Hamburger's Dilemma (And Mine):

The Volokh Conspiracy discusses legal scholar Philip Hamburger's work in progress that argues the 14th Amendment doesn't properly incorporate the Bill of Rights against the states.

This particular thread has an illuminating discussion on the matter.

Hamburger's article is timely because SCOTUS may decide whether the Second Amendment incorporates against the states. And he is a heavyweight (he currently teaches at Columbia Law, formerly of U. Chicago) who has been cited by the Supreme Court.

One pro-incorporation of the 2nd Amendment commenter at Volokh accused Hamburger of playing into the Left's hands, giving the Liberal judges fodder for holding the 2nd Amendment doesn't properly incorporate.

But, I don't see how this is true. Hamburger argues against the notion of incorporation entirely. That is, he wants the entire thing undone including the First Amendment, hardly a lefty-liberal idea.

But, the dilemma for someone in his position is, what is the Court to do where unincorporating the entire Bill of Rights isn't an option?

By way of analogy, I hold to the libertarian position on anti-discrimination laws and that is anti-discrimination laws ought not apply to the private sector, but to public entities only. Yet, sexual orientation SHOULD be on that list of categories along with race, gender, religion, age, disability, that government can't discriminate against.

If we are going make an exception for ONE category that SHOULD apply to private entities, it would be race and race only. Not color. Not ethnic origin because the Irish didn't suffer chattel slavery. Certainly not religion, which is entirely mutable, a matter of choice.

As it stands, if a gay boss at a private firm finds out one of her workers is an evangelical Christian and fires him for that reason, under federal anti-discrimination laws the Christian can sue. But if the Christian boss finds out one of his workers is gay, that's legal at the federal level.

This kind of system where conservative evangelicals get "special rights" under anti-discrimination laws that apply to the private sector that homosexuals don't seems blatantly unfair. It violates equality.

So what is a libertarian to believe? That we ought to further limit economic liberty by extending anti-discrimination laws to a new category that affects private groups? OR that we add sexual orientation to the list, because, if we are going to have such laws that apply to the private sector, it makes no sense to have a list that covers, not just race, but age, disability, religion, but not sexual orientation?

Likewise, what is someone like Philip Hamburger to believe on incorporating the Second Amendment against the states? Do we further extend (what he sees as) error? Or do we stop the further error and stick with a system where certain parts of the BOR (i.e., the First Amendment) are incorporated, but the Second is not?

Remember, UNINCORPORATING the entire BOR is not on the table for those faced with this dilemma.

If I were in Hamburger's shoes, I'd argue if we have to have incorporation, it makes no sense NOT to incorporate the Second. Likewise, I believe if we have to have anti-discrimination laws that apply to the private sector, sexual orientation should be included.