Lesson 14: The Bill of Rights & Selective Incorporation

Starter

In 2008, the Supreme Court struck down Washington, D.C.'s handgun ban, ruling for the first time that the Second Amendment protects an individual's right to keep a firearm for self-defense. But there was a catch hidden in the address: Washington, D.C. is a federal enclave. The ruling told you what the national government could not do — and said nothing about Chicago, or Texas, or any of the fifty states.

So a Chicago resident named Otis McDonald, who wanted a handgun to protect himself in a high-crime neighborhood, asked the obvious follow-up question: does the Second Amendment bind my city too? For most of American history the answer would have been a flat no — the Bill of Rights restrained only Washington. Today's lesson is the story of how that no became a yes, one amendment at a time, and the constitutional machinery — the Fourteenth Amendment — that made it possible.

Core Concepts

The Bill of Rights: a leash on the federal government

The first ten amendments — the Bill of Rights, ratified in 1791 — were the price the Anti-Federalists extracted for ratifying the Constitution. Recall Brutus No. 1 from Unit 1: the fear was that a powerful central government would swallow individual liberty. The Bill of Rights answered that fear by listing things the government cannot do to you: it cannot establish a religion or abridge speech (First Amendment), cannot conduct unreasonable searches (Fourth), cannot compel you to testify against yourself (Fifth), cannot inflict cruel and unusual punishment (Eighth).

Here is the part students miss: as originally understood, every one of those restraints applied only to the national government. The First Amendment even says so — "Congress shall make no law..." When it was written, your protection against censorship or an established church was a shield against Washington, not against your state capital. A state could, in 1791, run an official church or censor a newspaper, and the federal Bill of Rights had nothing to say about it.

The Supreme Court made this explicit in Barron v. Baltimore (1833). The city of Baltimore had ruined a man's wharf with sediment from street work, and he sued, claiming the Fifth Amendment's command that private property not be "taken... without just compensation" applied to the city. Chief Justice Marshall said no: the Bill of Rights "contain[s] no expression indicating an intention to apply them to the State governments." For the next century, the Bill of Rights was a one-way leash — it bound the federal government and left the states free.

The Fourteenth Amendment: a new vehicle (1868)

The Civil War cracked that framework open. The Fourteenth Amendment (1868), one of the three "Reconstruction Amendments," was written to protect newly freed Black Americans from state abuse — and its text, for the first time, pointed its commands directly at the states:

"No State shall... deprive any person of life, liberty, or property, without due process of law..."

That phrase — the Due Process Clause — is the hinge of all of Unit 3. Notice what changed: the Bill of Rights said "Congress shall make no law"; the Fourteenth Amendment says "No State shall." For the first time, the Constitution contained a clause that explicitly restrained the states and protected individual "liberty." The question the Court would wrestle with for the next century was deceptively simple: when the Fourteenth Amendment forbids states from depriving people of "liberty," does "liberty" include the freedoms listed in the Bill of Rights?

Selective incorporation: the case-by-case answer

The answer the Court settled on is called incorporation — the doctrine that the Due Process Clause "incorporates" Bill of Rights protections and applies them against the states. But how much of the Bill of Rights? Two theories competed:

• Total incorporation (the road not taken): the view, urged by Justice Hugo Black, that the Fourteenth Amendment applies the entire Bill of Rights to the states all at once, as a package.
• Selective incorporation (the road the Court actually took): the Bill of Rights is applied to the states one right at a time, case by case, incorporating a protection only when the Court decides that right is "fundamental" — "deeply rooted in this Nation's history and tradition" and "implicit in the concept of ordered liberty."

Selective incorporation won. The Court never adopted total incorporation. Instead it has spent roughly a century picking up Bill of Rights protections individually and applying each to the states through the Fourteenth Amendment Due Process Clause. The practical result is nearly total — most of the Bill of Rights now binds the states — but it got there selectively, decision by decision, not in one sweep.

The starting gun was Gitlow v. New York (1925). Benjamin Gitlow, a socialist, was convicted under a New York state law for distributing a radical manifesto. He lost his case — the Court upheld his conviction — but in the opinion the Court announced something far bigger than his fate: freedom of speech and press "are among the fundamental personal rights and 'liberties' protected by the due process clause of the Fourteenth Amendment from impairment by the States." That sentence incorporated the First Amendment's speech protection and opened the door every later case walked through.

