The Relationship Between Selective Incorporation and the Second Amendment

The United States Constitution’s Bill of Rights originally constrained only the federal government. The Second Amendment, protecting the right to keep and bear arms, stood as a federal shield for nearly two centuries before it was applied to the states. This application occurred through the doctrine of selective incorporation, a judicial mechanism that uses the Fourteenth Amendment’s Due Process Clause to make specific federal rights binding on state governments. The relationship between selective incorporation and the Second Amendment is not merely a historical footnote; it is a dynamic and contentious area of constitutional law that continues to shape every facet of American gun policy, from background checks to concealed-carry permits. Understanding this relationship requires a deep dive into the origins of the Second Amendment, the evolution of incorporation doctrine, and the landmark Supreme Court cases that have, step by step, brought the right to bear arms into the states.

Understanding the Second Amendment in Its Original Context

The Second Amendment, ratified in 1791 as part of the Bill of Rights, reads: “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.” For much of American history, the amendment was interpreted as protecting a collective right related to militia service. The phrase “well regulated Militia” was understood as a precondition for the right. This collective-right interpretation allowed states and the federal government to enact substantial gun regulations without significant constitutional challenge.

However, a growing body of scholarship and judicial opinion in the late 20th century argued that the Second Amendment protects an individual right to possess firearms for self-defense, hunting, and other lawful purposes. This individual-right view gained traction and culminated in the Supreme Court’s 2008 decision in District of Columbia v. Heller, which explicitly held that the Second Amendment protects an individual’s right to keep a handgun at home for self-defense. But Heller only addressed the federal government and the District of Columbia; it left open whether that same right applied to state and local governments.

What Is Selective Incorporation? The Fourteenth Amendment’s Role

Selective incorporation is a constitutional doctrine developed by the Supreme Court over the 20th century. It rests on the Fourteenth Amendment, ratified in 1868, which includes the Due Process Clause: “nor shall any State deprive any person of life, liberty, or property, without due process of law.” The Court interpreted “liberty” as encompassing certain fundamental rights from the Bill of Rights, making them enforceable against the states. Not all rights were “incorporated” at once; the Court chose to apply them one by one, hence the term “selective.”

The process began in 1897 with Chicago, Burlington & Quincy Railroad Co. v. City of Chicago (just compensation for takings) and continued through the 1960s, incorporating protections such as freedom of speech (Gitlow v. New York, 1925), freedom of the press (Near v. Minnesota, 1931), the right to counsel (Gideon v. Wainwright, 1963), and the right against self-incrimination (Malloy v. Hogan, 1964). By the 1970s, nearly all provisions of the Bill of Rights had been incorporated. The Second Amendment, however, remained conspicuously unincorporated.

The Second Amendment Before Incorporation: A State-Based Right

Before incorporation, the Second Amendment was understood as a restriction only on the federal government. The Supreme Court’s 1876 decision in United States v. Cruikshank explicitly stated that the Second Amendment “has no other effect than to restrict the powers of the national government.” The case arose from the Colfax massacre in Louisiana, where white supremacists disarmed and murdered Black citizens. The Court refused to apply the Second Amendment to the states, leaving Black communities vulnerable to state-sponsored disarmament.

Similarly, in Presser v. Illinois (1886), the Court upheld an Illinois law prohibiting private paramilitary organizations, ruling that the Second Amendment did not limit state power. These early decisions cemented the idea that the right to bear arms was a matter of state law, not federal constitutional protection. As a result, states could enact a wide range of gun control laws—from outright bans on handguns to licensing schemes—without conflict with the U.S. Constitution.

The Pathway to Incorporation: Heller and McDonald

District of Columbia v. Heller (2008)

The turning point came in 2008. In District of Columbia v. Heller, the Supreme Court struck down Washington, D.C.’s handgun ban, holding that the Second Amendment protects an individual right to possess a firearm for self-defense in the home. The 5–4 decision, authored by Justice Antonin Scalia, relied on originalist interpretation of the amendment’s text and history. The Court explicitly noted that the right was not unlimited—it did not protect “any weapons whatsoever in any manner whatsoever and for whatever purpose”—but it firmly established an individual constitutional right.

