The Constitutional Foundation: Understanding Selective Incorporation

The Bill of Rights, ratified in 1791, originally applied only to the federal government. States were free to establish their own rules regarding fundamental liberties—some protected rights that the federal government could not touch, while others did not. This created a patchwork of protections across the country. The Fourteenth Amendment, ratified in 1868, changed the landscape by introducing the Due Process Clause: “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law.”

But the Supreme Court did not immediately interpret the Fourteenth Amendment as applying the entire Bill of Rights to the states. Instead, over the course of the 20th century, the Court developed the doctrine of selective incorporation. Under this doctrine, the Court examines each right in the Bill of Rights to decide whether it is “fundamental to ordered liberty” and therefore must be enforced against state governments through the Due Process Clause. This piecemeal approach stands in contrast to total incorporation, which would apply every provision wholesale.

Selective incorporation has allowed the Court to adapt constitutional protections to evolving societal standards while maintaining federalism. Landmark cases like McDonald v. Chicago (2010) serve as powerful demonstrations of how the doctrine works in practice and why it remains a vital tool for safeguarding individual liberties.

The Historical Path to McDonald v. Chicago

Early Incorporation Decisions

The journey began with Chicago, Burlington & Quincy Railroad Co. v. Chicago (1897), where the Court incorporated the Fifth Amendment’s just-compensation requirement. The real turning point came in Gitlow v. New York (1925), when the Court first suggested that the First Amendment’s free speech and free press protections applied to the states through the Due Process Clause, even though the Court upheld Gitlow’s conviction. Subsequent cases gradually added more rights: Near v. Minnesota (1931) incorporated freedom of the press; De Jonge v. Oregon (1937) incorporated the right of assembly; Cantwell v. Connecticut (1940) incorporated free exercise of religion.

The Incorporation of Criminal Procedure Rights

The Warren Court era saw a rapid expansion of incorporation in criminal procedure. Mapp v. Ohio (1961) applied the exclusionary rule; Gideon v. Wainwright (1963) incorporated the right to counsel; Miranda v. Arizona (1966) established safeguards for custodial interrogations. By the late 1960s, most provisions of the Bill of Rights had been selectively incorporated—with two notable exceptions: the Second Amendment and the Third Amendment.

The Pre-McDonald Landscape: Second Amendment Uncertainty

For decades, the Second Amendment’s meaning and scope were contested. The Supreme Court had not addressed the issue directly since United States v. Miller (1939), which involved a federal law and offered only ambiguous guidance. Most lower courts interpreted the Second Amendment as protecting a collective right tied to militia service, not an individual right to possess firearms for self-defense. As a result, states and localities enacted a wide range of gun control laws without fear of constitutional challenge.

That changed in District of Columbia v. Heller (2008), where the Supreme Court ruled—5-4—that the Second Amendment protects an individual’s right to keep and bear arms for traditional lawful purposes, such as self-defense in the home. However, Heller was a case about a federal enclave (Washington, D.C.), so its holding did not directly bind state and local governments. The question remained: Did the Second Amendment apply to the states through the Fourteenth Amendment?

McDonald v. Chicago: The Case and the Decision

Facts and Procedural History

Chicago had one of the nation’s strictest gun laws. After Heller, the city maintained its handgun ban, arguing that the Second Amendment did not apply to states. Otis McDonald and other Chicago residents sued, contending that the ban violated their right to keep a handgun in the home for self-defense. The district court and the Seventh Circuit Court of Appeals upheld Chicago’s law, relying on precedent that the Second Amendment had not been incorporated. The Supreme Court granted certiorari to resolve the incorporation question.

The Supreme Court’s Ruling

In a 5-4 decision authored by Justice Samuel Alito, the Court reversed the lower courts and held that the Second Amendment is fully applicable to the states through the Fourteenth Amendment’s Due Process Clause. The Court applied the selective incorporation test used in Duncan v. Louisiana (1968): whether a right is “fundamental to our scheme of ordered liberty” and “deeply rooted in this Nation’s history and tradition.” The majority concluded that the right to keep and bear arms for self-defense meets that standard, noting that it is “fundamental to an ordered scheme of liberty” and has been recognized as a pre-existing, individual right since before the Founding.

