# Bill of Rights vs. States Rights **URL:** \ **Category:** Factual Questions\ **Created:** [July 24, 2005, 4:04am UTC](https://boards.straightdope.com/t/bill-of-rights-vs-states-rights/313898 "2005-07-24T04:04:28Z")\ **Posts on this page:** 8\ **Page:** 1
**Author:** ![KarlGauss](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/karlgauss/32/3713_2.png) [@KarlGauss](https://boards.straightdope.com/u/KarlGauss)\ **Post date:** [July 24, 2005, 4:04am UTC](https://boards.straightdope.com/t/bill-of-rights-vs-states-rights/313898/1 "2005-07-24T04:04:28Z")
In [this article](http://en.wikipedia.org/wiki/Gitlow_v._New_York), describing an important SCOTUS case which extended 1st amendment rights so that they applied not just to the federal government, but to both federal + states, the following statement is made: > [@](#): > > the Supreme Court now holds that **almost every provision** of the Bill of Rights applies to both the federal government and the states. (emphasis added) So which provisions still do _not_ apply to the states? ---
**Author:** ![rkts](https://avatars.discourse-cdn.com/v4/letter/r/c4cdca/32.png) [@rkts](https://boards.straightdope.com/u/rkts)\ **Post date:** [July 24, 2005, 4:15am UTC](https://boards.straightdope.com/t/bill-of-rights-vs-states-rights/313898/2 "2005-07-24T04:15:55Z")
No expert here, but IIRC the second amendment has not been interpreted as applying to the states. ---
**Author:** ![Freddy\_the\_Pig](https://avatars.discourse-cdn.com/v4/letter/f/a587f6/32.png) [@Freddy\_the\_Pig](https://boards.straightdope.com/u/Freddy_the_Pig)\ **Post date:** [July 24, 2005, 5:21am UTC](https://boards.straightdope.com/t/bill-of-rights-vs-states-rights/313898/3 "2005-07-24T05:21:40Z")
> [@rkts](#): > > No expert here, but IIRC the second amendment has not been interpreted as applying to the states. That’s correct; that’s why cities and states can enact gun control laws. A fuller explanation from [Answers.com](http://www.answers.com/topic/selective-incorporation): > [@](#): > > Exceptions (to incorporation) are the Fifth Amendment right to an indictment by a grand jury, the Seventh Amendment right to a jury trial in civil lawsuits, which have been ruled to only apply in federal courts, and the Sixth Amendment’s implicit command that a criminal jury can consist only of twelve members and must reach a unanimous verdict. . . . There are (also) some substantive guarantees whose incorporation the Supreme Court has not yet ruled on—for example, the Second Amendment right to bear arms, and the Eighth Amendment prohibition on excessive bail and fines. Of course, if the Supreme Court hasn’t ruled on them yet, then they aren’t incorporated. But they could _be_ incorporated more easily than the other provisions, since a ruling so doing would not require reversal of an earlier precedent. ---
**Author:** ![Campion](https://avatars.discourse-cdn.com/v4/letter/c/4491bb/32.png) [@Campion](https://boards.straightdope.com/u/Campion)\ **Post date:** [July 24, 2005, 5:22am UTC](https://boards.straightdope.com/t/bill-of-rights-vs-states-rights/313898/4 "2005-07-24T05:22:18Z")
What you’re talking about is called the [doctrine of incorporation](http://www.class.uidaho.edu/mickelsen/Media%20Readings/Incorporation_Doctrine.htm), whereby the federal courts (and more specifically, the SCOTUS) have held that the Fourteenth Amendment to the US Constitution has “incorporated” certain rights, so that they are applicable to the states and the individual states are bound by them. (As a side note, this means that the states cannot provide a _lower_ level of protection than the federal constitution, but they can provide a _greater_ level of protection without running afoul of the US Constitution). Even though the Bill of Rights technically is the [first ten amendments to the US Constitution](http://www.law.umkc.edu/faculty/projects/ftrials/conlaw/billrights.html), for purposes of incorporation of the rights against the states, we’re really only concerned with the first eight amendments. From what I can see, four amendments (1, 4, 6 and 8) are fully incorporated; 5 is mostly incorporated; and 2, 3 and 7 are not incorporated (although one source notes that the Third Amendment was held incorporated by the Second Circuit, which frankly shocks me, only because I had no idea that the notion of quartering soldiers in peacetime had been litigated). According to [this source](http://www.usconstitution.net/consttop_bor.html), there are a handful of rights not incorporated against the states, including (as **rkts** points out) the Second Amendment: > [@](#): > > Thus in the early 1960’s, the Establishment Clause, the right to counsel, the rights of free speech, assembly, and petition, and the right against unreasonable searches and seizures were quickly incorporated. Since the early 60’s, almost every clause in the Bill of Rights has been incorporated (notable exceptions are the 2nd and 3rd Amendments, the grand jury indictment clause of the 5th Amendment, and the 7th Amendment). [This source](http://www.law.umkc.edu/faculty/projects/ftrials/conlaw/incorp.htm) mostly agrees (I say “mostly” because of the Second Circuit issue): > [@](#): > > 1st Amendment: Fully incorporated. > 2nd Amendment: No Supreme Court decision on incorporation since 1876 (when it was rejected). > 3rd Amendment: No Supreme Court decision; 2nd Circuit found to be incorporated. > 4th Amendment: Fully incorporated. > 5th Amendment: Incorporated except for clause guaranteeing criminal prosecution only on a grand jury indictment. > 6th Amendment: Fully incorporated. > 7th Amendment: Not incorporated. > 8th Amendment: Fully incorporated. [Here](http://classes.lls.edu/spring2005/conlaw2-manheim/charts/incorporation.pdf) is a handy-dandy (although .pdf) chart of the incorporation of the amendments. [And here](http://www.jus.unitn.it/dsg/ricerche/dottorati/allegati/Application%20of%20the%20Bill.pdf) is another handy-dandy (although also .pdf) list of the SCOTUS cases (with years but not citations) showing how and when each of the rights was incorporated. ---
**Author:** ![Campion](https://avatars.discourse-cdn.com/v4/letter/c/4491bb/32.png) [@Campion](https://boards.straightdope.com/u/Campion)\ **Post date:** [July 24, 2005, 5:27am UTC](https://boards.straightdope.com/t/bill-of-rights-vs-states-rights/313898/5 "2005-07-24T05:27:51Z")
Uh, what **Freddy the Pig** said. Which was more succinct than what I said. As usual. ---
**Author:** ![KarlGauss](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/karlgauss/32/3713_2.png) [@KarlGauss](https://boards.straightdope.com/u/KarlGauss)\ **Post date:** [July 24, 2005, 11:36am UTC](https://boards.straightdope.com/t/bill-of-rights-vs-states-rights/313898/6 "2005-07-24T11:36:33Z")
Thanks! Excellent, helpful answers. ---
**Author:** ![Polycarp](https://avatars.discourse-cdn.com/v4/letter/p/82dd89/32.png) [@Polycarp](https://boards.straightdope.com/u/Polycarp)\ **Post date:** [July 24, 2005, 6:13pm UTC](https://boards.straightdope.com/t/bill-of-rights-vs-states-rights/313898/7 "2005-07-24T18:13:42Z")
Nice job, **Campion** and **Freddy**! I think that it’s worth noting something we all know but keep forgetting in discussions like these: the Supreme Court, like every other court, rules in relation to cases that have been brought before it. The difference is that the Supreme Court has the last word with regard to the application of the Constitution, and so generally writes its (Constitutionality) decisions in ways that give guidance to lesser courts in how to apply the principles enunciated as regards similar cases. The key point is: the Fourteenth Amendment guarantees the rights of “citizens of the United States” against encroachment by the individual states; starting around the turn of the 20th Century it has been held, increasingly so since 1937, to guarantee the specific rights of the Bill of Rights (one by one, as cases come up which relate to them) as against state statutes and regulations. The exceptions that have **not** been held incorporated are generally ones which guarantee provide specific legal-procedure protections, and the Court has held that “due process” (procedural, not substantive) that provides equivalent protection is adequate. E.g., to be tried for a Federal felony you must be indicted by a grand jury, which is also true in some states, but if other states provide for the same sort of procedural safeguard against arbitrary and capricious proceedings on the felony level, the Court has declined to mandate that a state **must** indict by grand jury to proceed against someone on the felony level. ---
**Author:** ![Northern\_Piper](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/northern_piper/32/5304_2.png) [@Northern\_Piper](https://boards.straightdope.com/u/Northern_Piper)\ **Post date:** [July 25, 2005, 2:00am UTC](https://boards.straightdope.com/t/bill-of-rights-vs-states-rights/313898/8 "2005-07-25T02:00:34Z")
**Campion** , the Third Amendment case was [Engblom v. Carey](http://www.law.umkc.edu/faculty/projects/ftrials/conlaw/engblom.html), 677 F. 2d 957 (2d Cir. 1982). As I recall, it was a motion to strike as disclosing no cause of action. It arose in New York during a strike of corrections employees. Governor Carey activated the N.Y. National Guard to take over the corrections employees’ duties. As part of that, the Governor ordered the corrections employees out of the residences the state provided to them near the prisons and the Guardsmen lived there for the duration of the strike. The corrections workers sued the Governor in the federal courts, arguing that their eviction for the Guardsmen was a breach of the Third Amendment. By a 2-1 decision, the 2nd Circuit Court of Appeals agreed. However, the Governor ultimately won, since the Circuit remanded it to trial on the issue of whether the Governor could have known that he was in breach of the Third Amendment. The trial judge ruled in the Governor’s favour, since the case was one of first impression. The Circuit then affirmed that decision: on remand, 572 F. Supp. 44 (S.D.N.Y.), aff’d. per curiam, 724 F.2d 28 (2d Cir. 1983). (As far as I know, not available on-line.) There’s a handy little article on [wikipedia](http://www.answers.com/topic/engblom-v-carey).