Selective incorporation | Civil liberties and civil rights | US government and civics | Khan Academy
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Selective incorporation | Civil liberties and civil rights | US government and civics | Khan Academy

– [Presenter] Let’s talk a little bit about selective incorporation. You are already likely
familiar that the first 10 amendments of the
United States Constitution are the Bill of Rights. Bill of Rights. And especially the first eight of these are all about protecting
individuals rights. So you have those rights. But then there’s a question. To what degree are these rights protected against state laws? This became a little bit
clearer once the 14th Amendment came along and just to remind ourselves here’s section one of the 14th Amendment. We really want to zero is
on the due process clause, which says, “nor shall any
state deprive any person “of life, liberty, or property,
without due process of law.” Now, some have argued
for total incorporation that says the 14th
Amendment’s making it clear that the state cannot
infringe on these rights. But what has happened, especially in the United
States Supreme Court, is that on various decisions, maybe this was something
involving the 5th Amendment, they’ve ruled that the rights
described by that amendment can’t be limited by a state law. So they would have
selectively incorporated the 5th Amendment from the Bill of Rights and decision on what the
state can and cannot do, and their justification
there’s a due process clause of the 14th Amendment. And to make that a
little bit more tangible we can look at some
relatively recent cases. In 2008 you have the case District of Columbia versus Heller. This is a really interesting
case around the 2nd Amendment. The District of Columbia,
Washington, D.C., had a law that banned hand guns. So one of the residents
challenges that hand gun ban and it goes all the way to the
United States Supreme Court. And in the decision on District
of Columbia versus Heller the United States Supreme Court says that the District of Columbia cannot pass a law that violates Heller’s 2nd Amendment right because of the due process
clause of the 14th Amendment. But that still left a
little bit of an opening. You fast forward and in
2010 you have another similar case go to the Supreme Court. This is McDonald versus Chicago. Chicago had a similar hand gun ban, and McDonald was a resident of Chicago. The government in
Chicago argued that okay, the District of Columbia versus Heller does not apply to us because
that was a federal district and it would not apply to
something that is part of a state. Well, the Supreme Court
disagreed with Chicago and took the side of McDonald. They selectively incorporated using the 14th Amendment
as their justification. They said look, the state cannot deprive any person of their liberties. So they selectively
incorporated the 2nd Amendment into that decision and made it very clear that a state cannot pass
a law that infringes on people’s 2nd Amendment rights. So big picture, selective incorporation, it’s the doctrine where judicial decisions incorporate rights from the Bill of Rights to limit laws from
states that are perceived to infringe on those rights, and the justification comes
from the 14th Amendment.


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