McDonald and Incorporation of the Second Amendment

1. Notice that the challengers argued that the Court should incorporate the 2d Amendment under the Privileges or Immunities Clause rather than the Due Process Clause. What is this issue all about? See p. 475.

2. Notice that even under the Due Process Clause the Court disagreed as to the appropriate test for incorporation and "fundamentalness."

3.Notice that the City of Chicago argued that the test for a fundamental right should be to whether "it is possible to imagine any civilized legal system that does not recognize a particular right." If this test were applied to all Bill of Rights incorporation cases, how many of the Amendments would not be fundamental? Right to counsel?Establishment Clause? Free Speech Clause? Right of accused not to be compelled to testify in criminal proceeding?

4. The Court instead applied the the governing standard used in other incorporation cases: "whether a particular Bill of Rights guarantee is fundamental to our scheme [i.e. the American scheme] of ordered liberty and system of justice" or "whether the right 'is deeply rooted in this Nation's history and tradition.'" p. 476-477.

Make sure you understand the difference? Which test do you think is the better one? Why? Should Justices use a more lenient test for Bill of Rights provisions they like and a more strict test for liberties they dislike?

Of course, since the Due Process Clause was not designed to incorporate the Bill of Rights, one person's subjective test is just as good as another person's subjective test. Just count the votes.

This is why Justice Thomas wanted to look to original meaning originalism and ask "what 'ordinary citizens' at the time of ratification would have understood the Privileges or Immunities Clause to mean..." p. 483.

If the one pervading purpose of the 14th Amendment was protection of the newly freed slaves, what does that tell us about the fundamental nature of the right to bear arms at the time of ratification? See more Thomas at p.483;majority opinion at 478-479.