On Monday, the petitioners in the Second Amendment incorporation case filed their merits brief and asked the Court to overrule Slaughterhouse, United States v. Cruikshank, and Presser v. Illinois. While I agree with their view that the Second Amendment should apply to the States and think the brief’s discussion of the Fourteenth Amendment’s original understanding is excellent, the case analysis is flawed.
As I explain in my forthcoming article, which should be out any day now, Slaughterhouse is not hostile to incorporation. It only acquired that meaning in Maxwell v. Dow, a 1900 case that reread Slaughterhouse in light of recent political events (i.e., the defeat of William Jennings Bryan). Indeed, the brief just adopts Maxwell’s faulty claim that using the Privileges or Immunities Clause for incorporation would require the overruling of Slaughterhouse and Cruikshank. Cruikshank can be distinguished on state action grounds — it’s holding is not inconsistent with incorporation–and Presser is irrelevant as the Second Amendment claim there was not properly pled. The real case that needs to be overruled (or modified) is Maxwell.
Finally, what does “overruling Slaughterhouse” mean exactly? Would I now have a constitutional right to be a butcher?