From there the Court added rights one at a time across the twentieth century — speech and press, the religion clauses, the right to counsel (Gideon v. Wainwright, 1963), protection against unreasonable searches, and many more. The newest major addition is our required case.

McDonald v. Chicago (2010): incorporating the Second Amendment

In District of Columbia v. Heller (2008), the Court held that the Second Amendment protects an individual right to keep a handgun at home for self-defense — but because D.C. is federal territory, Heller only restrained the national government. Two years later, McDonald v. Chicago (2010) finished the job. Chicago had a handgun ban essentially identical to D.C.'s. The Court ruled, 5–4, that the Second Amendment right recognized in Heller is incorporated — applied to the states and cities through the Fourteenth Amendment's Due Process Clause. Justice Alito's opinion reasoned that the right to armed self-defense is "fundamental" and "deeply rooted in this Nation's history and tradition," the test selective incorporation requires.

McDonald is the textbook illustration of the whole machine: a Bill of Rights protection (Second Amendment) → declared fundamental → applied to the states → via the Fourteenth Amendment Due Process Clause. If you can explain McDonald, you can explain incorporation.

Not everything is incorporated

Because incorporation is selective, a few Bill of Rights protections have never been applied to the states. The most testable examples:

• The Third Amendment (no quartering of soldiers in homes) — never incorporated by the Supreme Court.
• The Fifth Amendment's grand jury indictment requirement — states may use other charging methods (e.g., a prosecutor's "information").
• The Seventh Amendment's guarantee of a jury in civil suits — not incorporated.

These leftovers are the proof that the Court chose selective, not total, incorporation.

Civil liberties vs. civil rights — the line that defines the unit

Civil liberties = protections from the government — limits on what the government can do to you (speech, religion, due process, the Bill of Rights). The question is "what can the government not do to me?"

Civil rights = protection from discrimination — the government's obligation to treat groups equally and to shield people from unequal treatment based on race, sex, and other characteristics (rooted in the Fourteenth Amendment's Equal Protection Clause). The question is "am I being treated equally?"

This lesson, and incorporation generally, is a civil liberties story: it's about shielding individuals from government power. Lesson 18 (Brown, the Civil Rights Act, equal protection) is the civil rights story. Same Fourteenth Amendment, two different clauses — Due Process powers incorporation (liberties); Equal Protection powers anti-discrimination (rights).

In Practice. When the Court struck down Chicago's handgun ban in McDonald, the mechanism was civil liberties: an individual invoking a Bill of Rights protection (now applied to the state) against government restriction. Had Chicago instead banned handgun ownership only for one racial group, that would be a civil rights problem — an equal-protection question about discriminatory treatment. The facts can look similar; the constitutional clause tells you which box you're in.

Document Spotlight — The Fourteenth Amendment Due Process Clause & Selective Incorporation

Context. Ratified in 1868 after the Civil War, the Fourteenth Amendment was designed to bind the states — especially former Confederate states — to protect the freedoms and equality of newly emancipated Black Americans. It is the most litigated amendment in the Constitution, and Unit 3 leans on it twice: the Due Process Clause (this lesson) and the Equal Protection Clause (Lesson 18).

The constitutional mechanism. The key text: "No State shall... deprive any person of life, liberty, or property, without due process of law." Because the Bill of Rights originally restrained only the federal government (Barron v. Baltimore, 1833), the only way to apply those protections to the states is to read them into the word "liberty" in this clause. That reading is selective incorporation: the Court decides, right by right, that a given Bill of Rights freedom is "fundamental," and then applies it to the states through the Due Process Clause. The clause is the vehicle; the Bill of Rights is the cargo.

What it means. Your free-speech, free-exercise, right-to-counsel, and (since 2010) Second Amendment protections now restrain your state and local governments — not because the First or Second Amendment says so directly, but because the Court has incorporated them via the Fourteenth Amendment. A handful of rights (grand jury, Third Amendment, civil jury) remain un-incorporated, which is why the process is "selective," not "total."

