Has SCOTUS finally incorporated all the Bill of Rights?

[Quantum Windbag]

On Monday, June 28, 2010, in McDonald v. City of Chicago, the Supreme Court inadvertently held that Congress had already applied the entire Bill of Rights to the states through the Civil Rights Act of 1866. The Court held that the Civil Rights Act was intended to protect substantive rights, including the Second Amendment right to bear arms. The same evidence of legislative intent, however, shows that Congress sought to enforce the Bill of Rights generally against the states. This means, among other things, that Congress has enforced all of the remaining provisions of the Bill of Rights against the states: The Third Amendment, the Fifth Amendment Grand Jury trial right the Seventh Amendment civil jury right (depending on what that right actually is), and the Eighth Amendment’s ban on excessive fines. Under the Court’s new reinterpretation of this venerable civil rights statute, the Civil Rights Act of 1866, currently codified at 42 U.S.C. section 1981, offers a general guarantee of basic constitutional liberties against the states.​

...

And this leads us to the last, shocking revelation: If the Court’s argument about Congress’s intent in McDonald is correct, it follows that the main holding in McDonald is completely superfluous and the Court reached out unnecessarily to decide a constitutional question. After all, if the Court is correct that the Civil Rights Act of 1866 was designed to enforce a substantive right to bear arms, the Chicago ordinance is preempted to the extent that it conflicts with 42 U.S.C. section 1981. Thus, the Court could simply have noted that the Reconstruction Congress intended to apply the right to bear arms to the states through the 1866 and 1870 Civil Rights Acts, and then deferred the constitutional question. Why Justice Alito felt compelled to keep going at this point is puzzling. Perhaps he did not realize that the Civil Rights Act of 1866 is still in effect!
​

Balkinization

This could be interesting. Imagine the impact if the entire Constitution actually applies to the states.

 

[hortysir]

I have never had any reason to believe otherwise......

 

[Oddball]

If "we the people" have unalienable rights that the feds cannot trample (well, that they aren't supposed to anyways), how could it then be argued that the states could be free to do so?

 

[goldcatt]

No. The 7th is not incorporated. Neither are the 3rd or the Grand Jury guarantee portion of the 6th. And of course the 14ths Due Process Clause takes the place of the Federal Due Process clause in the 5th. Am I missing anything?

 

[Oddball]

No. The 7th is not incorporated. Neither are the 3rd or the Grand Jury guarantee portion of the 6th. And of course the 14ths Due Process Clause takes the place of the Federal Due Process clause in the 5th. Am I missing anything?

I'm not so sure about that.

Let's renege on a purchase where the price to be paid is 21 silver dollars and find out.

 

[Big Black Dog]

Supreme Court is just like everything else in Washington, DC these days, i.e., a loose cannon. "We the people" need to start getting a bit more pro-active in policing our politicians and those that are supposed to be working for us.

 

[goldcatt]

And this leads us to the last, shocking revelation: If the Court’s argument about Congress’s intent in McDonald is correct, it follows that the main holding in McDonald is completely superfluous and the Court reached out unnecessarily to decide a constitutional question. After all, if the Court is correct that the Civil Rights Act of 1866 was designed to enforce a substantive right to bear arms, the Chicago ordinance is preempted to the extent that it conflicts with 42 U.S.C. section 1981. Thus, the Court could simply have noted that the Reconstruction Congress intended to apply the right to bear arms to the states through the 1866 and 1870 Civil Rights Acts, and then deferred the constitutional question. Why Justice Alito felt compelled to keep going at this point is puzzling. Perhaps he did not realize that the Civil Rights Act of 1866 is still in effect!

The Court doesn't make superfluous decisions. And applying the entire BoR to the States would be worse than superfluous. For just one example, could you imagine the expense and court clog involved in immediately requiring the States to give every civil complaint meeting the 7th's guidelines a full jury trial instead of allowing them to follow common law traditions for bench trials? No more small claims court! And unlike the late 18th Century, we now have combined law and equity. How would that work? Too many questions, no answers.

IMO, this is a complete misread of the decision AND of 42 USC 1981 - but if it isn't, well, nobody ever said Alito is the sharpest tool in the shed. Hold on to your hats if anybody tries to argue this.

