http://en.wikipedia.org/wiki/Incorporation_of_the_Bill_of_Rights
Specific amendments
Many of the provisions of the First Amendment
were applied to the States in the 1930s and
1940s, but most of the procedural protections
provided to criminal defendants were not
enforced against the States until the
Warren Court of the 1960s, famous for
its concern for the rights of those accused of
crimes, brought state standards in line with
federal requirements. The following list
enumerates, by amendment and individual clause,
the Supreme Court cases that have incorporated
the rights contained in the Bill of Rights. (The
Ninth Amendment is not listed; its
wording indicates that it "is not a source of
rights as such; it is simply a rule about how to
read the Constitution."[15]
The
Tenth Amendment is also not listed;
by its wording, it is a reservation of powers to
the states and to the people.)
Amendment I
Guarantee against
establishment of religion This provision has been incorporated against
the states. See
Everson v. Board of Education,
330
U.S.
1 (1947).[16]
Guarantee of
free exercise of religion This provision has been incorporated against
the states. See
Cantwell v. Connecticut, 310
U.S.
296 (1940).
Guarantee of
freedom of speech This provision has been incorporated against
the states. See
Gitlow v. New York, 268
U.S.
652 (1925)(dicta).
Guarantee of
freedom of the press This provision has been incorporated against
the states. See
Near v. Minnesota, 283
U.S.
697 (1931).
Guarantee of
freedom of assembly This provision has been incorporated against
the states. See
DeJonge v. Oregon, 299
U.S.
353 (1937).
Right to petition
for redress of grievances This provision has been incorporated against
the states. See
Edwards v. South Carolina, 372
U.S.
229 (1963).[17][18]
Guarantee of
freedom of expressive association This right, though not in the words of the
first amendment, was first mentioned in the case
NAACP v. Alabama, 357
U.S.
449 (1958)[19]
and was at that time applied to the states. See
also
Roberts v. United States Jaycees, 468
U.S.
609 (1984), where the U.S. Supreme
Could hold that "implicit in the right to engage
in activities protected by the First Amendment"
is "a corresponding right to associate with
others in pursuit of a wide variety of
political, social, economic, educational,
religious, and cultural ends."
Amendment II This right has been incorporated against the
states. See
McDonald v. Chicago (2010).
Amendment III
Freedom from quartering of soldiers This provision has been incorporated against
the states within the jurisdiction of the
United States Court of Appeals for the Second
Circuit, but has not been
incorporated against the states elsewhere.
In 1982, the
Second Circuit applied the Third
Amendment to the states in
Engblom v. Carey. This is a binding
authority over
Connecticut,
New York, and
Vermont, but is only a persuasive
authority over the remainder of the United
States.
The
Tenth Circuit has suggested that the
right is incorporated because the Bill of Rights
explicitly codifies the "fee ownership system
developed in English law" through the Third,
Fourth, and Fifth Amendments, and the Fourteenth
Amendment likewise forbids the states from
depriving citizens of their property without due
process of law. See United States v. Nichols,
841 F.2d 1485, 1510 n.1 (10th Cir. 1988).
Amendment IV
Unreasonable search and seizure This right has been incorporated against the
states by the Supreme Court's decision in
Wolf v. Colorado, 338
U.S.
25 (1949) The remedy of exclusion of unlawfully seized
evidence, the
Exclusionary rule, has been
incorporated against the states. See
Mapp v. Ohio, 367
U.S.
643 (1961). In Mapp, the Court
overruled
Wolf v. Colorado, 338
U.S.
25 (1949), in which the Court had
ruled that while the Fourth Amendment applied to
the states (meaning that they were bound not to
engage in unreasonable searches and seizures),
the exclusionary rule did not (meaning that they
were free to fashion other remedies for criminal
defendants whose possessions had been illegally
seized by the police in violation of the Fourth
Amendment).
Warrant
requirements The various warrant requirements have been
incorporated against the states. See
Aguilar v. Texas, 378
U.S.
108 (1964). The standards for judging whether a search or
seizure undertaken without a warrant was
"unreasonable" also have been incorporated
against the states. See
Ker v. California, 374
U.S.
23 (1963).
Amendment V
Right to
indictment by a
grand jury This right has been held not to be
incorporated against the states. See
Hurtado v. California, 110 U.S.
516 (1884).
Protection against
double jeopardy This right has been incorporated against the
states. See
Benton v. Maryland, 395
U.S.
784 (1969).
Constitutional privilege against
self-incrimination This right has been incorporated against the
states. See
Malloy v. Hogan, 378
U.S.
