“The amendments have to actually be incorporated. It wasn’t done on a whole sale basis. The second is one that notably hasn’t been incorporated.”
That doesn’t make much sense. I mean, I understand that it has to be decided before it’s decided, but isn’t it a fait accompli? I mean, if some amendments have been incorporated, because of substantive due process or what-have-you, how can others not be?
I still maintain that the second amendment, unlike the first, doesn’t say anything about Congress, and since the Constitution has several passages where it denies powers to the states, it can be so interpreted that the right to bear arms restricts the states as much as the feds, incorporation be damned.
I don’t know why they chose to go by selective incorporation, but they did. Wikipedia tells me the chief writer of the 14th amendment, John Bingham, and Hugo Black both agree with you. Apparently they wanted a measured response that only those rights whose abridgment would “shock the conscience” be incorporated. Might be just a function of different times.
It seems to me that unless the constitution mentions a restriction on the state they are still free to do what they want in that area.