Incorporating the Second Amendment

Given the credible assumption that Scalia will be writing the Court’s likely-to-be-a-landmark 2nd Amendment opinion in Heller, Mike O’Shea claims that this is “great news for those who are mainly concerned with the Second Amendment as a limit on federal gun control” but “somewhat ambiguous news — at least in the short term — for those who hope for the incorporation of the Second Amendment as a check on state and municipal governments.”

The Court, of course, doesn’t even need to address the question of incorporation to strike down the D.C. Ban, and they may choose to avoid the question. But I would be absolutely shocked if the Court declared that the Second Amendment did not apply against the states. With the rare exception of Thomas (whose questioning of incorporation doctrine seems tied to the particular nature Establishment Clause), no conservative since Harlan left has seriously questioned the application of most of the Bill of Rights to the states. And it is unlikely indeed that Scalia would simultaneously find broad individual right to purchase and posses firearms in the Second Amendment but would simultaneously claim that this right is not “implicit in the concept of ordered liberty.” As O’Shea says, what he wrote in A Matter of Incorporation can easily be explained away as a narrow reference to the Second Amendment as originally understood (i.e. before the Fourteenth Amendment), and that’s what’s going to happen.