Daily Archives: October 3, 2009

1 post

Incorporation: a Brief Primer

McDonald v. Chicago has officially been docketed, case number 08-1521.  Notice the wording of the question presented:

Whether the Second Amendment right to keep and bear arms is incorporated as against the States by the Fourteenth Amendment’s Privileges or Immunities or Due Process Clauses.

Though the Due Process clause is mentioned as a fallback approach, Gura’s case hinges almost entirely on the Privileges or Immunities clause.

Ideally, we’ll see Slaughterhouse overruled and the resurrection of the Privileges or Immunities clause it so wrongly guttedCruikshank and Presser would logically follow, and we’ll see a return to the total incorporation model.