Today we look at how the Bill of rights came to apply to the states as well as the federal government.
Today we look at how the Bill of rights came to apply to the states as well as the federal government. (1:05) In the case of the second amendment, it was the case of McDonald v Chicago that led to that idea. (3:40) Most of the amendments have been fully incorporated, including the first, second, fourth, and eighth. (4:30)
Today’s question of the day (5:38): The 1969 case Benton v. Maryland incorporated the idea that you could not be prosecuted twice for the same crime. What is this concept called?
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Hi and welcome to the APsolute Recap: US Government Edition. Today’s episode will recap selective incorporation.
Lets Zoom out:
Unit 3- Civil Liberties and Civil Rights
Topic:3.7
Big idea - Liberty and Order
The concept of selective incorporation is complicated. The idea of the incorporation doctrine that the Supreme Court has states that the protections offered under the Bill of Rights apply to protection from the states as well as the federal government, and many of the amendments, but not all have been “selectively” applied to the states as part of this concept. Huh? I know. Let’s look at this more closely.
Lets Zoom in:
The Bill of Rights, which we discussed in a previous episode are liberties and protections for individuals against government involvement. What wasn’t mentioned is that while the Bill of Rights specifically protects against involvement by the federal government, it doesn’t technically mention the states. Therefore, it was up to the courts to determine whether or not the protections from the federal government also applied on the state level. Over a series of decisions in the 20th century, the court established that the protections offered by the Bill of Rights apply to ALL levels of government.
In order to further understand this, it is necessary to look at the 14th amendment, which says “nor shall any state deprive any person of life, liberty, or property without due process of law.” This amendment was passed during the Reconstruction era, and the specific mention of the idea that states could also not deprive a person of constitutionally protected rights, is part of the courts’ reasoning behind the idea of incorporation.
While the majority of the rights protected by the Bill of Rights has been selectively incorporated, there are a few that have not. That being said, we are going to focus on the second amendment again. In our last episode we looked at the idea of the right to bear arms being a fundamental right. Now we will look at the 2010 required court case of McDonald v Chicago to see how selective incorporation places limits on a state’s ability to regulate guaranteed liberties provided under the Bill of Rights.
McDonald v Chicago was the first case where the second amendment right to bear arms was selectively incorporated by the courts. Similar to DC v. Heller, the city of Chicago enacted a handgun ban in 1982. After the ruling in DC v Heller, Otis McDonald challenged the city’s and another smaller locality’s ban on owning a handgun based on the same reasoning of the Heller case. Since Washington DC is a federal jurisdiction, the Heller case did not involve a state and thus selective incorporation was not applicable. McDonald won his case with the same reasoning as Heller and it was then that the second amendment was selectively incorporated to apply to the states as well. Even though Chicago isn’t a state, municipalities are created by the states, and thus it is still applicable.
When deciding whether or not to incorporate a right, the courts look at whether or not that right is considered “fundamental.” To this end, four of the amendments have been fully incorporated, including the second amendment which we have been discussing. Other fully incorporated amendments include: the first, which protects religion, expression, press, and assembly, the fourth, which protects against unreasonable search and seizures, and the eighth, which deals with protections from unreasonable bail, fines, and cruel and unusual punishments.
We will look at some of these other cases in future episodes.
To recap……
The idea of the incorporation doctrine that the Supreme Court has states that the protections offered under the Bill of Rights apply to protection from the states as well as the federal government. Many amendments have been incorporated using the due process clause of the 14th amendment. The second amendment was incorporated as a result of McDonald v Chicago and the reasoning that it was unconstitutional to prohibit a person from owning a handgun for the purpose of self-defense.
Coming up next on the Apsolute RecAP US Government Edition: Due Process
Today’s Question of the day is about selective incorporation of the 5th amendment
Question: The 1969 case Benton v. Maryland incorporated the idea that you could not be prosecuted twice for the same crime. What is this concept called?