Replies

“Dred Scott was not overturned by Congress.”
Did you not read my exact comment? I said, “Dred Scott v. Sandford (overturned by the 14th Amendment).” I didn’t say Dred Scott was overturned by Congress.

Yes, I read your precise statement.

As Marbury v. Madison showed us, the law is what the Court says it is; that is, until a subsequent Court decides otherwise or Congress nullifies it. A couple cases in point: Dred Scott v. Sandford (overturned by the 14th Amendment)....

Would Dred Scott be a case in point of a subsequent case deciding otherwise or Congress nullifying it?

“Heller and McDonald did not eviscerate Cruikshank. As the Court stated at 570 U.S. 620-21...”
Yeah, I think they did.

When all else fails, you could consider reading all the opinions in Heller and McDonald.

Before the Cruikshank court was a claim that litigant's rights were protected under the Privileges or Immunities Clause. The Cruikshank court held that said rights were not protected under the Privileges or Immunities Clause.

Before the Heller court was a claim that litigant's rights were protected under the Due Process Clause. The Heller court found that said rights were protected under the Due Process Clause.

Heller, Opinion of the Court 554 U.S. 570, 620, footnote 23.

²³ With respect to Cruikshank’s continuing validity on incorporation, a question not presented by this case, we note that Cruikshank also said that the First Amendment did not apply against the States and did not engage in the sort of Fourteenth Amendment inquiry required by our later cases. Our later decisions in Presser v. Illinois, 116 U. S. 252, 265 (1886), and Miller v. Texas, 153 U. S. 535, 538 (1894), reaffirmed that the Second Amendment applies only to the Federal Government.

Heller reaffirmed the reasoning and holding of the Cruikshank court finding the Second Amendment did not apply to the States. AT the time of the Heller opinion, the 2nd Amendment RKBA did not legally apply to the states.

McDonald, 561 U.S. 742, 808 (2010). Thomas, J., concurring.

The meaning of § 1’s next sentence has divided this Court for many years. That sentence begins with the command that “[n]o State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.” On its face, this appears to grant the persons just made United States citizens a certain collection of rights—i.e., privileges or immunities—attributable to that status.
This Court’s precedents accept that point, but define the relevant collection of rights quite narrowly. In the Slaughter-House Cases, 16 Wall. 36 (1873), decided just five years after the Fourteenth Amendment’s adoption, the Court interpreted this text, now known as the Privileges or Immunities Clause, for the first time. In a closely divided decision, the Court drew a sharp distinction between the privileges and immunities of state citizenship and those of federal citizenship, and held that the Privileges or Immunities Clause protected only the latter category of rights from state abridgment. Id., at 78. The Court defined that category to include only those rights “which owe their existence to the Federal government, its National character, its Constitution, or its laws.” Id., at 79. This arguably left open the possibility that certain individual rights enumerated in the Constitution could be considered privileges or immunities of federal citizenship. See ibid. (listing “[t]he right to peaceably assemble” and “the privilege of the writ of habeas corpus” as rights potentially protected by the Privileges or Immunities Clause). But the Court soon rejected that proposition, interpreting the Privileges or Immunities Clause even more narrowly in its later cases.
Chief among those cases is United States v. Cruikshank, 92 U. S. 542 (1876). There, the Court held that members of a white militia who had brutally murdered as many as 165 black Louisianians congregating outside a courthouse had not deprived the victims of their privileges as American citizens to peaceably assemble or to keep and bear arms. Ibid.; see L. Keith, The Colfax Massacre 109 (2008). According to the Court, the right to peaceably assemble codified in the First Amendment was not a privilege of United States citizenship because “[t]he right . . . existed long before the adoption of the Constitution.” 92 U. S., at 551 (emphasis added). Similarly, the Court held that the right to keep and bear arms was not a privilege of United States citizenship because it was not “in any manner dependent upon that instrument for its existence.” Id., at 553. In other words, the reason the Framers codified the right to bear arms in the Second Amendment—its nature as an inalienable right that pre-existed the Constitution’s adoption—was the very reason citizens could not enforce it against States through the Fourteenth.
That circular reasoning effectively has been the Court’s last word on the Privileges or Immunities Clause. In the intervening years, the Court has held that the Clause prevents state abridgment of only a handful of rights, such as the right to travel, see Saenz v. Roe, 526 U. S. 489, 503 (1999), that are not readily described as essential to liberty.
As a consequence of this Court’s marginalization of the Clause, litigants seeking federal protection of fundamental rights turned to the remainder of § 1 in search of an alternative fount of such rights. They found one in a most curious place—that section’s command that every State guarantee “due process” to any person before depriving him of “life, liberty, or property.”

