Many times during her confirmation hearings, Justice Sonya Sotomayor was asked whether the Second Amendment applied to tge States by "incorporation" into the Fourteenth Amendment's Due Process Clause. Her refusal to unequivocally agree with that assertion was one of the main reasons given against her confirmation by, among others, Senator Roger Wicker of Mississippi.
Yesterday, the Supreme Court granted certiorari in the Seventh Circuit decision which presents that exact issue. We discussed the case a few days ago.
Perhaps, as Senator Wicker suggests, the reliance on nineteenth-century precedent (notably, the Slaughter-House Cases, which we discussed in our earlier post) in deciding Bill of Rights cases should be overruled. It's not a bad idea. Why not, in the context of this case, decide that ALL of the Bill of Rights are enforceable against the States through the Fourteenth Amendment?
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Well, number one, the proponents of total incorporation have won, more or less. With only limited exceptions, the Bill of Rights has been incorporated. Whether that should've been done in one fell swoop over a hundred years is, in the here and now, a moot point. The bottom line is that it's happened, so overruling the Slaughter-House Cases would be overkill, from a practical standpoint.
And number two...what ever happened to stare decisis? I don't particularly like the idea of the Roberts Court revisiting 135-year-old caselaw.
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