3.7 Selective Incorporation

What is Selective Incorporation?

Selective incorporation is the process by which the Supreme Court has applied most protections in the Bill of Rights to the states through the 14th Amendment's Due Process Clause. Originally, the Bill of Rights only restrained the federal government. Case by case, the Court decided which rights were fundamental enough to apply to state and local governments too.

Key Case: Gitlow v. New York (1925)

Gitlow v. New York was a landmark case establishing that free speech (1st Amendment) applies to states via the 14th Amendment's Due Process Clause. This case launched the doctrine of selective incorporation, setting a precedent for later cases to incorporate additional rights against state infringement.

McDonald v. Chicago (2010)

McDonald v. Chicago incorporated the 2nd Amendment right to bear arms, applying it to state and local governments. Building on DC v. Heller, the Court ruled this right is fundamental to due process. This shows incorporation is ongoing — not all rights were incorporated at once, but through continual litigation.

Key terms

Selective Incorporation

The process by which the Supreme Court applies Bill of Rights protections to state governments via the 14th Amendment's Due Process Clause.

Gitlow v. New York (1925)

Landmark case that incorporated free speech (1st Amendment) against the states, launching selective incorporation.

McDonald v. Chicago (2010)

Case that incorporated the 2nd Amendment right to bear arms against state and local governments.

Due Process Clause

Part of the 14th Amendment stating states cannot deprive people of life, liberty, or property without due process of law; basis for incorporation.

Why incorporation is case-by-case

The Supreme Court has incorporated rights individually over many decades rather than all at once, through separate rulings on specific amendments.

Try an AP-style question

Selective incorporation applies Bill of Rights protections to states through the…

1. First Amendment's establishment clause
2. Article VI supremacy clause
3. Tenth Amendment's reserved powers
4. Fourteenth Amendment's due process clause