 

[goldcatt]

No. The 7th is not incorporated. Neither are the 3rd or the Grand Jury guarantee portion of the 6th. And of course the 14ths Due Process Clause takes the place of the Federal Due Process clause in the 5th. Am I missing anything?

I'm not so sure about that.

Let's renege on a purchase where the price to be paid is 21 silver dollars and find out.

Depends. Is the seller pushing criminal charges? Bringing a contract suit in equity for specific performance? Or suing for monetary damages? Only the last is covered under the 7th as a civil calim at common law, and that would be small claims court in most States.

 

[Oddball]

No jury in small claims court.

If the issue is over an amount greater than $21, then the 7th sez you get a jury to hear the case.

Maybe that $21 refers to Article 1, Section 8 & 10 money, rather than worthless FRNs....Something to ponder.

 

[goldcatt]

No jury in small claims court.

If the issue is over an amount greater than $21, then the 7th sez you get a jury to hear the case.

Maybe that $21 refers to Article 1, Section 8 & 10 money, rather than worthless FRNs....Something to ponder.

The 7th says you get a jury for claims at law for $21.

But if you'll only accept silver dollars and not legal tender, you've got a claim for specific performance - which is equity, not law. The 7th wouldn't apply to a claim in equity no matter what court you're in.

 

[George Costanza]

On Monday, June 28, 2010, in McDonald v. City of Chicago, the Supreme Court inadvertently held that Congress had already applied the entire Bill of Rights to the states through the Civil Rights Act of 1866. The Court held that the Civil Rights Act was intended to protect substantive rights, including the Second Amendment right to bear arms. The same evidence of legislative intent, however, shows that Congress sought to enforce the Bill of Rights generally against the states. This means, among other things, that Congress has enforced all of the remaining provisions of the Bill of Rights against the states: The Third Amendment, the Fifth Amendment Grand Jury trial right the Seventh Amendment civil jury right (depending on what that right actually is), and the Eighth Amendment’s ban on excessive fines. Under the Court’s new reinterpretation of this venerable civil rights statute, the Civil Rights Act of 1866, currently codified at 42 U.S.C. section 1981, offers a general guarantee of basic constitutional liberties against the states.​

...

And this leads us to the last, shocking revelation: If the Court’s argument about Congress’s intent in McDonald is correct, it follows that the main holding in McDonald is completely superfluous and the Court reached out unnecessarily to decide a constitutional question. After all, if the Court is correct that the Civil Rights Act of 1866 was designed to enforce a substantive right to bear arms, the Chicago ordinance is preempted to the extent that it conflicts with 42 U.S.C. section 1981. Thus, the Court could simply have noted that the Reconstruction Congress intended to apply the right to bear arms to the states through the 1866 and 1870 Civil Rights Acts, and then deferred the constitutional question. Why Justice Alito felt compelled to keep going at this point is puzzling. Perhaps he did not realize that the Civil Rights Act of 1866 is still in effect!
​

Balkinization

This could be interesting. Imagine the impact if the entire Constitution actually applies to the states.

Hate to say it, QW, but this sound like total bull shit. I'm sure you read what this guy is writing. It doesn't make much sense.

 

[goldcatt]

An opinion piece in a blog. This one: Balkinization

The piece itself is signed only "JB", who knows who that is or what the person's credentials are? The same guy with the initials JB who's pedalling his books on the i ching on the first page?

I can say this, it's the first time I've heard that argument either from my own reading of McDonald or in any of the more credible SCOTUS watch and other con law sources (you know, the ones where the authors actually sign their names and give their credentials - and their contact e-mail is usually not yahoo ).

 

[Quantum Windbag]

No. The 7th is not incorporated. Neither are the 3rd or the Grand Jury guarantee portion of the 6th. And of course the 14ths Due Process Clause takes the place of the Federal Due Process clause in the 5th. Am I missing anything?

Quite a bit actually, but the reasoning in MacDonald saying that the CRA of 1866 intended to apply all of the rights in the Constitution to the states, which I think is correct, could open up a really interesting can of worms. If I was a lawyer I would love to argue some of the things states ignore in court using that reasoning.

