Originalists Lose in McDonald v. Chicago

In what is being hailed by many gun owners as a major victory, the Supreme Court ruled yesterday in McDonald v. Chicago that the Second Amendment applies to the state and local governments via the Fourteenth Amendment.  However, four of the Justices concurred that incorporation should be done via the Due Process Clause, while Justice Clarence Thomas thought it should be done via the Privileges or Immunities Clause.

The Privileges or Immunities Clause provides that "No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States."

I find it odd that four of the Justices who claim to subscribe to Constitutional Originalism could offer no compelling reason for using the Due Process Clause.  Their "justification" came from the lack of the petitioners' ability to explain the scope of the Privileges or Immunities Clause and the lack of precedent.

This leaves Second Amendment incorporation at the mercy of "substantive due process" — the exact thing that those four Justices complain about the most for vagueness.  Using the Due Process Clause requires the Court to determine if a right is "fundamental" to "our scheme of ordered liberty."  This leaves incorporated rights open to attack from Justices who inject their political views into their opinions (and all of them do).

In over a century of rulings using the Due Process Clause, no consensus has emerged on the correctness and meaning of precedent cases such as Roe v. Wade.  This further proves that Second Amendment incorporation will be left open to manipulation going forward, all because the Court "decline[d] to disturb the Slaughter-House holding."