Does the Bill of Rights apply to the states? Probably, but only when the Supreme Court says it does. Before 1920, mostly it didn’t. It all depends on the Fourteenth Amendment which reads in part: “… nor shall any state deprive any person of life, liberty, or property, without due process of law .” That one phrase opened to door to the “incorporation doctrine” which the Court used to justify making most provisions of the Bill of Rights applicable to the States.
Is the incorporation doctrine reliable? Probably. Justice Thomas reportedly believes many Supreme Court Decisions made since 1850 ought to be overturned, In Justice Thomas’ view, the Incorporation Doctrine may be suspect. For more of the story, see the Washington Post article cited below.
Application of the Second Amendment to the States currently depends on the incorporation doctrine. If it were overturned, States would be free to infringe “the right of the people to keep and bear arms.” How about that?
Justice Thomas did write in favor of incorporation of the Second Amendment in McDonnald vs. Chicago (2010), but based his opinion on the immunities clause of the Fourteenth Amendment rather than the due process clause.
(Thanks to Deb Meeker for suggesting the WP article)
© William Hungerford – July 2014