Gunning for our rights

Article by Clark Neily, one of the attorneys involved in last year's historic Heller case, writing at Human Events on the likely next Second Amendment battle at the Supreme Court - the issue of "incorporation":

When the U.S. Supreme Court convenes for its next term in October, it will have an opportunity to correct one of the most glaring examples of judicial activism in our nation’s history -- when justices placed their personal preferences above the law. Specifically, the Court will have the chance to reconsider an 1873 decision that is as ugly in name as it is in effect. The Slaughter House Cases essentially deleted from the Constitution a key bulwark of liberty and helped create the conditions for the modern welfare state.

The opportunity to correct that mistake arises in the latest battle over gun rights. Last summer, the Supreme Court in District of Columbia v. Heller held for the first time that the Second Amendment protects an individual right to keep and bear arms. But because Washington, D.C. is a “federal enclave,” that decision only applied to the federal government. The question now is whether the right to keep and bear arms should apply to state and local governments as well. One federal appellate court recently said yes, but two said no. The Supreme Court has been asked to resolve that conflict.
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The Fourteenth Amendment had an equally important but even more challenging job -- stamping out a culture of lawlessness and oppression that victimized not just blacks, but people of all races. Because that culture featured a complex web of laws, policies, and customs, the Fourteenth Amendment was couched in necessarily broad terms. It forbade the states from depriving any person of life, liberty, or property without due process of law; from denying any person equal protection of the laws; and from abridging “the privileges or immunities of citizens of the United States.”

The words “privileges” and “immunities” may be unfamiliar today, but 19th-century Americans used them interchangeably with a term modern Americans know very well: rights. And two rights the Fourteenth Amendment was clearly intended to protect were armed self-defense and economic liberty, which includes the rights to own property, enter into contracts and earn an honest living. Officials throughout the South systematically violated those rights to keep newly freed blacks and white abolitionists in a state of poverty and terror. The whole point of amending the Constitution was to end those abuses.

But the ink was scarcely dry on the Fourteenth Amendment when five justices of the Supreme Court defied the popular will and recast the Privileges or Immunities Clause as little more than a rhetorical flourish. In the Slaughter House Cases, the Court rejected a Fourteenth Amendment challenge to a corrupt, government-chartered monopoly on the sale and butchering of livestock in New Orleans on the grounds that the right to earn a living was not a privilege or immunity of American citizenship. There followed a series of cases in which the court held that basic civil liberties like free speech, assembly, and the right to keep and bear arms were not among Americans’ “privileges or immunities” either.

The Court began trying to fix its obvious mistake around the turn of the century, but it did so in a piecemeal way that fails to protect key liberties while exposing the Court to credible charges of activism for inventing other rights out of whole cloth. That approach is called “incorporation,” and it requires the Supreme Court to decide, on a case-by-case basis, which rights in the Bill of Rights are important enough to be protected not only against the federal government, but against state governments as well. But that approach has significant problems, including allowing courts to designate rights like property ownership and occupational freedom (and perhaps even the right to keep and bear arms) as insufficiently “fundamental” to merit protection from state governments. ...

Article here. As Mr. Neily notes, the Supremes could use the Second Amendment issue to take a more logical and holistic approach to the Fourteenth Amendment's purpose, rather than the current piecemeal "selective incorporation" approach. Indeed, Justice Scalia may have suggested as much in his Heller opinion.