1 (1964).A note about the Miranda
warnings: The text of the Fifth Amendment does
not require that the police, before
interrogating a suspect whom they have in
custody, give him or her the now-famous
Miranda warnings. Nevertheless, the
Court has held that these warnings are a
necessary prophylactic device, and thus required
by the Fifth Amendment by police who interrogate
any criminal suspect in custody, regardless of
whether he or she is ultimately prosecuted in
state or federal court.
Protection against
taking of private property without
just compensation This right has been incorporated against the
states. See
Chicago, Burlington & Quincy Railroad Co. v.
City of Chicago, 166 U.S. 226 (1897).
Amendment VI
Right to a
speedy trial This right has been incorporated against the
states. See
Klopfer v. North Carolina, 386
U.S.
213 (1967).
Right to a
public trial This right has been incorporated against the
states. See
In re Oliver, 333
U.S.
257 (1948).
Right to
trial by impartial jury This right has been incorporated against the
states. See
Duncan v. Louisiana, 391
U.S.
145 (1968). However, the size of the
jury, as well as the requirement that it
unanimously reach its verdict, vary between
federal and state courts. Even so, the Supreme
Court has ruled that a jury in a criminal case
may have as few as six members.
Williams v. Florida, 399
U.S.
78 (1970). If there are twelve, only
nine jurors need agree on a verdict.
Furthermore, there is no right to a jury trial
in juvenile delinquency proceedings held in
state court. See
McKeiver v. Pennsylvania, 403
U.S.
528 (1971).
Right to a
jury selected from residents of the state and
district where the crime occurred This right has not been incorporated against
the states. See Caudill v. Scott, 857
F.2d 344 (6th Cir. 1988); Cook v. Morrill,
783 F.2d 593 (5th Cir. 1986); Zicarelli v.
Dietz, 633 F.2d 312 (3d Cir. 1980).
Right to
notice of accusations This right has been incorporated against the
states. See
In re Oliver, 333
U.S.
257 (1948).
Right to
confront adverse witnesses This right has been incorporated against the
states. See
Pointer v. Texas, 380
U.S.
400 (1965).
Right to compulsory process (subpoenas) to
obtain witness testimony This right has been incorporated against the
states. See
Washington v. Texas, 388
U.S.
14 (1967).
Right to
assistance of counsel This right has been incorporated against the
states. See
Gideon v. Wainwright, 372
U.S.
335 (1963). In subsequent decisions,
the Court extended the right to counsel to any
case in which a jail sentence is imposed.
Amendment VII
Right to
jury trial in civil cases This right has been held not to be
incorporated against the states. See
Minneapolis & St. Louis R. Co. v. Bombolis,
241
U.S.
211 (1916).
Amendment VIII Protection against excessive bail
This
provision may have been
incorporated against the states.
In
Schilb v. Kuebel, 404
U.S. 357 (1971), the Court
stated in dicta: "Bail, of
course, is basic to our system
of law, and the Eighth
Amendment's proscription of
excessive bail has been assumed
to have application to the
States through the Fourteenth
Amendment." In
Murphy v. Hunt, 455
U.S.
478 (1982), the Court
did not reach the issue because
the case was dismissed as moot.
Bail was included in the list of
incorporated rights in
McDonald footnote 12, citing
Schilb.
Protection against
excessive fines This provision has not been incorporated.
See
McDonald v. City of Chicago,
footnote 13 (2010).
Protection against
cruel and unusual punishments This provision has been incorporated against
the states. See
Robinson v. California, 370
U.S.
660 (1962). This holding has led the
Court to suggest, in dicta, that the excessive
bail and excessive fines protections have also
been incorporated. See
Baze v. Rees, 128 S. Ct. 1520,
1529 (2008).
Reverse incorporation
A similar legal doctrine to incorporation is
that of reverse incorporation. Whereas
incorporation applies the Bill of Rights to the
states though the Due Process Clause of the
Fourteenth Amendment, in reverse incorporation,
the
Equal Protection Clause of the
Fourteenth Amendment has been held to apply to
the federal government through the Due Process
Clause located in the Fifth Amendment.[20]
For example, in
Bolling v. Sharpe, 347
U.S.
497 (1954), which was a companion
case to
Brown v. Board of Education, the
schools of the District of Columbia were
desegregated even though Washington is federal.
Likewise, in
Adarand Constructors, Inc. v. Peņa
515
U.S.
200 (1995), an affirmative action
program by the federal government was subjected
to strict scrutiny based on equal protection.
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