Clayton has a very good article up over at Pajama’s Media, and it discusses a topic we spoke about a bit yesterday, namely whether the Court will choose to incorporate the Second Amendment through the traditional due process clause, or the privileges or immunities clause:
This could be a momentous decision. I can understand why the Supreme Court might look at the mess it will create if it admits that all of these previous selective incorporation decisions were wrongly made — because so much of our current society is based on these decisions. Perhaps they will decide to incorporate the Second Amendment through privileges or immunities and pretend that the results are pretty much the same either way. The results, however, will provoke a firestorm of suits seeking clarification, of that I can assure you.
I would imagine the Court can overturn Cruikshank without overturning its due process based decisions, and make a reasonable argument that incorporation can be reached through both mechanisms. But Clayton is right about the potential mess the Court could make if it choose the privileges or immunities path. Clayton speaks about one complication in regards to corporations, but there’s another complication as well. Is the right to be indicted by a grand jury amoung the privileges and immunities of citizens of the United States? It would certainly appear so, but the Supreme Court has never incorporated the right to be indicted by a grand jury, a positive right rather than a recognition of a natural right, against the states. Pennsylvania is one state that does not use grand juries to bring criminal charges, except in rare circumstances, though the other states in the Third Circuit, New Jersey and Delaware, both do.
It’s the complications that overturning Cruikshank presents that makes me skeptical the Court will want to go there, but I’m holding out hope.
If they don’t want to address Cruikshank, why then did they take McDonald over NRA v Chicago?
There’s a lot of weird maneuvering going on about which case was taken up. The NRA case is in limbo (neither granted nor rejected cert), as is the NY Nunchuk case. And unless Kennedy wants to moot his vote last year, I can’t quite see McDonal coming out with a different vote than did Heller.
Only thing I can think of is someone wants to split the baby – incorporate the 2A via Due Process and uphold Cruikshank. That explains why they’ve left NRA in limbo, they can pick it up as a straight-up incorp via due process case if McDonald flames out on P or I.