Best part of this is that NONE of this requires incorporation at all.
Welll...yeah, sorta.
OK. What I'm trying to do here is as follows:
1) Dangle incorporation in front of the judge - either full incorporation of the 2nd ("selective" incorporation via the due process clause) or whole incorporation of the Bill Of Rights (via privileges and immunities) or via California's apparent self-incorporation clause. Basically, it's a fishing line in the water, see if he bites.
2) If he DOESN'T bite, then we fall back on the Saenz/Ward precedents. Which are basically foolproof, even if I do have a fool for a client. Those cases say that a state cannot discriminate against residents of other states in the area of ANY civil right recognized by the Federal government. That covers the whole BOR and then some ("right to travel" and "right to engage in commerce" among others).
Put another way, we right now HAVE "full incorporation" but only when a state discriminates against residents of other states.
Fiddletown: I'm familiar with 8(a). But you're apparently not familiar with Bell Atlantic Corp. v. Twombly (2007) which re-stated the rules on Federal pleadings. We now have to be more detailed, or the judge can boot our butts even before the other side does a demurr or motion to dismiss.
As to standing issues. California says that I have no access to a Federally recognized civil right, when California residents DO have access (in some form anyways) to that right. Again: read Ward:
http://supreme.justia.com/us/79/418/case.html
...and Saenz:
http://caselaw.lp.findlaw.com/scripts/getcase.pl?navby=CASE&court=US&vol=526&page=489
Now here's the cool part. The Ward case was, as far as I can tell, the VERY FIRST supreme court case on the 14th Amendment. They were saying that the 14A P&I clause was causing this specific effect (banning cross-border discrimination by a state against US citizens of other states).
They deliberately did not exclude any broader interpretation of the P&I clause.. Check out this quote from Ward:
Attempt will not be made to define the words "privileges and immunities" or to specify the rights which they are intended to secure and protect, beyond what may be necessary to the decision of the case before the Court. Beyond doubt those words are words of very comprehensive meaning, but it will be sufficient to say that the clause plainly and unmistakably secures and protects the right of a citizen of one state to pass into any other state of the Union for the purpose of engaging in lawful commerce, trade, or business without molestation; to acquire personal property; to take and hold real estate; to maintain actions in the courts of the state; and to be exempt from any higher taxes or excises than are imposed by the state upon its own citizens.
In other words, my winning a Ward-style form of incorporation will NOT screw anybody else going for more expansive incorporation later.
I'll definitely pull the snarky bit about Scalia's sense of humor. That was accidental, it was part of a cut'n'paste from something else I'd written earlier and I didn't catch it here.
Now as to Heller not declaring a right to carry...
Is there ANY case law anywhere in the US separating the right to "keep" arms from the right to "bear"? In other words, we've seen courts (including the 9th Circuit) disparage both at once. But have we ever seen them support "keep" while vioating (and supporting a right to violate" the "bear" part?
California's position now (with pre-Heller court support) is that state law can be revised at any time to eliminate or restrict "keeping" arms. They currently allow "keeping" unless it's an "evil black rifle" or can be confused with same.
In order to rule that I don't have a right to "bear arms" in any form, that court would have to invent a mechanism to support disconnecting "keep" from "bear" in the 2nd. No court has ever tried that I know of. Am I wrong?