Incorporation Doctrine

Historical Background

Original Understanding

When ratified in 1791, the Bill of Rights limited only the federal government:

"The constitution was ordained and established by the people of the United States for themselves, for their own government, and not for the government of the individual states."

— Chief Justice Marshall, Barron v. Baltimore, 32 U.S. 243 (1833)

This meant states could:

• Establish official churches (First Amendment didn't apply)
• Restrict speech and press (state constitutions governed)
• Limit firearms (Second Amendment didn't apply)
• Conduct searches without warrants (Fourth Amendment didn't apply)

The Civil War Catalyst

The Civil War revealed the need for federal protection of fundamental rights:

The Fourteenth Amendment

Key Provisions

Section 1 of the Fourteenth Amendment contains three crucial clauses:

Original Intent

Historical evidence suggests the framers intended to protect fundamental rights:

"The great object of the first section of this amendment is... to restrain the power of the States and compel them at all times to respect these great fundamental guarantees."

— Senator Jacob Howard, Congressional Globe, 39th Congress (1866)

The Slaughter-House Cases

The Slaughter-House Cases (1873) severely limited the Privileges or Immunities Clause:

• Distinguished between state and federal citizenship
• Held Privileges or Immunities Clause protected only federal rights
• Effectively nullified clause for incorporating Bill of Rights
• Forced later courts to use Due Process Clause instead

Theories of Incorporation

Total Incorporation

Justice Hugo Black's theory that the entire Bill of Rights applies to states:

• Argument: 14th Amendment intended to apply all amendments
• Support: Historical statements by framers
• Rejection: Never commanded Court majority
• Problem: Some provisions seem federal-specific

Fundamental Rights/Selective Incorporation

The prevailing approach, incorporating rights selectively:

• Test: Is right "fundamental to ordered liberty"?
• Process: Case-by-case determination
• Result: Most, but not all, rights incorporated
• Flexibility: Allows contextual analysis

Total Incorporation Plus

Justice Murphy and Rutledge's expansive theory:

• All Bill of Rights provisions apply
• Plus additional fundamental rights
• Never gained traction
• Too open-ended for most justices

Selective Incorporation

The Modern Test

Duncan v. Louisiana (1968) articulated the standard:

"[W]hether a right is among those 'fundamental principles of liberty and justice which lie at the base of all our civil and political institutions'... whether it is 'basic in our system of jurisprudence'... and whether it is 'a fundamental right, essential to a fair trial.'"

— Justice White, Duncan v. Louisiana, 391 U.S. 145, 148-149 (1968)

Incorporated Rights Timeline

Pattern of Incorporation

The Court incorporated rights gradually over 150+ years:

• 1920s-1940s: First Amendment freedoms
• 1960s: Criminal procedure protections
• 2010: Second Amendment
• 2019: Excessive Fines Clause (most recent)

McDonald v. Chicago

The Case

Otis McDonald, a 76-year-old Chicago resident, challenged the city's handgun ban:

• Background: Chicago banned handgun possession after Heller
• Claim: Second Amendment should apply to states
• Question: Does 14th Amendment incorporate the Second Amendment?
• Stakes: Would determine if states must respect gun rights

The Holding

"We hold that the Second Amendment right is fully applicable to the States... The right to keep and bear arms must be regarded as a substantive guarantee, not a prohibition that could be ignored so long as the States legislated in an evenhanded manner."

— Justice Alito, McDonald v. Chicago, 561 U.S. 742, 750 (2010)

The Analysis

The Court applied the selective incorporation test:

1. Fundamental Right: Self-defense is "basic to our scheme of ordered liberty"
2. Deep Roots: Right has deep roots in nation's history
3. Original Understanding: 14th Amendment framers considered it fundamental
4. Other Rights: Comparable to other incorporated rights

Vote Breakdown

Due Process vs. Privileges or Immunities

The Plurality Approach

Justice Alito's plurality used the Due Process Clause:

• Precedent: Followed established incorporation cases
• Stability: Maintained doctrinal consistency
• Predictability: Applied familiar test
• Caution: Avoided overruling Slaughter-House

Thomas's Concurrence

Justice Thomas argued for Privileges or Immunities:

"I believe the Second Amendment is fully applicable to the States through the Fourteenth Amendment's Privileges or Immunities Clause... The notion that a constitutional provision that guarantees only 'process' before a person is deprived of life, liberty, or property could define the substance of those rights strains credulity."

— Justice Thomas, McDonald v. Chicago, 561 U.S. 742, 805-806 (2010) (concurring)

Arguments for Each Approach

Impact on Gun Laws

Immediate Effects

McDonald had immediate nationwide impact:

• Chicago: Handgun ban struck down
• Oak Park: Similar ban invalidated
• Other Cities: Preemptively repealed bans
• State Laws: Subject to Second Amendment scrutiny

State and Local Regulations

Post-McDonald, states must respect Second Amendment but can still regulate:

Federal vs. State Standards

Incorporation means uniform constitutional floor:

• States cannot provide less protection than federal Constitution
• States may provide more protection under state constitutions
• Federal courts review state laws under same standards
• State interpretations of federal right must meet minimum

Litigation Explosion

McDonald triggered widespread challenges to state laws:

Unincorporated Rights

Rights Not Yet Incorporated

Few Bill of Rights provisions remain unincorporated:

• Third Amendment: Quartering of soldiers (never tested)
• Fifth Amendment: Grand jury indictment requirement
• Seventh Amendment: Civil jury trial right

Why Some Rights Remain Unincorporated

1. Not Fundamental: Court deemed them not essential to ordered liberty
2. Procedural Nature: Seen as procedural rather than substantive
3. State Variation: Allow states flexibility in procedures
4. Historical Practice: States traditionally handled differently

Future Incorporation Possibilities

Factors that could lead to incorporation:

• Changed understanding of fundamental rights
• New historical scholarship
• Practical need for uniformity
• Shifts in Court composition