 

[Quantum Windbag]

On Monday, June 28, 2010, in McDonald v. City of Chicago, the Supreme Court inadvertently held that Congress had already applied the entire Bill of Rights to the states through the Civil Rights Act of 1866. The Court held that the Civil Rights Act was intended to protect substantive rights, including the Second Amendment right to bear arms. The same evidence of legislative intent, however, shows that Congress sought to enforce the Bill of Rights generally against the states. This means, among other things, that Congress has enforced all of the remaining provisions of the Bill of Rights against the states: The Third Amendment, the Fifth Amendment Grand Jury trial right the Seventh Amendment civil jury right (depending on what that right actually is), and the Eighth Amendment’s ban on excessive fines. Under the Court’s new reinterpretation of this venerable civil rights statute, the Civil Rights Act of 1866, currently codified at 42 U.S.C. section 1981, offers a general guarantee of basic constitutional liberties against the states.​

...

And this leads us to the last, shocking revelation: If the Court’s argument about Congress’s intent in McDonald is correct, it follows that the main holding in McDonald is completely superfluous and the Court reached out unnecessarily to decide a constitutional question. After all, if the Court is correct that the Civil Rights Act of 1866 was designed to enforce a substantive right to bear arms, the Chicago ordinance is preempted to the extent that it conflicts with 42 U.S.C. section 1981. Thus, the Court could simply have noted that the Reconstruction Congress intended to apply the right to bear arms to the states through the 1866 and 1870 Civil Rights Acts, and then deferred the constitutional question. Why Justice Alito felt compelled to keep going at this point is puzzling. Perhaps he did not realize that the Civil Rights Act of 1866 is still in effect!
​

Balkinization

This could be interesting. Imagine the impact if the entire Constitution actually applies to the states.

Hate to say it, QW, but this sound like total bull shit. I'm sure you read what this guy is writing. It doesn't make much sense.

I agree, but I love it when legal arguments that don't make sense come out of people who should know better. The ramifications of applying this logic is staggering.

 

[George Costanza]

Did I miss the sarcasm smiley in the OP?

 

[Quantum Windbag]

I used invisible ink.

 

[lawbuff]

No. The 7th is not incorporated. Neither are the 3rd or the Grand Jury guarantee portion of the 6th. And of course the 14ths Due Process Clause takes the place of the Federal Due Process clause in the 5th. Am I missing anything?

Unless recently incorporated, the Vicinage Clause is not applicable.

The BoR Preamble offers no clue to the ratification applying to the states, therefore Marshall's decision in Barron v. Baltimore was correct for the age of enlightenment periods.

To gaze your eyes on the BoR in the National Archives is a thrill.

 

[lawbuff]

The Court doesn't make superfluous decisions. And applying the entire BoR to the States would be worse than superfluous. For just one example, could you imagine the expense and court clog involved in immediately requiring the States to give every civil complaint meeting the 7th's guidelines a full jury trial instead of allowing them to follow common law traditions for bench trials? No more small claims court! And unlike the late 18th Century, we now have combined law and equity. How would that work? Too many questions, no answers.

The 7th seems to imply the federal courts entertained small damage claims? Am I correct?

That seems odd.

They would simply rule it as they have for criminal trials. Juries are not required for any offense not jailable.

Just as Ohio, on a state level, has decriminalized under 100 grams of MJ, it is a Minor Misdemeanor, no jail time, just a max 150 fine.

Some Municipalities classify it as a higher offense though, which is permissable.

 

[ConHog]

No. The 7th is not incorporated. Neither are the 3rd or the Grand Jury guarantee portion of the 6th. And of course the 14ths Due Process Clause takes the place of the Federal Due Process clause in the 5th. Am I missing anything?

Unless recently incorporated, the Vicinage Clause is not applicable.

The BoR Preamble offers no clue to the ratification applying to the states, therefore Marshall's decision in Barron v. Baltimore was correct for the age of enlightenment periods.

To gaze your eyes on the BoR in the National Archives is a thrill.

As is the DoI. Just awe inspiring really.

 

[KissMy]

There is nothing worthwhile left in the US Bill of Rights nowadays anyhow.