Over at the Volokh Conspiracy comment threads, a debate is raging over the Privileges or Immunities Clause and the 2nd Amendment Incorporation Case, McDonald v. Chicago.
A sampling of the comments may help explain why this is such a hot and controversial area, and why conservatives, libertarians, and liberals are all up in arms over the outcome of this case.
What I can tell you is why libs like Jerry Brown [Attorney General of California] are supporting P&I incorporation. They’re hoping they can use the same theory to enforce other rights, unrelated to gun ownership, against state governments.
In Response to Publius, Angus says:
This is it exactly. This cases seems to make strange bedfellows. You have conservatives praising incorporation and denouncing federalism, leftists denouncing incorporation and praising federalism, and then a third group who look at this and say “Wow, we’re not interested in the gun issue, but we could really use case’s outcome to get what *we* want.”
In Response to Angus, troll_dc2 says:
Yes, yes, yes. The issue is actually less crucial than it formerly would have been both because of the use of the Due Process Clause to do the incorporation and the enactment of all sorts of civil rights laws, but if the conservative pro-gun types have to use the Privileges and Immunities Clause to get the Second Amendment to apply to the states, they may well discover that the Privileges and Immunities Clause might make the states subject to other federal rights, not all of which they might approve. So while the pro-gun result will look like a victory, the precedent that is established could bite them in the long run.
In response to Publus, geokstr says:
Yet no one believes that the left, by incorporating the 2A, can then use this theory to get everything they want. As you said above, to “…enforce other rights…against state governments.”
With a one vote shift in the balance of SCOTUS, they can also then use an incorporated 2A “against state governments” once the new court finds the hidden emanation that says this is all about formal state militias, not individual rights to own guns.
Wow. After watching how the left operates for all these decades, and still not understanding how they operate. Reminds me of an old Abbott/Costello routine: “…inch by inch, step by step, slooowwwly I turned…”, and there stood the monster.
This interesting alliance and bedfellows this creates is fascinating. See mainly the Amicus brief for this case signed by Randy Barnett AND Jack Balkin.
For these reasons, I compare revisiting the Privileges or Immunities Clause to opening up Pandora’s Box. We really don’t know what will come out. But we have to be prepared.
Though, perhaps one of the best NSFW comments is:
don’t incorporate me bro says:
Sounds like a blockbuster. The question presented is a legal academic’s wet dream.
For once, no comment from your humble blogger.