However, because Washington, D.C., is a federal enclave, the decision did not directly apply to state and local governments. The majority opinion cryptically noted that “the Second Amendment is not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose,” and it left open the question of whether the right applied to the states. That question would be answered two years later.

McDonald v. City of Chicago (2010)

In McDonald v. City of Chicago, the Supreme Court confronted a Chicago law that effectively banned handgun possession by requiring registration that was never granted. The petitioners argued that the Second Amendment should be incorporated against the states through the Fourteenth Amendment’s Due Process Clause. In another 5–4 decision, the Court agreed.

The plurality opinion, written by Justice Samuel Alito, held that the right to keep and bear arms for self-defense is “fundamental to the nation’s scheme of ordered liberty.” The Court incorporated the Second Amendment through the Due Process Clause, applying the same test used for other incorporated rights: whether the right is “deeply rooted in this Nation’s history and tradition.” The Court cited English common law, colonial statutes, and early state constitutions to demonstrate that the right to self-defense has long been recognized.

The McDonald decision effectively overruled Cruikshank and Presser on the issue of incorporation. The Second Amendment was now binding on state and local governments, meaning that state firearm laws could be challenged under the U.S. Constitution. However, the Court left open the possibility that many existing gun regulations—such as bans on felons possessing firearms or restrictions on carrying weapons in sensitive places—could survive scrutiny.

The Mechanics of Selective Incorporation: How It Works

Selective incorporation is not automatic. The Supreme Court must determine, on a right-by-right basis, whether a specific protection is “implicit in the concept of ordered liberty” or “fundamental to the American scheme of justice.” For the Second Amendment, the Court in McDonald used a two-step test: first, examine whether the right is historically fundamental; second, apply it to the states through the Due Process Clause.

Importantly, incorporation under the Due Process Clause means that state governments are bound by the same constitutional standard that applies to the federal government. But the standard itself can evolve. For example, after McDonald, lower courts have struggled to define the “scope” of the Second Amendment right—what regulations are permissible? The Supreme Court has provided guidance in New York State Rifle & Pistol Association v. Bruen (2022), which created a new test: firearm regulations must be consistent with the historical tradition of firearm regulation in the United States. This historical test has upended many modern gun laws and sparked a wave of litigation.

Current Status of Incorporation and Its Implications

What Has Been Incorporated?

Through McDonald, the core right to keep a handgun in the home for self-defense is incorporated. The Court has not yet fully incorporated the right to carry firearms outside the home—that issue was addressed in Bruen, but the Bruen decision applied to a New York law, and the question of incorporation was not separately litigated because McDonald had already incorporated the Second Amendment generally. Lower courts have taken conflicting approaches, with some viewing Bruen as having incorporated the right to carry, while others treat it as a separate question. The Supreme Court has not directly clarified whether the right to carry in public is a “fundamental” right that states must respect, though the Bruen majority assumed without deciding that the Second Amendment applies to the states in the same manner as the federal government.

What Has Not Been Incorporated?

Not all Second Amendment issues are settled. For example, the Court has not ruled on whether the Second Amendment protects the right to possess firearms by non-citizens, or whether the right extends to certain types of weapons (like assault weapons or large-capacity magazines). These questions remain open, and lower courts are divided. Additionally, the historical test from Bruen applies to both state and federal law, but how that test interacts with state-specific traditions is still being sorted out. Some scholars argue that the historical analysis must account for state regulations that were enacted long before incorporation, whereas others insist that only regulations in effect at the time of the Second Amendment’s ratification (1791) or the Fourteenth Amendment’s ratification (1868) are relevant.

Implications for Law and Society

Impact on State Gun Laws

The incorporation of the Second Amendment has dramatically changed the legal landscape. Before McDonald, states could impose near-total bans on handguns—Chicago did. After McDonald, such bans are clearly unconstitutional. States have had to revise their laws to comply with the Second Amendment as interpreted by federal courts. For instance, many states that required a “good cause” showing to obtain a concealed-carry license have been forced to adopt “shall-issue” regimes following Bruen. The number of states that allow permitless carry has also increased, partly because of the constitutional pressures created by incorporation.