The Court relied on the historical record, including evidence that the Framers of the Fourteenth Amendment intended to protect Second Amendment rights against state action. Justice Alito wrote that the “the Second Amendment protects a right that is fundamental to our scheme of ordered liberty” and therefore must be incorporated. The decision also cited the Due Process Clause rather than the Privileges or Immunities Clause, even though several justices expressed sympathy with the latter approach in concurrences.

Concurring and Dissenting Opinions

Justice Clarence Thomas concurred separately, arguing that the Privileges or Immunities Clause—not the Due Process Clause—should be the vehicle for incorporation. He criticized the Court’s selective incorporation doctrine as lacking a consistent textual basis and urged a return to the original meaning of the Fourteenth Amendment.

The four dissenters—Justices Stevens, Breyer, Ginsburg, and Sotomayor—argued that the majority overstepped by incorporating the Second Amendment. Justice Breyer wrote a lengthy dissent asserting that the right to bear arms is not fundamental in the same way as speech or religion, and that the Court should defer to state and local governments on gun regulation. Justice Stevens argued that the Due Process Clause was an inappropriate route and that the historical evidence was ambiguous.

Immediate and Long-Term Impact of McDonald v. Chicago

State and Local Gun Laws Under Scrutiny

By incorporating the Second Amendment, McDonald subjected thousands of state and local gun regulations to constitutional review. Courts across the country began applying the two-step framework developed in Heller and McDonald: first, determine whether the regulated conduct falls within the plain text of the Second Amendment; second, if so, apply some form of heightened scrutiny. This led to challenges against laws restricting magazine capacities, assault weapons, concealed carry, and registration requirements.

Impact on Self-Defense Rights

The decision cemented the idea that the right to self-defense in the home is a fundamental liberty that states may not unreasonably infringe. Lower courts often upheld reasonable regulations—such as background checks and waiting periods—but struck down near-total bans or excessive burdens. The ruling also paved the way for later cases like United States v. Rahimi (2024), which addressed Second Amendment rights in the context of domestic violence restraining orders.

Reinforcement of Selective Incorporation Doctrine

McDonald reaffirmed the Court’s commitment to selective incorporation as the method of applying the Bill of Rights to the states. By using the fundamental-rights test from Duncan, the Court showed continuity with earlier incorporation cases. This meant that future attempts to incorporate other unincorporated rights (such as the Third Amendment’s quartering prohibition or the Eighth Amendment’s excessive fines clause) would follow the same analytical path. Indeed, in Timbs v. Indiana (2019), the Court incorporated the Eighth Amendment’s excessive fines clause using the same logic.

Selective Incorporation: A Doctrine in Evolution

The Role of the Due Process Clause

The Due Process Clause has proven to be a flexible instrument for incorporation. The Court has consistently held that the clause protects only those rights that are “implicit in the concept of ordered liberty,” a standard articulated in Palko v. Connecticut (1937). This standard requires that the right be so fundamental that neither liberty nor justice would exist if it were sacrificed. Over time, the Court has incorporated nearly all the protections of the Bill of Rights, from the First Amendment’s speech and press clauses to the Fifth Amendment’s double jeopardy and self-incrimination protections.

Unincorporated Rights and Future Possibilities

As of 2025, only a few provisions remain unincorporated: the Third Amendment (quartering soldiers), the Fifth Amendment’s grand jury indictment requirement, and the Seventh Amendment’s civil jury trial right. The Court has occasionally signaled willingness to reconsider the Seventh Amendment issue, but no direct challenge has reached the high court recently. The Third Amendment has never been presented in a serious incorporation case; given its limited modern relevance, it may never be.

Comparing Selective Incorporation Across Constitutional Rights

First Amendment: The Gold Standard

The First Amendment’s protections for speech, press, assembly, petition, and free exercise were among the first to be incorporated. Gitlow v. New York (1925) opened the door, and by 1940 most First Amendment freedoms were binding on the states through the Due Process Clause. This ensured that states could not, for example, criminalize political dissent solely because it advocated unpopular ideas—a principle reaffirmed in Brandenburg v. Ohio (1969).

Criminal Procedure: A Broad Incorporation

The Fourth, Fifth, Sixth, and Eighth Amendments have been almost entirely incorporated. Mapp v. Ohio (1961) applied the exclusionary rule; Gideon v. Wainwright (1963) required states to provide counsel for indigent defendants in felony cases; Miranda v. Arizona (1966) required warnings before custodial interrogation. The Court incorporated the right to confrontation in Pointer v. Texas (1965), the right to compulsory process in Washington v. Texas (1967), and the right to a speedy trial in Klopfer v. North Carolina (1967). Each decision relied on the selective incorporation framework.

