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Incorporation 101: The Second Amendment is no good here



The hot breaking news today is that the Supreme Court has agreed to hear the case of McDonald v Chicago.

This is an incredibly important event because McDonald is the first Second Amendment incorporation case to be heard by the Supreme Court since the rise of the Incorporation Doctrine allowed the Court to begin selectively incorporating the protections embodied in the Bill of Rights against the states and offers the possibility of ending the draconian gun laws of states such as Illinois and New York forever!

But wait” I hear you cry. “What do you mean by ‘incorporating against the states’? Aren’t the states already bound by the Bill of Rights?” I am so glad you asked. This is one of the least understood concepts in American constitutional law and this lack of understanding has lead to an incredible amount of frustration for gun rights activists over the years.

Although I cannot remember the specific case, I can remember vividly how upset I personally was when, about a decade ago, I was reading the transcript of an Illinois firearms possession case wherein a pro-se defendant was attempted to plead the Second Amendment as a defense only to be scolded by the judge that “The Second Amendment does not apply in this court.

At the time, I was furious, certain that the judge was overstepping his bounds and applying a personal ideology to the case. Now, while I cannot dismiss the possibility of the latter, I can assure you that his statement was completely accurate! Even as you are reading this, the Second Amendment offers you no protection whatsoever from state gun laws!

The entire concept of incorporation is based upon this shocking fact. The Bill of Rights, as amended to the original United States Constitution DOES NOT protect citizens from the actions of the states, ONLY the federal government. This was decided in the landmark 1833 case of Barron v. Baltimore and has never been overturned.

When the Fourteenth Amendment was ratified in 1868, it was widely felt that the Privileges or Immunities Clause in Section 1 of that Amendment would finally ‘incorporate’ the entire Bill of Rights against the states, forcing all states to use the Bill of Rights as a minimum standard for the civil rights protections they need grant their citizens.

However, in 1873, in the consolidated block appeal known as The Slaughter-House Cases, the Supreme Court held that the Privileges or Immunities Clause of the Fourteenth Amendment only protected rights granted by the federal government against state invasion and since the rights enumerated in the Bill of Rights were all fundamental rights that pre-existed the Constitution, they were not thus protected.

And it was against this backdrop that the Supreme Court heard the three cases most prominently quoted by gun-control advocates and Second Amendment deniers; Cruikshank, Presser, and Miller. Given little choice by precedent, the Court held in all three cases that the Second Amendment did not convey any protection against state laws.

And I should add that the same was held true for other enumerated rights during this time as well. But all of this began to change in the early 1900s. Inspired by the expansive and libertarian rulings that were the hallmark of the “Lochner Era”, the Court began to perceive that the Due Process Clause of the Fourteenth Amendment protected against both standard “procedural” due process as well as “substantive due process". They further reasoned that rights which are “fundamental” cannot be infringed without denying to the aggrieved party some substantive due process element. And thus was born the Incorporation Doctrine. Starting with Gitlow in 1925, the Court slowly began to selectively incorporate the enumerated rights in the first eight amendments case by case.

Today, the Second Amendment remains one of the few enumerated rights to not enjoy incorporated status. But now, thanks to the brilliant legal strategy of lead counsel Alan Gura and the support of the Second Amendment Foundation, the Illinois State Rifle Association, and those brave defendants from Chicago, we may finally see the Second Amendment take its rightful place as a protection for ALL Americans!

John Pierce is the author of the children's book


  • Dave 5 years ago

    Proving that the SCOTUS can get things horribly wrong. There is an excellent reason why the 2nd amendment does not contain the word "Congress" and why it simply ends with "shall not be infringed." The founders had no intention of allowing ANY government the right to pass laws usurping the 2nd amendment, period. They made it clear as day.

  • B. Johnson 5 years ago

    With all due respect, Mr. Pierce, please consider the following.

    The pre-computer era justices who decided the Slaughter House cases of 1873 were evidently unaware that congressional records of 1871 show that John Bingham, the main author of Sec. 1 of the 14th Amendment, had explained to Congress that the 14th A. applied ALL the Constitution's privileges and immunities to the states. In fact, records show that he included the 2nd A. when he read to Congress the first eight amendments as examples of constitutional statutes containing privileges and immunities that the 14th A. applied to the states.

    Bingham also referenced Barron v. Baltimore as part of his inspiration for making Sec. 1 of the 14th Amendment. So Barron v. Baltimore was indeed "overturned" by an amendment to the Constitution!

    So not only does the USSC's tradition of selective incorporation actually have no constitutional basis, IMO, the 14th A. does indeed apply the 2nd A. to the states.

  • B. Johnson 5 years ago

    I'm sorry for being such a jerk today, Dave, but please consider the following. Historical writing about James Madison, Thomas Jefferson, Chief Justice Marshall and John Bingham, the main author of Sec. 1 of the 14th Amendment, all indicate that the federal BoR, including the 2nd A., were originally never intended to apply to the states.

  • John Pierce 5 years ago

    B. Johnson,

    I actually agree with both your comments.

    Rep Bingham couldn't have said it any clearer when he said that the privileges and immunities referenced in the Fourteenth Amendment "are chiefly defined in the first eight amendments to the constitution of the United States [which] never were limitations upon the power of the States, until made so by the Fourteenth Amendment.”

