Have the Justices Gone Gun-Shy? – The Atlantic

State constitutions already protected many rights in many states, but some of the Court’s incorporation rulings still led to seismic changes, especially in criminal law. In Mapp v. Ohio in 1961, the Court incorporated the exclusionary rule, a Fourth Amendment remedy that prevents the use of illegally obtained evidence during trials, to the states, where most criminal trials in the U.S. take place. Two years later, in Gideon v. Wainwright, the Court also incorporated the Sixth Amendment’s assistance-of-counsel clause and ruled that the states had to provide a lawyer for criminal defendants who could not afford one in felony cases, leading to the creation of the modern public-defender system.

By the late 1960s, the Court had expanded most of the Bill of Rights to the states. But the Second Amendment remained an outlier. Only a smattering of cases had addressed it since the Civil War, and those that did often weren’t favorable to the gun-rights movement: U.S. v. Cruikshank, a Reconstruction-era case, explicitly stated that the Second Amendment didn’t apply to the states, and the 1939 case U.S. v. Miller upheld the restrictions of the federal National Firearms Act.

As Michael Waldman noted in his recent history of the Second Amendment, virtually all judges and constitutional scholars believed until recently that there was no constitutional right to individual gun ownership. Chief Justice Warren Burger, a staunchly conservative Nixon appointee, called the idea “a fraud on the American public” in a 1980 interview. The most notable gun-related case of the Rehnquist Court, U.S. v. Lopez, struck down the Gun-Free School Zones Act of 1990 for exceeding Congress’s power to regulate interstate commerce, not for violating the Second Amendment.


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