The Supreme Court settled in 1884 in Hurtado v. California that the 5th Amendment’s Grand Jury Indictment requirement is not incorporated through the Due Process Clause of the 14th Amendment. (I should note that Justice Harlan, of whom I am a fan, was the lone dissent in this case). Today, the grand jury indictment is one of the few remaining clauses that has not been incorporated.

In light of the 4-1-4 split in McDonald v. Chicago, and the unclear application of the Marks rule, could a District or Circuit Court find that the grand jury indictment right is applied to the states through the Privileges or Immunities Clause? If they did so, they would not need to disturb any precedent if they do not rely on Hurtado and due process.

This could make for an interesting challenge.