This Article examines the failure of the incorporation doctrine following the ratification of the Fourteenth Amendment and draws some lessons from that experience for the live issue of whether the Second Amendment should apply to the States.
The analysis reaches three main conclusions. First, the Slaughter-House opinion did not foreclose the application of the Bill of Rights to the States. A careful review of the cases and commentary interpreting Slaughter-House from 1873 until 1900 shows that almost nobody thought that the case spoke to the issue. Second, courts reviewing incorporation litigation in this era distinguished between procedural claims, where there was little support for the concept, and substantive claims, where there was support. Unfortunately for advocates of incorporation, virtually all of these initial cases were about procedural issues, which created negative momentum for the whole concept. Third, enthusiasm for applying substantive provisions (e.g., free speech, free exercise of religion, freedom from unreasonable searches and seizures, or cruel and unusual punishment) to the States disappeared in the mid-1890s because of fear created by a surge in protests from Populist activists and labor leaders. Just as civil liberties have traditionally retreat in wartime, the same dynamic retarded the expansion of the Bill of Rights in a period of domestic discord. Based on these conclusions, the analysis holds that the historical evidence supports the incorporation of the right to bear arms.
There is a lot of good stuff in here, and I will be working to incorporate it into Opening Pandora’s Box? Privileges or Immunities, The Constitution in 2020, and Properly Incorporating the Second Amendment, (forthcoming Georgetown Journal of Law & Public Policy)
And from the article:
Far less atten- tion is given to the question of why courts almost uniformly re- jected the extension of the Bill of Rights to the states in the decades after the Fourteenth Amendment’s ratification.9 If the original understanding supporting incorporation was so clear, why did contemporary judges reject the idea so overwhelming- ly?10 The most common response is that the Supreme Court gave the Privileges or Immunities Clause of the Fourteenth Amendment a stingy and erroneous reading in the Slaughter- House Cases11 and set back incorporation for decades.12 Indeed, Slaughter-House is one of those rare decisions, like Dred Scott v. Sandford13 or Buck v. Bell,14 that constitutional lawyers of all ideological stripes love to hate.15
This Article rejects the conventional interpretation of Slaughter-House and offers another explanation for incorpora- tion’s demise that rests in equal measure on an unlucky sample of cases and on the unintended consequences of constitutional politics in the 1890s.16 A careful examination reveals nothing in Slaughter-House that is inconsistent with incorporation.17 In- deed, no federal opinion prior to 1900 construed the case as contrary to extending the Bill of Rights to the states. The anti- incorporation reading did not emerge until Maxwell v. Dow, which was decided three decades after Slaughter-House.18 By this time, though, incorporation had been undermined by two independent developments.
First, virtually all of the cases that squarely raised incor- poration between 1873 and 1900 involved procedural claims.19 In other words, the Court rarely dealt with litigants seeking protection for religious freedom, for free speech, or from unrea- sonable searches and seizures. Instead, the Justices got a steady diet of cases seeking to invoke a right to a civil jury trial or grand jury indictment, both of which are still not applied to the states.20 This pattern was significant because lawyers at this time drew a sharp distinction between substantive rights, which were fundamental and unalterable, and procedural forms, which were subject to improvement and should not be constitutionally fixed.21 Thus, the initial cases that raised in-corporation drew from a distorted sample—in the area where support for the idea was at its ebb—and created precedents that made it easier for the Court to reject the entire concept later.
Of particular interest, the article contends that Slaughterhouse does not foreclose the doctrine of incorporation. Rather, the later precedent of Maxwell v. Dow (1900) accomplished that task.
The other interpretation is that Slaughter-House’s discus- sion of national rights was illustrative and not exhaustive, which if correct would not undermine incorporation. Indeed, the Court’s statement that it was describing “some” of the privi- leges or immunities protected by the Fourteenth Amendment supports this open-ended construction.
But in no case did a federal court say that Slaughter-House meant that the Bill of Rights was not in- corporated by the Fourteenth Amendment. This raises an ob- vious question: where did that interpretation come from? The answer is that the Justices themselves arrived at this view in Maxwell, a 1900 case rejecting the claim that a state conviction rendered by a jury of eight—instead of the tradition- al twelve—was invalid because the Sixth Amendment right to a jury trial was a privilege or immunity under the Fourteenth Amendment.53 Petitioner contended that “all the provisions contained in the first ten amendments, so far as they secure and recognize the fundamental rights of the individual as against the exercise of Federal power, are . . . to be regarded as privileges or immunities of a citizen of the United States . . . .”54 In response, the Court quoted extensively from Slaughter- House and concluded in the opinion’s crucial section on national rights that “[a] right, such as is claimed here, was not men- tioned, and we may suppose it was regarded as pertaining to the State, and not covered by the amendment.”55 Thus, Max- well endorsed the “exhaustive” reading of Slaughter-House and fixed the Court’s hostility toward the Bill of Rights for the next century.56
The article continues to discuss the incorporation doctrine from the ratification of the Fourteenth Amendment until Maxwell in 1900.
The most notable fact about these cases is that they largely concerned the procedural parts of the Bill of Rights (such as the grand jury, civil jury, and petit jury) rather than the substantive ones (for example, free speech, right to bear arms, and freedom of reli- gion).57 This pattern is significant because courts were reluc-tant to bind the states with procedures that were considered relatively unimportant and subject to improvement.58 Thus, most litigants who brought incorporation claims did so on the weakest possible grounds and created precedents that proved harmful to the broader idea.
These incorporation precedents indicate that procedural rights were viewed less favorably than substantive privileges for two reasons. First, procedure was just a means to an end that could vary between jurisdictions without doing much harm.71 Second, these forms were not sacrosanct because, in what today might be called “living constitutionalism,” there was a strong belief that they could be improved with expe- rience.72 While these two arguments are treated more skepti- cally today, they still retain some force in the sense that there is no clamor for overruling Walker or Hurtado to incorporate the civil and grand jury requirements. In these cases, there re- ally is a sense that the Bill of Rights is protecting a form that is not essential (or even good) for achieving justice.73
While the article only tangentially discusses McDonald and incorporation, the article concludes in favor of incorporation:
What do these principles tell us about how the Supreme Court should view a Second Amendment incorporation claim? First, this is one of the few substantive portions of the Bill of Rights that have not overcome the hostility toward incorpora- tion generated by the backlash against the Populists and la- bor.174 This exception is hard to justify more than a century af-ter William Jennings Bryan’s defeat in the 1896 campaign. Second, a review of the Court’s Second Amendment decisions from the 1870s until the 1890s, which are the only ones that address incorporation, shows that there is no holding rejecting the idea.175 Consequently, this historical inquiry counsels in fa- vor of a conclusion that the Second Amendment should be ex- tended against the states to join its compatriots in textual free- dom.