Selective incorporation | Civil liberties and civil rights | US government and civics | Khan Academy

Let's talk a little bit about selective incorporation. So you are already likely familiar that the first ten amendments of the United States Constitution are the Bill of Rights. Bill of Rights, and especially the first eight of these, are all about protecting individuals' rights. So you have those rights, but then there is a question to what degree these rights are protected against state laws. This became a little bit clearer once the 14th Amendment came along.

Just to remind ourselves, here's Section 1 of the 14th Amendment, and we really want to zero in on the due process clause, which says, "nor shall any state deprive any person of life, liberty, or property, without due process of law." Now, some have argued for total incorporation that says, "Hey, look, the 14th Amendment's making it clear that the state cannot infringe on these rights." But what has happened, especially in the United States Supreme Court, is that on various decisions, maybe this was something involving the Fifth Amendment, they've ruled that the rights described by that amendment can't be limited by a state law. So they would have selectively incorporated the Fifth Amendment from the Bill of Rights in decisions on what the state can and cannot do.

Their justification there is the due process clause of the 14th Amendment. To make that a little bit more tangible, we can look at some relatively recent cases. In 2008, you have the case District of Columbia versus Heller. This is a really interesting case around the Second Amendment. The District of Columbia, Washington, D.C., had a law that banned handguns, and so one of the residents challenges that handgun ban, and it goes all the way to the United States Supreme Court.

In the decision on District of Columbia versus Heller, the United States Supreme Court says that the District of Columbia cannot pass a law that violates Heller's Second Amendment rights because of the due process clause of the 14th Amendment. But that still left a little bit of an opening. You fast forward, and in 2010, you have another similar case go to the Supreme Court. This is McDonald versus Chicago. Chicago had a similar handgun ban, and McDonald was a resident of Chicago.

The government in Chicago argued that, "Okay, you know what, the District of Columbia versus Heller does not apply to us because that was a federal district, and it would not apply to something that is part of a state." Well, the Supreme Court disagreed with Chicago and took the side of McDonald. They selectively incorporated, using the 14th Amendment as their justification. They said, "Look, the state cannot deprive any person of their liberties."

So they selectively incorporated the Second Amendment into that decision and made it very clear that a state cannot pass a law that infringes on people's Second Amendment rights.

So, big picture, selective incorporation is the doctrine where judicial decisions incorporate rights from the Bill of Rights to limit laws from states that are perceived to infringe on those rights, and the justification comes from the 14th Amendment.