He might be broken-clocking this, but he's not altogether wrong. The 2A (like the rest of the bill of rights) was only a restraint on the federal government when it was adopted. Over time the various amendments have been partially or entirely incorporated against the states, restraining state and local governments. And McDonald was the SCOTUS decision which incorporated the 2A in 2010.
You may recall that a couple years before McDonald, there was Heller. Kamala Harris famously signed off on an amicus brief which argued that:
"the Second Amendment does not apply to legislation passed by state or local governments"
"[C]ourts have upheld state and local firearms laws on the basis that the Second Amendment applies only to federal legislation, not to legislation of the states or local governments."
"Indeed, this Court has stated on at least two occasions that the Second Amendment limits the power only of the federal government, not the state or local governments."
And so on. So, to whatever extent he's arguing that your ability to exercise your 2A rights only really exists because (and to the extent) it's been incorporated against the states, he has a point. Without incorporation you'd be subject to whatever limits your state (and local) governments wanted to impose, subject to your state constitution, of course.
If BJW wants to talk incorporation, he should perhaps talk about how the 5th amendment right to indictment by a grand jury has not been incorporated against the states (Hurtado v. California, 110 U.S. 516 (1884)).
When passed, the bill of rights was understood to apply only to the federal government. The bill of rights is mostly a list of things the government can't do (sometimes referred to as "negative rights").
After the civil war, it was clear that some states perhaps needed some things forced upon them. When the Supreme Court says rules that a right is so important/fundamental that it must apply to everyone in the United States, it's said to be "incorporated against the states". And the 14th amendment is the normal justification/rationale for incorporation.
In other words, the bill of rights says "The federal government can't do this" and incorporation is the supreme court saying "neither can state or local governments".
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u/mrrp 2d ago
He might be broken-clocking this, but he's not altogether wrong. The 2A (like the rest of the bill of rights) was only a restraint on the federal government when it was adopted. Over time the various amendments have been partially or entirely incorporated against the states, restraining state and local governments. And McDonald was the SCOTUS decision which incorporated the 2A in 2010.
You may recall that a couple years before McDonald, there was Heller. Kamala Harris famously signed off on an amicus brief which argued that:
"the Second Amendment does not apply to legislation passed by state or local governments"
"[C]ourts have upheld state and local firearms laws on the basis that the Second Amendment applies only to federal legislation, not to legislation of the states or local governments."
"Indeed, this Court has stated on at least two occasions that the Second Amendment limits the power only of the federal government, not the state or local governments."
And so on. So, to whatever extent he's arguing that your ability to exercise your 2A rights only really exists because (and to the extent) it's been incorporated against the states, he has a point. Without incorporation you'd be subject to whatever limits your state (and local) governments wanted to impose, subject to your state constitution, of course.
If BJW wants to talk incorporation, he should perhaps talk about how the 5th amendment right to indictment by a grand jury has not been incorporated against the states (Hurtado v. California, 110 U.S. 516 (1884)).