At the same time, incorporation has not eliminated all state variations. States retain significant power to regulate firearms, as long as the regulations do not violate the Second Amendment as incorporated. For example, states can still prohibit felons from possessing firearms, restrict firearms in schools and government buildings, and require background checks for sales. The scope of permissible regulation remains a hotly contested issue in courts and legislatures.

Selective incorporation of the Second Amendment has sparked numerous legal debates. Key questions include:

  • What standard of review applies to Second Amendment challenges? The Court in Bruen rejected a “means-end scrutiny” framework and instead adopted a historical-tradition test. Critics argue that this test is unworkable and leads to inconsistent results. Supporters say it restores the original meaning of the Second Amendment.
  • Does the Second Amendment protect the right to carry firearms in public? The Bruen decision assumed it does but left details for lower courts. Many states have since seen litigation over public-carry restrictions.
  • Can states ban certain types of firearms, such as AR-15-style rifles? The historical test requires looking at whether such weapons were regulated in a similar way historically. Lower courts are split; some have upheld bans after finding historical analogues, while others have struck them down.
  • What about “sensitive places”? The Court in Bruen suggested that bans in sensitive places (schools, courthouses, polling places) are presumptively valid, but lower courts are struggling to define the scope of that category.

Several high-profile cases are currently pending in the lower courts and may reach the Supreme Court. For example, challenges to California’s ban on assault weapons and large-capacity magazines, New York’s new concealed-carry restrictions, and federal laws prohibiting firearm possession by individuals subject to domestic violence restraining orders are all making their way through the courts. The outcome of these cases will further define the boundaries of the incorporated Second Amendment right.

Societal Impact

The incorporation of the Second Amendment has not only legal but also profound societal implications. It has empowered individuals to challenge restrictive gun laws, but it has also limited states’ ability to address gun violence through legislation. Advocates of gun rights view incorporation as a necessary protection of individual liberty, while gun-control proponents argue that it impedes public safety measures. The debate reflects deeper divisions in American society over the meaning of the Second Amendment.

Incorporation also affects law enforcement practices. For instance, in Bruen, the Court invalidated New York’s “proper cause” requirement, which had been used to deny permits to many applicants. As a result, more people are legally carrying firearms in public, which changes police interactions and community safety dynamics. The long-term effects on crime rates, police tactics, and public perception are still being studied.

Historical Context and the Path Not Taken

It is worth noting that the Supreme Court could have incorporated the Second Amendment through a different legal path—the Privileges or Immunities Clause of the Fourteenth Amendment. That clause, which says “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States,” was the original basis for applying the Bill of Rights to the states. In the Slaughter-House Cases (1873), the Court effectively read that clause out of the Constitution, limiting it to a narrow set of federal rights. If the Court in McDonald had revived the Privileges or Immunities Clause, it might have incorporated the Second Amendment along with other unenumerated rights. Instead, the Court stuck with the Due Process Clause, continuing the selective incorporation tradition.

The historical alternative matters because it affects the scope of incorporated rights. Under the Due Process Clause, incorporation depends on a right’s being “fundamental.” Under the Privileges or Immunities Clause, the right might be broader, as it could protect any “privilege” of national citizenship. However, the Court has shown no appetite for overturning Slaughter-House, so the Due Process framework remains the law.

Conclusion: An Evolving Relationship

The relationship between selective incorporation and the Second Amendment is a story of constitutional adaptation. From a right that once applied only to the federal government, the Second Amendment has been incorporated as a fundamental liberty binding on every state. This evolution has reshaped American gun policy, ignited fierce legal debates, and altered the balance of power between states and the federal government. Yet the process is far from complete. With each new case, the Supreme Court refines the scope of the right, testing the limits of historical analysis and the boundaries of state regulation.

As the legal landscape continues to shift, one thing is clear: selective incorporation has made the Second Amendment a vibrant and contested part of everyday American law. Whether through the halls of Congress, state legislatures, or the Supreme Court, the debate over what the incorporated Second Amendment means will persist for years to come.

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