An interesting find by Calvin TerBeek at House Divided: The Untold Story of How Conservatives Embraced the Bill of Rights and Incorporation. Here is the introduction:
The new conservative majority of the Supreme Court has begun the second phase of its constitutional rights project of providing increased protection to Second Amendment rights vis-a-vis state gun control laws. Lost in this, however, is the story of how conservatives stopped worrying about the Court applying (“incorporating”) the Bill of Rights against the states. Not only is this story underemphasized, when recounted it has been rendered inaccurately. Contrary to existing accounts by legal scholars and historians, it was neither academic lawyers nor the vanguard of libertarian legal interest attorneys who cleared the path for constitutional conservatives to embrace incorporation.
In short, here’s what happened: instead of continuing to complain that the Warren Court had erred in applying the full force of the Fourteenth Amendment and First Amendment’s religion clauses to the states—an important ideational aspect of judicial and movement conservatism in the 1950 through the 1970s—farsighted entrepreneurial political actors in the 1980s saw that arguments for “disincorporation” hindered movement conservatives’ larger constitutional politics project.
I won't spoil the story, except to say it turns on a missing line in Attorney General Meese's famous 1985 speech to the American Bar Association.
Plus this appearance by the University of San Diego:
In 2009—in the wake of Heller and presumably looking forward to McDonald (2010)—a number of legal scholars, including prominent originalists, held a conference at a hotbed of originalist legal thought: University of San Diego. The conference was meant to flesh out the interaction of the Bill of Rights and the Fourteenth Amendment—that is, incorporation. Indeed, one prominent originalist, apparently unaware that the nature of the relationship between constitutional conservatism and incorporation had long since been determined by political actors in the Reagan DOJ, wrote on the topic at length. Even today, originalists still cite to the incorrect text of Meese’s speech.
My personal memory, for what it's worth, is that when I began to get interested in originalism some years after Meese's speech the "disincorporation" project was not of interest to at least the younger generation of originalist scholars.
Posted at 6:35 AM