Selective Incorporation Is Dead

Once upon a time, there was an amendment to the Constitution.

It was called the Fourteenth Amendment, and it said that any right you have as a U.S. citizen cannot be infringed by any state government. "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States."

Therefore, since we have a privilege, as U.S. citizens, to keep and bear arms, you would think that this means that the states cannot infringe upon that.

However, you would be mistaken (seriously, read that link, especially the quotes from Black and Howard). Over a hundred years ago, some judicial activist (there, I said it!) came up with the idea that the Fourteenth Amendment doesn't actually mean what it says; rather, every Constitutional right must be individually incorporated by the Court.

Not only is this facially nonsensical according to the plain language and history of the Fourteenth Amendment, but it also literally turns the Court into lawmakers themselves: they get to decide whether we have, in the States, any given right, and we don't know how they will decide until we challenge it.

And even different parts of the same amendment are held to apply to the states, or not. So the First Amendment applies to the states, because of the Fourteenth Amendment, but the Second Amendment doesn't. Why? Simply because the Court hasn't said so.

It's one of the dumbest doctrines the Court follows, completely opposite to the purpose of the Court and the text of the Constitution.

However, there's good news. There's only a tiny handful of rights left unincoporated, and all of them but the Second Amendment's right to keep and bear arms, and the Seventh's to civil trial by jury, are left unincorporated only because no one is bother to challenge it (such as quartering troops and indictment by grand jury).

We have a clear signal in Heller that there is an individual right to keep and bear arms. This applies to the District of Columbia, but Columbia is not a state. So the open question is: will this apply to the states? Most states banning guns will say it does not, but they will lose (assuming they even bother challenging it at all).

Selective incorporation is ludicrous historically, textually, legally, and logically. But despite that, it has persisted. There is, though, something that is more important today than all of those considerations: it would destroy all societal respect for the Court to rule otherwise. A Court that is not respected is a Court that has no real authority, and a Court that takes such an obviously illogical position is not respected.

The reason why a state cannot restrict your right to free speech, or a speedy trial, or indictment by grand jury, is because the Fourteenth Amendment says, "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States," and those are privileges of citizens of the United States. And as of today, the right to keep and bear arms is also recognized as such a privilege.

So for the Court to rule otherwise would make no sense. Society will not stand for it, and the mental gymnastics required by the Court to justify it would make it look more foolish than it has ever looked before. Even if the Court veers to the left under a President Obama -- who has consistently, in recent years, asserted he believes in the individual right to keep and bear arms, though he has also supported significant restrictions of that right -- they couldn't justify such a decision to not recognize incorporation. What they'd be more likely to try would be to say, yes, the states have to recognize the right to keep and bear arms, but the right to keep and bear arms can be severely limited.

I am not sure that would be an improvement, but the point is that as of today, it is absolutely unconstitutional for a state to make or enforce any law abridging your right to keep and bear arms (whatever that means). Selective incorporation is dead. The death certificate simply hasn't been issued yet.

The fight for what rights we have under the Second Amendment, however, continues.