Justice Thomas on Incorporation via the P or I Clause

It is not at all clear that incorporation of the Bill of Rights against the States is proper under the Fourteenth Amendment. But the Court has incorporated most of the provisions of the Bill of Rights over a period of the last century or so, and so nearly total incorporation is a fait accompli  and it is not going to be undone.

McDonald is an interesting case because it deals with whether the Second Amendment and the individual right to keep and bear arms applies against state and local laws that prohibit private ownership of guns.

One issue that was discussed at some length in McDonald is which provision of the Fourteenth Amendment is the proper portal of incorporation--the Privileges or Immunities Clause ot the Due Process Clause.

Justice Thomas believes that the P or I Clause is the proper vehicle Casebook page 482-483:

Applying what is now a well-settled test, the plurality opinion concludes that the
right to keep and bear arms applies to the States through the Fourteenth Amendment’s
Due Process Clause because it is “fundamental” to the American “scheme of
ordered liberty,” . . . and “ ‘deeply rooted in this Nation’s history and tradition,’ ” . . . I
agree with that description of the right. But I cannot agree that it is enforceable
against the States through a clause that speaks only to “process.” Instead, the right to
keep and bear arms is a privilege of American citizenship that applies to the States
through the Fourteenth Amendment’s Privileges or Immunities Clause.
I
. . .
. . . The one theme that links the Court’s substantive due process precedents together
is their lack of a guiding principle to distinguish “fundamental” rights that
warrant protection from nonfundamental rights that do not. . . .
. . .
. . . I believe . . . that a return to [the original meaning of the Fourteenth Amendment]
would allow this Court to enforce the rights the Fourteenth Amendment is designed
to protect with greater clarity and predictability than the substantive due process
framework has so far managed.
. . .
[T]he objective . . . is to discern what “ordinary citizens” at the time of ratification
would have understood the Privileges or Immunities Clause to mean. . . .
. . .
[Justice Thomas canvassed early legal documents that spoke of “privileges” and
“immunities,” which he viewed as indicators that those terms were synonymous with
“rights”; evidence “from the political branches in the years leading to the Fourteenth
Amendment’s adoption”; and statements of its sponsors and opponents, including
“well-circulated speeches.” To Justice Thomas, “[t]his evidence plainly shows that the ratifying public understood the Privileges or Immunities Clause to protect constitutionally enumerated rights, including the right to keep and bear arms. As the Court demonstrates, there can be no doubt that § 1 was understood to enforce the Second Amendment against the States. In my view, this is because the right to keep and bear arms was understood to be a privilege of American citizenship guaranteed by the Privileges or Immunities Clause.”]

What do you think about Justice Thomas' view?