The Second Amendment: Late but Fundamental

McDonald stands as the most significant incorporation case of the 21st century. Its holding that the Second Amendment right is fundamental means that states must provide at least as much protection as the federal government. The decision has generated intense debate about how far the right extends—for example, whether it protects carrying firearms in public—but it firmly established that the Second Amendment is no longer an unincorporated outlier.

Criticisms and Defenses of Selective Incorporation

Criticisms

Some scholars and judges argue that selective incorporation is an illegitimate judicial creation. Justice Thomas, as noted, has criticized the Due Process Clause based incorporation as an “unworkable” and “atextual” doctrine. Others contend that the Court has been too aggressive, second-guessing state policy choices about local conditions. Critics also point to the uneven application: some rights (like the right to bear arms) were incorporated late, while others (like the right to counsel) were incorporated quickly. This inconsistency, they argue, undermines the rule of law.

Defenses

Defenders argue that selective incorporation is the only way to protect fundamental rights from state abuse without imposing every technical detail of the Bill of Rights on local governments. The doctrine respects federalism by allowing states to innovate, as long as they do not violate core liberties. Moreover, it provides a mechanism for the Constitution to adapt as society’s understanding of “ordered liberty” evolves. The slow, case-by-case approach also allows the Court to build a careful body of precedent through experience.

Practical Consequences for State Legislatures

After McDonald, states and municipalities must ensure their gun laws comply with the Second Amendment as interpreted by federal courts. This has led to a wave of litigation. Many “may-issue” concealed carry regimes were challenged as unconstitutional restrictions on the right to bear arms. The Supreme Court took up that issue in New York State Rifle & Pistol Association v. Bruen (2022), which held that the Second Amendment protects a right to carry a handgun in public for self-defense. Bruen built directly on McDonald and Heller, further extending the reach of selective incorporation into areas of daily life.

State and local governments also face the reality that they cannot circumvent the Second Amendment through creative definitions or heavy burdens. Courts have struck down laws requiring “good cause” to obtain a permit, laws banning commonly owned firearms, and laws imposing exorbitant fees. At the same time, courts have upheld regulations like firearm possession by felons, background check requirements, and bans on sensitive locations (e.g., schools and government buildings).

The Future of Selective Incorporation

The Supreme Court continues to rely on selective incorporation in modern cases. In Ramos v. Louisiana (2020), the Court incorporated the Sixth Amendment’s requirement of a unanimous jury verdict, overruling a 48-year-old precedent. The decision used the same fundamental-rights analysis that had been applied in earlier incorporation cases. And in Timbs v. Indiana (2019), the Court applied the Eighth Amendment’s excessive fines clause to the states, reaffirming that incorporation is an ongoing process.

Selective incorporation may also play a role in emerging constitutional issues, such as the right to privacy, reproductive autonomy, and digital privacy. Although these rights do not appear in the Bill of Rights, some are derived from its “penumbras.” The Court could incorporate such rights through the same Due Process framework if they are deemed fundamental. However, the current Court’s originalist leanings may limit such expansion, as seen in Dobbs v. Jackson Women’s Health Organization (2022), which overruled Roe v. Wade and held that abortion was not a fundamental right under the Due Process Clause—effectively de-incorporating a previously recognized liberty.

Conclusion

McDonald v. Chicago stands as a landmark not only for Second Amendment rights but also for the enduring doctrine of selective incorporation. By applying the Second Amendment to the states through the Due Process Clause, the Supreme Court reinforced an interpretive method that has shaped American constitutional law for nearly a century. The decision ensured that a right the Court had declared fundamental in Heller would not be left to the whims of state legislatures. It also demonstrated that selective incorporation remains a living, flexible tool—one that can extend constitutional protections to new contexts while respecting the balance between federal and state authority.

The path from Gitlow to McDonald illustrates how the Bill of Rights has evolved from a constraint on federal power alone into a guarantee of essential liberties for every American, no matter where they live. As the Court continues to face novel challenges—from digital privacy to self-governance—the selective incorporation framework will remain central to the task of securing ordered liberty under the Constitution.