View Full Version : somewhat obscure incorporation question

08-04-2010, 9:50 AM
In the 14th amendment, the privileges or immunities clause applies only to citizens, but the due process clause applies to "any person".

There were four votes in McDonald for due process incorporation, and one vote for P or I incorporation, and since generally with separate concurrences only the weakest consistent conclusion binds (right?), would it be the case that the 2nd amendment is only incorporated against the states for citizens?

Or can Thomas's concurrence be read as a fifth vote for due process, with a tacked-on argument that P or I should have been used instead?

Or, it could be that the 2nd only applies to citizens by its very nature, and therefore only that right could be incorporated (but doesn't Heller say that self defense with firearms is a fundamental right predating the constitution?)?.

08-04-2010, 1:47 PM
As a purely technical matter the citizens v. persons debate is an open question on 2A incorporation vis-a-vis McDonald. However, as a practical legal matter, anyone legally in the country is likely to be "the people" in the 2A.