How it's used on the AP exam. This is among the highest-yield facts in Unit 3. Whenever a prompt describes a state or local law restricting an individual freedom, the required move is: name the Bill of Rights protection, then explain that it binds the state through selective incorporation via the Fourteenth Amendment Due Process Clause. Saying "the First Amendment stops the state" without the incorporation step loses the point on an FRQ — the mechanism is what the rubric pays for.

SCOTUS Case Breakdown — McDonald v. Chicago (2010)

Facts of the case. Chicago enforced a handgun ban that made it nearly impossible for residents to lawfully keep a handgun at home. Otis McDonald and other residents challenged the ban after District of Columbia v. Heller (2008) had recognized an individual Second Amendment right to keep a handgun for self-defense — but Heller applied only to the federal government, because D.C. is a federal district. McDonald argued the same right should restrain Chicago and the states.

Constitutional question. Does the Second Amendment right to keep and bear arms, recognized in Heller, apply to the states through the Fourteenth Amendment?

Holding. Yes — the Second Amendment right to keep and bear arms for self-defense is incorporated and applies to the states through the Fourteenth Amendment's Due Process Clause (5–4).

Reasoning. Writing for the Court, Justice Alito applied the selective-incorporation test: a right binds the states if it is "fundamental to our scheme of ordered liberty" and "deeply rooted in this Nation's history and tradition." The right to self-defense, the Court held, met that test. The decision built directly on Heller: Heller defined the substance of the right (an individual right to keep a handgun for self-defense); McDonald defined its reach (it now restrains state and local governments, not just the federal government). The Court declined to incorporate the right through the Privileges or Immunities Clause, relying instead on the long-established Due Process route.

Impact / connections. McDonald is the most recent major act of selective incorporation and the cleanest modern illustration of the doctrine — the same mechanism that Gitlow v. New York (1925) began with free speech. Pair it with Heller as a unit: Heller = the right itself (vs. the federal government); McDonald = incorporation (the right applied to the states via the Fourteenth Amendment). It is also the classic FRQ 3 "comparison" case, because its incorporation reasoning can be lined up against any other incorporation decision.

Application Practice

Use the three-step move every time a state restricts a freedom: name the Bill of Rights protection → explain it binds the state via selective incorporation (14th Amendment Due Process Clause) → predict the analytical outcome.

Scenario 1 — A state speech restriction. A state legislature passes a law making it a crime to criticize the governor in a public protest. A protester is arrested and challenges the law. - Issue: freedom of speech (First Amendment) — a civil liberty. - Principle: the First Amendment restrains Congress by its text, but it was applied to the states in Gitlow v. New York (1925) through selective incorporation via the Fourteenth Amendment Due Process Clause. - Apply: because speech is incorporated, the state law is measured against First Amendment standards just as a federal law would be. - Predict: a content-based ban on criticizing an official is almost certain to fall; the analytically important point is the mechanism — the state is bound because the right is incorporated, not because the First Amendment names states.

Scenario 2 — A city gun ban after McDonald. A city passes an ordinance banning all handgun possession in private homes. A resident sues. - Issue: the right to keep and bear arms (Second Amendment) — a civil liberty. - Principle: McDonald v. Chicago (2010) incorporated the Second Amendment to states and localities through the Fourteenth Amendment Due Process Clause, building on Heller. - Apply: the city, like Chicago, is bound by the incorporated right; a flat ban on home handgun possession is the very thing McDonald rejected. - Predict: the ordinance is highly vulnerable. Note the structure: this is incorporation (McDonald), not the original recognition of the right (Heller).

Scenario 3 — Sorting liberties from rights. A state does two things: (1) it bars a religious group from holding a peaceful rally in a public park, and (2) it pays female state employees less than male employees doing identical work. Which is a civil liberties problem and which is a civil rights problem? - (1) is a civil liberties issue — government restricting a freedom (assembly/free exercise, incorporated via the Fourteenth Amendment Due Process Clause). The question is "what can the state not do to me?" - (2) is a civil rights issue — government discriminating between groups (sex-based unequal treatment, an Equal Protection Clause question). The question is "am I being treated equally?" - Takeaway: same Fourteenth Amendment, but Due Process powers incorporation (liberties) while Equal Protection powers anti-discrimination (rights). Naming the right clause is the whole skill.

