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Old October 9, 2008, 06:12 AM   #10
Bartholomew Roberts
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Join Date: June 12, 2000
Location: Texas and Oklahoma area
Posts: 8,462
Quote:
So how is it that a single decision, made more than one hundred years ago, continues to thwart the explicit intent of the 14th amendment? Was the decision ever tested? If so, how did it survive?
Slaughterhouse was pretty plainly a Court resisting the clear intent of Congress expressed in an amendment - at the same time, they were able to do that because there was wide popular support for not giving minorities the same rights as whites despite the 14th Amendment.

My own opinion would be that this is a case of overruling stare decisis without actually overruling it. Around the 1930s, the doctrine of selective incorporation through due process was invented to apply the Bill of Rights to the states. This didn't overrule Slaughterhouse, which still remains a good point of law to this day on the extent of the P&I clause; but it sure did come up with a different outcome than a strict following of Slaughterhouse would allow.

This basically let the Supreme Court selectively apply the Bill of Rights to states piece by piece - rather than trying to swallow the elephant whole, it let them carve it up bit by bit and eat it a piece at a time.

By the time it was politically practicable to actually eat the rest of the elephant, there wasn't much point left to it because there was just a couple of bites left (one of which is the Second Amendment).

I think this case has great potential though. A recent ABA article noted that facial challenges have had a very difficult time with this Court and that as-applied challenges are much more successful. On top of that, I think a supermajority on this Court realizes that Slaughterhouse was bad law and wants it to go away - not only does this case offer an excellent basis to incorporate the Second Amendment under the doctrine of selective incorporation - it also offers an intriguing chance to overturn Slaughterhouse outright and right past wrongs. I don't know if the Court would go that far given that two small portions of the BoR (right to indictment by grand jury and something else I can't remember) have been specifically held not to be incorporated against the states in previous cases; but it does dangle some interesting bait out there for them.
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