Due Process & Selective Incorporation

You’ll be able to

Explain how selective incorporation applies the Bill of Rights to the states
Describe key due-process protections for the accused
Apply Gideon v. Wainwright and McDonald v. Chicago as incorporation cases

Selective incorporation

The Bill of Rights originally limited only the national government. Through selective incorporation, the Supreme Court has applied most of its protections to the states, one right at a time, using the Due Process Clause of the Fourteenth Amendment ("nor shall any State deprive any person of life, liberty, or property, without due process of law"). Incorporation is "selective" because the Court has extended rights case by case rather than all at once. The doctrine is why a state — not just the federal government — must respect your right to free speech, counsel, or to bear arms.

Rights of the accused

Several amendments protect people in the criminal-justice system. The Fourth guards against unreasonable searches and seizures. The Fifth protects against self-incrimination and double jeopardy and guarantees due process. The Sixth guarantees the right to counsel, a speedy and public trial, and an impartial jury. The Eighth bars cruel and unusual punishment and excessive bail. In Gideon v. Wainwright (1963), the Court incorporated the Sixth Amendment right to an attorney, ruling that states must provide a lawyer to defendants who cannot afford one — because a fair trial is impossible without counsel.

Incorporating the Second Amendment

Incorporation continues to reach new rights. In McDonald v. Chicago (2010), the Court held that the Second Amendment right to keep and bear arms for self-defense applies to the states through the Fourteenth Amendment’s Due Process Clause, striking down a strict Chicago handgun ban. Coming after the Court had recognized an individual right to bear arms federally, McDonald extended that protection so that state and local governments — not only the national government — are bound by it. It is a textbook example of selective incorporation in action.

Worked example

A defendant in a state court is too poor to hire a lawyer, and the state refuses to appoint one, saying the Sixth Amendment binds only the federal government. Using Gideon v. Wainwright, evaluate the state’s position.

1.Identify the right at stake: the Sixth Amendment guarantees the assistance of counsel in criminal prosecutions.
2.Recall the state’s objection: the Bill of Rights originally limited only the national government, so the state claims it is exempt.
3.Apply selective incorporation: Gideon used the Fourteenth Amendment’s Due Process Clause to apply the right to counsel to the states.
4.Reach the conclusion: because the right is incorporated, the state must provide an attorney to a defendant who cannot afford one; a fair trial requires it.

Answer: The state is wrong. Gideon v. Wainwright incorporated the Sixth Amendment right to counsel against the states through the Fourteenth Amendment, so the state must appoint a lawyer for a defendant who cannot afford one. The case illustrates how selective incorporation binds states to Bill of Rights protections.

Checkpoint

Selective incorporation applies protections in the Bill of Rights to state governments primarily through which constitutional provision?

On the exam

Both Gideon (right to counsel) and McDonald (right to bear arms) are incorporation cases decided under the Fourteenth Amendment. If a prompt asks how a Bill of Rights protection came to bind a state, "selective incorporation through the Due Process Clause" is your framework.

Checkpoint

How did McDonald v. Chicago build on the earlier recognition of an individual right to bear arms?

Tip

Remember the amendments of the accused by number: 4th (searches), 5th (self-incrimination, double jeopardy, due process), 6th (counsel, speedy trial, jury), 8th (cruel and unusual punishment). Gideon fixes the 6th in memory; McDonald fixes the 2nd.

Answer the 2 checkpoints as you read.