You Need to Understand Selective Incorporation

I am watching Fox News and they are talking about Judge Sotomayor, and anchor Gregg Jarrett says that Sotomayor ruled this year that the Second Amendment doesn't apply to the states. Then he says, "as a lawyer, I find incredibly puzzling ... I don't understand where she was coming from."

Perhaps he can read my primer on incorporation or my prediction that selective incorporation is going to be officially killed soon. (And not for nothing, but I don't make predictions often.)

Granted, he's a laywer and I am not, but maybe he can learn something from little ol' me.

This concept is important to understand in regards to the Second Amendment, and I'll explain it briefly: the Fourteenth Amendment says that "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States." The Supreme Court, however, decided last century that which "privileges or immunities" the state cannot abridge are to be decided selectively by the Supreme Court. And the Supreme Court has never "incorporated" the Second Amendment.

Now, I am not saying that Sotomayor was correct; another court this year in Nordyke v. King came to a different conclusion (that the "test" for selective incorporation also means the Second Amendment should be incorporated). But it's all guesswork: the Supreme Court does the incorporation in the end. It's a ridiculous way of making law (and contrary to the clear language and intent of the Fourteenth Amendment), but it's what we've got, and Sotomayor's legal reasoning in this case is sensible, according to precedent.

And I hope she gets overturned.

It's also worth noting that selective incorporation is despised by many on the left and the right. Many on the left want to require states to recognize all sorts of "privileges and immunities." If a federal court recognizes a right to gay marriage, for example, then this could be binding on the states through the 14th Amendment, but with selective incorporation, it's not. So you'll see some liberal lawyers helping to kill selective incorporation, even joining forces with the NRA.