The Many Consequences of Incorporation

Incorporation, in United States law, is the doctrine by which portions of the Bill of Rights have been made to apply against the States. When the Bill of Rights was ratified, the courts held that its restrictions only applied to the actions of the Federal government and that the Bill of Rights did not place restrictions on State or local governments.

Prior to the ratification of the 14th Amendment and the development of the incorporation doctrine, the Supreme Court in 1833 unanimously ruled in Barron v. Baltimore that the Bill of Rights applied only to the Federal government and not to any State government.

Even after the ratification of the 14th Amendment, the Supreme Court in United States v. Cruikshank (1876) still ruled that restrictions of the First and Second Amendments did not apply to State governments.

However, beginning in the 1920s, because of change in the courts, a series of Supreme Court decisions interpreted the 14th Amendment to "incorporate" many restrictions of the Bill of Rights, making these restrictions but not all restrictions of the Bill of Rights, for the first time, enforceable against State governments.

It is for this reason that we believe the new doctrine of incorporation is a consequences all to its own and have listed it by itself here. The other 10 major consequences are cataloged above within the menu tab ‘Background’ then under ‘Other Consequences.’

By the latter half of the 20th century, many of the restrictions in the Bill of Rights had been applied to the States through incorporation by the courts.[114] The Supreme Court has ruled that the 14th Amendment's Due Process Clause now incorporates all of the substantive portions of the First and Second Amendments, and of the Fourth, Fifth (except for its Grand Jury Clause) and Sixth Amendments, along with the Excessive Fines Clause and Cruel and Unusual Punishment Clause of the Eighth Amendment.[115]

While the Third Amendment has not been applied against the States by the Supreme Court, the Second Circuit Court ruled that it did apply against the States within that circuit's jurisdiction in Engblom v. Carey.[116]

However, the Seventh Amendment right to a jury trial in civil cases has been ruled not to be applied against the States,[115][117] but the Seventh Amendment's re-examination clause has been ruled to be applied against "a case tried before a jury in a State court and brought to the Supreme Court on appeal."[118]

On June 28, 2010, a majority on the Supreme Court ruled by a 5–4 decision in McDonald v. Chicago that the Second Amendment was incorporated against the States by either the Due Process Clause or by the Privileges or Immunities Clause of the 14thAmendment.

This is notable because:

• Four Justices of the Court found that the Due Process Clause of the 14th Amendment incorporates the Second Amendment against the States. While one Justice concluded that the right to bear arms of the Second Amendment is incorporated against the States only through the Privileges or Immunities Clause of the 14th Amendment. This means to us that the vote for incorporation should be 4-5against incorporation by Due Process and 1-8 against incorporation by Privileges or Immunities as we hold these rationales are disparate and their affirmative vote counts should not be additive.

• Further, the majority report of McDonald v. Chicago also reaffirmed that certain firearms restrictions mentioned in District of Columbia v. Heller are assumed permissible and not directly dealt with in this case. Such restrictions, including those to prohibit “the possession of firearms by felons or mentally ill" and "laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms," are allowed by Federal, State and local governments, so says the court. This means the court also could allow other Federal, State and local government restrictions on our right to bear arms on a case-by-case bases. What a mess!

Finally, on February 20, 2019, the Supreme Court ruled in Timbs v. Indiana that the Excessive Fines Clause of the Eighth Amendment applied by incorporation against the States.[119]

For your convenience, review here: Consequences Other Than Incorporation.