifically to the plurality opinion of Chief Justice Warren in Trop v. Dulles, 356 U. S. 86 (1958), to the effect that it is the jury that must "maintain a link between contemporary community values and the penal system . . . ." 391 U. S., at 519, n. 15.

JUSTICE BRENNAN's condemnation of the results of the Georgia capital punishment system must be viewed against this background. As to community values and the constitutionality of capital punishment in general, we have previously noted, n. 23, supra, that the elected representatives of the people in 37 States and the Congress have enacted capital punishment statutes, most of which have been enacted or amended to conform generally to the Gregg standards, and that 33 States have imposed death sentences thereunder. In the individual case, a jury sentence reflects the conscience of the community as applied to the circumstances of a particular offender and offense. We reject JUSTICE BRENNAN's contention that this important standard for assessing the constitutionality of a death penalty should be abandoned.

[33] In the guilt phase of a trial, the Double Jeopardy Clause bars reprosecution after an acquittal, even if the acquittal is " `based upon an egregiously erroneous foundation.' " United States v. DiFrancesco, 449 U. S. 117, 129 (1980) (quoting Fong Foo v. United States, 369 U. S. 141, 143 (1962)). See Powell, Jury Trial of Crimes, 23 Wash. & Lee L. Rev. 1, 7-8 (1966) (Despite the apparent injustice of such an acquittal, "[t]he founding fathers, in light of history, decided that the balance here should be struck in favor of the individual").

In the penalty hearing, Georgia law provides that "unless the jury . . . recommends the death sentence in its verdict, the court shall not sentence the defendant to death." Georgia Code Ann. § 17-10-31 (1982). In Bullington v. Missouri, 451 U. S. 430 (1981), this Court held that the Double Jeopardy Clause of the Constitution prohibits a State from asking for a sentence of death at a second trial when the jury at the first trial recommended a lesser sentence.

[34] In this case, for example, McCleskey declined to enter a guilty plea. According to his trial attorney: "[T]he Prosecutor was indicating that we might be able to work out a life sentence if he were willing to enter a plea. But we never reached any concrete stage on that because Mr. McCleskey's attitude was that he didn't want to enter a plea. So it never got any further than just talking about it." Tr. in No. 4909, p. 56 (Jan. 30, 1981).

[35] Congress has acknowledged the existence of such discrepancies in criminal sentences, and in 1984 created the United States Sentencing Commission to develop sentencing guidelines. The objective of the guidelines "is to avoid unwarranted sentencing disparities among defendants with similar records who have been found guilty of similar criminal conduct, while maintaining sufficient flexibility to permit individualized sentencing when warranted by mitigating or aggravating factors not taken into account in the guidelines." 52 Fed. Reg. 3920 (1987) (emphasis added). No one contends that all sentencing disparities can be eliminated. The guidelines, like the safeguards in the Gregg-type statute, further an essential need of the Anglo-American criminal justice system — to balance the desirability of a high degree of uniformity against the necessity for the exercise of discretion.

[36] The Baldus study in fact confirms that the Georgia system results in a reasonable level of proportionality among the class of murderers eligible for the death penalty. As Professor Baldus confirmed, the system sorts out cases where the sentence of death is highly likely and highly unlikely, leaving a midrange of cases where the imposition of the death penalty in any particular case is less predictable. App. 35-36. See n. 5, supra.

[37] JUSTICE BRENNAN's eloquent dissent of course reflects his often repeated opposition to the death sentence. His views, that also are shared by JUSTICE MARSHALL, are principled and entitled to respect. Nevertheless, since Gregg was decided in 1976, seven Members of this Court consistently have upheld sentences of death under Gregg-type statutes providing for meticulous review of each sentence in both state and federal courts. The ultimate thrust of JUSTICE BRENNAN's dissent is that Gregg and its progeny should be overruled. He does not, however, expressly call for the overruling of any prior decision. Rather, relying on the Baldus study, JUSTICE BRENNAN, joined by JUSTICES MARSHALL, BLACKMUN, and STEVENS, questions the very heart of our criminal justice system: the traditional discretion that prosecutors and juries necessarily must have.

We have held that discretion in a capital punishment system is necessary to satisfy the Constitution. Woodson v. North Carolina, 428 U. S. 280 (1976). See supra, at 303-306. Yet, the dissent now claims that the "discretion afforded prosecutors and jurors in the Georgia capital sentencing system" violates the Constitution by creating "opportunities for racial considerations to influence criminal proceedings." Post, at 333. The dissent contends that in Georgia "[n]o guidelines govern prosecutorial decisions. . . and [that] Georgia provides juries with no list of aggravating and mitigating factors, nor any standard for balancing them against one another." Ibid. Prosecutorial decisions necessarily involve both judgmental and factual decisions that vary from case to case. See ABA Standards for Criminal Justice 3-3.8, 3-3.9 (2d ed. 1982). Thus, it is difficult to imagine guidelines that would produce the predictability sought by the dissent without sacrificing the discretion essential to a humane and fair system of criminal justice. Indeed, the dissent suggests no such guidelines for prosecutorial discretion.

The reference to the failure to provide juries with the list of aggravating and mitigating factors is curious. The aggravating circumstances are set forth in detail in the Georgia statute. See n. 3, supra. The jury is not provided with a list of aggravating circumstances because not all of them are relevant to any particular crime. Instead, the prosecutor must choose the relevant circumstances and the State must prove to the jury that at least one exists beyond a reasonable doubt before the jury can even consider imposing the death sentence. It would be improper and often prejudicial to allow jurors to speculate as to aggravating circumstances wholly without support in the evidence.

The dissent's argument that a list of mitigating factors is required is particularly anomalous. We have held that the Constitution requires that juries be allowed to consider "any relevant mitigating factor," even if it is not included in a statutory list. Eddings v. Oklahoma, 455 U. S., at 112. See Lockett v. Ohio, 438 U. S. 586 (1978). The dissent does not attempt to harmonize its criticism with this constitutional principle. The dissent also does not suggest any standard, much less a workable one, for balancing aggravating and mitigating factors. If capital defendants are to be treated as "uniquely individual human beings," Woodson v. North Carolina, supra, at 304, then discretion to evaluate and weigh the circumstances relevant to the particular defendant and the crime he committed is essential.

The dissent repeatedly emphasizes the need for "a uniquely high degree of rationality in imposing the death penalty." Post, at 335. Again, no suggestion is made as to how greater "rationality" could be achieved under any type of statute that authorizes capital punishment. The Gregg-type statute imposes unprecedented safeguards in the special context of capital punishment. These include: (i) a bifurcated sentencing proceeding; (ii) the threshold requirement of one or more aggravating circumstances; and (iii) mandatory State Supreme Court review. All of these are administered pursuant to this Court's decisions interpreting the limits of the Eighth Amendment on the imposition of the death penalty, and all are subject to ultimate review by this Court. These ensure a degree of care in the imposition of the sentence of death that can be described only as unique. Given these safeguards already inherent in the imposition and review of capital sentences, the dissent's call for greater rationality is no less than a claim that a capital punishment system cannot be administered in accord with the Constitution. As we reiterate, infra, the requirement of heightened rationality in the imposition of capital punishment does not "plac[e] totally unrealistic conditions on its use." Gregg v. Georgia, 428 U. S., at 199, n. 50.

[38] Studies already exist that allegedly demonstrate a racial disparity in the length of prison sentences. See, e. g., Spohn, Gruhl, & Welch, The Effect of Race on Sentencing: A Reexamination of an Unsettled Question, 16 Law & Soc. Rev. 71 (1981-1982); Unnever, Frazier, & Henretta, Race Differences in Criminal Sentencing, 21 Sociological Q. 197 (1980).

[39] In Regents of the University of California v. Bakke, 438 U. S. 265, 295 (1978) (opinion of POWELL, J.), we recognized that the national "majority" "is composed of various minority groups, most of which can lay claim to a history of prior discrimination at the hands of the State and private individuals." See id., at 292 (citing Strauder v. West Virginia, 100 U. S., at 308 (Celtic Irishmen) (dictum); Yick Wo v. Hopkins, 118 U. S. 356 (1886) (Chinese); Traux v. Raich, 239 U. S. 33, 36, 41-42 (1915) (Austrian resident aliens); Korematsu v. United States, 323 U. S. 214, 216 (1944) (Japanese); Hernandez v. Texas, 347 U. S. 475 (1954) (Mexican-Americans)). See also Uniform Guidelines on Employee Selection Procedures (1978), 29 CFR § 1607.4(B) (1986) (employer must keep records as to the "following races and ethnic groups: Blacks, American Indians (including Alaskan Natives), Asians (including Pacific Islanders), Hispanics (including persons of Mexican, Puerto Rican, Cuban, Central or South American, or other Spanish origin or culture regardless of race), and whites (Caucasians) other than Hispanics"); U. S. Bureau of the Census, 1980 Census of the Population, Vol. 1, ch. B (PC80-1-B), reprinted in 1986 Statistical Abstract of the United States 29 (dividing United States population by "race and Spanish origin" into the following groups: White, Black, American Indian, Chinese, Filipino, Japanese, Korean, Vietnamese, Spanish origin, and all other races); U. S. Bureau of the Census, 1980 Census of the Population, Supplementary Report, series PC80-S1-10, reprinted in 1986 Statistical Abstract of the United States 34 (listing 44 ancestry groups and noting that many individuals reported themselves to belong to multiple ancestry groups).

We also have recognized that the ethnic composition of the Nation is ever shifting. Crawford v. Board of Ed. of Los Angeles, 458 U. S. 527 (1982), illustrates demographic facts that we increasingly find in our country, namely, that populations change in composition, and may do so in relatively short timespans. We noted: "In 1968 when the case went to trial, the [Los Angeles] District was 53.6% white, 22.6% black, 20% Hispanic, and 3.8% Asian and other. By October 1980, the demographic composition had altered radically: 23.7% white, 23.3% black, 45.3% Hispanic, and 7.7% Asian and other." Id., at 530, n. 1. Increasingly whites are becoming a minority in many of the larger American cities. There appears to be no reason why a white defendant in such a city could not make a claim similar to McCleskey's if racial disparities in sentencing arguably are shown by a statistical study.

Finally, in our heterogeneous society the lower courts have found the boundaries of race and ethnicity increasingly difficult to determine. See Shaare Tefila Congregation v. Cobb, 785 F. 2d 523 (CA4), cert. granted, 479 U. S. 812 (1986), and Al-Khazraji v. Saint Francis College, 784 F. 2d 505 (CA3), cert. granted, 479 U. S. 812 (1986) (argued Feb. 25, 1987) (presenting the questions whether Jews and Arabs, respectively, are "races" covered by 42 U. S. C. §§ 1981 and 1982).

[40] See Chamblin, The Effect of Sex on the Imposition of the Death Penalty (speech given at a symposium of the American Psychological Association, entitled "Extra-legal Attributes Affecting Death Penalty Sentencing," New York City, Sept., 1979); Steffensmeier, Effects of Judge's and Defendant's Sex on the Sentencing of Offenders, 14 Psychology, Journal of Human Behavior, 3 (Aug. 1977).

[41] See Johnson, Black Innocence and the White Jury, 83 Mich. L. Rev. 1611, 1625-1640, and n. 115 (1985) (citing Cohen & Peterson, Bias in the Courtroom: Race and Sex Effects of Attorneys on Juror Verdicts, 9 Social Behavior & Personality 81 (1981)); Hodgson & Pryor, Sex Discrimination in the Courtroom: Attorney's Gender and Credibility, 55 Psychological Rep. 483 (1984).

[42] See Steffensmeier, supra, at 7.

[43] See Kerr, Bull, MacCoun, & Rathborn, Effects of victim attractiveness, care and disfigurement on the judgements of American and British mock jurors, 24 Brit. J. Social Psych. 47 (1985); Johnson, supra, at 1638, n. 128 (citing Shoemaker, South, & Lowe, Facial Stereotypes of Deviants and Judgments of Guilt or Innocence, 51 Social Forces 427 (1973)).

[44] Some studies indicate that physically attractive defendants receive greater leniency in sentencing than unattractive defendants, and that offenders whose victims are physically attractive receive harsher sentences than defendants with less attractive victims. Smith & Hed, Effects of Offenders' Age and Attractiveness on Sentencing by Mock Juries, 44 Psychological Rep. 691 (1979); Kerr, Beautiful and Blameless: Effects of Victim Attractiveness and Responsibility on Mock Jurors' Verdicts, 4 Personality and Social Psych. Bull. 479 (1978). But see Baumeister & Darley, Reducing the Biasing Effect of Perpetrator Attractiveness in Jury Simulation, 8 Personality and Social Psych. Bull. 286 (1982); Schwibbe & Schwibbe, Judgment and Treatment of People of Varied Attractiveness, 48 Psychological Rep. 11 (1981); Weiten, The Attraction-Leniency Effect in Jury Research: An Examination of External Validity, 10 J. Applied Social Psych. 340 (1980).

[45] JUSTICE STEVENS, who would not overrule Gregg, suggests in his dissent that the infirmities alleged by McCleskey could be remedied by narrowing the class of death-eligible defendants to categories identified by the Baldus study where "prosecutors consistently seek, and juries consistently impose, the death penalty without regard to the race of the victim or the race of the offender." Post, at 367. This proposed solution is unconvincing. First, "consistently" is a relative term, and narrowing the category of death-eligible defendants would simply shift the borderline between those defendants who received the death penalty and those who did not. A borderline area would continue to exist and vary in its boundaries. Moreover, because the discrepancy between borderline cases would be difficult to explain, the system would likely remain open to challenge on the basis that the lack of explanation rendered the sentencing decisions unconstitutionally arbitrary.

Second, even assuming that a category with theoretically consistent results could be identified, it is difficult to imagine how JUSTICE STEVENS' proposal would or could operate on a case-by-case basis. Whenever a victim is white and the defendant is a member of a different race, what steps would a prosecutor be required to take — in addition to weighing the customary prosecutorial considerations — before concluding in the particular case that he lawfully could prosecute? In the absence of a current, Baldus-type study focused particularly on the community in which the crime was committed, where would he find a standard? Would the prosecutor have to review the prior decisions of community prosecutors and determine the types of cases in which juries in his jurisdiction "consistently" had imposed the death penalty when the victim was white and the defendant was of a different race? And must he rely solely on statistics? Even if such a study were feasible, would it be unlawful for the prosecutor, in making his final decision in a particular case, to consider the evidence of guilt and the presence of aggravating and mitigating factors? However conscientiously a prosecutor might attempt to identify death-eligible defendants under the dissent's suggestion, it would be a wholly speculative task at best, likely to result in less rather than more fairness and consistency in the imposition of the death penalty.

[1] Once we can identify a pattern of arbitrary sentencing outcomes, we can say that a defendant runs a risk of being sentenced arbitrarily. It is thus immaterial whether the operation of an impermissible influence such as race is intentional. While the Equal Protection Clause forbids racial discrimination, and intent may be critical in a successful claim under that provision, the Eighth Amendment has its own distinct focus: whether punishment comports with social standards of rationality and decency. It may be, as in this case, that on occasion an influence that makes punishment arbitrary is also proscribed under another constitutional provision. That does not mean, however, that the standard for determining an Eighth Amendment violation is superseded by the standard for determining a violation under this other provision. Thus, the fact that McCleskey presents a viable equal protection claim does not require that he demonstrate intentional racial discrimination to establish his Eighth Amendment claim.

[2] The first two and the last of the study's eight case categories represent those cases in which the jury typically sees little leeway in deciding on a sentence. Cases in the first two categories are those that feature aggravating factors so minimal that juries imposed no death sentences in the 88 cases with these factors during the period of the study. Supp. Exh. 54. Cases in the eighth category feature aggravating factors so extreme that the jury imposed the death penalty in 88% of the 58 cases with these factors in the same period. Ibid.

[3] In the five categories characterized as intermediate, the rate at which the death penalty was imposed ranged from 8% to 41%. The overall rate for the 326 cases in these categories was 20%. Ibid.

[4] The considerable racial disparity in sentencing rates among these cases is consistent with the "liberation hypothesis" of H. Kalven and H. Zeisel in their landmark work, The American Jury (1966). These authors found that, in close cases in which jurors were most often in disagreement, "[t]he closeness of the evidence makes it possible for the jury to respond to sentiment by liberating it from the discipline of the evidence." Id., at 165. While "the jury does not often consciously and explicitly yield to sentiment in the teeth of the law . . . it yields to sentiment in the apparent process of resolving doubts as to evidence. The jury, therefore, is able to conduct its revolt from the law within the etiquette of resolving issues of fact." Ibid. Thus, it is those cases in which sentencing evidence seems to dictate neither life imprisonment nor the death penalty that impermissible factors such as race play the most prominent role.

[5] The fact that a victim was white accounts for a nine percentage point difference in the rate at which the death penalty is imposed, which is the same difference attributable to a prior murder conviction or the fact that the defendant was the "prime mover" in planning a murder. Supp. Exh. 50.

[6] NAACP Legal Defense and Educational Fund, Death Row, U. S. A. 4 (Aug. 1, 1986).

[7] See generally Fisher, Multiple Regression in Legal Proceedings, 80 Colum. L. Rev. 701 (1980).

[8] Death could also be inflicted upon a slave who "grievously wound[ed], maim[ed], or bruis[ed] any white person," who was convicted for the third time of striking a white person, or who attempted to run away out of the province. A. Higginbotham, In the Matter of Color: Race in the American Legal Process 256 (1978). On the other hand, a person who willfully murdered a slave was not punished until the second offense, and then was responsible simply for restitution to the slave owner. Furthermore, conviction for willful murder of a slave was subject to the difficult requirement of the oath of two white witnesses. Id., at 253-254, and n. 190.

[9] The Court contends that it is inappropriate to take into account the wide latitude afforded actors in the Georgia capital sentencing system, since "[w]e have held that discretion in a capital punishment system is necessary to satisfy the Constitution," ante, at 314, n. 37, and "no suggestion is made as to how greater `rationality' could be achieved under any type of statute that authorizes capital punishment." Ibid. The first point is true, but of course the Court struck down the death penalty in Furman v. Georgia, 408 U. S. 238 (1972), because the sentencing systems before it provided too much discretion. Since Gregg v. Georgia, 428 U. S. 153 (1976), the Court's death penalty jurisprudence has rested on the premise that it is possible to establish a system of guided discretion that will both permit individualized moral evaluation and prevent impermissible considerations from being taken into account. As JUSTICE BLACKMUN has persuasively demonstrated, post, at 357-358, Georgia provides no systematic guidelines for prosecutors to utilize in determining for which defendants the death penalty should be sought. Furthermore, whether a State has chosen an effective combination of guidance and discretion in its capital sentencing system as a whole cannot be established in the abstract, as the Court insists on doing, but must be determined empirically, as the Baldus study has done.

With respect to the Court's criticism that McCleskey has not shown how Georgia could do a better job, ante, at 315, n. 37, once it is established that the particular system of guided discretion chosen by a State is not achieving its intended purpose, the burden is on the State, not the defendant, to devise a more rational system if it wishes to continue to impose the death penalty.

[10] As Maitland said of the provision of the Magna Carta regulating the discretionary imposition of fines, "[v]ery likely there was no clause in Magna Carta more grateful to the mass of the people." F. Maitland, Pleas of the Crown For the County of Gloucester xxxiv (1884). In our own country, the point is underscored by Patrick Henry's remarks in support of the adoption of a Bill of Rights:

"Congress, from their general powers, may fully go into business of human legislation. They may legislate, in criminal cases, from treason to the lowest offence — petty larceny. They may define crimes and prescribe punishments. In the definition of crimes, I trust they will be directed by what wise representatives ought to be governed by. But when we come to punishments, no latitude ought to be left, nor dependence put on the virtue of representatives." 3 J. Elliot's Debates on the Constitution 447 (1854).

[1] I agree with JUSTICE STEVENS' position that the proper course is to remand this case to the Court of Appeals for determination of the validity of the statistical evidence presented. Post, at 367. Like JUSTICE STEVENS, however, I am persuaded that the Baldus study is valid and would remand merely in the interest of orderly procedure.

[2] See, e. g., H. R. Joint Comm. Rep. No. 30, 39th Cong., 1st Sess., pt. II, p. 25 (1866) (testimony of George Tucker, Virginia attorney) ("They have not any idea of prosecuting white men for offenses against colored people; they do not appreciate the idea"); id., at 209 (testimony of Dexter H. Clapp) ("Of the thousand cases of murder, robbery, and maltreatment of freedmen that have come before me, . . . I have never yet known a single case in which the local authorities or police or citizens made any attempt or exhibited any inclination to redress any of these wrongs or to protect such persons"); id., at 213 (testimony of J. A. Campbell) (although identities of men suspected of killing two blacks known, no arrest or trial had occurred); id., pt. III, p. 141 (testimony of Brev. Maj. Gen. Wager Swayne) ("I have not known, after six months' residence at the capital of the State, a single instance of a white man being convicted and hung or sent to the penitentiary for crime against a negro, while many cases of crime warranting such punishment have been reported to me"); id., pt. IV, p. 75 (testimony of Maj. Gen. George A. Custer) ("[I]t is of weekly, if not of daily, occurrence that freedmen are murdered. . . . [S]ometimes it is not known who the perpetrators are; but when that is known no action is taken against them. I believe a white man has never been hung for murder in Texas, although it is the law").

In Brown v. Board of Education, 347 U. S. 483 (1954), this Court held that, despite the fact that the legislative history of the Fourteenth Amendment indicated that Congress did not view racial discrimination in public education as a specific target, the Amendment nevertheless prohibited such discrimination. The Court today holds that even though the Fourteenth Amendment was aimed specifically at eradicating discrimination in the enforcement of criminal sanctions, allegations of such discrimination supported by substantial evidence are not constitutionally cognizable. But see Batson v. Kentucky, 476 U. S. 79, 85 (1986) (allegations of racially discriminatory exercise of peremptory challenges by prosecutor subject to review under Fourteenth Amendment because "[e]xclusion of black citizens from service as jurors constitutes a primary example of the evil the Fourteenth Amendment was designed to cure").

[3] The Court refers to the prosecutor's role in the capital sentencing process without analyzing the import of the statistical evidence concerning the steps of the process at which the prosecutor determines the future of the case. The Court recognizes that the prosecutor determines whether a case even will proceed to the penalty phase. If the prosecutor does not pursue the death penalty, a mandatory sentence of life imprisonment is imposed. See ante, at 284, n. 2. It lists many of the factors that prosecutors take into account in making their decisions, ante, at 307-308, n. 28, and recognizes that in each case the prosecutor can decline to charge, or to offer a plea bargain, or to seek a death sentence, ante, at 312. It also notes that the Baldus study "found that prosecutors sought the death penalty in 70% of the cases involving black defendants and white victims; 32% of the cases involving white defendants and white victims; 15% of the cases involving black defendants and black victims; and 19% of the cases involving white defendants and black victims," ante, at 287.

