37
have divergent views on the issue of gun control. Munici-
pal respondents therefore urge us to allow state and local
governments to enact any gun control law that they deem
to be reasonable, including a complete ban on the posses-
sion of handguns in the home for self-defense. Brief for
Municipal Respondents 18-20, 23.
There is nothing new in the argument that, in order to
respect federalism and allow useful state experimentation,
a federal constitutional right should not be fully binding
on the States. This argument was made repeatedly and
eloquently by Members of this Court who rejected the
concept of incorporation and urged retention of the two-
track approach to incorporation. Throughout the era of
“selective incorporation,” Justice Harlan in particular,
invoking the values of federalism and state experimenta-
tion, fought a determined rearguard action to preserve the
two-track approach. See, e.g., Roth v. United States, 354
U. S. 476, 500-503 (1957) (Harlan, J., concurring in result
in part and dissenting in part); Mapp, supra, at 678-680
(Harlan, J., dissenting); Gideon, 372 U. S., at 352 (Harlan,
J., concurring); Malloy, 378 U. S., at 14-33 (Harlan, J.,
dissenting); Pointer, 380 U. S., at 408-409 (Harlan, J.,
concurring in result); Washington, 388 U. S., at 23-24
(Harlan, J., concurring in result); Duncan, 391 U. S., at
171-193 (Harlan, J., dissenting); Benton, 395 U. S., at
808-809 (Harlan, J., dissenting); Williams v. Florida, 399
U. S. 78, 117 (1970) (Harlan, J., dissenting in part and
concurring in result in part).
Time and again, however, those pleas failed. Unless we
turn back the clock or adopt a special incorporation test
applicable only to the Second Amendment, municipal
respondents’ argument must be rejected. Under our prece-
dents, if a Bill of Rights guarantee is fundamental from an
American perspective, then, unless stare decisis counsels
38
otherwise,30 that guarantee is fully binding on the States
and thus limits (but by no means eliminates) their ability
to devise solutions to social problems that suit local needs
and values. As noted by the 38 States that have appeared
in this case as amici supporting petitioners, ”[s]tate and
local experimentation with reasonable firearms regula-
tions will continue under the Second Amendment.” Brief
for State of Texas et al. as Amici Curiae 23.
Municipal respondents and their amici complain that
incorporation of the Second Amendment right will lead to
extensive and costly litigation, but this argument applies
with even greater force to constitutional rights and reme-
dies that have already been held to be binding on the
States. Consider the exclusionary rule. Although the
exclusionary rule “is not an individual right,” Herring v.
United States, 555 U. S. ___ (2009) (slip op., at 5), but a
“judicially created rule,” id., at ___ (slip op., at 4), this
Court made the rule applicable to the States. See Mapp,
supra, at 660. The exclusionary rule is said to result in
“tens of thousands of contested suppression motions each
year.” Stuntz, The Virtues and Vices of the Exclusionary
Rule, 20 Harv. J. Law & Pub. Poly, 443, 444 (1997).
—————–
30As noted above, see n. 13, supra, cases that predate the era of selec-
tive incorporation held that the Grand Jury Clause of the Fifth
Amendment and the Seventh Amendments civil jury requirement do
not apply to the States. See Hurtado v. California, 110 U. S. 516 (1884)
(indictment); Minneapolis & St. Louis R. Co. v. Bombolis, 241 U. S. 211
(1916) (civil jury).
As a result of Hurtado, most States do not require a grand jury
indictment in all felony cases, and many have no grand juries. See
Dept. of Justice, Office of Justice Programs, Bureau of Justice Statis-
tics, State Court Organization 2004, pp. 213, 215-217 (2006) (Table 38),
online at http://bjs.ojp.usdoj.gov/content/pub/pdf/sco04.pdf.
As a result of Bombolis, cases that would otherwise fall within the
Seventh Amendment are now tried without a jury in state small claims
courts. See, e.g., Cheung v. Eighth Judicial Dist. Court, 121 Nev. 867,
124 P. 3d 550 (2005) (no right to jury trial in small claims court under
Nevada Constitution).