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 gutted. Cruikshank and Presser would logically follow, and we’ll see a return to the total incorporation model.
So, what’s meant by “total” incorporation? Well, there are two primary models for incorporating rights through the 14th Amendment. The first is known as total incorporation. Championed by Hugo Black, the school of total incorporation assumes that the strictly enumerated rights of the first eight Amendments are automatically incorporated against the states. Simple enough, right?
In Duncan v. Louisiana, Black stated,
In response to this I can say only that the words “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States” seem to me an eminently reasonable way of expressing the idea that henceforth the Bill of Rights shall apply to the States. What more precious privilege” of American citizenship could there be than that privilege to claim the protections of our great Bill of Rights? I suggest that any reading of “privileges or immunities of citizens of the United States” which excludes the Bill of Rights’ safeguards renders the words of this section of the Fourteenth Amendment meaningless. Senator Howard, who introduced the Fourteenth Amendment for passage in the Senate, certainly read the words this way.
In contrast to the originalist views espoused by total incorporation, we also have what is known as “selective” incorporation. Selective incorporation works by incorporating rights one by one, as relevant cases come up. Essentially, a right is not incorporated against the states until the Court has a chance to decide that it is. The idea involves waiting until someone is aggrieved enough to appeal for redress under the Due Process clause (it also assumes they can get the Court to hear their case).
Consider Loving v. Virginia. The case was not heard until 1967, and until then, blacks and whites could not marry in Virginia for fear of reprisal. Essentially, we were kept waiting until such a time as the Court found that Virginia’s anti-miscegenation statues “shock[ed] the conscience,” and that such a practice violated Mildred and Richard Loving’s rights of Due Process.
If we have to wait until violations of the 2nd Amendment “shock the conscience,” we may very well be sitting on our hands for quite some time. The right to keep and bear arms should (and likely, will) be incorporated as a strictly-enumerated right, as a Privilege or Immunity of citizens of the United States.
The Due Process (selective) method works well for rights that aren’t strictly enumerated, such as Roe v. Wade’s 4th Amendment definition of a right to privacy. It gives the Court leeway to incorporate implied liberties in step with current times, but the enumerated rights in the first eight Amendments are not subject to the whims of contemporary values. They are timeless, having existed long before the founding of governments, and they are eternal, outlasting any political climate.