The Court relies heavily on its assertion that prosecutorial discretion should not be reviewed, ante, at 296-297, 311-312, but elsewhere concedes that such discretion may not be exercised in a racially discriminatory manner, ante, at 309, n. 30. It nowhere explains why this limitation on prosecutorial discretion does not require the same analysis that we apply in other cases involving equal protection challenges to the exercise of prosecutorial discretion. See, e. g., Batson v. Kentucky, 476 U. S. 79 (1986).

[4] The use of the prima facie case method to structure proof in cases charging racial discrimination is appropriate because it "progressively . . . sharpen[s] the inquiry into the elusive factual question of intentional discrimination." Texas Dept. of Community Affairs v. Burdine, 450 U. S. 248, 255, n. 8 (1981); see McCleskey v. Kemp, 753 F. 2d 877, 912 (CA11 1985) (Johnson, J., dissenting in part and concurring in part) (where the "prosecutor has considerable discretion and the jury has bounded but irreducible discretion," the discretion could easily mask conscious or unconscious racial discrimination and indirect methods of proof are therefore required as outlined in Washington v. Davis, 426 U. S. 229, 241-242 (1976), and Arlington Heights v. Metropolitan Housing Development Corp., 429 U. S. 252, 266, n. 13 (1977)).

[5] The Court recently explained: "In deciding if the defendant has carried his burden of persuasion, a court must undertake `a sensitive inquiry into such circumstantial and direct evidence of intent as may be available.' Arlington Heights v. Metropolitan Housing Development Corp., 429 U. S., at 266. Circumstantial evidence of invidious intent may include proof of disproportionate impact. Washington v. Davis, 426 U. S., at 242. We have observed that under some circumstances proof of discriminatory impact `may for all practical purposes demonstrate unconstitutionality because in various circumstances the discrimination is very difficult to explain on nonracial grounds.' Ibid." Batson v. Kentucky, 476 U. S., at 93.

[6] In Castaneda, we explained that in jury-selection cases where the criminal defendant is attempting to prove that there was discriminatory exclusion of potential jurors we apply the "rule of exclusion" method of proof. 430 U. S., at 494. The underlying rationale is that "[i]f a disparity is sufficiently large, then it is unlikely that it is due solely to chance or accident, and, in the absence of evidence to the contrary, one must conclude that racial or other class-related factors entered into the selection process." Id., at 494, n. 13.

[7] Although the Court states that it assumes the validity of the Baldus study for purposes of its analysis, because of its detailed discussion of the District Court's reasons for rejecting its validity I am compelled to record my disagreement with the District Court's reasoning. As a member of the United States Court of Appeals, I was confronted in 1968 with a challenge to the constitutionality of a State's capital sentencing system based on allegations of racial discrimination supported by statistical evidence. Writing for a panel of the court, I rejected that challenge for reasons similar to those espoused by the Court today. Maxwell v. Bishop, 398 F. 2d 138 (CA8), vacated and remanded, sua sponte, on grounds not raised below, 398 U. S. 262 (1970) (per curiam).

The Court of Appeals found the evidence presented by Maxwell incomplete, not directly relevant to his individual claim, and statistically insufficient. McCleskey's evidence, however, is of such a different level of sophistication and detail that it simply cannot be rejected on those grounds. Unlike the evidence presented by Maxwell, which did not contain data from the jurisdiction in which he was tried and sentenced, McCleskey's evidence includes data from the relevant jurisdiction. Whereas the analyses presented by Maxwell did not take into account a significant number of variables and were based on a universe of 55 cases, the analyses presented by McCleskey's evidence take into account more than 400 variables and are based on data concerning all offenders arrested for homicide in Georgia from 1973 through 1978, a total of 2,484 cases. Moreover, the sophistication of McCleskey's evidence permits consideration of the existence of racial discrimination at various decision points in the process, not merely at the jury decision. It is this experience, in part, that convinces me of the significance of the Baldus study.

[8] See Brief for Dr. Franklin M. Fisher et al. as Amici Curiae 19.

[9] A defendant's chances of receiving a death sentence increase by a factor of 4.3 if the victim is white, but only by 2.3 if the defendant was the prime mover behind the homicide.

[10] A prior record of a conviction for murder, armed robbery, rape, or kidnaping with bodily injury increases the chances of a defendant's receiving a death sentence by a factor of 4.9.

[11] The universe of cases from Fulton County analyzed by Baldus included 629 killings, 581 of which yielded murder indictments. Supp. Exh. 59, 60; Tr. 978-981. The evidence indicated that at each step in the process from indictment to sentence, there is a differential treatment in the disposition of white-victim and black-victim cases, with the white-victim cases having a higher likelihood of being retained in the system and risking a death sentence. Supp. Exh. 60; Tr. 978-981.

[12] In his deposition, Russell Parker, the Assistant District Attorney who prosecuted McCleskey's case, contradicted the statement cited by the Court, ante, at 312, n. 34, concerning plea negotiations during McCleskey's trial. Parker testified that he never discussed a plea with McCleskey. Deposition in No. 84-8176 of Russell Parker, Feb. 16, 1981, p. 15.

[13] As a result of McCleskey's discovery efforts, the record also contains relevant testimonial evidence by two state officials. The Fulton County District Attorney testified that he did not recall any instance in which race was a factor in a death penalty case in his office. Deposition in No. 84-8176 of Lewis R. Slaton, Aug. 4, 1983, p. 78. He later recalled one case that was in the office when he first began, in which the office set aside the death penalty because of the possibility that race had been involved. Id., at 79-80. The Assistant District Attorney who prosecuted McCleskey's case testified that race did not influence his decision to seek the death penalty in the present case. Deposition of Russell Parker, Feb. 16, 1981, p. 17.

These general assertions by state officials that they did not discriminate or that they properly performed their official duties, however, cannot meet the State's burden of rebuttal of the prima facie case. See Alexander v. Louisiana, 405 U. S. 625, 631-632 (1972); Whitus v. Georgia, 385 U. S. 545, 551-552 (1967). Moreover, there are many ways in which racial factors can enter indirectly into prosecutorial decisions. For example, the authors of a study similar to that of Baldus explained: "Since death penalty prosecutions require large allocations of scarce prosecutorial resources, prosecutors must choose a small number of cases to receive this expensive treatment. In making these choices they may favor homicides that are visible and disturbing to the majority of the community, and these will tend to be white-victim homicides." Gross & Mauro, Patterns of Death: An Analysis of Racial Disparities in Capital Sentencing and Homicide Victimization, 37 Stan. L. Rev. 27, 106-107 (1984); see generally Johnson, Race and the Decision to Detain a Suspect, 93 Yale L. J. 214 (1983); Lawrence, The Id, the Ego, and Equal Protection: Reckoning with Unconscious Racism, 39 Stan. L. Rev. 317 (1987).

No. 76-811.

REGENTS OF THE UNIVERSITY OF CALIFORNIA v. BAKKE

Decided June 28, 1978

Argued October 12, 1977

Powell, J., announced the Court’s judgment and filed an opinion expressing his views of the case, in Parts I, III-A, and V-C of which White, J., joined; and in Parts I and V-C of which BreNNAN, Marshall, and BlacemuN, JJ., joined. BreNNAN, White, Marshall, and Blace-­MUN, JJ., filed an opinion concurring in the judgment in part and dis­senting in part, post, p. 324. White, J., post, p. 379, Marshall, J., post, p. 387, and BlackmuN, J., post, p. 402, filed separate opinions. SteveNS, J., filed an opinion concurring in the judgment in part and dissenting in part, in which Burger, C. J., and Stewart and RehNQUist, JJ., joined, post, p. 408.

Opinion of Mr. Justice Brennan, Mr. Justice White, Mr. Justice Marshall, and Mr. Justice Blackmun, con­curring in the judgment in part and dissenting in part.

Archibald Cox argued the cause for petitioner. With him on the briefs were Paul J. Mishkin, Jack B. Owens, and Donald L. Reidhaar.

Reynold H. Colvin argued the cause and filed briefs for respondent.

Solicitor General McCree argued the cause for the United States as amicus curiae. With him on the briefs were Attorney General Bell, Assistant Attorney General Days, Deputy Solici­tor General Wallace, Brian K. Landsberg, Jessica Dunsay Sil­ver, Miriam R. Eisenstein, and Vincent F. O’Rourke.*

*

Briefs of amici curiae urging reversal were filed by Slade Gorton, Attor­ney General, and James B. Wilson, Senior Assistant Attorney General, for the State of Washington et al.; by E. Richard Larson, Joel M. Gora, Charles C. Marson, Sanford Jay Rosen, Fred Okrand, Norman Dorsen, Ruth Bader Ginsburg, and Frank Askin for the American Civil Liberties Union et al.; by Edgar S. Cahn, Jean Camper Cahn, and Robert S. Catz for the Antioch School of Law; by William Jack Chow for the Asian American Bar Assn, of the Greater Bay Area; by A. Kenneth Pye, Robert B. McKay, David E. Feller, and Ernest Gellhorn for the Association of American Law Schools; by John Holt Myers for the Association of American Medi­cal Colleges; by Jerome B. Fcdk and Peter Roos for the Bar Assn, of San Francisco et al.; by Ephraim Margolin for the Black Law Students Assn, at the University of California, Berkeley School of Law; by John T. Baker for the Black Law Students Union of Yale University Law School; by Annamay T. Sheppard and Jonathan M. Hyman for the Board of Gover­nors of Rutgers, State University of New Jersey, et al.; by Robert J. Willey for the Cleveland State University Chapter of the Black American Law Students Assn.; by John Mason Harding, Albert J. Rosenthal, Daniel Steiner, Iris Brest, James V. Siena, Louis H. Poliak, and Michael I. Sovem for Columbia University et al.; by Herbert 0. Reid for Howard Univer­sity; by Harry B. Reese and L. Orin Slagle for the Law School Admission Council; by Albert E. Jenner, Jr., Stephen J. Poliak, Burke Marshall, Norman Redlich, Robert A. Murphy, and William, E. Caldwell for the Lawyers’ Committee for Civil Rights Under Law; by Alice Daniel and James E. Coleman, Jr., for the Legal Services Corp.; by Nathaniel R. Jones, Nathaniel S. Colley, and Stanley Goodman for the National Assn, for the Advancement of Colored People; by Jack Greenberg, James M. Nabrit III, Charles S. Ralston, Eric Schnapper, and David E. Kendall for the NAACP Legal Defense and Educational Fund, Inc.; by Stephen V. Bomse for the National Assn, of Minority Contractors et al.; by Richard B. Sobol, Marian Wright Edelman, Stephen P. Berzon, and Joseph L. Rauh, Jr., for the National Council of Churches of Christ in the United States et al.; by Barbara A. Morris, Joan Bertin Lowy, and Diana H. Greene for the National Employment Law Project, Inc.; by Herbert 0. Reid and J. Clay Smith, Jr., for the National Medical Assn., Inc., et ah; by Robert Hermann for the Puerto Rican Legal Defense and Education Fund et al.; by Robert Allen Sedler, Howard Lesnick, and Arval A. Morris for the Society of American Law Teachers; for the American Medical Student Assn.; and for the Council on Legal Education Opportunity.

Briefs of amici curiae urging affirmance were filed by Lawrence A. Polt-­rock and Wayne B. Giampietro for the American Federation of Teachers; by Abraham S. Goldstein, Nathan Z. Dershowitz, Arthur J. Gajarsa, Thad­deus L. Kowalski, Anthony J. Fornelli, Howard L. Greenberger, Samuel Rabinove, Themis N. Anastos, Julian E. Kulas, and Alan M. Dershowitz for the American Jewish Committee et al; by McNeill Stokes and Ira J. Smotherman, Jr., for the American Subcontractors Assn.; by Philip B. Kurland, Daniel D. Polsby, Larry M. Lavinsky, Arnold Forster, Dennis Rapps, Anthony J. Fornelli, Leonard Greenwald, and David I. Ashe for the Anti-Defamation League of B’nai B’rith et ah; by Charles G. Bakaly and Lawrence B. Kraus for the Chamber of Commerce of the United States; by Roger A. Clark, Jerome K. Tankel, and Glen R. Murphy for the Fraternal Order of Police et al.; by Judith R. Cohn for the Order Sons of Italy in America; by Ronald A. Zumbrun, John H. Findley, and William F. Harvey for the Pacific Legal Foundation; by Benjamin Vinar and David I. Caplan for the Queens Jewish Community Council et al.; and by Jennings P. Felix for Young Americans for Freedom.

Briefs of amici curiae were filed by Matthew W. Finkin for the Ameri­can Assn, of University Professors; by John W. Finley, Jr., Michael Blinick, John Cannon, Leonard J. Theberge, and Edward H. Dowd for the Committee on Academic Nondiscrimination and Integrity et al.; by Ken­neth C. McGuiness, Robert E. Williams, Douglas S. McDowell, and Ronald M. Green for the Equal Employment Advisory Council; by Charles E. Wilson for the Fair Employment Practice Comm’n of California; by Mario G. Obledo for Jerome A. Laekner, Director of the Department of Health of California, et ah; by Vilma S. Martinez, Peter D. Roos, and Ralph Santiago Abascal for the Mexican American Legal Defense and Educational Fund et al.; by Eva S. Goodwin for the National Assn, of Affirmative Action Officers; by Lennox S. Hinds for the National Confer­ence of Black Lawyers; by David Ginsburg for the National Fund for Minority Engineering Students; by A. John Wabaunsee, Walter R. Echo-­Hawk, and Thomas W. Fredericks for the Native American Law Students of the University of California at Davis et al; by Joseph A. Broderick, Calvin Brown, LeMarquis DeJarmon, James E. Ferguson II, Harry E. Groves, John H. Harmon, William A. Marsh, Jr., and James W. Smith for the North Carolina Assn, of Black Lawyers; by Leonard F. Walentyno-­wicz for the Polish American Congress et al.; by Daniel M. Luevano and John E. McDermott for the UCLA Black Law Students Assn, et al.; by Henry A. Waxman pro se; by Leo Branton, Jr., Ann Fagan Ginger, Sam Rosenwein, and Laurence R. Sperber for Price M. Cobbs, M. D., et al.; by John S. Nolan for Ralph J. Galliano; and by Daniel T. Spitler for Timothy J. Hoy.

Mr. Justice Powell

announced the judgment of the Court.

This case presents a challenge to the special admissions program of the petitioner, the Medical School of the University of California at Davis, which is designed to assure the admis­sion of a specified number of students from certain minority groups. The Superior Court of California sustained respond­ent’s challenge, holding that petitioner’s program violated the California Constitution, Title VI of the Civil Rights Act of 1964, 42 U. S. C. § 200Ód et seq., and the Equal Protection Clause of the Fourteenth Amendment. The court enjoined petitioner from considering respondent’s race or the race of any other applicant in making admissions decisions. It re­fused, however, to order respondent’s admission to the Medi­cal School, holding that he had not carried his burden of proving that he would have been admitted but for the con­stitutional and statutory violations. The Supreme Court of California affirmed those portions of the trial court’s judg­ment declaring the special admissions program unlawful and enjoining petitioner from considering the race of any appli­cant.† It modified that portion of the judgment denying re­spondent’s requested injunction and directed the trial court to order his admission.

For the reasons stated in the following opinion, I believe that so much of the judgment of the California court as holds petitioner’s special admissions program unlawful and directs that respondent be admitted to the Medical School must be affirmed. For the reasons expressed in a separate opinion, my Brothers The Chief Justice, Mr. Justice Stewart, Mr. Justice Rehnquist, and Mr. Justice Stevens concur in this judgment.

I also conclude for the reasons stated in the following opinion that the portion of the court’s judgment enjoining petitioner from according any consideration to race in its admissions process must be reversed. For reasons expressed in separate opinions, my Brothers Mr. Justice Brennan, Mr. Justice White, Mr. Justice Marshall, and Mr. Justice Blackmun concur in this judgment.

Affirmed in part and reversed in part.

I­‡

The Medical School of the University of California at Davis opened in 1968 with an entering class of 50 students. In 1971, the size of the entering class was increased to 100 students, a level at which it remains. No admissions program for disad­vantaged or minority students existed when the school opened, and the first class contained three Asians but no blacks, no Mexican-Americans, and no American Indians. Over the next two years, the faculty devised a special admissions program to increase the representation of “disadvantaged” students in each Medical School class.1 The special program consisted of a separate admissions system operating in coordination with the regular admissions process.

Under the regular admissions procedure, a candidate could submit his application to the Medical School beginning in July of the year preceding the academic year for which admission was sought. Record 149. Because of the large number of applications,2 the admissions committee screened each one to select candidates for further consideration. Candidates whose overall undergraduate grade point averages fell below 2.5 on a scale of 4.0 were summarily rejected. Id., at 63. About one out of six applicants was invited for a personal interview. Ibid. Following the interviews, each candidate was rated on a scale of 1 to 100 by his interviewers and four other members of the admissions committee. The rating embraced the interviewers’ summaries, the candidate’s overall grade point average, grade point average in science courses, scores on the Medical College Admissions Test (MCAT), letters of recommendation, extracurricular activities, and other bio­graphical data. Id., at 62. The ratings were added together to arrive at each candidate’s “benchmark” score. Since five committee members rated each candidate in 1973, a perfect score was 500; in 1974, six members rated each candidate, so that a perfect score was 600. The full committee then reviewed the file and scores of each applicant and made offers of admission on a “rolling” basis.3 The chairman was respon­sible for placing names on the waiting list. They were not placed in strict numerical order; instead, the chairman had discretion to include persons with “special skills.” Id., at 63-64.

The special admissions program operated with a separate committee, a majority of whom were members of minority groups. Id., at 163. On the 1973 application form, can­didates were asked to indicate whether they wished to be considered as “economically and/or educationally disadvan­taged” applicants; on the 1974 form the question was whether they wished to be considered as members of a “minority group,” which the Medical School apparently viewed as “Blacks,” “Chícanos,” “Asians,” and “American Indians.” Id., at 65-66, 146, 197, 203-205, 216-218. If these questions were answered affirmatively, the application was forwarded to the special admissions committee. No formal definition of “disad­vantaged” was ever produced, id., at 163-164, but the chairman of the special committee screened each application to see whether it reflected economic or educational deprivation.4 Having passed this initial hurdle, the applications then were rated by the special committee in a fashion similar to that used by the general admissions committee, except that special candi­dates did not have to meet the 2.5 grade point average cutoff applied to regular applicants. About one-fifth of the total number of special applicants were invited for interviews in 1973 and 1974.5 Following each interview, the special committee assigned each special applicant a benchmark score. The spe­cial committee then presented its top choices to the general admissions committee. The latter did not rate or compare the special candidates against the general applicants, id., at 388, but could reject recommended special candidates for failure to meet course requirements or other specific deficiencies. Id., at 171-172. The special committee continued to recommend special applicants until a number prescribed by faculty vote were admitted. While the overall class size was still 50, the prescribed number was 8; in 1973 and 1974, when the class size had doubled to 100, the prescribed number of special admissions also doubled, to 16. Id., at 164,166.

From the year of the increase in class size — 1971 — through 1974, the special program resulted in the admission of 21 black students, 30 Mexican-Americans, and 12 Asians, for a total of 63 minority students. Over the same period, the regular ad­missions program produced 1 black, 6 Mexican-Americans, and 37 Asians, for a total of 44 minority students.6 Although disadvantaged whites applied to the special program in large numbers, see n. 5, supra, none received an offer of admission through that process. Indeed, in 1974, at least, the special committee explicitly considered only “disadvantaged” special applicants who were members of one of the designated minority groups. Record 171.

Allan Bakke is a white male who applied to the Davis Medical School in both 1973 and 1974. In both years Bakke’s application was considered under the general admissions pro­gram, and he received an interview. His 1973 interview was with Dr. Theodore C. West, who considered Bakke “a very desirable applicant to [the] medical school.” Id., at 225. Despite a strong benchmark score of 468 out of 500, Bakke was rejected. His application had come late in the year, and no applicants in the general admissions process with scores below 470 were accepted after Bakke’s application was completed. Id., at 69. There were four special admissions slots unfilled at that time, however, for which Bakke was not considered. Id., at 70. After his 1973 rejection, Bakke wrote to Dr. George H. Lowrey, Associate Dean and Chairman of the Admissions Committee, protesting that the special admissions program operated as a racial and ethnic quota. Id., at 259.

Bakke’s 1974 application was completed early in the year. Id., at 70. His student interviewer gave him an overall rating of 94, finding him “friendly, well tempered, conscientious and delightful to speak with.” Id., at 229. His faculty inter­viewer was, by coincidence, the same Dr. Lowrey to whom he had written in protest of the special admissions program. Dr. Lowrey found Bakke “rather limited in his approach” to the problems of the medical profession and found disturbing Bakke’s “very definite opinions which were based more on his personal viewpoints than upon a study of the total problem.” Id., at 226. Dr. Lowrey gave Bakke the lowest of his six ratings, an 86; his total was 549 out of 600. Id., at 230. Again, Bakke’s application was rejected. In neither year did the chairman of the admissions committee, Dr. Lowrey, exer­cise his discretion to place Bakke on the waiting list. Id., at 64. In both years, applicants were admitted under the special program with grade point averages, MCAT scores, and bench­mark scores significantly lower than Bakke’s.7

After the second rejection, Bakke filed the instant suit in the Superior Court of California,8 He sought mandatory, injunctive, and declaratory relief compelling his admission to the Medical School. He alleged that the Medical School’s special admissions program operated to exclude him from the school on the basis of his race, in violation of his rights under the Equal Protection Clause of the Fourteenth Amendment,9 Art. I, § 21, of the California Constitution,10 and § 601 of Title VI of the Civil Rights Act of 1964, 78 Stat. 252, 42 U. S. C. § 2000d.11 The University cross-complained for a declaration that its special admissions program was lawful. The trial court found that the special program operated as a racial quota, because minority applicants in the special program were rated only against one another, Record 388, and 16 places in the class of 100 were reserved for them. Id., at 295-296. Declaring that the University could not take race into account in making admissions decisions, the trial court held the chal­lenged program violative of the Federal Constitution, the State Constitution, and Title VI. The court refused to order Bakke’s admission, however, holding that he had failed to carry his burden of proving that he would have been admitted but for the existence of the special program.

Bakke appealed from the portion of the trial court judgment denying him admission, and the University appealed from the decision that its special admissions program was unlawful and the order enjoining it from considering race in the processing of applications. The Supreme Court of California transferred the case directly from the trial court, “because of the impor­tance of the issues involved.” 18 Cal. 3d 34, 39, 553 P. 2d 1152, 1156 (1976). The California court accepted the findings of the trial court with respect to the University's program.12 Because the special admissions program involved a .racial classification, the Supreme Court held itself bound to apply strict scrutiny. Id., at 49, 553 P. 2d, at 1162-1163. It then turned to the goals the University presented as justifying the special program. Although the court agreed that the goals of integrating the medical profession and increasing the number of physicians willing to serve members of minority groups were compelling state interests, id., at 53, 553 P. 2d, at 1165, it concluded that the special admissions program was not the least intrusive means of achieving those goals. Without pass­ing on the state constitutional or the federal statutory grounds cited in the trial court’s judgment, the California court held that the Equal Protection Clause of the Fourteenth Amend­ment required that “no applicant may be rejected because of his race, in favor of another who is less qualified, as measured by standards applied without regard to race.” Id., at 55, 553 P. 2d, at 1166.

