It is a common misconception in Australia that the United States Bill of Rights is universal in its application to both state and federal governments. In fact, prima facie, the protections do not apply to state legislatures and for at least the first 120 years of the United States, the Bill of Rights was explicitly held not to apply to the States.
It is only through a process that the Courts call ‘incorporation’ that Clauses in the Bill of Rights are applied to the States. Such incorporation is done on an ad hoc basis, dealing with one Clause at a time as the case requires.
On Monday the Supreme Court of the US handed down the long awaited decision in McDonald v Chicago, in which it declared that the Second Amendment (“the right to keep and bear arms”) is incorporated to the States.
That is an interesting Constitutional landmark in its self (see discussion at VC), however what is also interesting is the manner in which one member of the Court proposed to incorporate the Second Amendment. In the US, the Supreme Court has traditionally found that this process of incorporation occurs through the ‘Due Process Clause’ of the Fourteenth Amendment. That is to say that some rights are so fundamental that they must be protected at the state level in order to ensure that Due Process, in the Constitutional sense, is protected.
However for a long time US Constitutional Scholars have argued that it would be more appropriate for incorporation to occur through the ‘Privileges and Immunities Clause’ of the Fourteenth Amendment. This argument however is contrary to the previous Supreme Court authority in the Slaughter House Cases.
In McDonald, the Supreme Court was asked to overturn the Slaughter House Cases, but this argument was spectacularly dismissed as purely academic in the first few sentences of the appeal hearing transcript. Surprisingly however, Justice Thomas, who was the fifth of a 5 to 4 majority, relied entirely on the Privileges and Immunities Clause in finding that the second amendment was incorporated. (See a brief discussion at SCOTUS Blog). Some proponents of this view are championing this as the beginning of a migration of incorporation jurisprudence to the Privileges and Immunities Clause.
I find this topic intriguing because it mirrors contemporary struggles that the Australian High Court has with balancing the degree to which protections in the Constitution should bind the States.
For example the recent ruling in ICM Agriculture Pty Ltd v The Commonwealth  HCA 51 that the Federal Government cannot provide funding to a state legislature in return for the state passing legislation that the Federal Legislature could not Constitutionally do itself.
Also, the ‘incorporation’ (for lack of a better word), of protections of Judicial integrity to the States by virtue of the Constitutional status of the Supreme Court, in cases such as Kirk v Industrial Relations Commission  HCA 1 (protection of judicial review for jurisdictional error in states) and the Kable doctrine (integrity of Supreme Court as proper receptacle for Federal Jurisdiction, which was recently reenlivened in International Finance Trust Company Limited v New South Wales Crime Commission  HCA 49 and, I predict, will again be enlivened when the Court delivers its judgment in Totani v South Australia).
7 hours ago