Traps & Confusions

Civil liberties vs. civil rights. Liberties = protections from government (Bill of Rights freedoms, due process). Rights = protection from discrimination (equal treatment, Equal Protection Clause). Incorporation is a liberties doctrine. If the scenario is "government restricted my freedom," it's liberties; if it's "government treated my group unequally," it's rights.

Selective vs. total incorporation. The Court adopted selective incorporation — applying the Bill of Rights to the states one right at a time, only when a right is "fundamental." It rejected total incorporation (the whole Bill of Rights applied at once). Most rights are now incorporated, but a few (grand jury, Third Amendment, civil jury) are not — proof the process was selective.

Which clause is the vehicle. Incorporation runs through the Fourteenth Amendment's Due Process Clause, not the Equal Protection Clause. Equal Protection is the civil rights clause (Lesson 18). Mixing these up is the single most common Unit 3 error.

McDonald vs. Heller. Heller (2008) recognized the Second Amendment as an individual right and applied it against the federal government (D.C.). McDonald (2010) incorporated that right to the states via the Fourteenth Amendment Due Process Clause. Heller = the right itself; McDonald = the right applied to the states. Don't swap them.

Practice Problems

Questions 11–13 refer to the table below.

Selected Supreme Court Incorporation Decisions

FRQ Practice — Concept Application (FRQ 1)

The Concept Application FRQ hands you a short political scenario and asks you to apply course concepts to it. There is no document to read and no data to interpret — the points come from naming the right concept, explaining how it operates in the scenario, and connecting it to a broader implication. Stay literal and structural: name the mechanism, not just the outcome.

The Scenario

The state of Madison passes a law making it a crime for any resident to keep a handgun in their home, even for self-defense. A Madison resident, who lives in a high-crime area and wants a handgun to protect his family, is arrested under the law. He challenges it in federal court, arguing that the state cannot deprive him of his Second Amendment rights.

The Prompt

(A) Identify the constitutional principle that allows a state law to be challenged under a protection found in the federal Bill of Rights. (B) Explain how the principle identified in part (A) applies to the scenario described. (C) Explain one implication of selective incorporation for the relationship between state governments and individual rights.

Model Response

(A) Identify the principle. The relevant principle is selective incorporation — the doctrine by which the Supreme Court applies most protections of the Bill of Rights to the states, case by case, through the Due Process Clause of the Fourteenth Amendment. Although the Bill of Rights originally limited only the federal government, an incorporated right also restrains the states.

(B) Explain how it applies. The Second Amendment, as the Bill of Rights' protection of the right to keep and bear arms, originally bound only the federal government. In McDonald v. Chicago (2010), however, the Supreme Court incorporated the Second Amendment, applying it to state and local governments through the Fourteenth Amendment's Due Process Clause. Because of that incorporation, Madison's state handgun ban is subject to the Second Amendment exactly as a federal ban would be. The resident can therefore challenge the state law in federal court: an incorporated right means the state, not just Congress, must respect it, and a flat ban on keeping a handgun at home for self-defense is precisely the kind of restriction incorporation now forbids the states to impose.

(C) Explain an implication. One implication is that selective incorporation shifts power over individual rights from the states to a national constitutional floor. Before incorporation, a state could restrict freedoms the federal government could not touch; after incorporation, states are bound by the same fundamental protections, and federal courts can strike down state laws that violate them. This expands the reach of federal judicial power into areas once left to the states and guarantees individuals a uniform set of protections regardless of which state they live in.

Point Allocation (3 points)

Common Point-Loss

• Naming the wrong clause. Citing the Equal Protection Clause instead of the Due Process Clause is a frequent miss — Equal Protection powers civil rights, not incorporation.
• Skipping the mechanism in (B). Writing "the Second Amendment protects him" without saying the right was incorporated to the states via the Fourteenth Amendment describes the outcome, not the constitutional mechanism, and usually loses the point.
• Vague implication in (C). "It protects rights" is too general. Tie the implication to the state–federal relationship or the uniformity/reach of protections.
• Confusing McDonald with Heller. Heller recognized the right against the federal government; McDonald incorporated it against the states. Part (B) needs the incorporation step.
• Treating it as a civil rights problem. This scenario is a civil liberties (restriction-of-freedom) issue, not a discrimination/equal-protection issue.