Turning to Bakke’s appeal, the court ruled that since Bakke had established that the University had discriminated against him on the basis of his race, the burden of proof shifted to the University to demonstrate that he would not have been admitted even in the absence of the special admissions pro­gram.13 Id., at 63-64, 553 P. 2d,, at 1172. The court anal­ogized Bakke’s situation to that of a. plaintiff under Title VII of the Civil Rights Act of 1964, 42 U. S. C. §§ 2000e-17 (1970 ed., Supp. V), see, e. g., Franks v. Bowman Transporta­tion Co., 424 U. S. 747, 772 (1976).. 18 Cal. 3d, at 63-64, 553 P. 2d, at 1172. On this basis, the court initially ordered a remand for the purpose of determining whether, under the newly allocated burden of proof, Bakke would have been admitted to either the 1973 or the 1974 entering class in the absence of the special admissions program. App. A to Appli­cation for Stay 48. In its petition for rehearing below, however, the University conceded its inability to carry that burden. App. B to Application for Stay A19-A20.14 The California court thereupon amended its opinion to direct that the trial court enter judgment ordering Bakke’s admission to the Medical School. 18 Cal. 3d, at 64, 553 P. 2d, at 1172. That order was stayed pending review in this Court. 429 U. S. 953 (1976). We granted certiorari to consider the important constitutional issue. 429 U. S. 1090 (1977).

II

In this Court the parties neither briefed nor argued the applicability of Title VI of the Civil Rights Act of 1964. Rather, as had the California court, they focused exclusively upon the validity of the special admissions program under the Equal Protection Clause. Because it was possible, however, that a decision on Title VI might obviate resort to consti­tutional interpretation, see Ashwander v. TVA, 297 U. S. 288, 346-348 (1936) (concurring opinion), we requested sup­plementary briefing on the statutory issue. 434 U. S. 900 (1977).

A

At the outset we face the question whether a right of action for private parties exists under Title VI. Respondent argues that there is a private right of action, invoking the test set forth in Cort v. Ash, 422 U. S. 66, 78 (1975). He contends that the statute creates a federal right in his favor, that legislative history reveals an intent to permit private actions,15 that such actions would further the remedial purposes of the statute, and that enforcement of federal rights under the Civil Rights Act generally is not relegated to the States. In addition, he cites several lower court decisions which have recognized or assumed the existence of a private right of action.16 Petitioner denies the existence of a private right of action, arguing that the sole function of § 601, see n. 11, supra, was to establish a predicate for administrative action under § 602, 78 Stat. 252, 42 U. S. C. § 2000d-l.17 In its view, administrative curtailment of federal funds under that section was the only sanction to be imposed upon recipients that violated § 601. Petitioner also points out that Title VI con­tains no explicit grant of a private right of action, in con­trast to Titles II, III, IV, and VII, of the same statute, 42 U. S. C. §§ 2000a-3 (a), 2000b-2, 2000c-8, and 2000e-5 (f) (1970 ed. and Supp. V).18

We find it unnecessary to resolve this question in the instant case. The question of respondent’s right to bring an action under Title VI was neither argued nor decided in either of the courts below, and this Court has been hesitant to review questions not addressed below. McGoldrick v. Compagnie Generale Transatlantique, 309 U. S. 430, 434-435 (1940). See also Massachusetts v. Westcott, 431 U. S. 322 (1977); Cardinale v. Louisiana, 394 U. S. 437, 439 (1969). Cf. Singleton, v. Wulff, 428 U. S. 106, 121 (1976). We therefore do not address this difficult issue. Similarly, we need not pass upon petitioner's claim that private plaintiffs under Title VI must exhaust administrative remedies. We assume, only for the purposes of this case, that respondent has a right of action under Title VI. See Lau v. Nichols, 414 U. S. 563, 571 n. 2 (1974) (Stewart, J., concurring in result).

B

The language of § 601, 78 Stat. 252, like that of the Equal Protection Clause, is majestic in its sweep :

“No person in the United States shall, on the ground of race, color, or national origin, be excluded from participa­tion in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.”

The concept of “discrimination,” like the phrase “equal protec­tion of the laws,” is susceptible of varying interpretations, for as Mr. Justice Holmes declared, “[a] word is not a crystal, transparent and unchanged, it is the skin of a living thought and may vary greatly in color and content according to the circumstances and the time in which it is used.” Towne v. Eisner, 245 U. S. 418, 425 (1918). We must, therefore, seek whatever aid is available in determining the precise meaning of the statute before us. Train v. Colorado Public Interest Research Group, 426 U. S. 1, 10 (1976), quoting United States v. American Trucking Assns., 310 U. S. 534, 543-544 (1940). Examination of the voluminous legislative history of Title VI reveals a congressional intent to halt federal funding of entities that violate a prohibition of racial discrimination similar to that of the Constitution. Although isolated statements of various legislators, taken out of context, can be marshaled in support of the proposition that § 601 enacted a purely color­blind scheme,19 without regard to the reach of the Equal Pro­tection Clause, these comments must be read against the background of both the problem that Congress was addressing and the broader view of the statute that emerges from a full examination of the legislative debates.

The problem confronting Congress was discrimination against Negro citizens at the hands of recipients of federal moneys. Indeed, the color blindness pronouncements cited in the margin at n. 19, generally occur in the midst of extended remarks dealing with the evils of segregation in federally funded programs. Over and over again, proponents of the bill detailed the plight of Negroes seeking equal treatment in such programs.20 There simply was no reason for Congress to con­sider the validity of hypothetical preferences that might be accorded minority citizens; the legislators were dealing with the real and pressing problem of how to guarantee those citi­zens equal treatment.

In addressing that problem, supporters of Title VI repeatedly declared that the bill enacted constitutional principles. Tor example, Representative Celler, the Chairman of the House Judiciary Committee and floor manager of the legislation in the House, emphasized this in introducing the bill:

“The bill would offer assurance that hospitals financed by Federal money would not deny adequate care to Ne­groes. It would prevent abuse of food distribution pro­grams whereby Negroes have been known to be denied food surplus supplies when white persons were given such food. It would assure Negroes the benefits now accorded only-­white students in programs of high[er] education fi­nanced by Federal funds. It would, in short, assure the existing right to equal treatment in the enjoyment of Federal funds. It would not destroy any rights of pri­vate property or freedom of association.” 110 Cong. Rec. 1519 (1964) (emphasis added).

Other sponsors shared Representative Celler’s view that Title VI embodied constitutional principles.21

In the Senate, Senator Humphrey declared that the purpose of Title VI was “to insure that Federal funds are spent in accordance with the Constitution and the moral sense of the Nation.” Id., at 6544. Senator Ribicoff agreed that Title VI embraced the constitutional standard: “Basically, there is a constitutional restriction against discrimination in the use of federal funds; and title VI simply spells out the procedure to be used in enforcing that restriction.” Id., at 13333. Other Senators expressed similar views.22

Further evidence of the incorporation of a constitutional standard into Title VI appears in the repeated refusals of the legislation’s supporters precisely to define the term “dis­crimination.” Opponents sharply criticized this failure,23 but proponents of the bill merely replied that the meaning of “discrimination” would be made clear by reference to the Constitution or other existing law. For example, Senator Humphrey noted the relevance of the Constitution:

“As I have said, the bill has a simple purpose. That purpose is to give fellow citizens — Negroes — the same rights and opportunities that white people take for granted. This is no more than what was preached by the prophets, and by Christ Himself. It is no more than what our Constitution guarantees.” Id., at 6553.24

In view of the clear legislative intent, Title VI must be held to proscribe only those racial classifications that would violate the Equal Protection Clause or the Fifth Amendment.

Ill

A

Petitioner does not deny that decisions based on race or ethnic origin by faculties and administrations of state univer­sities are reviewable under the Fourteenth Amendment. See, e. g., Missouri ex rel. Gaines v. Canada, 305 U. S. 337 (1938); Sipuel v. Board of Regents, 332 U. S. 631 (1948); Sweatt v. Painter, 339 U. S. 629 (1950); McLaurin v. Oklahoma State Regents, 339 U. S. 637 (1950). For his part, respondent does not argue that all racial or ethnic classifications are per se invalid. See, e. g., Hirabayashi v. United States, 320 U. S. 81 (1943); Korematsu v. United States, 323 U. S. 214 (1944); Lee v. Washington, 390 U. S. 333, 334 (1968) (Black, Harlan, and Stewart, JJ., concurring); United Jewish Organizations v. Carey, 430 U. S. 144 (1977). The parties do disagree as to the level of judicial scrutiny to be applied to the special admissions program. Petitioner argues that the court below erred in applying strict scrutiny, as this inexact term has been applied in our cases. That level of review, petitioner asserts, should be reserved for classifications that disadvantage “dis.-­crete and insular minorities.” See United States v. Carotene Products Co., 304 U. S. 144, 152 n. 4 (1938). Respondent, on the other hand, contends that the California court correctly rejected the notion that the degree of judicial scrutiny accorded a particular racial or ethnic classification hinges upon mem­bership in a discrete and insular minority and duly recognized that the “rights established [by the Fourteenth Amendment] are personal rights.” Shelley v. Kraemer, 334 U. S. 1, 22 (1948).

En route to this crucial battle over the scope of judicial review,25 the parties fight a sharp preliminary action over the proper characterization of the special admissions program. Petitioner prefers to view it as establishing a “goal” of minor­ity representation in the Medical School. Respondent, echo­ing the courts below, labels it a racial quota.26

This semantic distinction is beside the point: The special admissions program is undeniably a classification based on race and ethnic background. To the extent that there existed a pool of at least minimally, qualified minority applicants to fill the 16 special admissions seats, white applicants could compete only for 84 seats in the entering class, rather than the 100 open to minority applicants. Whether this limitation is described as a quota or a goal, it is a line drawn on the basis of race and ethnic status.27

The guarantees of the Fourteenth Amendment extend to all persons. Its language is explicit: “No State shall.. . deny to any person within its jurisdiction the equal protection of the laws.” It is settled beyond question that the “rights created by the first section of the Fourteenth Amendment are, by its terms, guaranteed to the individual. The rights estab­lished are personal rights,” Shelley v. Kraemer, supra, at 22. Accord, Missouri ex rel. Gaines v. Canada, supra, at 351; McCabe v. Atchison, T. & S. F. R. Co., 235 U. S. 151, 161-162 (1914). The guarantee of equal protection cannot mean one thing when applied to one individual and something else when applied to a person of another color. If both are not accorded the same protection, then it is not equal.

Nevertheless, petitioner argues that the court below erred in applying 'strict scrutiny to the special admissions program because white males, such as respondent, are not a “discrete and insular minority” requiring extraordinary protection from the majoritarian political process. Carolene Products Co., supra, at 152-153, n. 4. This rationale, however, has never been invoked in our decisions as a prerequisite to subjecting racial or ethnic distinctions to strict scrutiny. Nor has this Court held that discreteness and insularity constitute neces­sary preconditions to a holding that a particular classification is invidious.28 See, e. g., Skinner v. Oklahoma ex ret. William­son, 316 U. S. 535, 541 (1942); Carrington v. Rash, 380 U. S. 89, 94-97 (1965). These characteristics may be relevant in deciding whether or not to add new types of classifications to the list of “suspect” categories or whether a particular classifi­cation survives close examination. See, e. g., Massachusetts Board of Retirement v. Murgia, 427 U. S. 307, 313 (1976) (age); San Antonio Independent School Dist. v. Rodriguez, 411 U. S. 1, 28 (1973) (wealth); Graham v. Richardson, 403 U. S. 365, 372 (1971) (aliens). Racial and ethnic classifi­cations, however, are subject to stringent examination with­out regard to these additional characteristics. We declared as much in the first cases explicitly to recognize racial distinctions as suspect:

“Distinctions between citizens solely because of their ancestry are by their very nature odious to a free people whose institutions are founded upon the doctrine of equality.” Hirabayashi, 320 U. S., at 100.

“[A] 11 legal restrictions'which curtail the civil rights of a single racial group are immediately suspect. That is not to say that all such restrictions are unconstitutional. It is to say that courts must subject them to the most rigid scrutiny.” Korematsu, 323 U. S., at 216.

The Court has never questioned the validity of those pro­nouncements. Racial and ethnic distinctions of any sort are inherently suspect and thus call for the most exacting judicial examination.

B

This perception of racial and ethnic distinctions is rooted in our Nation’s constitutional and demographic history. The Court’s initial view of the Fourteenth Amendment was that its “one pervading purpose” was “the freedom of the slave race, the security and firm establishment of that freedom, and the protection of the newly-made freeman and citizen from the oppressions of those who had formerly exercised dominion over him.” Slaughter-House Cases, 16 Wall. 36, 71 (1873). The Equal Protection Clause, however, was “[virtually strangled in infancy by post-civil-war judicial reaction-­ism.” 29 It was relegated to decades of relative desuetude while the Due Process Clause of the Fourteenth Amendment, after a short germinal period, flourished as a cornerstone in the Court’s defense of property and liberty of contract. See, e. g., Mugler v. Kansas, 123 U. S. 623, 661 (1887); Allgeyer v. Louisiana, 165 U. S. 578 (1897); Lochner v. New York, 198 U. S. 45 (1905). In that cause, the Fourteenth Amendment’s “one pervading purpose” was displaced. See, e. g., Plessy v. Ferguson, 163 U. S. 537 (1896). It was only as the era of sub­stantive due process came to a close, see, e. g., Nebbia v. New York, 291 U. S. 502 (1934); West Coast Hotel Co. v. Parrish, 300 U. S. 379 (1937), that the Equal Protection Clause began to attain a genuine measure of vitality, see, e. g., United States v. Carolene Products, 304 U. S. 144 (1938); Skinner v. Okla­homa ex rel. Williamson, supra.

By that time it was no longer possible to peg the guarantees of the Fourteenth Amendment to the struggle for equality of one racial minority. During the dormancy of the Equal Pro­tection Clause, the United States had become a Nation of min­orities.30 Each had to struggle 31 — and to some extent strug­gles still32 — to overcome the prejudices not of a monolithic majority, but of a “majority” composed of various minority groups of whom it was said — perhaps unfairly in many cases— that a shared characteristic was a willingness to disadvantage other groups.33 As the Nation filled with the stock of many lands, the reach of the Clause was gradually extended to all ethnic groups seeking protection from official discrimination. See Strauder v. West Virginia, 100 U. S. 303, 308 (1880) (Celtic Irishmen) (dictum); Yick Wo v. Hopkins, 118 U. S. 356 (1886) (Chinese); Truax v. Raich, 239 U. S. 33, 41 (1915) (Austrian resident aliens); Korematsu, supra (Japanese); Hernandez v. Texas, 347 U. S. 475 (1954) (Mexican-Ameri­cans) . The guarantees of equal protection, said the Court in Yick Wo, “are universal in their application, to all persons within the territorial jurisdiction, without regard to any differ­ences of race, of color, or of nationality; and the equal pro­tection of the laws is a pledge of the protection of equal laws.” 118 U. S., at 369.

Although many of the Framers of the Fourteenth Amend­ment conceived of its primary function as bridging the vast distance between members of the Negro race and the white “majority,” Slaughter-House Cases, supra, the Amendment itself was framed in universal terms, without reference to color, ethnic origin, or condition of prior servitude. As this Court recently remarked in interpreting the 1866 Civil Rights Act to extend to claims of racial discrimination against white persons, “the 39th Congress was intent upon establishing in the fed­eral law a broader principle than would have been necessary simply to meet the particular and immediate plight of the newly freed Negro slaves.” McDonald v. Santa Fe Trail Transportation Co., 427 U. S. 273, 296 (1976). And that legislation was specifically broadened in 1870 to ensure that “all persons,” not merely “citizens,” would enjoy equal rights under the law. See Runyon v. McCrary, 427 U. S. 160, 192-­202 (1976) (White, J., dissenting). Indeed, it is not unlikely that among the Framers were many who would have ap­plauded a reading of the Equal Protection Clause that states a principle of universal application and is responsive to the racial, ethnic, and cultural diversity of the Nation. See, e. g., Cong. Globe, 39th Cong., 1st Sess., 1056 (1866) (remarks of Rep. Niblack); id., at 2891-2892 (remarks of Sen. Conness) ; id., 40th Cong., 2d Sess., 883 (1868) (remarks of Sen. Howe) (Fourteenth Amendment “protect [s] classes from class legis­lation”). See also Bickel, The Original Understanding and the Segregation Decision, 69 Harv. L. Rev. 1, 60-63 (1955).

Over the past 30 years, this Court has embarked upon the crucial mission of interpreting the Equal Protection Clause with the view of assuring to all persons “the protection of equal laws,” Yick Wo, supra, at 369, in a Nation confronting a legacy of slavery and racial discrimination. See, e. g., Shelley v. Kraemer, 334 U. S. 1 (1948); Brown v. Board of Education, 347 U. S. 483 (1954); Hills v. Gautreaux, 425 U. S. 284 (1976). Because the landmark decisions in this area arose in response to the continued exclusion of Negroes from the mainstream of American society, they could be character­ized as involving discrimination by the “majority” white race against the Negro minority. But they need not be read as depending upon that characterization for their results. It suffices to say that “ [o] ver the years, this Court has consistently repudiated ‘[distinctions between citizens solely because of their ancestry’ as being ‘odious to a free people whose institu­tions are founded upon the doctrine of equality.’ ” Loving v. Virginia, 388 U. S. 1, 11 (1967), quoting Hirabayashi, 320 U. S., at 100.

» Petitioner urges us to adopt for the first time a more restrictive view of the Equal Protection Clause and hold that discrimination against members of the white “majority” can­not be suspect if its purpose can be characterized as “benign.”34 The clock of our liberties, however, cannot be turned back to 1868. Brown v. Board of Education, supra, at 492; accord, Loving v. Virginia, supra, at 9. It is far too late to argue that the guarantee of equal protection to all persons permits the recognition of special wards entitled to a degree of protection greater than that accorded others.35 “The Fourteenth Amend­ment is not directed solely against discrimination due to a ‘two-class theory’ — that is, based upon differences between ‘white’ and Negro.” Hernandez, 347 U. S., at 478.

Once the artificial line of a “two-class theory” of the Four­teenth Amendment is put aside, the difficulties entailed in varying the level of judicial review according to a perceived “preferred” status of a particular racial or ethnic minority are intractable. The concepts of “majority” and “minority” necessarily reflect temporary arrangements and political judg­ments. As observed above, the white “majority” itself is composed of various minority groups, most of which can lay claim to a history of prior discrimination at the hands of the State and private individuals. Not all of these groups can receive preferential treatment and corresponding judicial toler-­anee of distinctions drawn in terms of race and nationality, for then the only “majority” left would be a new minority of white Anglo-Saxon Protestants. There is no principled basis for deciding which groups would merit “heightened judicial solicitude” and which would not.36 Courts would be asked to evaluate the extent of the prejudice and consequent harm suffered by various minority groups. Those whose societal injury is thought to exceed some arbitrary level of toler-­ability then would be entitled to preferential classifications at the expense of individuals belonging to other groups. Those classifications would be free from exacting judicial scrutiny. As these preferences began to have their desired effect, and the consequences of past'discrimination were undone, new judicial rankings would be necessary. The kind of variable sociological and political analysis necessary to produce such rankings simply does not lie within the judicial competence — even if they otherwise were politically feasible and socially desirable.37 —Moreover, there are serious problems of justice connected with the idea of preference itself. First, it may not always be clear that a so-called preference is in fact benign. Courts may be asked to validate burdens imposed upon individual members of a particular group in order to advance the group’s general interest. See United Jewish Organizations v. Carey, 430 U. S., at 172-173 (Brennan, J., concurring in part). Nothing in the Constitution supports the notion that individuals may be asked to suffer otherwise impermissible burdens in order to enhance the societal standing of their ethnic groups. Second, preferential programs may only reinforce common stereotypes holding that certain groups are unable to achieve success without special protection based on a factor having no rela­tionship to individual worth. See DeFunis v. Odegaard, 416 U. S. 312, 343 (1974) (Douglas, J., dissenting). Third, there is a measure of inequity in forcing innocent persons in re­spondent’s position to bear the burdens of redressing griev­ances not of their making.

By hitching the meaning of the Equal Protection Clause to these transitory considerations, we would be holding, as a constitutional principle, that judicial scrutiny of classifications touching on racial and ethnic background may vary with the ebb and flow of political forces. Disparate constitutional tolerance of such classifications well may serve to exacerbate racial and ethnic antagonisms rather than alleviate them. United Jewish Organizations, supra, at 173-174 (Brennan, J., concurring in part). Also, the mutability of a constitutional principle, based upon shifting political and social judgments, undermines the chances for consistent application of the Con­stitution from one generation to the next, a critical feature of its coherent interpretation. Pollock v. Farmers’ Loan & Trust Co., 157 U. S. 429, 650-651 (1895) (White, J., dissenting). In expounding the Constitution, the Court’s role is to discern “principles sufficiently absolute to give them roots throughout the community and continuity over significant periods of time, and to lift them above the level of the pragmatic political judgments of a particular time and place.” A. Cox, The Role of the Supreme Court in American Government 114 (1976).

If it is the individual who is entitled to judicial protection against classifications based upon his racial or ethnic back­ground because such distinctions impinge upon personal rights, rather than the individual only because of his membership in a particular group, then constitutional standards may be ap­plied consistently. Political judgments regarding the necessity for the particular classification may be weighed in the consti­tutional balance, Korematsu v. United States, 323 U. S. 214 (1944), but the standard of justification will remain constant. This is as it should be, since those political judgments are the product of rough compromise struck by contending groups within the democratic process.38 When they touch upon an individual’s race or ethnic background, he is entitled to a judicial determination that the burden he is asked to bear on that basis is precisely tailored to serve a compelling govern­mental interest. The Constitution guarantees that right to every person regardless of his background. Shelley v. Kraemer, 334 U. S., at 22; Missouri ex rel. Gaines v. Canada, 305 U. S., at 351.

c

Petitioner contends that on several occasions this Court has approved preferential classifications without applying the most exacting scrutiny. Most of the cases upon which petitioner relies are drawn from three areas: school desegregation, employment discrimination, and sex discrimination. Each of the cases cited presented a situation materially different from the facts of this case.

