Does the Bill of Rights apply to the states? Probably, but only when the Supreme Court says it does. Before 1920, mostly it didn’t. It all depends on the Fourteenth Amendment which reads in part: “… nor shall any state deprive any person of life, liberty, or property, without due process of law .” That one phrase opened to door to the “incorporation doctrine” which the Court used to justify making most provisions of the Bill of Rights applicable to the States.
Is the incorporation doctrine reliable? Probably. Justice Thomas reportedly believes many Supreme Court Decisions made since 1850 ought to be overturned, In Justice Thomas’ view, the Incorporation Doctrine may be suspect. For more of the story, see the Washington Post article cited below.
Application of the Second Amendment to the States currently depends on the incorporation doctrine. If it were overturned, States would be free to infringe “the right of the people to keep and bear arms.” How about that?
Justice Thomas did write in favor of incorporation of the Second Amendment in McDonnald vs. Chicago (2010), but based his opinion on the immunities clause of the Fourteenth Amendment rather than the due process clause.
(Thanks to Deb Meeker for suggesting the WP article)
© William Hungerford – July 2014
Now I’m actually confused about something. In the matter of states rights v the Constitution, how does Roe v.Wade stack up to certain states being allowed to stifle abortion with new law, while the Supreme Court decreed: ” held that a woman’s right to an abortion fell within the right to privacy (recognized in Griswold v. Connecticut) protected by the Fourteenth Amendment. The decision gave a woman total autonomy over the pregnancy during the first trimester and defined different levels of state interest for the second and third trimesters.”
Yet for example :”Ohio state House Republicans passed a bill banning abortion in cases where a fetal heartbeat could be detected with up-to-the-minute technology, which would effectively ban abortion since a heartbeat can appear as early as five to six weeks, before abortion is usually a feasible option. As with the twenty-week ban, this legislation is crafted with “scientific advancement” as the rationalization.”
Good point, solodm. These restrictions impinge on a woman’s right to liberty and privacy, and are (supposedly) based on a religious belief that is held by some, but not all.
Searching for “Constitutional restrictions on abortion turns up items of interest. Here are two:
Thank you for these articles. The second, states well my concerns of this particular Supreme Court; which has made clear with (in my opinion) quite a few decisions of late, that Stare decisis need not be considered important – if it stands in the way of the SCOTUS majority’s ideology. Woe be unto this country, if Roe v. Wade is overturned.
The “still standing” article in “The Nation” makes clear how Roe can be made ineffective without being reversed. As long as partisan views dominate Court rulings, who appoints replacements for the current judges is crucial. This is one good reason to hope a woman is elected President in 2016.
Seems to be a trend, doesn’t it? When some states don’t get their way (Roe v Wade; Obamacare upheld) they resort to backdoor tactics to get around SCOTUS decisions. We see this most often in the states’ cynical lawmaking concerning abortion clinics. Pretending, for example, that they are concerned with the “health of the mother” when all they really want to do is shut down abortion providers. this breeds a contempt for the law, in my opinion.