I just don't see how arguing for both would put the 2nd Amendment outcome in any further doubt, even if P&I didn't work out. The article in Reason, if not read carefully, makes it sound as though SDP and P&I are somehow mutually exclusive
Jeff, I'm sure you understand most of this, but let me start at the beginning for the benefit of others.
The 14th Amendment , Section 1:
All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
As you can see, Section 1 has three prongs: 1) privileges or immunities of citizens, 2) due process, and 3) equal protection.
Privileges and immunities was essentially written out of the constitution by Slaughterhouse, which restricted P and I to only those Privileges which related solely to United States citizenship- The right to protection on high seas, the right to have a passport and go to a consulate for protection, and a other rights which pretty much have no bearing on state rights.
Nonetheless SCOTUS still applied the other two clauses to the states: i.e. pursuant to the due process clause, you must be convicted by a jury of your peers, the state must provide you with a lawyer if you cannot afford one, the police must tell you about your rights before questioning. Due process gradually expanded beyond rights in court to protect “fundamental” rights anywhere to make up for the elimination of privileges and immunities, i.e. the rights to contraceptives, abortion and gay sex – even though these rights are not directly mentioned anywhere in the constitution.
Many conservative scholars and the conservative wing of the Supreme Court, think that this extension of due process into areas not mentioned in the Constitution is ridiculous. The liberal wing of the Supreme Court, who think that the Constitution is a living breathing puppy to be trained as they see fit, love this extended framework of substantive due process since it allows them to restrict states rights whenever they deem it appropriate, despite what the constitution says.
The question is whether the Conservatives, upon whom we will need to rely, will adopt the liberal substantive due process framework to incorporate the RTKBA, a non judicial right, or if they will go back and overrule Slaughterhouse, or (distant third) if they will say that the RTKBA is a distinctly federal right that is incorporated against the states but not overrule slaughterhouse.
Personally, I think the last possibility is DOA, since it would need an expansive opinion at least tacitly approving Slaughterhouse. SCOTUS may avoid Slaughterhouse based on stare decisis, but nobody thinks it is conceptually valid and SCOTUS is not going to actively defend it. The choice for the conservatives is between: the substantive due process structure which is familiar and does not upset the applecart but is not rooted in the language of the Constitution, and is intellectually dishonest in this context, and Privileges and Immunities which is honest, but completely re-writes constitutional law.
Most commentators think that due process is “safer” somehow, but I disagree, we need both to achieve a plurality. I do not think Thomas will use an attenuated due process rationale to incorporate the RTKBA. Scalia, will not like doing so, but he might do so on stare decisis grounds. Essentially, if we are relying upon the Heller Majority to pull this out, we probably need both due process and P or I, to win 4-1-4 or 3-2-4.
Facially, there is nothing inconsistent with incorporating through both P or I and Due Process, since they are both prongs of the 14th amendment. The inconsistency is with tactical decisions balancing the two pathways at oral arguments: How much time do you spend addressing each issue? How do you answer which is better, easy or honest? If Kennedy, who is probably the crucial 5th vote, leans one way how does one change ones argument? If Breyer or RBG indicate that they are leaning towards incorporation through one method or the other, how does that change the argument?
The real problem now is that there are two guys, marching to different drummers, who do not trust each other arguing for the same thing, independently making the aforementioned decisions which will invariably expose differences in opinions which can be exploited by the enemies of the RTKBA. Some might also say that a certain advocate has to win via one path or the other, to justify his involvement in the case. You can bet that if any justice is against the RTKBA they will try and drive a wedge between Gura and Clement by bringing up any difference between their arguments. This would not happen with one advocate.