The school desegregation cases are inapposite. Each involved remedies for clearly determined constitutional violations. E. g., Swann v. Charlotte-Mecklenburg Board of Education, 402 U. S. 1 (1971); McDaniel v. Barresi, 402 U. S. 39 (1971); Green v. County School Board, 391 U. S. 430 (1968). Racial classifications thus were designed as remedies for the vindica­tion of constitutional entitlement.39 Moreover, the scope of the remedies was not permitted to exceed the extent of the violations. E. g., Dayton Board of Education v. Brinkman, 433 U. S. 406. (1977); Milliken v. Bradley, 418 U. S. 717 (1974); see Pasadena City Board of Education v. Spangler, 427 U. S. 424 (1976). See also Austin Independent School Dist. v. United States, 429 U. S. 990, 991-995 (1976) (Powell, J„ concurring). Here, there was no judicial determination of constitutional violation as a predicate for the formulation of a remedial classification.

The employment discrimination cases also do not advance petitioner’s cause. For example, in Franks v. Bowman Trans­portation Co., 424 U. S. 747 (1976), we approved a retroactive award of seniority to a class of Negro truckdrivers who had been the victims of discrimination — not just by society at large, but by the respondent in that case. While this relief imposed some burdens on other employees, it was held neces­sary “ 'to make [the victims] whole for injuries suffered on account of unlawful employment discrimination.’ ” Id., at 763, quoting Albemarle Paper Co. v. Moody, 422 U. S. 405, 418 (1975). The Courts of Appeals have fashioned various types of racial preferences as remedies for constitutional or •statutory violations resulting in identified, race-based injuries to individuals held entitled to the preference. E. g., Bridge­port Guardians, Inc. v. Bridgeport Civil Service Commission, 482 F. 2d 1333 (CA2 1973); Carter v. Gallagher, 452 F. 2d 315 (CA8 1972), modified on rehearing en banc, id., at 327. Such preferences also have been upheld where a legislative or ad­ministrative body charged with the responsibility made deter­minations of past discrimination by the industries affected, and fashioned remedies deemed appropriate to rectify the discrimination. E. g., Contractors Association of Eastern Pennsylvania v. Secretary of Labor, 442 F. 2d 159 (CA3), cert. denied, 404 U. S. 854 (1971);40 Associated General Contractors of Massachusetts, Inc. v. Altshuler, 490 F. 2d 9 (CA1 1973), cert. denied, 416 U. S. 957 (1974); cf. Katzenbach v. Morgan, 384 U. S. 641 (1966). But we have never ap­proved preferential classifications in the absence of proved constitutional or statutory violations.41

Nor is petitioner’s view as to the applicable standard sup­ported by the fact that gender-based classifications are not subjected to this level of scrutiny. E. g., Califano v. Webster, 430 U. S. 313, 316-317 (1977); Craig v. Boren, 429 U. S. 190, 211 n. (1976) (Powell, J., concurring). Gender-based distinctions are less likely to create the analytical and prac­tical problems present in preferential programs premised on racial or ethnic criteria. With respect to gender there are only two possible classifications. The incidence of the burdens imposed by preferential classifications is clear. There are no rival groups which can claim that they, too, are entitled to preferential treatment. Classwide questions as to the group suffering previous injury and groups which fairly can be bur­dened are relatively manageable for reviewing courts. See, e. g., Califano v. Goldfarb, 430 U. S. 199, 212-217 (1977); Weinberger v. Wiesenfeld, 420 U. S. 636, 645 (1975). The resolution of these same questions in the context of racial and ethnic preferences presents far more complex and in­tractable problems than gender-based classifications. More importantly, the perception of racial classifications as in­herently odious stems from a lengthy and tragic history that gender-based classifications do not share. In sum, the Court has never viewed such classification as inherently suspect or as comparable to racial or ethnic classifications for the purpose of equal protection analysis.

Petitioner also cites Lau v. Nichols, 414 U. S. 563 (1974), in support of the proposition that discrimination favoring racial or ethnic minorities has received judicial approval with­out the exacting inquiry ordinarily accorded “suspect” clas­sifications. In Lau, we held that the failure of the San Francisco school system to provide remedial English instruc­tion for some 1,800 students of oriental ancestry who spoke no English amounted to a violation of Title VI of the Civil Rights Act of 1964, 42 U. S. C. § 2000d, and the regulations pro­mulgated thereunder. Those regulations required remedial instruction where inability to understand English excluded children of foreign ancestry from participation in educational programs. 414 U. S., at 568. Because we found that the students in Lau were denied “a meaningful opportunity to participate in the educational program,” ibid., we remanded for the fashioning of a remedial order.

Lau provides little support for petitioner’s argument. The decision rested solely on the statute, which had been construed by the responsible administrative agency to reach educational practices “which have the effect of subjecting individuals to discrimination,” ibid. We stated: “Under these state-­imposed standards there is no equality of treatment merely by providing students with the same facilities, textbooks, teachers, and curriculum; for students who do not understand English are effectively foreclosed from any meaningful educa­tion.” Id., at 566. Moreover, the “preference” approved did not result in the denial of the relevant benefit — “meaningful opportunity to participate in the educational program”- — to anyone else. No other student was deprived by that prefer­ence of the ability to participate in San Francisco’s school system, and the applicable regulations required similar assist­ance for all students who suffered similar linguistic deficiencies. Id., at 570-571 (Stewart, J., concurring in result).

In a similar vein,42 petitioner contends that our recent decision in United Jewish Organizations v. Carey, 430 U. S. 144 (1977), indicates a willingness to approve racial classifications designed to benefit certain minorities, without denominating the classifications as “suspect.” The State of New York had redrawn its reapportionment plan to meet objections of the Department of Justice under § 5 of the Voting Rights Act of 1965, 42 U. S. C. § 1973c (1970 ed., Supp. V). Specifically, voting districts were redrawn to enhance the electoral power of certain “nonwhite” voters found to have been the victims of unlawful “dilution” under the original reapportionment plan. United Jewish Organizations, like Lau, properly is viewed as a case in which the remedy for an administrative finding of discrimination encompassed measures to improve the previously disadvantaged group’s ability to participate, without excluding individuals belonging to any other group from enjoyment of the relevant opportunity — meaningful par­ticipation in the electoral process.

In this case, unlike Lau and United Jewish Organizations, there has been no determination by the legislature or a respon­sible administrative agency that the University engaged in a discriminatory practice requiring remedial efforts. Moreover, the operation of petitioner’s special admissions program is quite different from the remedial measures approved in those cases. It prefers the designated minority groups at the expense of other individuals who are totally foreclosed from competi­tion for the 16 special admissions seats in every Medical School class. Because of that foreclosure, some individuals are excluded from enjoyment of a state-provided benefit — admis­sion to the Medical School — they otherwise would receive. When a classification denies an individual opportunities or benefits enjoyed by others solely because of his race or ethnic background, it must be regarded as suspect. E. g., McLaurin v. Oklahoma State Regents, 339 U. S., at 641-642.

IV

We have held that in “order to justify the use of a suspect classification, a State must show that its purpose or interest,is both constitutionally permissible and substantial, and that its use of the classification is 'necessary ... to the accomplish­ment’ of its purpose or the safeguarding of its interest.” In re Griffiths, 413 U. S. 717, 721-722 (1973) (footnotes omitted); Loving v. Virginia, 388 U. S., at 11; McLaughlin v. Florida, 379 U. S. 184, 196 (1964). The special admissions program purports to serve the purposes of: (i) “reducing the historic deficit of traditionally disfavored minorities in medical schools and in the medical profession,” Brief for Petitioner 32; (ii) countering the effects of societal discrimination;43 (iii) increasing the number of physicians who will practice in communities currently underserved; and (iv) obtaining the educational benefits that flow from an ethnically diverse stu­dent body. It is necessary to decide which, if any, of these purposes is substantial enough to support the use of a suspect classification.

A

If petitioner’s purpose is to assure within its student body-­some specified percentage of a particular group merely because of its race or ethnic origin, such a preferential purpose must be rejected not as insubstantial but as facially invalid. Preferring members of any one group for no reason other than race or ethnic origin is discrimination for its own sake. This the Constitution forbids. E. g., Loving v. Virginia, supra, at 11; McLaughlin v. Florida, supra, at 196; Brown v. Board of Education, 347 U. S. 483 (1954).

B

The State certainly has a legitimate and substantial interest in ameliorating, or eliminating where feasible, the disabling effects of identified discrimination. The line of school deseg­regation cases, commencing with Brown, attests to the impor­tance of this state goal and the commitment of the judiciary to affirm all lawful means toward its attainment. In the school cases, the States were required by court order to redress the wrongs worked by specific instances of racial discrimina­tion. That goal was far more focused than the remedying of the effects of “societal discrimination,” an amorphous concept of injury that may be ageless in its reach into the past.

We have never approved a classification that aids persons perceived as members of relatively victimized groups at the expense of other innocent individuals in the absence of judi­cial, legislative, or administrative findings of constitutional or statutory violations. See, e. g., Teamsters v. United States, 431 U. S. 324, 367-376 (1977); United Jewish Organizations, 430 U. S., at 155-156; South Carolina v. Katzenbach, 383 U. S. 301, 308 (1966). After such findings have been made, the governmental interest in preferring members of the injured groups at the expense of others is substantial, since the legal rights of the victims must be vindicated. In such a case, the extent of the injury and the consequent remedy will have been judicially, legislatively, or administratively defined. Also, the remedial action usually remains subject to continuing over­sight to assure that it will work the least harm possible to other innocent persons competing for the benefit. Without such findings of constitutional or statutory violations,44 it cannot be said that the government has any greater interest in helping one individual than in refraining from harming another. Thus, the government has no compelling justification for inflicting such harm.

Petitioner does not purport to have made, and is in no position to make, such findings. Its broad mission is educa­tion, not the formulation of any legislative policy or the adjudication of particular claims of illegality. For reasons similar to those stated in Part III of this opinion, isolated segments of our vast governmental structures are not com­petent to make those decisions, at least in the absence of legislative mandates and legislatively determined criteria.45 Cf. Hampton v. Mow Sun Wong, 426 U. S. 88 (1976); n. 41, supra. Before relying upon these sorts of findings in estab­lishing a racial classification, a governmental body must have the authority and capability to establish, in the record, that the classification is responsive to identified discrimination. See, e. g., Califano v. Webster, 430 U. S., at 316-321; Califano v. Goldfarb, 430 U. S., at 212-217. Lacking this capability, petitioner has not carried its burden of justification on this issue.

Hence, the purpose of helping certain groups whom the faculty of the Davis Medical School perceived as victims of “societal discrimination” does not justify a classification that imposes disadvantages upon persons like respondent, who bear no responsibility for whatever harm the beneficiaries of the special admissions program are thought to have suffered. To hold otherwise would be to convert a remedy heretofore reserved for violations of legal rights into a privilege that all institutions throughout the Nation could grant at their pleas­ure to whatever groups are perceived as victims of societal discrimination. That is a step we have never approved. Cf. Pasadena City Board of Education v. Spangler, 427 U. S. 424 (1976).

C

Petitioner identifies, as another purpose of its program, improving the delivery of health-care services to communities currently underserved. It may be assumed that in some situa­tions a State’s interest in facilitating the health care of its citizens is sufficiently compelling to support the use of a suspect classification. But there is virtually no evidence in the record indicating that petitioner’s special admissions program is either needed or geared to promote that goal.46 The court below addressed this failure of proof:

“The University concedes it cannot assure that minority doctors who entered under the program, all of whom expressed an ‘interest’ in practicing in a disadvantaged community, will actually do so. It may be correct to assume that some of them will carry out this intention, and that it is more likely they will practice in minority communities than the average white doctor. (See Sanda­low, Racial Preferences in Higher Education: Political Responsibility and the Judicial Role (1975) 42 U. Chi. L. Rev. 653, 688.) Nevertheless, there are more precise and reliable ways to identify applicants who are genuinely interested in the medical problems of minorities than by race. An applicant of whatever race who has demon­strated his concern for disadvantaged minorities in the past and who declares that practice in such a community is his primary professional goal would be more likely to contribute to alleviation of the medical shortage than one who is chosen entirely on the basis of race and disad­vantage. In short, there is no empirical data to demon­strate that any one race is more selflessly socially oriented or by contrast that another is more selfishly acquisitive.” 18 Cal. 3d, at 56, 553 P. 2d, at 1167.

Petitioner simply has not carried its burden of demonstrating that it must prefer members of particular ethnic groups over all other individuals in order to promote better health-care delivery to deprived citizens. Indeed, petitioner has not shown that its preferential classification is likely to have any significant effect on the problem.47

D

The fourth goal asserted by petitioner is the attainment of a diverse student body. This clearly is a constitutionally per­missible goal for an institution of higher education. Academic freedom, though not a specifically enumerated constitutional right, long has been viewed as a special concern of the First Amendment. The freedom of a university to make its own judgments as to education includes the selection of its student body. Mr. Justice Frankfurter summarized the “four essen­tial freedoms” that constitute academic freedom:

“ ‘It is the business of a university to provide that atmosphere which is most conducive to speculation, exper­iment and creation. It is an atmosphere in which there prevail “the four essential freedoms” of a university — to determine for itself on academic grounds who may teach, what may be taught, how it shall be taught, and who may be admitted to study.’ ” Sweezy v. New Hampshire, 354 U. S. 234, 263 (1957) (concurring in result).

Our national commitment to the safeguarding of these freedoms within university communities was emphasized in Keyishian v. Board of Regents, 385 U. S. 589, 603 (1967) :

“Our Nation is deeply committed to safeguarding aca­demic freedom which is of transcendent value to all of us and not merely to the teachers concerned. That freedom is therefore a special concern of the First Amendment.... The Nation’s future depends upon leaders trained through wide exposure to that robust exchange of ideas which discovers truth ‘out of a multitude of tongues, [rather] than through any kind of authoritative selection.’ United States v. Associated Press, 52 F. Supp. 362, 372.”

The atmosphere of “speculation, experiment and creation” — so essential to the quality of higher education — is widely believed to be promoted by a diverse student body.48 As the Court noted in Keyishian, it is not too much to say that the “nation’s future depends upon leaders trained through wide exposure” to the ideas and mores of students as diverse as this Nation of many peoples.

Thus, in arguing that its universities must be accorded the right to select those students who will contribute the most to the “robust exchange of ideas,” petitioner invokes a counter­vailing constitutional interest, that of the First Amendment. In this light, petitioner must be viewed as seeking to achieve a goal that is of paramount importance in the fulfillment of its mission.

It may be argued that there is greater force to these views at the undergraduate level than in a medical school where the training is centered primarily on professional competency. But even at the graduate level, our tradition and experience lend support to the view that the contribution of diversity is substantial. In Sweatt v. Painter, 339 U. S., at 634, the Court made a similar point with specific reference to legal education:

“The law school, the proving ground for legal learning and practice, cannot be effective in isolation from the individuals and institutions with which the law interacts. Few students and no one who has practiced law would choose to study in an academic vacuum, removed from the interplay of ideas and the exchange of views with which the law is concerned.”

Physicians serve a heterogeneous population. An otherwise qualified medical student with a particular background— whether it be ethnic, geographic, culturally advantaged or disadvantaged — may bring to a professional school of medi­cine experiences, outlooks, and ideas that enrich the training of its student body and better equip its graduates to render with understanding their vital service to humanity.49

Ethnic diversity, however, is only one element in a range of factors a university properly may consider in-attaining the goal of a heterogeneous student body. Although a university must have wide discretion in making the sensitive judgments as to who should be admitted, constitutional limitations protecting individual rights may not be disregarded. Respondent urges— and the courts below have held — -that petitioner’s dual admis­sions program is a racial classification that impermissibly infringes his rights under the Fourteenth Amendment. As the interest of diversity is compelling in the context of a univer­sity’s admissions program, the question remains whether the program’s racial classification is necessary to promote this interest. In re Griffiths, 413 U. S., at 721-722.

V

A

It may be assumed that the reservation of a specified number of seats in each class for individuals from the preferred ethnic groups would contribute to the attainment of considerable ethnic diversity in the student body. But petitioner’s argu­ment that this is the only effective means of serving the inter­est of diversity is seriously flawed. In a most fundamental sense the argument misconceives the nature of the state interest that would justify consideration of race or ethnic background. It is not an interest in simple ethnic diversity, in which- a specified percentage of the student body is in effect guaranteed to be members of selected ethnic groups, with the remaining percentage an undifferentiated aggregation of stu­dents. The diversity that furthers a compelling state interest encompasses a far broader array of qualifications and charac­teristics of which racial or ethnic origin is but a single though important element. Petitioner’s special admissions program, focused solely on ethnic diversity, would hinder rather than further attainment of genuine diversity.50

Nor would the state interest in genuine diversity be served by expanding petitioner’s two-track system into a multitrack program with a prescribed number of seats set aside for each identifiable category of applicants. Indeed, it is inconceivable that a university would thus pursue the logic of petitioner’s two-track program to the illogical end of insulating each category of applicants with certain desired qualifications from competition with all other applicants.

The experience of other university admissions programs, which take race into account in achieving the educational diversity valued by the First Amendment, demonstrates that the assignment of a fixed number of places to a minority group is not a necessary means toward that end. An illuminating example is found in the Harvard College program:

“In recent years Harvard College has expanded the con­cept of diversity to include students from disadvantaged economic, racial and ethnic groups. Harvard College now recruits not only Californians or Louisianans but also blacks and Chicanos and other minority students. ...

“In practice, this new definition of diversity has meant that race has been a factor in some admission decisions. When the Committee on Admissions reviews the large middle group of applicants who are 'admissible’ and deemed capable of doing good work in their courses, the race of an applicant may tip the balance in his favor just as geographic origin or a life spent on a farm may tip the balance in other candidates’ cases. A farm boy from Idaho can bring something to Harvard College that a Bostonian cannot offer. Similarly, a black student can usually bring something that a white person cannot offer. ... [See Appendix hereto.]

“In Harvard College admissions the Committee has not set target-quotas for the number of blacks, or of musicians, football players, physicists or Californians to be admitted in a given year. . . . But that awareness [of the neces­sity of including more than a token number of black students] does not mean that the Committee sets a minimum number of blacks or of people from west of the Mississippi who are to be admitted. It means only that in choosing among thousands of applicants who are not only 'admissible’ academically but have other strong qualities, the Committee, with a number of criteria in mind, pays some attention to distribution among many types and categories of students.” App. to Brief for Columbia University, Harvard University, Stanford Uni­versity, and the University of Pennsylvania, as Amici Curiae 2-3.

In such an admissions program,51 race or ethnic background may be deemed a “plus” in a particular applicant’s file, yet it does not insulate the individual from comparison with all other candidates for thé available seats. The file of a par­ticular black applicant may be examined for his potential contribution to diversity without the factor of race being decisive when compared, for example, with that of an applicant identified as an Italian-American if the latter is thought to exhibit qualities more likely to promote beneficial educational pluralism. Such qualities could include exceptional personal talents, unique work or service experience, leadership potential, maturity, demonstrated compassion, a history of overcoming disadvantage, ability to communicate with the poor, or other qualifications deemed important. In short, an admissions program operated in this way is flexible enough to consider all pertinent elements of diversity in light of the particular qualifications of each applicant, and to place them on the same footing for consideration, although not necessarily according them the same weight. Indeed, the weight attributed to a particular quality may vary from year to year depending upon the “mix” both of the student body and the applicants for the incoming class.

This kind of program treats each applicant as an individual in the admissions process. The applicant who loses out on the last available seat to another candidate receiving a “plus” on the basis of ethnic background will not have been fore­closed from all consideration for that seat simply because he was not the right color or had the wrong surname. It would mean only that his combined qualifications, which may have included similar nonobjective factors, did not outweigh those of the other applicant. His qualifications would have been weighed fairly and competitively, and he would have no basis to complain of unequal treatment under the Fourteenth Amendment.52

It has been suggested that an admissions program which considers race only as one factor is simply a subtle and more sophisticated — but no less effective — means of according racial preference than the Davis program. A facial intent to dis­criminate, however, is evident in petitioner’s preference pro­gram and not denied in this case. No such facial infirmity exists in an admissions program where race or ethnic back­ground is simply one element — to be weighed fairly against other elements — in the selection process. “A boundary line,” as Mr. Justice Frankfurter remarked in another connection, “is none the worse for being narrow.” McLeod v. Dilworth, 322 U. S. 327, 329 (1944). And a court would not assume that a university, professing to employ a facially nondiscriminatory admissions policy, would operate it as a cover for the func­tional equivalent of a quota system. In short, good faith would be presumed in the absence of a showing to the con­trary in the manner permitted by our cases. See, e. g., Arling­ton Heights v. Metropolitan Housing Dev. Corp., 429 U. S. 252 (1977); Washington v. Davis, 426 U. S. 229 (1976); Swain v. Alabama, 380 U. S. 202 (1965).53

B

In summary, it is evident that the Davis special admissions program involves the use of an explicit racial classification never before countenanced by this Court. It tells applicants who are not Negro, Asian, or Chicano that they are totally excluded from a specific percentage of the seats in an entering class. No matter how strong their qualifications, quantitative and extracurricular, including their own potential for contribu­tion to educational diversity, they are never afforded the chance to compete with applicants from the preferred groups for the special admissions seats. At the same time, the preferred applicants have the opportunity to compete for every seat in the class.

The fatal flaw in petitioner’s preferential program is its disregard of individual rights as guaranteed by the Fourteenth Amendment. Shelley v. Kraemer, 334 U. S., at 22. Such rights are not absolute. But when a State’s distribution of benefits or imposition of burdens hinges on ancestry or the color of a person’s skin, that individual is entitled to a dem­onstration that the challenged classification is necessary to promote a substantial state interest. Petitioner has failed to carry this burden. For this reason, that portion of the Cali­fornia court’s judgment holding petitioner’s special admis­sions program invalid under the Fourteenth Amendment must be affirmed.

C

In enjoining petitioner from ever considering the race of any applicant, however, the courts below failed to recognize that the State has a substantial interest that legitimately may be served by a properly devised admissions program involving the competitive consideration of race and ethnic origin. For this reason, so much of the California court’s judgment as enjoins petitioner from any consideration of the race of any applicant must be reversed.

VI

With respect to respondent’s entitlement to an injunction directing his admission to the Medical School, petitioner has conceded that it could not carry its burden of proving that, but for the existence of its unlawful special admissions pro­gram, respondent still would not have been admitted. Hence, respondent is entitled to the injunction, and that portion of the judgment must be affirmed.54

APPENDIX TO OPINION OF POWELL, J.

