the Bill of Rights provisions to the states.65 It was not until Chicago, Burlington & Quincy Railroad v. Chicago66 (1897) that the Court first suggested that the Due Process Clause of the Fourteenth Amendment could be a vehicle for incorporation.

Since the early incorporation cases, the Supreme Court has followed a process of “selective incorporation”—not all provisions of the Bill of Rights are automatically made applicable to the states. Rather, individual provisions must pass the test for incorporation outlined in Palko v. Connecticut (1937): to qualify for incorporation, a right must be “implicit in the concept of ordered liberty.”67 In Duncan v. Louisiana (1968), the Court elaborated on this test: the question is “whether a right is among those ‘fundamental principles of liberty and justice which lie at the base of all our civil and political institutions,’ whether it is ‘basic in our system of jurisprudence,’ and whether it is a ‘fundamental right, essential of a fair trial.’”68

Since outlining the modern incorporation test, the Supreme Court has not reexamined the issue of incorporating the Second Amendment’s guarantee into the concept of due process.69 Commentators have argued that a faithful application of the modern test, however, would require incorporation of the amendment.70 These commentators suggest that the text of the Second Amendment’s prefatory clause, remarking on the right being “necessary for the security of a free State,” is strikingly similar to the current incorporation test: “implicit in the concept of ordered liberty.”71 If the Second Amendment is deemed to protect an individual right, resolution of the incorporation question will determine how far the guarantee reaches: which restrictions—federal only or state as well—will be affected.

II. REVIEWING RESTRICTIONS ON AN INDIVIDUAL SECOND AMENDMENT RIGHT

As previously noted, an individual right interpretation of the Second Amendment raises a number of issues: how to delineate the scope of the individual right, identify infringements of that right, and determine which

65  

See, e.g., Barron v. Baltimore, 32 U.S. (7 Pet.) 243, 247 (1833) (“The constitution was ordained and established by the people of the United States for themselves, for their own government, and not for the government of the individual states”).

66  

166 U.S. 226 (1897).

67  

302 U.S. 319, 325 (1937).

68  

391 U.S. 145, 148-49 (1968) (citations omitted).

69  

See Lund, The Past and Future of the Individual’s Right to Arms, 31 Ga. L. Rev. at 48 (listing three cases in which the Court has declined to address the issue).

70  

See id. at 50 (“If the Court has the slightest regard for doctrinal consistency, it will have no choice except to incorporate the Second Amendment”).

71  

See id. at 53.



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