How Should Rights be Applied to the States?

In McDonald v. City of Chicago, the Supreme Court asked whether it should apply the right to arms against the states through the Due Process Clause or Privileges or Immunities Clause. Ilya Shapiro and his co-author Josh Blackman argued that the Court could do so without setting out aimlessly into the undiscovered country of untethered and unbounded unenumerated rights—by adapting the principles of Washington v. Glucksberg (1997). By only considering rights that are “deeply rooted” in our nation’s traditions, the Privileges or Immunities Clause could be cabined within the appropriate scope of historical practice without the flood waters rushing in. The Court didn’t take their bait—though curiously neither the majority nor dissenting opinions grappled with the privileges-or-immunities dimension. A decade later, what is the status of the ongoing restoration of what was lost in the Slaughterhouse Cases? Did McDonald change anything? How should “incorporate” rights going forward?

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