Harvard College Admissions Program55

For the past 30 years Harvard College has received each year applications for admission that greatly exceed the number of places in the freshman class. The number of applicants who are deemed to be not “qualified” is comparatively small. The vast majority of applicants demonstrate through test scores, high school records and teachers’ recommendations that they have the academic ability to do adequate work at Harvard, and perhaps to do it with distinction. Faced with the dilemma of choosing among a large number of “qualified” candidates, the Committee on Admissions could use the single criterion of scholarly excellence and attempt to determine who among the candidates were likely to perform best academically. But for the past 30 years the Committee on Admissions has never adopted this approach. The belief has been that if scholarly excellence were the sole or even predominant cri­terion, Harvard College would lose a great deal of its vitality and intellectual excellence and that the quality of the educa­tional experience offered to all students would suffer. Final Report of W. J. Bender, Chairman of the Admission and Scholarship Committee and Dean of Admissions and Financial Aid, pp. 20 et seq. (Cambridge, 1960). Consequently, after selecting those students whose intellectual potential will seem extraordinary to the faculty — perhaps 150 or so out of an entering class of over 1,100 — the Committee seeks—

variety in making its choices. This has seemed impor­tant ... in part because it adds a critical ingredient to the effectiveness of the educational experience [in Harvard College]. . . . The effectiveness of our students’ educar tional experience has seemed to the Committee to he affected as importantly by a wide variety of interests, talents, backgrounds and career goals as it is by a fine faculty and our libraries, laboratories and housing arrange­ments. (Dean of Admissions Fred L. Glimp, Final Report to the Faculty of Arts and Sciences, 65 Official Register of Harvard University No. 25, 93, 104-105 (1968) (emphasis supplied).

The belief that diversity adds an essential ingredient to the educational process has long been a tenet of Harvard College admissions. Fifteen or twenty years ago, however, diversity meant students from California, New York, and Massachu­setts; city dwellers and farm boys; violinists, painters and football players; biologists, historians and classicists; poten­tial stockbrokers, academics and politicians. The result was that very few ethnic or racial minorities attended Harvard College. In recent years Harvard College has expanded the concept of diversity to include students from disadvantaged economic, racial and ethnic groups. Harvard College now recruits not only Californians or Louisianans but also blacks and Chicanos and other minority students. Contemporary conditions in the United States mean that if Harvard College is to continue to offer a first-rate education to its students, minority representation in the undergraduate body cannot be ignored by the Committee on Admissions.

In practice, this new definition of diversity has meant that race has been a factor in some admission decisions. When the Committee on Admissions reviews the large middle group of applicants who are “admissible” and deemed capable of doing good work in their courses, the race of an applicant may tip the balance in his favor just as geographic origin or a life spent on a farm may tip the balance in other candidates’ cases. A farm boy from Idaho can bring something to Harvard Col­lege that a Bostonian cannot offer. Similarly, a black student can usually bring something that a white person cannot offer. The quality of the educational experience of all the students in Harvard College depends in part on these differences in the background and outlook that students bring with them.

In Harvard College admissions the Committee has not set target-quotas for the number of blacks, or of musicians, foot­ball players, physicists or Californians to be admitted in a given year. At the same time the Committee is aware that if Harvard College is to provide a truly heterogen[e]ous environ­ment that reflects the rich diversity of the United States, it cannot be provided without some attention to numbers. It would not make sense, for example, to have 10 or 20 students out of 1,100 whose homes are west of the Mississippi. Com­parably, 10 or 20 black students could not begin to bring to their classmates and to each other the variety of points of view, backgrounds and experiences of blacks in the United States. Their small numbers might also create a sense of isolation among the black students themselves and thus make it more difficult for them to develop and achieve their poten­tial. Consequently, when making its decisions, the Committee on Admissions is aware that there is some relationship between numbers and .achieving the benefits to be derived from a diverse student body, and between numbers and providing a reasonable environment for those students admitted. But that awareness does not mean that the Committee sets a minimum number of blacks or of people from west of the Mississippi who are to be admitted. It means only that in choosing among thousands of applicants who are not only “admissible” academically but have other strong qualities, the Committee, with a number of criteria in mind, pays some attention to distribution among many types and categories of students.

The further refinements sometimes required help to illustrate the kind of significance attached to race. The Admissions Committee, with only a few places left to fill, might find itself forced to choose between A, the child of a successful black physician in an academic community with promise of superior academic performance, and B, a black who grew up in an inner-city ghetto of semi-literate parents whose academic achievement was lower but who had demonstrated energy and leadership as well as an apparently-abiding interest in black power. If a good number of black students much like A but few like B had already been admitted, the Committee might prefer B; and vice versa. If C, a white student with extraor­dinary artistic talent, were also seeking one of the remaining places, his unique quality might give him an edge over both A and B. Thus, the critical criteria are often individual qual­ities or experience not dependent upon race but sometimes associated with it.

The Court today, in reversing in part the judgment of the Supreme Court of California, affirms the constitutional power of Federal and State Governments to act affirmatively to achieve equal opportunity for all. The difficulty of the issue presented- — -whether government may use race-conscious pro­grams to redress the continuing effects of past discrimination— and the mature consideration which each of our Brethren has brought to it have resulted in many opinions, no single one speaking for the Court. But this should not and must not mask the central meaning of today’s opinions: Government may take race into account when it acts not to demean or insult any racial group, but to remedy disadvantages cast on minorities by past racial prejudice, at least when appropriate findings have been made by judicial, legislative, or adminis­trative bodies with competence to act in this area.

The Chief Justice and our Brothers Stewart, Rehnquist, and Stevens, have concluded that Title VI of the Civil Rights Act of 1964, 78 Stat. 252, as amended, 42 U. S. C. § 2000d et seq., prohibits programs such as that at the Davis Medical School. On this statutory theory alone, they would hold that respondent Allan Bakke’s rights have been violated and that he must, therefore, be admitted to the Medical School. Our Brother Powell, reaching the Constitution, concludes that, although race may be taken into account in university ad­missions, the particular special admissions program used by petitioner, which resulted in the exclusion of respondent Bakke, was not shown to be necessary to achieve petitioner’s stated goals. Accordingly, these Members of the Court form a majority of five affirming the judgment of the Supreme Court of California insofar as it holds that respondent Bakke “is entitled to an order that he be admitted to the University.” 18 Cal. 3d 34, 64, 553 P. 2d 1152,1172 (1976).

We agree with Mr. Justice Powell that, as applied to the case before us, Title VI goes no further in prohibiting the use of race than the Equal Protection Clause of the Fourteenth Amendment itself. We also agree that the effect of the California Supreme Court’s affirmance of the judgment of the Superior Court of California would be to prohibit the Univer­sity from establishing in the future affirmative-action programs that take race into account. See ante, at 271 n. Since we conclude that the affirmative admissions program at the Davis Medical School is constitutional, we would reverse the judg­ment below in all respects. Mr. Justice Powell agrees that some uses of -race in university admissions are permissible and, therefore, he joins with us to make five votes reversing the judgment below insofar as it prohibits the University from establishing race-conscious programs in the future.1

I

Our Nation was founded on the principle that “all Men are created equal.” Yet candor requires acknowledgment that the Framers of our Constitution, to forge the 13 Colonies into one Nation, openly compromised this principle of equality with its antithesis: slavery. The consequences of this com­promise are well known and have aptly been called our “American Dilemma.” Still, it is well to recount how recent the time has been, if it has yet come, when the promise of our principles has flowered into the actuality of equal opportunity for all regardless of race or color.

The Fourteenth Amendment, the embodiment in the Con­stitution of our abiding belief in human equality, has been the law of our land for only slightly more than half its 200 years. And for half of that half, the Equal Protection Clause of the Amendment was largely moribund so that, as late as 1927, Mr. Justice Holmes could sum up the importance of that Clause by remarking that it was the “last resort of con­stitutional arguments.” Buck v. Bell, 274 U. S. 200, 208 (1927). Worse than desuetude, the Clause was early turned against those whom it was intended to set free, condemning them to a “separate but equal” 2 status before the law, a status always separate but seldom equal. Not until 1954 — only 24 years ago — was this odious doctrine interred by our decision in Brown v. Board of Education, 347 U. S. 483 (Brown I), and its progeny,3 which proclaimed that separate schools and public facilities of all sorts were inherently unequal and forbidden under our Constitution. Even then inequality was not eliminated with “all deliberate speed.” Brown v. Board of Education, 349 U. S. 294, 301 (1955). In 1968 4 and again in 1971,5 for example, we were forced to remind school boards of their obligation to eliminate racial discrimination root and branch. And a glance at our docket6 and at dockets of lower courts will show that even today officially sanctioned discrim­ination is not a thing of the past.

Against this background, claims that law must be “color­blind” or that the datum of race is no longer relevant to public policy must be seen as aspiration rather than as description of reality. This is not to denigrate aspiration; for reality rebukes us that race has too often been used by those who would stigmatize and oppress minorities. Yet we cannot — and, as we shall demonstrate, need not under our Constitution or Title VI, which merely extends the constraints of the Fourteenth^ — • Amendment to private parties who receive federal funds — let color blindness become myopia which masks the reality that many “created equal” have been treated within our lifetimes as inferior both by the law and by their fellow citizens.

II

The threshold question we must decide is whether Title VI of the Civil Rights Act of 1964 bars recipients of federal funds from giving preferential consideration to disadvantaged mem­bers of racial minorities as part of a program designed to enable such individuals to surmount the obstacles imposed by racial discrimination.7 We join Parts I and V-C of our Brother Powell’s opinion and three of us agree with his conclusion in Part II that this case does not require us to resolve the ques­tion whether there is a private right of action under Title VI.8

In our view, Title VI prohibits only those uses of racial criteria that would violate the Fourteenth Amendment if employed by a State or its agencies; it does not bar the preferential treatment of racial minorities as a means of remedying past societal discrimination to the extent that such action is consistent with the Fourteenth Amendment. The legislative history of Title VI, administrative regulations inter­preting the statute, subsequent congressional and executive action, and the prior decisions of this Court compel this conclusion. None of these sources lends support to the prop­osition that Congress intended to bar all race-conscious efforts to extend the benefits of federally financed programs to minorities who have been historically excluded from the full benefits of American life.

A

The history of Title VI — from President Kennedy’s request that Congress grant executive departments and agencies au­thority to cut off federal funds to programs that discrimi­nate against Negroes through final enactment of legislation incorporating his proposals — reveals one fixed purpose: to give the Executive Branch of Government clear authority to terminate federal funding of private programs that use race as a means of disadvantaging minorities in a manner that would be prohibited by the Constitution if engaged in by government.

This purpose was first expressed in President Kennedy’s June 19, 1963, message to Congress proposing the legislation that subsequently became the Civil Rights Act of 1964.9 Representative Celler, the Chairman of the House Judiciary Committee, and the floor manager of the legislation in the House, introduced Title VI in words unequivocally express­ing the intent to provide the Federal Government with the means of assuring that its funds were not used to subsidize racial discrimination inconsistent with the standards imposed by the Fourteenth and Fifth Amendments upon state and federal action.

“The bill would offer assurance that hospitals financed by Federal money would not deny adequate care to Negroes. It would prevent abuse of food distribution programs whereby Negroes have been known to be denied food surplus supplies when white persons were given such food. It would assure Negroes the benefits now accorded only white students in programs of high[er] education financed by Federal funds. It would, in short, assure the existing right to equal treatment in the enjoyment of Federal funds. It would not destroy any rights of private property or freedom of association.” 110 Cong. Rec. 1519 (1964).

It was clear to Representative Celler that Title VI, apart from the fact that it reached all federally funded activities even in the absence of sufficient state or federal control to invoke the Fourteenth or Fifth Amendments, was not placing new sub­stantive limitations upon the use of racial criteria, but rather was designed to extend to such activities “the existing right to equal treatment” enjoyed by Negroes under those Amend­ments, and he later specifically defined the purpose of Title VI in this way:

“In general, it seems rather anomalous that the Federal Government should aid and abet discrimination on the basis of race, color, or national origin by granting money and other kinds of financial aid. It seems rather shock­ing, moreover, that while we have on the one hand the 14th amendment, which is supposed to do away with discrimination since it provides for equal protection of the laws, on the other hand, we have the Federal Government aiding and abetting those who persist in practicing racial discrimination.

“It is for these reasons that we bring forth title VI. The enactment of title VI will serve to override specific provisions of law which contemplate Federal assistance to racially segregated institutions.” Id., at 2467.

Representative Celler also filed a memorandum setting forth the legal basis for the enactment of Title VI which reiterated the theme of his oral remarks: “In exercising its authority to fix the terms on which Federal funds will be disbursed . . . , Congress clearly has power to legislate so as to insure that the Federal Government does not become involved in a violation of the Constitution.” Id., at 1528.

Other sponsors of the legislation agreed with Representative Celler that the function of Title VI was to end the Federal Government’s complicity in conduct, particularly the segre­gation or exclusion of Negroes, inconsistent with the stand­ards to be found in the antidiscrimination provisions of the Constitution. Representative Lindsay, also a member of the Judiciary Committee, candidly acknowledged, in the course of explaining why Title VI was necessary, that it did not create any new standard of equal treatment beyond that contained in the Constitution:

“Both the Federal Government and the States are under constitutional mandates not to discriminate. Many have raised the question as to whether legislation is required at all. Does not the Executive already have the power in the distribution of Federal funds to apply those conditions which will enable the Federal Government itself to live up to the mandate of the Constitution and to require States and local government entities to live up to the Constitution, most especially the 5th and 14th amend­ments?” Id., at 2467.

He then explained that legislation was needed to authorize the termination of funding by the Executive Branch because exist­ing legislation seemed to contemplate the expenditure of funds to support racially segregated institutions. Ibid. The views of Representatives Celler and Lindsay concerning the purpose and function of Title VI were shared by other sponsors and proponents of the legislation in the House.10 Nowhere is there any suggestion that Title VI was intended to terminate federal funding for any reason other than consideration of race or national origin by the recipient institution in a manner incon­sistent with the standards incorporated in the Constitution.

The Senate’s consideration of Title VI reveals an identical understanding concerning the purpose and scope of the legisla­tion. Senator Humphrey, the Senate floor manager, opened the Senate debate with a section-by-section analysis of the Civil Rights Act in which he succinctly stated the purpose of Title VI:

“The purpose of title VI is to make sure that funds of the United States are not used to support racial discrimi­nation. In many instances the practices of segregation or discrimination, which title VI seeks to end, are unconsti­tutional. This is clearly so wherever Federal funds go to a State agency which engages in racial discrimination. It may also be so where Federal funds go to support private, segregated institutions, under the decision in Simkims v. Moses H. Cone Memorial Hospital, 323 F. 2d 959 (C. A. 4, 1963), [cert. denied, 376 U. S. 938 (1964)]. In all cases, such discrimination is contrary to national policy, and to the moral sense of the Nation. Thus, title VI is simply designed to insure that Federal funds are spent in accord­ance with the Constitution and the moral sense of the Nation.” Id., at 6544.

Senator Humphrey, in words echoing statements in the House, explained that legislation was needed to accomplish this ob­jective because it was necessary to eliminate uncertainty con­cerning the power of federal agencies to terminate financial assistance to programs engaging in racial discrimination in the face of various federal statutes which appeared to author­ize grants to racially segregated institutions. Ibid. Although Senator Humphrey realized that Title VI reached conduct which, because of insufficient governmental action, might be beyond the reach of the Constitution, it was clear to him that the substantive standard imposed by the statute was that of the Fifth and Fourteenth Amendments.

Senate supporters of Title VI repeatedly expressed agree­ment with Senator Humphrey’s description of the legislation as providing the explicit authority and obligation to apply the standards of the Constitution to all recipients of federal funds. Senator Bibicoff described the limited function of Title VI:

“Basically, there is a constitutional restriction against .discrimination in the use of Federal funds; and title VI simply spells out the procedure to be used in enforcing that restriction.” Id., at 13333.

Other strong proponents of the legislation in the Senate repeatedly expressed their intent to assure that federal funds would only be spent in accordance with constitutional stand­ards. See remarks of Senator Pastore, id., at 7057, 7062; Senator Clark, id., at 5243; Senator Allott, id., at 12675, 12677.11

Respondent’s contention that Congress intended Title VI to bar affirmative-action programs designed to enable minorities disadvantaged by the effects of discrimination to participate in federally financed programs is also refuted by an examina­tion of the type of conduct which Congress thought it was prohibiting by means of Title VI. The debates reveal that the legislation was motivated primarily by a desire to eradi­cate a very specific evil: federal financial support of programs which disadvantaged Negroes by excluding them from par­ticipation or providing them with separate facilities. Again and again supporters of Title VI emphasized that the purpose of the statute was to end segregation in federally funded ac­tivities and to end other discriminatory uses of race disad­vantaging Negroes. Senator Humphrey set the theme in his speech presenting Title VI to the Senate:

“Large sums of money are contributed by the United States each year for the construction, operation, and maintenance of segregated schools.

“Similarly, under the Hill-Burton Act, Federal grants are made to hospitals which admit whites only or Negroes only. . . .

“In higher education also, a substantial part of the Federal grants to colleges, medical schools and so forth, in the South is still going to segregated institutions.

“Nor is this all. In several States, agricultural exten­sion services, supported by Federal funds, maintain racially segregated offices for Negroes and whites. . . .

“ . . . Vocational training courses, supported with Fed­eral funds, are given in segregated schools and institutions and often limit Negroes to training in less skilled occupa­tions. In particular localities it is reported that Negroes have been cut off from relief rolls, or denied surplus agricultural commodities, or otherwise deprived of the benefit of federally assisted programs, in retaliation for their participation in voter registration drives, sit-in dem­onstrations and the like.” Id., at 6543-6544.

See also the remarks of Senator Pastore {id., at 7054-7055); Senator Ribicoff {id., at 7064-7065); Senator Clark {id., at 5243, 9086); Senator Javits {id., at 6050, 7102).12

The conclusion to be drawn from the foregoing is clear. Congress recognized that Negroes, in some cases with congres­sional acquiescence, were being discriminated against in the administration of programs and denied the full benefits of activities receiving federal financial support. It was aware that there were many federally funded programs and institu­tions which discriminated against minorities in a manner inconsistent with the standards of the Fifth and Fourteenth Amendments but whose activities might not involve sufficient state or federal action so as to be in violation of these Amend­ments. Moreover, Congress believed that it was questionable whether the Executive Branch possessed legal authority to terminate the funding of activities on the ground that they discriminated racially against Negroes in a manner violative of the standards contained in the Fourteenth and Fifth Amendments. Congress’ solution was to end the Govern­ment’s complicity in constitutionally forbidden racial dis­crimination by providing the Executive Branch with the au­thority and the obligation to terminate its financial support of any activity which employed racial criteria in a manner condemned by the Constitution.

Of course, it might be argued that the Congress which enacted Title VI understood the Constitution to require strict racial neutrality or color blindness, and then enshrined that concept as a rule of statutory law. Later interpretation and clarification of the Constitution to permit remedial use of race would then not dislodge Title YI’s prohibition of race-­conscious action. But there are three compelling reasons to reject such a hypothesis.

First, no decision of this Court has ever adopted the prop­osition that the Constitution must be colorblind. See infra, at 355-356.

Second, Oven if it could be argued in 1964 that the Consti­tution might conceivably require color blindness, Congress surely would not have chosen to codify such a view unless the Constitution clearly required it. The legislative history of Title VI, as well as the statute itself, reveals a desire to induce voluntary compliance with the requirement of nondiscrimina­tory treatment.13 See § 602 of the Act, 42 U. S. C. § 2000d-l (no funds shall be terminated unless and until it has been “determined that compliance cannot be secured by voluntary means”); H. R. Rep. No. 914, 88th Cong., 1st Sess., pt. 1, p. 25 (1963); 110 Cong Rec. 13700 (1964) (Sen. Pasture); id., at 6546 (Sen. Humphrey). It is inconceivable that Congress intended to encourage voluntary efforts to eliminate the evil of racial discrimination while at the same time forbidding the voluntary use of race-conscious remedies to cure acknowledged or obvious statutory violations. Yet a reading of Title VI as prohibiting all action predicated upon race which adversely affects any individual would require recipients guilty of dis­crimination to await the imposition of such remedies by the Executive Branch. Indeed, such an interpretation of Title VI would prevent recipients of federal funds from taking race into account even when necessary to bring their programs into compliance with federal constitutional requirements. This would be a remarkable reading of a statute designed to eliminate constitutional violations, especially in light of judi­cial decisions holding that under certain circumstances the remedial use of racial criteria is not only permissible but is constitutionally required to eradicate constitutional viola­tions. For example, in Board of Education v. Swann, 402 U. S. 43 (1971), the Court held that a statute forbidding the assignment of students on the basis of race was uncon­stitutional because it would hinder the implementation of remedies necessary to accomplish the desegregation of a school system: “Just as the race of students must be con­sidered in determining whether a constitutional violation has occurred, so also must race be considered in formulating a remedy,” Id., at 46, Surely Congress did not intend to prohibit the use of racial criteria when constitutionally re­quired or to terminate the funding of any entity which imple­mented such a remedy. It clearly desired to encourage all remedies, including the use of race, necessary to eliminate racial discrimination in violation of the Constitution rather than requiring the recipient to await a judicial adjudication of unconstitutionality and the judicial imposition of a racially oriented remedy.

Third, the legislative history shows that Congress specifi­cally eschewed any static definition of discrimination in favor of broad language that could be shaped by experience, administrative necessity, and evolving judicial doctrine. Although it is clear from the debates that the supporters of Title VI intended to ban uses of race prohibited by the Constitution and, more specifically, the maintenance of segre­gated facilities, they never precisely defined the term “discrim­ination,” or what constituted an exclusion from participation or a denial of benefits on the ground of race. This failure was not lost upon its opponents. Senator Ervin complained:

“The word 'discrimination/ as used in this reference, has no contextual explanation whatever, other than the provision that the discrimination 'is to be against’ individ­uals participating in or benefiting from federally assisted programs and activities on the ground specified. With this context, the discrimination condemned by this refer­ence occurs only when an individual is treated unequally or unfairly because of his race, color, religion, or national origin. What constitutes unequal or unfair treatment? Section 601 and section 602 of title VI do not say. They leave the determination of that question to the executive department or agencies administering each program, with­out any guideline whatever to point out what is the con­gressional intent.” 110 Cong. Rec. 5612 (1964).

See also remarks of Representative Abernethy {id., at 1619); Representative Dowdy {id., at 1632); Senator Talmadge {id., at 5251); Senator Sparkman {id., at 6052). Despite these criticisms, the legislation’s supporters refused to include in the statute or even provide in debate a more explicit definition of what Title VI prohibited.

The explanation for this failure is clear. Specific definitions were undesirable, in the views of the legislation’s principal backers, because Title Vi’s standard was that of the Constitu­tion and one that could and should be administratively and judicially applied. See remarks of Senator Humphrey {id., at 5253, 6553); Senator Ribicoff {id., at 7057, 13333); Senator Pastore {id., at 7057); Senator Javits {id., at 5606-5607, 6050).14 Indeed, there was a strong emphasis throughout Congress’ consideration of Title VI on providing the Executive Branch with considerable flexibility in interpreting and apply­ing the prohibition against racial discrimination. Attorney General Robert Kennedy testified that regulations had not been written into the legislation itself because the rules and regulations defining discrimination might differ from one pro­gram to another so that the term would assume different meanings in different contexts.15 This determination to pre­serve flexibility in the administration of Title VI was shared by the legislation’s supporters. When Senator Johnston offered an amendment that would have expressly authorized federal grantees to take race into account in placing children in adoptive and foster homes, Senator Pastore opposed the amend­ment, which was ultimately defeated by a 56-29 vote, on the ground that federal administrators could be trusted to act reasonably and that there was no danger that they would prohibit the use of racial criteria under such circumstances. Id., at 13695.

