Later this term the U.S. Supreme Court will hear argument in a case that presents one of the most fundamental but not recently encountered questions in the area of individual rights and liberties: Does a provision of the Bill of Rights apply to states and localities, as opposed to only the federal government? The dispute before the Court arises in the intensely controversial context of gun control and follows the Court’s 2008 ruling in District of Columbia v. Heller1 that Second Amendment protections extend to individuals subject to federal jurisdiction (namely the District of Columbia). Now, in a post-Heller case in which the U.S. Court of Appeals for the Seventh Circuit upheld local gun bans in Illinois (prompting death threats directed at the judges who decided the case), the Court will decide whether the Second Amendment also binds the states.

That there is any question about the applicability of a Bill of Rights provision to the states may strike many as odd, given that enforcement of the Bill of Rights against states and localities is a staple of our modern legal system. However, while the Supreme Court has held that most provisions of the Constitution’s first eight amendments do apply to the states, the Court long ago rejected the notion that the Bill of Rights applies across the board to the states, some important provisions remain unenforceable against the states, and there are arguments supporting the position that the Second Amendment does not apply to the states.

‘Incorporating’ Bill of Rights

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