The recent incorporation by a federal appeals court of the 2nd amendment against the states brings up a confusing topic for libertarians: the incorporation doctrine.
Judicial activism is judicial activism regardless of what political spectrum spawns it. The nature of federal courts does not make them reliable friends of freedom. Therefore, my take is that the “incorporation doctrine” is bad for liberty. In addition, if you actually believe in the contradictory notion of having a bigger, central government force smaller governments to be “more libertarian,” you haven’t learned the lessons of our Supreme Court history. The Lochner decision (which originated this unconstitutional nonsense) opened the door for the perversions of our Constituion perpetrated by an activist Supreme Court which is much decried by todays conservatives and libertarians. The great Kevin R.C. Gutzman explains how having unelected federal appointees judging state laws hasn’t always worked out for the best:
The Incorporation Doctrine sounds benign enough. Who could oppose having federal courts stand up for individualsâ€™ rights, even if their doing so does violate the structure of the Constitution? Historically, however, it has not turned out so well.
It was under the cover of the Incorporation Doctrine that federal courts recently invented a right of child rapists not to face the ultimate penalty for their crimes. It was under the cover of the Incorporation Doctrine, indeed, that a Supreme Court majority for several years banned capital punishment altogether.
It was under the cover of the Incorporation Doctrine that the Supreme Court eliminated state prohibitions of various types of pornography. The Incorporation Doctrine also underlies the Court-created ban on prayer, even on moments of silence, in public schools. The Incorporation Doctrine mandates the Court-created Miranda warnings before a defendant may be interrogated. The Incorporation Doctrine has allowed federal courts to invent rights to burn flags, ban invocations at high school graduations, and establish essentially a national code of â€œacceptableâ€ punishments.