Congress’ resolve not to incorporate a static definition of discrimination into Title VI is not surprising. In 1963 and 1964, when Title VI was drafted and debated, the courts had only recently applied the Equal Protection Clause to strike down public racial discrimination in America, and the scope of that Clause’s nondiscrimination principle was in a state of flux and rapid evolution. Many questions, such as whether the Fourteenth Amendment barred only de jure discrimination or in at least some circumstances reached de facto discrimina­tion, had not yet received an authoritative judicial resolution. The congressional debate reflects an awareness of the evolu­tionary change that constitutional law in the area of racial discrimination was undergoing in 1964.16

In sum, Congress’ equating of Title Vi’s prohibition with the commands of the Fifth and Fourteenth Amendments, its refusal precisely to define that racial discrimination which it intended to prohibit, and its expectation that the statute would be administered in a flexible manner, compel the con­clusion that Congress intended the meaning of the statute’s prohibition to evolve with the interpretation of the commands of the Constitution. Thus, any claim that the use of racial criteria is barred by the plain language of the statute must fail in light of the remedial purpose of Title VI and its legislative history. The cryptic nature of the language em­ployed in Title VI merely reflects Congress’ concern with the then-prevalent use of racial standards as a means of excluding or disadvantaging Negroes and its determination to prohibit absolutely such discrimination. We have recently held that “ ''[w]hen aid to construction of the meaning of words, as used in the statute, is available, there certainly can be no “rule of law” which forbids its use, however clear the words may appear on “superficial examination.” ’ ” Train v. Colorado Public Interest Research Group, 426 U. S. 1, 10 (1976), quoting United States v. American Trucking Assns., 310 U. S. 534, 543-544 (1940). This is especially so when, as is the case here, the literal application of what is believed to be the plain language of the statute, assuming that it is so plain, would lead to results in direct conflict with Congress’ unequivocally expressed legislative purpose.17

B

Section 602 of Title VI, 42 U. S. C. § 2000d-l, instructs federal agencies to promulgate regulations interpreting Title YI. These regulations, which, under the terms of the statute, require Presidential approval, are entitled to considerable deference in construing Title VI. See, e. g., Lau v. Nichols, 414 U. S. 563 (1974); Mourning v. Family Publications Serv­ice, Inc., 411 U. S. 356, 369 (1973); Red Lion Broadcasting Co. v. FCC, 395 U. S. 367, 381 (1969). Consequently, it is most significant that the Department of Health, Education, and Welfare (HEW), which provides much of the federal assistance to institutions of higher education, has adopted regulations requiring affirmative measures designed to enable racial minorities which have been previously discriminated against by a federally funded institution or program to over­come the effects of such actions and authorizing the volun­tary undertaking of affirmative-action programs by federally funded institutions that have not been guilty of prior dis­crimination in order to overcome the effects of conditions which have adversely affected the degree of participation by persons of a particular race.

Title 45 CFR § 80.3 (b) (6) (i) (1977) provides:

“In administering a program regarding which the recipient has previously discriminated against persons on the ground of race, color, or national origin, the recipient must take affirmative action to overcome the effects of prior discrimination.”

Title 45 CFR § 80.5 (i) (1977) elaborates upon this requirement:

“In some situations, even though past discriminatory practices attributable to a recipient or applicant have been abandoned, the consequences of such practices con­tinue to impede the full availability of a benefit. If the efforts required of the applicant or recipient under § 80.6 (d)', to provide information as to the availability of the program or activity and the rights of beneficiaries under this regulation, have failed to overcome these conse­quences, it will become necessary under the requirement stated in (i) of § 80.3 (b) (6) for such applicant or recipient to take additional steps to make the benefits fully available to racial and nationality groups previously subject to discrimination. This action might take the form, for example, of special arrangements for obtaining referrals or making selections which will insure that groups previously subjected to discrimination are ade­quately served.”

These regulations clearly establish that where there is a need to overcome the effects of past racially discriminatory or exclusionary practices engaged in- by a federally funded insti­tution, race-conscious action is not only permitted but required to accomplish the remedial objectives of Title VI.18 Of course, there is no evidence that the Medical School has been guilty of past discrimination and consequently these regulations would not compel it to employ a program of preferential admissions in behalf of racial minorities. It would be- difficult to explain from the language of Title VI, however, much less from its legislative history, why the statute compels race-con­scious remedies where a recipient institution has engaged in past discrimination but prohibits such remedial action where racial minorities, as a result of the effects of past discrimina­tion imposed by entities other than the recipient, are excluded from the benefits of federally funded programs. HEW was fully aware of the incongruous nature of such an interpretation of Title VI.

Title 45 CFR § 80.3 (b)(6)(h) (1977) provides:

“Even in the absence of such prior discrimination, a recipient in administering a program may take affirmative action to overcome the effects of conditions which, resulted in limiting participation by persons of a particular race, color, or national origin.”

An explanatory regulation explicitly states that the affirmative action which § 80.3 (b) (6) (ii) contemplates includes the use of racial preferences:

“Even though an applicant or recipient has never used discriminatory policies, the services and benefits of the program or activity it administers may not in fact be equally available to some racial or nationality groups. In such circumstances, an applicant or recipient may prop­erly give special consideration to race, color, or national origin to make the benefits of its program more widely available to such groups, not then being adequately served. For example, where a university is not ade­quately serving members of a particular racial or nation­ality group, it may establish special recruitment policies to make its program better known and more readily available to such group, and take other steps to provide that group with more adequate service.” 45 CFR § 80.5 (j) (1977).

This interpretation of Title VI is fully consistent with the statute’s emphasis upon voluntary remedial action and reflects the views of an agency19 responsible for achieving its objectives.20

The Court has recognized that the construction of a statute by those charged with its execution is particularly deserving of respect where Congress has directed its attention to the administrative construction and left it unaltered. Cf. Red Lion Broadcasting Co. v. FCC, 395 U. S., at 381; Zemel v. Rusk, 381 U. S. 1, 11-12 (1965). Congress recently took just this kind of action when it considered an amendment to the Departments of Labor and Health, Education, and Wel­fare appropriation bill for 1978, which would have restricted significantly the remedial use of race in programs funded by the appropriation. The amendment, as originally submitted by Representative Ashbrook, provided that “[n]one of the funds appropriated in this Act may be used to initiate, carry out or enforce any program of affirmative action or any other system of quotas or goals in regard to admission policies or employ­ment practices which encourage or require any discrimination on the basis of race, creed, religion, sex or age.” 123 Cong. Rec. 19715 (1977). In support of the measure, Representa­tive Ashbrook argued that the 1964 Civil Rights Act never authorized the imposition of affirmative action and that this was a creation of the bureaucracy. Id., at 19722. He ex­plicitly stated, however, that he favored permitting univer­sities to adopt affirmative-action programs giving consider­ation to racial identity but opposed the imposition of such programs by the Government. Id., at 19715.. His amend­ment was itself amended to reflect this position by only bar­ring the imposition of race-conscious remedies by HEW:

“None of the funds appropriated in this Act may be obligated or expended in connection with the issuance, implementation, or enforcement of any rule, regulation, standard, guideline, recommendation, or order issued by the Secretary of Health, Education, and Welfare which for purposes of compliance with any ratio, quota, or other numerical requirement related to race, creed, color, na­tional, origin, or sex requires any individual or entity to take any action with respect to (1) the hiring or promo­tion policies or practices of such individual or entity, or (2) the admissions policies or practices of such individ­ual or entity.” Id., at 19722.

This amendment was adopted by the House. Ibid. The Senate bill, however, contained no such restriction upon HEW's authority to impose race-conscious remedies and the Conference Committee, upon the urging of the Secretary of HEW, deleted the House provision from the bill.21 More significant for present purposes, however, is the fact that even the proponents of imposing limitations upon HEW’s imple­mentation of Title VI did not challenge the right of federally funded educational institutions voluntarily to extend prefer­ences to racial minorities.

Finally, congressional action subsequent to the passage of Title VI eliminates any possible doubt about Congress’ views concerning the permissibility of racial preferences for the pur­pose of assisting disadvantaged racial minorities. It confirms that Congress did not intend to prohibit and does not now believe that Title VI prohibits the consideration of race as part of a remedy for societal discrimination even where there is no showing that the institution extending the preference has been guilty of past discrimination nor any judicial finding that the particular beneficiaries of the racial preference have been adversely affected by societal discrimination.

Just last year Congress enacted legislation22 explicitly requiring that no grants shall be made “for any local public works project unless the applicant gives satisfactory assurance to the Secretary [of Commerce] that at least 10 per centum of the amount of each grant shall be expended for minority business enterprises.” The statute defines the term “minority business enterprise” as “a business, at least 50 per centum of which is owned by minority group members or, in case of a publicly owned business, at least 51 per centum of the stock of which is owned by minority group members.” The term “minority group members” is defined in explicitly racial terms: “citizens of the United States who are Negroes, Soanish-­speaking, Orientals, Indians, Eskimos, and Aleuts.” Although the statute contains an exemption from this requirement “to the extent that the Secretary determines otherwise,” this escape clause was provided only to deal with the possibility that certain areas of the country might not contain sufficient qualified “minority business enterprises” to permit compliance with the quota provisions of the legislation.23

The legislative history of this race-conscious legislation reveals that it represents a deliberate attempt to deal with the excessive rate of unemployment among minority citizens and to encourage the development of viable minority con­trolled enterprises.24 It was believed that such a “set-aside” was required in order to enable minorities, still “new on the scene” and “relatively small,” to compete with larger and •more established companies which would always be successful in underbidding minority enterprises. 123 Cong. Rec. 5327 (1977) (Rep. Mitchell). What is most significant about the congressional consideration of the measure is that although the use of a racial quota or “set-aside” by a recipient of fed­eral funds would constitute a direct violation of Title VI if that statute were read to prohibit race-conscious action, no mention was made during the debates in either the House or the Senate of even the possibility that the quota provisions for minority contractors might in any way conflict with or modify Title VI. It is inconceivable that such a purported conflict would have escaped congressional attention through an inadvertent failure to recognize the relevance of Title VI. Indeed, the Act of which this affirmative-action provision is a part also contains a provision barring discrimination on the basis of sex which states that this prohibition “will be enforced through agency provisions and rules similar to those already established, with respect to racial and other discrimination under Title VI of the Civil Rights Act of 1964.” 42 U. S. C. § 6709 (1976 ed.). Thus Congress was fully aware of the ap­plicability of Title VI to the funding of public works projects. Under these circumstances, the enactment of the 10% “set-­aside” for minority enterprises reflects a congressional judg­ment that the remedial use of race is permissible under Title VI. We have repeatedly recognized that subsequent legisla­tion reflecting an interpretation of an earlier Act is entitled to great weight in determining the meaning of the earlier stat­ute. Red Lion Broadcasting Co. v. FCC, 395 U. S., at 380-­381; Erlenbaugh v. United States, 409 U. S. 239, 243-244 (1972). See also United States v. Stewart, 311 U. S. 60, 64-­65 (1940).25

C

Prior decisions of this Court also strongly suggest that Title VI does not prohibit the remedial use of race where such action is constitutionally permissible. In Lau v. Nichols, 414 U. S. 563 (1974), the Court held that the failure of the San Francisco school system to provide English-language instruc­tion to students of Chinese ancestry who do not speak English, or to provide them with instruction in Chinese, constituted a violation of Title VI. The Court relied upon an HEW regulation which stipulates that a recipient of federal funds “may not . . . utilize criteria or methods of administration which have the effect of subjecting individuals to discrimina­tion” or have “the effect of defeating or substantially impairing accomplishment of the objectives of the program as respect individuals of a particular race, color, or national origin.” 45 CFR § 80.3 (b) (2) (1977). It interpreted this regulation as requiring San Francisco to extend the same educational benefits to Chinese-speaking students as to English-speaking students, even though there was no finding or allegation that the city’s failure to do so was a result of a purposeful design to dis­criminate on the basis of race.

Lau is significant in two related respects. First, it indicates that in at least some circumstances agencies responsible for the administration of Title VI may require recipients who have not been guilty of any constitutional violations to depart from a policy of color blindness-and to be cognizant of the impact of their actions upon racial minorities. Secondly, Lau clearly requires that institutions receiving federal funds be accorded considerable latitude in voluntarily undertaking race-conscious action designed to remedy the exclusion of significant num­bers of minorities from the benefits of federally funded pro­grams. Although this Court has not yet considered the ques­tion, presumably, by analogy to our decisions construing Title VII, a medical school would not be in violation of Title VI under Lau because of the serious underrepresentation of racial minorities in its student body as long as it could demonstrate that its entrance requirements correlated suffi­ciently with the performance of minority students in medical school and the medical profession.26 It would be inconsistent with Lau and the emphasis of Title VI and the HEW regula­tions on voluntary action, however, to require that an institu­tion wait to be adjudicated to be in violation of the law before being permitted to voluntarily undertake corrective action based upon a good-faith and reasonable belief that the failure of certain racial minorities to satisfy entrance requirements is not a measure of their ultimate performance as doctors but a result of the lingering effects of past societal discrimination.

We recognize that Lau, especially when read in light of our subsequent decision in Washington v. Davis, 426 U. S. 229 (1976), which rejected the general proposition that govern­mental action is unconstitutional solely because it has a racially disproportionate impact, may be read as being predicated upon the view that, at least under some circumstances, Title VI proscribes conduct which might not be prohibited by the Constitution. Since we are now of the opinion, for the reasons set forth above, that Title Vi’s standard, applicable alike to public and private recipients of federal funds, is no broader than the Constitution’s, we have serious doubts concerning the correctness of what appears to be the premise of that decision. However, even accepting Lau’s implication that impact alone is in some contexts sufficient to establish a prima facie violation of Title VI, contrary to our view that Title Vi’s definition of racial discrimination is absolutely coextensive with the Constitution’s, this would not assist the respondent in the least. First, for the reasons discussed supra, at 336-350, regardless of whether Title VTs prohibitions extend beyond the Constitution’s, the evidence fails to establish, and, indeed, compels the rejection of, the proposition that Congress in­tended to prohibit recipients of federal funds from voluntarily employing race-conscious measures to eliminate the effects of past societal discrimination against racial minorities such as Negroes. Secondly, Lau itself, for the reasons set forth in the immediately preceding paragraph, strongly supports the view that voluntary race-conscious remedial action is permissible under Title VI. If discriminatory racial impact alone is enough to demonstrate at least a prima facie Title VI viola­tion, it is difficult to believe that the Title would forbid the Medical School from attempting to correct the racially exclu­sionary effects of its initial admissions policy during the first two years of the School’s operation.

The Court has also declined to adopt a “colorblind” interpre­tation of other statutes containing nondiscrimination provi­sions similar to that contained in Title VI. We have held under Title VII that where employment requirements have a disproportionate impact upon racial minorities they constitute a statutory violation, even in the absence of discriminatory intent, unless the employer is able to demonstrate that the requirements are sufficiently related to the needs of the job.27 More significantly, the Court has required that pref­erences be given by employers to members of racial minori­ties as a remedy for past violations of Title VII, even where there has been no finding that the employer has acted with a discriminatory intent.28 Finally, we have construed the Voting Rights Act of 1965, 42 U. S. C. § 1973 et seg. (1970 ed. and Supp. V), which contains a provision barring any voting procedure or qualification that denies or abridges “the right of any citizen of the United States to vote on account of race or color,” as permitting States to voluntarily take race into ac­count in a way that fairly represents the voting strengths of different racial groups in order to comply with the commands of the statute, even where the result is a gain for one racial group at the expense of others.29

These prior decisions are indicative of the Courtis unwilling­ness to construe remedial statutes designed to eliminate dis­crimination against racial minorities in a manner which would impede efforts to attain this objective. There is no justifica­tion for departing from this course in the case of Title VI and frustrating the clear judgment of Congress that race-conscious remedial action is permissible.

We turn, therefore, to our analysis of the Equal Protection Clause of the Fourteenth Amendment.

Ill

A

The assertion of human equality is closely associated with the proposition that differences in color or creed, birth or status, are neither significant nor relevant to the way in which persons should be treated. Nonetheless, the position that such factors must be “constitutionally an irrelevance,” Edwards v. California, 314 U. S. 16.0, 185 (1941) (Jackson, J., concur­ring), summed up by the shorthand phrase “[o]ur Constitution is color-blind,” Plessy v. Ferguson, 163 U. S. 537, 559 (1896) (Harlan, J., dissenting), has never been adopted by this Court as the proper meaning of the Equal Protection Clause. In­deed, we have expressly rejected this proposition on a number of occasions.

Our cases have always implied that an “overriding statutory purpose,” McLaughlin v. Florida, 379 U. S. 184, 192 (1964), could be found that would justify racial classifications. See, e. g., ibid.; Loving v. Virginia, 388 U. S. 1, 11 (1967); Korematsu v. United States, 323 U. S. 214, 216 (1944); Hirabayashi v. United States, 320 U. S. 81, 100-101 (1943). More recently, in McDaniel v. Barresi, 402 U. S. 39 (1971), this Court unanimously reversed the Georgia Supreme Court which had held that a desegregation plan voluntarily adopted by a local school board, which assigned students on the basis of race, was per se invalid because it was not colorblind. And in North Carolina Board of Education v. Swann we held, again unanimously, that a statute mandating colorblind school-assignment plans could not stand “against the back­ground of segregation,” since such a limit on remedies would “render illusory the promise of Brown [/].” 402 U. S., at 45-46.

We conclude, therefore, that racial classifications are not per se invalid under the Fourteenth Amendment. Accordingly, we turn to the problem of articulating what our role should be in reviewing state action that expressly classifies by race.

B

Respondent argues that racial classifications are always suspect and, consequently, that this Court should weigh the importance of the objectives served by Davis’ special admis­sions program to see if they are compelling. In addition, he asserts that this Court must inquire whether, in its judg­ment, there are alternatives to racial classifications which would suit Davis’ purposes. Petitioner, on the other hand, states that our proper role is simply to accept petitioner’s determination that the racial classifications used by its program are reasonably related to what it tells us are its benign purposes. We reject petitioner’s view, but, because our prior cases are in many respects inapposite to that before us now, we find it necessary to define with precision the meaning of that inexact term, “strict scrutiny.”

Unquestionably we have held that a government practice or statute which restricts “fundamental rights” or which contains “suspect classifications” is to be subjected to “strict scrutiny” and can be justified only if it furthers a compelling govern­ment purpose and, even then, only if no less restrictive alterna­tive is available.30 See, e. g., San Antonio Independent School District v. Rodriguez, 411 U. S. 1, 16-17 (1973); Dunn v. Blumstein, 405 U. S. 330 (1972). But no fundamental right is involved here. See San Antonio, supra, at 29-36. Nor do whites as a class have any of the “traditional indicia of sus-­pectness: the class is not saddled with such disabilities, or sub­jected to such a history of purposeful unequal treatment, or relegated to such a position of political powerlessness as to command extraordinary protection from the majoritarian political process.” Id., at 28; see United States v. Carolene Products Co., 304 U. S. 144, 152 n. 4 (1938).31

Moreover, if the University’s representations are credited, this is not a case where racial classifications are “irrelevant and therefore prohibited.” Hirabayashi, supra, at 100. Nor has anyone suggested that the University’s purposes contravene the cardinal principle that racial classifications that stigmatize— because they are drawn on the presumption that one race is inferior to another or because they put the weight of govern­ment behind racial hatred and separatism — are invalid without more. See Yick Wo v. Hopkins, 118 U. S. 356, 374 (1886);32 accord, Strauder v. West Virginia, 100 U. S. 303, 308 (1880); Korematsu v. United States, supra, at 223; Oyama v. Cali­fornia, 332 U. S. 633, 663 (1948) (Murphy, J., concurring); Brown I, 347 U. S. 483 (1954); McLaughlin v. Florida, supra, at 191-192; Loving v. Virginia, supra, at 11-12; Reitman v. Mulkey, 387 U. S. 369, 375-376 (1967); United Jewish Organizations v. Carey, 430 U. S. 144, 165 (1977) (UJO) (opinion of White, J., joined by Rehnquist and Stevens, JJ.); id., at 169 (opinion concurring in part).33

On the other hand, the fact that this case does not fit neatly into our prior analytic framework for race cases does not mean that it should be analyzed by applying the very loose rational-­basis standard of review that is the very least that is always applied in equal protection cases.34 “ ‘[T]he mere recitation of a benign, compensatory purpose is not an automatic shield which protects against any inquiry into the actual purposes underlying a statutory scheme.’ ” Califano v. Webster, 430 U. S. 313, 317 (1977), quoting Weinberger v. Wiesenfeld, 420 U. S. 636, 648 (1975). Instead, a number of considerations— developed in gender-discrimination cases but which carry even more force when applied to racial classifications — lead us to conclude that racial classifications designed to further reme­dial purposes “ 'must serve important governmental objectives and must be substantially related to achievement of those objectives.’ ” Califano v. Webster, supra, at 317, quoting Craig v. Boren, 429 U. S. 190, 197 (1976).35

First, race, like, “gender-based classifications too often [has] been inexcusably utilized to stereotype and stigmatize politi­cally powerless segments of society.” Kahn v. Shevin, 416 U. S. 351, 357 (1974) (dissenting opinion). While a carefully tailored statute designed to remedy past discrimination could avoid these vices, see Califano v. Webster, supra; Schlesinger v. Ballard, 419 U. S. 498 (1975); Kahn v. Shevin, supra, we nonetheless have recognized that the line between honest and thoughtful appraisal of the effects of past discrimination and paternalistic stereotyping is not so clear and that a statute based on the latter is patently capable of stigmatizing all women with a badge of inferiority. Cf. Schlesinger v. Ballard, supra, at 508; UJO, supra, at 174, and n. 3 (opinion concur­ring in part); Califano v. Coldfarb, 430 U. S. 199, 223 (1977) (Stevens, J., concurring in judgment). See also Stanton v. Stanton, 421 U. S. 7, 14-15 (1975). State programs de­signed ostensibly to ameliorate the effects of past racial dis­crimination obviously create the same hazard of stigma, since they may promote racial separatism and reinforce the views of those who believe that members of racial minorities are inherently incapable of succeeding on their own. See UJO, supra, at 172 (opinion concurring in part); ante, at 298 (opin­ion of Powell, J.).

