McDonald v. Chicago (Alito)

17 Oct

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theless, the Court never has embraced Justice Black’’s
““total incorporation”” theory.

3

While Justice Black’’s theory was never adopted, the
Court eventually moved in that direction by initiating
what has been called a process of “”selective incorporation,”” 
i.e., the Court began to hold that the Due Process Clause
fully incorporates particular rights contained in the first
eight Amendments. See, e.g., Gideon v. Wainwright, 372
U. S. 335, 341 (1963); Malloy v. Hogan, 378 U. S. 1, 5–-6
—————— ——————
leges or immunities”” is not naturally read to mean the rights set out in
the first eight Amendments, see Brief for Historians et al. as Amici
Curiae 13-–16, and that ““there is ‘’support in the legislative history for
no fewer than four interpretations of the . . . Privileges or Immunities
Clause.'”’ ” Brief for Municipal Respondents 69 (quoting Currie, The
Reconstruction Congress, 75 U. Chi. L. Rev. 383, 406 (2008); brackets
omitted). They question whether there is sound evidence of “ ‘”‘any
strong public awareness of nationalizing the entire Bill of Rights.'”’ ”
Brief for Municipal Respondents 69 (quoting Wildenthal, Nationalizing
the Bill of Rights: Revisiting the Original Understanding of the Four-
teenth Amendment in 1866-–67, 68 Ohio St. L. J. 1509, 1600 (2007)).
Scholars have also disputed the total incorporation theory. See, e.g.,
Fairman, Does the Fourteenth Amendment Incorporate the Bill of
Rights? 2 Stan. L. Rev. 5 (1949); Berger, Incorporation of the Bill of
Rights in the Fourteenth Amendment: A Nine-Lived Cat, 42 Ohio St.
L. J. 435 (1981).
Proponents of the view that §1 of the Fourteenth Amendment makes
all of the provisions of the Bill of Rights applicable to the States re-
spond that the terms privileges, immunities, and rights were used
interchangeably at the time, see, e.g., Curtis, supra, at 64–-65, and that
the position taken by the leading congressional proponents of the
Amendment was widely publicized and understood, see, e.g., Wilden-
thal, supra, at 1564-–1565, 1590; Hardy, Original Popular Understand-
ing of the Fourteenth Amendment as Reflected in the Print Media of
1866-–1868, 30 Whittier L. Rev. 695 (2009). A number of scholars have
found support for the total incorporation of the Bill of Rights. See
Curtis, supra, at 57-–130; Aynes, On Misreading John Bingham and the
Fourteenth Amendment, 103 Yale L. J. 57, 61 (1993); see also Amar,
Bill of Rights 181–230. We take no position with respect to this aca-
demic debate.

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(1964); Pointer v. Texas, 380 U. S. 400, 403-–404 (1965);
Washington v. Texas, 388 U. S. 14, 18 (1967); Duncan, 391
U. S., at 147–-148; Benton v. Maryland, 395 U. S. 784, 794
(1969).

The decisions during this time abandoned three of the
previously noted characteristics of the earlier period.11
The Court made it clear that the governing standard is not
whether any ““civilized system [can] be imagined that
would not accord the particular protection.”” Duncan, 391
U. S., at 149, n. 14. Instead, the Court inquired whether a
particular Bill of Rights guarantee is fundamental to our
scheme of ordered liberty and system of justice. Id., at
149, and n. 14; see also id., at 148 (referring to those
“fundamental principles of liberty and justice which lie at
the base of all our civil and political institutions”” (empha-
sis added; internal quotation marks omitted)).

The Court also shed any reluctance to hold that rights
guaranteed by the Bill of Rights met the requirements for
protection under the Due Process Clause. The Court
eventually incorporated almost all of the provisions of the
Bill of Rights.12 Only a handful of the Bill of Rights pro-
—————— ————————
11 By contrast, the Court has never retreated from the proposition
that the Privileges or Immunities Clause and the Due Process Clause
present different questions. And in recent cases addressing unenumer-
ated rights, we have required that a right also be “”implicit in the
concept of ordered liberty.”” See, e.g., Washington v. Glucksberg, 521
U. S. 702, 721 (1997) (internal quotation marks omitted).
12 With respect to the First Amendment, see Everson v. Board of Ed.
of Ewing, 330 U. S. 1 (1947) (Establishment Clause); Cantwell v.
Connecticut, 310 U. S. 296 (1940) (Free Exercise Clause); De Jonge v.
Oregon, 299 U. S. 353 (1937) (freedom of assembly); Gitlow v. New
York, 268 U. S. 652 (1925) (free speech); Near v. Minnesota ex rel.
Olson, 283 U. S. 697 (1931) (freedom of the press).
With respect to the Fourth Amendment, see Aguilar v. Texas, 378
U. S. 108 (1964) (warrant requirement); Mapp v. Ohio, 367 U. S. 643
(1961) (exclusionary rule); Wolf v. Colorado, 338 U. S. 25 (1949) (free-
dom from unreasonable searches and seizures).
With respect to the Fifth Amendment, see Benton v. Maryland, 395

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