With the Supreme Court set to hear oral arguments this morning in the landmark gun rights case McDonald v. Chicago, America's newspapers are weighing in with unsigned editorials. Among the most notable is The New York Times, which tries to have it both ways by endorsing gun control and denouncing the 1873 Slaughterhouse decision that gutted the 14th Amendment's Privileges or Immunities Clause. At least the Times got the Slaughterhouse part right:
We disagreed strongly with the 2008 decision [District of Columbia v. Heller], which took an expansive and aggressive view of the right to bear arms. But there is an even broader issue at stake in the new case: The Supreme Court's muddled history in applying the Constitution to states and cities. It should make clear that all of the protections of the Bill of Rights apply everywhere….
To justify incorporation, the court has relied on the 14th Amendment, which was enacted after the Civil War to ensure equality for newly freed slaves. The amendment has two relevant clauses: the due process clause that requires government to act with proper respect for the law, and the privileges or immunities clause, which is more focused on protecting substantive individual rights.
The logical part of the amendment to base incorporation on is the privileges or immunities clause, but a terrible 1873 Supreme Court ruling blocked that path and the court has relied since then on the due process clause….
The Supreme Court's conservative majority has made clear that it is very concerned about the right to bear arms. There is another right, however, that should not get lost: the right of people, through their elected representatives, to adopt carefully drawn laws that protect them against other people's guns.