You're absolutely right. If the Boy Scout case had been decided based upon your interpretation of the due process clause, most local news programs would have begun their broadcast with something along the lines of "The Supreme Court ruled today that the Boy Scouts of America must accept gay scout leaders." Now, that would literally be correct (at least in the state of New Jersey), but the public would be left with the impression that the Supreme Court just sort of decided on its own that it would be a good idea to have gay scout leaders. And the call buttons at talk radio shows would light up like Christmas trees. Unless someone read down to maybe the tenth paragraph of a major newspaper, he/she might never know that it involved an example of judicial restraint rather than one of judicial activism.
It's not that I think it would be a good thing for them to start restricting free speech and gun ownership, but that it definitely would be a good thing if they didn't have some busybody second-guessing their laws and policies all the time.
I think that for most people who feel that the Fourteenth Amendment has been overused, the real concern is the federalism issue rather than the issue of legislative vs. judicial powers. Let me give you an example. A lot of people were very angry when the Supreme Court began using the equal protection clause to strike down state laws which expressly discriminated between people on the basis of race. They were angry at the Supreme Court for "acting like a mini-legislature." But whenever the Congress uses Section 5 of the amendment to pass legislation on the basis of the equal protection clause, many of the same people who had resented the Supreme Court's involvement (when it was acting alone) then turn around and insist that the Supreme Court become involved by declaring the act of Congress unconstitutional. So it seems to me that these people are less concerned about the Supreme Court getting involved than they are about any branch of the Federal government getting involved. A lot of folks just have a difficult time coming to terms with the fact that, by anyone's interpretation, the Fourteenth Amendment did involve an enlargement of the central government's powers at the expense of the states.
Before I get into what I want to ask, I think we can agree on a few things:
I think we can also agree on certain definitions of English words as meaning the same now as in 1789 and all intervening times:
I hope we can also agree that the broad principles of the Constitution are meaningless if they are not applicable individually. IOW, it's meaningless for it to say nobody can be deprived of life by a state without due process if a particular individual can be.
Scenario: A legally unimpaired citizen has been threatened with imminent bodily harm or death by known persons or their unknown associates. (Note: the following characterizations of weapons laws may not be accurate, and they're only related as examples.)
It's interesting that when Vermont and Hawaii appeared close to recognizing same sex unions as "marriages" in the legal sense, other states got all worked up because of a 14th Amendment interpretation that they would be forced to also recognize such unions as marriages.
It's not necessary to navigate the legal minefield of a VT citizen vacationing in CA carrying a concealed pistol to see the manifold Constitutional problems these disparate laws present, and all of that is without ever addressing the Second Amendment.
Among other arguments, I would attack the disparate regional laws infringing the individual right protected by the 2nd Amendment through the 14th Amendment's prohibition against a state's depriving a citizen of the liberty to peaceably act to protect himself because it cannot be argued that a law enforcement agency is either able or obligated to protect him, especially since it cannot act against a potential criminal until a criminal act has been performed, and it has been historically unable to prevent criminal acts with handguns or criminals from having handguns.
The 2nd Amendment does not NEED to be incorporated into the 14th Amendment's ambit through general arguments. Applying specific facts in a case (perhaps U.S. v. Haney) may do the job quite nicely.
What I want to ask is for you to direct your formidable legal and analytical skills to the propositions and arguments suggested here.