One of the great mysteries to me has always been how selective incorporation through the due process clause of the 14th Amendment has been used to impose some of the guarantees of the Bill of Rights onto the states, but not others (specifically, for purposes of this list, the Second Amendment).
I've been digging through the decisions of the Supreme Court, trying very hard to understand the reasoning, and I am beginning to wonder if "substantive due process" came off the same saucer in Roswell that gave us the little green men and all our modern technology. :-) I have been trying to find where the notion of substantive due process was first articulated by the Supreme Court. Gitlow v. New York (1925) accepts that freedom of the press is protected speech through the Fourteenth Amendment (although Gitlow's conviction was still upheld). Hurtado v. California (1884) refused to impose grand jury indictment against the states. Twining v. New Jersey (1908) refused to impose self-incrimination ban against the states. (Justice Harlan's dissent in Twining at least correctly recognizes that the privilege and immunities clause of the Fourteenth Amendment should have imposed the right against self-incrimination against the states.) Snyder v. Massachusetts (1934) refused to impose the right to confront one's accusers against the states. There are a whole of Lochner-era decisions that strike down state laws for violating right of contract, and on the very nebulous grounds that these are fundamental rights. Meyer v. Nebraska (1923) struck down the law prohibiting the teaching of German because it violated the right of parents to decide how their children will be educated--but there's no reference to due process or the Fourteenth Amendment. Pierce v. Society of Sisters (1925) struck down an Oregon law prohibiting private schools on essentially the same grounds, using what seems to be substantive due process as a protection of property. The relevance to the Second Amendment should be obvious; what is the reasoning by which this notion of substantive due process came to be used, and where is the first application? I am befuddled trying to find its first use. Clayton E. Cramer [EMAIL PROTECTED] http://www.claytoncramer.com Being a citizen of the Republic is not a spectator sport.
