Judging by yesterday’s oral argument, the Supreme Court is afraid to revisit that 1873 decision for fear of opening a can of worms. Chief Justice John Roberts began the questioning by invoking the heavy burden on anyone seeking to reverse Slaughter-House. Justice Antonin Scalia referred to the Privileges or Immunities Clause as the “darling of the professoriate,” a reference not intended as a compliment.
Noticeably absent was any question—not one—by any justice challenging the historical evidence that the right to keep and bear arms was among those included in the Privileges or Immunities Clause. For that matter, no justice seemed at all interested in the original meaning of any aspect of the 14th Amendment. . . .
So what did the justices discuss? In a revealing early question, Justice Scalia asked whether it isn’t “easier” just to use the Due Process Clause.
What followed was nearly an hour-long discussion between the Court and lawyers about whether or not a right to arms was “implicit in the concept of ordered liberty” and whether something else should be the test of whether a right is “fundamental.” Should rights spelled out in the Constitution’s text be treated differently from unenumerated ones? How much of the right to keep and bear arms is applicable to the states? The entire colloquy was unmoored from the text and history of the 14th Amendment.
In other words, the justices became lost amid their own formulations, demonstrating by their wandering discussion that using substantive due process as a way of deciding what rights in the Bill of Rights get protection against the states (“incorporated”) is really, really hard. Not only do they have to decide, all on their own, what is in or out, they also have to adopt the criteria by which to make this decision.