McDonald v. Chicago (Alito)

  17 

tections remain unincorporated.13

Finally, the Court abandoned "“the notion that the Four-
teenth Amendment applies to the States only a watered-
down, subjective version of the individual guarantees of
the Bill of Rights,"” stating that it would be "“incongruous"”
to apply different standards “"depending on whether the
claim was asserted in a state or federal court."” Malloy,
378 U. S., at 10–-11 (internal quotation marks omitted).
Instead, the Court decisively held that incorporated Bill of
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U. S. 784 (1969) (Double Jeopardy Clause); Malloy v. Hogan, 378 U. S.
1 (1964) (privilege against self-incrimination); Chicago, B. & Q. R. Co.
v. Chicago, 166 U. S. 226 (1897) (Just Compensation Clause).
With respect to the Sixth Amendment, see Duncan v. Louisiana, 391
U. S. 145 (1968) (trial by jury in criminal cases); Washington v. Texas,
388 U. S. 14 (1967) (compulsory process); Klopfer v. North Carolina,
386 U. S. 213 (1967) (speedy trial); Pointer v. Texas, 380 U. S. 400
(1965) (right to confront adverse witness); Gideon v. Wainwright, 372
U. S. 335 (1963) (assistance of counsel); In re Oliver, 333 U. S. 257
(1948) (right to a public trial).
With respect to the Eighth Amendment, see Robinson v. California,
370 U. S. 660 (1962) (cruel and unusual punishment); Schilb v. Kuebel,
404 U. S. 357 (1971) (prohibition against excessive bail).
13 In addition to the right to keep and bear arms (and the Sixth
Amendment right to a unanimous jury verdict, see n. 14, infra), the
only rights not fully incorporated are (1) the Third Amendment'’s
protection against quartering of soldiers; (2) the Fifth Amendment’'s
grand jury indictment requirement; (3) the Seventh Amendment right
to a jury trial in civil cases; and (4) the Eighth Amendment’'s prohibi-
tion on excessive fines.
We never have decided whether the Third Amendment or the Eighth
Amendment’s prohibition of excessive fines applies to the States
through the Due Process Clause. See Browning-Ferris Industries of Vt.,
Inc. v. Kelco Disposal, Inc., 492 U. S. 257, 276, n. 22 (1989) (declining to
decide whether the excessive-fines protection applies to the States); see
also Engblom v. Carey, 677 F. 2d 957, 961 (CA2 1982) (holding as a
matter of first impression that the "“Third Amendment is incorporated
into the Fourteenth Amendment for application to the states”").
Our governing decisions regarding the Grand Jury Clause of the
Fifth Amendment and the Seventh Amendment’'s civil jury requirement
long predate the era of selective incorporation.

18

Rights protections "“are all to be enforced against the
States under the Fourteenth Amendment according to the
same standards that protect those personal rights against
federal encroachment."” Id., at 10; see also Mapp v. Ohio,
367 U. S. 643, 655-–656 (1961); Ker v. California, 374 U. S.
23, 33-–34 (1963); Aguilar v. Texas, 378 U. S. 108, 110
(1964); Pointer, 380 U. S., at 406; Duncan, supra, at 149,
157–158; Benton, 395 U. S., at 794–795; Wallace v. Jaffree,
472 U. S. 38, 48–49 (1985).14

Employing this approach, the Court overruled earlier
decisions in which it had held that particular Bill of Rights
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14 There is one exception to this general rule. The Court has held that
although the Sixth Amendment right to trial by jury requires a unani-
mous jury verdict in federal criminal trials, it does not require a
unanimous jury verdict in state criminal trials. See Apodaca v. Oregon,
406 U. S. 404 (1972); see also Johnson v. Louisiana, 406 U. S. 356
(1972) (holding that the Due Process Clause does not require unani-
mous jury verdicts in state criminal trials). But that ruling was the
result of an unusual division among the Justices, not an endorsement
of the two-track approach to incorporation. In Apodaca, eight Justices
agreed that the Sixth Amendment applies identically to both the
Federal Government and the States. See Johnson, supra, at 395
(Brennan, J., dissenting). Nonetheless, among those eight, four Jus-
tices took the view that the Sixth Amendment does not require unani-
mous jury verdicts in either federal or state criminal trials, Apodaca,
406 U. S., at 406 (plurality opinion), and four other Justices took the
view that the Sixth Amendment requires unanimous jury verdicts in
federal and state criminal trials, id., at 414–-415 (Stewart, J., dissent-
ing); Johnson, supra, at 381-–382 (Douglas, J., dissenting). Justice
Powell’'s concurrence in the judgment broke the tie, and he concluded
that the Sixth Amendment requires juror unanimity in federal, but not
state, cases. Apodaca, therefore, does not undermine the well-
established rule that incorporated Bill of Rights protections apply
identically to the States and the Federal Government. See Johnson,
supra, at 395–-396 (Brennan, J., dissenting) (footnote omitted) ("“In any
event, the affirmance must not obscure that the majority of the Court
remains of the view that, as in the case of every specific of the Bill of
Rights that extends to the States, the Sixth Amendment’s jury trial
guarantee, however it is to be construed, has identical application
against both State and Federal Governments"”).