Second, race, like gender and illegitimacy, see Weber v. Aetna Casualty & Surety Co., 406 U. S. 164 (1972), is an im­mutable characteristic which its possessors are powerless to escape or set aside. While a classification is not per se invalid because it divides classes on the basis of an immutable charac­teristic, see supra, at 355-356, it is nevertheless true that such divisions are contrary to our deep belief that “legal burdens should bear some relationship to individual responsibility or wrongdoing,” Weber, supra, at 175; Frontiero v. Richardson, 411 U. S. 677, 686 (1973) (opinion of Brennan, White, and Marshall, JJ.), and that advancement sanctioned, sponsored, or approved by the State should ideally be based on individual merit or achievement, or at the least on factors within the control, of an individual. See UJO, 430 U. S., at 173 (opinion concurring in part); Kotch v. Board of River Port Pilot Comm’rs, 330 U. S. 552, 566 (1947) (Rutledge, J., dissenting).

Because this principle is so deeply rooted it might be sup­posed that it would be considered in the legislative process and weighed against the benefits of programs preferring individ­uals because of their race. But this is not necessarily so: The “natural consequence of our governing processes ’[may well be] that the most 'discrete and insular’ of whites . . . will be called upon to bear the immediate, direct costs of benign discrimination.” UJO, supra, at 174 (opinion concurring in part). Moreover, it is clear from our cases that there are limits beyond which majorities may not go when they classify on the basis of immutable characteristics. See, e. g., Weber, supra. Thus, even if the concern for individualism is weighed by the political process, that weighing cannot waive the per­sonal rights of individuals under the Fourteenth Amendment. See Lucas v. Colorado General Assembly, 377 U. S. 713, 736 (1964).

In sum, because of the significant risk that racial classifica­tions established for ostensibly benign purposes can be mis­used, causing effects not unlike those created by invidious classifications, it is inappropriate to inquire only whether there is any conceivable basis that might sustain such a classifica­tion. Instead, to justify such a classification an important and articulated purpose for its use must be shown. In addi­tion, any statute must be stricken that stigmatizes any group or that singles out those least well represented in the political process to bear the brunt of a benign program. Thus, our review under the Fourteenth Amendment should be strict — not “ 'strict’ in theory and fatal in fact,” 36 because it is stigma that causes fatality — but strict and searching nonetheless.

IV

Davis’ articulated purpose of remedying the effects of past societal discrimination is, under our cases, sufficiently impor­tant to justify the use of race-conscious admissions programs where there is a sound basis for concluding that minority underrepresentation is substantial and chronic, and that the handicap of past discrimination is impeding access of minor­ities to the Medical School.

A

At least since Green v. County School Board, 391 U. S. 430 (1968), it has been clear that a public body which has itself been adjudged to have engaged in racial discrimination cannot bring itself into compliance with the Equal Protection Clause simply by ending its unlawful acts and adopting a neutral stance. Three years later, Swann v. Charlotte-Mecklenburg Board of Education, 402 U. S. 1 (1971), and its companion cases, Davis v. School Comm’rs of Mobile County, 402 U. S. 33 (1971); McDaniel v. Barresi, 402 U. S. 39 (1971); and North Carolina Board of Education v. Swann, 402 U. S. 43 (1971), reiterated that racially neutral remedies for past dis­crimination were inadequate where consequences of past dis­criminatory acts influence or control present decisions. See, e. g., Charlotte-Mecklenburg, supra, at 28. And the Court further held both that courts could enter desegregation orders which assigned students and faculty by reference to race, Charlotte-Mecklenburg, supra; Davis, supra; United States v. Montgomery County Board of Ed., 395 U. S. 225 (1969), and that local school boards could voluntarily adopt desegregation plans which made express reference to race if this was necessary to remedy the effects of past discrimination. McDaniel v. Barresi, supra. Moreover, we stated that school boards, even in the absence of a judicial finding of past discrimination, could voluntarily adopt plans which assigned students with the end of creating racial pluralism by establishing fixed ratios of black and white students in each school. Charlotte-­Mecklenburg, supra, at 16. In each instance, the creation of unitary school systems, in which the effects of past discrimina­tion had been “eliminated root and branch,” Creen, supra, at 438, was recognized as a compelling social goal justifying the overt use of race.

Finally, the conclusion that state educational institutions may constitutionally adopt admissions programs designed to avoid exclusion of historically disadvantaged minorities, even when such programs explicitly take race into account, finds direct support in our cases construing congressional legislation designed to overcome the present effects of past discrimina­tion. Congress can and has outlawed actions which have a disproportionately adverse and unjustified impact upon mem­bers of racial minorities and has required or authorized race-­conscious action to put individuals disadvantaged by such impact in the position they otherwise might have enjoyed. See Franks v. Bowman Transportation Co., 424 U. S. 747 (1976); Teamsters v. United States, 431 U. S. 324 (1977). Such relief does not require as a predicate proof that recipients! of preferential advancement have been individually discrimi- \ nated against; it is enough that each recipient is within a \ general class of persons likely to have been the victims of dis- 1 crimination. See id., at 357-362. Nor is it an objection to J such relief that preference for minorities will upset the settled expectations of nonminorities. See Franks, supra. In addi­tion, we have held that Congress, to remove barriers to equal opportunity, can and has required employers to use test crite­ria that fairly reflect the qualifications of minority applicants vis-á-vis nonminority applicants, even if this means interpret­ing the qualifications of an applicant in light of his race. See Albemarle Paper Co. v. Moody, 422 U. S. 405, 435 (1975).37

These cases cannot be distinguished simply by the presence of judicial findings of discrimination, for race-conscious remedies have been approved where such findings have not been made. McDaniel v. Barresi, supra; UJO; see Califano v. Webster, 430 U. S. 313 (1977); Schlednger v. Ballard, 419 U. S. 498 (1975); Kahn v. Shewn, 416 U. S. 351 (1974). See also Katzenbach v. Morgan, 384 U. S. 641 (1966). Indeed, the requirement of a judicial determination of a constitutional or statutory violation as a predicate for race-conscious re­medial actions would be self-defeating. Such a requirement would severely undermine efforts to achieve voluntary com­pliance with the requirements of law. And our society and jurisprudence have always stressed the value of voluntary ef­forts to further the objectives of the law. Judicial interven­tion is a last resort to achieve cessation of illegal conduct or the remedying of its effects rather than a prerequisite to action.38

Nor can our cases be distinguished on the ground that the entity using explicit racial classifications itself had violated § 1 of the Fourteenth Amendment or an antidiscrimination regu­lation, for again race-conscious remedies have been approved where this is not the case. See UJO, 430 U. S., at 157 (opinion of White, J., joined by Brennan, Blackmun, and Stevens, JJ.);39 id., at 167 (opinion of White, J., joined by Rbhnquist and Stevens, JJ.);40 cf. Califano v. Webster, supra, at 317; Kahn v. Shevin, supra. Moreover, the presence or absence of past discrimination by universities or employers is largely irrelevant to resolving respondent’s constitutional claims. The claims of those burdened by the race-conscious actions of a university or employer who has never been adjudged in violation of an antidiscrimination law are not any more or less entitled to deference than the claims of the burdened nonminority workers in Franks v. Bowman Transportation Co., supra, in which the employer had violated Title VII, for in each case the employees are innocent of past discrimination. And, although it might be argued that, where an employer has violated an antidiscrimination law, the expectations of non-­minority workers are themselves products of discrimination and hence “tainted,” see Franks, supra, at 776, and therefore more easily upset, the same argument can be made with respect to respondent. If it was reasonable to conclude — as we hold that it was — that the failure of minorities to qualify for admission at Davis under regular procedures was due principally to the effects of past discrimination, than there is a reasonable likelihood that, but for pervasive racial discrim­ination, respondent would have failed to qualify for admission even in the absence of Davis’ special admissions program.41

Thus, our cases under Title VII of the Civil Rights Act have held that, in order to achieve minority participation in previ­ously segregated areas of public life, Congress may require or authorize preferential treatment for those likely disadvantaged by societal racial discrimination.. Such legislation has been sustained even without a requirement of findings of inten­tional racial discrimination by those required or authorized to accord preferential treatment, or a case-by-case determination r.sthat those to be benefited suffered from racial discrimination. \ These decisions compel the conclusion that States also may \ adopt race-conscious programs designed to overcome substan­tial, chronic minority underrepresentation where there is reason to believe that the evil addressed is a product of past racial42

Title VII was enacted pursuant to Congress’ power under the Commerce Clause and § 5 of the Fourteenth Amendment. To the extent that Congress acted under the Commerce Clause power, it was restricted in the use of race in governmental 'decisionmaking by the equal protection component of the Due Process Clause of the Fifth Amendment precisely to the same extent as are the States by § 1 of the Fourteenth Amend­ment.43 Therefore, to the extent that Title VII rests on the Commerce Clause power, our decisions such as Franks and Teamsters v. United States, 431 U. S. 324 (1977), implicitly recognize that the affirmative use of race is consistent with the equal protection component of the Fifth Amendment and therefore with the Fourteenth Amendment. To the extent that Congress acted pursuant to § 5 of the Fourteenth Amend­ment, those cases impliedly recognize that Congress was em­powered under that provision to accord preferential treatment to victims of past discrimination in order to overcome the effects of segregation, and we see no reason to conclude that the States cannot voluntarily accomplish under § 1 of the Fourteenth Amendment what Congress under § 5 of the Four­teenth Amendment validly may authorize or compel either the States or private persons to do. A contrary position would conflict with the traditional understanding, recognizing the competence of the States to initiate measures consistent ywith federal policy in the absence of congressional pre-emp­tion of the subject matter. Nothing whatever in the legisla­tive history of either the Fourteenth Amendment or the Civil Rights Acts even remotely suggests that the States are foreclosed from furthering the fundamental purpose of equal opportunity to which the Amendment and those Acts are addressed. Indeed, voluntary initiatives by the States to achieve the national goal of equal opportunity have been recog­nized to be essential to its attainment. “To use the Fourteenth Amendment as a sword against such State power would stul­tify that Amendment.” Railway Mail Assn. v. Corsi, 326 U. S. 88, 98 (1945) (Frankfurter, J., concurring).44 We there­fore conclude that Davis' goal of admitting minority students disadvantaged by the effects of past discrimination is suffi­ciently important to justify use of race-conscious admissions criteria.

B

Properly construed, therefore, our prior cases unequivocally show that a state government may adopt race-conscious programs if the purpose of such programs is to remove the disparate racial impact its actions might otherwise have and if there is reason to believe that the disparate impact is itself the product of past discrimination, whether its own or that of society at large. There is no question that Davis' program is valid under this test.

Certainly, on the basis of the undisputed factual submis­sions before this Court, Davis had a sound basis for believing that the problem of underrepresentation of minorities was sub­stantial and chronic and that the problem was attributable to handicaps imposed on minority applicants by past and present racial discrimination. Until at least 1973, the practice of medicine in this country was, in fact, if not in law, largely the prerogative of whites.45 In 1950, for example, while Negroes constituted 10% of the total population, Negro physicians con­stituted only 2.2% of the total number of physicians.46 The overwhelming majority of these, moreover, were educated in two predominantly Negro medical schools, Howard and Meharry.47 By 1970, the gap between the proportion of Negroes in medicine and their proportion in the population had widened: The number of Negroes employed in medicine remained frozen at 2.2% 48 while the Negro population had increased to 11.1%.49 The number of Negro admittees to pre­dominantly white medical schools, moreover, had declined in absolute numbers during the years 1955 to 1964. Odegaard 19.

Moreover, Davis had very good reason to believe that the national pattern of underrepresentation of minorities in medi­cine would be perpetuated if it retained a single admissions standard. For example, the entering classes in 1968 and 1969, the years in which such a standard was used, included only 1 Chicano and 2 Negroes out of the 50 admittees for each year. Nor is there any relief from this pattern of underrepresenta­tion in the statistics for the regular admissions program in later years.50

Davis clearly could conclude that the serious and persistent underrepresentation of minorities in medicine depicted by these statistics is the result of handicaps under which minority applicants labor as a consequence of a background of delib­erate, purposeful discrimination against minorities in education and in society generally, as well as in the medical profession. From the inception of our national life, Negroes have been subjected to unique legal disabilities impairing access to equal educational opportunity. Under slavery, penal sanctions were imposed upon anyone attempting to educate Negroes.51 After enactment of the Fourteenth Amendment the States continued to deny Negroes equal educational opportunity, enforcing a strict policy of segregation that itself stamped Negroes as inferior, Brown I, 347 U. S. 483 (1954), that relegated minori­ties to inferior educational institutions,52 and that denied them intercourse in the mainstream of professional life necessary to advancement. See Sweatt v. Painter, 339 U. S. 629 (1950). Segregation was not limited to public facilities, moreover, but was enforced by criminal penalties against private action as well. Thus, as late as 1908, this Court enforced a state crim­inal conviction against a private college for teaching Negroes together with whites. Berea College v. Kentucky, 211 U. S. 45. See also Plessy v. Ferguson, 163 U. S. 537 (1896).

Green v. County School Board, 391 U. S. 430 (1968), gave explicit recognition to the fact that the habit of discrimination and the cultural tradition of race prejudice cultivated by cen­turies of legal slavery and segregation were not immediately dissipated when Brown I, supra, announced the constitutional principle that equal educational opportunity and participa­tion in all aspects of American life could not be denied on the basis of race. Rather, massive official and private resistance prevented, and to a lesser extent still prevents, attainment of equal opportunity in education at all levels and in the pro­fessions. The generation of minority students applying to Davis Medical School since it opened in 1968 — most of whom were born before or about the time Brown I was decided— clearly have been victims of this discrimination. Judicial decrees recognizing discrimination in public education in Cali­fornia testify to the fact of widespread discrimination suffered by California-born minority applicants;53 many minority group members living in California, moreover, were born and reared in school districts in Southern States segregated by law.54 Since separation of schoolchildren by race “generates a feeling of inferiority as to their status in the community that may affect their hearts and minds in a way unlikely ever to be undone,” Brown I, supra, at 494, the conclusion is inescapable that applicants to medical school must be few indeed who endured the effects of de jure segregation, the resistance to Brown I, or the equally debilitating pervasive private dis­crimination fostered by our long history of official discrimina­tion, cf. Reitman v. Mulkey, 387 U. S. 369 (1967), and yet come to the starting line with an education equal to whites.55

Moreover, we need not rest solely on our own conclusion that Davis had sound reason to believe that the effects of past discrimination were handicapping minority applicants to the Medical School, because the Department of Health, Educa­tion, and Welfare, the expert agency charged by Congress with promulgating regulations enforcing Title VI of the Civil Rights Act of 1964, see supra, at 341-343, has also reached the conclusion that race may be taken into account in situations where a failure to do so would limit participation by minori­ties in federally funded programs, and regulations promulgated by the Department expressly contemplate that appropriate race-conscious programs may be adopted by universities to remedy unequal access to university programs caused by their own or by past societal discrimination. See supra, at 344-345, discussing 45 CFR §§ 80.3 (b) (6) (ii) and 80.5 (j) (1977). It cannot be questioned that, in the absence of the special ad­missions program, access of minority students to the Medical School would be severely limited and, accordingly, race-con­scious admissions would be deemed an appropriate response under these federal regulations. Moreover, the Department's regulatory policy is not one that has gone unnoticed by Con­gress. See supra, at 346-347. Indeed, although an amendment to an appropriations bill was introduced just last year that would have prevented the Secretary of Health, Education, and Welfare from mandating race-conscious programs in university admissions, proponents of this measure, significantly, did not question the validity of voluntary implementation of race-­conscious admissions criteria. See ibid. In these circum­stances, the conclusion implicit in the regulations — that the lingering effects of past discrimination continue to make race-­conscious remedial programs appropriate means for ensuring equal educational opportunity in universities — deserves con­siderable judicial deference. See, e. g., Katzenbach v. Morgan, 384 U. S. 641 (1966); UJO, 430 U. S., at 175-178 (opinion concurring in part).56

C

The second prong of our test — whether the Davis program stigmatizes any discrete group or individual and whether race is reasonably used in light of the program’s objectives — is clearly satisfied by the Davis program.

It is not even claimed that Davis’ program in any way oper­ates to stigmatize or single out any discrete and insular, or even any identifiable, nonminority group. Nor will harm comparable to that imposed upon racial minorities by ex­clusion or separation on grounds of race be the likely result of the program. It does not, for example, establish an ex­clusive preserve for minority students apart from and exclusive of whites. Rather, its purpose is to overcome the effects of segregation by bringing the races together. True, whites are excluded from participation in the special admissions program, but this fact only operates to reduce the number of whites to be admitted in the regular admissions program in order to permit admission of a reasonable percentage — less than their proportion of the California population 57 — of otherwise under­represented qualified minority applicants.58

Nor was Bakke in any sense stamped as inferior by the Medical School’s rejection of him. Indeed, it is conceded by all that he satisfied, those criteria regarded by the school as generally relevant to academic performance better than most of the minority members who were admitted. Moreover, there is absolutely no basis for concluding that Bakke’s re­jection as a result of Davis’ use of racial preference will affect him throughout his life in the same way as the segregation of the Negro schoolchildren in Brown I would have affected them. Unlike discrimination against racial minorities, use of racial preferences for remedial purposes does not in­flict a pervasive injury upon individual whites in the sense that wherever they go or whatever they do there is a signifi­cant likelihood that they will be treated as second-class citizens because of their color. This distinction does not mean that the exclusion of a white resulting from the preferential use of race is not sufficiently serious to require justification; but it does mean that the injury inflicted by such a policy is not distinguishable from disadvantages caused by a wide range of government actions, none of which has ever been thought impermissible for that reason alone.

In addition, there is simply no evidence that the Davis pro­gram discriminates intentionally or unintentionally against any minority group which it purports to benefit. The pro­gram does not establish a quota in the invidious sense of a ceiling on the number of minority applicants to be admitted. Nor can the program reasonably be regarded as stigmatizing the program’s beneficiaries or their race as inferior. Davis program does not simply advance less qualified appli­cants ; rather, it compensates applicants, who it is uncontested are fully qualified to study medicine, for educational disad­vantages which it was reasonable to conclude were a product of state-fostered discrimination. Once admitted, these students must satisfy the same degree requirements as regularly admitted students; they are taught by the same faculty in the same classes; and their performance is evaluated by the same standards by which regularly admitted students are judged. Under these circumstances, their performance and degrees must be regarded equally with the regularly admitted students with whom they compete for standing. Since minor­ity graduates cannot justifiably be regarded as less well qualified than nonminority graduates by virtue of the special admissions program, there is no reasonable basis to conclude that minority graduates at schools using such programs would be stigmatized as inferior by the existence of such programs.

D

We disagree with the lower courts’ conclusion that the Davis program’s use of race was unreasonable in light of its ob­jectives. First, as petitioner argues, there are no prac­tical means by which it could achieve its ends in the foreseeable future without the use of race-conscious measures. With respect to any factor (such as poverty or family edu­cational background) that may be used as a substitute for race as an indicator of past discrimination, whites greatly outnumber racial minorities simply because whites make up a far larger percentage of the total population and therefore far outnumber minorities in absolute terms at every socio­economic level.59 For example, of a class of recent medical school applicants from families with less than $10,000 income, at least 71% were white.60 Of all 1970 families headed by a person not a high school graduate which included related children under 18, 80% were white and 20% were racial minorities.61 Moreover, while race is positively correlated with differences in GPA and MCAT scores, economic disadvantage is not. Thus, it appears that economically disadvantaged whites do not score less well than economically advantaged whites, while economically advantaged blacks score less well than do disadvantaged whites.62 These statistics graphically illustrate that the University’s purpose to integrate its classes by com­pensating for past discrimination could not be achieved by a general preference for the economically disadvantaged or the children of parents of limited education unless such groups were to make up the entire class.

Second, the Davis admissions program does not simply equate minority status with disadvantage. Rather, Davis considers on an individual basis each applicant’s personal his­tory to determine whether he or she has likely been disad­vantaged by racial discrimination. The record makes clear that only minority applicants likely to have been isolated from the mainstream of American life are considered in the special program; other minority applicants are eligible only through the regular admissions program. True, the procedure by which disadvantage is detected is informal, but we have never insisted that educators conduct their affairs through adjudicatory proceedings, and such insistence here is misplaced. A case-by-case inquiry into the extent to which each individual applicant has been affected, either directly or indirectly, by racial discrimination, would seem to be, as a practical matter, virtually impossible, despite the fact that there are excellent reasons for concluding that such effects generally exist. When individual measurement is impossible or extremely impractical, there is nothing to prevent a State from using categorical means to achieve its ends, at least where the category is closely related to the goal. Cf. Gaston County v. United States, 395 U. S. 285, 295-296 (1969); Katzenbach v. Morgan, 384 U. S. 641 (1966). And it is clear from our cases that specific proof that a person has been vic­timized by discrimination is not a necessary predicate to offer­ing him relief where the probability of victimization is great. See Teamsters v. United States, 431 U. S. 324 (1977).

E

Finally, Davis’ special admissions program cannot be said to violate the Constitution simply because it has set aside a predetermined number of places for qualified minority appli­cants rather than using minority status as a positive factor to be considered in evaluating the applications of disadvantaged minority applicants. For purposes of constitutional adjudica­tion, there is no difference between the two approaches. In any admissions program which accords special consideration to disadvantaged racial minorities, a determination of the degree of preference to be given is unavoidable, and any given preference that results in the exclusion of a white candidate is no more or less constitutionally acceptable than a program such as that at Davis. Furthermore, the extent of the pref­erence inevitably depends on how many minority applicants the particular school is seeking to admit in any particular year so long as the number of qualified minority applicants exceeds that number. There is no sensible, and certainly no constitutional, distinction between, for example, adding a set number of points to the admissions rating of disadvantaged minority applicants as an expression of the preference with the expectation that this will result in the admission of an approximately determined number of qualified minority appli­cants and setting a fixed number of places for such applicants as was done here.63

The “Harvard” program, see ante, at 316-318, as those employing it readily concede, openly and successfully employs a racial criterion for the purpose of ensuring that some of the scarce places in institutions of higher education are allocated to disadvantaged minority students. That the Harvard approach does not also make public the extent of the pref­erence and the precise workings of the system while the Davis program employs a specific, openly stated number, does not condemn the latter plan for purposes of Fourteenth Amend­ment adjudication. It may be that the Harvard plan is more acceptable to the public than is the Davis “quota.” If it is, any State, including California, is free to adopt it in preference to a less acceptable alternative, just as it is generally free, as far as the Constitution is concerned, to abjure granting any racial preferences in its admissions program. But there is no basis for preferring a particular preference program simply because in achieving the same goals that the Davis Medical School is pursuing, it proceeds in a manner that is not immediately apparent to the public.

y

Accordingly, we would reverse the judgment of the Supreme Court of California holding the Medical School's spe'cial admissions program unconstitutional and directing respond­ent’s admission, as well as that portion of the judgment enjoin­ing the Medical School from according any consideration to race in the admissions process.

Me. Justice White.

