INCORPORATION Bill of rights does not apply to the states BUT is incorporated through the 14th amendment and thus applies with the same force and effect as it does to the federal government (sometimes less, depending). E.G. State violates your 1st amd right to free speech. You could not bring a 1st amd action against the state. Rather, you would bring a 14th amd claim against the state and violation of allege your freedom of speech Analysis Is the right incorporated to the states through the 14th amd? If so, does it apply to the state government with the same force and effect as to the federal government? *note that incorporate through due process, P&I is minority view to incorporate and not really used. Theories of Incorporation Non-Incorporation: Fundamental rights are protected by the DP clause and are not just limited to BoR. Total Incorporation: All of the BoR and only the BoR are incorporated Selective Incorporation: Only those BoR in concept of “implicit ordered liberty”(Current Theory) Provisions incorporated into 14th Amend Due Process: 1st amend in entirety 2nd amend in entirety 4th amend in entirety 5th amend, except or requirement of grand jury indictment for criminal prosecutions 6th amend (not all) 8th against cruel and unusual punishment McDonald v. City of Chicago Facts: In the case Heller, SC held that gunmanship was part of one’s second amendment right. This case asks whether second amendment right incorporated into 14th amend. Not incorporated through the P&I clause. Issue: Is second amendment incorporated through due process clause of the 14th amendment? Held: Reformulated test for DP incorporation is instead of looking at civilized society generally, is now on our society & out system of government. CURRENT STANDARD FOR SELECTIVE INCORPORATION: WHETHER RIGHT IS DEEPLY ROOTED IN THE NATIONS TRADITION & HISTORY.
INCORPORATION Bill of rights does not apply to the states BUT is incorporated through the 14th amendment and thus applies with the same force and effect as it does to the federal government (sometimes less, depending). E.G. State violates your 1st amd right to free speech. You could not bring a 1st amd action against the state. Rather, you would bring a 14th amd claim against the state and allege violation of your freedom of speech Analysis Is the right incorporated to the states through the 14th amd? If so, does it apply to the state government with the same force and effect as to the federal government? *note that incorporate through due process, P&I is minority view to incorporate and not really used. Theories of Incorporation Non-Incorporation: Fundamental rights are protected by the DP clause and are not just limited to BoR. Total Incorporation: All of the BoR and only the BoR are incorporated Selective Incorporation: Only those BoR “implicit in concept of ordered liberty”(Current Theory) Provisions incorporated into 14th Amend Due Process: 1st amend in entirety 2nd amend in entirety 4th amend in entirety 5th amend, except or requirement of grand jury indictment for criminal prosecutions 6th amend (not all) 8th against cruel and unusual punishment McDonald v. City of Chicago Facts: In the case Heller, SC held that gunmanship was part of one’s second amendment right. This case asks whether second amendment right incorporated into 14th amend. Not incorporated through the P&I clause. Issue: Is second amendment incorporated through due process clause of the 14th amendment? Held: Reformulated test for DP incorporation is instead of looking at civilized society generally, is now on our society & out system of government. CURRENT STANDARD FOR SELECTIVE INCORPORATION: WHETHER RIGHT IS DEEPLY ROOTED IN THE NATIONS TRADITION & HISTORY.
Constitutional-Law-Manheim-2015.docx