A Quick Primer on ‘Incorporation’

What is “incorporation?”

Among the many legal terms mentioned over the last four days of Supreme Court nominee Sonia Sotomayor’s confirmation hearings, the term “incorporation,” when it comes to the Second Amendment right to bear arms, is probably the most confusing.

Incorporation in this context refers to whether the Bill of Rights applies to the states, as opposed to just the federal government — that is, are these rights incorporated by the Due Process Clause of the Fourteenth Amendment, because they are considered “fundamental to a scheme of ordered liberty,” as the Supreme Court has put it. The First Amendment rights to free speech and exercise of religion, for example, have been incorporated.

But the Bill of Rights has been “incorporated” to the states on a case-by-case basis, and the Supreme Court has never ruled on whether the right to bear arms enumerated in the Second Amendment is a “fundamental” right such that it should apply to the states. In fact, for years it wasn’t even clear that it was an “individual” right as opposed to the right of a state to maintain a militia, for example. Then, last year in District of Columbia v. Heller, the Supreme Court ruled for the first time that the Second Amendment does guarantee an “individual right” to gun possession, at least in one’s home.

This is why some Republicans at the Sotomayor hearings have focused so many of their questions on whether she sees the right to bear arms as a “fundamental right” and whether it applies to the states.

In the one relevant case she has ruled on, Maloney v. Cuomo, Sotomayor and two of her colleagues on the Second Circuit Court of Appeals ruled that it’s not “fundamental,” in that sense. But they argued — and she has now argued repeatedly during her confirmation hearings — that the current state of the law required that conclusion. Whether it did or not, though, remains controversial, given that the three-judge panel relied largely on a case from the 19th century that found the Second Amendment does not apply to the states. That was before the Supreme Court started ruling in a series of cases that the Fourteenth Amendment “incorporates” portions of the Bill of Rights, making them applicable to the states.

Because the Supreme Court had never revisited the question with regard to the Second Amendment, the Second Circuit — and Judge Sotomayor — argued that the 1886 case of Presser v. Illinois still stands, and that according to another Supreme Court case about the role of Courts of Appeals, they had to follow it. Other courts have agreed (pdf). In fact, the Seventh Circuit recently explicitly followed the Second Circuit’s lead on the issue, saying that “if a court of appeals could disregard a decision by the Supreme Court by identifying, and accepting, one or another contention not expressly addressed by the justices, the Court’s decisions could be circumvented with ease. They would bind only judges too dim-witted to come up with a novel argument.”

Critics who believe the Second Amendment should apply to the states, however, argue that Sotomayor and her colleagues, who addressed the issue in a short per curiam (unsigned) opinion, failed to adequately address whether under the Supreme Court’s due process analysis, gun ownership is a “fundamental right” and therefore applies to the states.

The National Rifle Association earlier today issued a statement opposing Sotomayor’s confirmation.

A New York lawyer and owner of nunchucks — a weapons used in martial arts that is prohibited by the New York law that was upheld by Sotomayor and her colleagues in the case Maloney v. Cuomo — has asked the high court to use his case to decide the issue once and for all.