Selective Incorporation Theory
"Selective incorporation theory" involves the interpretation of the 14th amendment of the U.S. Constitution. Specifically, this theory holds that some of the rights listed in the Bill of Rights (in particular, amendments one through eight) are "incorporated" into the 14th amendment and so have become restrictions, not solely upon the powers of the U.S. Congress but upon state legislatures as well.
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Bill of Rights
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The various rights provided to individuals in the Bill of Rights are, on their face and by antebellum judicial interpretation, restrictions on the powers of the federal government and, in particular, on Congress, its legislative arm. This is perhaps most obvious in the case of the first amendment, which begins with the phrase "Congress shall make no law...." Nonetheless, since 1947, federal courts have been overturning state actions for violating provisions of the Bill of Rights. One key early decision was Everson v. Board of Education, in which a taxpayer challenged the use of public money to bus children to a Catholic parochial school as an establishment of religion. The court ruled in favor of the school board, on the ground that the transportation "does no more than provide a general program to help parents get their children, regardless of their religion, safely and expeditiously to and from accredited schools." Nonetheless, the decision, written by Justice Hugo Black, is remembered for clearly indicating that the first amendment was at issue, and that given other facts the court might have acted against New Jersey on the grounds of church/state entanglement.
From the Everson Decision
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"The 'establishment of religion' clause...means at least this: neither a state nor the Federal Government can set up a church. Neither can pass laws which aid one religion, aid all religions, or prefer one religion over another," wrote Black. Justice Black, in another context, advocated a "total incorporation" theory. He never managed to persuade his fellow justices of this, though, and for decades thereafter, the selective incorporation doctrine has been the dominant working theory on the Supreme Court. The Court has struggled, clause by clause, to decide which rights it will enforce against the states.
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Scorecard
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The separate acts of "selective incorporation" have added up, over time, to a nearly full incorporation of amendments one through eight vis-a-vis the states. Nonetheless, the third amendment, which prohibits the quartering of troops, has never been addressed by the Supreme Court, so it remains unincorporated. The provision of the fifth amendment, requiring grand jury indictments as a predicate to criminal prosecution, has never been incorporated--though the other clauses of the fifth have been. The seventh amendment, which provides for trial by jury in civil matters, has never been incorporated. Finally, the eighth amendment has been incorporated regarding cruel and unusual punishments but has not been incorporated insofar as it bans excessive fines or excessive bail.
Second Amendment
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In recent years, the scope of the second amendment has been a hotly contested matter in U.S. constitutional law--including the question of its applicability to the states. This amendment reads: "A well regulated militia being necessary to the security of a free State, the right of the People to keep and bear arms shall not be infringed."
The Consequences of the Second Amendment's Language
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In 2008, the Supreme Court held, in D.C. v. Heller, that the language in the second amendment limited the ability of the District of Columbia, i.e., the federal government, to prohibit the possession of firearms in residences. The Court reached the issue of incorporation in the second amendment context two years later, in McDonald v. Chicago, which held that the right to keep and bear arms also limits gun control measures by the states and their municipalities.
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