Why were Supreme Court Cases Heller & McDonald needed establish 2nd Amend applied to all states?

I thought the Constitution and any amendments always took precedence over state law? For example, until the 1970’s, nearly all the states had laws against abortion. They were all nullified after Roe v. Wade.

I was researching some of the tougher state gun laws. I was surprised that California’s laws didn’t conflict with the 2nd Amendment.

Ran across this interesting Supreme court reference. Why did the court need to hear these cases? Isn’t it understood that all the US Constitutional Amendments apply to the States? These were very recent cases. I’m surprised this wasn’t established long ago.


Heller Ruling

McDonald ruling

When the Bill of Rights was enacted, it only applied to the federal government. It didn’t apply to the states, which were governed solely by their own state Bills I Rights.

Then Congress and the states enacted the 14th Amendment. The Supreme Court held that the 14th Amendment, which applies to the states. The Supreme Court has held that the 14th Amendment applies some of the provisions of the Bill of Rights to the states, in a process called selective incorporation. Over the years, most provisions of the Bill of Rights have been held to apply to the states.

McDonald held that under the incorporation process, the Second Amendment applies to the states.

That helps me understand whats going on. I didn’t realize the Bill of Rights had that issue.

Once again the Dope comes through. Thank you.

It’s complicated, but the first thing you have to understand is that the Constitution restrained only the Federal government. Take the 1st Amendment: “Congress shall make no law…” That didn’t restrain the states at all.

That all changed with the legal doctrine of Incorporation, where the Constitution was applied to the states, making it so that the states had to respect those rights.

They didn’t have to hear those cases. They chose to, and probably with an eye on doing what they did, often the reason for taking cases to begin with. But here’s the fun part… to this day there are portions of the Bill of Rights that do not apply to the states.

Wikipedia’s article on Incorporation

You’re welcome. Note as well that Heller didn’t apply to the states. It arose in D.C. and dealt with whether a D.C. law, which is a form of delegated federal law, infringed the 2nd. McDonald was the parallel case that dealt with the application of the 2nd to the states.

never mind

This is off topic, but something interesting about abortion rights is the fact that there is no reference of any kind to abortion in the constitution. This is one of the “penumbral” rights inferred by the Warren Court such as the right to privacy. So that whole debate is really in it’s own separate category.

There’s no mention of abortion in the Bible either. Some people read the Bible and interpret what’s in it to prohibit abortion. Other people read the Constitution and interpret what’s in it to protect abortion.

Not “such as” the right to privacy. SCOTUS deemed abortion to be protected by the right to privacy.

Two things off the top of my head that are enumerated in the Bill of Rights that don’t apply to the states:

  1. The 7th amendment—a right to a jury trial for common law suits with a value of over $20. That’s only at the federal level and never been held to apply to states. In PA, for example, so long as the dispute is under $8k, it is heard by a magistrate only.

  2. The 5th amendment right to indictment by a grand jury—doesn’t apply to states. Many states don’t use grand juries, but preliminary hearings.

I’ve read commentary suggesting that the burden and expense of imposing those two items on the states are the reason why the Court has incorporated rights piecemeal rather than simply incorporating the entire Bill of Rights at a stroke.

Not a Bill of Rights issue but the one that always gets me is the Supreme Court has specifically prohibited the states from following the principle of Article One, Section Three (Senate representation). What would you call that - anti-incorporation?

Here is the Preamble to the Bill of Rights;

The Conventions of a number of the States, having at the time of their adopting the Constitution expressed a desire in order to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added: And as extending the ground of public confidence in the Government will best ensure the beneficent ends of its institution.
To the best of my memory the doctrine of incorporation was never taught in History or Govt. classes, at least in my High school.

That was MANY years ago, and they may teach it now!

I myself actually learned about the so called “Selective Incorporation” doctrine way before computers, reading some digests in the law library. American Jurisprudence 2nd; Constitutional law,

I highly rate that reading for you at a law library if you want to learn better. Most college/university law school law libraries should be open to the public.
When the 14th AM was passed in 1868, some jursists tended to adopt the “Total Incorporation” theory, not bit by bit selectively.

The US SC has never adopted this as noted.

As an example, the “excessive bail” provision of the 8th AM has not been incorporated as a Constitutional right, however, if an inferior court does so, then it is binding. An example is if the 6th circuit court of appeals rules that it is bindable, all federal courts in that jurisdiction must follow it, even though the US SC has not.

Which principle are you talking about? The only requirements for senate representation are that each state gets two and they don’t have the number adjusted without their consent unless everyone else loses one.

There’s not really much point; no rhyme or reason to it.

I’m assuming that he’s referring to Reynolds v. Sims in that a state can’t have a house of its legislature like the U.S. Senate. For example 2 Senators per county. Both houses of a state legislature must be based on population.

Oh, that makes sense. The “one person, one vote” requirement comes from the Equal Protection Clause standing alone, so it’s not really incorporating something.

Yes, but off the top of my head, I can’t think of any other examples of the Supreme Court saying that something that is in the Constitution is unconstitutional for the states to do. (Other than the obvious powers explicitly assigned to the federal government instead of the states.)

I think he’s talking about the idea some states had many decades ago of having two state senators per county regardless of population, or some other scheme to allocate state senators on a geographic rather than a population basis. The Supreme Court said that was not allowed. I think that was the case that the famous “One man, one vote” line came from.