An Anti-Incorporation Decision

by Kevin R. C. Gutzman on June 22, 2009

I lamented here that the Supreme Court’s decision in District of Columbia v. Heller, __ U.S. __, 128 S. Ct. 2783, 171 L. Ed. 2d 637 (2008), seemed about to be “incorporated” into the Fourteenth Amendment’s Due Process Clause—that is, enforced against the states. Since then, however, comes news that a New Jersey appellate court has now found the Second Circuit’s decision not to “incorporate” more persuasive. Mayhap sanity will reign.

Maybe, on the other hand, the Supreme Court will have to take up the issue. It generally dislikes conflict among circuits, as has now developed between the Second and Ninth. That would give some enterprising originalist an opportunity to level a blast at the Incorporation Doctrine generally. (It would also provide phony “originalist” Antonin Scalia an opportunity to explain that he doesn’t want to refight the incorporation battle.)

From his previous post:

James Madison endeavored in the First Congress to include in Congress’s proposed bill of rights an amendment providing for federal judicial oversight of states’ behavior in respect to certain rights. His effort was unavailing. Thus, when “originalist” Antonin Scalia announced that the First Amendment establishes a right to burn a flag enforceable by federal courts against state authorities, he showed exactly how “originalist” he really is.