So, you think empowering the federal courts to impose the Bill of Rights will end up expanding liberty?

Think again.

The incorporation doctrine suggests that the 14th Amendment applied Bill of Rights limitations against the state governments. Aside from being historically groundless, this strategy is the wrong route to take – deference to the federal judiciary ultimately impedes liberty, since federal judges don’t share valid or genuine conceptions of liberty.

This fact can be illustrated through the recent comments of a very influence federal judge. At an American Bar Association luncheon, retired Supreme Court Justice John Paul Stevens said the following:

“I endorse the Court’s holding that the Due Process Clause of the 14th Amendment protects an individual’s right to choose his or her spouse but I remain unpersuaded that that Clause also protects an individual’s right to use a gun. The dissenters have things backward when they argue that it protects the latter but not the former.”[1]

On face value, this is a perplexing claim – the right to keep and bear arms is affirmed explicitly in the Bill of Rights, while civil unions and religious sacraments are not. In overt fashion, the Tenth Amendment of the Constitution reserves all powers not enumerated in the document to the states or the people. Quoting the amendment directly, Thomas Jefferson wrote in 1791 that “the foundation of the Constitution [was] laid on this ground.”[2]

To suggest that a prohibition which is unambiguously spelled out in the Bill of Rights is not incorporated, while a power that was reserved to the states is, would boggle the mind of even the most biased observer. In hindsight, even those with good intentions who support the incorporation doctrine should now acknowledge the transparent actuality – federal judges just don’t get it.

If there existed federal judges that understood liberty the way the founders did, maybe this legal theory could be utilized to prevent state and local governments from enacting from their own deplorable abuses. This concept, as unfortunate as it is, is rooted only in idealism. Instead of protecting individual rights, federal judges more often base their opinions on personal proclivities.

Instead of subscribing to this fantasy, James Madison articulated the reality in The Federalist #51 where he remarked that men are not angels, especially men in government. They cannot be expected to carry out their duties perfectly and without partiality or preference. Moreover, they are susceptible to the inclinations of prestige, power, and corruption.

When federal justices are given the unrivaled power to intervene in local matters, we shouldn’t be taken back by the results. We have reached an ultimate inversion – where powerful judges are permitted to change the purpose of 14th Amendment to meet any whimsical political desire. As long as it encourages a desired political end, no can mean yes and yes can mean no.

The nature of Stevens’ comments should come of no surprise – the federal courts have long claimed regulatory power over firearm ownership, despite adhering to the incorporation doctrine. In the 2008 case of District of Columbia v. Heller, the Supreme Court opined:

“Like most rights, the Second Amendment right is not unlimited. It is not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose: For example, concealed weapons prohibitions have been upheld under the Amendment or state analogues. The Court’s opinion should not be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms. Miller’s holding that the sorts of weapons protected are those “in common use at the time” finds support in the historical tradition of prohibiting the carrying of dangerous and unusual weapons.”[3]

Of course, this contention is completely unfounded – the federal government was not supposed to hold any power over firearm regulations. Instead, the government was prohibited from entertaining firearm legislation in the first place. Still, the Heller case was widely celebrated in conservative circles as a victory for firearm rights.

Despite being told that the incorporation doctrine will prevent state infringements of firearm regulations, things have played out in the opposite fashion. While pretending to defend firearm ownership, the words and actions the Supreme Court cannot be any clearer – the judiciary reserves the power to restrict and regulate.

Stevens is not the only one who observes this corruptible style of legal thought – the entire federal judiciary follows suit. To those who express frustration over this development, we’re with you. We favor federalism, and the founding principle that comprehends that what is preferable in one area may not be justified in another.

If you thought the incorporation doctrine would prevent local abuses of liberty from taking place, we hate to say we told you so.


[1] “Former Justice Stevens: 14th Amendment Protects Gay Rights, Not Gun Rights,”, August 5, 2015; available at:

[2] Opinion on the Constitutionality of a National Bank, in Thomas Jefferson: Writings: Autobiography / Notes on the State of Virginia / Public and Private Papers / Addresses / Letters, Edited by Merrill D. Peterson (New York: Viking Press, 1984), 416.

[3] District of Columbia v. Heller, 554 US 570 (2008).

Dave Benner
Latest posts by Dave Benner (see all)

The 10th Amendment

“The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”



Featured Articles

On the Constitution, history, the founders, and analysis of current events.

featured articles


Tenther Blog and News

Nullification news, quick takes, history, interviews, podcasts and much more.

tenther blog


State of the Nullification Movement

232 pages. History, constitutionality, and application today.

get the report


Path to Liberty

Our flagship podcast. Michael Boldin on the constitution, history, and strategy for liberty today

path to liberty


maharrey minute

The title says it all. Mike Maharrey with a 1 minute take on issues under a 10th Amendment lens. maharrey minute

Tenther Essentials

2-4 minute videos on key Constitutional issues - history, and application today


Join TAC, Support Liberty!

Nothing helps us get the job done more than the financial support of our members, from just $2/month!



The 10th Amendment

History, meaning, and purpose - the "Foundation of the Constitution."

10th Amendment



Get an overview of the principles, background, and application in history - and today.