Overturning the Slaughterhouse Cases?

Yesterday, The U.S. Supreme Court granted certiorari in McDonald v. City of Chicago. This was not really a surprise, but at least one aspect of the case is. Briefly, the case deals with the question whether the Second Amendment to the U.S. Constitution (the right to bear arms), applies to the states through the Fourteenth Amendment. Last year, in District of Columbia v. Heller, the Court held that the right to bear arms is an individual right which protects a person's right to own a firearm for personal use. There are many interesting aspects about Heller, for example the use of Originalism by the Court, but I won't be concerned with those here.

Because Heller challenged a D.C. law, the question of applicability to the states and local governments, as opposed to the federal government, was not at issue. But, as expected, that issue was just around the corner and now the Court will decide whether the Second Amendment is "incorporated" into the Fourteenth. The Seventh Circuit decided that the Amendment is not incorporated, relying on several cases, and added that only the Supreme Court can overturn its own precedents. (As an aside, that last point is not obvious to me, and I think it mistaken. David Faigman makes a persuasive argument demonstrating that sometimes lower courts can and should overturn Supreme Court precedents).

Now here's the interesting, and little overlooked, point. The Court will not only consider whether the Second Amendment should be incorporated against the states, but it will also consider whether it applies through the Privileges and Immunities Clause as well, and not just through the Due Process Clause. By doing this, the Court stands at the precipice of overturning one of the most important, and controversial, constitutional cases, the Slaughterhouse Cases (1873).

In the Slaughterhouse Cases, the Court basically gutted the P&I Clause from having any constitutional import, limiting it only to rights conferred in virtue of having a U.S. citizenship (for example the right to run for office, access to waterways, right to travel, but not civil rights), rather than rights one has in virtue of having state citizenship. This meant that the Bill of Rights could not be applied wholesale to the states, and ever since then the Court adopted a gradual incporation approach. Another outcome of the case was that the Federal Constitution did not impose limitations on the states' police power, the argument that the petitioners were hoping to make. Many also believed that the P&I Clause codified pre-existing natural rights (such as the right to pursue an occupation, the particular issue in the Slaughterhouse Cases), so that understanding was quashed as well.

The case is complicated, and it spawned a wealth of literature, where many called for its reversal. Some have questioned the Court's textual interpretation, others have tried to show that the Congressional intent was that the P&I Clause be read more expansively than the Court thought it should. In any event, after Slaughterhouse, the Court, as a result of rendering the P&I Clause meaningless, had to expand the Due Process Clause to get the Bill of Rights to apply to the states, often in a somewhat acrobatic and awkward fashion.

So, we will have to wait and see what happens. My guess is that the Second Amendment will be incorporated and apply against the states (most commentators think so too), though I'm uncertain as to whether the Court will revive the P&I Clause. I think that the reading of that Clause back in 1873 was indeed mistaken, but it has become such a pillar of constitutional law that perhaps its weight as precedent will override other conceptions of constitutional correctness.