"Incorporation" is the legal term for finding that parts of the Bill of Rights (the first 10 amendments to the U.S. Constitution) apply to limit the power of state governments. The Bill of Rights as originally adopted only applied to limit federal power, but the Supreme Court has since held that the Due Process Clause of the 14th Amendment (which was ratified in 1868 following the Civil War and expressly limits the states' power) "incorporated" many of the Bill of Rights (for example, the First Amendment, the Fourth Amendment, the Sixth Amendment, and most of the Fifth Amendment). An open question is whether the Second Amendment limits the power of the states. In a very interesting and thoughtful post at PrawfsBlawg, Prof. Rick Hills of NYU Law argues that incorporating the Heller decision against the states would undermine the Second Amendment. Good reading, and a fair argument. Hills predicts, however, that the federal courts will incorporate the Second Amendment.
I wonder what the Venn diagram looks like for people who advocate for a strong reading of the Second Amendment and people who argue for more "states' rights"? I suspect a bit of an overlap. Such people will be forced to argue for one or the other in states that have restrictive gun control laws, as only a pro-federal reading of incorporation will allow for an application of Heller to the states.
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Sloppy thinking by both you and the article's author.
Incorporation of the Bill of Rights limits the power of the states vis a vis the Rights of the People but it cannot prevent an individual state from granting more rights than the Federal government requires.
The further slight of mouth of assuming (incorrectly) a binary choice (i.e., States rights vs. Federal power) just carries on the sloppiness, or hides the intellectual dishonesty as the case may be.
There are three entities involved: One can easily be for States rights over the Federal powers (in general), and at the same time believe (correctly) the Rights of the people trump both.
The Constitution is very explicit on this topic, and it always amazes me that any professor, whether of constitutional law or basket weaving could ever honestly confuse it.
The Federal government has those powers — and only those powers — give it by the Constitution, but at the same time the Constitution requires the Federal government to prevent the government infringement of the rights of the people — no matter what level that infringement arises.
Herb-
I'm certainly guilty of sloppy thinking at times, but I'm not sure you've caught me out here. While it's true that incorporation "cannot prevent an individual state from granting more rights" than the U.S. Constitution grants, that's not what we would have here. Here, incorporation would prevent a state entity (e.g. Chicago, which bars registration of handguns) from infringing on the right to keep and bear arms that the U.S. Constitution (following Heller) now protects. The tension is b/w the state right to regulate and the federal constitutional principle (if incorporated) that says certain regulations are not permissible.
-ESM