We won. Not through Privileges Or Immunities, but Due Process is pretty damn good. Reading it now.
It looks to me like we got strict scrutiny, too. On page 39 of Alito’s opinion:
Municipal respondents assert that, although most state constitutions protect firearms rights, state courts have held that these rights are subject to “interest-balancing” and have sustained a variety of restrictions. Brief for Municipal Respondents 23–31. In Heller, however, we expressly rejected the argument that the scope of the Second Amendment right should be determined by judicial interest balancing, 554 U. S., at ___–___ (slip op., at 62– 63), and this Court decades ago abandoned “the notion that the Fourteenth Amendment applies to the States only a watered-down, subjective version of the individual guarantees of the Bill of Rights,” Malloy, supra, at 10–11 (internal quotation marks omitted).
As we have noted, while [Justice Breyer’s] opinion in Heller recommended an interest-balancing test, the Court specifically rejected that suggestion. See supra, at 38–39. “The very enumeration of the right takes out of the hands of government—even the Third Branch of Government—the power to decide on a case-by-case basis whether the right is really worth insisting upon.” Heller, supra, at ___ (slip op., at 62–63).
Gotta love Scalia’s typical pithiness:
JUSTICE STEVENS moves on to the “most basic” constraint on subjectivity his theory offers: that he would “esche[w] attempts to provide any all-purpose, top-down, totalizing theory of ‘liberty.’” Post, at 22. The notion that the absence of a coherent theory of the Due Process Clause will somehow curtail judicial caprice is at war with reason. Indeterminacy means opportunity for courts to impose whatever rule they like; it is the problem, not the solution. The idea that interpretive pluralism would reduce courts’ ability to impose their will on the ignorant masses is not merely naïve, but absurd. If there are no right answers, there are no wrong answers either.
The next constraint JUSTICE STEVENS suggests is harder to evaluate. He describes as “an important tool for guiding judicial discretion” “sensitivity to the interaction between the intrinsic aspects of liberty and the practical realities of contemporary society.” Post, at 24. I cannot say whether that sensitivity will really guide judges because I have no idea what it is. Is it some sixth sense instilled in judges when they ascend to the bench? Or does it mean judges are more constrained when they agonize about the cosmic conflict between liberty and its potentially harmful consequences? Attempting to give the concept more precision, JUSTICE STEVENS explains that “sensitivity is an aspect of a deeper principle: the need to approach our work with humility and caution.” Ibid. Both traits are undeniably admirable, though what relation they bear to sensitivity is a mystery. But it makes no difference, for the first case JUSTICE STEVENS cites in support, see ibid., Casey, 505 U. S., at 849, dispels any illusion that he has a meaningful form of judicial modesty in mind.
In any event, the demise of watered-down incorporation, see ante, at 17– 19, means that we no longer subdivide Bill of Rights guarantees into their theoretical components, only some of which apply to the States. The First Amendment freedom of speech is incorporated—not the freedom to speak on Fridays, or to speak about philosophy.