Also known as:incorporation doctrines · incorporation
Written by attorneys · grounded in primary & secondary sources — see below
A constitutional doctrine by which the Supreme Court has applied most provisions of the Bill of Rights to the states through the Due Process Clause of the Fourteenth Amendment.
Sources & Authorities
How it applies
Common Examples
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State Handgun Ban Challenged
After a Chicago ordinance banned possession of handguns in the home, Otis McDonald, a resident, sued the city. The Supreme Court held the Second Amendment incorporated against the states, so the ordinance violated the Fourteenth Amendment.
State Retrial After Acquittal
After an Alabama jury acquitted defendant Benton of burglary, the state retried him on the same facts. The Supreme Court ruled the Double Jeopardy Clause incorporated, barring the second prosecution under the Fourteenth Amendment.
City Firearm Registration Law
New York City required handgun owners to register weapons kept in the home. A resident sued, claiming the Second Amendment, now incorporated, invalidated the registration scheme as applied to law-abiding citizens.
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Cases
Uniform Acts
Model Codes
Restatements
Casebooks
Study Supplements
State Confession Without Counsel
Florida police obtained a confession from defendant without providing counsel after he requested one. The Supreme Court applied the incorporated Sixth Amendment right, excluding the statement in the state prosecution.
State Cruel Punishment Statute
A state statute authorized a sentence of life without parole for a non-homicide juvenile offense. The defendant argued the incorporated Eighth Amendment barred the punishment, and the Court agreed.
State Denial Of Jury Trial
Louisiana tried a defendant for a serious crime without a jury. The Supreme Court held the incorporated Sixth Amendment required a jury, reversing the state conviction.
Common questions
Frequently Asked
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Which constitutional provision supplies the mechanism for incorporation?+
The Due Process Clause of the Fourteenth Amendment supplies the mechanism. The Supreme Court has interpreted the liberty protected by that clause to include most Bill of Rights guarantees, thereby making them enforceable against the states.
Supporting sources
Does incorporation apply every Bill of Rights provision to the states?+
No. Most but not all provisions have been incorporated. The Court has left a few provisions unincorporated, such as the Fifth Amendment's grand-jury requirement.
Supporting sources
How does incorporation affect a city's ability to restrict handgun possession in the home?+
Once the Second Amendment right is incorporated, a city ordinance that prohibits keeping a handgun in the home for self-defense violates the Fourteenth Amendment. The right applies to state and local governments exactly as it applies to the federal government.
Supporting sources
17 U.S. (4 Wheat.) 316 (1819)Business Associations
…in a State constitution or law to the contrary notwithstanding. Among the enumerated powers we do not find the word "bank" or "incorporation," but the Constitution does not, like the Articles of Confederation, exclude incidental or implied powers. The 10th Amendment omitted the word "expressly" and declared only that the powers…
Constitutional LawIndividual rights · Other protections, including the privileges and immunities clauses, the contracts clause, unconstitutional conditions, bills of attainder, and ex post facto lawsUBEIntermediate