Which parts of the Bill of Rights have NOT been incorporated and applied to the states?

Answer 1

Provisions of the Bill of Rights the Supreme Court Has NotIncorporated1) Third Amendment right against quartering soldiers (Quartering Soldiers Clause of the Third Amendment);

2) Fifth Amendment right to a grand jury hearing (Grand Jury Clause of the Fifth Amendment);

3) The Seventh Amendment right to a jury trial in civil cases (Right of Trial by Jury Clause of the Seventh Amendment);

4) The Eighth Amendment right to excessive bail and fines (Excessive Bails and Fines Clauses of the Eighth Amendment).

In case you are interested, here is the list of constitutional provisions that have been incorporated and applied to the states, the cases that incorporated them, and the years in which they were incorporated by the Court:

First Amendment

Freedom of Speech & Press: Gitlow v. New York(1925)

Freedom of Assembly: DeJonge v. Oregon (1937)

Freedom of Petition: Hague v. CIO (1939)

Free Exercise of Religion: Cantwell v. Connecticut(1940)

Establishment of Religion: Everson v. Board of Education(1947)

Second Amendment

Right to Keep & Bear Arms: McDonald v. Chicago(2010)

Fourth Amendment

Unreasonable Search & Seizure: Wolf v. Colorado(1949)

Exclusionary Rule: Mapp v. Ohio (1961)

Fifth Amendment

Payment of Compensation for Chicago, Burlington and Quincy

the Taking of Private Property: Railroad Company v. Chicago (1897)

Right Against Self-Incrimination: Malloy v. Hogan(1964)

Right Against Double Jeopardy: Benton v. Maryland(1969)

When Double Jeopardy Attaches: Crist v. Bretz (1978)

Sixth Amendment

Right to Public Trial: In re Oliver (1948)

Right to Due Notice: Cole v. Arkansas (1948)

Right to Counsel (felonies): Gideon v. Wainwright(1963)

Confrontation &

Cross-Examination of Adverse

Witnesses: Pointer v. Texas (1965)

Right to Speedy Trial: Klopfer v. North Carolina(1967)

Compulsory Process to

Obtain Witnesses: Washington v. Texas (1967)

Right to Jury Trial

(In Criminal Cases): Duncan v. Louisiana (1968)

Right to Counsel

(Misdemeanor When

Jail is Possible): Argersinger v. Hamlin (1972)

Eight Amendment

Cruel & Unusual Punishment: Louisiana ex rel. Francis v. Resweber (1947)

Ninth Amendment

*Right to Privacy: Griswold v. Connecticut (1965)

*The word privacy does not appear in the Ninth Amendment (nor anywhere in the text of the Constitution). In Griswold, several members of the Court viewed the Ninth Amendment as guaranteeing (and incorporating) that right. Justice Douglas, writing the opinion of the Court in Griswold, and agreed to by seven other justices, stated that the right to privacy exists outside the enumerations of the Constitution and Bill of Rights. Justice Douglas also created the penumbra theory of the right to privacy. The right to privacy was "created by several fundamental constitutional guarantees" which came together to show that privacy was, perhaps, inherent. (see Douglas, J., Opinion of the Court, Griswold v. Connecticut, 381 U.S. 479 (1965).

-- Jesse Porter

(Any other U.S. Constitution questions, Second Amendment questions, Supreme Court case law, doctrines, standards, holdings, rulings, etc. questions, constitutionality of state and federal laws/statutes questions, or any political science questions, I would be more than willing to answer for you either here on Answers, my Facebook page, or you can even feel free to email me.

Answer 2

EXPECTED RESPONSE

Seventh Amendment (not incorporated)

• Right to jury trial in civil cases not imposed on states.

ALSO QUALIFIES (Sort of)

Third Amendment (not fully incorporated)*

• 2nd Circuit ruling in Engblom v. Carey upheld Third Amendment rights, but decision only applies to Connecticut, New York, and Vermont. Decision only has persuasive authority over remainder of states.

  (*Technically, the Third Amendment also satisfies the criteria of the question because the case wasn't reviewed by the Supreme Court.)

Ninth Amendment (Not triable)

Tenth Amendment (Does not address individual rights)

(Incorporation really only applies to the first eight amendments of the Bill of Rights; however, the Ninth and Tenth Amendments are still considered part of the Bill of Rights)

Prior to June 28, 2010, Answer included:

Second Amendment (incorporated)

• District of Columbia v. Heller, 554 US ___ (2008) determined District of Columbia handgun ban was a violation of respondent's Second Amendment right to own and bear arms.
• McDonald v. City of Chicago, 561 US ___ (2010) held self-protection is a fundamental right and incorporated the Second Amendment to the states.

For more information, see Related Questions, below.

Answer 3

Third Amendment (not fully incorporated)*

2nd Circuit ruling in Engblom v. Carey upheld Third Amendment rights, but decision only applies to Connecticut, New York, and Vermont. Decision only has persuasive authority over remainder of states.

(*Technically, the Third Amendment also satisfies the criteria of the question because the case wasn't reviewed by the Supreme Court.)