I write separately concerning the question of whether Title VI of the Civil Rights Act of 1964, 42 U. S. C. § 2000d et seq., provides for a private cause of action. Four Justices are apparently of the view that such a private cause of action exists, and four Justices assume it for purposes of this case. I am unwilling merely to assume an affirmative answer. If in fact no private cause of action exists, this Court and the lower courts as well are without jurisdiction to consider re­spondent’s Title VI claim. As I see it, if we are not obliged to do so, it is at least advisable to address this threshold jurisdic­tional issue. See United States v. Griffin, 303 U. S. 226, 229 (1938).1 Furthermore, just as it is inappropriate to address constitutional issues without determining whether statutory grounds urged before us are dispositive, it is at least question­able practice to adjudicate a novel and difficult statutory issue without first considering whether we have jurisdiction to decide it. Consequently, I address the question of whether respondent may bring suit under Title VI.

A private cause of action under Title VI, in terms both of the Civil Rights Act as a whole and that Title, would not be “consistent with the underlying purposes of the legislative scheme” and would be contrary to the legislative intent. Cort v. Ash, 422 U. S. 66, 78 (1975). Title II, 42 U. S. C. § 2000a et seq., dealing with public accommodations, and Title VII, 42 U. S. C. § 2000e et seq. (1970 ed. and Supp. V), dealing with employment, proscribe private discriminatory conduct that as of 1964 neither the Constitution nor other federal statutes had been construed to forbid. Both Titles carefully provided for private actions as well as for official participation in enforce­ment. Title III, 42 U. S. C. § 2000b et seq., and Title IV, 42 U. S. C. § 2000c et seq. (1970 ed. and Supp. V), dealing with public facilities and public education, respectively, authorize suits by the Attorney General to eliminate racial discrimina­tion in these areas. Because suits to end discrimination in public facilities and public education were already available under 42 U. S. C. § 1983, it was, of course, unnecessary to pro­vide for private actions under Titles III and IV. But each Title carefully provided that its provisions for public actions would not adversely affect pre-existing private remedies. §§ 2000b-2 and 2000c-8.

The role of Title VI was to terminate federal financial support for public and private institutions or programs that discriminated on the basis of race. Section 601, 42 U. S. C. § 2000d, imposed the proscription that no person, on the grounds of race, color, or national origin, was to be excluded from or discriminated against under any program or activity receiving federal financial assistance. But there is no express provision for private actions to enforce Title VI, and it would be quite incredible if Congress, after so carefully attending to the matter of private actions in other Titles of the Act, intended silently to create a private cause of action to enforce Title VI.

It is also evident from the face of § 602, 42 U. S. C. § 2000d-l, that Congress intended the departments and agen­cies to define and to refine, by rule or regulation, the general proscription of § 601, subject only to judicial review of agency action in accordance with established procedures. Section 602 provides for enforcement: Every federal department or agency furnishing financial support is to implement the proscription by appropriate rule or regulation, each of which requires approval by the President. Termination of funding as a sanction for noncompliance is authorized, but only after a hearing and after the failure of voluntary means to secure compliance. Moreover, termination may not take place until the department or agency involved files with the appropriate committees of the House and Senate a full written report of the circumstances and the grounds for such action and 30 days have elapsed thereafter. Judicial review was provided, at least for actions terminating financial assistance.

Termination of funding was regarded by Congress as a serious enforcement step, and the legislative history is replete with assurances that it would not occur until every possibility for conciliation had been exhausted.2 To allow a private individual to sue to cut off funds under Title VI would com­promise these assurances and short circuit the procedural pre­conditions provided in Title VI. If the Federal Government may not cut off funds except pursuant to an agency rule, approved by the President, and presented to the appropriate committee of Congress for a layover period, and after volun­tary means to achieve compliance have failed, it is incon­ceivable that Congress intended to permit individuals to circumvent these administrative prerequisites themselves.

Furthermore, although Congress intended Title VI to end federal financial support for racially discriminatory policies of not only public but also- private institutions and programs, it is extremely unlikely that Congress, without a word indicat­ing that it intended to do so, contemplated creating an inde­pendent, private statutory cause of action against all private as well as public agencies that might be in violation of the section. There is no doubt that Congress regarded private litigation as an important tool to attack discriminatory prac­tices. It does not at all follow, however, that Congress antici­pated new private actions under Title VI itself. Wherever a discriminatory program was a public undertaking, such as a public school, private remedies were already available under other statutes, and a private remedy under Title VI was unnecessary. Congress was well aware of this fact. Signifi­cantly, there was frequent reference to Simkins v. Moses H. Cone Memorial Hospital, 323 F. 2d 959 (CA4 1963), cert. denied, 376 U. S. 938 (1964), throughout the congressional deliberations. See, e. g., 110 Cong. Rec. 6544 (1964) (Sen. Humphrey). Simkins held that under appropriate circum­stances, the operation of a private hospital with “massive use of public funds and extensive state-federal sharing in the common plan” constituted “state action” for the purposes of the Fourteenth Amendment. 323 F. 2d, at 967. It was unnecessary, of course, to create a Title VI private action against private discriminators where they were already within the reach of existing private remedies. But when they were not — and Simkins carefully disclaimed holding that “every subvention by the federal or state government automatically involves the beneficiary in 'state action,’ ” ibid3 — it is difficult to believe that Congress silently created a private remedy to terminate conduct that previously had been entirely beyond the reach of federal law.

For those who believe, contrary to my views, that Title VI was intended to create a stricter standard of color blindness than the Constitution itself requires, the result of no private cause of action follows even more readily. In that case Congress must be seen to have banned degrees of discrimi­nation, as well as types of discriminators, not previously reached by law. A Congress careful enough to provide that existing private causes of action would be preserved (in Titles III and IV) would not leave for inference a vast new extension of private enforcement power. And a Congress so exceptionally concerned with the satisfaction of procedural preliminaries before confronting fund recipients with the choice of a cutoff or of stopping discriminating would not permit private parties to pose precisely that same dilemma in a greatly widened category of cases with no procedural requirements whatsoever.

Significantly, in at least three instances legislators who played a major role in the passage of Title VI explicitly stated that a private right of action under Title VI does not exist.4 As an “indication of legislative intent, explicit or implicit, either to create such a remedy or to deny one,” Cort v. Ash, 422 U. S., at 78, clearer statements cannot be imagined, and under Cort, “an explicit purpose to deny such cause of action [is] controlling.” Id., at 82. Senator Keating, for example, proposed a private “right to sue” for the “person suffering from discrimination”; but the Department of Justice refused to include it, and the Senator acquiesced.5 These are not neutral, ambiguous statements. They indicate the absence of a legislative intent to create a private remedy. Nor do any of these statements make nice distinctions between a private cause of action to enjoin discrimination and one to cut off funds, as Mr. Justice Stevens and the three Justices who join his opin­ion apparently would. See post, at 419-420, n. 26. Indeed, it would be odd if they did, since the practical effect of either type of private cause of action would be identical. If private suits to enjoin conduct allegedly violative of § 601 were per­mitted, recipients of federal funds would be presented with the choice of either ending what the court, rather than the agency, determined to be a discriminatory practice within the meaning of Title VI or refusing federal funds and thereby escaping from the statute's jurisdictional predicate.6 This is precisely the same choice as would confront recipients if suit were brought to cut off funds. Both types of actions would equally jeopardize the administrative processes so carefully structured into the law.

This Court has always required “that the inference of such a private cause of action not otherwise authorized by the statute must be consistent with the evident legislative intent and, of course, with the effectuation of the purposes intended to be served by the Act.” National Railroad Passenger Corp. v. National Association of Railroad Passengers, 414 U. S. 453, 458 (1974). See also Securities Investor Protection Corp. v. Barbour, 421 U. S. 412, 418-420 (1975). A private cause of action under Title VI is unable to satisfy either prong of this test.

Because each of my colleagues either has a different view or assumes a private cause of action, however, the merits of the Title VI issue must be addressed. My views in that regard, as well as my views with respect to the equal protection issue, are included in the joint opinion that my Brothers Brennan, Marshall, and Blackmtjn and I have filed.7

Mr. Justice Marshall.

I agree with the judgment of the Court only insofar as it permits a university to consider the race of an applicant in making admissions decisions. I do not agree that petitioner’s admissions program violates the Constitution. For it must be remembered that, during most of the past 200 years, the Constitution as interpreted by this Court did not prohibit the most ingenious and pervasive forms of discrimination against the Negro. Now, when a State acts to remedy the effects of that legacy of discrimination, I cannot believe that this same Constitution stands as a barrier.

I

A

Three hundred and fifty years ago, the Negro was dragged to this country in chains to be sold into slavery. Uprooted from his homeland and thrust into bondage for forced labor, the slave was deprived of all legal rights. It was unlawful to teach him to read; he could be sold away from his family and friends at the whim of his master; and killing or maiming him was not a crime. The system of slavery brutalized and dehumanized both master and slave.1

The denial of human rights was etched into the American Colonies' first attempts at establishing self-government. When the colonists determined to seek their independence from England, they drafted a unique document cataloguing their grievances against the King and proclaiming as “self-evident” that “all men are created equal” and are endowed “with certain unalienable Rights,” including those to “Life, Liberty and the pursuit of Happiness.” The self-evident truths and the unalienable rights were intended, however, to apply only to white men. An earlier draft of the Declaration of Inde­pendence, submitted-by Thomas Jefferson to the Continental Congress, had included among the charges against the King that

“[h]e has waged cruel war against human nature itself, violating its most sacred rights of life and liberty in the persons of a distant people who never offended him, captivating and carrying them into slavery in another hemisphere, or to incur miserable death in their transpor­tation thither.” Franklin 88.

The Southern delegation insisted that the charge be deleted; the colonists themselves were implicated in the slave trade, and inclusion of this claim might have made it more difficult to justify the continuation of slavery once the ties to England were severed. Thus, even as the colonists embarked on a course to secure their own freedom and equality, they ensured perpetuation of the system that deprived a whole race of those rights.

The implicit protection of slavery embodied in the Declara­tion of Independence was made explicit in the Constitution, which treated a slave as being equivalent to three-fifths of a person for purposes of apportioning representatives and taxes among the States. Art. I, § 2. The Constitution also con­tained a clause ensuring that the “Migration or Importation” of slaves into the existing States would be legal until at least 1808, Art. I, § 9, and a fugitive slave clause requiring that when a slave escaped to another State, he must be returned on the claim of the master, Art. IV, § 2. In their declaration of the principles that were to provide the cornerstone of the new Nation, therefore, the Framers made it plain that “we the people,” for whose protection the Constitution was designed, did not include those whose skins were the wrong color. As Professor John Hope Franklin has observed, Americans “proudly accepted the challenge and responsibility of their new political freedom by establishing the machinery and safeguards that insured the continued enslavement of blacks.” Franklin 100.

The individual States likewise established the machinery to protect the system of slavery through the promulgation of the Slave Codes, which were designed primarily to defend the property interest of the owner in his slave. The position of the Negro slave as mere property was confirmed by this Court in Dred Scott v. Sandford, 19 How. 393 (1857), holding that the Missouri Compromise — which prohibited slavery in the portion of the Louisiana Purchase Territory north of Mis­souri — was unconstitutional because it deprived slave owners of their property without due process. The Court declared that under the Constitution a slave was property, and “[t]he right to trafile in it, like an ordinary article of merchandise and property, was guarantied to the citizens of the United States . . . Id., at 451. The Court further concluded that Negroes were not intended to be included as citizens under the Constitution but were “regarded as beings of an inferior order . . . altogether unfit to associate with the white race, either in social or political relations; and so far inferior, that they had no rights which the white man was bound to respect . . . Id., at 407.

B

The status of the Negro as property was officially erased by his emancipation at the end of the Civil War. But the long-­awaited emancipation, while freeing the Negro from slavery, did not bring him citizenship or equality in any meaningful way. Slavery was replaced by a system of “laws which imposed upon the colored race onerous disabilities and burdens, and curtailed their rights in the pursuit of life, liberty, and property to such an extent that their freedom was of little value.” Slaughter-House Cases, 16 Wall. 36, 70 (1873). Despite the passage of the Thirteenth, Fourteenth, and Fif­teenth Amendments, the Negro was systematically denied the rights those Amendments were supposed to secure. The com­bined actions and inactions of the State and Federal Govern­ments maintained Negroes in a position of legal inferiority for another century after the Civil War.

The Southern States took the first steps to re-enslave the Negroes. Immediately following the end of the Civil War, many of the provisional legislatures passed Black Codes, similar to the Slave Codes, which, among other things, limited the rights of Negroes to own or rent property and permitted imprisonment for breach of employment contracts. Over the next several decades, the South managed to disenfranchise the Negroes in spite of the Fifteenth Amendment by various techniques, including poll taxes, deliberately complicated bal­loting processes, property and literacy qualifications, and finally the white primary.

Congress responded to the legal disabilities being imposed in the Southern States by passing the Reconstruction Acts and the Civil Rights Acts. Congress also responded to the needs of the Negroes at the end of the Civil War by establishing the Bureau of Refugees, Freedmen, and Abandoned Lands, better known as the Freedmen’s Bureau, to supply food, hospitals, land, and education to the newly freed slaves. Thus, for a time it seemed as if the Negro might be protected from the continued denial of his civil rights and might be relieved of the disabilities that prevented him from taking his place as a free and equal citizen.

That time, however, was short-lived. Reconstruction came to a close, and, with the assistance of this Court, the Negro was rapidly stripped of his new civil rights. In the words of C. Vann Woodward: “By narrow and ingenious interpretation [the Supreme Court’s] decisions over a period of years had whittled away a great part of the authority presumably given the government for protection of civil rights.” Woodward 139'.

The Court began by interpreting the Civil War Amendments in a manner that sharply curtailed their substantive protec­tions. See, e. g., Slaughter-House Cases, supra; United States v. Reese, 92 U. S. 214 (1876); United States v. Cruikshank, 92 U. S. 542 (1876). Then in the notorious Civil Rights Cases, 109 U. S. 3 (1883), the Court strangled Congress’ efforts to use its power to promote racial equality. In those cases the Court invalidated sections of the Civil Rights Act of 1875 that made it a crime to deny equal access to “inns, public convey­ances, theatres and other places of public amusement.” Id., at 10. According to the Court, the Fourteenth Amendment gave Congress the power to proscribe only discriminatory action by the State. The Court ruled that the Negroes who were ex­cluded from public places suffered only an invasion of their social rights at the hands of private individuals, and Congress had no power to remedy that. Id., at 24 — 25. “When a man has emerged from slavery, and by the aid of beneficent legis­lation has shaken off the inseparable concomitants of that state,” the Court concluded, “there must be some stage in the progress of his elevation when he takes the rank of a mere citizen, and ceases to be the special favorite of the laws . . . Id., at 25. As Mr. Justice Harlan noted in dissent, however, the Civil War Amendments and Civil Rights Acts did not make the Negroes the “special favorite” of the laws but instead “sought to accomplish in reference to that race . . . — what had already been done in every State of the Union for the white race — to secure and protect rights belonging to them as free­men and citizens; nothing more.” Id., at 61.

The Court’s ultimate blow to the Civil War Amendments and to the equality of Negroes came in Plessy v. Ferguson, 163 U. S. 537 (1896)., In upholding a Louisiana law that required railway companies to provide “equal but separate” accom­modations for whites and Negroes, the Court held that the Fourteenth Amendment was not intended “to abolish distinc­tions based upon color, or to enforce social, as distinguished from political equality, or a commingling of the two races upon terms unsatisfactory to either.” Id., at 544. Ignoring totally the realities of the positions of the two races, the Court remarked:

“We consider the underlying fallacy of the plaintiff’s argument to consist in the assumption that the enforced separation of the two races stamps the colored race with a badge of inferiority. If this be so, it is not by reason of anything found in the act, but solely because the colored race chooses to put that construction upon it.” Id., at 551.

Mr. Justice Harlan’s dissenting opinion recognized the bank­ruptcy of the Court’s reasoning. He noted that the “real meaning” of the legislation was “that colored citizens are so inferior and degraded that they cannot be allowed to sit in public coaches occupied by white citizens.” Id., at 560. He expressed his ■ fear that if like laws were enacted in other States, “the effect would be in the highest degree mischievous.” Id., at 563. Although slavery would have disappeared, the States would retain the power “to interfere with the full enjoyment of the blessings of freedom; to regulate civil rights, common to all citizens, upon the basis of race; and to place in a condition of legal inferiority a large body of American citizens . .. .” Ibid.

The fears of Mr. Justice Harlan were soon to be realized. In the wake of Plessy, many States expanded their Jim Crow laws, which had up until that time been limited primarily to passenger trains and schools. The segregation of the races was extended to residential areas, parks, hospitals, theaters, waiting rooms, and bathrooms. There were even statutes and ordinances which authorized separate phone booths for Negroes and whites, which required that textbooks used by children of one race be kept separate from those used by the other, and which required that Negro and white prostitutes be kept in separate districts. In 1898, after Plessy, the Charlestown News and Courier printed a parody of Jim Crow laws:

“ 'If there must be Jim Crow cars on the railroads, there should be Jim Crow cars on the street railways. Also on all passenger boats. ... If there are to be Jim Crow cars, moreover, there should be Jim Crow waiting saloons at all stations, and Jim Crow eating houses. . . . There should be Jim Crow sections of the jury box, and a sep­arate Jim Crow dock and witness stand in every court— and a Jim Crow Bible for colored witnesses to kiss.5 ” Woodward 68.

The irony is that before many years had passed, with the exception of the Jim Crow witness stand, "all the improbable applications of the principle suggested by the editor in derision had been put into practice — down to and including the Jim Crow Bible.” Id., at 69.

Nor were the laws restricting the rights of Negroes limited solely to the Southern States. In many of the Northern States, the Negro was denied the right to vote, prevented from serving on juries, and excluded from theaters, restaurants, hotels, and inns. Under President Wilson, the Federal Gov­ernment began to require segregation in Government buildings; desks of Negro employees were curtained off; separate bath­rooms and separate tables in the cafeterias were provided; and even the galleries of the Congress were segregated. When his segregationist policies were attacked, President Wilson responded that segregation was “ ‘not humiliating but a bene­fit’ ” and that he was “ ‘rendering [the Negroes] more safe in their possession of office and less likely to be discriminated against.’ ” Kluger 91.

The enforced segregation of the races continued into the middle of the 20th century. In both World Wars, Negroes were for the most part confined to separate military units; it was not until 1948 that an end to segregation in the military was ordered by President Truman. And the history of the exclusion of Negro children from white public schools is too well known and recent to require repeating here. That Ne­groes were delibérately excluded from public graduate and professional schools — and thereby denied the opportunity to become doctors, lawyers, engineers, and the like — is also well established. It is of course true that some of the Jim Crow laws (which the decisions of this Court had helped to foster) were struck down by this Court in a series of decisions leading up to Brown v. Board of Education, 347 U. S. 483 (1954). See, e. g., Morgan v. Virginia, 328 U. S. 373 (1946); Sweatt v. Painter, 339 U. S. 629 (1950); McLaurin v. Oklahoma State Regents, 339 U. S. 637 (1950). Those decisions, however, did not automatically end segregation, nor did they move Negroes from a position of legal inferiority to one of equality. The legacy of years of slavery and of years of second-class citizen­ship in the wake of emancipation could not be so easily eliminated.

II

The position of the Negro today in America is the tragic but inevitable consequence of centuries of unequal treatment. Measured by any benchmark of comfort or achievement, meaningful equality remains a distant dream for the Negro.

A Negro child today has a life expectancy which is shorter by more than five years than that of a white child.2 The Negro child’s mother is over three times more likely to die of complications in childbirth,3 and the infant mortality rate for Negroes is nearly twice that for whites.4 The median income of the Negro family is only 60% that of the median of a white family,5 and the percentage of Negroes who live in families with incomes below the poverty line is nearly four times greater than that of whites;6

When the Negro child reaches working age, he finds that America offers him significantly less than it offers his white counterpart. For Negro adults, the unemployment rate is twice that of whites,7 and the unemployment rate for Negro teenagers is nearly three times that of white teenagers.8 A' Negro male who completes four years of college can expect a median annual income of merely $110 more than a white male who has only a high school diploma.9 Although Negroes represent 11.5% of the population,10 they are only 1.2% of the lawyers and judges, 2% of the physicians, 2.3% of the dentists, 1.1% of the engineers and 2.6% of the college and university professors.11

The relationship between those figures and the- history of unequal treatment afforded to the Negro cannot be denied. At every point from birth to death the impact of the past is reflected in the still disfavored position of the Negro.

In light of the sorry history of discrimination and its devas­tating impact on the lives of Negroes, bringing the Negro into the mainstream of American life should be a state interest of the highest order. To fail to do so is to ensure that America will forever remain a divided society.

Ill

I do not believe that the Fourteenth Amendment requires us to accept that fate. Neither its history nor our past cases lend any support to the conclusion that a university may not remedy the cumulative effects of society’s discrimination by giving consideration to race in an effort to increase the number and percentage of Negro doctors.

A

This Court long ago remarked that

“in any fair and just construction of any section or phrase of these [Civil War] amendments, it is necessary to look to the purpose which we have said was the pervading spirit of them all, the evil which they were designed to remedy . . . .” Slaughter-House Cases, 16 Wall., at 72.

It is plain that the Fourteenth Amendment was not intended to prohibit measures designed to remedy the effects of the Nation’s past treatment of Negroes. The Congress that passed the Fourteenth Amendment is the same Congress that passed the 1866 Freedmen’s Bureau Act, an Act that provided many of its benefits only to Negroes. Act of July 16, 1866, ch. 200, 14 Stat. 173; see supra, at 391. Although the Freed­men’s Bureau legislation provided aid for refugees, thereby including white persons within some of the relief measures, 14 Stat. 174; see also Act of Mar. 3, 1865, ch. 90, 13 Stat. 507, the bill was regarded, to the dismay of many Congress­men, as "solely and entirely for the freedmén, and to the exclusion of all other persons . . . .” Cong. Globe, 39th Cong., 1st Sess., 544 (1866) (remarks of Rep. Taylor). See also id., at 634-635 (remarks of Rep. Ritter); id., at App. 78, 80-81 (remarks of Rep. Chanler). Indeed, the bill was bitterly opposed on the ground that it "undertakes to make the negro in some respects . . . superior . . . and gives them favors that the poor white boy in the North cannot get.” Id., at 401 (remarks of Sen. McDougall). See also id., at 319 (remarks of Sen. Hendricks); id., at 362 (remarks of Sen. Saulsbury); id., at 397 (remarks of Sen. Willey); id., at 544 (remarks of Rep. Taylor). The bill’s supporters defended it — not by re­butting the claim of special treatment — but by pointing to the need for such treatment:

“The very discrimination it makes between 'destitute and suffering’ negroes, and destitute and suffering white pau­pers, proceeds upon the distinction that, in the omitted case, civil rights and immunities are already sufficiently protected by the possession of political power, the ab­sence of which in the case provided for necessitates gov­ernmental protection.” Id., at App. 75 (remarks of Rep. Phelps).