High Court Incorporates Second Amendment ….in the Other Washington

SCOTUSBlog reports this morning that the Washington state Supreme Court has issued a ruling incorporating the Second Amendment against the states via the Due Process Clause of the Fourteenth Amendment.

This question – of whether, and if so, how, the Second Amendment individual right to bear arms, recognized in Heller v. District of Columbia – is precisely the one the U.S. Supreme Court will address this Term in McDonald v. City of Chicago, set for oral argument on March 2.  The Washington court acknowledged that the Supreme Court had yet to address this question, stating that on this issue “lower courts need not wait for the Supreme Court.”

In an amicus brief filed in McDonald on behalf of a broad range of prominent constitutional scholars, CAC argues that the Second Amendment is incorporated via the Fourteenth Amendment.  However, in contrast to the Washington court’s approach, our brief reveals why this should be done via the Privileges or Immunities Clause, rather than the Due Process Clause.