Why Did the Incorporation of the Bill of Rights Fail in the Late Nineteenth Century?

By Gerard N. Magliocca. Full text here.

This Article examines the failure of the incorporation doctrine following the ratification of the Fourteenth Amendment and draws some lessons from that experience for the live issue of whether the Second Amendment should apply to the States.

The analysis reaches three main conclusions. First, the opinion in the Slaughter-House Cases did not foreclose the incorporation of the Bill of Rights. A review of the cases and commentary interpreting Slaughter-House from 1873 until 1900 shows that almost nobody thought that the case spoke to the issue. Second, courts reviewing incorporation litigation in this era distinguished sharply between procedural claims, where there was little support for the concept, and substantive claims, where there was support. Unfortunately for advocates of incorporation, virtually all of these initial cases were about procedural issues, which created negative momentum for the concept as a whole. Third, enthusiasm for applying substantive provisions (e.g., free speech, free exercise of religion, freedom from unreasonable searches and seizures, or cruel and unusual punishment) to the States disappeared in the mid-1890s because of fear created by a surge in protests from Populist and labor activists. Just as civil liberties have traditionally retreated in wartime, the same dynamic crippled the expansion of the Bill of Rights in a period of domestic discord. Based on these observations, the Article concludes that the historical evidence supports the incorporation of the right to bear arms.