Along with many others, I noted yesterday that the Supreme Court expressly left open the question whether the individual right to keep and bear arms in the Second Amendment should be incorporated into the Fourteenth Amendment to apply against the states. Here is the relevant passage reserving the issue:
With respect to [the nineteenth-century case of U.S. v.] Cruikshank's continuing validity on incorporation, a question not presented by this case, we note that Cruikshank also said that the First Amendment did not apply against the States and did not engage in the sort of Fourteenth Amendment inquiry required by our later cases. Our later decisions in Presser v. Illinois (1886) and Miller v. Texas (1894) reaffirmed that the Second Amendment applies only to the Federal Government.
Op. at 48 n. 23.
The footnote is a whipsaw; it reads like one person originally wrote the first line and, seeing it, another came along and insisted on adding the second. The first sentence suggests that just as Cruikshank was wrong (and under-theorized) on First Amendment incorporation it was also wrong (and under-theorized) on Second Amendment incorporation. But the second sentence notes two post-Cruikshank opinions confirming that the Second Amendment limits only federal power. There's been some speculation that Justice Scalia may not have had five votes for a more unequivocal pro-incorporation statement. The generally more cautious, incrementalist, and minimalist tendencies of Chief Justice Roberts may have prevailed here, as did minimalism on other important questions the Court avoided (noted in a post yesterday by Orin).
Nevertheless, on re-reading the decision, I noticed a passage that seems relevant to future litigation on the incorporation question. In the middle of his review of post-Civil War enactments, Justice Scalia highlights the importance to the newly freed slaves of the right to keep and bear arms in the home. He also reviews how federal authorities took steps to prevent vengeful and racist southern legislators from infringing this right. Mike O'Shea at Concurring Opinions also points to this discussion as significant on the incorporation issue. It is, as he notes, exactly the kind of evidence that scholars have relied upon to support incorporation.
Especially significant are these sentences from Heller discussing congressional understanding of the Civil Rights Act of 1871 and the Fourteenth Amendment:
Similar discussion attended the passage of the Civil Rights Act of 1871 and the Fourteenth Amendment. For example, Representative Butler said of the Act: “Section eight is intended to enforce the well-known constitutional provision guaranteeing the right of the citizen to ‘keep and bear arms,’ and provides that whoever shall take away, by force or violence, or by threats and intimidation, the arms and weapons which any person may have for his defense, shall be deemed guilty of larceny of the same.” H. R. Rep. No. 37, 41st Cong., 3d Sess., pp. 7–8 (1871). With respect to the proposed Amendment, Senator Pomeroy described as one of the three “indispensable” “safeguards of liberty . . . under the Constitution” a man’s “right to bear arms for the defense of himself and family and his homestead.” Cong. Globe, 39th Cong., 1st Sess., 1182 (1866). Representative Nye thought the Fourteenth Amendment unnecessary because “[a]s citizens of the United States [blacks] have equal right to protection, and to keep and bear arms for self-defense.” Id., at 1073 (1866). It was plainly the understanding in the post-Civil War Congress that the Second Amendment protected an individual right to use arms for self-defense.
Op. at 43-44.
Interestingly, the quote from Rep. Nye supports incorporation through the Citizenship Clause, rather than through due process, though Nye himself believed blacks already enjoyed the right in common with all citizens. The right to keep and bear arms for self-defense could be considered an implicit and indispensable aspect of "citizenship" protected by the first sentence of the Amendment. Others might argue that the right is a privilege or immunity protected against state intrusion.
Add to all of this the fact that the Court repeatedly compares the incorporated First Amendment to the unincorporated Second Amendment as a guarantee of important individual rights. A court that believes the Second Amendment is comparable to the hallowed First Amendment is unlikely to leave protection of the right to the mercy of legislative majorities in states and cities.
Whichever specific route the lower courts now choose — the Citizenship Clause, the Privileges and Immunities Clause, the Due Process Clause — it seems the Supreme Court is providing a road map and is strongly suggesting that the ultimate destination is incorporation.