The 14th Amendment applied to the States. The Court invented the process of selective incorporation of the Bill of Rights against the States. No part of the Bill of Rights applies against the States until the Court selectively incorporates it against the States via the 14th Amendment. Some parts have never been so incorporated, e.g., the 5th Amendment right that "No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time or War or public danger." The majority of State indictments for such crimes do not involve a Grand Jury. They are brought by the filing of an information by the prosecutor. Still doing it today.

As Justice Thomas observed, Cruikshank remains the Court's last word on the Privileges or Immunities Clause. An alternative reasoning was needed, and it was found (or invented) as selective incorporation under the 14th Amendment Due Process Clause.

McDonald at 752.

As a secondary argument, petitioners contend that the Fourteenth Amendment’s Due Process Clause “incorporates” the Second Amendment right.

McDonald at 762.

While Justice Black’s theory was never adopted, the Court eventually moved in that direction by initiating what has been called a process of “selective incorporation,” i e., the Court began to hold that the Due Process Clause fully incorporates particular rights contained in the first eight Amendments.

McDonald at 765, footnote 12

... the only rights not fully incorporated are (1) the Third Amendment’s protection against quartering of soldiers; (2) the Fifth Amendment’s grand jury indictment requirement; (3) the Seventh Amendment right to a jury trial in civil cases; and (4) the Eighth Amendment’s prohibition on excessive fines.

McDonald at 767.

With this framework in mind, we now turn directly to the question whether the Second Amendment right to keep and bear arms is incorporated in the concept of due process. In answering that question, as just explained, we must decide whether the right to keep and bear arms is fundamental to our scheme of ordered liberty, Duncan, 391 U. S., at 149, or as we have said in a related context, whether this right is “deeply rooted in this Nation’s history and tradition,” Washington v. Glucksberg, 521 U. S. 702, 721 (1997) (internal quotation marks omitted).

McDonald at 791.

We therefore hold that the Due Process Clause of the Fourteenth Amendment incorporates the Second Amendment right recognized in Heller.

The Heller court could not, and did not, perform any incorporation of the 2nd Amendment against the states. Heller was a District of Columbia case and no State was involved. The issue of incorporation did not arise until the McDonald case. McDonald incorporated the 2nd Amendment RKBA in 2010.

Prior to its incorporation in 2010, the 2nd Amendment did not legaly apply to the States.

Black's Law Dictionary, 11th Ed.

incorporation, n.
2. Constitutional law. The process of applying the provisions of the Bill of Rights to the states by interpreting the 14th Amendment's Due Process Clause as encompassing those provisions.
• In a variety of opinions since 1897, the Supreme Court has incorporated the First, Fourth, Sixth, and Ninth Amendments into the Fourteenth Amendment's Due Process Clause.

Constitutional Law, Sixth Ed., West Publishing 2003, pp. 17-18.

E. Due Process: The Incorporation Process
1. Selective Incorporation
Only those provisions of the Bill of Rights which are "essential to the concept of ordered liberty" or "fundamental in the American scheme of justice" are made applicable to the states through the Due Process Clause. Rights, thus far not incorporated "fundamental rights" include the Second and Third Amendments, Seventh Amendment right to jury trial in some civil cases, grand jury indictment, excessive bail, 12-person juries and a unanimus verdict for conviction.
2. Full Incorporation.
The incorporated fundamental right applies against the states in the same manner as the Bill of Rights provision applies against the federal government.

The 2nd Amendment RKBA is now "incorporated."