    And James Madison clearly knew that the first eight amendments to the Bill of Rights was a limitation upon federal power only because he tried to include other amendments which would have limited state action and those (which did not pass) began with “No state shall infringe ... ”

    Having said that, I am simply stating where we find ourselves today to try and place the importance of this case in context. It not only has the potential to incorporate the Second Amendment but also to overturn Slaughter-House. Win-Win!

  • Rickj 5 years ago

    So if the Supreme Court sides with Chicago, does this mean states have the right to ignore federal firearms laws such as the 1934 NFA and the ban on owning machine guns made after 1968?

  • Paladin 5 years ago

    The original text of the US Constitution contained language "incorporating" it entirely against the states. Simply read Article IV, Sections 1 and 2 and Section VI. You know phrases like, "The citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States." And, "This Constitution,..., shall be the supreme law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the contrary notwithstanding." ." And, "... all executive and judicial Officers, both of the United States and of the several States shall be bound by Oath or ...."

    Plus, all the States were required to "ratify" the US Constitution. Why be required to ratify something if you're NOT being required to comply with it? CONTINUED...

  • Paladin 5 years ago

    CONT... The "Incorporation doctrine" is nothing more than legal BS promulgated by corrupt courts so they could rationalize the violation of both the US Constitution and their Oaths to uphold it as the "supreme law of the land." It's all a legal crock of crap! We need to cleanup the so-called Justice system while we're at it.
    It would be interesting to hear from some real legal eagles on this subject.

  • Paladin 5 years ago

    IF there is one amendment that I would question the ability of being "incorporated" against the states, it would be the FIRST. Reason: It starts out, "Congress shall make no law ...."
    However, I THINK the SCOTUS has already ruled that the FIRST Amendment IS incorporated against the states. IF that IS the case, how can they logically rule that the 2nd isn't?

  • Mike Settles 5 years ago

    Rickj: Cynically speaking, if SCOTUS sides with Chicago, and states like Tennessee, Montana, Florida, begin writing legislation to nullify for instance 1934 NFA, expect another flurry of letters from BATFE to FFLs and AGs in those states that "Federal Law preempts State Law", whether it does or not.
    Then, will we see state officials stand up to the Feds by arresting those who attempt to enforce federal law over state laws?

  • Mike Settles 5 years ago

    Rickj: Cynically speaking, if SCOTUS sides with Chicago, and states like Tennessee, Montana, Florida, begin writing legislation to nullify for instance 1934 NFA, expect another flurry of letters from BATFE to FFLs and AGs in those states that "Federal Law preempts State Law", whether it does or not.
    Then, will we see state officials stand up to the Feds by arresting those who attempt to enforce federal law over state laws?

  • lee mcgee 5 years ago

    "Then, will we see state officials stand up to the Feds by arresting those who attempt to enforce federal laws over state laws."

    Yeah, like that's gonna happen.

    Molon Labe

  • B. Johnson 5 years ago

    To everybody: What people seem to be overlooking concerning both the Chicago gun case and DC v. Heller is the following. Both of these cases were arguably decided in favor of private citizens when the 14th Amendment was made. This is evidenced by congressional records which show that Congress had clarified that the 2nd A. is a personal right when the 14th A. was made. The records also show that regardless that the 2nd A. initially limited only the federal government's power to regulate firearms, the 14th A. officially changed the scope of the 2nd A. to include the states.

    And the reason that the courts and media are carrying on like the 2nd A. is a big mystery is the following, IMO. Pre-Google judges, justices and media members were undoubtedly indoctrinated with liberal perversions of the 2nd and 14th Amendments in college and want to keep people confused to take away gun rights, the honest interpretation of these amendments evidenced by the congressional record be damned.

  • B. Johnson 5 years ago

    To Paladin (and everybody): John Bingham had clarified that that Sec. 1 of the 14th A. applied only the Constitution's privileges and immunities to the states, not any of the Constitution's prohibitions on federal government powers. So when people, including corrupt justices, suggest that the 14th A. applied the BoR in its entirety to the states, including the BoR's prohibition of certain federal government powers, they are wrong.

  • B. Johnson 5 years ago

    To Paladin (and everybody else): There is a MAJOR constitutional problem with the idea that federal government laws always trump state laws. This problem arises because people no longer understand the Founder's division of federal and state government powers evidenced by the 10th Amendment.

    More specifically, the 10th A. automatically delegates to the states the lion's share difference of all government powers not expressly delegated to the federal government by Article I, Section 8 of the Constitution.

    So the problem with the idea of federal laws always trumping state laws is this. Because of the 10th A., government power to make a law can basically be only on one side or the other of the federal / state government fence. And given the limited powers actually delegated to the feds by Section 8, when federal and state laws interfere it's possibly because the corrupt, power-mad federal Congress made a law based on constitutionally nonexistent federal government powers.

  • lee mcgee 5 years ago

    To B. Johnson:
    "No government deprives its citizens of rights without asserting that its actions are 'reasonable' and 'necessary' for high sounding reasons such as 'public safety'. A right that can be regulated is no right at all, only a temporary privilege dependent upon the good will of the very government official that such right is designed to constrain." - DC vs. Heller
    1] Rights predate government. 2] Rights, akin to breathing, require neither acceptance nor affirmation to exist. They exist, and are often most evident, while being violated.
    "A nation can survive its fools, ad even the ambitious. But it cannot survive treason from within. An enemy at the gates is less formidable, for he is known and carries his banner openly. But the traitor moves among those within the gates freely, his sly wispers rustling through all the alleys, heard in the very halls of government, itself." - Marcus Tullius Cicero (42 BC)